Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26778/95

by P. S.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 December 1994

by P. S. against Austria and registered on 21 March 1995 under file

No. 26778/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

9 May 1997 and the observations in reply submitted by the

applicant on 11 July 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1963, is an Austrian national. At the time

of the introduction of the application he was detained at

Vienna-Mittersteig, an institution for mentally ill offenders. In the

proceedings before the Commission he is represented by Mr. R. Soyer,

a lawyer practising in Vienna.

A. The particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 6 March 1991 the Eisenstadt Regional Court (Landesgericht)

convicted the applicant of sexual abuse of a minor (Unzucht mit

Unmündigen) and sentenced him to two and a half years' imprisonment.

The Regional Court, referring to S. 21 para. 2 of the Criminal

Code (Strafgesetzbuch) also ordered that the applicant be placed in an

institution for mentally ill offenders (Unterbringung in einer Anstalt

für geistig abnorme Rechtsbrecher). The Court had regard to the

opinions of two psychiatric experts, Dr. K. and Dr. G., according to

which the applicant suffered from a sexual neurosis, which amounted to

a psychical abnormality and made it likely that he would commit

similar offences.

On 17 March 1992 the Graz Regional Criminal Court decided that

the applicant's detention in an institution for mentally ill offenders

was still necessary. It referred to the above expert opinions. Further,

it noted the applicant's submissions according to which he had, after

conversations with several psychologists, deeply regretted the offence

and regained his self-confidence. However, he was still waiting in

order to obtain a place for regular therapy. In the circumstances of

the case, the Court found that the expert opinions were still valid.

On 9 December 1992 the Vienna Regional Criminal Court refused the

applicant's conditional release from detention in an institution for

mentally ill offenders. It found that the danger that the applicant

would commit further sexual offences still subsisted. The applicant did

not appeal from this decision.

On 22 October 1993 the Vienna Regional Criminal Court submitted

the file to the Vienna Public Prosecutor's Office (Staatsanwaltschaft)

which moved on 3 November 1993 that an expert opinion on the question

of reduction of risk be procured and that the applicant be heard.

On 8 November 1993 the Vienna Regional Criminal Court appointed

Dr. Q. as psychologic expert and ordered him to submit an opinion on

the applicant's personality and his dangerousness. Dr. Q. examined the

applicant on 19 November 1993. His opinion, dated 10 December 1993, was

received by the court on 21 December 1993. On 23 December 1993 the file

was sent to the Public Prosecutor's Office for inspection.

On 3 January 1994 the Public Prosecutor's Office, in view of the

results of the psychological examination, requested the applicant's

release from detention. After procurement of a copy of the applicant's

criminal record which arrived on 24 January 1994, the Vienna Regional

Criminal Court, on 11 February 1994, decided to obtain another expert

opinion on the applicant's dangerousness.

On 11 February 1994 the Vienna Regional Criminal Court appointed

Dr. Kr., an expert in neurology and psychiatry, whose opinion of

8 March 1994 was received by the court on 14 March 1994.

On 22 March 1994 the Public Prosecutor's Office recommended not

to release the applicant in view of the second expert opinion. On

25 March 1994 the court decided to hear the applicant on 13 April 1994.

On 13 April 1994 the Vienna Regional Criminal Court decided that

the applicant's detention in an institution for mentally ill offenders

was still necessary. The court noted that the applicant's term of

imprisonment had ended on 25 September 1993. Further it noted the

report of the prison governor, according to which an open prison regime

(Freigang) was being applied to the applicant. He was studying

psychology at the Vienna University and working for a consultancy firm.

He had made good progress in his psychotherapy as regards his sexual

neurosis and had a relationship with a woman of his own age. The court

also had regard to the opinions of the two experts: According to Dr. Q.

the applicant's condition had stabilised and he was now able to handle

his aggressions. According to Dr. Kr., however, the reasons for the

commission of the offence had not yet been clarified by the applicant's

therapy, and there was still no guarantee that he would not follow a

sudden impulse to commit illicit sexual acts with a minor.

On 17 May 1994 the applicant's appeal against this decision was

received by the court and submitted to the appellate court the

following day.

On 10 June 1994 the Vienna Court of Appeal (Oberlandesgericht)

quashed the Regional Court's decision. It found that the two

psychiatric experts had contradicted each other. While Dr. Q. had found

that the applicant no longer presented a danger, Dr. Kr. had come to

the opposite conclusion. In this situation and in particular having

regard to the complexity of the case, it was necessary to hear the two

experts again and, in case the contradiction in their opinions could

not be removed, to order a further opinion by an expert holding a

university chair at a domestic or foreign university.

On 23 June 1994 the Vienna Regional Court ordered Dr. Q. to

comment upon Dr. Kr.'s opinion.

On 12 December 1994 Dr. Q., after having been urged by the court

several times, submitted his opinion in which he criticised in

particular the fact that Dr. Kr. seemed to consider it necessary to

offer a guarantee that the applicant would not commit further offences,

if released. However, it was never possible to predict a person's

future conduct with absolute certainty.

On 22 December 1994 the Court, indicating the urgency of the

matter, ordered Dr. Kr. to make any comments which could serve to

clarify the contradictions between the opinion of Dr. Q. and his own

position.

On 17 January 1995 Dr. Kr. submitted an additional expert opinion

in which he upheld his prior assessment.

On 20 January 1995 the Public Prosecutor's Office requested that

the applicant should not be released. On 23 January 1995 a

supplementary statement was obtained from the Vienna Mittersteig

Prison.On 1 February 1995 the Vienna Regional Criminal Court decided

to appoint a further expert.

On 16 February 1995 the Regional Court appointed Dr. L., an

expert in forensic psychiatry and ordered him to submit an expert

opinion on the applicant's dangerousness, having regard to the previous

expert opinions. Further, the Court informed Dr. L. that the case had

to be dealt with speedily. Dr. L. examined the applicant on

1 March 1995 and submitted his expert opinion on 15 March 1995. He

stated that the applicant's personality had developed in the course of

the psychotherapy. He had learned to control his sexual desires and had

stabilised his personality.

On 24 March 1995 the Public Prosecutor's Office stated that it

would agree to the applicant's conditional release provided that he was

ordered to continue his psychotherapy.

On 19 April 1995 the Vienna Regional Criminal Court ordered that

the applicant be released conditionally from the institution for

mentally ill offenders on 11 May 1995. It found that the danger that

the applicant would commit further sexual offences no longer subsisted.

The Regional Court appointed a probation officer and ordered the

applicant to continue his psychotherapy. The Regional Court noted the

report of the prison director, according to which the applicant's

psychotherapy had been focused on the conditions under which he

committed the offence and had been aimed at developing a strategy to

avoid further offences. The Court also referred to the above opinion

of the psychiatric expert, Dr. L. It noted further the applicant's

submissions that he had learned to control his sexual desires and had

now a stable relationship with an adult woman.

On 11 May 1995 the applicant was released.

B. Relevant domestic law and practice

S. 21 of the Criminal Code (Strafgesetzbuch) deals with the

preventive measure (vorbeugende Maßnahme) of placement in an

institution for mentally ill offenders.

Paragraph 1 provides that if a person commits an offence

punishable with a term of imprisonment exceeding one year, and if he

cannot be punished for the sole reason that he committed the offence

under the influence of a state of mind excluding responsibility

resulting from a serious mental or emotional abnormality, the court

shall order him to be placed in an institution for mentally ill

offenders, if in view of his personality, his condition and the nature

of the offence it is to be feared that he will otherwise, under the

influence of his mental or emotional abnormality, commit a criminal

offence with serious consequences.

Paragraph 2 states that if such a fear exists, an order for

placement in an institution for mentally ill offenders shall also be

made in respect of a person who, while not lacking responsibility,

commits an offence punishable with a term of imprisonment exceeding one

year under the influence of his severe mental or emotional abnormality.

In such a case the placement is to be ordered at the same time as the

sentence is passed.

According to S. 24 para. 1 of the Criminal Code the placement in

an institution for mentally ill offenders is to be effected prior to

the serving of the prison sentence, the time spent in that institution

being deductible from the prison sentence. If the placement ends before

the completion of sentence, the offender has to be transferred to a

penal institution, unless his sentence is remitted conditionally or

unconditionally.

S. 25 para. 1 provides that preventive measures are to be ordered

for an indefinite period and that they are to be implemented as long

as is required by their purpose.

Paragraph 2 states that the termination of preventive measures

shall be decided by the court.

Paragraph 3 provides that the court must of its own motion

examine at least once yearly whether the placement in an institution

for mentally ill offenders is still necessary.

According to the Supreme Court's decision of 30 September 1980,

which was taken upon a plea of nullity for the preservation of the law

(Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), S. 25 para. 3

requires the court only to start its examination within a year of the

last decision relating to the necessity of further placement. A

decision has then to be taken without undue delay. The Supreme Court

had regard to the wording of the said provision and added that it would

be contrary to its purpose, namely guaranteeing a regular examination,

if a court had to decide within a year of the last decision

irrespective of whether or not it had the necessary evidence before it.

As the examination by a psychiatric expert often required considerable

time, it was possible that a decision could only be issued more than

a year after the last decision had been taken.

COMPLAINTS

The applicant complains under Article 5 para. 4 of the Convention

that the courts failed to decide speedily on the lawfulness of his

detention. He submits in particular that S. 25 para. 3 of the Criminal

Code requires the courts to examine at least once yearly whether the

conditions for detention in an institution for mentally ill offenders

are still met. He points out that in his case more than a year elapsed

between the decisions of 9 December 1992 and 13 April 1994. Moreover,

the latter decision was quashed by the appeal court and a new decision,

which finally ordered his release, was only taken on 19 April 1995.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 December 1994 and registered

on 21 March 1995.

On 27 February 1997 the Commission decided to communicate the

application.

The Government's written observations were submitted on

9 May 1997. The applicant replied on 11 July 1997.

THE LAW

The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention that the courts failed to decide speedily on the lawfulness

of his detention in an institution for mentally ill offenders.

Article 5 (Art. 5), so far as relevant, reads as follows:

"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;

...

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful.

The Government submit that the question whether or not the courts

decided speedily on a request for release from detention depends on the

type of the detention and on the circumstances of the case, whereby

particular regard must be had to the complexity of the proceedings. The

Government argue that the present case was complex as it necessitated

the taking of both a psychological and a neurological expert opinion.

In view of the contradictions between these opinions a third expert

opinion had to be ordered. Further, the courts proceeded without any

unavoidable delays. The only delays that occurred were caused by the

establishment of the expert opinions. However, the courts urged the

experts to file their opinions in good time.

The Government also point out that the courts complied with the

relevant time-limits laid down in domestic law. Referring to the

Supreme Court's decision of 30 September 1980 they state that

S. 25 para. 3 of the Criminal Code only requires the court to initiate

a review within the one year time-limit. Following the decision of

9 December 1992 the court ordered an expert opinion on 8 November 1993

and obtained it on 19 November 1993 i.e. within the statutory time-

limit. Its decision of 13 April 1994 was given a little over four

months after the end of the one year period, following the taking of

a second expert opinion. Finally, the Government argue that after the

quashing of this decision the renewed first instance proceedings, for

which no statutory time-limit is set, were nevertheless conducted

speedily having regard to the complexity of the case.

The applicant contests the Government's view. He argues that,

between the decision of 9 December 1992 and the final decision of

19 April 1995 ordering his release, a period of two years and four

months elapsed. Given that S. 25 para. 3 of the Criminal Code requires

an examination once yearly, an examination which only ends more than

a year and four months after the expiry of the one year period cannot

be considered as being conducted "speedily" within the meaning of

Article 5 para. 4 (Art. 5-4) of the Convention. Moreover, the applicant

submits that the proceedings were not particularly complex as the

establishment of expert opinions is a standard procedure in such cases.

He also points out that a considerable delay was caused by the Vienna

Regional Criminal Court as its decision of 13 April 1994 was defective

and had to be quashed upon his appeal. Finally, the applicant points

out that no delays are attributable to him.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission concludes,

therefore, that the application is not manifestly ill-founded, within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

Menu

P.S. v. AUSTRIA

P.S. v. AUSTRIA

LEXI