Communicated on 8 February 2021 Published on 1 March 2021

FOURTH SECTION

Application no. 10425/19 P.W. against Austria lodged on 14 February 2019

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s placement in an institution for mentally ill offenders. On 8 August 2017 the Linz Regional Court ( Landesgericht ) found that the applicant, who is schizophrenic, had committed the crime of attempted resistance against the police. During the proceedings, expert opinions by three different doctors were obtained to assess her mental state at the time of the events and her dangerousness, which all came to different conclusions. The Regional Court followed the latest expert opinion by Dr A.K. and found that the applicant could not be held criminally liable for her actions, and that it was highly likely that she would commit further offences against life and limb with serious consequences, which made a placement in an institution for mentally ill criminal offenders necessary.

In her appeal, the applicant filed a motion to obtain a further medical expert opinion from a different expert. On 6 August 2018 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant ’ s motion and the appeal after obtaining a supplementary opinion from Dr A.K.

The Supreme Court ( Oberster Gerichtshof ) rejected the applicant ’ s plea for nullity on 27 August 2018. The applicant ’ s application to the Constitutional Court to review the relevant legislative acts was rejected due to lack of prospects of success on 6 March 2018.

Under Article 5 § 1 of the Convention the applicant complains about the fact that she has been placed in an institution for mentally ill offenders, arguing that the placement had not been necessary or proportionate.

She further complains under Article 5 §§ 1 and 4 in conjunction with Article 6 of the Convention that the national courts should have consulted a further medical expert.

Moreover, the applicant complains in substance under Article 5 § 1 read in conjunction with Article 14 of the Convention that under Austrian law it would not have been an offence justifying the placement in an institution, if she had slapped someone who was not a State official.

For the relevant domestic law, see the recently communicated case of Gaggl v. Austria , no. 63950/19.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention?

In particular, did the deprivation of liberty fall within paragraph (e) of this provision and was it necessary having regard to the applicant ’ s dangerousness?

Has Article 127 § 3 of the Code of Criminal Procedure been complied with in the applicant ’ s case? Have the three psychiatric expert opinions contradicted each other in a way which could not be dissolved by the questioning of the experts and would have made the commissioning of a decisive expert opinion ( Obergutachten ) necessary?

2. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? Has Article 127 § 3 of the Code of Criminal Procedure been complied with in the applicant ’ s case? Did the three psychiatric expert opinions contradict each other in a way which could not be dissolved by the questioning of the experts and would have made the commissioning of a decisive expert opinion ( Obergutachten ) necessary?

3. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention, read in conjunction with Article 5?

Having regard to other mentally ill offenders, has the applicant as a mentally ill offender been subjected to a difference in treatment based on the Criminal Code?

If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?