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FIFTH SECTION

Application no. 20084/07
Fredy RADU
against Germany
lodged on 4 May 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Fredy Radu, is a German national who was born in 1962. He is currently detained in Riedstadt Psychiatric Hospital. He is represented before the Court by Mr B. Schroer, a lawyer practising in Marburg.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  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 by stabbing them twenty-five times following a quarrel.

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 Relevant domestic law below). It found that the applicant had killed his former partner by stabbing her eight times following a quarrel; he 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 offences with diminished criminal responsibility (Article 21 of the Criminal Code; see Relevant domestic law 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 which led to his diminished capability to control his acts. Having regard to his personality, it was to be expected that the applicant would kill again if he found himself in a similar conflict situation in a relationship.

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. 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 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 Relevant domestic law 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.

2.  The proceedings at issue

(a)  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 Relevant domestic law below) in which the applicant was represented by counsel, declined to suspend the order to place the applicant 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. Therefore, the medical director of the psychiatric hospital had suggested the applicant’s retrospective preventive detention (see Relevant domestic law 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. However, expert B. 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 lead 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 Relevant domestic law 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 withdrawn its request to order the applicant’s retrospective preventive detention accordingly.

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 assessment 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. However, 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 assessment of the facts by the sentencing court by their own legal assessment. The Regional Court further considered that Article 67d § 6, read in conjunction with Article 66b § 3 of the Criminal Code (see Relevant domestic law below), also concerned only the order for placement in a psychiatric hospital based on a wrong establishment of the facts.

The Regional Court, having regard to 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.

(b)  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 qualified 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, 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 a correct factual basis. The sentencing court had qualified the applicant’s offence as being a 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 could not 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, it considered that that provision also did not cover placements in a psychiatric hospital based on an erroneous legal (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 and that his continued detention was proportionate. The applicant had not changed his attitude and had not learnt to control his conduct.

(c)  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.

3.  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 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 noted on several occasions that the applicant was not currently receiving any therapy. It stressed that the Psychiatric Hospital was obliged to offer the applicant a suitable therapy even if he did not suffer from a pathological mental disorder.

On 20 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.

B.  Relevant domestic law

1.  Provisions on 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 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 reasons indicated in Article 20 of the Criminal Code.

2.  Provisions on the detention in a psychiatric hospital

(a)  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.

(b)  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 6 of that provision provides that 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. The release of the person concerned from the psychiatric hospital shall, as a rule, entail supervision of his or her conduct.

3.  Provisions on retrospective preventive detention

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 no longer persisted 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 offences 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.

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention about his continued detention in a psychiatric hospital. In particular, his detention was unlawful and failed to comply with sub-paragraph (e) of that provision. He argues that he was found never to have suffered from a condition diminishing or excluding his criminal responsibility under Article 63, read in conjunction with Articles 20 and 21 of the Criminal Code. Therefore, he could not be considered as a person “of unsound mind”.

QUESTIONS TO THE PARTIES

Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within any of the sub-paragraphs (a) to (f) of this provision?