Case Bergmann v. Germany

Importance Nature Application Number Case language State Date (dd/mm/yyyy)
1 Judgement 23279/14 English Germany 07/01/2016

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The applicant was sentenced to fifteen years of imprisonment in 1986. Moreover the competent Regional Court decided to order a ten-year preventive detention on the basis of a medical advice stating that the applicant presented a “danger to the general public” (§10) and that his “personality disorder could no longer be treated because his sexually deviant aggressive behavior had lasted for decades and because he would be unable to pursue psychotherapy in view of his limited intellectual capacity” (§11). By 2011 he had served ten years in preventive detention. The courts responsible for the execution of sentences ordered the extension of the applicant’s preventive detention under a law enacted after the applicant had committed his offences.

The applicant complained that the court order extending his preventive detention beyond the maximum period of ten years had breached his right to liberty (Article 5§1) and violated the prohibition on retrospective punishment (Article 7§1).

Complaint under Article 5§1

The Court first-of-all recalled that “in deciding whether an individual should be detained as a person ‘of unsound mind’, the national authorities are to be recognised as having a certain discretion” (§98). Then it considered “that the mental disorder the domestic courts found [on the basis of a recent objective psychiatric report] the applicant to suffer from was sufficiently serious” (§114) as to warrant compulsory confinement, in accordance with Article 5§1(e) (§116, see also on the criteria to fulfill Winterwerp v. Netherlands). The Court was also satisfied that the applicant was detained in an institution suitable for mental health patients (§§118 et s.). The Court therefore concluded that there had been no violation of Article 5§1.

Complaint under Article 7§1

The Court observed that the applicant’s deprivation of liberty had no maximum duration and had been imposed following conviction for a criminal offence and determined by courts belonging to the criminal justice system. However, the Court went on to note that the fact that the measure was ordered because of and with a view to the need to treat his mental disorder changed its very nature. The applicant’s preventive detention “was not effected in an ordinary prison” but in a specific preventive detention center, located in a separate building, governed by distinct legal rules and “where he was offered treatment” (§164). The Court therefore considered the measure should no longer be classified as a penalty. Accordingly, the Court concluded there had been no violation of Article 7§1 (see contra M. v. Germany).