FIFTH SECTION

DECISION

Application no . 44183/12 Heinz-Werner BÄCKER against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 21 October 2014 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ganna Yudkivska , Vincent A. D e Gaetano , Helena Jäderblom , Aleš Pejchal , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 10 July 2012 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Heinz-Werner Bäcker , is a German national, who was born in 1963 and lives in Lippstadt . He is currently confined in a psychiatric hospital in Eickelborn Lippstadt. He was represented before the Court by Mr C. Ernst, a lawyer practising in Bielefeld.

A. The circumstances of the case

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

1. Background to the case

3. On 29 January 1981 the Hamm Juvenile Court ( Jugendschöffengericht ) charged the applicant with rape and attempted rape, committed on 5 August and 19 September 1980 respectively. In the first case the applicant ran into a 16-year old girl and knocked her down. He then suffocated and threatened to kill her, and raped her. In the second case he had followed a girl and wanted to rape her. As his bike was jammed, he gave up the chase and masturbated in a field. He apprehended a 25-year old woman who was walking, choked her and threatened to strangle her. As she fought him off and cried for help, some passers-by noticed them and he could not penetrate her. The court sentenced him to a year and ten months imprisonment and placed him on probation because he and his mother had consented to him being given medication and placed in a young offender ’ s institution.

4. On 24 September 1981 the applicant knocked down a 24-year old cyclist, dragged her into a ditch, suffocated her until she lost consciousness and raped her. When she regained consciousness and made an attempt to flee, he abused her and left her senseless and badly injured in a field while he drove off. The victim was hospitalised for a month, and suffered from paralysis of the eye muscle until the beginning of 1982, and was, a year after the attack, still in a terrible psychological state with suicidal and depressive tendencies.

5 . On 17 September 1982 the Münster Regional Court convicted the applicant of rape in two cases, in one case in combination with grievous bodily harm, and in the other case with attempted rape . He received a global youth sentence of five years , which includ ed the previous sentence of the Juvenile Court. It based its decision on the opinion, dated 19 April 1982, of an external psychiatric expert, who had examined the applicant and had seen medical, social and school reports about the applicant and his family from 1970 until 1980, which all stated that the applicant had a difficult family situation and had physical and learning difficulties. The expert found that the applicant suffered from a psychopathic personality disorder with a n increased sex drive and lack of will power . The Regional Court further held that the applicant had acted with diminished responsibility when committing the offence s because of a mental disorder (pursuant to Article 21 of the Criminal Code, see Relevant domestic law below) . It consequently ordered that the applicant be placed in a psychiatric hospital in accordance with the relevant provisions of German law before starting the youth sentence . At the time of committ ing the offences , the applicant was 16 and 17 years old respectively . He has been in a psychiatric facility since 15 October 1982.

2. The proceedings at issue

(a ) P sychiatric expert opinion of December 20 10

6. Since 1987 the applicant has been examined regularly every three years by different external psychiatric experts, who had not treated the applicant before and who did not belong to the psychiatric facility in which the applicant is placed.

7. On 6 December 2010 the external expert K., a psychologist, psychotherapist and professor at a university of applied science, issued a statement after examin ing the applicant on 19 and 27 October 2010 . In his assessment of the applicant ’ s legal prognosis the expert took into account the previous opinions of eight different external psychiatric expert s on the applicant ’ s state of health dating from 1987, 1991, 1993, 1995, 1998, 2001, 2004 and 2008 as well as his medical file containing statements by attending doctors regarding the applicant ’ s conduct in hospital and the therapy impleme nted since his confinement in 1982 .

8. The expert found that the applicant was suffering from a histrionic, narcissistic and antisocial disorder with impulsive and aggressive tendencies , that had developed as a result of him being neglected and abused at home in the past. He was easy to provoke and irritate , emotionally instable and his threshold for aggressive behaviour was low. In the course of his stay in hospital the applicant had , on a few occasions , shown aggressive and somewhat violent reactions towards fellow patients after being provoked or in situations where he had felt harassed. However, in none of these cases had the applicant tried to strangle someone or injure them badly, and there was nothing to suggest that his aggressive behaviour had increased in frequency or intensity over the years. The expert emphasised that the applicant was trusted with looking after the ward ’ s petting zoo and always carried out his everyday tasks.

9. In the expert ’ s view, it had to be expected that outside the hospital the applicant would commit o ffences similar to those which had been the reason for his confinement. When examined by the expert , the applicant had indicated that he had seen no need to continue his therapy. Further treatment and medication were however necessary with a view to minimising the risk of him reoffending . For the time being , the applicant ’ s release from hospital could not therefore be recommended. The expert specified in this connection that his assessment was based on the assumption that the Regional Court would come to the conclusion that the offences the applicant might commit were so serious that for the safety of the general public his continued placement was required . T he expert con cluded that the applicant could not be regarded as a treated sex offender.

(b ) First decision of the Paderborn Regional Court

10. In March 2011 the applicant , represented by a lawyer, requested that his further placement be declared disproportionate or , alternatively, that an add itional psychiatric assessment be carried out . He submitted that his conti nued detention for the past twenty eight and a half years had violated his human rights .

11. On 22 March 2011 , without hearing the applicant orally, the Paderborn Regional Court rejected the applicant ’ s request. It took into consideration a report by the psychiatric facility of 1 September 2010, which concluded that despite the applicant ’ s mostly satisfactory behaviour in the daily routine on the ward, it could not issue a positive legal prognosis , owing to the stagnating progress of his therapy.

12 . On 28 April 2011 the Hamm Court of Appeal overruled the Regional Court ’ s decision because the external expert opinion dated 6 December 2010 had not been included in the decision-making , and neither the expert nor the applicant had been heard . The Court of Appeal referred the case back to the Regional Court for a new decision.

( c ) R evised decision of the Paderborn Regional Court

13 . On 10 June 2011 the Paderborn Regional Court again ordered that the applicant ’ s placement in hospital be continued. Relying on written statements by the Lippstadt P sychiatric H ospital , where he was held, see paragraph 1, of 6 June 2011 and the prosecution authorities , the independent expert opinion of 6 December 2010 , the applicant ’ s oral testimony and the applicant ’ s lawyer ’ s statement , the court found it established that the applicant ’ s legal prognosis was still negative. The expert had stated that the applicant was suffering from a combined personality disorder including affective instability, lack of will power , an inability to create relationships , and denial of the crimes . According to the expert, the applicant needed the protective environment and care of an inst itution for a fairly long time, as he still had not show n any insight into his illness or empathy with the victims , and obstinately refused to consider any proposals by the attending doctors to adjust his psychotherapy , as was required for the long-term t reatment of his disorder.

( d ) Decision of the Hamm Court of Appeal

14. On 1 September 2011 the Court of Appeal, endorsing the Regional Court ’ s reasoning, dismissed the applicant ’ s appeal as ill-founded. It added that as long as there remained a serious risk that he c ould commit similar offences , and as long as he refused treatment, his continued placement in a psychiatric facility was vital and proportionate.

( e ) D ecision of the Federal Constitutional Court

15. On 1 June 2012 th e Federal Constitutional Court rejected the applicant ’ s constitutional complaint without giving further reasons (file no. 2 BvR 2120/11).

(f) Subsequent proceedings

16. The applicant ’ s further detention was subject to annual review. On 13 June 2012 the Paderborn Regional Court ordered that the applicant ’ s placement be continued after hear ing the applicant and tak ing into consideration the psychiatric facility ’ s report of 13 April 2012 . The report asserted that the applicant continued to suffer, without any change, from a combined personality disorder including histrionic, narcissistic and antisocial aspects with an undifferentiated perception of other people, a high level of egocentrism and rigid and inflexible behaviour and thinking. The report emphasised that despite the fact that in the psychiatric hospital the applicant was well integrated into everyday life and assumed responsibility for his behaviour, he had difficulties with change. The court considered that the applicant adhered to the accompanied relaxation of his detention but he considered the medical report and a supplementary opinion as “brashness” ( Frechheit) and demanded his release. The court considered that the applicant ’ s placement had to be continued, as his demanding and impulsive behaviour gave grounds for suspecting that he would reoffend once outside a structured environment.

17. On 31 July 2012 the Hamm Court of Appeal dismissed the applicant ’ s appeal against the Regional Court ’ s decision .

18. On 5 June 2013 the Paderborn Regional Court on the basis of a fresh report of the psychiatric facility of 15 March 2013, ruled that the applicant ’ s detention should be continued as the applicant continued to lack social skills and showed a high level of egocentrism which was contrary to a positive social and legal prognosis. The court found that no progress in his treatment could be established as he continued to refuse proper treatment.

19 . On 23 July 2013 the Hamm Court of Appeal confirmed the Regional Court ’ s decision and specified that since the applicant had refused any offers of therapy, there was still a risk of him reoffending.

20. On 18 November 2013 the Federal Constitutional Court (file n o s . 2 BvR 2180/13 and 2 BvR 2200/13) declared inadmissible constitutional complaints lodged by the applicant against the Hamm Court of Appeal ’ s decisions of 31 July 2012 and 23 July 2013. It found that the applicant had not sufficiently substantiated his complaints, as he had simply alleged that his confinement was disproportionate, that medical opinion was lacking , and that he had formulated controversial allegations against the courts without dealing with their argument s and reasoning. The Federal Constitutional Court added that it was not its task to identi fy the relevant legal points among the documents submitted. Even applicants who were not represented by a lawyer had to – so far as possible – substantiate their complaints.

B. Relevant domestic law

21. The pertinent domestic law is reproduced in the case of Klouten v. Germany ((dec.), no. 48057/10 , 19 March 2013 , §§ 38-43).

22. In accordance with Article 21 of the Criminal Code, if an offender is only partially capable of appreciating the unlawfulness of his act ions or of acting in accordance with any such appreciation because of a pathological mental disorder, a profound consciousness disorder, mental incapacity or any other serious mental abnormality, he is said to have acted with diminished responsibility .

COMPLAINTS

23. The applicant complained under Article 5 § 1 (e) in conjunction with Article 17 and , al ternatively, under Article 3, Article 6 §§ 1, 2, 3 ( d) and ( e ), Article 7 , Article 1 of Protocol 6 and Articles 1, 2, and 3 of Protocol 13 to the Convention that the proceedings at issue regarding the judicial review of his continued detention for 2011/12 had been unfair. He alleged that the domestic courts had based their decision s on a purely theoretical risk that he still posed a threat to society. In their assessment of this potential risk , the domestic courts , as well as the majority of the psychiatric and other experts involved , had consistently referred to the seriou sness of the offences as established in the Regional Court ’ s judgment of 17 September 1982 . S ubsequent developments and the relevant information available at the time of their decisions on the review of the applicant ’ s detention had not been sufficiently taken into account .

THE LAW

A. A lleged violation of Article 5 § 1 of the Convention

24. R elying on Article 5 § 1 (e) in conjunction with Article 17 of the Convention , the applicant complained that his continued detention in a psychiatric hospital was unlawful and arbitrary.

25. The Court observes that the applicant had been deprived of his liberty by virtue of the Münster Regional Court ’ s judgment of 17 September 1982 ordering his placement in a psychiatric hospital for an unlimited duration. H is detention could thus fall under Article 5 § 1 (a) as being detention “after conviction” by a “competent court”, and/or under Article 5 § 1 (e) as constituting detention of a person of “unsound mind” . The relevant provisions read 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; ... ”

26. In view of the fact that the applicant ’ s detention is primarily based on a finding of diminished responsibility because of a mental disorder and thus a state of “unsound mind” by the domestic courts – a finding that is contested by the applicant – the Court considers it appropriate to examine the complaint under Article 5 § 1 (e) (see X v. the United Kingdom , 5 November 1981, § 39, Series A no. 46) .

27. The Court reiterates that in o rder to comply with Article 5 § 1, the detention in question must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to the national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty be consist ent with the purpose of Article 5, namely to protect individuals from arbitrariness. Furthermore, 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 protect the individual or the public interest , which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with the national law; it must also be necessary in the circumstances ( see Stanev v. Bulgaria [GC], no. 36760/06, § 143, 17 January 2012, with further references).

28. As regards the deprivation of liberty of the mentally disordered persons , an individual cannot be deprived of his liberty for being of “unsound mind” in the sense of Article 5 § 1 (e) unless the following minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; and thirdly, the validity of continued confinement depends upon the persistence of such a disorder ( see Stanev , cited above, § 145, with further references , and Hutchison Reid v. t he United Kingdom , no. 50272/99, § § 48- 49, ECHR 2003-IV ).

29. In order to justify detention, the fact that a person is “of unsound mind” must be established conclusively, except in case of emergency. To this end an objective medical report must demonstrate to the competent national authority the existence of genuine mental disturbance whose nature or extent is such as to justify such deprivation of liberty, which cannot be extended unless the mental disturbance continues. In this context the Court reiterates that it is in the first place for the national authorities to evaluate the evidence adduced before them in a given case and in particular, to assess the probative value of expert reports (compare Ruiz Rivera v. Switzerland , no. 8300/06, § 59, 18 February 2014 , with further references; Vogt v. Switzerland (dec.), no. 45553/06, 3 June 2014 ) . Its task is to review under the Convention the decisions of those authorities ( Luberti v. Italy , 23 February 1984, § 27 , Series A no. 75 ; Ťupa v. the Czech Republic , no. 39822/07 , § 49 , 26 May 2011 ) . F inally, continuation decisions must be based on recent medical experts ’ opinions ( Ruiz Rivera , cited above, § 60; Vogt , cited above; see also Magalhães Pereira v. Portugal , no. 44872/98, § 49 , ECHR 2002 ‑ I ).

30. In the present case t he Court notes that the Münster Regional Court, in its decision of 17 September 1982 , ordered the applicant ’ s initial placement in a psychiatric hospital after consult ing an external expert who found that the applicant suffered from a psychopathic personality disorder with an increased sex drive, lack of willpower and diminished responsibility, within the meaning of Article 21 of the Criminal Code (see Relevant domestic law above).

31. When examining whether the applicant ’ s disorder was of a kind or degree warranting compulsory confinement , in the context of the regular review of the applicant ’ s continued detention in accordance with Article 67e of the Criminal Code , the domestic courts considered various statements by the attending doctors , which had been made regularly over the period of the applicant ’ s confinement , as well as the opinions obtained by different external psychiatric experts . They relied in particular on the external expert ’ s opinion of 6 December 2010, which dated six months at the time of the Regional Court ’ s revised decision and nine months at the time of the Court of Appeal ’ s decision , and on the statement of the treating psyc hiatrist ’ s and psychologist ’ s at the Lippstadt Psychiatric Hospital . They further took into account the applicant ’ s conduct and submissions during the oral hearing and his lawyer ’ s statements.

32. On the basis of the experts ’ assessment , the domestic courts in their decisions on the review of the applicant ’ s detention in the proceedings at issue considered it established that he was suffering from a combined personality disorder with histrionic, narcissistic and antisocial aspects and that for the time being he had not made sufficient progress with his therapy. They held that the applicant still posed a danger to the general public , given the lack of any self-analysis in relation to his motives for the crimes and lack of empathy with the victims, which made a reliable legal prognosis impossible. They concluded that a s a result , there remained a risk that the applicant , if released on probation, would commit unlawful acts similar to those that had been the reason for his confinement .

33. The Court finds that these considerations were not immaterial to the question of the applicant ’ s dangerousness. It also observes that, contrary to his submissions, the experts and the domestic courts took into account the developments following his conviction in 198 2 , as well as the relevant information available at the time of giving their opinions and decisions within the scope of the consecutive reviews of the applicant ’ s detention.

34. The Court therefore finds that the existence of a true mental disorder of a kind and degree warranting the applicant ’ s confinement for the protection of the public was established by the domestic courts on the basis of objective and sufficiently recent medical experts ’ opinions . It further notes that the domestic courts, in the course of the periodic reviews prescribed by domestic law and in particular in the proceedings at issue, have re-examined the need for the applicant ’ s ongoing detention. Contrary to the applicant ’ s allegations, the expert opinions and resulting prognoses by the domestic courts were not exclusively based on his denial of the crimes. They rather relied on the fact that because of the resulting lack of self ‑ analysis in relation to the acts of which he had been found guilty, there was nothing to suggest that his personality and capacity to deal with his sexual deviation and aggressiveness had changed. This demonstrated that the validity of his continued confinement in a psychiatric hospital depended on the persistence of his mental disorder (see, mutatis mutandis , Winterwerp v. t he Netherlands , 24 October 1979, § 39, Series A no. 33, and Shtukaturov v. Russia , no. 44009/05, § 114, 27 March 2008).

35. The Court further finds that there is nothing to demonstrate that the Regional Court ’ s decision of 10 June 2011 ordering the applicant ’ s continued detention was not in keepin g with the purpose of Article 5 § 1 of protecting him from arbitrariness. T he domestic courts paid attention to the considerable length of time which the applicant had been confined, then twenty-nine years . In particular, t he Regional Court came to the conclusion that without effective medical treatment in the controlled environment of a hospital there was a risk that he would reoffend and that he thus still posed a threat to society, warranting the continuation of his detention. It consequently considered that other, less severe, measures than the applicant ’ s detention were insufficient to ensure public safety and that his confinement was necessary in the circumstances (see, mutatis mutandis , Varbanov v. Bulgaria , no. 31365/96, § 46, ECHR 2000 ‑ X).

36. In view of the above considerations, the Court, while noting that the proportionality of a continuing placement in a psychiatric hospital should be subject to particular scrutiny the longer the detention lasts (see Frank v. Germany (dec.), no. 32705/06, 28 September 2010, and Graf v. Germany (dec.), no. 53783/09, 18 October 2011), is of the opinion that there is nothing to establish that at the time of the proceedings at issue the domestic courts have not struck a fair balance between the applicant ’ s interest to be released and the safety interest of the public, or that the decisions disclosed any sign of arbitrariness.

37. Consequently, the applicant ’ s deprivation of liberty was justified under Article 5 § 1 (e) of the Convention. Having reached that conclusion, the Court does not find it necessary to examine whether sub-paragraph (a) also applied in the instant case (compare Puttrus v. Germany (dec.), no. 1241/06, 24 March 2009 ; Klouten cited above, § 48).

38. The Court therefore holds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. R emainder of the applicant ’ s complaints

39. The applicant fu rther complained under Articles 6 §§ 1, 2, 3 ( d) and ( e) o f the Convention that the court proceedings in relation to his confinement and the annual reviews of his detention had been unfair. He also maintained that his detention and its conditions amounted to degrading tr eatment in violation of Article 3 of the Convention. Relying on Article 7 , Article 1 of Protocol 6 and Articles 1, 2, and 3 of Protocol 13 to the Convention , the applicant lastly claimed that his treatment by the national authorities, the proceedings before the domestic courts, the arbitrary decisions given by the latter in relation to his detention , as well as his detention conditions had been discriminatory and infringed his right to freedom of thought.

40. The Court has examined the applicant ’ s complaints as submitted by him. However, having regard to all material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

41. It follows that this part of the application must equally be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President