RADU v. GERMANY - 20084/07 - Chamber Judgment [2013] ECHR 438 (16 May 2013)

In the case of Radu v. Germany,

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

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ann Power-Forde,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 9 April 2013,

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

PROCEDURE

The case originated in an application (no. 20084/07) 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 Fredy Radu (“the applicant”), on 4 May 2007.

The applicant, who had been granted legal aid, was represented by Mr B. Schroer, a lawyer practising in Marburg. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens, Ministerialrat, and Ms K. Behr, Regierungsdirektorin, of the Federal Ministry of Justice.

The applicant alleged that his continued detention in a psychiatric hospital despite the fact that he had been found by the domestic courts not to suffer from a condition diminishing his criminal responsibility had violated his right to liberty as guaranteed by Article 5 § 1 of the Convention.

On 9 January 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1962. He is currently detained in Riedstadt Psychiatric Hospital.

A. The applicant’s previous convictions and the order for his placement in a psychiatric hospital and execution thereof

On 26 January 1983 the Frankfurt am Main Regional Court convicted the applicant on two counts of murder and sentenced him to seven years’ imprisonment. It found that the then nineteen-year-old applicant, acting with full criminal responsibility, had killed the parents of his girl-friend in 1982 by stabbing them twenty-five times following a quarrel. He was released from prison in January 1987.

On 15 March 1995 the Gießen Regional Court convicted the applicant of homicide. It sentenced him to eight years and six months’ imprisonment and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 41 below). It found that in April 1994, the applicant had killed his former partner by stabbing her eight times following a clash caused by the fact that his former partner had started an intimate relationship with a tenant living in their house. The applicant had subsequently attempted to kill himself.

The Gießen Regional Court, having consulted experts Sch. and P., further considered that the applicant’s placement in a psychiatric hospital had to be ordered. It found that the applicant had committed his offence with diminished criminal responsibility (Article 21 of the Criminal Code; see paragraph 39 below). His capacity to control his acts had been substantially diminished upon commission of the act owing to a profound consciousness disorder (tiefgreifende Bewußtseinsstörung). He suffered from a serious personality disorder characterized by violent outbursts which led to his diminished capability to control his acts. Having regard to his condition, it was to be expected that the applicant would kill again if he found himself in a similar conflict situation in a relationship. The court mitigated the applicant’s prison sentence owing to the fact that he had acted with diminished criminal responsibility (Article 49 of the Criminal Code, see paragraph 40 below). As the applicant did not lodge an appeal on points of law, the judgment became final.

The applicant served four years of his prison sentence. On 14 April 1998 he was then transferred to the Haina Psychiatric Hospital. In subsequent proceedings for review of the applicant’s detention, the medical director of that hospital came to the conclusion that the applicant had been wrongfully placed in a psychiatric hospital as he had never suffered from a persisting pathological mental disorder. He was an “accentuated personality” whose profile was still normal and did not suffer from a personality disorder as defined by the World Health Organization. He lacked true motivation to complete a therapy aimed at resolving crisis situations in relationships. It was therefore very likely that he would commit another capital offence in the context of a serious crisis in a relationship if released. The court dealing with the execution of sentences thereupon ordered the applicant’s retransfer to Kassel Prison in June 2000, where the applicant served the remainder of his prison sentence.

On 22 October 2002 the Frankfurt am Main Court of Appeal (file no. 3 Ws 557/02) dismissed the applicant’s appeal against the decision of the Marburg Regional Court of 17 April 2002. The latter had decided not to suspend the remainder of the applicant’s prison sentence and grant probation and not to declare the applicant’s placement in a psychiatric hospital terminated.

The Court of Appeal noted that the Regional Court had consulted a psychiatric expert, S. In his report dated 17 September 2001, the latter had found that at the time of his act, and contrary to the conclusions drawn by the Gießen Regional Court, the applicant had not suffered from a serious personality disorder diminishing his criminal responsibility. Agreeing with psychiatric experts who had examined the applicant in 1982, 1994 and 1995, expert S. considered that the applicant did not suffer from a serious mental abnormality (Article 20 of the Criminal Code; see paragraph 38 below). From a medical point of view, his detention in a psychiatric hospital was therefore not justified.

The Court of Appeal considered, however, that the applicant’s detention in a psychiatric hospital was not to be declared terminated. It noted that the order for the applicant’s placement in a psychiatric hospital by the sentencing court was the result of an erroneous legal qualification of the applicant’s condition on the basis of a correct factual basis. This assessment could not be corrected by the courts dealing with the execution of sentences as doing so would violate the constitutional principle of the finality of judicial decisions.

Since 13 October 2003 the applicant, having fully served his prison sentence, is detained in a psychiatric hospital, initially in Hanau.

B. The proceedings at issue

1. The proceedings before the Regional Court

On 28 April 2006 the Gießen Regional Court, in review proceedings under Article 67e of the Criminal Code (see paragraph 42 below) in which the applicant was represented by counsel, declined to suspend the order for the applicant’s confinement in a psychiatric hospital and to grant probation.

The Regional Court noted that in the submissions of the medical director of the Hanau Psychiatric Hospital, there was still a risk that the applicant, who had already killed three people, committed similar offences if released. However, that risk did not stem from a mental abnormality of the applicant, but from certain characteristics of his personality which permitted an escalation in a crisis within a relationship. Therefore, the medical director of the psychiatric hospital had suggested the applicant’s retrospective preventive detention (see paragraphs 49-52 below).

The Regional Court had further consulted a psychiatric and neurological expert, B. The latter had found in his report of 9 November 2005 that the applicant suffered from a personality disorder characterized by emotional instability and a disposition to react in an uncontrolled violent manner. That disorder was not pathological and was, from a psychiatric point of view, not a serious mental abnormality (see Article 20 of the Criminal Code). He agreed in this respect with the findings of psychiatric experts S. (consulted in 2001) and Sch. (consulted in 1994) who had equally found that the applicant did not suffer from a pathological personality disorder for the purposes of Article 20 of the Criminal Code. Expert B. further considered that the applicant, who had not learnt to deal with conflicts arising in relationships since his past offences, had a disposition to and was liable to commit similar offences as the one which had led to his placement in a psychiatric hospital if released.

The Regional Court noted that it was impossible from a legal point of view to order the applicant’s retrospective preventive detention under Article 66b of the Criminal Code (see paragraphs 50-52 below). In particular, there was no new evidence indicating that the applicant was particularly dangerous. Furthermore, the court was legally precluded from taking into account the applicant’s conviction in 1983 on two counts of murder as a previous conviction, as it dated back too long. The Public Prosecutor’s Office had accordingly withdrawn its requests to declare the applicant’s confinement in a psychiatric hospital terminated and to order his retrospective preventive detention.

The Regional Court considered that the applicant’s continued detention in a psychiatric hospital had to be ordered. It noted that expert B. had confirmed previous findings to the effect that the order made by the sentencing Gießen Regional Court for the applicant’s detention in a psychiatric hospital was based on an erroneous legal qualification on the basis of correctly established facts.

The Regional Court argued that this situation differed from a situation in which the sentencing court had wrongly established the relevant facts as to a person’s diminished criminal responsibility. In the latter case, a person who had never suffered from defects warranting placement in a psychiatric hospital could not be expected to undergo psychiatric treatment independently of his criminal guilt. In that case, the termination of the confinement by the courts dealing with the execution of sentences made it unnecessary for the person concerned to request the reopening of the criminal proceedings.

Conversely, in the present case, the courts dealing with the execution of sentences would breach the constitutional principle of the finality of judgments if they replaced the legal qualification of the facts by the sentencing court by their own legal qualification. A reopening of the proceedings was not possible in these circumstances. The Regional Court further considered that Article 67d § 6, read in conjunction with Article 66b § 3 of the Criminal Code (see paragraphs 44 and 51 below), just as the case-law previously established on that issue (see paragraphs 45-48 below), concerned only the order for placement in a psychiatric hospital based on a wrong establishment of the facts.

The Regional Court, endorsing the findings of expert B., further found that the applicant’s continued detention was necessary as the applicant was still dangerous to the public. As there was a risk that the applicant would kill a person for the fourth time if released, his detention was not disproportionate.

2. The proceedings before the Court of Appeal

The applicant appealed against the Gießen Regional Court’s decision. He argued that his detention in a psychiatric hospital had to be declared terminated under Article 67d § 6 of the Criminal Code as he did not suffer from a disorder which had to be considered as pathological. Therefore, his placement in a psychiatric hospital could not be justified under Article 63 of the Criminal Code.

On 16 June 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. It found that the applicant’s detention was not to be terminated under Article 67d § 6 of the Criminal Code. It noted that expert B., consulted by the Regional Court, had found in accordance with all experts consulted previously that the applicant suffered from a personality disorder characterized by emotional instability. His tendency to uncontrolled outbursts of fury or violence and his inability to control his conduct was not, however, pathological. The applicant’s unchanged condition was not a persisting disorder which fell within the ambit of Article 63 of the Criminal Code.

Referring to its decision dated 22 October 2002 (see paragraphs 10-12 above), the Court of Appeal found that the applicant’s placement in a psychiatric hospital was not the result of an erroneous establishment of the relevant facts, that is, the diagnosis of the applicant’s condition. It was the result of an erroneous legal qualification of the applicant’s condition on the basis of correctly established facts. The sentencing court had qualified the applicant’s offence as being the result of a serious personality disorder and had ordered the applicant’s detention in a psychiatric hospital without taking into account that a disorder for the purposes of Article 63 of the Criminal Code had to be a persisting condition. However, this erroneous legal assessment was to be corrected in proceedings following an appeal on points of law. It could no longer be corrected in the proceedings dealing with the execution of a sentence as doing so would violate the constitutional principle of the finality of legal decisions.

The Court of Appeal further confirmed that the newly enacted Article 67d § 6 of the Criminal Code did not alter that conclusion. Referring to its previous decisions (including, in particular, its decision of 3 June 2005, file no. 3 Ws 298 and 299/05, see paragraph 48 below), it considered that that provision, which did no more than codify the case-law developed previously by the courts dealing with the execution of sentences, also did not cover placements in a psychiatric hospital based on an erroneous legal qualification (as opposed to factual assessment) by the sentencing court.

Endorsing the findings of the Regional Court, the Court of Appeal further found that it was very likely that the applicant would seriously harm others, especially in case of a crisis in a relationship, if released. Having regard to the fact that he had already killed three people, his continued detention was proportionate. The applicant had not changed his attitude and had not learnt to control his conduct.

3. The proceedings before the Federal Constitutional Court

On 14 July 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions taken by the Regional Court and the Court of Appeal. He submitted, in particular, that his continued detention in a psychiatric hospital violated his constitutional right to liberty. He argued that under the clear wording of Article 67d § 6 of the Criminal Code, his detention had to be declared terminated as he had never suffered from a pathological mental disorder within the meaning of Article 20 of the Criminal Code. Therefore, the requirements for his further detention under Article 63 of the Criminal Code were not met and his detention was unlawful.

On 19 October 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint as it lacked prospects of success (file no. 2 BvR 1486/06).

The Federal Constitutional Court reiterated that it examined the application of legal provisions other than those of constitutional law only to a limited extent. The application of those provisions by the courts dealing with the execution of sentences had not been arbitrary. Even having regard to the importance of the constitutional right to liberty, constitutional law did not prohibit the courts’ refusal to apply Article 67d § 6 of the Criminal Code to cases in which the sentencing court had only made an error of law in the judgment ordering the detention. The sentencing court’s application of the law had become final and no reopening of the proceedings was permitted on that ground. The finality of judgments guaranteed legal certainty, which was a principle protected by the rule of law alongside the principle of justice (materielle Gerechtigkeit). It was in the first place for the legislator to balance these competing principles enshrined in the rule of law.

The Federal Constitutional Court’s decision was served on the applicant’s counsel on 13 November 2006.

C. Subsequent developments

On 26 March 2007, 21 April 2008, 14 April 2009 and 29 January 2010 the Gießen Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation.

The Gießen Regional Court had heard the medical director of the Hanau Psychiatric Hospital prior to its decisions, who had repeatedly confirmed that the applicant did not suffer and had never suffered from a pathological disorder justifying his placement in a psychiatric hospital. However, having regard to his personality and his lack of motivation to bring about a change in his personality, it was likely that he would commit further similarly serious offences as the one having let to his placement in a psychiatric hospital if released.

The Regional Court’s decisions were all subsequently confirmed by the Frankfurt am Main Court of Appeal. The latter stressed on several occasions, in particular in its decision dated 29 August 2008, that the Psychiatric Hospital was obliged to offer the applicant a suitable therapy even if he did not suffer from a pathological personality disorder. It equally stressed, for example in its decision dated 30 June 2009, that the applicant, for his part, had to show to be ready to undergo therapy.

In January 2010 the applicant was provisionally transferred from Hanau Psychiatric Hospital, which was being closed, to Wiesloch Psychiatric Hospital.

On 21 March 2011 the Heidelberg Regional Court ordered the applicant’s detention in a psychiatric hospital to continue.

On 1 April 2011 the applicant was transferred from Wiesloch to Riedstadt Psychiatric Hospital where he is currently detained.

On 18 January 2012 the Darmstadt Regional Court ordered the applicant’s confinement in a psychiatric hospital to continue. On 5 March 2012 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal against that decision. The psychiatric expert H. consulted by the court had confirmed that the applicant had a disposition to emotional outbursts and a limited capability to control his impulsive behavior and that his personality deviated from a normal personality in these respects. However, these deviations were not so serious as to amount to a personality disorder and even less to “any other serious mental abnormality” within the meaning of Article 20 of the Criminal Code. There was a high risk that the applicant committed further capital offences in a conflict situation if released. The Court of Appeal stressed that it would be possible for the applicant to undergo a therapy in a psychiatric hospital and to reduce his dangerousness significantly thereby. However, he lacked sufficient motivation to complete the therapies he had started. Despite this, the hospital staff remained under an obligation to offer the applicant suitable therapies and to attempt to motivate him to undergo therapy.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions relating to criminal liability

Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt.

Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated in accordance with Article 49 § 1 of the Criminal Code if the perpetrator’s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the grounds indicated in Article 20 of the Criminal Code.

Article 49 § 1 of the Criminal Code contains rules on the fixing of a penalty in cases in which the law requires or allows for a mitigation of the penalty under that provision. It provides, in particular, that in cases of sentences of imprisonment for a fixed term, no more than three quarters of the statutory maximum term may be imposed (Article 49 § 1 sub-paragraph 2).

B. Provisions on the detention in a psychiatric hospital

1. The order for a person’s detention in a psychiatric hospital

Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility (Article 20 of the Criminal Code) or with diminished criminal responsibility (Article 21 of the Criminal Code), the court shall order his placement in a psychiatric hospital if a comprehensive assessment of the perpetrator and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.

2. Judicial review and duration of detention in a psychiatric hospital

Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the order for a person’s placement in a psychiatric hospital should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year (paragraph 2 of Article 67e).

Article 67d of the Criminal Code contains provisions on the duration of detention. Paragraph 2 of that provision provides that if there is no provision for a maximum duration of the confinement or if the time-limit has not yet expired, 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 person concerned.

Article 67d § 6 of the Criminal Code, in the version in force at the relevant time, provided:

“(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...”

Article 67d § 6 was inserted into the Criminal Code together with Article 66b by the Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004. It codifies the case-law previously established by the courts dealing with the execution of sentences concerning the termination of a person’s confinement in a psychiatric hospital in cases in which that person no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his or her criminal responsibility.

Under that case-law, a person’s detention in a psychiatric hospital had to be terminated in cases in which it was established that the person concerned no longer suffered from a mental disorder within the meaning of Article 20 of the Criminal Code at the time of the decision of the court dealing with the execution of sentences, notably as he or she has been cured (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 1119/01, decision of 26 November 2001; Frankfurt am Main Court of Appeal, file no. 2 Ws 572/02, decision of 22 October 2002, NStZ 2003, pp. 222 ss.; Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005; and the references quoted in the decision dated 12 May 2010 of the Federal Court of Justice, file no. 4 StR 577/09).

Moreover, the detention was to be terminated in cases in which such a disorder did not exist from the outset, but where the sentencing court had concluded on the basis of erroneous facts that it did exist (erroneous placement in a psychiatric hospital for factual reasons). It was only decisive that at the time of the decision of the court dealing with the execution of sentences, it has been established that the conditions for a confinement in a psychiatric hospital were not met (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 1119/01, decision of 26 November 2001; Frankfurt am Main Court of Appeal, file no. 2 Ws 572/02, decision of 22 October 2002, NStZ 2003, pp. 222 ss.; Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005).

Conversely, the domestic courts dealing with the execution of sentences, whose view was supported by a number of scholars, repeatedly found that an erroneous placement in a psychiatric hospital based on purely legal errors by the sentencing court was not covered by Article 67d § 6 of the Criminal Code, despite the fact that the wording of that provision was open in that respect. Such a purely legal error arose in cases in which the sentencing court had correctly established the relevant facts relating to the mental disorder, but had wrongly classified it in law as a mental disorder within the meaning of Articles 20, 21 and 63 of the Criminal Code (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005; and W. Stree / J. Kinzig, in: A. Schönke / H. Schröder, Strafgesetzbuch Kommentar, 28^th edition, Munich 2010, Article 67d, no. 16 with many further references).

C. Provisions on retrospective preventive detention

As mentioned above (see paragraph 45), the Retrospective Preventive Detention Act of 23 July 2004 inserted not only Article 67d § 6, but also Article 66b into the Criminal Code. The provision was aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14).

Article 66b of the Criminal Code contains provisions for the retrospective order for a person’s placement in preventive detention. At the relevant time, paragraphs 1 and 2 of that provision authorised such an order if the person concerned had committed certain serious offences. In addition, following the person’s conviction, new evidence must have come to light which indicated that the convicted person presented a significant danger to the general public. Furthermore, it must be very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims.

Article 66b § 3 of the Criminal Code further provided at the relevant time that if an order for placement in a psychiatric hospital was declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order had been based did not exist at the time of the decision terminating the placement, the court could order preventive detention retrospectively under the following conditions. Firstly, the placement of the person concerned under Article 63 must have been ordered on the basis of several serious offences (listed in Article 66 § 3, first sentence). Alternatively, the person concerned must either already have been sentenced to at least three years’ imprisonment or must have been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63. Secondly, a comprehensive assessment of the person concerned, his criminal acts and, in addition, his development during the execution of the measure must have revealed that it was very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims.

Article 66b § 3 and Article 67d § 6 of the Criminal Code remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article.

D. Appeal on points of law and reopening of criminal proceedings

Under Article 337 § 1 of the Code of Criminal Procedure, an appeal on points of law (Revision) may only be filed on the ground that the judgment was based on a violation of the law. Article 337 § 2 of the Code of Criminal Procedure provides that the law was violated if a legal provision was either not applied or was not applied correctly.

Article 359 of the Code of Criminal Procedure enumerates the circumstances in which criminal proceedings which were terminated by a final judgment may be reopened to the benefit of the convicted person. Under sub-paragraph 5 of that provision, this is the case, in particular, if new facts or evidence were produced which, alone or in connection with the evidence taken previously, may support the acquittal of the accused or an essentially different decision on a measure of correction and prevention. Conversely, the discovery of an error in law was not a ground listed in that provision for the reopening of criminal proceedings.

THE LAW

ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

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 been established that he did not suffer and had in fact never suffered from a condition diminishing or excluding his criminal responsibility. 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; ...”

The Government contested that argument.

A. Admissibility

1. The parties’ submissions

(a) The Government

In the Government’s submission, the applicant had not exhausted domestic remedies. He had failed to lodge an appeal on points of law against the judgment of the sentencing Gießen Regional Court dated 15 March 1995. The latter had erroneously considered that the applicant’s condition at the time of his offence was to be qualified, from a legal point of view, as a state of diminished criminal responsibility and had ordered the applicant’s placement in a psychiatric hospital. That wrong application of the law in the Gießen Regional Court’s judgment, which was the basis for the applicant’s subsequent confinement in a psychiatric hospital, could have been corrected on appeal. Moreover, the applicant had failed to comply with the six-month time-limit running from his conviction in 1995.

The Government further considered that the decision of the Gießen Regional Court of 28 April 2006 was the wrong subject-matter for an application. In the review proceedings under Article 67e of the Criminal Code (see paragraph 42 above), the domestic courts could only examine whether the factual requirements for a placement in a psychiatric hospital were still met - which had been the case for the applicant. Conversely, in these proceedings the courts could not correct legal errors such as the one here at issue made in a final judgment of a sentencing court.

Moreover, the Government argued that the applicant had failed to exhaust domestic remedies also in so far as he now complained that he had not been offered sufficient therapeutic treatment.

(b) The applicant

The applicant contested that view and argued that his application was admissible. He had exhausted domestic remedies and had complied with the six-month time-limit. It was true that the judgment of the sentencing Gießen Regional Court dated 15 March 1995 had become final but that judgment was not the subject-matter of his application. He had complained about the decision of the Gießen Regional Court dealing with the execution of sentences dated 28 April 2006, confirmed on appeal and by the Federal Constitutional Court on 19 June 2006, which had failed to terminate his confinement in a psychiatric hospital despite the fact that he did not suffer from a mental illness.

2. The Court’s assessment

The Court notes that in the present application, the applicant complained that his right to liberty under Article 5 § 1 of the Convention had been breached by the decisions of the domestic courts in the review proceedings here at issue because they had prolonged his detention in a psychiatric hospital despite the fact that he was not of unsound mind. He complained about the decision of the Gießen Regional Court dated 28 April 2006, confirmed on appeal by the Frankfurt am Main Court of Appeal on 16 June 2006 and by the Federal Constitutional Court on 19 October 2006; the latter decision was served on the applicant’s counsel on 13 November 2006.

The Court considers that the applicant exhausted domestic remedies in relation to that subject-matter, which is alone at issue in his application to the Court. He further lodged his application on 4 May 2007 and thus within a period of six months from the date of service (see in this respect, inter alia, Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V) of the final decision of the Federal Constitutional Court. Therefore, he complied with the admissibility criteria laid down in Article 35 § 1 of the Convention. The Government’s objections must consequently be rejected.

Moreover, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

The applicant argued that his detention 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.

(i) Justification under sub-paragraph (a) of Article 5 § 1

The applicant stressed that the aim of a person’s confinement in a psychiatric hospital was to cure mental illnesses. As he did not suffer from a pathological mental disorder, he could not be cured in a psychiatric clinic and the objective of a person’s placement in such a clinic could not be met.

(ii) Justification under sub-paragraph (e) of Article 5 § 1

In the applicant’s submission, he could also not be considered as a person “of unsound mind” for the purposes of Article 5 § 1 (e). All psychiatric experts consulted had agreed that he did not suffer from a pathological mental disorder for the purposes of Articles 20 and 21 of the Criminal Code and that the requirements for his detention in a psychiatric hospital under Article 63 of the Criminal Code were therefore not met. He could not be cured in a psychiatric clinic as he did not suffer from an illness. He stressed that the German legislator had defined mental illnesses in Articles 20 and 21 of the Criminal Code. It could not now be argued that the legislator could also have defined persons “of unsound mind” in a different, broader manner and that his detention could then possibly have been covered by sub-paragraph (e) of Article 5 § 1.

Moreover, the applicant argued that his continued confinement in a psychiatric hospital was not dependent upon the persistence of his mental disorder, as required by the Court’s case-law. All psychiatric experts consulted had not only confirmed that he did not suffer from a pathological mental disorder, but also that his dangerousness did not result from such a disorder. Therefore, his detention in a psychiatric hospital was not justified. It was irrelevant in that context that he might be offered useful therapeutic treatment also in a psychiatric hospital.

The applicant further submitted that he had been motivated to undergo a therapy. However, the manner in which he had been treated for many years, in which he had been transferred to many different psychiatric hospitals without there being an overall concept for his therapy and without being offered the treatment he had applied for, had demotivated him. His continued detention in a psychiatric hospital, during which he had been refused therapeutic treatment he had been ready to undergo, was disproportionate. He had thereby been deprived of the possibility to work towards his release.

(iii) Lawfulness of the detention

The applicant considered that his detention in a psychiatric hospital was unlawful. According to the clear wording of Article 67d § 6 of the Criminal Code, the domestic courts had been obliged to terminate his detention in a psychiatric hospital. Under that provision, the courts were called upon to determine whether, at the time of their decision, the person concerned suffered from a condition diminishing or excluding his or her criminal responsibility for the purposes of Articles 20 and 21 of the Criminal Code and whether, as a consequence, the requirements of Article 63 of the Criminal Code were met at that time. If that was not the case, the confinement had to be terminated. Conversely, it was not the function of the courts dealing with the execution of sentences to review the correctness of the judgment of the sentencing court.

The applicant stressed that a different interpretation would result in persons who were not mentally ill within the meaning of Articles 20 and 21 of the Criminal Code nevertheless being detained in a psychiatric hospital. Moreover, as the conditions for a confinement in a psychiatric clinic were not met in his case, the aims usually pursued by such a measure - namely, to treat the mental illness of the person concerned - could equally not be met. He took the view that the fact that the sentencing court had made a mistake did not mean that the courts dealing with the execution of sentences could continue making the same legal error. In these circumstances, his continued detention had also not been foreseeable.

(b) The Government

The Government took the view that the applicant’s placement in a psychiatric hospital had complied with Article 5 of the Convention.

(i) Justification under sub-paragraph (a) of Article 5 § 1

The Government submitted that the applicant’s confinement in a psychiatric hospital was justified under sub-paragraph (a) of Article 5 § 1 as detention of a person “after conviction by a competent court”.

The Government argued that there remained a sufficient causal connection between the applicant’s conviction by the sentencing Gießen Regional Court in 1995 and his continuing confinement in a psychiatric hospital. The applicant’s confinement in a psychiatric hospital under Article 63 of the Criminal Code by the sentencing court was notably aimed at protecting the public from further capital offences committed by him. Despite the lapse of time since the judgment of the sentencing court, that aim was still pursued by the applicant’s detention at issue as it was still likely that he committed further capital crimes if released.

By its order for the applicant’s confinement in a psychiatric hospital, the sentencing court had further pursued the aim of treating the applicant. The applicant’s continued confinement also still served this therapeutic purpose.

(ii) Justification under sub-paragraph (e) of Article 5 § 1

The Government further argued that the applicant’s continued detention in a psychiatric hospital ordered by the Gießen Regional Court on 28 April 2006 had also been covered by sub-paragraph (e) of Article 5 § 1.

In the Government’s view, the applicant currently suffered from a mental disorder and was thus a person “of unsound mind” within the meaning of Article 5 § 1 (e). They submitted that for a person to be “of unsound mind”, it was neither necessary that the person’s condition was pathological, nor that the condition was such that the person’s criminal responsibility was diminished. It was decisive that the person’s disorder was so severe that he or she was dangerous to the public.

The Government submitted that the applicant, as confirmed by numerous psychiatric experts consulted throughout his detention, suffered from a personality disorder, characterised by emotional instability, which justified his being classified as “of unsound mind” even though he did not suffer from a condition diminishing his criminal responsibility. The applicant’s mental disorder was so serious as to justify his compulsory confinement in a psychiatric hospital. As confirmed by all psychiatric experts consulted, it was very likely that the applicant would commit offences similar to the three brutal capital crimes he had been found guilty of if he found himself in another exceptional emotional crisis in a relationship. He still had not completed a therapy addressing his personality disorder and teaching him to control his disposition for violent emotional outbursts and was therefore still very dangerous to the public.

The Government further stressed that the applicant’s continued confinement in a psychiatric hospital was dependent upon the persistence of his personality disorder, as required by the Court’s case-law. If the applicant successfully completed a therapy - which, as had been confirmed by the psychiatric experts, would be possible if the applicant were motivated to do so - he would no longer be dangerous to the public and his detention would be suspended under Article 67d § 2 of the Criminal Code (see paragraph 43 above).

In the Government’s submission, the applicant had also been detained in an appropriate institution for mental health patients. The personality disorder he suffered from could be treated in the various psychiatric hospitals in which he had been confined irrespective of the fact that his disorder did not diminish his criminal responsibility. The suitable therapies offered to the applicant, which were indispensable in order to reduce his dangerousness, could, however, not be terminated as the applicant lacked true and sufficient motivation to undergo therapy.

(iii) Lawfulness of the detention

The Government explained that the sentencing Gießen Regional Court had considered that the applicant’s mental condition at the time of his offence had led to his diminished criminal responsibility within the meaning of Article 21 of the Criminal Code. That court had erred in its legal qualification as the applicant’s mental condition had not amounted to “any other serious mental abnormality” for the purposes of Articles 20 and 21 of the Criminal Code and he had therefore acted with full criminal responsibility. That court had thus ordered the applicant’s placement in a psychiatric hospital although one of the requirements of Article 63 of the Criminal Code - that the person concerned had committed an unlawful act without criminal responsibility or with diminished criminal responsibility - had not been met. However, that judgment had become final, the applicant not having lodged an appeal on points of law.

In the Government’s view, the applicant’s detention had been lawful and in accordance with a procedure prescribed by law. They conceded that according to the wording of Article 67d § 6 of the Criminal Code (see paragraph 44 above), an order for placement in a psychiatric hospital should be declared terminated if the court found, after enforcement of that order had started, that the conditions for the measure no longer persisted. However, in accordance with the prevailing view of the domestic courts and scholars, that provision was nevertheless not applicable to the situation at issue in the present case where the sentencing court had correctly established the relevant facts relating to the disorder, but had wrongly classified it in law as a persisting mental disorder within the meaning of Articles 20, 21 and 63 of the Criminal Code (see also paragraph 48 above). The Federal Constitutional Court had confirmed the compatibility with the Constitution of that interpretation in its decision in the present case.

The Government submitted that a number of reasons militated in favour of that interpretation of Article 67d § 6 of the Criminal Code. Errors of law had to be raised in an appeal on points of law. Once a judgment had become final, it could no longer be corrected other by a reopening of the proceedings under Article 359 of the Code of Criminal Procedure (see paragraph 54 above). A reopening under that provision was, however, only possible if new facts were produced which were suitable to ground a different decision on the measure of correction and prevention. Conversely, a mere error in law was not a ground for reopening the proceedings. Consequently, legal errors, which could not even be corrected in reopening proceedings, could not be corrected in proceedings under Article 67e of the Criminal Code on the review of a person’s placement in a psychiatric hospital. Otherwise, the substantial res judicata effect of the sentencing court’s judgment would be circumvented and legal certainty be compromised.

The Government added that in the present case, the applicant had benefitted from the sentencing court’s assessment that he had acted with diminished criminal responsibility within the meaning of Article 21 of the Criminal Code. As a result of that error in law, the term of imprisonment he had been imposed had been substantially reduced in accordance with Article 49 § 1 of the Criminal Code (see paragraph 40 above), compared to the sentence he would have been imposed had he been considered to have acted with full criminal liability.

The Government further submitted that in the proceedings at issue, the courts dealing with the execution of sentences had been called upon to determine whether the conditions of the applicant’s placement in a psychiatric hospital under Article 63, read in conjunction with Articles 20 and 21 of the Criminal Code, were met at the time of their decisions. However, if the mental condition of the person concerned had not changed since his or her conviction, the courts dealing with the execution of sentences were bound by the legal classification of that condition by the sentencing court as a result of the finality of the sentencing court’s judgment. In the present case, the courts dealing with the execution of sentences had therefore been bound by the sentencing court’s assessment that the applicant’s - unchanged - mental condition was a condition entailing his diminished criminal responsibility.

Having regard to the foregoing, the applicant’s detention was to be suspended and probation was to be granted under Articles 67e and 67d § 2 of the Criminal Code only if it was to be expected that he would not commit any further unlawful acts on his release. However, the domestic courts had found that it was still very likely that the applicant would seriously harm other persons especially in the context of a crisis in a relationship. Having regard to the fact that the applicant had already killed three persons, the continuation of his detention was also proportionate.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

(i) Grounds for deprivation of liberty

The Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f) contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Guzzardi v. Italy, 6 November 1980, § 96, Series A no. 39; Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000-III; and Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). The applicability of one ground does not necessarily preclude that of another; a deprivation of liberty may, depending on the circumstances, be justified under one or more sub-paragraphs (see, among other authorities, Eriksen v. Norway, 27 May 1997, § 76, Reports 1997-III; Erkalo v. the Netherlands, 2 September 1998, § 50, Reports 1998-VI; and Witold Litwa, cited above, § 49). Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Guzzardi, cited above, § 98; and Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011).

For the purposes of sub-paragraph (a) of Article 5 § 1, the word “conviction”, having regard to the French text (“condamnation”), has to be understood as signifying both a finding of guilt after it has been established in accordance with the law that there has been an offence (see Guzzardi, cited above, § 100), and the imposition of a penalty or other measure involving deprivation of liberty (see Van Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A no. 50; and M. v. Germany, no. 19359/04, § 87, ECHR 2009).

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 a 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).

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” (see Van Droogenbroeck, cited above, § 35). In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114; Stafford v. the United Kingdom [GC], no. 46295/99, § 64, ECHR 2002-IV; Waite v. the United Kingdom, no. 53236/99, § 65, 10 December 2002; and Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008). However, with the passage of time, the link between the initial conviction and a further deprivation of liberty may gradually become less strong (compare Eriksen, cited above, § 78, and Van Droogenbroeck, cited above, § 40). The causal link required by sub-paragraph (a) might eventually 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; Eriksen, cited above, § 78; Weeks, cited above, § 49; and M. v. Germany, cited above, § 88).

The Court further reiterates that the term “persons of unsound mind” in sub-paragraph (e) of Article 5 § 1 does not lend itself to precise definition since its meaning is continually evolving as research in psychiatry progresses (see Winterwerp, cited above, § 37; and Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003). An individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39; and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012).

A mental disorder may be considered as being of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (compare, for example, Witold Litwa, cited above, § 60; and Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003-IV).

In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, in particular on the merits of clinical diagnoses, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40; X v. the United Kingdom, 5 November 1981, § 43, Series A no. 46; H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004-IX; and Puttrus v. Germany (dec.), no. 1241/06, 24 March 2009). The relevant time at which a person must be reliably established to be of unsound mind, for the requirements of sub-paragraph (e) of Article 5 § 1, is the date of the adoption of the measure depriving that person of his liberty as a result of that condition (compare Luberti v. Italy, 23 February 1984, § 28, Series A no. 75; B v. Germany, no. 61272/09, § 68, 19 April 2012).

Furthermore, there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93; Aerts v. Belgium, 30 July 1998, § 46, Reports 1998-V; Hutchison Reid, cited above, § 49; Brand v. the Netherlands, no. 49902/99, § 62, 11 May 2004; and Haidn v. Germany, no. 6587/04, § 78, 13 January 2011).

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

It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that 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 whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Erkalo, cited above, § 52; Brand, cited above, § 60; Saadi v. the United Kingdom, cited above, § 67; and Kafkaris, cited above, § 116). This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford, cited above, § 63; Kafkaris, cited above, § 116; and De Schepper v. Belgium, no. 27428/07, § 36, 13 October 2009). “Quality of the law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Amuur v. France, 25 June 1996, § 50, Reports 1996-III; Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by the Convention thus requires that all law be sufficiently precise to allow the person - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998-VII; Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III; and M. v. Germany, cited above, § 90).

Compliance with national law is not, however, sufficient. Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above, § 37; Saadi v. the United Kingdom, cited above, § 67; and Mooren, cited above, § 72). The Court has repeatedly noted in the context of sub-paragraph (e) of Article 5 § 1 that the detention of an individual is such a serious measure that it is only justified where other, less severe measures, have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances (see Witold Litwa, cited above, § 78; Varbanov v. Bulgaria, no. 31365/96, § 46, ECHR 2000-X; Saadi v. the United Kingdom, cited above, § 70; and Puttrus, cited above).

(b) Application of these principles to the present case

(i) Ground for deprivation of liberty

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.

The Court notes that the order for the applicant’s confinement in a psychiatric hospital was made by the Gießen Regional Court in its judgment of 15 March 1995 under Article 63 of the Criminal Code, together with the applicant’s conviction of homicide and the imposition of a term of imprisonment of eight years and six months (see paragraphs 7-8 above). It shall therefore examine, first, whether, as was claimed by the Government, the applicant’s continued detention in a psychiatric hospital was justified under sub-paragraph (a) of Article 5 § 1 as being “detention of a person after conviction by a competent court”.

The Court observes that the applicant’s detention in a psychiatric hospital, a measure involving deprivation of liberty, was imposed in 1995 by the sentencing Gießen Regional Court, which had found him guilty of homicide. That judgment therefore satisfied the requirement of “conviction” for the purposes of Article 5 § 1 (see paragraph 87 above; compare also M. v. Germany, cited above, §§ 95-96; and Brand, cited above, § 59).

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 a sufficient causal connection between the applicant’s conviction by the sentencing court in 1995 and his continuing deprivation of liberty after 28 April 2006. That causal link required by sub-paragraph (a) of Article 5 § 1 may be broken, in particular, if the decision not to release the applicant was based on grounds that were inconsistent with the objectives of the initial decision by the sentencing court when ordering the applicant’s confinement in a psychiatric hospital (see paragraph 89 above).

The Court observes that the sentencing Gießen Regional 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 profound consciousness disorder when killing his former partner. In the Regional Court’s view, the applicant suffered from a serious personality disorder characterized by violent outbursts which had caused his diminished capability to control his acts. The Regional Court further found that having regard to the applicant’s condition, it had to be expected that the applicant would kill again if a similar conflict situation in a relationship arose (see paragraphs 7-8 above).

In the review proceedings in 2006 at issue, the Gießen Regional Court and the Frankfurt am Main Court of Appeal ordered the applicant’s confinement in a psychiatric hospital to continue on the following grounds. They agreed with the findings of the expert they had consulted that the applicant suffered from a personality disorder characterised by emotional instability and a disposition to react in an uncontrolled violent manner. From a factual perspective, this disorder had remained unchanged since the applicant’s conviction in 1995. Contrary to the view taken by the sentencing court it could not, however, be classified in law as a profound consciousness disorder diminishing the applicant’s criminal responsibility on the basis of Article 63 of the Criminal Code. Despite this, for legal reasons - namely the constitutional principle of the finality of judgments - the domestic courts in the review proceedings considered themselves bound by the sentencing court’s legal classification of the applicant’s disorder as a mental disorder diminishing his criminal responsibility. They further found that the applicant had not learnt to deal with conflicts in the course of a therapy. It was therefore still likely that he would kill a fourth person in case of a crisis in a relationship if released and he was still dangerous to the public (see paragraphs 14 ss. above).

In determining whether these grounds given by the domestic courts in the proceedings at issue for ordering the continuation of the applicant’s detention in a psychiatric hospital were consistent with the objectives of the judgment of the sentencing court when ordering that detention, the Court notes that the domestic courts agreed that the applicant suffered from a personality disorder characterised by emotional instability and a disposition to react in an uncontrolled violent manner. These courts further agreed that the applicant was to be detained for his dangerousness. Both the sentencing court and the courts dealing with the execution of sentences considered that it was likely that the applicant would kill a fourth person in case of a crisis in a relationship if released.

It is true that the courts dealing with the execution of sentences disagreed with the sentencing court as to the correct classification in law of the applicant’s mental disorder. The former accepted, however, that this legal qualification had acquired legal force and could not be changed in the review proceedings. On this basis they examined whether there was room for applying Article 67d § 2 of the Criminal Code which allows to suspend on probation further execution of the detention order as soon as it is to be expected that the applicant will not commit any further offences on his release. Their decision not to release the applicant was based on the fact that this condition was not yet fulfilled in the proceedings at issue.

The Court would note in this connection that the domestic courts’ reliance on the findings in a final judgment of a criminal court to justify a person’s detention despite the fact that the sentencing court’s findings were or may have been wrong does not, as a rule, raise an issue under Article 5 § 1 of the Convention. It refers to its case-law (cited above at paragraph 88) to the effect that a flawed conviction would render a detention unlawful only if the conviction were the result of a flagrant denial of justice - which cannot be said of the sentencing court’s judgment in the applicant’s case.

The Court is further satisfied that the objective of the decision of the courts dealing with the execution of sentences when prolonging the applicant’s confinement in a psychiatric hospital was still to protect the public as long as he was dangerous and to provide treatment for the applicant’s personality disorder in order to reduce his dangerousness.

Having regard to the foregoing, the Court considers that the decision by the domestic courts 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.

The Court further finds that the order for the applicant’s continued detention was not based on an assessment which was unreasonable in terms of the objectives of the sentencing court’s judgment. It notes, in particular, that at the time of the domestic courts’ decisions in the proceedings at issue, the applicant had served his full term of eight years and six months’ imprisonment (see paragraph 9 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 (compare paragraph 89 above), the domestic courts’ assessment that the applicant was still dangerous as he had not learnt to control his conduct was not arbitrary. Having regard to the above considerations (see paragraphs 103-106), 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 personality disorder characterised by emotional instability and a disposition to react in an uncontrolled violent manner.

Therefore, there remained a sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1, between the applicant’s conviction in 1995 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 applicant’s 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”

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.

The Court notes that in the applicant’s submission, his detention was not ordered in compliance with the substantive and procedural rules of domestic law. He argued that the domestic courts had been obliged to terminate his confinement in a psychiatric hospital in application of Article 67d § 6 of the Criminal Code, the wording of which was unambiguous.

The Court notes that the domestic courts ordered the continuation of the applicant’s detention in a psychiatric hospital imposed by the sentencing court in 1995 in accordance with Article 67d § 2 of the Criminal Code, whereas they considered that paragraph 6 of that provision was not applicable. The detention therefore had a legal basis in domestic law.

In determining whether the domestic law was also of the required quality 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 67 § 6 of the Criminal Code in the applicant’s case had been foreseeable.

The Court notes that under the wording of that provision, the court shall declare a placement in a psychiatric hospital terminated if, after enforcement of that order has started, it finds that the conditions for the measure - laid down in Article 63 of the Criminal Code - no longer persist (see paragraph 44 above), i.e. if the person concerned was cured. As the domestic courts in the review proceedings at issue have found that the applicant had never suffered from a pathological mental disorder diminishing his criminal responsibility within the meaning of Articles 20 and 21 of the Criminal Code, the literal wording of Article 67d § 6 of the Criminal Code does not apply. However, it is uncontested in the jurisprudence of the German courts that the wording of this article, by providing that the conditions for the measure “no longer” persist, may also cover - a fortiori - cases of an erroneous placement in a psychiatric hospital for factual reasons in which such a condition did not exist from the outset.

However, the domestic courts in the present proceedings concurred in their interpretation of Article 67d § 6 of the Criminal Code to the effect that that provision did not cover cases such as that of the applicant, in which the initial order for confinement in a psychiatric hospital was based on an erroneous legal qualification of the person’s mental condition on the basis of correctly established facts. The Court observes that this interpretation of the Criminal Code was well established in the case-law of the courts dealing with the execution of sentences prior to the enactment of Article 67d § 6 of the Criminal Code. The Frankfurt am Main Court of Appeal had even rendered a decision to that effect in review proceedings brought by the applicant himself prior to the present proceedings (see paragraphs 10-12 above). That interpretation has been confirmed following the codification of the said case-law in Article 67d § 6 of the Criminal Code (see paragraph 48 above).

In these circumstances, the Court finds that the applicant, if need be with legal advice, had been able to foresee that the domestic courts would consider Article 67d § 6 of the Criminal Code as not applicable to his case.

The Court is called upon to determine, finally, if the deprivation of liberty in the applicant’s case is in keeping with the purpose of Article 5 of the Convention, namely of protecting the individual from arbitrariness. The Court cannot but note in this context that the domestic courts’ application of the domestic law resulted in the applicant being further detained in a psychiatric hospital despite the fact that it was common ground that he suffered from a psychological disposition, i.e. a personality disorder characterised by emotional instability and a disposition to react in an uncontrolled violent manner, which was not considered to be pathological, even if treatment could be offered.

The Court reiterates that the fundamental right to liberty is of primary importance in a “democratic society” within the meaning of the Convention and its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see, inter alia, Ladent v. Poland, no. 11036/03, § 45, 18 March 2008 with many further references). However, it is also clear from the wording of Article 5 § 1 (a) of the Convention, which stipulates that it is the detention - as distinct from the conviction - which has to be lawful, as well as from the Court’s case-law (see paragraph 88 above), that the Convention respects the principle of the finality of judgments, which itself guarantees legal certainty, a principle enshrined in the rule of law. Respect for the principle of the finality of judgments cannot, therefore, be seen as contravening as such the purpose of Article 5.

The Court takes note of the detailed reasons given by the domestic courts for their decision and of the context in which it was taken. It observes, in particular, that their interpretation of Article 67d § 6 of the Criminal Code aimed at protecting the finality of judgments. The Court further observes that the domestic courts did not only base their decision not to release the applicant on the finality of the sentencing court’s judgment. 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 was to be expected that he would not commit any further unlawful acts on his release. As the applicant did not yet meet that condition, the further execution of the detention order against him was not suspended. 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.

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

FOR THESE REASONS, THE COURT

1. Declares unanimously the application admissible;

2. Holds by five votes to two that there has been no violation of Article 5 § 1 of the Convention.

Done in English, and notified in writing on 16 May 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Villiger and Power-Forde is annexed to this judgment.

M.V.
C.W.

JOINT DISSENTING OPINION OF
JUDGES VILLIGER AND POWER-FORDE

1. We are unable to share the majority’s view that there has been no violation of Article 5 § 1 of the Convention. We acknowledge, readily, that the facts of this case are serious and that the applicant may constitute a danger to third parties which, if he were to be released, would necessitate his close supervision by the authorities. However, we are called upon to decide whether his current detention in a psychiatric hospital is lawful. Given that the domestic courts and all of the experts testifying before them have found that the applicant is not mentally ill, we cannot accept that his continued detention in such an institution is lawful under the Convention. In our view, it cannot be justified under Article 5 § 1 (a) or (e) or, indeed, under any other provision of the Convention.

Article 5 § 1 (a)

2. When it comes to determining the lawfulness of a person’s detention for the purposes of Article 5 § 1 (a), it has to be established that there remains a sufficient causal connection between the original conviction grounding the detention and the continued deprivation of liberty (see § 89 of the judgment). We accept that the Gießen Regional Court’s judgment of 15 March 1995 satisfied the requirement of “conviction” for the purposes of Article 5 § 1 (a). That court found the applicant guilty of homicide and ordered his detention in a psychiatric hospital together with a term of imprisonment of eight years and six months. The sentencing court considered that the applicant’s ‘pathological mental disorder’ diminished his criminal responsibility and that he constituted a danger to the public as a result of that mental condition. Those two factors satisfied the decisive preconditions under domestic law^{^[1]} for his placement in a psychiatric hospital. The aim of the sentencing court’s order must be considered to have been the detention of the applicant for as long as he was mentally ill such that his criminal responsibility was diminished and for as long as he was a danger to the public as a result of that condition. His detention, therefore, was aimed both at treating his mental illness and protecting the public from the danger caused thereby.

3. Upon review of the lawfulness of the applicant’s detention, however, in April 2006, the domestic courts found, on the extensive expert evidence adduced, that the applicant did not suffer from a mental illness. He had a ‘personality disorder’ characterized by an emotional instability. His propensity for violence when faced with a crisis in a relationship stemmed from characteristics of his personality. His condition was not a ‘pathological mental disorder’ or one which diminished his criminal responsibility for the purposes of Article 20 and 21 of the Criminal Code. On the basis of this uncontested evidence, it was clear that, at the time of review, the pre-conditions necessary for the applicant’s detention in a psychiatric hospital under Article 63 of the Criminal Code were not satisfied. His dangerousness to the public-which was accepted-was not the result of any mental illness requiring his detention in a psychiatric institution. His original placement in such an establishment had been the result of an erroneous legal qualification of the applicant’s condition.

4. By concluding that the applicant did not, at the time of review, suffer from a mental condition which diminished his criminal responsibility and, had the facts been properly established, would have been shown never to have suffered from such a condition, the courts in the review proceedings were required under domestic law^{^[2]} to terminate his confinement in a psychiatric hospital. However, despite their unequivocal findings concerning his mental health the review courts considered themselves obliged to treat the applicant as if he were a person suffering from a mental disorder which diminished his criminal responsibility. This extraordinary approach which ran counter to the medical and legal reality and which perpetuated an acknowledged error was based upon the policy of respect for the principle of the finality of judgments.

5. We are not convinced that respect for the principle of the finality of judgments could ever justify treating a person as if he had a mental disorder - when he has not - or keeping such a person in a psychiatric hospital when all of the evidence, medical and legal, goes against such a placement.

6. The courts dealing with the execution of sentences were required only to determine whether, at the time of their decision in the review proceedings, all the conditions for the applicant’s confinement in a psychiatric hospital had been met. It was only his then current condition that was decisive for the question of whether his detention therein should continue. Those review courts diverged, fundamentally, from the sentencing court in terms of the classification, in law, of the applicant’s mental health. Whilst, clearly, he posed a risk, if released, the aim pursued by the review courts in detaining him in hospital differed, substantially, from the one which the sentencing court had pursued when it had made its original order pursuant to Article 63 of the Criminal Code. The aim of detention was no longer psychiatric treatment for a mental illness which diminished criminal responsibility and which thereby gave rise to a risk to the public but rather it was respect for the finality of an earlier judgment that had, erroneously, placed the applicant in a psychiatric institution because of a flawed legal classification of his condition.

7. Having regard to the foregoing, we conclude that the decision of the courts dealing with the execution of sentences not to terminate the applicant’s confinement in a psychiatric hospital despite their clear findings of fact and the requirements of domestic law was based on grounds that were inconsistent with the purpose of the original order of the sentencing court. Consequently, there was no longer a sufficient causal connection between the applicant’s conviction in 1995 and his continued detention in a psychiatric institution after 28 April 2006. Therefore, we consider that the applicant’s continuous confinement in a psychiatric hospital cannot be justified under Article 5 § 1 (a) as being detention “after conviction”.

Article 5 § 1 (e)

8. In order for the applicant’s detention to be justified under Article 5 § 1 (e) of the Convention it must be established that he is not simply a dangerous person but, more precisely, that he is a person who is actually suffering from unsoundness of mind. The Court has not developed in its case-law a precise definition of the term ‘persons of unsound mind’. The term has an autonomous meaning and the Court is not bound interpretations given in domestic legal orders. What is clear, however, is that three fundamental minimum conditions must be satisfied before the detention of a person on such a ground can be considered to be lawful: (i) the individual in question must be reliably shown to be of unsound mind, that is, a true mental disorder must have been established before a competent authority on the basis of objective medical expertise; (ii) the mental disorder must be of a degree warranting compulsory confinement; and (iii) the disorder must persist in order for the continued confinement to be valid.

(i) A true mental disorder?

9. Any attempt to defend the applicant’s detention in a psychiatric institution falls at the first hurdle. All of the objective medical evidence and expertise that was adduced before the review courts went the other way in that it was established that the applicant did not suffer from a mental illness which diminished his criminal responsibility. He was responsible for his behaviour and the risk which he posed flowed not from any mental illness but from a personality disorder characterised by emotional instability and a propensity for violence when confronted with a crisis in a relationship. His condition was not pathological.

10. In these circumstances, it is clear that ‘a true mental disorder’ for the purposes of Article 5 § 1 has not been ‘established’ by the domestic courts.^{^[3]} On the contrary, those courts were unanimous in their finding that the applicant did not have a serious mental illness or a pathological personality disorder and thus a mental disorder as required by domestic law (see, a contrario, Hutchison Reid v. United Kingdom, no. 50272/99, §§ 19 ss., 53). Indeed, there is nothing to indicate that the domestic courts ever considered that the applicant was ‘of unsound mind’ for the purposes of Article 5 § 1 (e) of the Convention. They ordered his confinement in a psychiatric hospital not because he was, as a matter of fact, a mentally ill patient in need of medical treatment but rather because they considered themselves bound by the erroneous placement of him in such an institution by the sentencing court.

(ii) Warranting compulsory confinement?

11. A person’s dangerousness alone is not sufficient to justify the deprivation of liberty under Article 5 § 1 (e). It is well-established in the case-law (see § 90) that for an individual to be deprived of his liberty on the basis of his being ‘of unsound mind’, such a person must suffer from a true mental disorder and, in addition, that mental disorder must be of a kind or degree warranting compulsory confinement because he is a danger to the public. In other words, if deprivation of liberty is to fall within the ambit of Article 5 § 1 (e) of the Convention, the individual’s dangerousness must be the result of and causally connected to a true mental disorder. It is not sufficient for it to be solely the consequence of certain personality characteristics. We cannot but observe, once again, that the domestic courts were unanimous in their finding that the applicant’s disorder was not so serious as to be pathological and that, from a psychiatric point of view, it did not necessitate medical treatment in a psychiatric hospital.

(iii) Persistence of a true mental disorder?

12. In order for a true mental disorder to persist it must, as a requirement of logic, firstly exist. Given the unequivocal finding of the domestic review courts that a true mental disorder does not exist in the applicant’s case, the validity of his continued detention based upon the persistence of such a disorder, quite clearly, cannot be established. As noted above, the continuation of his confinement in a psychiatric institution was ordered despite the fact that the domestic courts did not consider him to be a person whose dangerousness, as a matter of fact, flowed from a pathological mental disorder as defined in domestic law or from a mental disorder for the purposes of Article 5 § 1 (e) of the Convention.

13. The Court has always affirmed that the grounds permitting the deprivation of liberty in Article 5 § 1 are to be interpreted narrowly. Qualifying everyone who suffers from a personality disorder as a person ‘of unsound mind’ warranting detention in a psychiatric institution regardless of the absence of any mental illness would not, in our view, be in keeping with the purpose of Article 5 § 1 which is the protection of the individual from arbitrariness.

14. Whilst we accept, fully, that the State has a duty to protect the public from the applicant until such time as he has learnt to overcome his emotional instability and to control his reaction in crisis - that is not the issue which this Court is obliged to address. It is for the State to discharge its duties in a manner that is lawful. The Court is asked only to rule on whether the applicant’s current detention in a psychiatric institution is in breach of the Convention.

15. As we consider that the applicant’s confinement in a psychiatric hospital cannot be justified either under sub-paragraph (a) or sub-paragraph (e) of Article 5 § 1 nor, indeed, under any other sub-paragraph thereof, we find, accordingly, that there has been a violation of Article 5 § 1 of the Convention.

[3] For the necessity to establish that condition, see, inter alia, Kallweit v. Gemany, no. 17792/07, §§ 55-56, 13 January 2011; and S. v. Germany, no. 3300/10, § 94, 28 June 2012)

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You are here: BAILII >> Databases >> European Court of Human Rights >> RADU v. GERMANY - 20084/07 - Chamber Judgment [2013] ECHR 438 (16 May 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/438.html Cite as: [2013] ECHR 438