EHRM, 21-10-2010, nr. 24478/03

The applicant argued that he was deprived of his liberty in breach of Article 5 § 1 since he had been placed in preventive detention. Such detention was not covered by any of the sub-paragraphs (a) to (f) of Article 5 § 1. Preventive detention did not occur ‘after conviction’ within the meaning of sub-paragraph (a) of Article 5 § 1 because it was not a sanction for an offence committed by a perpetrator — that sanction was the term of imprisonment imposed alone — , but a purely preventive measure aimed at averting future offences and at protecting the public from dangerous offenders. However, as the Court had found in its judgment of 6 November 1980 in the case of Guzzardi v. Italy, a person's deprivation of liberty for purely preventive purposes was incompatible with Article 5 § 1 (a). Moreover, the applicant submitted that his detention was not lawful because the sentencing courts were not authorised to order a deprivation of liberty twice for the same offence, namely both a term of imprisonment and preventive detention.

In the applicant's view, his preventive detention was also not covered by sub-paragraph (c) of Article 5 § 1 as being detention ‘reasonably considered necessary to prevent his committing an offence’. That provision only covered detention pending trial effected for the purpose of bringing a person before a court and not preventive detention. Likewise, his preventive detention did not serve any of the preventive purposes listed in sub-paragraph (e) of Article 5 § 1.

The applicant further submitted that in view of the lack of adequate offers for therapy in Aachen Prison, it was impossible for him to prove that he was no longer dangerous to the public. Moreover, despite its objective to rehabilitate dangerous offenders, the execution of preventive detention in practice hardly differed from that of a prison sentence. In particular, persons in preventive detention did not have any significant privileges compared to persons serving a term of imprisonment.

The Government took the view that the applicant's preventive detention complied with Article 5 § 1. The applicant's detention was covered by sub-paragraph (a) of Article 5 § 1 as being detention ‘after conviction’ as it had been ordered by the judgment of the Cologne Regional Court of 17 May 1995 together with his conviction of attempted burglary.

The Government argued that there was a sufficient causal connection between the applicant's criminal conviction and his preventive detention. In their decisions taken in 2002 and 2006, the Aachen Regional Court and the Cologne Court of Appeal, having regard to the report drawn up by a psychiatric expert, convincingly found that, if released, the applicant was likely again to commit offences against the property of others similar to the offences he had previously been convicted of. The courts reached the conclusion that the applicant's preventive detention was still necessary in view of the objective of such detention having regard to the applicant's personality, his previous convictions, the weight of the legal interests at stake in case of recidivism, the applicant's conduct in prison and, in particular, his failure to reappraise his criminal past, as well as his perspectives upon release.

The Government further considered that it had been justified and proportionate for the domestic courts to order the applicant's preventive detention under the very restrictive conditions laid down in Article 66 of the Criminal Code in order to protect the public from further serious thefts he was liable to commit if released. They stressed that the execution of preventive detention orders differed significantly from the enforcement of prison sentences as, compared to ordinary prisoners, persons in preventive detention had a number of privileges.

Moreover, in the Government's submission, the applicant's preventive detention was also covered by the wording of sub-paragraph (c) of Article 5 § 1 as it could be considered as detention of a person which was ‘reasonably considered necessary to prevent his committing an offence’. In exceptional cases, preventive detention might further be justified in order to prevent the spreading of infectious diseases within the meaning of sub-paragraph (e) of Article 5 § 1.

The Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Guzzardi v. Italy, 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000-III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008-…). However, the applicability of one ground does not necessarily preclude that of another; a deprivation of liberty may, depending on the circumstances, be justified under one or more sub-paragraphs (see, among other authorities, Eriksen v. Norway, 27 May 1997, § 76, Reports of Judgments and Decisions 1997-III; Erkalo v. the Netherlands, 2 September 1998, § 50, Reports 1998-VI; and Witold Litwa, cited above, § 49).

For the purposes of sub-paragraph (a) of Article 5 § 1, the word ‘conviction’, having regard to the French text (‘condamnation’), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi, cited above, § 100), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50).

Furthermore, the word ‘after’ in sub-paragraph (a) does not simply mean that the ‘detention’ must follow the ‘conviction’ in point of time: in addition, the ‘detention’ must result from, follow and depend upon or occur by virtue of the ‘conviction’ (see Van Droogenbroeck, cited above, § 35). In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002-IV; Waite v. the United Kingdom, no. 53236/99, § 65, 10 December 2002; Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008-…; and M. v. Germany, no. 19359/04, § 88, 17 December 2009). However, with the passage of time, the link between the initial conviction and a further deprivation of liberty gradually becomes less strong (compare Van Droogenbroeck, cited above, § 40, and Eriksen, cited above, § 78). The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (compare Van Droogenbroeck, cited above, § 40; Eriksen, cited above, § 78; Weeks, cited above, § 49; and M. v. Germany, cited above, § 88).

The Court is called upon to determine first, in the light of the above principles, whether the applicant, during his preventive detention at issue in the proceedings he brought before the domestic courts, was deprived of his liberty in accordance with one of the grounds listed in sub-paragraphs (a) to (f) of Article 5 § 1.

In that connection, the Court refers to its findings in its recent judgment of 17 December 2009 in the case of M. v. Germany (cited above). In that judgment, it found that Mr M.'s preventive detention, which, as in the present case, was ordered by the sentencing court under Article 66 § 1 of the Criminal Code, was covered by sub-paragraph (a) of Article 5 § 1 in so far as it had not been prolonged beyond the statutory maximum period applicable at the time of that applicant's offence and conviction (see ibid., §§ 96 and 97–105). The Court was satisfied that Mr M.'s initial preventive detention within that maximum period occurred ‘after conviction’ by the sentencing court for the purposes of Article 5 § 1 (a). The Court took note of the fact that preventive detention was fixed with regard to the danger the person concerned presented to the public — and thus served (also) a preventive purpose. It considered, however, that an order of preventive detention under Article 66 § 1 of the Criminal Code was nevertheless always dependent on and ordered together with a sentencing court's finding that the person concerned was guilty of an offence and thus resulted from a ‘conviction’ (ibid., § 96).

Having regard to these findings in its judgment in the application of M. v. Germany, from which it sees no reason to depart, the Court considers that the preventive detention under Article 66 of the Criminal Code of the applicant in the present case was based on his ‘conviction’, for the purposes of Article 5 § 1 (a), by the Cologne Regional Court in May 1995. It would clarify in that context that, other than the applicant in the M. v. Germany case, the applicant in the present case was not detained for a period beyond the statutory maximum period applicable at the time of his offence and conviction.

It remains to be determined whether the applicant's preventive detention throughout the period here at issue occurred ‘after’ conviction, that is, whether there remained a sufficient causal connection between his conviction and the deprivation of liberty at issue. The Court reiterates in this context that the causal link required might be broken if the courts' decisions not to release the person concerned were based on grounds that were inconsistent with the objectives of the decision by the sentencing court when ordering preventive detention or based on an assessment that was unreasonable in terms of those objectives (see paragraph 44 above).

The Court notes that the sentencing Cologne Regional Court ordered the applicant's preventive detention in view of the applicant's conviction on several counts of attempted burglary and of his numerous previous convictions of burglary. By ordering the applicant's preventive detention, that court intended to prevent the applicant from committing further similar offences causing serious economic damage to their potential victims (see paragraph 7 above). In the 2002 and 2006 review proceedings here at issue, the courts dealing with the execution of sentences, having regard to the applicant's previous convictions, his conduct in prison and his attitude towards work, found that the applicant was liable to reoffend and to commit further burglaries or other property offences in order to make his living. The domestic courts further considered that there was no positive development as the applicant refused to undergo therapy and to reappraise his criminal past (see paragraphs 9 et seq. above).

Having regard to these grounds given for the order and execution of the applicant's preventive detention, the Court considers that the decisions of the courts responsible for the execution of sentences not to release the applicant were consistent with the objectives of the judgment of the sentencing court. These decisions were based on the same grounds as the judgment of the Cologne Regional Court ordering the applicant's preventive detention, namely to prevent the applicant from committing further serious property offences such as burglaries.

Furthermore, having regard to the assessment made by the domestic courts that the applicant was liable to reoffend in that manner, the Court reiterates the concerns it expressed in its judgment in the case of M. v. Germany regarding the realities of the situation of persons in preventive detention. There appear to be no special measures, instruments or institutions in place, other than those available to ordinary long-term prisoners, directed at persons subject to preventive detention and aimed at reducing the danger they present and thus at limiting the duration of their detention to what is strictly necessary in order to prevent them from committing further offences (cited above, § 128).

Nevertheless, the domestic courts' decisions in the present case that it was necessary to prolong the applicant's preventive detention cannot be considered as unreasonable in terms of the objectives of the preventive detention order. The applicant had not only refused to undergo any therapy. There were also no other signs that he reappraised his criminal past nor any indication that other measures were at hand to effectively prevent him from committing further serious property offences.

Therefore, there was a sufficient causal connection between the applicant's conviction and his preventive detention throughout the period here at issue. As the applicant's detention was also lawful in that it was based on a foreseeable application of Articles 66, 67d and 67e of the Criminal Code, it complied with the requirements of Article 5 § 1 (a) of the Convention.

Consequently, there has been no violation of Article 5 § 1 of the Convention.