FIFTH SECTION

DECISION

Application no . 48057/10 Norbert KLOUTEN against Germany

The European Court of Human Rights (Fifth Section), sitting on 19 March 2013 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Ann Power-Forde, André Potocki , Paul Lemmens , Helena Jäderblom , judges, and Claudia Westerdiek , SectionRegistrar ,

Having regard to the above application lodged on 8 July 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Norbert Klouten , is a German national, who was born in 1950 and is currently placed in a residential home for persons with mental disorders in Krefeld .

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. In November 2001 the applicant, who had shown signs of a personality disorder in the past, was provisionally placed in the psychiatric department of the Düsseldorf state hospital ( Landeskrankenhaus ) after having verbally abused and insulted a passerby in the street.

4. In the course of the subsequent court proceedings before the Düsseldorf Regional Court it was established that on 22 October 2001 the applicant had insulted and spat at the said passerby considering that the latter had blocked his passage on a footway. The incident had been preceded by a more serious assault on 25 August 2000 when the applicant who had felt harassed by a cyclist in the street, had attacked the latter, first damaged her bike and then hit her on the head with a bludgeon causing the victim, who temporally lost consciousness as a result of the blow, a lesion on the head and a hematoma over one eye.

5. In its judgment of 22 November 2002 the Regional Court, relying in particular on a confession by the applicant and corroborating witness statements, held that when attacking the cyclist in 2000 the applicant had committed the offence of causing bodily harm by dangerous means ( gefährliche Körperverletzung ) whereas his assault in 2001 constituted the offence of libel ( Beleidigung ). However, referring to an opinion obtained on 26 July 2002 by the head physician ( Chefarzt ) of the relevant department of the Düsseldorf psychiatric hospital who had examined the applicant and analysed his medical history, the Regional Court considered that the applicant had committed the offences without criminal responsibility.

6. The Regional Court noted that the applicant had been repeatedly admitted on a provisional basis to psychiatric hospitals in the past. For instance, on two occasions in 1979 and 1980 he had been confined in a psychiatric hospital in Neuss at his parent ’ s initiative for a period of three months in each case. Thereafter he had spent most of the time without regular occupation and permanent residence and, prior to his provisional placement in the Düsseldorf hospital in November 2001, he had lived in the open with a tent-like construction as shelter. His criminal record since 1979 showed no less than 38 entries, mainly relating to minor offences such as using public transport without paying the fare ( Erschleichen von Leistungen ). All criminal proceedings instituted against the applicant in this respect had been discontinued on the ground that he could not be held criminally responsible for the offences. In August 2000 following his arrest in connection with the aforementioned attack against the cyclist, he had been provisionally placed and examined in a psychiatric hospital in Neuss for a period of several weeks in accordance with the provisions of the German law pertaining to measures for assisting and protecting people suffering from mental diseases ( Gesetz über Hilfen und Schutzmaßnahmen bei psychischen Krankheiten – PsychKG ). The attending doctors had diagnosed the applicant with a chronic schizophrenic psychosis that at the time of the incident had resulted in an acute paranoid pathology. Their diagnosis had been confirmed on the occasion of the applicant ’ s subsequent placement in the Düsseldorf hospit al following the incident on 22 October 2001 where he had been examined by the same expert who had rendered the opinion of 26 July 2002 in the instant proceedings.

7. This expert specified that the applicant was suffering from a schizophrenic psychosis that had started to develop as long as the late seventies and had over the years become chronic. His disease was characterised by a permanent feeling of being harassed which resulted in inappropriate aggressive behaviour in situations the applicant perceived as threatening. The expert considered that when committing the criminal offences in 2000 and 2001 the applicant had been incapable of understanding the wrongfulness of his act or of acting in accordance with such understanding due to his illness and had thus acted without guilt in the meaning of Article 20 of the Criminal Code.

8. In accordance with the findings of the expert, the Regional Court found that the applicant presented a danger to society, since there was a high risk that he would commit further serious unlawful acts in the future and therefore ordered his placement in a forensic psychiatric clinic (Articles 20 and 63 of the Criminal Code, see Relevant domestic law below). The Regional Court specified that since the applicant did not show any insight into his illness his placement in the psychiatric hospital was the only means to ensure that the medication required for a successful therapy could be administered regularly. For this reason his continued detention was necessary and its suspension could, for the time being, not be justified. However, as suggested by the expert, relaxations of the applicant ’ s detention ( Lockerungen der Maßregel ) were to be considered in due course and in view of the applicant ’ s pronounced desire for independence and freedom, as evidenced by his past way of life, would constitute a further motivation for him to proceed with his therapy.

2. Previous reviews of the applicant ’ s placement in a psychiatric hospital

9. Within the scope of the annual reviews of the applicant ’ s placement in a psychiatric hospital (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below) the competent Düsseldorf Regional Court consistently ordered that the applicant ’ s confinement in a psychiatric hospital be continued.

10. For instance, in a decision dated 8 November 2006 the Regional Court, sitting in a chamber formation with three judges, held that a suspension of the applicant ’ s detention could not yet be justified since there remained a risk that he would commit further offences if released. The court noted that the applicant still did not recognise that he was suffering from paranoid schizophrenia. While he was well integrated in the hospital environment and participated in therapeutic measures he still showed short ‑ tempered and aggressive reactions of a paranoid nature. He had further objected to the attending doctors ’ advice to increase the dosage of his medication and had announced that he would not continue to consult a psychiatrist following a possible release. In its assessment the Regional Court relied in particular on an external medical expert opinion dated 7 December 2005 and a statement by the attending doctors at the Düssel dorf psychiatric hospital of 23 June 2006. It further referred to the applicant ’ s written observations and his statements made on the occasion of his hearing by a judge of the chamber formation. The Regional Court indicated that once the applicant would begin to confront his illness and agree to have his medication adjusted his transfer to supervised accommodation facilities ( betreute Wohngruppe ) outside hospital could be envisaged.

11. By a decision of 11 January 2007 the Düsseldorf Court of Appeal, endorsing the Regional Court ’ s reasoning, dismissed the applicant ’ s appeal and held that his continued confinement in hospital was still proportionate. The Court of Appeal pointed out that even though the applicant had only been heard by one judge of the chamber reviewing his detention and not by the full chamber formation as required under the domestic courts ’ well ‑ established case-law, such procedural shortcoming did not raise an issue in the instant case. In view of the fact that the relevant medical expert opinions and statements of the attending doctors had considered that the applicant ’ s confinement to a psychiatric hospital would still be necessary for a longer period the Regional Court could exceptionally derogate from hearing the applicant by the entire chamber formation.

12. By a decision of 26 April 2007 the Federal Constitutional Court (file no. 2 BvR 199/07), considering that the decisions of the Regional Court and the Court of Appeal did not disclose any sign of arbitrariness and did not raise any issue under constitutional law, refused to admit the applicant ’ s constitutional complaint.

13. On 4 June 2007 the applicant lodged an application (no. 25714/07) with this Court alleging that his continued placement in a psychiatric hospital was not justified. He further alleged that his treatment and medication in the psychiatric hospital amounted to degrading treatment in violation of Article 3 of the Convention. Invoking Article 5 § 2 and 6 of the Convention he complained that the proceedings in relation to his placement in 2002 and the subsequent review proceedings had been unfair. Relying on Article 9 read in conjunction with Ar ticle 14 of the Convention he finally contended that the proceedings before the domestic courts, their arbitrary decisions in relation to his detention as well as his detention conditions had been discriminatory and infringed his right to freedom of thought. The application was declared inadmissible by the Court sitting in a single-judge f ormation by a decision dated 18 April 2012.

3. The proceedings at issue

(a) The first set of proceedings before the Düsseldorf Regional Court and the Düsseldorf Court of Appeal

14. On 9 November 2007 the Düsseldorf Regional Court again ordered that the applicant ’ s placement in hospital be continued.

15. Relying on written statements by the Düsseldorf psychiatric hospital and the prosecution authorities as well as the external expert opinion of 7 December 2005 and having heard the applicant through the intermediary of one judge of the chamber on 30 October 2007, the court found it established that the applicant ’ s criminal prognosis was still negative. The applicant still did not show any insight into his illness and obstinately refused to consider any proposals by the attending doctors to adjust his medication as required for a long-term therapy of his disorder. He further had repeatedly abused of relaxations of his detention ( Vollzugslockerungen ) for unauthorised excursions outside the hospital premises. It was to be expected that outside the monitored hospital environment the applicant would neglect his medical and therapeutic treatment and that as a consequence his aggressiveness would no longer be limited to verbal abuse as evidenced in his relations with the attending doctors, but would result in acts of physical violence. In view of these findings the Regional Court considered that there remained a risk that the applicant would reoffend if released on probation and that consequently his continued confinement in hospital was necessary.

16. On 3 March 2008 the Düsseldorf Court of Appeal, following an appeal by the applicant, quashed the Regional Court ’ s decision on the ground that the underlying proceedings showed manifest procedural deficiencies and remitted the case to the Regional Court for renewed consideration.

17. The Court of Appeal pointed out that the applicant had again only been heard by one judge of the chamber and not by its full formation of three judges contrary to the requirements developed in the established case ‑ law. Moreover, pursuant to an amendment to the Code of Criminal Procedure th at had entered into force on 20 July 2007, the domestic courts were required to obtain a new opinion by an external psychiatric expert after every five-year period of a convict ’ s committal to hospital when reviewing whether his placement was still proportionate. The Court of Appeal noted that at the time of the Regional Court ’ s impugned decision of 9 November 2007, the applicant had been detained for almost six years. The Regional Court would thus have been obliged to commission a new external expert opinion within the scope of the review proceedings in 2007.

18. The Court of Appeal indicated in this respect that when reassessing the proportionality of the applicant ’ s detention on the basis of such new expert opinion, the Regional Court would not only have to examine whether further unlawful acts were to be expected from the applicant once released but also whether potential future offences were of a gravity and posed a danger to public safety that required his continued detention. The Court of Appeal specified in this context that neither the Regional Court ’ s decision of 9 November 2 007 nor the expert opinion of 7 December 2005 stating that the applicant showed “aggressive eruptive” behaviour, gave an indication what kind of aggressive behaviour was to be expected from the applicant following a possible release and whether he was dangerous to a degree that justified his continued placement. A risk that the applicant would commit serious offences once released could also not be deduced from his conduct during detention or from the offences that had been at the origin of his committal and which were of minor gravity compared to other cases resulting in a convict ’ s placement in a psychiatric hospital. Furthermore, while it was true that the applicant ’ s criminal record for the period from 1979 to 2000 showed 38 entries, only two of these entries, dating from 1992 and 1998 respectively, related to offences involving bodily harm of a certain seriousness whereas the majority referred to fare evasion for public transport.

(b) The psychiatric expert opinion of 2008

19. As a consequence of the Court of Appeal ’ s decision the Regional Court commissioned an external expert opinion by a medical director ( ärztlicher Direktor ) of the Dortmund psychiatric hospital. In his assessment of the applicant ’ s criminal prognosis the expert took into account the previously established psychiatric expert opinions on the applicant ’ s state of health as well as his medical file containing statements of the attending doctors on the applicant ’ s conduct in hospital and on the therapeutic measures implemented since his committal in 2001. Havi ng examined the applicant on 24 July 2008, the expert issued his opinion on 18 August 2008.

20. The expert found that, while the applicant did not show symptoms of the previously diagnosed chronic schizophrenic psychosis, he was nevertheless suffering from a schizotypal disorder ( schizotype Störung ) that had developed under the influence of repeated drug abuse in the past. The applicant further showed signs of a personality disorder ( kombinierte Persönlichkeitsstörung ) that was characterised by narcissistic and dissocial components. He was easy to provoke and to irritate and his threshold towards aggressive behaviour was low. In the course of his stay in hospital the applicant had on a few occasions shown aggressive and partly violent reactions towards fellow patients and members of hospital staff after being provoked or in situations where he had felt harassed. However, in none of these cases the applicant had used a weapon or other dangerous tool and there was nothing to establish that his aggressive behaviour had increased in frequency or intensity over the years.

21. In the expert ’ s view, it had to be expected that outside the hospital the applicant would commit offences similar to the ones that had been at the origin of his confinement. It was even likely that he would reoffend if verbally provoked or if under the influence of drugs. When examined by the expert the applicant had announced that he would return to his previous way of life once released and had indicated that he saw no need to continue his therapy. Further treatment and medication were however necessary with a view to minimising the risk of recidivism. For the time being the applicant ’ s release from hospital could therefore not be recommended. The expert specified in this context that his assessment was based on the assumption that the Regional Court would come to the conclusion that the offences to be expected from the applicant were so serious that the protection of the general public required the continuation of his placement.

(c) The second set of proceedings before the Regional Court and the Court of Appeal

22. On 11 March 2009 the Regional Court , sitting in a chamber formation with three judges, heard the applicant, the expert and a senior physician ( Oberarzt ) of the Düsseldorf psychiatric hospital.

By a decision of 25 March 2009 the Regional Court ordered that the applicant ’ s detention be suspended on proba tion in accordance with Article 67e § 2 of the Criminal Code (see Relevant domestic law below).

23. The Regional Court found that as opposed to schizophrenic psychoses that were characterised by a progressive course often resulting in acute psychotic bouts and accompanying aggressive behaviour, there was nothing to demonstrate that the applicant ’ s personality disorder carried similar risks. It argued that any unlawful acts to be expected of the applicant in the future were likely to be of minor gravity and constitute offences such as fare evasion when using public transport or minor cases of theft or physical injury. Considering the applicant ’ s past life and his conduct during his placement in hospital the court took the view that the applicant ’ s violent attack against the cyclist in 2000 constituted an isolated event. In view of the limited seriousness of the offences to be expected in case of recidivism, the continuation of the applicant ’ s confinement after more than six years of treatment in hospital was no longer proportionate.

24. The Regional Court conceded that in view of the remaining risk that the applicant, when confronted with situations of conflict similar to the ones that had led to the incidents in 2000 and 2001, might commit offences involving bodily harm, his detention could not yet be terminated but was to be suspended on probation. Consequently, the Regional Court ordered that during a probation period of five years the applicant would be subject to supervision ( Führungsaufsicht ) and would be required to follow the orders of his probation officer and choose his residence in consultation with the latter. During the probation period the applicant would further be obliged to refrain from consuming drugs or infringing the law. He would have to consult the attending doctors at the Düsseldorf psychiatric hospital every two weeks, follow their orders and take the prescribed medication.

25. On 14 April 2009 the applicant appealed the Regional Court ’ s decision and, inter alia , requested the court to order his unconditional release.

26. On 20 April 2009 the Düsseldorf public prosecutor also lodged an appeal against the Regional Court ’ s decision. In the public prosecutor ’ s opinion the risk of recidivism in the event of the applicant ’ s conditional release was not limited to minor offences. By contrast, it could be expected that once the applicant was confronted with the challenges of daily routine outside the monitored and familiar hospital environment, the risk of uncontrolled outbreaks of violence on his part would increase. Irrespective of the medical classification of the applicant ’ s personality disorder or the question whether the disease had progressed over the years, it was still common ground that due to his illness the applicant had committed the offences which had been at the origin of his detention without criminal responsibility and had not made any therapeutic progress in the course of his treatment in hospital.

27. By written submissions dated 29 April 2009 to the Düsseldorf Court of Appeal, the Düsseldorf Chief Public Prosecutor ( Generalstaatsanwalt ), endorsing the public prosecutor ’ s reasoning, moved that the Regional Court ’ s decision be quashed and the applicant ’ s confinement in the psychiatric hospital be continued. The Chief Public Prosecutor emphasised, that the applicant ’ s attack against the cyclist in 2000 had been qualified by the trial court as bodily harm inflicted by dangerous means, an offence that pursuant to Article 224 of the German Criminal Code was punishable by a prison sentence of between six months and ten years and could thus not be qualified as a minor offence.

28. On 19 May 2009 the Düsseldorf Court of Appeal dismissed the applicant ’ s appeal but quashed the Regional Court ’ s decision at the prosecution authorities ’ request and ordered that the applicant ’ s confinement in hospital be continued.

29. The Court of Appeal pointed out that pursuant to Article 67d of the Criminal Code a convict ’ s confinement in a psychiatric hospital was to be suspended on probation if it could be expected that the latter would not commit any further unlawful acts of a nature that would for their part justify his placement in hospital pursuant to Article 63 of the Criminal Code. Such positive prognosis was only possible in the event the court reviewing the convict ’ s detention was convinced that a risk of recidivism could be excluded in the long term.

30. Having regard in particular to the external expert ’ s opinion of 18 August 2008, the Court of Appeal took the view that in the instant case it remained doubtful whether the applicant would permanently refrain from committing serious unlawful acts following a possible release. On the occasion of the hearing before the Regional Court on 11 March 2009, the expert had pointed out that in view of the fact that the applicant was not inclined to continue taking the medication necessary for controlling his aggressive impulses once released from hospital there was a risk that his condition would deteriorate and result in acute violent outbreaks similar to the ones prior to his committal. The expert ’ s assessment had been shared by the senior physician of the Düsseldorf hospital who had also been heard on 11 March 2009.

31. The Court of Appeal therefore considered that s ince its previous decision of 3 March 2008 by which it had quashed the Regional Court ’ s decision of 9 November 2007 maintaining the applicant ’ s committal and had remitted the case to the latter, it had been established that without an effective medical treatment in the monitored environment of the hospital, the applicant still presented an identifiable and significant danger to society. In the Court of Appeal ’ s view the applicant ’ s release on probation subject to conditions and supervision as ordered by the Regional Court ’ s decision of 25 March 2009 did not provide a sufficient guarantee that the applicant would continue to take the necessary medication. It could thus not be considered as a less severe means to counter the danger the applicant still presented to society. By contrast, the applicant had explicitly opposed any conditions accompanying his release on probation and had requested his unconditional release in his appeal against the Regional Court ’ s decision. In view of these considerations the Court of Appeal, while recalling that t he longer a detention lasted the higher the standards for scrutiny as to whether its duration was still proportionate had to be, concluded that the applicant ’ s continued placement was still justified.

32. On 26 June 2009 the Court of Appeal rejected the applicant ’ s complaint about a violation of his right to be heard ( Anhörungsrüge ).

33. By a decision of 5 January 2010 (file no. 2 BvR 1518/09) the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint of 7 July 2009 without providing reasons.

4. Subsequent developments

34. Since April 2010 the applicant has been granted permanent leave ( Dauerbeurlaubung ) from the Düsseldorf psychiatric hospital and lives in assisted accommodation in a residential home for persons with mental disorders ( Wohnheim für psychisch kranke Menschen ) in Krefeld.

35. On the occasion of the annual reviews of the applicant ’ s detention in 2010 and 2011, the Regional Court , by decisions confirmed on appeal, again ruled that the applicant ’ s detention could not yet be suspended on probation. Fo r instance, by a decision of 28 June 2011, the Regional Court, having heard the applicant, the attending doctors at the Düsseldorf psychiatric hospital and the prosecution authorities, argued that while the applicant ’ s stay in assisted accommodation since 2010 had not given cause for complaints, it could not yet be determined with sufficient certainty whether he would not commit unlawful acts if released on probation. The applicant denied any therapeutic value of his treatment by the attending doctors and it was therefore doubtful whether he had progressed in his therapy. Furthermore, in view of previous unsuccessful attempts to grant the applicant leave from the hospital environment prior to his transfer to open facilities in 2010, it was necessary to further test whether his state of health could be stabilised in a way that would allow a positive criminal prognosis in the long term.

36. In its decision of 24 August 2011 rejecting the applicant ’ s related appeal, the Düsseldorf Court of Appeal specified that since in reality a risk of recidivism could never be entirely ruled out, the requirements to be fulfilled by a convict with a view to obtaining a positive criminal prognosis had to be realistic and not excessive. In the instant case, however, the opinion of the external expert of 2008 as well as the statements of the attending doctors and the applicant ’ s own submissions all demonstrated that there existed a concrete risk that the applicant would commit serious offences similar to the ones that had been at the origin of his placement in the event of his conditional release. The applicant was still suffering from a personality disorder and still lacked any self-analysis in relation to his disease. For this reason he still presented a danger to the public if not subjected to an effective treatment. It had first to be established whether by means of such treatment the applicant ’ s mental disorder which was probably of a chronic nature could be controlled so as to minimise the risk of recidivism. The applicant ’ s leave from hospital had not yet lasted long enough to allow a positive prognosis for him. The Court of Appeal therefore concluded that the continuation of the applicant ’ s confinement was not disproportionate and emphasised in this context that since his transfer to assisted accommodation facilities the placement order was de facto no longer executed and the applicant did basically lead a life in liberty.

37. The applicant refrained from pursuing his constitutional complaint lodged against the decisions of the domestic courts in the 2010 review proceedings after having been informed by a letter of the Federal Constitutional Court ’ s Registry ( Präsidialrat ) of 21 July 2010 that it was doubtful whether the complaint met the statutory admissibility criteria. He also did not obtain a formal decision by the Federal Constitutional Court in respect to the domestic courts ’ decision in the proceedings on the review of his detention in 2011.

B. Relevant domestic law

38. The German Criminal Code distinguishes between penalties ( Strafen ) and so-called correction and prevention measures ( Maßregeln der Besserung und Sicherung ) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant ’ s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted without or with diminished criminal responsibility. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to the danger they present (Article 62 of the Criminal Code).

39. Pursuant to Article 20 of the Criminal Code, a person who upon commission of a criminal offence is incapable of appreciating the wrongfulness of an act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality, acts without guilt.

40. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility pursuant to Article 20, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive assessment of the defendant 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.

41. Article 67d of the Criminal Code governs the duration of detention. If the court considers that following the commencement of detention in a psychiatric hospital the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate, it declares the measure terminated. The release shall automatically lead to the person being subjected to supervision ( Führungsaufsicht ). The court shall waive supervision if it can be expected that the person will not commit any further offences without it (Article 67d § 6).

42. Article 67e of the Criminal Code provides for the review of a person ’ s detention, inter alia , in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time ‑ limits (§ 1 of Article 67e). For a person detained in a psychiatric hospital, this time-limit is one year (§ 2 of Article 67e).

43. Article 463 § 4 of the Code of Criminal Procedure specifies that as part of its examinations pursuant to section 67e of the Criminal Code the court shall obtain the opinion of an expert after every five-year period of committal to a psychiatric hospital . The expert shall not, within the framework of such a committal, have been involved in the treatment of the person committed, nor shall he be working in the psychiatric hospital in which the person committed is located.

COMPLAINTS

44. Relying on Articles 5 § 1 a), 5 § 2 and 6 §§ 1, 3 c) and d), the applicant complained that his placement in a psychiatric hospital was not justified, that the court proceedings in relation to his placement and the annual reviews of his detention had been unfair and that he did not have a possibility to effectively defend himself. In particular, he had not been granted an opportunity to question the medical expert witnesses in the course of the proceedings or to comment on the opinions issued by them and on which the courts based their assessment of his state of health. He further alleged that his detention and its conditions amounted to degrading treatment in violation of Article 3 of t he Convention. Invoking Article 9 r ead in conjunction with Article 14 as well as Article 1 and 2 of Protocol 12 of the Convention he finally contended that his treatment by the national authorities, the proceedings before the domestic courts, the arbitrary decisions rendered by the latter in relation to his detention as well as his detention conditions were discriminatory and infringed his right to freedom of thought.

THE LAW

A. The complaint concerning the continued detention in a psychiatric hospital

45. The applicant relying, inter alia , on Article 5 § 1 (a) of the Convention complained that his continued detention in a psychiatric hospital was unlawful and arbitrary.

46. The Court notes at the outset that it already had the occasion to examine the applicant ’ s similar complaints in relation to the proceedings ordering his placement in the psychiatric hospital in 2002 and its continuation for the period up to the Federal Constitutional Court ’ s decision of 26 April 2007 (file no. 2 BvR 199/07) within the scope of his application no. 25714/07 which was declared inadmissible by the Court on 18 April 2012. The instant application concerns the subsequent proceedings on the review of the applicant ’ s detention, in particular the review proceedings in 2007 and the related appellate proceedings.

47. The Court observes that the applicant had been deprived of his liberty by virtue of the Düsseldorf Regional Court ’ s judgment of 22 November 2002 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” which 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; ...”

48. In view of the fact that the applicant ’ s detention is primarily based on a finding 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) . Accordingly, the Court does not find it necessary to examine whether sub ‑ paragraph (a) also applied in the instant case.

49. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to 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 should 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 safeguard the individual or 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 national law; it must also be necessary in the circumstances ( Stanev v. Bulgaria [GC], no. 36760/06, § 143, 17 January 2012, with further references).

50. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of “unsound mind”, in the sense of Article 5 § 1 (e), unless the following three 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; thirdly, the validity of continued confinement depends upon the persistence of such a disorder ( Stanev v. Bulgaria [GC], mentioned above, § 145, with further references).

1. The proceedings at issue

51. The Court notes that the Düsseldorf Regional Court , in its decision of 22 November 2002 , had ordered the applicant ’ s initial placement in a psychiatric hospital after having consulted the head physician ( Chefarzt ) of the relevant department of the Düsseldorf psychiatric hospital who had diagnosed the applicant as suffering from a schizophrenic psychosis that had developed over the years and had become chronic and who had confirmed that the conditions for the applicant ’ s committal pursuant to Article 63 of the Criminal Code were met. On the basis of the medical expert ’ s findings the Regional Court had concluded that the applicant presented a danger to society, since there was a high risk that he would commit further serious unlawful acts if released, which made his continued detention necessary and its possible suspension unjustified.

52. When examining whether the applicant ’ s disease was of a kind or degree warranting compulsory confinement on the occasion of the regular reviews of the applicant ’ s continued detention in accordance with Article 67e of the Criminal Code , the domestic courts made reference to the applicant ’ s demeanour and submissions when heard by the judges, the various statements of the attending doctors regularly established over the period of the applicant ’ s confinement as well as the external expert opinions obtained.

54. 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 the applicant was suffering from a schizotypal disorder combined with a personality disorder and that for the time being he had not made sufficient progress in his therapy. The Court observes in this connection that while the expert opinion obtained in 2008 did not uphold the initial diagnosis of schizophrenic psychosis but diagnosed a schizotypal disorder, it was nevertheless common ground among the experts and the attending doctors that the applicant was suffering from a pathological personality disorder. The domestic courts concluded that as a result there remained a risk that the applicant, if released on probation, would commit unlawful acts similar to the ones that had been at the origin of his committal.

55. 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 expert opinion. 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 , which demonstrates that the validity of his continued confinement in a psychiatric hospital depended on the persistence of his mental disorder (see, mutatis mutandis , Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33, and Shtukaturov v. Russia , no. 44009/05, § 114, 27 March 2008) .

56. The Court concludes that it has been reliably shown that the applicant was of unsound mind within the meaning of Article 5 § 1 (e).

57. The Court further holds that there is nothing to demonstrate that the Court of Appeal ’ s decision of 19 May 2009 ordering the applicant ’ s continued detention has not been in keeping with the purpose of Arti cle 5 § 1 of protecting him from arbitrariness. While having regard to the increasing length of the applicant ’ s detention and, relying in particular on the opinion of the external expert dated 18 August 2008 as supported by the attending doctors, the Court of Appeal came to the conclusion that without an effective medical treatment in the monitored environment of the hospital there was a risk that the applicant 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 safeguard public safety and that his confinement was necessary in the circumstances (see, mutatis mutandis , Varbanov v. Bulgaria , no. 31365/96, § 46, ECHR 2000 ‑ X).

58. The Court of Appeal ’ s finding is not inconsistent with its previous decision of 3 March 2008 by which it had quashed the Regional Court ’ s decision of 9 November 2007 confirming the continuation of the applicant ’ s confinement in a psychiatric hospital. The Court of Appeal had quashed the said decision and remitted the case to the Regional Court mainly because the latter had failed to obtain a new external expert opinion within the statutorily prescribed five-year time limit and had thus not disposed of a sufficiently reliable basis for establishing whether the applicant still presented a danger to the public that required his continued detention. It was precisely on this new external expert opinion obtained as a consequence and as supported by the attending doctors, that the domestic courts based their assessment of the applicant ’ s criminal prognosis in their subsequent decisions and which is referred to in the Court of Appeal ’ s decision of 19 May 2009 ordering the continuation of the applicant ’ s detention.

59. The Court observes in this context that by the said order the Court of Appeal overruled the Regional Court ’ s decision of 25 March 2009 in which the latter had held that in view of the comparatively minor gravity of offences to be expected from the applicant in the event of recidivism his confinement in hospital was no longer proportionate. However, the Regional Court had also emphasised in this decision that in view of the remaining risk that the applicant might commit offences involving bodily harm, the order of his detention could not yet be terminated but was to be suspended on probation subject to close monitoring and strict conditions in particular as regards the continuation of his medical treatment. In its dec ision of 19 May 2009 the Court of Appeal stressed in this respect that the applicant himself had announced that he would not continue taking his medication if released and had also opposed any conditions accompanying a possible release on probation within the scope of his appeal against the Regional Court ’ s decision of 25 March 2009. Based on these findings the Court of Appeal concluded that milder means than the applicant ’ s continued confinement in a psychiatric hospital, such as his release on probation, could not be envisaged. The Court finds that the reasons advanced by the Court of Appeal are not immaterial to the question as to whether the applicant ’ s continued detention was still proportionate in terms of its objective to protect public safety. The Court further observes that on the occasion of subsequent reviews of the applicant ’ s detention in 2010 and 2011 the Regional Court itself, contrary to its decision of 25 March 2009, considered that it was necessary to maintain the order of the applicant ’ s placement in hospital with a view to guaranteeing his effective treatment.

61. 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.

2. Subsequent proceedings

62. The Court further recalls that according to the applicant ’ s submissions he refrained from obtaining a formal decision by the Federal Constitutional Court with respect to his complaints regarding the review proceedings in 2010 and 2011. He did thus not exhaust the available domestic remedies as required by Article 35 § 1 of the Convention (see Ovtscharov v. Germany ( dec .), no. 74866/01, 17 June 2004). It follows that the applicant ’ s related complaints must be rejected in accordance with Article 35 § 4 of the Convention.

B. The remainder of the applicant ’ s complaints

63. The applicant further complained und er Articles 5 § 2 and 6 §§ 1, 3 c) and d) of the Convention that the court proceedings in relation to his placement and the annual reviews of his detention were unfair and that he did not have a possibility to effectively defend himself. He also maintained that his detention and its conditions amounted to degrading tr eatment in violation of Article 3 of the Convention. R elying on Article 9 r ead in conjunction with Article 14 as well as Article 1 and 2 of Protocol 12 of the Convention he finally contended that his treatment by the national authorities, the proceedings before the domestic courts, the arbitrary decisions rendered by the latter in relation to his detention as well as his detention conditions were discriminatory and infringed his right to freedom of thought.

64. The Court has examined the applicant ’ s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that, even assuming the exhaustion of domestic remedies, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

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

For these reasons, the Cou rt by a majority

Declares the application inadmissible.

Claudia Westerdiek Mark Villiger Registrar President