FIFTH SECTION

D ECISION

AS TO THE ADMISSIBILITY OF

Applicat ion no. 38366/04 by Alexander GÖ BEL against Germany

The European Court of Human Rights (Fifth Section), sitting on 5 February 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa - Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego ,

Mrs R. Jaeger, judges and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 10 August 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applic ant, Mr Alexander Göbel, is a German national who was born in 1970 and has been placed in a psychiatric clinic ( Schloß Werdeck ) in Straubing.

A. The circumstances of the case

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

The applicant has been convicted eleven times in the period between 1985 and 1994, inter alia of fraud in thirty-eight cases (judgment of the Bad Kissingen District Court of 12 February 1991) and in sixty cases (judgment of the Stuttgart Regional Court of 7 July 1994). On the latter occasion, he had been sentenced to two years ’ imprisonment.

On 13 March 2001, the Schweinfurt Regional Court convicted the applicant of fraud in nineteen cases and sentenced him to four years ’ imprisonment. The Schweinfurt Regional Court stressed that the damage which the applicant had caused with his offences amounted to around 80.000 DEM. After having considered an expert opinion by a psychiatrist, the Schweinfurt Regional Court ordered the applicant ’ s placement in a psychiatric hospital because of his diminished culpability ( eingeschränkte Schuldfähigkeit ). According to the expert opinion, the applicant suffered from a severe personality disorder in combination with diminished intelligence. The numerous cases of fraud committed by the applicant were a direct consequence of that personality disorder. The disorder had also been noted in other examinations of the applicant in connection with previous criminal proceedings. The expert opinion stressed that the applicant had built his own dreamworld in which he saw himself as a very wealthy and smart businessman and which was carefully protected from outside social contacts. Because of his diminished intellectual capacity, the applicant lacked the capacity to estimate the consequences of his behaviour. The expert opinion concluded that there was a high danger of recidivism. The Schweinfurt Regional Court agreed with this conclusion, given that the lengthy period of imprisonment had not deterred the applicant from committing the above frauds. On 20 November 2002, the Schweinfurt Regional Court ordered the continuation of the placement.

I. The decisions during the period 2003-2004

On 20 November 2003, the Schweinfurt Regional Court again ordered the continuation of the applicant ’ s placement in the hospital and scheduled the next review date for 19 November 2004. The court found that it could not be expected that the applicant would not commit any further offences and concluded that the remainder of the sentence could not be suspended on probation. The Schweinfurt Regional Court heard the applicant in the presence of his therapist and obtained a statement by the treating doctors of the psychiatric clinic. That statement was explained and discussed during the court hearing. According to the statement, collaboration with the applicant was markedly difficult. There was no sign of understanding of his disorder or a motivation for improvement on the part of the applicant. On the other hand, the applicant sought to live out his need for recognition through numerous legal proceedings, denunciations of clinic staff and disciplinary complaints. For a period of six months, the therapist had tried to increase trust in order to enable the applicant to settle his disputes without recourse to legal means. As the applicant increasingly adopted realistic views, the treatment showed first signs of success. An essential change in the applicant ’ s personality could however not be noted. The Schweinfurt Regional Court , after having heard the applicant, agreed with the clinic ’ s statement and found that the applicant ’ s situation, in particular his need for recognition, had not changed. As the impression which the court obtained from hearing the applicant matched exactly the clinic ’ s statement, the court saw no need to order an expert opinion by an outside expert.

On 2 February 2004, the Bamberg Court of Appeal dismissed the applicant ’ s appeal against the decision of the Schweinfurt Regional Court of 20 November 2003. It found that it had not been necessary to obtain the opinion of an independent expert as the convincing expert opinion of the clinic doctors clearly indicated that a suspension could not be accounted for. The court agreed with the reasoning of the Schweinfurt Regional Court that a positive change in the applicant ’ s personality could not be observed. On the contrary, there existed the risk that the applicant, left at large, would commit further offences in the future which demanded the execution of the placement and continuing treatment. The Bamberg Court of Appeal noted that the applicant had announced the submission of an expert opinion ( Privatgutachten ) which had not been introduced in time.

On 5 October 2004 , the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint. It reasoned that the ordinary courts had sufficiently taken into account the applicant ’ s right to liberty. The courts had considered an expert opinion which at the time had not been older than three years together with a statement by the hospital. The latter document had not indicated that the applicant had responded to the treatment. Hence the courts had not been required to order a new expert opinion by an independent expert. It could not be objected to from a constitutional point of view that the courts had made a prognosis which was unfavourable to the applicant and that they did not consider the suspension of the applicant ’ s placement. On the contrary, the decisions were reasonable given the number of frauds committed by the applicant who had caused considerable damage and the lack of success in treating the applicant ’ s personality disorder which had abetted those offences.

The applicant was represented by legal counsel in the above proceedings.

II. Further developments regarding the applicant ’ s placement

According to the applicant, the continuation of his placement was ordered on an annual basis in the following years, each time allegedly without having considered the opinion of an independent expert.

B. Rele vant domestic law

Relevant provisions of the German Criminal Code ( Strafgesetzbuch )

Measures of reform and prevention are:

1. place ment in a psychiatric hospital; ( ... )

A measure of reform and prevention may not be ordered when it is disproportionate to the significance of the acts committed by, or expected to be committed by the perpetrator, as well as to the degree of danger he poses.

Section 63 Placement in a Psychiatric Hospital

If someone committed an unlawful act and at the time lacked capacity to be adjudged guilty (Section 20) or was in a state of diminished capacity (Section 21), the court shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator and his act reveals that, as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public.

(1) If placement in an institution pursuant to Sections 63 and 64 is ordered collaterally to imprisonment, then the measure shall be executed before the punishment.

(...)

(5) If the measure is executed before the punishment, then the court may suspend the execution of the remainder of punishment and grant probation under the provisions of Section 57 subsection (1), sent. 1, no. 2, if half of the punishment has been completed. If the remainder of punishment is not suspended, the execution of the measure shall continue; the court may nevertheless order the execution of the punishment if circumstances relating to the convicted person make it seem advisable.

(2) If no maximum term has been provided or the term has not yet expired, then the court shall suspend the further execution of the placement and grant probation if it can be expected that the person under placement will not commit any more unlawful acts if released from execution of the measure. Supervision of conduct shall commence with the suspension.

(1) The court may review at any time whether the further execution of the placement should be suspended and probation granted. It shall make this review before the expiration of specified terms.

(2) With respect to the various placements, these terms shall be: (...) one year, if in a psychiatric hospital;

COMPLAINTS

The applicant complained under Article s 5 and 6 of the Convention about continuing placement in a psychiatric clinic by order of the Schweinfurt Regional Court of 20 November 2003 and the subsequent decisions confirming that order .

THE LAW

1. The applicant complained under Article 5 of the Convention about the decision of the Schweinfurt Regional Court of 20 November 2003 to continue the applicant ’ s placement in a psychiatric clinic and the subsequent court decisions confirming it . Article 5 provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...

(e) the lawful detention of persons ... of unsound mind ...”

The applicant complained that his placement in a psychiatric clinic because of his convictions for fraud did not meet the requirements embodied in the words “lawful detention of persons of unsound mind”. He submitted that the courts should have obtained an opinion by an independent expert in order to gather all available information about his state of health. The applicant states that it was likely that an independent expert would have come to a different conclusion regarding his criminal capacity. He submits an expert opinion of June 2005 in which the expert concludes that there was a high chance that he would commit further criminal offences, but that his culpability was not diminished. The applicant maintained that the continuing placement was disproportionate, especially because it lasted as to date.

The Court recalls that Article 5 § 1 of the Convention contains a list of permissible grounds of deprivation of liberty that is exhaustive. However, the applicability of one ground does not necessarily preclude that of another; a detention may, depending on the circumstances, be justified under more than one sub-paragraph (see Eriksen v. Norway , judgment of 27 May 1997, Reports 1997-III, pp. 861–62, § 76).

The Court notes that in the instant case the applicant was convicted of fraud and sentenced to four years ’ imprisonment by the Schweinfurt Regional Court on 13 March 2001. Accordingly, the detention of the applicant during the period under consideration falls within Article 5 § 1 (a) of the Convention as it resulted from a “conviction” by a “competent court”. Since the applicant was placed in a psychiatric institution by order of the Schweinfurt Regional Court of 13 March 2001, the applicant ’ s detention also falls within the ambit of Article 5 § 1 (e) of the Convention.

Against this background, it must be established whether the detention of the applicant during the period under consideration was “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 of the Convention. The Court recalls that the Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof; but it requires in addition that any deprivation of liberty should be in conformity with the purpose of Article 5 which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, among many other authorities, Erkalo v. the Netherlands , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, § 52; Johnson v. the United Kingdom , judgment of 24 October 1997, Reports 1997-VII, § 60).

As regards conformity with domestic law, the Court reiterates that the term “lawful” covers procedural and substantive aspects of national law, overlapping to a certain extent with the general requirement in Article 5 § 1 to observe a “procedure prescribed by law” ( see, inter alia , Winterwerp v. the Netherlands , judgment of 26 September 1979, Series A no. 33, p. 17, § 39; Herz v. Germany , no. 44672/98, § 43 , 12 June 2003 ).

The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by the national courts and that it is in the first place for the national authorities, notably the courts, to interpret national law (see, inter alia , Epple v. Germany , no. 77909/01, § 38 , 24 March 2005 ; Morsink v. the Netherlands , no. 48865/99, § 63 , 11 May 2004 ) . However, the Court is called upon to examine whether the effects of such an interpretation are compatible with the Convention (see, inter alia , Storck v. Germany , no. 61603/00, § 93 , ECHR 2005 ‑ ...; Platakou v. Greece , no. 38460/97, § 37, ECHR 2001-I). Similar considerations apply to the evaluation of the evidence adduced before the national authorities in a particular case (see , mutatis mutandis , Winterwerp v. the Netherlands , cited above, § 40, the Handyside judgment of 7 December 1976, Series A no. 24, pp. 22 and 23, §§ 48 and 50).

In the instant case, the continuation of the placement in a psychiatric hospital by the Schweinfurt Regional Court of 23 November 2003 based on section 67e in conjunction with section 63 of the Criminal Code. A ccording to the latter provision, the domestic court s shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator , who lacked capacity to be adjudged guilty or was in a state of diminished capacity at the time when he or she committed the act, reveals that, as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public .

The Court notes that the medical evidence submitted to the courts indicated the applicant ’ s diminished culpability which was due to a severe personality disorder. The Schweinfurt Regional Court obtained a statement by the clinic which found that there was no sign of understanding of his disorder or a motivation for improvement on the applicant ’ s part. After having heard the applicant, the Schweinfurt Regional Court itself concluded an essential change in the applicant ’ s personality could not be detected. On appeal, the Bamberg Court Appeal found that there was a high danger of recidivism.

Moreover, the Court notes that the Schweinfurt Regional Court ’ s decision of 23 November 2003 was taken around two and a half years after the applicant was sentenced to four years ’ imprisonment and his detention in a psychiatric hospital ordered. The question whether , in the event of offences not involving violence, the courts ’ findings that the applicant ’ s severe personality disorder had not impr oved and that there was still a high risk of recidivism , might justify his placement beyond the term of his sentence does therefore not arise in the present context.

The Court further notes the applicant ’ s criticism that no expert opinion by an independent expert was obtained. However, the Schweinfurt Regional Court did not consider it necessary to obtain such an expert opinion, given that its own impression of the applicant matched with the clinic ’ s statement and the expert opinion by an independent expert which had been obtained during the criminal trial in 2001.

Moreover, the applicant had the possibility to submit an expert opinion ( Privatgutachten ), which he however failed to submit in time even though he had announced it in the appeal proceedings before the Bamberg Court of Appeal. T he Court has therefore no reason to doubt the objectivity and reliability of the medical evidence on the basis of which the German courts have authorised the continuation of his detention as a person of unsound mind. Neither is there any indication that the contested deprivation of liberty was effected for a wrongful purpose. In the light of the numerous cases of fraud committed by the applicant (nineteen instances which were examined by the Schweinfurt Regional Court, but also ninety-eight instances for which the applicant had been convicted of in the past) and the amount of damage he caused (around 80.000 DEM), the German courts ’ assessment that it was very likely that the applicant would commit further offences does not appear unreasonable. The decision of 20 November 2003 to order the continuation of his placement and the subsequent decisions confirming it cannot be seen as disproportionate.

The Court accordingly concludes that the order to continue the applicant ’ s confinement in 2003 was lawful for the purposes of Article 5 § 1 (a) and (e). Therefore, this part of the application is manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

2. T he applicant further complained that the domestic court decisions violated Articl e 6 § 1 of the Convention which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Even assuming the applicability of Article 6 § 1, t here is no indication of unfairness in the German courts ’ decisions and hence no appearance of a vio lation of the applicant ’ s right to a fair hearing under the Convention.

Therefore, this part of the application is likewise manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The Court notes that, as far as the applicant submitted that the continuation of his placement lasted as to date, he did not lodge any remedies against the annual decisions to continue his placement since 2004. In this respect, he failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

For these re asons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President