The right of appeal for the review of the detention and the equality of arms
JUDGMENT
Stollenwerk v. Germany 07/09/2017 (no. 8844/12)
SUMMARY
Review of the lawfulness of the applicant’s detention. Principle of equality of arms. The national court ruled without giving him the opportunity to refute and answer the written observations of the prosecuting authorities. The ECtHR held that there had been a violation of the Convention
PROVISION
Article 5 § 4
PRINCIPAL FACTS
The applicant, D.J., is a German national who was born in 1952. At the time of lodging his application, he was detained in Berlin Tegel Prison. He now lives in Berlin. The case concerned an order for the continued execution of his preventive detention, which, he maintained, had been based on an old and insufficient psychiatric opinion.
D.J. was convicted of dangerous assault and sentenced to six years and six months’ imprisonment in October 1998 by the Berlin Regional Court, which found that he had stalked his former girlfriend and had eventually stabbed her with scissors with the intention of killing her. At the same time the court ordered his preventive detention. It considered that D.J., who had previously been convicted of similar offences, had a propensity to commit serious violent offences and was dangerous to the public. After having served his full term of imprisonment in February 2005, D.J. remained in detention without a formal decision of the courts because the proceedings were delayed. In June 2007 he was released after the Berlin Court of Appeal had decided that his continued preventive detention without a decision by the competent court was unlawful.
In July 2007 the Berlin Regional Court ordered the execution of his preventive detention, in accordance with the relevant provisions of the German Criminal Code, referring to the view of a psychotherapist and concluding that D.J. was still dangerous to the public. He remained at liberty while his appeal against the decision was pending. During that time, he found a flat and a job, and voluntarily started psychotherapy. In May 2008, the Berlin Court of Appeal upheld the Regional Court’s decision, concluding that there was still a very high risk that D.J. would reoffend and commit serious offences. Following that decision, he voluntarily returned to prison. His constitutional complaint against the courts’ decision for his continued preventive detention was unsuccessful, and an application before the European Court of Human Rights in this context was declared inadmissible.
In its first periodic review proceedings, the Berlin Regional Court decided, in October 2009, that D.J. was to remain in preventive detention, finding that it could be reasonably expected that he would commit further offences if released. The court took into consideration a written statement of the prison authorities of March 2009 to the effect that he was not willing to work on his problems and refused any treatment in the detention centre. It also heard D.J. in September 2009, and it relied on two expert opinions dating from 2005 and 2006 respectively, while dismissing D.J.’s request for a new psychiatric expert opinion. At the same time, the court found that D.J. was to be allowed to continue his therapy with the external psychologist, who had treated him while at liberty, which he had not been authorised to pursue since his renewed preventive detention. The decision for his continued preventive detention was upheld by the Berlin Court of Appeal in March 2010. In June 2010 the Federal Constitutional Court declined to consider D.J.’s constitutional complaint against the decisions of the Regional Court and the Court of Appeal.
D.J. was eventually released on parole in November 2013. D.J. alleged in particular that the October 2009 order for the continued execution of his preventive detention, subsequently upheld by the German courts, had been in breach of Article 5 § 1 (a) (right to liberty and security), complaining that his detention had been based on an old and insufficient psychiatric expert opinion and that, previous to that order, he had not been authorised to continue therapy with the external therapist.
THE DECISION OF THE COURT
No violation of Article 5 § 1(echrcaselaw.com editing).
