Strasbourg Observers

Preventive detention as a “penalty” in the case of Ilnseher v. Germany

November 10, 2017

By Emilie Rebsomen, Méryl Recotillet and Caroline Teuma (Aix-Marseille University) 

The internment of mentally ill offenders has a long history. The first safety measures were envisaged in the writings of the criminologists of the 18th and 19th century. Since then, various and varied security and safety measures have been introduced, security internment being one of them.

Faced with criminal policies increasingly oriented towards control, prevention or even precaution, security internment for an indefinite period as in the case of Ilnseher v. Germany threatens to spread even further. This is explained by an increasing social demand for justice and psychiatry. In the case Ilnseher v. Germany, a Chamber of the European Court of Human Rights (reaffirmed its position, developed in the Bergmann case, concerning the retrospective preventive detention of convicted murderer placed in a centre for psychiatric treatment. On 29 May 2017, the Grand Chamber Panel accepted Mr Ilsneher’s request that the case be referred to the Grand Chamber. The hearing will take place on 29 November 2017. In this framework, the European Prison Litigation Network was invited by the President of the Grand Chamber to intervene as a third party in this case. Thanks to our partnership with the European Prison Litigation Network, our law clinic Aix Global Justice, had the opportunity to participate in this intervention.[1]

 Preventive detention

Since 2009, the European Court had to examine in several cases the compatibility of German legislation on detention of serious criminal offenders for preventive purposes. In its judgment of M. v. Germany, the Strasbourg Court characterized it as a “penalty”, applying to it the guarantees of Articles 5 and 7 of the European Convention. The preventive detention must be regarded as a “penalty”, on the one hand because its aim is not only preventive but also punitive and, on the other, because of the gravity of the measure provided by the German Criminal Code. Following this judgment, and called by the Federal Constitutional Court to completely recast the system (see BVerfG, 4 May 2011, 2 BvR 2365/09, BVerfGE 128, 326), a new law has been adopted on 5 December 2012 (Gesetz zur bundesrechtlichen Umsetzung des Abstandsgebotes im Recht der Sicherungsverwahrung). It is in this context that in 2016, the Court rendered the Bergmann judgment, which constitutes a turning point in its position. This was the first case in which the Court examined the compatibility of the Convention with the new German legal framework on preventive detention. The Court stated that, since the measure is ordered for therapeutic purposes in respect of an applicant suffering from a mental illness, the nature and purpose of the measure change substantially, to the point of no longer as amounting to a “penalty” (para. 182). Preventive detention is therefore exempt from the guarantees of Articles 5 (1) and 7 of the Convention.


The case of Ilnseher v. Germany concerned the lawfulness of a convicted murderer’s preventive detention. Mr Ilnseher, the applicant, has been in preventive detention since 2008, when he finished serving a ten-year sentence for having murdered, as a young adult, a woman in 1997. Because he was a young adult when he committed the crime, he was subjected to the Juvenile Courts Act which excluded the preventive detention for juveniles and young offenders. Thereafter, the 8 July 2008, this Act was amended in order to allow, in particular circumstances, for retrospective preventive detention for juveniles or young adults. In this context, the applicant’s preventive detention was retrospectively extended by subsequent 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 (paras. 27-28). Relying on Article 5 (1) and Article 7 (1), 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.

In its judgment, the ECtHR emphasised that when retrospectively ordering Mr Ilnseher’s detention from 20 June 2013 onwards, the German authorities had been justified in finding that his mental disorder was such as to warrant his compulsory confinement. The Court also noted that the Straubing Prison preventive detention centre at which the applicant had been detained since 20 June 2013 provided a suitable therapeutic environment for him. Therefore, his detention had been justified under Article 5 (1) (e) as the lawful detention of a person of “unsound mind.” Moreover, regarding his preventive detention from 20 June 2013, the Court found that, because his preventive detention had been ordered because of and with a view to addressing his mental condition, the retrospective preventive detention orders in question could not be considered as a “penalty”.

Goals of the third intervention

Broadly speaking, this case is related to the legal regime of a system which, in a democratic society, appears to be one of the most detrimental ones to fundamental rights, providing for the detention of an individual  for an indefinite and unlimited period,  on account of a crime which he is likely to commit. With regard to the implications for the Convention, the purpose of our amicus was to highlight the need for the Court to firmly defend the requirements of the rule of law and to uphold fundamental safeguards without giving in to appearances, in spite of the particular type medical preventive detention. To this end, our intervention navigated between two fundamental articles (5 and 7) in order to demonstrate, on the one hand, how safety internment under German law remains a punishment within the meaning of Article 7 (1) the Convention. On the other hand, the idea was developed that security detention does not fall within the scope of Article 5 (1) (e) of the Convention.

Firstly, we aimed at demonstrating that the preventive detention provided for by German law remains a penalty within the meaning of Article 7 (1) of the Convention. The Chamber judgment in the Ilnseher case held that, since the applicant’s preventive detention had been ordered because of his mental disorder and took place in a therapeutic environment considered as appropriate, it could not be described as a “penalty”. This approach appears to fundamentally contradict well-established jurisprudence (M. v. Germany), according to which the concept of “penalty” contained in Article 7 has an autonomous scope, meaning that the Court is not bound by the internal classification. When examining whether a measure should be considered as a penalty, it must be assessed in the light of criteria developed for this purpose by the Court (Welch v. the United Kingdom, para. 28; Del Río Prada v. Spain [GC], para. 82). While the case law was clearly established and favorable to the rights of the person with mental disorder, the Bergmann and Ilnseher cases loosen the protection offered by the conventional criteria. Preventive detention under German law is solely applicable to persons who have been convicted. Indeed, it is pronounced by a criminal court; its purpose is to prolong the detention following the execution of the prison sentence; it takes place in centers within prisons; the supervisory and health personnel responsible for them are the same as those responsible for punitive detention. According to the European Court, the extension of preventive detention by the sentence enforcement courts, based on legislation which had come into force after the applicant had committed the offence, amounted to an “additional penalty” with an unlimited duration (M. v. Germany, §135). Consequently, preventive detention should be considered as still having a criminal qualification.

Furthermore, it must be held that the criterion used in Bergmann and Ilsneher, to not consider preventive detention as a “penalty” in Convention terms on account of the improvement of therapeutic care as a result of the convicted offenders’ change to preventive detention, undermines the coherence in the interpretation of the provisions of the Convention. This reasoning amounts to accepting that the execution of previous sentences was carried out without the care required by the applicant’s state of health legally required under Article 3 of the Convention (Sławomir Musiał v. Poland, paras. 87-88). The fact that domestic law has been amended does not change the nature of the sentence. Therefore, it is important to underline that the guarantees of Article 7 (1) necessarily have to be applicable for preventive detention.

With respect to the merits, it is argued that the retroactive application of the detention order violates Article 7 of the Convention. First of all, it was not foreseeable, neither at the time of the commission of the offense nor at the time of the applicant’s conviction, that he would be submitted to this measure as consequence of the same conviction. Secondly, the litigious order has been applied in bad faith. Indeed, the principle of legality requires the offences and corresponding penalties to be clearly defined by law at the time of the commission of the offense. The concept of “law” within the meaning of Article 7, as under other Convention articles, comprises qualitative requirements, in particular those of accessibility and foreseeability (See: Kafkaris v. Cyprus [GC], para. 140; Del Río Prada v. Spain [GC], para. 91; Perinçek v. Switzerland, para. 134). As we know, insufficient “quality of law” concerning the definition of the offence and the applicable penalty constitutes a breach of Article 7 of the Convention (ECtHR, Kafkaris v. Cyprus [GC], paras. 150 and 152).

Moreover, our second argument emphasised the idea that security detention falls outside the scope of Article 5 (1) (e) of the Convention, the detention of a person “of unsound mind”. Among the various existing scientific sources, it is possible to extract a definition of mental illness based on a famous formula according to which “it is not an absolute loss of reason but an internal contradiction, there always remains a part of reason preserved, which causes the insane person to feel foreign to himself.”[2] It is on this part of retained reason that some will be able to provide for certain treatments for persons suffering from a mental disorder (Such as the moral treatment, for example, developed by PINEL).

In some situations, the notion of alienation is used as an instrument to criminalize some acts committed by people who need to be cured, rather than imprisoned. That is exactly what happened in this case. German authorities and the European court used the notion of alienation to pronounce imprisonment and safety measure against the defendant.

This orientation is all the more dangerous because it puts psychiatry in an instrumental position, serving the goal of neutralization, sacrificing in passing the great collective function of benevolence exercised by medicine in contemporary society. Our intervention’s goal was to underline that the notion of alienation had to be taken into account in order to cure the defendant, instead of pronouncing such a severe sentence.

Our third party intervention sought to demonstrate respectfully that the approach taken by the Chamber judgments in Bergmann and Ilnseher with regard to the concept of alienation violated the general guidelines of interpretation laid down by the Court (See: Magyar Helsinki Bizottság v. Hungary, para 155). Firstly, we showed that it ignores the meaning and scope of the clear language used in the Convention. Secondly, it loses sight of the aim of protection against arbitrariness, which must necessarily underlie the interpretation of this stipulation.

PhD student in international public law, Aix-Marseille University
Member of the international human rights Clinic of Aix-Marseille University
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PhD student in criminal law, Aix-Marseille University
Member of the international human rights Clinic of Aix-Marseille University

Caroline TEUMA
PhD student in criminal law, Aix-Marseille University
Member of the international human rights Clinic of Aix-Marseille University
Email :


[1] Together with Louise Descamps and Damien Scalia (Université Libre de Bruxelles), Jenny Frinchaboy (Université Paris 1 Panthéon-Sorbonne) and Cyrille Canetti (psychiatrist).

[2] See: GARRABE J., Sémiotique de l’aliénation mentale, Journal français de psychiatrie, 2007/3 (n° 30), p. 7-10.

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