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issued by the Registrar of the Court   ECHR 241 (2012)   07.06.2012   Two prisoners should not have been placed in preventive   detention retrospectively   In today’s Chamber judgments in the cases K v. Germany (application no. 61827/09)   and G v. Germany (no. 65210/09), which are not final1, the European Court of Human   Rights held, unanimously, that there had been:   A violation of Article 7 § 1 (no punishment without law) of the European   Convention on Human Rights in both cases.   The cases concerned the applicants’ placement in preventive detention, which had been   ordered retrospectively, based on a legal provision introduced years after their   conviction.   The Court confirmed its findings in previous cases that preventive detention was to be   qualified as a “penalty” for the purposes of the Convention. It held in particular that by   ordering the applicants’ preventive detention retrospectively the German courts had   imposed a heavier penalty on them than that applicable at the time of their respective   offences.   Principal facts   The applicants in both cases are German nationals who were born in 1957 and 1968   respectively. Mr K is currently detained in Schwalmstadt Prison and Mr G is detained in   Straubing Prison. Mr K was convicted of several counts of rape and sentenced to eight   and a half years’ imprisonment in 1987. Mr G was convicted of three counts of murder   and sentenced to 15 years’ imprisonment in 1992.   In both cases, in addition to their respective prison sentence, the sentencing courts   ordered the applicants’ placement in a psychiatric hospital, where they were detained   subsequent to serving their full prison sentence. Their stay there was terminated by the   regional courts dealing with the execution of sentences in 2007, holding that the   applicants did not suffer from   a condition diminishing their respective criminal   responsibility. Both applicants were subsequently placed in preventive detention, ordered   by the Frankfurt regional court in March (Mr G) and April (Mr K) 2008 on the basis of   Article 66b § 3 of the Criminal Code. That provision had been inserted into the Criminal   Code in 2004 and allowed for the possibility to impose preventive detention   retrospectively. In both cases, the regional court found that   a comprehensive   assessment of the applicants, their offences and their development during the placement   in the psychiatric hospital revealed that it was very likely that, if released, they would   commit serious offences again resulting in considerable psychological or physical harm to   the victims.   Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month   period following its delivery, any party may request that the case be referred to the Grand Chamber of the   Court. If such a request is made, a panel of five judges considers whether the case deserves further   examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral   request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for   supervision of its execution. Further information about the execution process can be found here:   www.coe.int/t/dghl/monitoring/execution   The Federal Court of Justice dismissed both applicants’ appeals. On 5 August 2009, the   Federal Constitutional Court declined to consider the applicants’ constitutional complaints   against the retrospective orders for their preventive detention (file nos. 2 BvR 2633/08   and 2 BvR 2098/08). It found in particular that Article 66b § 3 of the Criminal Code and   the lower courts’ decision to order the applicants’ placement in preventive detention   were compatible with the Basic Law.   The applicants subsequently brought proceedings to review their preventive detention;   both applicants are currently still in preventive detention.   Complaints, procedure and composition of the Court   Relying in particular on Article 7 § 1, the applicants complained of the retrospective   order for and execution of their preventive detention.   Mr K’s application was lodged with the European Court of Human Rights on 16 November   and Mr G’s application was lodged on 9 December 2009.   Judgment was given by a Chamber of seven, composed as follows:   Dean Spielmann (Luxembourg), President,   Karel Jungwiert (the Czech Republic),   Boštjan M. Zupančič (Slovenia),   Mark Villiger (Liechtenstein),   Ann Power-Forde (Ireland),   Angelika Nußberger (Germany),   André Potocki (France), Judges,   and also Stephen Phillips, Deputy Section Registrar.   Decision of the Court   Article 7 § 1   The Court referred to its conclusions in a previous case, M. v. Germany2, in which it had   found that preventive detention under German criminal law was to be qualified as a   penalty for the purpose of Article 7 § 1, having regard to the fact that it was ordered by   the criminal courts following a conviction for a criminal offence and that it entailed a   deprivation of liberty of indefinite duration. It saw no reason to depart from that finding.   The Court was not convinced that the conditions of the applicants’ preventive detention   in Schwalmstadt Prison, where Mr K remained detained and where Mr G had been   detained prior to his transfer to another prison, had differed substantially from the   situation of the applicant in the case of M. v. Germany, whose preventive detention had,   moreover, been executed in that same prison. Minor alterations in the detention regime   could not mask the fact that that there had been no substantial difference between the   execution of the prison sentence and that of the preventive detention order. In a leading   judgment of 4 May 2011, the German Federal Constitutional Court had moreover found   it unconstitutional that there was not a sufficient difference between preventive   detention and detention for serving a term of imprisonment under German criminal law.   The Court agreed with the applicants’ argument that the retrospective order for their   preventive detention constituted a new, additional penalty, and thus a heavier penalty   M. v. Germany (19359/04) of 17 December 2009   within the meaning of Article 7 § 1. At the time of their offences, committed in 1985 and   in the case of Mr K and between 1988 and 1990 in the case of Mr G, it had not   been possible to place the applicants in preventive detention by retrospective order. The   provision on which their preventive detention was based had only been inserted into the   German Criminal Code in 2004, thus many years after their offences.   In both cases, the sentencing court had expressly declined to order the applicants’   preventive detention in addition to their placement in a psychiatric hospital. Those   judgments could therefore not be said to have covered their subsequent placement in   preventive detention. Moreover, under the established case-law of the German courts   prior to the change in criminal law in 2004, a person could no longer be detained in a   psychiatric hospital and had to be released if he no longer suffered from a condition   excluding or diminishing his criminal responsibility.   Finally, the Court did not agree with the German Government’s argument that by   ordering the applicants’ release they would have breached their obligations under Article   (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the   Convention to protect potential victims from murder or violent sexual offences likely to   be committed by the applicants. The Court underlined that the Convention neither   obliged nor authorised State authorities to protect individuals from criminal acts of a   person by measures which were in breach of that person’s right under Article 7 § 1.   There had accordingly been a violation of Article 7 § 1 in both cases.   Article 41   Under Article 41 (just satisfaction) of the Convention, the Court held that Germany was   to pay Mr K 7,000 euros (EUR) in respect of non-pecuniary damage. It was to pay Mr G   EUR 5,000 in respect of non-pecuniary damage and EUR 7,140 in respect of costs and   expenses.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court.   Decisions, judgments and further information about the Court can be found on   www.echr.coe.int. 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