06 Dec Preventive detention of convicted murder did not violate the Convention

In the case of Ilnseher v. Germany, the European Court of Human Rights held that there was no violation of the Convention. The case concerned the lawfulness of a convicted murderer’s subsequent preventive detention.

The applicant, Daniel Ilnseher, is a German national and is currently detained in a centre for persons in preventive detention on the premises of Straubing Prison (Germany). Mr Ilnseher has been in preventive detention since 2008, when he finished a ten-year juvenile sentence for having murdered, a woman in 1997. The crime was sexually motivated. His detention was subsequently extended by court orders, based upon psychiatric assessments which revealed a high risk that he could commit similar serious crimes of a sexual and violent nature if released.

Relying on Article 5 § 1 (right to liberty and security) and Article 7 § 1 (no punishment without law), Mr Ilnseher complained that his “retrospective” preventive detention had 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 complained 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 subsequent preventive detention.

Therefore, The Court found:

• no violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights on account of the applicant’s preventive detention as a result of the impugned order for his subsequent preventive detention. The Court found it was necessary to assess whether the person concerned was of unsound mind, on the basis of objective medical expertise, at the date of adoption of the measure depriving that person of his liberty

• no violation of Article 7 § 1 (no punishment without law) on account of the applicant’s preventive detention. The Court found that the preventive detention had been ordered because of and with a view to the need to treat his mental disorder.

• no violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention on account of the duration of the proceedings for review of the applicant’s provisional preventive detention, The Court found that in view of the complexity of the case, both from a legal and a factual point of view, the length before the domestic courts complied with the speediness requirement under Article 5 § 4

• and, by a majority, no violation of Article 6 § 1 (right to a fair trial) of the Convention on account of the alleged lack of impartiality of Judge P. in the main proceedings concerning the order for the applicant’s subsequent preventive detention. The Court neither showed that Judge P. was personally biased against Mr Ilnseher nor that there were objectively justified doubts as to his impartiality in the proceedings at issue.

References from the official website of the European Court of Human Rights