Saturday, November 30, 2013

GERMANY - Court backs sex offender in human rights challenge to Germany’s preventive detention

Human rights for all!
Original Article


Human rights judges say German courts should have considered alternatives to preventive detention for a sex offender who had served his full prison sentence.

In today’s Chamber judgment in the case of Glien v. Germany (application no. 7345/12), which is not final, the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights,


a violation of Article 7 § 1 (no punishment without law).

The complaint was brought by Glien, a German national who was born in 1947 and is currently detained in Diez Prison (Germany). In 1997 he was convicted of several counts of sexual abuse of children and sentenced to four years’ imprisonment. At the same time, the sentencing court ordered his preventive detention.

It found that Mr Glien, who had been diagnosed by a psychiatric expert with a sexual deviation which was not so severe as to be pathological, had acted with full criminal responsibility.

The case concerned Glien’s preventive detention which was retrospectively extended beyond the maximum period of ten years permissible at the time of his offences and conviction.

The court considered the German Government’s argument that Glien had been detained as a person “of unsound mind” for the purpose of Article 5 § 1 (e). However, the court noted that the conditions of his detention in prison had not significantly differed from normal imprisonment. It was therefore not convinced that he had been provided with an environment appropriate to a person detained as a mental health patient.

The court stressed that the German courts could have ordered his transfer to a psychiatric hospital or to a suitable institution under the Therapy Detention Act and that his immediate release would therefore not have been the only alternative to his continued preventive detention.

Moreover, the court found that Glien’s preventive detention as executed at the relevant time was to be classified as a “penalty” for the purpose of Article 7. Its retrospective extension had therefore been in breach of his right not to have a heavier penalty imposed on him than the one applicable at the time of his offence.

Just satisfaction (Article 41)

The court held that Germany was to pay Glien 3,000 euros (EUR) in respect of non-pecuniary damage.

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