BLUHDORN v. GERMANY - 62054/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 191 (18 February 2016)

In the case of Blühdorn v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Khanlar Hajiyev, President,
          Angelika Nußberger,
          Erik Møse,
          Faris Vehabović,
          Síofra O’Leary,
          Carlo Ranzoni,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 26 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 62054/12) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Karsten Blühdorn (“the applicant”), on 13 September 2012.

2. The applicant, who was granted legal aid, was represented by Mr M.J. Seipel, a lawyer practising in Frankfurt. The German Government (“the Government”) were represented by their Agent, Mr H.J. Behrens, of the Federal Ministry of Justice.

3. The applicant alleged, in particular, that his continued detention in a psychiatric hospital ‒ despite the fact that the doctors treating him did not diagnose any mental illness in their annual reports ‒ violated his right to liberty.

4. On 18 June 2013 the complaint concerning the continued detention of the applicant under Article 5 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1943 and is currently detained in Riedstadt Psychiatric Hospital.

A. Background to the case

1. The criminal proceedings and the applicant’s placement in a psychiatric hospital

6. The applicant has previous convictions for rape dating from 1968 and for indecent assault combined with causing bodily harm by dangerous means dating from 1990.

7. On 14 January 2002 the Darmstadt Regional Court convicted the applicant of rape combined with the infliction of bodily injury. The judge incorporated a prison term arising from a previous conviction and sentenced him to a total of four years and six months’ imprisonment. Simultaneously, the court ordered the applicant’s placement in a psychiatric hospital pursuant to Article 63 of the Criminal Code (see paragraph 31 below). It held that the applicant was suffering from a disturbance in his sexual preference taking the form of sadism and found that the commission of further crimes was to be expected. The verdict of the Regional Court was based mainly on the conclusions of a psychiatric expert opinion but also took into account the applicant’s previous conviction for indecent assault in 1990. It also observed that the applicant had tried to subjugate several prostitutes whom he had been seeing in recent years. The Regional Court found that this indicated an evolution in his behaviour. It noted that the applicant had refused psychiatric therapy so far and shared the expert’s opinion that the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive. The Regional Court concluded that similar crimes were to be expected and the applicant therefore represented a danger to the public.

8. The applicant was arrested on the same day and placed in the Haina Clinic for Forensic Psychiatry.

2. Forensic-psychiatric expert opinions delivered on the occasion of the annual review of the applicant’s placement in hospital

9. The applicant’s detention in psychiatric hospitals has been reviewed at regular intervals (compare Articles 67d and 67e of the Criminal Code, see paragraphs 32 and 33, below) and has been extended annually. In the course of the respective proceedings, the courts have requested annual forensic-psychiatric expert opinions on the necessity of his detention in hospital. All expert opinions concluded that the applicant was likely to re-offend.

10. On 2 April 2003 the Haina Clinic for Forensic Psychiatry delivered an initial expert opinion, affirming the diagnosis of antisocial behaviour as an adult and abuse of alcohol. However, the expert opinion did not diagnose sexual sadism. Referring to the Diagnostic and Statistical Manual of Mental Disorders ‒ which is published by the American Psychiatric Association and offers a common language and standard criteria for the classification of mental disorders ‒ it found that the necessary criteria were not met. It concluded that this diagnosis seemed rather unlikely but could not be absolutely excluded without an extensive and credible sexual anamnesis.

11. On 13 May 2004 the applicant was transferred to the Hanau Clinic for Forensic Psychiatry.

12. On 21 November 2005 the applicant was examined by an external psychological expert who criticised in detail the diagnosis of sexual sadism during the trial, in particular the lack of information about the applicant’s inner experiences during the onset of the disorder, its further development, and the failure to evaluate his previous offences. The expert concluded that it remained doubtful whether a diagnosis of sexual sadism could be made (“Es bleibt also weiterhin fraglich, inwieweit ein sexueller Sadismus wirklich vorliegt”).

13. On 11 December 2006 the Hanau Clinic for Forensic Psychiatry delivered a further expert opinion. Although it mentioned the presumptive diagnosis of sexual sadism, it found that this presumption was not tenable in view of the history and the personality structure of the applicant. Even assuming that the applicant might have a sadistic sexual disposition, he experienced this without suffering and had no desire to change. According to the verdict of the trial court, the applicant had probably fulfilled his sexual inclinations with prostitutes in order to avoid being charged with an offence. Neither the files nor his statements revealed the development of an addiction or of a pressing perverted imagination or of pathologic impulsiveness. There was no call for therapy as the applicant neither suffered from his behaviour nor desired to change it. The clinic therefore concluded that the applicant’s committal to hospital had been erroneous.

14. On 3 September 2007, on 20 August 2008 and on 18 August 2009 similar forensic psychiatric expert opinions were delivered by the Hanau Clinic for Forensic Psychiatry. Although all of them also mentioned the presumptive diagnosis of sexual sadism, they confirmed the previous findings. All the expert opinions concluded that there were no indications for the diagnosis of sexual sadism apart from the facts contained in the verdict of the trial court. In each expert opinion the applicant was described as a classic instance of an erroneous hospital treatment order.

15. On 29 December 2009 the applicant refused to be examined by an external psychiatric expert.

16. On 26 January 2010 the applicant was transferred to the Haina Forensic-Psychiatric Hospital.

3. The re-opening of the criminal proceedings

17. On 30 September 2008 the Frankfurt am Main Court of Appeal allowed the re-opening of the criminal proceedings which had been terminated by the judgment of the Darmstadt Regional Court dated 14 January 2002.

18. In 2010 the Kassel Regional Court appointed a new external psychiatric expert. The expert concluded that the applicant was suffering from sexual sadism, subject to the reservation that he had not examined the applicant in person but had based his evaluation on the medical files only. The Kassel Regional Court subsequently dismissed the request to reopen the criminal proceedings. The applicant’s appeal against this dismissal was dismissed.

19. On 17 September 2013 the Federal Constitutional Court declined to consider the applicant’s related constitutional complaint without providing reasons (file no. 2 BvR 1364/12).

B. The proceedings at issue

1. The current forensic psychiatric expert opinion

20. On 15 March 2011 the Haina Clinic for Forensic Psychiatry, where the applicant was detained, delivered an expert opinion on the necessity of the applicant’s further detention in hospital. It made the diagnosis of a dissocial personality disorder, alcohol abuse and a presumptive diagnosis of sexual sadism. Although it found a high risk that the applicant would re-offend, it confirmed the prior assessment that the applicant represented a classic instance of an erroneous hospital treatment order. This conclusion was drawn from the fact that the applicant’s behaviour during treatment never gave any grounds for diagnosing a mental disorder such as would have been expected from a person suffering from a psychiatric disorder.

2. The proceedings before the Darmstadt Regional Court

21. On 24 May 2011 the Darmstadt Regional Court asked the applicant to inform the court whether he agreed to being examined by the external expert Dr. Egg.

22. On 29 May 2011 the applicant wrote to the Regional Court and refused a medical examination.

23. On 26 July 2011 the Regional Court heard the applicant and his counsel in person as well as a psychological expert from the Haina Clinic for Forensic Psychiatry.

24. On 28 July 2011 the Regional Court declined to terminate the applicant’s placement in hospital and refused to release him on probation as the requirements of Article 67 d §§ 2 and 6 of the Criminal Code were not met (see paragraph 32, below). It explained that detention in a psychiatric hospital could be terminated on the grounds of an erroneous treatment order only if it was established with certainty that the applicant was not suffering from a mental illness warranting his detention under Article 63 of the Criminal Code owing to a diminished criminal responsibility from the very beginning. In this context the Regional Court observed that neither the statement by the psychological expert at the hearing nor the current and prior expert opinions had excluded the possibility that the applicant was suffering from sexual sadism, although this diagnosis had been found to be rather unlikely (see paragraphs 10 to 14, above). Furthermore, the court took into account that the applicant had refused to provide credible and full information about his sexual history and had thus rendered a certain diagnosis impossible. It therefore held that a committal to hospital by mistake had not been established beyond doubt. For this reason alone, therefore, the conditions for application of Article 67 d § 6 of the Criminal Code were not met. Lastly, the Regional Court noted, but explicitly without basing its decision on this fact, that the expert opinion which had been delivered in the course of the re-opening proceedings of the criminal trial had confirmed the diagnosis of sadism.

25. In conclusion, the Regional Court found that the applicant could not be released on probation as he had refused investigation of his problems relating to sexuality and violence. The evolution of the applicant’s detention and his lack of awareness regarding his crimes rendered it very probable that he would re-offend.

3. The proceedings before the Frankfurt am Main Court of Appeal

26. On 29 September 2011 the Frankfurt am Main Court of Appeal upheld the decision of the Regional Court. It observed that, for exceptional reasons, an examination of the applicant by an external psychiatric expert was not necessary. Such an expert report would have to be based on the files only, since the applicant had announced his refusal of any examination. Under these circumstances the Court of Appeal found that no new conclusions could be expected from such an external expert opinion. Moreover, it found that the applicant’s condition and dangerousness had not changed since his last examination as he had refused to undergo any therapy. The Court of Appeal further rejected the applicant’s allegation that the Regional Court had reproached him for failing to undergo therapy, while the hospital considered him to be an erroneous admission. It held that in any event the root cause of the applicant’s serious sexual crimes should be reappraised through therapy. In its view that would have been a requirement even if the applicant had been sentenced to imprisonment. The applicant himself had to bear the consequences of his refusal to participate in any therapy as the hospital offered therapy in order to reappraise the causes of crime even for patients who had been placed in hospital erroneously.

4. The proceedings before the Federal Constitutional Court

27. On 16 August 2012 the Federal Constitutional Court (file no. 2 BvR 2679/11) refused to admit the applicant’s constitutional complaint for its consideration without giving any further reasons.

C. Subsequent proceedings

28. On 23 April 2014 the Darmstadt Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining an external expert opinion dated 22 February 2014 and having heard the expert and the applicant’s counsel. The expert, who had not examined the applicant in person due to his refusal to permit such examination, found that the applicant was suffering from a disturbance of his sexual preference in the form of sadism and that the commission of further crimes was to be expected. The applicant’s appeal in this respect was dismissed by the Court of Appeal. The proceedings before the Federal Constitutional Court are still pending.

29. On 19 January 2015 the Darmstadt Regional Court again decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining a written opinion from the Haina Forensic-Psychiatric clinic in which the applicant has been detained and after hearing the applicant. The applicant’s appeal in this respect was dismissed by the Court of Appeal.

II. RELEVANT DOMESTIC LAW

30. The German Criminal Code provides for placement in a psychiatric hospital in cases where an offender has acted with diminished criminal responsibility. The purpose of this measure is to rehabilitate dangerous offenders and to protect the public from them. The measure must, however, be proportionate to the gravity of the offences committed by, or that may be expected from, the defendants concerned, and to their dangerousness (Articles 62, 63 of the Criminal Code).

31. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court orders his placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant and the act committed reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he therefore poses a danger to the general public.

32. Article 67d of the Criminal Code governs the duration of detention. In its version in force at the relevant time, it provided in §§ 2 and 6:

“(2) If there is no provision for a maximum duration ... the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the offender.

...

(6) If, after the enforcement of a mental hospital order has begun, the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate, the court shall declare it terminated. The release shall automatically lead to the person being subjected to supervision. The court shall waive supervision if it can be expected that the person will not commit any further offences without it.”

33. Article 67e of the Criminal Code provides for review of a person’s detention in a psychiatric hospital. The enforcement court (Vollstreckungsgericht) may review at any time whether the continued execution of the detention order should be suspended on probation. It is obliged to do so within a fixed period of one year in cases of detention in a psychiatric hospital (Article 67e). Article 463 § 4 of the Code of Criminal Procedure provides that the court must obtain the opinion of an expert at least every five years during the period of detention in a psychiatric hospital. The expert providing the opinion must not have been involved with the treatment of the person detained, nor may he be working in the psychiatric hospital in which the person is detained.

THE LAW

ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

34. The applicant complained that his continued confinement in a psychiatric hospital had violated his right to liberty. His detention had been prolonged despite the fact that it had not been established that he was suffering from the mental disorder which had been diagnosed when his initial confinement had been ordered. He could not, therefore, be detained as a person “of unsound mind”. He relied on Article 5 § 1 of the Convention, which, in so far as relevant, provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...”

35. The Government contested that argument.

A. Admissibility

36. The Government initially submitted that the present application was not admissible given that the Federal Constitutional Court had not issued a decision on the applicant’s constitutional complaint concerning the refusal to re-open the criminal proceedings. The Court considers that this submission is no longer relevant as the Federal Constitutional Court dismissed the applicant’s constitutional complaint in this respect on 17 September 2013 (see paragraph 19, above). The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

37. The applicant argued that his placement in a psychiatric hospital had violated Article 5 § 1 of the Convention. It had neither been justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1, nor had it been lawful.

38. In the applicant’s submission, there was no causal link between his conviction and his detention, as required by sub-paragraph (a) of Article 5 § 1, because the diagnosis of sexual sadism given at the time of his conviction had been replaced by a different diagnosis of dissocial personality disorder and alcohol abuse and a presumptive diagnosis of sexual sadism. The findings in the final judgment of 2002 therefore no longer provided a relevant basis for his prolonged detention. The present case needed to be distinguished from the case of Radu v. Germany (no. 20084/07, 16 May 2013). While in the latter the courts’ only disagreement concerned the correct classification in law of the unchanged diagnosis, in the present case the enforcement courts disagreed with the sentencing court as to the diagnosis and therefore the facts. Furthermore, the applicant considered that the domestic courts had relied on an outdated expert report.

39. The applicant reiterated that his continued confinement was not justified by the persistence of a pathological mental disorder, as required by Article 5 § 1 (e), because the experts were not in a position to confirm the initial diagnosis of sexual sadism, and instead were only unable to exclude it.

40. The applicant considered that his placement in a psychiatric hospital had been unlawful. The domestic courts had been obliged to terminate the detention as an erroneous treatment order had been made, given that the experts had stated that he was a “normal” rapist whose criminal liability was not diminished.

(b) The Government

41. The Government was of the opinion that the applicant’s placement in a psychiatric hospital had been compliant with Article 5 § 1 of the Convention.

42. The Government argued that there remained sufficient causal connection between the applicant’s conviction by the Darmstadt Regional Court in 2002 and his continued confinement in a psychiatric hospital, as required by Article 5 § 1 (a). As had been the case at the time when the applicant’s placement was ordered in 2002, he was still suffering from a mental disorder and would continue to pose a danger to the public until such time as the level of dangerousness had diminished on account of the disorder being treated successfully. None of the experts who dealt with the applicant’s case had diagnosed him as being a person of sound mind who was not suffering from a mental disorder requiring treatment. The difficulties arose only when it came to classifying the applicant’s psychiatric disease.

43. In the Government’s view, the applicant’s detention had been both lawful and in accordance with a procedure prescribed by law. The continuation of the applicant’s confinement had been based upon the Frankfurt am Main Regional Court’s decision of 28 July 2011 and had its statutory basis in Article 67 d of the Criminal Code (see paragraph 32, above). As regards the question of whether the applicant’s confinement should have been terminated on the grounds of an erroneous treatment order, the Government stressed that this was possible only when there was no doubt that the defect upon which the deprivation of liberty was based did not exist. In the present case the experts were only unable to exclude the possibility that the applicant was not suffering from a pathological mental disorder.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

44. As regards the grounds for deprivation of liberty, the Court recalls its principles as laid down, inter alia, in the case of Del Río Prada v. Spain ([GC], no. 42750/09, § 123, ECHR 2013, with further references).

45. In particular, under Article 5 § 1 (a), it is the detention of the person concerned, and not the person’s conviction, which has to be “lawful”. As the purpose of Article 5 is to protect the individual from arbitrariness, a flawed conviction renders detention unlawful (only) if it is the result of a flagrant denial of justice (compare Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004-VII).

46. Furthermore, the word “after” in sub-paragraph (a) does not simply mean that the “detention” must follow the “conviction” in point of time: in addition, the “detention” must result from, follow and depend upon or occur by virtue of the “conviction”. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008, with further references). However, with the passage of time, the link between the initial conviction and a further deprivation of liberty may gradually become less strong (compare Van Droogenbroeck v. Belgium, 24 June 1982, § 40, Series A no. 50). The causal link required by sub-paragraph (a) might be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the initial decision (by a sentencing court) or on an assessment that was unreasonable in terms of those objectives. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with Article 5 (compare Van Droogenbroeck, cited above, § 40).

47. Any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question as to whether or not “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform with the substantive and procedural rules thereof (see, among many other authorities, Radu, cited above, § 94).

48. Compliance with national law is not sufficient, however. Article 5 § 1 requires in addition that any deprivation of liberty should be consistent with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above, § 37, and Mooren v. Germany [GC], no. 11364/03, § 72, 9 July 2009).

(b) Application of these principles to the present case

(i) Ground for deprivation of liberty

49. The Court is called upon to examine whether the applicant, during his confinement in a psychiatric hospital as a result of the proceedings here at issue, was deprived of his liberty in accordance with one of the sub-paragraphs (a) to (f) of Article 5 § 1.

50. The Court notes that the order for the applicant’s confinement in a psychiatric hospital was made by the Darmstadt Regional Court in its judgment of 14 January 2002, along with the applicant’s conviction for rape combined with the infliction of bodily injury, and the imposition of a term of four years and six months’ imprisonment (see paragraph 7, above). It therefore intends to examine first of all whether the applicant’s continued detention in a psychiatric hospital was justified under sub-paragraph (a) of Article 5 § 1 as being a “detention of a person after conviction by a competent court”.

51. The Court observes that the applicant’s detention in a psychiatric hospital was imposed in 2002 by the sentencing court, which had found him guilty of rape combined with the infliction of bodily injury. That judgment therefore satisfied the requirement of “conviction” for the purposes of Article 5 § 1.

52. The Court must further determine whether the applicant’s continued detention in a psychiatric hospital occurred “after conviction”, in other words whether there was still sufficient causal connection between the applicant’s conviction by the sentencing court in 2002 and his continuing deprivation of liberty after 28 July 2011.

53. The Court observes that Darmstadt Regional Court, as the sentencing court, ordered the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code because it considered that the applicant had acted with diminished criminal responsibility owing to a disturbance of his sexual preference in the form of sadism. In the Regional Court’s view, the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive. It concluded that similar crimes were to be expected and that the applicant therefore posed a danger to the public (see paragraph 7, above).

54. In the review proceedings in 2011, the Darmstadt Regional Court relied on an expert opinion which diagnosed the applicant with a dissocial personality disorder, alcohol abuse and presumptive sexual sadism with a high risk of re-offending. In this context the Regional Court observed that neither the explanation given by the psychological expert at the hearing nor the current and prior expert opinions excluded the possibility that the applicant was suffering from sexual sadism, although this diagnosis had been found to be rather unlikely. Both the Regional Court and the Frankfurt am Main Court of Appeal concluded that the applicant’s condition and dangerousness had not changed since his conviction as he had refused to undergo any therapy. Therefore, in the absence of an erroneous treatment order issued on the basis of incorrectly established facts, the conditions for terminating the applicant’s detention in accordance with Article 67 d § 6 of the Criminal Code were not met.

55. In determining whether the grounds given by the domestic courts in the proceedings at issue were consistent with the objectives of the judgment of the sentencing court, the Court notes that the domestic courts found that the applicant’s condition had not changed since his conviction, and that they thus agreed with the sentencing court as to the factual basis for the conclusion that the applicant was suffering from a mental disorder. Furthermore, they agreed that the applicant was to be detained for his dangerousness. Both the sentencing court and the courts in the proceedings at issue considered it likely that the applicant would re-offend if his confinement was terminated.

56. It is true that the enforcement courts confirmed only subject to some doubt the sentencing court’s diagnosis of the applicant’s diminished criminal responsibility owing to a disturbance of his sexual preference in the form of sadism. They reiterated, however, that the experts had stated that a diagnosis of sexual sadism could not be excluded without doubt either. On this basis they examined whether there was room for applying Article 67d § 6 of the Criminal Code, which allows a court to terminate a confinement when the conditions for the measure are no longer met, but found, due to the applicant’s refusal to let himself be examined, that they could not establish with certainty that the conditions for the measure were no longer met. Furthermore, the factual basis for the initial diagnosis had not changed. Moreover, they decided in the negative the question whether the applicant’s confinement could be provisionally suspended, as it was still to be expected that the applicant would commit further offences when released.

57. As to the doubts voiced by the enforcement courts concerning the correct classification of the applicant’s mental illness, the Court refers to the case of Radu v. Germany (no. 20084/07, 16 May 2013). In the case of Radu, the sentencing court and the enforcement courts agreed that the applicant was suffering from a mental disorder warranting his confinement because of his dangerousness but, unlike the sentencing court, the enforcement courts did not consider that the applicant’s mental disorder could be classified as one diminishing criminal responsibility. There was therefore disagreement as to the correct classification in law of the applicant’s mental disorder (see Radu, cited above, § 103). As in the case of Radu, in the present case the enforcement courts agreed with the sentencing court that the applicant was suffering from a mental disorder warranting his confinement because of his dangerousness. However, unlike the case of Radu, the enforcement courts did not disagree with the sentencing court as to the correct classification in law of the applicant’s mental disorder, but only had doubts as to whether or not the applicant’s mental disorder could be classified as sexual sadism diminishing his criminal responsibility. Therefore, the Court is of the opinion that the reasons set out in the case of Radu, in which the Court concluded that there remained sufficient causal connection between the applicant’s conviction and his continuing detention in a psychiatric hospital, are applicable in the present case a fortiori.

58. The Court notes in this connection that the domestic courts’ reliance on findings in a criminal court’s final judgment for the purpose of justifying a person’s detention ‒ despite the fact that the sentencing court’s findings may have been wrong ‒ does not raise an issue under Article 5 § 1 of the Convention, as that conviction cannot be said to be the result of a flagrant denial of justice (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004-VII; and Radu, cited above, § 104).

59. The Court is further satisfied that the objective behind the decision of the enforcement courts when prolonging the applicant’s confinement in a psychiatric hospital was to continue to protect the public as long as he remained a danger to them and to provide treatment for his mental disorder in order to reduce his dangerousness.

60. Having regard to the foregoing, the Court considers that the domestic court’s decision in the review proceedings at issue not to release the applicant was based on grounds that were consistent with the aims pursued by the sentencing court when ordering the applicant’s detention in a psychiatric hospital.

61. The Court also finds that the domestic courts’ decision not to release the applicant was not based on an assessment that was unreasonable in terms of those objectives. In the circumstances of the present case, the domestic courts cannot be considered as having based their decision to continue the applicant’s detention essentially on an outdated expert report, as has been claimed ‒ in a rather general way ‒ by the applicant. Having regard to the domestic courts’ reasoning, it is clear that the reason for refraining from ordering a new external expert opinion was the applicant’s explicit refusal to allow himself to be examined by an expert at that time (see paragraphs 21 and 22, above; compare, mutatis mutandis, Constancia v. the Netherlands (dec.), no. 73560/12, § 30, 30 March 2015). Furthermore, the Court observes that the domestic courts had obtained external expert opinions in the context of both the re-opening proceedings in 2010 and the review proceedings in 2014 and that on each occasion the applicant had refused to allow himself to be examined (see paragraphs 18 and 28, above).

62. The Court further notes that at the time of the domestic courts’ decisions in the proceedings at issue, the applicant had served his full term of four years and six months’ imprisonment (see paragraph 7, above) and had spent a total of some five years in a psychiatric hospital. Despite the fact that, with the passage of time, the link between the applicant’s initial conviction and the further deprivation of liberty may have become less strong, the domestic courts’ decision not to obtain a fresh expert opinion and their assessment that the applicant was still dangerous as he had not undergone any treatment were not arbitrary. Having regard to the above considerations, the same holds true for the domestic courts’ assessment that the applicant’s detention in a psychiatric hospital was still justifiable in view of his having been diagnosed with a dissocial personality disorder, alcohol abuse and presumptive sexual sadism with a high risk of re-offending.

63. There thus remained a sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1, between the applicant’s conviction in 2002 and his continuing detention in a psychiatric hospital as a result of the proceedings at issue. In view of these findings, it is not necessary for the Court to determine whether the detention at issue could (also) be justified under sub-paragraph (e) of Article 5 § 1.

(ii) “Lawful” detention “in accordance with a procedure prescribed by law”

64. The Court must further determine whether the applicant’s detention was “lawful” and “in accordance with a procedure prescribed by law” as required by Article 5 § 1.

65. The Court notes that the applicant argued that his detention had not been ordered in compliance with the substantive and procedural rules of domestic law. Furthermore, the domestic courts should in fact have terminated his detention in a psychiatric hospital as an erroneous treatment order had been made, the experts having stated that he was a “normal” rapist whose criminal liability was not diminished.

66. The Court notes that the domestic courts ordered the continuation of the applicant’s detention in a psychiatric hospital in accordance with Article 67d § 2 of the Criminal Code, but considered that paragraph 6 of that provision was not applicable. The detention therefore had a legal basis in domestic law.

67. In determining whether the domestic law was also of the quality required for it to be compatible with the rule of law, the Court must examine, in particular, whether the (non-)application of the - accessible and precisely formulated - Article 67d § 6 of the Criminal Code in the applicant’s case was foreseeable.

68. The Court notes that under the wording of that provision, a court shall declare a placement in a psychiatric hospital terminated if the conditions justifying the measure no longer exist or if such a condition did not exist from the outset (compare Radu, cited above, § 113).

69. The Court notes that the domestic courts agreed that the conditions for application of Article 67d § 6 of the Criminal Code would be met only if it was established with certainty that the circumstances justifying the measure no longer persisted, that is to say that the applicant was no longer suffering from a mental illness warranting his detention. In this context the enforcement courts observed that neither the explanation of the psychological expert at the hearing nor the current or prior expert opinions had excluded the possibility that the applicant was suffering from sexual sadism, although this diagnosis had been found to be rather unlikely. As a consequence, the conditions for application of Article 67d § 6 of the Criminal Code were not met. Having regard to the domestic courts’ reasoning, the Court cannot subscribe to the applicant’s view that in the proceedings at issue the courts established that he had never suffered from a mental illness which could be classified as sexual sadism because they explicitly did not exclude this diagnosis. In these circumstances the Court finds that the applicant was able to foresee ‒ if necessary with the aid of legal advice ‒ that the domestic courts would consider Article 67d § 6 of the Criminal Code to be not applicable in his case.

70. Lastly, the Court takes note of the detailed reasons given by the domestic courts for their decisions and of the context in which they were reached (see paragraphs 24 to 26, above). It observes, in particular, that they found Article 67d § 6 of the Criminal Code to be inapplicable as its conditions were not met. Furthermore, they made it clear that the applicant had a right to be released under Article 67d § 2 of the Criminal Code as soon as it could be expected that he would not commit any further unlawful acts on his release. The domestic courts’ application of the domestic law thus did not render the applicant’s release impossible. In view of the foregoing, the Court considers that the applicant was not arbitrarily deprived of his liberty in the circumstances of the present case. The Court is therefore satisfied that the order for the applicant’s continued confinement in a psychiatric hospital as a result of the review proceedings at issue was “lawful” and “in accordance with a procedure prescribed by law” as required by Article 5 § 1.

71. There has accordingly been no violation of Article 5 § 1 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 5 § 1 of the Convention.

Done in English, and notified in writing on 18 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Khanlar Hajiyev
Registrar President

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