EHRM, 07-01-2016, nr. 23279/14

The Court will initially examine whether the applicant's detention at issue could be justified as detention of a person ‘of unsound mind’ for the purposes of Article 5 § 1 (e). Under the Court's well-established case-law (see paragraphs 96 and 98 above), this requires, in the first place, that, at the time of the decision ordering the continuation of his preventive detention, the applicant was reliably shown to be of unsound mind. In other words, a true mental disorder must have been established before a competent authority on the basis of objective medical expertise.

The Court notes that the Lüneburg Regional Court and the Celle Court of Appeal endorsed the expert's finding that the applicant suffered from sexual sadism and found that this was a mental disorder for the purposes of the second sentence of section 316f(2) of the Introductory Act to the Criminal Code and section 1(1) of the Therapy Detention Act (see paragraphs 17 and 23 above).

In determining whether the domestic courts can be said to have established thereby that the applicant suffered from a mental disorder for the purposes of Article 5 § 1 (e), the Court observes that under the new section 316f(2), second sentence, of the Introductory Act to the Criminal Code, the courts responsible for the execution of sentences could order the continuation of the applicant's preventive detention only if, among other requirements, they found him to be suffering from a mental disorder. That requirement had in fact been adopted following the stricter standards set by the Federal Constitutional Court in its judgment of 4 May 2011 for retrospectively prolonged preventive detention to continue (see paragraph 68 above).

The domestic courts were therefore no longer only called upon to determine under Article 67d § 3 of the Criminal Code (see paragraph 51 above) whether there was a risk that if released, the person concerned would reoffend owing to his criminal tendencies, irrespective of whether this was a result of his mental condition or not (see in this respect Kallweit, cited above, § 56; O.H. v. Germany, no. 4646/08, § 86, 24 November 2011; and Kronfeldner v. Germany, no. 21906/09, § 79, 19 January 2012). They were obliged to positively establish that the detainee was suffering from a mental disorder, as a result of which it was highly likely that he would commit the most serious crimes of violence or sexual offences (see in this respect also Glien, cited above, § 80).

The Court is therefore satisfied that the domestic courts in the proceedings at issue were competent authorities which established that the applicant had a mental disorder at least as defined by the applicable domestic law. The courts' conclusion was based on a recent report of 8 June 2013 drawn up by the external psychiatric expert consulted by them and thus on objective medical expertise.

It remains to be determined whether the domestic courts can be said also to have established that the applicant was ‘of unsound mind’, that is, that he suffered from a true mental disorder, for the purposes of Article 5§ 1 (e) of the Convention. It notes in this regard that the applicant contested this, arguing that the domestic courts' interpretation of the term ‘mental disorder’ was wider than the term ‘of unsound mind’ and that he did not suffer from a mental illness.

The Court notes that in the proceedings at issue the domestic courts, endorsing the findings of the psychiatric expert they had consulted, found that the applicant suffered, at that time, from sexual sadism, a sexual deviance, which necessitated medical treatment and therapy. They further stressed that this diagnosis confirmed the findings previously made by a number of experts that the applicant was suffering from a sexual preference disorder with sadomasochistic, fetishist and paedophiliac elements. The Court further observes in that context that the applicant had already been found to have, in particular, a sexual deviance at the time of the offences in respect of which his preventive detention had been ordered. His mental abnormality, combined with the consumption of alcohol, had led to the diminution of his criminal responsibility at the time of the acts (see paragraph 9 above). It appears that the applicant's condition has remained essentially unchanged since his criminal conviction in 1986.

The Court reiterates that the permissible grounds for deprivation of liberty listed in Article 5 § 1 are to be interpreted narrowly (see paragraph 95 above). A mental disorder must be so serious as to necessitate treatment in a hospital, clinic or other appropriate institution in order to be considered as a true mental disorder for the purposes of sub-paragraph (e) of Article 5 § 1 (see Glien, cited above, § 85). The Court has already observed in this regard that it appeared that the notion of ‘persons of unsound mind’ (‘aliéné’ in the French version) in Article 5 § 1 (e) of the Convention might be more restrictive than the notion of ‘mental disorder’ (‘psychische Störung’) referred to in section 1(1) of the Therapy Detention Act (see Glien, cited above, § 87).

However, the Court considers in the present case that the mental disorder the domestic courts found the applicant to suffer from was sufficiently serious as to amount to a true mental disorder for the purposes of Article 5 § 1 (e). The specific sexual deviance, sexual sadism, from which the applicant was found to be suffering, necessitated both treatment with medication under medical supervision and therapy. When combined with the consumption of alcohol, his disorder was found to be so serious as to have diminished his criminal responsibility at the time of his offences. The sentencing court also considered the applicant's detention in a psychiatric hospital under Article 63 of the Criminal Code, but refrained from ordering such detention in view of its doubts as to whether the applicant's condition, which in principle necessitated treatment, could still be treated (see paragraph 11 above).

The Court is further satisfied that, as required by its case-law (see paragraph 96 above), the applicant's mental disorder was of a kind or degree warranting compulsory confinement. The domestic courts found that there was a very high risk that he would commit the most serious sexually motivated violent offences, similar to those of which he had been convicted — that is, in particular, two counts of attempted murder, combined with attempted rape in one case — if released. Moreover, the validity of the applicant's continued confinement depended upon the persistence of his mental disorder. Under section 316f(2) of the Introductory Act to the Criminal Code, the continuation of the applicant's preventive detention could be ordered only if, and as long as, there was a high risk that if released, he would reoffend as a result of that disorder.

It follows that the applicant was a person ‘of unsound mind’ for the purposes of Article 5 § 1 (e).

In view of this finding, the Court considers that it can leave open the question whether the applicant, who was diagnosed as being addicted to alcohol without having drunk since his arrest in 1985 and who committed the offences of which he was found guilty under the influence of alcohol, also falls within the category of ‘alcoholics’ for the purposes of Article 5 § 1 (e).

The Court reiterates that, under its well-established case-law, the detention of a person as a mental-health patient will, in principle, only be ‘lawful’ for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see paragraph 99 above).

The Court observes that throughout the period covered by the impugned proceedings, that is, from 26 July 2013 (date of the decision of the Regional Court) until 25 April 2014 (when the Regional Court again prolonged the applicant's preventive detention in fresh review proceedings), the applicant was detained in the newly constructed Rosdorf preventive detention centre, a separate building on the premises of Rosdorf Prison.

The Court notes that the applicant's situation therefore differs from that of a number of applicants before this Court who, following the Court's judgment in the case of M. v. Germany (cited above), continued to be detained as ‘persons of unsound mind’ in separate wings for persons in preventive detention within different prisons. The Court repeatedly found that those applicants were not detained in institutions suitable for the detention of mental-health patients (see, in particular, Kallweit, cited above, § 57; O.H. v. Germany, cited above, §§ 87–92; Kronfeldner, cited above, §§ 80–85; and Glien, cited above, §§ 92–106).

The Court observes that the Rosdorf preventive detention centre was constructed following, and in order to comply with, the Federal Constitutional Court's leading judgment on preventive detention of 4 May 2011 (see paragraphs 66–72 above). In that judgment, which was adopted following this Court's judgment of 17 December 2009 in the case of M. v. Germany (cited above) on retrospectively prolonged preventive detention, the Federal Constitutional Court declared all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention as being incompatible with the fundamental right to liberty of persons in preventive detention. The court found that those provisions did not satisfy the constitutional requirement to differentiate between preventive detention and imprisonment. It ordered that new legislation was to enter into force on 1 June 2013 at the latest.

In view of this requirement, the legislator enacted new rules on the enforcement of preventive detention at federal level in the Preventive Detention (Distinction) Act, which entered into force on 1 June 2013. In particular, Article 66c of the Criminal Code now stipulates that preventive detention must be executed in institutions that offer the detainee individual and intensive care. Detainees must be encouraged to participate, in particular, in psychiatric, psychotherapeutic or sociotherapeutic treatment aimed at reducing the risk they pose to the public. The Länder equally adopted legislation regulating those aspects in more detail (see paragraphs 56–57 and 59–60 above). In order to comply with these judicial and legislative conditions in practice and to bring the accommodation for persons in preventive detention in line with them, substantial construction works were completed on the premises of a number of prisons in Germany.

Having regard to those developments, the Court welcomes the extensive measures which have been taken in the defendant State on judicial, legislative and executive levels with a view to adapting preventive detention to the requirements, in particular, of the fundamental right to liberty (see also Glien, cited above, § 99).

In order to determine whether the applicant's place of detention can be said to have been suitable for a mental-health patient, the Court must assess the specific conditions of detention in the Rosdorf preventive detention centre. It notes in that context that the new regime of preventive detention applies to all detainees in that form of detention, irrespective of whether or not their detention was prolonged retrospectively and with regard to the mental disorder of the detainee concerned.

Regarding the staffing situation in the Rosdorf centre for persons in preventive detention, the Court observes that, as submitted by the Government (see paragraph 38 above) and not contested by the applicant, the prison staff comprised one psychiatrist, four psychologists, five social workers and twenty-five members of the general prison service for a total of thirty detainees at the time. It considers that this staffing situation, which was similar to that in a psychiatric hospital run in the same Land, put the authorities in a position to address the applicant's mental disorder.

As to the particular care offered to the applicant in view of his mental disorder, the Court observes that the Regional Court, in line with the repeated finding by expert W., considered it essential that the applicant be offered treatment to reduce his sadistic fantasies and his libido, and thus his dangerousness. In line with that finding, the court, making use of the additional competences attributed to it under the new version of Article 67d § 2, read in conjunction with Article 66c § 1 sub-paragraph 1 of the Criminal Code, ordered the Rosdorf centre authorities to offer the applicant such treatment within three months (see paragraphs 14, 20, 49 and 54 above). It was further documented in the Rosdorf centre's treatment plan for the applicant (see paragraph 41 above) that the latter had regularly and repeatedly been offered such treatment. The applicant had, however, refused the treatment during the period at issue for fear of side effects. Furthermore, the applicant declined repeated offers to take part in group sessions of the treatment programme for offenders.

The Court further observes that it transpires from the Rosdorf centre's treatment plan that the applicant was successfully encouraged to participate in group therapy aimed at preventing detainees from relapsing into excessive alcohol consumption from July 2013 until August 2014. He was also granted leave from detention under escort a number of times and regularly participated in group sessions in which detainees discussed their experiences during leave from detention at the relevant time. Moreover, at least at the beginning of the period at issue, the applicant had fortnightly motivation meetings with a psychologist and took part in weekly residential group meetings, but subsequently chose to stop attending those meetings.

Having assessed the applicant's particular conditions of detention in the Rosdorf preventive detention centre and, in particular, the treatment offered to him with a view to addressing his mental disorder, the Court considers that there was a substantial change in the medical and therapeutic care which was offered to the applicant after his transfer to that centre. The Court is satisfied that the applicant was offered the therapeutic environment appropriate for a person detained as a mental-health patient and was thus detained in an institution suitable for the detention of such patients.

In determining whether the applicant's preventive detention at issue, which was effected in accordance with the new legislative framework of the Preventive Detention (Distinction) Act, was a ‘penalty’, the Court notes that the starting-point, and a very weighty factor, in the assessment of the existence of a penalty is whether the measure in question was imposed following conviction for a ‘criminal offence’ (see paragraph 150 above).

The Court observes that the applicant's preventive detention was initially imposed by the Hanover Regional Court in its judgment of 18 April 1986 under Article 66 § 2 of the Criminal Code, together with his conviction for several criminal offences, including attempted murder combined with attempted rape. Under the above-mentioned provision, a preventive detention order could be made by the sentencing court only against someone who, like the applicant, among other requirements, was sentenced to at least three years' imprisonment for at least three intentional criminal offences.

The Court further observes that the applicant continued to be remanded in preventive detention as a result of the preventive detention order imposed by the Hanover Regional Court in its 1986 judgment. The additional requirements under section 316f(2), second sentence, of the Introductory Act to the Criminal Code which had to be met in order for the applicant's preventive detention at issue to be prolonged do not alter the fact that it was the initial preventive detention order made in 1986 which kept being extended, albeit under additional restrictive conditions.

Moreover, no use was made of the possibility provided for by the Therapy Detention Act (see paragraphs 64–65 above) to base the applicant's detention on an order of a civil section of the competent Regional Court, placing him in a suitable institution for mental-health patients in view of his current dangerousness. The Court notes that unlike preventive detention under the Criminal Code, confinement under the Therapy Detention Act is not a measure imposed following and together with conviction for a criminal offence, despite the fact that it can be ordered only in respect of persons who have committed certain serious offences and have previously been kept in preventive detention. It is a measure ordered by the civil courts, outside the criminal law context, and aimed at the medical and therapeutic treatment of persons suffering from a mental disorder, who previously manifested that they posed a high risk to the public by committing a serious criminal offence (see Glien, cited above, § 122).

The Court therefore finds that the applicant's preventive detention was imposed following his conviction for a ‘criminal offence’. His situation thus does not differ in this respect from that at issue in the cases of M. v. Germany (cited above, § 124) and Glien (cited above, § 121).

The Court will proceed to assess the other relevant factors in determining whether the applicant's preventive detention was a ‘penalty’ for the purposes of Article 7 § 1.

As regards the characterisation of preventive detention under domestic law, the Court notes that in Germany such detention is not, and has never been, considered as a penalty to which the constitutional absolute ban on retrospective punishment applies (see M. v. Germany, cited above, §§ 125–26, and Glien, cited above, § 124). In its leading judgment of 4 May 2011, the Federal Constitutional Court again confirmed that preventive detention, contrary to this Court's findings in respect of Article 7 of the Convention, was not a penalty for the purposes of the absolute prohibition on the retrospective application of criminal law under the Basic Law (see paragraph 71 above). It further found that the former provisions of the Criminal Code on the imposition and duration of preventive detention failed, however, to meet the constitutional requirement of differentiating between purely preventive measures of correction and prevention, such as preventive detention, and penalties, such as prison sentences (see paragraph 67 above). The court therefore ordered the legislator to amend the provisions on preventive detention in the Criminal Code so as to reflect that difference.

In line with this requirement, the legislative amendments to the Criminal Code introduced by the Preventive Detention (Distinction) Act serve to clarify and extend the differences between the way in which preventive detention and prison sentences are enforced (see in particular the new Article 66c of the Criminal Code). They thus confirm and expand the differences between measures of correction and prevention, such as preventive detention, under the provisions of the Criminal Code and measures which are classified as penalties under the long-established twin-track system of sanctions in German criminal law (see M. v. Germany, cited above, §§ 45 et seq. and 125).

In that context, the Court agrees with the Federal Constitutional Court's finding that a schematic alignment of the meaning of the constitutional notion of ‘penalty’ with that under the Convention was not mandatory if, in substance, the minimum standards set by the Convention were complied with (see paragraph 71 above). As laid down in its case-law, the Court, for its part, must interpret the notion of ‘penalty’ in Article 7 § 1 autonomously, bearing in mind also the classification of comparable measures in other Contracting Parties to the Convention (see M. v. Germany, cited above, § 126, and Glien, cited above, § 124).

The Court will further examine the nature of the measure of preventive detention. It notes at the outset, as it has done in the cases of M. v. Germany (cited above, § 127) and Glien (cited above, § 125) that, like a prison sentence, preventive detention entails deprivation of liberty. However, the Court observes that, unlike in the above-mentioned cases, the applicant's preventive detention was not effected in an ordinary prison in a separate wing for persons in preventive detention. At the relevant time, the applicant was detained as a person ‘of unsound mind’ in the preventive detention centre on the premises of Rosdorf Prison, where he was offered treatment with a view to addressing his mental disorder (compare also Berland v. France, no. 42875/10, § 44, 3 September 2015).

In determining whether there were, therefore, unlike in the above-mentioned cases, substantial differences between the manner in which the applicant's preventive detention was effected and a prison sentence, the Court observes that preventive detention is now governed by specific provisions contained notably in Article 66c of the Criminal Code and in the Lower Saxony Preventive Detention Act. In accordance with the constitutional requirement to differentiate between preventive detention and imprisonment, preventive detention is now effected in a separate building on the premises of Rosdorf Prison.

The material conditions of detainees in preventive detention in that centre are much better than those of detainees serving a prison sentence. The former are detained in larger and well-equipped apartment units, are provided with common rooms and equipment to occupy themselves and are granted more individual freedom, including freedom of movement. More importantly, substantive means have been made available in order to provide detainees in preventive detention with individual and intensive psychiatric, psychotherapeutic or sociotherapeutic treatment aimed at reducing the risk they pose to the public, as prescribed by Article 66c of the Criminal Code and section 4(2) of the Lower Saxony Preventive Detention Act. Despite the fact that preventive detention has remained a State reaction to a criminal offence depriving the persons concerned of their liberty, the Court is satisfied that the manner in which the measure is now enforced has considerably changed.

In the Court's view, the changes to the nature of preventive detention are fundamental for persons who are detained, as is the applicant, as mental-health patients. The Court considers it of particular importance that, under section 316f(2), second sentence, of the Introductory Act to the Criminal Code, a new additional condition must be met if the preventive detention of a person is to be prolonged retrospectively, namely that the person concerned must be found to suffer from a mental disorder. This element was not relevant under domestic law for the court issuing the preventive detention order in 1986 and alters the nature of the detention of the persons concerned. Despite the fact that the link of the measure to the offences in respect of which it was ordered is not completely severed, the focus of the measure then lies on the medical and therapeutic treatment of the person concerned.

Moreover, the individualised and reinforced medical and therapeutic care that is now provided, including psychiatry and psychotherapy, is particularly relevant for mental-health patients.

The Court observes that, in accordance with the new concept of preventive detention as regulated from 2013 onwards, the applicant in the present case was offered, and partly accepted, treatment with a view to addressing his mental disorder. The treatment comprised, in particular, medication, a treatment programme for offenders, regular meetings with a psychologist, and treatment aimed at preventing detainees from relapsing into excessive alcohol consumption. The Court therefore considers that there was a substantial change in the medical and therapeutic care offered to the applicant after his transfer to the Rosdorf centre. The nature of the preventive detention thus changed in the case of the applicant, whose detention was extended because he was considered to pose a particular danger to the public as a result of his mental disorder.

As regards the purpose of the preventive detention ordered against the applicant, the Court observes that in the cases of M. v. Germany (cited above, §§ 128-30) and Glien (cited above, §§ 126-27), it could not subscribe to the Government's argument that preventive detention, in its legal form and its practical implementation at the relevant time, served a purely preventive, and not punitive purpose. In reaching its conclusion, the Court had regard to the situation of persons in preventive detention and, in particular, the lack of special measures aimed at reducing the risk they posed to the public.

The Court takes note of the Government's argument that preventive detention was now governed by distinct legal rules and in the instant case served to provide the applicant with treatment as a mentally ill person and for preventive purposes, namely to protect the public. This was contested by the applicant, who alleged that he was not offered any different treatment from that he had received in prison.

The Court observes that pursuant to both section 2(2) of the Lower Saxony Preventive Detention Act and section 5, first sentence, of the Lower Saxony Execution of Sentences Act, detainees must learn to lead a socially responsible life without reoffending. Furthermore, both section 2(3) of the Lower Saxony Preventive Detention Act and section 5, second sentence, of the Lower Saxony Execution of Sentences Act provide that both preventive detention and imprisonment are aimed at protecting the public from further offences.

As has been found in the case of M. v. Germany (cited above, § 130) in respect of the applicable provisions then in force, the aim of both penalties and measures of correction and prevention therefore still partly overlap.

However, the legislator, as required by the Federal Constitutional Court in its leading judgment of 4 May 2011, further developed and strengthened the preventive and therapeutic aspect of preventive detention. In line with section 2(1) of the Lower Saxony Preventive Detention Act, preventive detention centres have been created in which a number of specific measures are offered to detainees in order to help them reduce their dangerousness to such an extent that they may be released. As a result of the changes, adequate treatment of persons in preventive detention with a view to reducing their dangerousness is now at the heart of preventive detention.

The Court is nevertheless mindful of the fact that preventive detention can be imposed only if the person concerned was found guilty of several intentional criminal offences of certain gravity. When a trial court orders preventive detention together with punishment for an offence, the person concerned may well understand it as an additional punishment. It clearly entails also a deterrent element, which is not eclipsed by the additional treatment measures in better material conditions of detention. In prison sentences and preventive detention alike, these serve the purpose of allowing detainees to become capable of leading a socially responsible life without committing new offences.

In line with its above findings concerning the nature of the measure (see paragraphs 167–169 above), the Court considers, however, that, contrary to the situation prevailing when the applicant's preventive detention was ordered, and contrary to the situation for persons whose preventive detention was not prolonged (or ordered) retrospectively, it was a new precondition for the prolongation of the applicant's detention that he was found to suffer from a mental disorder. The Court finds that the preventive purpose pursued by the amended preventive detention legislation attains decisive weight in these circumstances. The applicant's preventive detention could only be prolonged because of his dangerousness as a result of his mental disorder. That mental disorder was not a precondition for the sentencing court's order for preventive detention and is thus a new, additional element which is independent of the initial sanction imposed and clearly distinguishes the nature of his detention for medical treatment purposes. Moreover, as stated above, the applicant's medical treatment is central to the specific measures of care offered to him. In the Court's view, this focus on the applicant's medical treatment in order to reduce his dangerousness distinguishes his situation and that of detainees in a similar situation from detainees in preventive detention who are offered treatment which, in a less extensive form, is also offered to ordinary prisoners serving a term of imprisonment.

Having regard to the specific therapies offered to the applicant in the Rosdorf preventive detention centre (see paragraphs 40–41 above), the Court considers that, in contrast to its findings in the case of M. v. Germany (cited above, §§ 128-29), the applicant has been offered a high level of individualised care, including continuous attempts to encourage him to participate in treatment, by a team of multi-disciplinary staff within a coherent framework for progression towards release.

In examining the procedures involved in the making and implementation of orders for preventive detention such as that imposed on the applicant, the Court observes that, just as in the case of M. v. Germany (cited above, § 131) and Glien (cited above, § 128), the applicant's preventive detention was ordered by the (criminal) sentencing courts. Its implementation was determined by the courts responsible for the execution of sentences, that is, courts also belonging to the criminal justice system, in a separate procedure. The procedure differs in this respect from that under sections 1 and 4 of the Therapy Detention Act, which provides that the civil sections of the Regional Court decide on the confinement of particularly dangerous offenders suffering from a mental disorder (see paragraph 64 above). However, the Court takes account of the Government's argument in that respect (see paragraph 146 above) that the courts dealing with the execution of sentences were particularly experienced in assessing the necessity of confining mental-health patients as they also dealt with decisions concerning detentions in psychiatric hospitals under Article 63 of the Criminal Code.

Lastly, as regards the severity of a preventive detention order which, as reiterated above (at paragraph 150), is not in itself decisive — the Court observes that that measure, just as in the cases of M. v. Germany (cited above, § 132) and Glien (cited above, § 129), still entailed detention which, following the change in the law in 1998, no longer had a maximum duration. The applicant's release was not to be ordered simply after the lapse of a certain time. However, it must equally be noted that, other than for prison sentences, there was also no minimum duration of detention. The duration of detention thus depended to a considerable extent on the applicant's cooperation. However, even though he was put in a better position, by the new framework in which his preventive detention was implemented, in order to work towards the reduction of his dangerousness, his release was still subject to a court finding that it was no longer highly likely that he would again commit serious crimes of violence or sexual offences as a result of his mental disorder.

The latter requirements, initially set up by the Federal Constitutional Court and taken up by the legislator in section 316f(2), second sentence, of the Introductory Act to the Criminal Code, are stricter than those at issue in the case of M. v. Germany (ibid.). Preventive detention, however, still remains among the most severe measures which may be imposed under the Criminal Code. It is noted in that context that at the time of the proceedings at issue, the applicant had already been in preventive detention for more than twelve years, following his term of imprisonment of fifteen years.

In view of the foregoing, the Court, having assessed in their entirety the relevant factors to determine whether the measure constitutes a penalty and making its own assessment, considers that preventive detention implemented in accordance with the new legislative framework as a rule still constitutes a ‘penalty’ for the purposes of Article 7 § 1. It finds that the more preventive nature and purpose of the revised form of preventive detention do not suffice to eclipse the fact that the measure, which entails a deprivation of liberty without a maximum duration, was imposed following conviction for a criminal offence and it is still determined by courts belonging to the criminal justice system.

However, in cases such as that of the applicant, where preventive detention is extended because of, and with a view to the need to treat his mental disorder, the Court accepts that both the nature and the purpose of his preventive detention substantially changed and that the punitive element, and its connection with his criminal conviction, is eclipsed to such an extent that the measure is no longer to be classified as a penalty within the meaning of Article 7 § 1.

There has accordingly been no violation of Article 7 § 1 of the Convention.