At its last meeting (Monday 29 May 2017), the Grand Chamber panel of five judges decided to refer two cases, to adjourn two referral requests and to reject requests to refer 16 other cases. The following cases have been referred to the Grand Chamber of the European Court of Human Rights: Ilnseher v. Germany (applications nos. 10211/12 and 27505/14) – concerning the lawfulness of a convicted murderer’s preventive detention; Navalnyy v. Russia (no. 29580/12) – concerning the arrest of Aleksey Navalnyy on seven occasions at different public gatherings, and his subsequent prosecution for administrative offences.
Ilnseher v. Germany (applications nos. 10211/12 and 27505/14)
The applicant, D. Ilnseher, is a German national who was born in 1978 and is currently detained in a centre for persons in preventive detention on the premises of Straubing Prison (Germany).
In 1999, Mr Ilnseher was convicted of murder in the Regensburg Regional Court and sentenced to ten years’ imprisonment under the criminal law applicable to young offenders. The court found that in June 1997, Mr Ilnseher, then aged 19, had strangled a woman who had been jogging on a forest path.
From July 2008 onwards, after he had served his full prison sentence, Mr Ilnseher was remanded in provisional preventive detention. In June 2009, the Regensburg Regional Court ordered his retrospective preventive detention. The court, having regard to reports by a criminological expert and a psychiatric expert, found that Mr Ilnseher was still harbouring violent sexual fantasies and that there was a high risk that he would again commit serious violent and sexual offences if released, including murder for sexual gratification.
From March 2010 until December 2013, Mr Ilnseher engaged in proceedings before the German courts challenging the lawfulness of his preventive detention. In May 2011, he successfully appealed to the Federal Constitutional Court, which quashed the order for his preventive detention and remitted his case to the Regional Court. On 6 May 2011, the Regional Court, however, once again ordered Mr Ilnseher’s provisional preventive detention. After a series of appeals, the courts ultimately found that his preventive detention had been necessary, as a comprehensive assessment of Mr Ilnseher, his offence, and his development during the enforcement of his sentence revealed that there was a high risk that he could commit serious crimes of a violent and sexual nature, similar to the one he had been found guilty of, if released. It was further noted that he still suffered from a sexual preference disorder (sexual sadism) which had caused and been manifested in his offence and that the therapy he had undergone until 2007 had not been successful. Since 20 June 2013, Mr Ilnseher has been detained in a newly-built preventive detention centre at Straubing Prison. He has refused all offers of therapy at that centre.
In the new main proceedings on his retrospective preventive detention before the Regensburg Regional Court, Mr Ilnseher also lodged a motion for bias against one of the judges of that court, Judge P., who had ordered his retrospective preventive detention in June 2009 and a subsequent order in 2012. Judge P. had allegedly made a remark in a private meeting between Mr Ilnseher’s counsel and judges of the Regional Court in 2009, warning Mr Ilnseher’s lawyer to be careful after his release not to find him standing in front of her door waiting to “thank” her in person. The case was dismissed and was also dismissed on appeal to the Federal Court of Justice and the Federal Constitutional Court.
The proceedings for review of Mr Ilnseher’s provisional preventive detention lasted in total 11 months and one day over three levels of jurisdiction; and in particular eight months and 22 days before the Federal Constitutional Court.
Relying on Article 5 § 1 (right to liberty and security) and Article 7 § 1 (no punishment without law) of the European Convention on Human Rights, Mr Ilnseher complains that his retrospective preventive detention has violated his right to liberty, and his right not to have a heavier penalty imposed than the one applicable at the time of his offence. Lastly, he complains under Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) about the duration of the proceedings for review of his provisional preventive detention and under Article 6 § 1 (right to a fair trial) about the lack of impartiality of one of the judges who had ordered his retrospective preventive detention.
In its Chamber judgment of 2 February 2017, the European Court of Human Rights held, unanimously, that there had been no violation of Article 5 § 1 or Article 7 of the European Convention on account of Mr Ilnseher’s retrospective preventive detention from the moment when he was placed in a centre for psychiatric treatment, namely 20 June 2013 onwards; no violation of Article 5 § 4 on account of the duration of the proceedings for review of Mr Ilnseher’s provisional preventive detention; and no violation of Article 6 on account of the alleged lack of impartiality of one of the judges who had ordered his retrospective preventive detention. Furthermore, the Chamber decided, unanimously, to strike out of its list of cases the part of the application concerning Mr Ilnseher’s preventive detention from 6 May 2011 (namely, the date when the preventive detention order in question was issued) until 20 June 2013, in view of the Government’s declaration recognising that Mr Ilnseher had not been detained in a suitable institution for the detention of mental health patients during that period and awarding him compensation. On 29 May 2017 the Grand Chamber Panel accepted Mr Ilnseher’s request that the case be referred to the Grand Chamber.
EGMR, Pressemitteilung Nr. 168 v. 30.05.2017 (Ausschnitt)