Communicated on 11 December 2020 Published on 11 January 2021

FOURTH SECTION

Application no. 37504/19 A against Austria lodged on 5 July 2019

STATEMENT OF FACTS

1 . The applicant, Mr A , was an Austrian national, who was detained in the Forensic Centre Asten (hereinafter, “the FCA”) at the Linz prison. On 30 July 2020 he committed suicide in this institution. His mother requested the Court to be granted leave to continue the application in his name. She is represented before the Court by Ms S. Vrbovszky, residing in Perchtolsdorf.

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

3 . On 15 October 2015 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ), sitting as an assize court, unanimously found that the applicant had killed his flatmate B on 4 March 2015 with a hammer through at least 15 blows on B ’ s head. The applicant had confessed to the facts. The court further held that, pursuant to Article 11 of the Criminal Code ( Strafgesetzbuch ), he could not be held criminally responsible because he committed the offence in a state of paranoid schizophrenia, for which he had not been treated to that date. The applicant did not appeal.

4 . The applicant was placed in an institution for mentally ill offenders pursuant to Article 21 § 1 of the Criminal Code, since it was found likely that otherwise he would commit further serious criminal offences because of his mental illness. The conclusions concerning his mental state were drawn on the basis of Dr K.D. ’ s psychiatric expert opinion of 8 April 2015, who had examined the applicant in person. Dr K.D. stated that the applicant had always rejected psychiatric treatment because of a lack of insight into his mental illness and that this caused a high risk of further equally violent behaviour.

5 . On 20 November 2015 the medical service at the Vienna-Josefstadt prison diagnosed the applicant with a combined personality disorder with narcissistic and dissocial personality traits, and confirmed the diagnosis of paranoid schizophrenia. He received psychiatric therapy and, despite an insufficient insight into his wrongdoing, he understood the need of adequate treatment.

6 . On 25 April 2016 the FCA, where the applicant was placed, submitted a statement to the Linz Regional Court (hereinafter, “the Regional Court”), which was the competent court to conduct the proceedings to review the necessity of continuing the applicant ’ s placement in the institution for mentally ill offenders (pursuant to Article 25 § 3 of the Criminal Code). It attested him a lack of insight into his mental illness and an average risk of reoffending if released, and noted a narcissistic component in his personality.

7 . On 18 August 2018 the FCA submitted another statement concerning the applicant to the Linz Regional Court. It stated that he suffered from a combined personality disorder with narcissistic and dissocial traits, as well as paranoid schizophrenia. The latter, however, was currently in remission, as the applicant regularly received an anti-psychotic drug. Medical compliance was given; however, he currently considered himself as “healed” and not dangerous anymore, which is why further work was needed on the acceptance of his mental illnesses. Moreover, realisation of his offence was lacking. In sum, a release could not be recommended, as the applicant needed further therapy and the danger emanating from him had not yet abated. The FCA observed that the applicant was quite demanding concerning a relaxation of his detention regime.

8 . On the request of the same court, the psychiatrist and neurologist Dr P.K. delivered an expert opinion on the applicant ’ s mental state on 12 December 2016. Dr P.K. confirmed that the diagnosis of paranoid schizophrenia persisted, but that the illness was in remission because of the depot medication the applicant received. In contrast to the FCA, he found no clear indications of any personality disorder, only a “narcissistic orientation”. However, Dr P.K. noted that the applicant demonstrated little insight into and acceptation of his mental illness and lacked remorse for the offence he had committed. The expert psychiatrist concluded therefore that the prerequisites for a continuation of the preventive measure were still given.

9 . In the framework of the following review proceedings, the FCA again submitted a statement to the Regional Court, dated 31 January 2018. Concerning the applicant ’ s social interactions, it was noted that he was friendly and compliant, but could not understand why he was still detained, or why he was not granted more privileges in the sense of a more lenient detention regime. He was regularly in contact with friends and with his parents. The FCA held that there were no more psychotic symptoms discernible in the applicant since August 2017. However, it maintained the diagnosis of a combined narcissistic and dissocial personality disorder and stated that this disorder had not yet been tackled in a therapeutic manner. No further explanation how this diagnosis was reached was given.

10 . The FCA stated that only small and short-term progress was made in relation to the applicant ’ s awareness of his wrongdoings, and expressed doubt as to the authenticity of the applicant ’ s medical compliance. It concluded that the therapy had not yet had any significant success so that a conditional release was not yet possible.

11 . On 9 March 2018 the applicant was heard in person by the Regional Court and stated that he regretted the offence. He requested a new psychiatric expert opinion, since Dr P.K. had stated that there were no clear indications of a personality disorder. The request was granted.

12 . On 7 July 2018 Dr A.K. delivered a psychiatric expert opinion, after having examined the applicant in person. She attested that he suffered from paranoid schizophrenia, which was in remission, meaning that he did not show any more symptoms of the illness. He received depot medication every three months, which worked very well. Dr A.K. found the applicant to be very well capable of describing the development of his paranoid schizophrenia, and also of naming measures to be taken to avoid further episodes. As opposed to the FCA, she could not discern a negative attitude towards treatment requirements in the applicant, nor a lack of future compliance. He himself had broached the issue of the necessity of further treatment after an eventual release.

13 . Dr A.K. further stated that it was not clear to her why the FCA in its statements repeatedly referred to a narcissistic personality trait in the applicant. In her view, it was not permissible to deduct a narcissistic diagnosis from the fact that some patients did not recognize the treatment regime as the highest authority without questioning it, or from the somewhat failed self-assertion of the applicant. None of the criteria for narcissism were tangible in the applicant. His lack of empathy with the victim at the moment of the murder was exclusively caused by his severe paranoid schizophrenia at the time. Even less comprehensible than the diagnosis of narcissism was that of a dissocial personality disorder. Dr A.K. pointed out that there were contradictions in the statements of the FCA. On the one hand, the FCA described the applicant as distanced, devaluating and anti-social, but on the other hand he was found to be friendly, but introvert and reserved vis-à-vis the centre ’ s personnel and other inmates. According to Dr A.K., this raised the question from what behaviour the FCA actually deducted a dissocial disposition in the applicant. This accentuation of an alleged narcissistic personality disorder by the FCA was all the more problematic according to the expert psychiatrist as the offence underlying the applicant ’ s placement in the institution for mentally ill offenders was unambiguously due to his psychotic mental illness, and therefore his dangerousness was exclusively linked to his schizophrenia, but not with any personality accentuation, which, according to the applicable criteria, did not even meet the threshold of a personality disorder.

14 . Dr A.K. concluded that there were no more reasons to believe that the applicant would commit further criminal offences. The dangerousness which led to his placement in the FCA resulted from an acute episode of paranoid schizophrenia, which was being treated and was in remission. The applicant was conscious of his mental illness and accepted the treatment. However, she found that the stability of the treatment success had not yet been tested under circumstances analogous to release, which is why she recommended that as soon as possible such tests should be conducted in the form of a stay of the detention.

15 . The applicant on 29 August 2018 applied to the Regional Court requesting that he be released from the institution, or that he be granted a stay of his detention of at least three weeks. He quoted a renowned commentary on the Code of Criminal Procedure ( Ratz in Wiener Kommentar ² [Viennese Commentary], § 47 Rz 14), where it was argued that if there was no more high risk of reoffending, the person concerned was to be released from the preventive measure on a probationary period. The applicant argued further that he owned a flat in Vienna where he could live, that his social contacts were aware of his mental illness and supportive, and his income was ensured. In addition, he pledged he would make use of outpatient treatment at a suitable institution in Vienna. He would also agree to be housed in an assisted living arrangement.

16 . On 14 September 2018 the Regional Court dismissed the application for the applicant ’ s release, and found that the continuation of the preventive measure was still required. It rejected his application for a stay of his detention, as it was the director of the institution who had to decide on such an application, not the court. During the oral hearing which was held on the same day of the decision, a representative of the FCA had stated that the applicant was only at stage 2 of the detention regime ( Lockerungsstufe 2 ), which allowed him to take accompanied walks outside the institution, but was not ready for an intermission (which can be granted once at stage 1 of the detention regime), as he was still considered to be dangerous. These “stages” of the detention regime were created and defined by an internal scheme of the FCA.

17 . The Regional Court essentially repeated the findings of the two diverging expert opinions, and implicitly found the statements of the FCA more reliable, endorsing its findings on the applicant ’ s questionable medical compliance and insight into his wrongdoings (see paragraph 9 above). It added that in establishing a prognosis for his future, it had to take into account the gravity of the underlying offence, namely that he would have been convicted for murder, had he been found to have been criminally responsible.

18 . The applicant appealed, arguing that the Execution of Sentences Act ( Strafvollzugsgesetz ) had been wrongly applied in his case, and therefore his right to liberty has been violated. He reiterated that the statements of the FCA were in contradiction with the three independent expert opinions of Dr K.D., Dr P.K. and Dr A.K. (see paragraphs 4, 7 and 11-13 above), none of which diagnosed him with a narcissistic personality disorder. The applicant pointed out that the most recent expert opinion was very clear in its findings that there was no more danger emanating from him, and in very strong words expressed serious doubt as to the statements of the FCA. The Regional Court had not examined these contradictions, but simply endorsed the FCA ’ s findings. Moreover, he argued that the system of different stages of the detention regime was not based on the law, which is why reference to a general practice was not sufficient to reject his request for a stay of his detention.

19 . On 20 November 2018 the FCA drew up a statement titled “Decision-finding on easing up freedom-related measures” ( Entscheidungsfindung über freiheitsbezogene Lockerungen ). It essentially explained why the applicant was currently at stage 2 of the detention regime. He had been on accompanied walks with his mother outside the institution since July 2018 which all went smoothly and without any problems or incidents. As to his compliance in the institution, the FCA noted that the applicant had demonstrated a stable psychopathological status. He has adjusted and did not show any behaviour which would be dangerous for himself or others. His narcissistic personality traits had not yet led to any conflicts with fellow patients.

20 . In a statement submitted to the Linz Regional Court dated 17 December 2018, the FCA reiterated that within the narrowly structured setting of the institution and the current anti-psychotic medication, the applicant continued to be mentally stable. For this reason, from 23 July 2018, he had been placed in stage 2 of the detention regime. The applicant was granted outings in the framework of an employment project and walks with his mother. The easing up had so far not caused any relapse into psychotic symptoms. However, the FCA stressed that granting more extensive contacts with the outside world contained the risk that he would be exposed to further stress factors which could lead to a relapse into psychosis. In that context, the applicant ’ s narcissistic personality structure was indeed considered relevant for a prognosis of the danger emanating from him ( Gefährlichkeitsprognose ). In the light of the seriousness of the underlying offence, easing up the detention regime could only be done very carefully and subject to monitoring of his psychopathological stability. In sum, staying his detention had not yet been possible because of the prognosis of his dangerousness.

21 . On 10 January 2019 the Linz Court of Appeal dismissed the applicant ’ s appeal. It reiterated the findings of the various expert opinions and agreed with the applicant, that his psychopathological situation had stabilised. It further acknowledged that the expert Dr A.K. had considered the FCA ’ s diagnosis of a narcissistic personality disorder incomprehensible; that the underlying offence was intrinsically linked to his psychosis; and that his dangerousness was solely based on his schizophrenic illness, and not on any personality disorder. However, the Court of Appeal also pointed out that Dr A.K. had stated in her expert opinion that this stability had not yet been tested under circumstances analogous to release, which is why it was too early to release him. The two recent statements of the FCA confirmed that his situation had further improved and stabilised. However, further proof was required for the stability of the treatment success in order for a stay of the placement to be granted, which was not yet given. Therefore, his respective request was dismissed. In sum, the court of Appeal found that the aim of the preventive measure required a continuation of the applicant ’ s placement in the institution for mentally ill offenders.

22 . On 12 April 2019 the applicant lodged again an application for the staying of his detention, which was dismissed by the FCA on 25 May 2019. The Linz Regional Court granted the applicant ’ s appeal against that decision, and referred the matter back to the FCA for a new decision.

23 . On 2 July 2019 the FCA downgraded the applicant from stage 1 of the detention regime to stage 3. Stage 1 corresponds to the highest stage, when detainees are being prepared for their release. Stage 3 is a lower stage and means no accompanied walks unless necessary; if so, only under supervision by prison personnel; and no participation in external occupation projects. The applicant alleges that he was downgraded because he used sarcastic language in his requests and applications to the authorities. The FCA based the downgrading on his personality disorder. An appeal against the downgrading was rejected by the Linz Regional Court on 6 September 2019, as it found this did not concern a subjective right of the applicant.

24 . However, also on 6 September 2019, the Linz Regional Court again granted the applicant ’ s appeal against the FCA ’ s refusal to agree to a staying of his detention. The reasons were “discrepancies between the statement of the psychological service of the FCA, the content of the applicant ’ s personal file and the very clear statements of Dr A.K. [ of 7 July 2018]”.

25 . On 7 October 2019 the FCA refused a new application by the applicant to be granted a stay of his detention and only concluded to a trial of an upgrade to stage 2 of the regime, aiming at a stay of the detention. The applicant appealed. However, already on 17 October 2019 the applicant was informed by the prison authorities that they would start looking for an appropriate association offering assisted living for persons with mental disorders.

26 . On 8 October 2019 the FCA sent a statement to the Steyr Regional Court in the framework of the yearly review proceedings on the necessity of the applicant ’ s further detention. It reiterated that the regular administration of depot medication had the effect that no productive symptomatic of paranoid schizophrenia was discernible. However, the narcissistic personality disorder was dominant and manifested in the applicant demanding relaxations in his detention regime, as well as minimizing and shifting his guilt in relation to the underlying offence. Following the expert opinion by Dr A.K. of 7 July 2018, the applicant had been granted further freedoms, which went without problems. However, the applicant had shown demeaning behaviour towards the staff of the prison in the course of the planning of a trial stay of his detention, and had shown that he had problems accepting orders, which is why the trial was stopped in July 2019. Currently, as the applicant ’ s behaviour was better, accompanied walks were being planned again.

27 . On 8 November 2019 the FCA sent a statement to the Linz Regional Court concerning the refusal of the stay of his detention. It stated that the applicant already benefitted from accompanied social trainings ( begleitetes soziales Training ), which constituted a stay of his detention pursuant to section 166(2)(b) of the Execution of Sentences Act. In case of a positive progress of the applicant in these trainings, as well as in everyday life at the detention facility, the next goal would be a stay of the detention in the form of assisted living. However, because of the gravity of the underlying offence and the danger prognosis for the applicant, such a prolonged stay was currently not yet considered.

28 . On 10 December 2019 the Steyr Regional Court, after having held an oral hearing, found that the applicant could not yet be released, as there was still a danger that he would reoffend, in particular because of his personality structure and the lack of the stability of his treatment progress having been tried positively outside the detention facility. The court further held that the decision on his request to be granted a stay of his detention would be issued separately. The applicant appealed.

29 . On 17 December 2019 the Steyr Regional Court requested the psychiatric expert Dr A.K. to issue an opinion on the question whether she upheld her recommendation to grant the applicant a stay of his detention.

30 . On 14 January 2020 the applicant was upgraded to stage 1 of the detention regime and was again allowed to take walks with family members outside the institution as of 20 January 2020.

31 . On 16 January 2020 the Linz Court of Appeal granted the applicant ’ s appeal against the Steyr Regional Court ’ s decision of 10 December 2019 and remitted the matter. It held that it was necessary to obtain a new neuro-psychiatric expert opinion in order to assess the current requirements for the applicant to be released. The court noted, in particular, that at the hearing of 10 December 2019, the parties involved did not report of any incidents, even though the applicant had had many outings at that point.

32 . On 23 January 2020 the Steyr Regional Court requested the expert Dr A.K. to give an opinion on the question whether the applicant still suffered from a mental disorder of a higher degree, and if so, whether it could be expected that this disorder would be likely to cause him to commit a crime with serious consequences again; or if the dangerousness did not persist, and if so, what measures are recommended in order to prepare him for his release.

33 . On 19 February 2020 the Linz Regional Court dismissed the applicant ’ s complaint on the refusal by the FCA to be granted a stay of his detention. It confirmed that the accompanied social trainings constituted such a stay; therefore, the complaint had to be dismissed.

34 . The applicant ’ s representative obtained a letter of by the Association “ LOK – Leben ohne Krankenhaus ” (Life without hospital), guaranteeing that they had a place for the applicant in their assisted living-flatshares. The letter was sent to the Linz and Steyr Regional Court and the FCA on 20 February 2020. The FCA informed the applicant in June 2020 that they did not consider this institution adapted for his needs.

35 . On 12 May 2020 the applicant was told that it had been decided that he would be granted a stay of his detention at the assisted living organisation “WOBES Grünbergstraße”. The applicant ’ s representative submitted that this organisation was not adapted to the needs of persons like the applicant who had been placed in an institution for mentally ill offenders pursuant to Article 21 § 1 of the Criminal Code, but only for those placed under § 2 of that provision.

36 . On 19 June 2020 the applicant was told that the “WOBES Grünbergstraße” had refused the request.

37 . On 6 July 2020 a different assisted living institution was contacted by the prison authorities, the “WOBES Gschwandtnergasse”, which accepted to host the applicant as of November 2020.

38 . On 20 July 2020 the applicant was told that in the light of the planned stay of his detention in November, his depot medication to treat his schizophrenia had to be raised. The applicant told his psychiatrists that he was strongly against a raise of the dosage, as he had been stable on the current dosage for three and a half years. Moreover, he feared severe side effects.

39 . On 30 July 2020 the applicant committed suicide at the FCA.

40 . Article 11 of the Criminal Code governs the exclusion of criminal responsibility of a perpetrator. It reads as follows:

“Who at the time of an offence is unable to realize the wrongdoing of his/her actions or is incapable of acting on this insight because of mental illness, mental disability, a profound disturbance of consciousness or other serious mental disorders equivalent to one of these states, does not act culpably.”

41 . Article 21 of the Criminal Code deals with the prerequisites for the placement of a person in an institution for mentally ill offenders as a preventive measure. It provides as follows:

“1. If a person commits an offence punishable with a term of imprisonment exceeding one year, and if he/she cannot be punished for the sole reason that he/she committed the offence under the influence of a state of mind excluding responsibility (section 11) resulting from a serious mental or emotional abnormality, the court shall order him/her to be placed in an institution for mentally ill offenders, if in view of his/her person, his/her condition and the nature of the offence it is to be feared that he/she will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.

2. If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking criminal responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed.”

42 . The duration and review of these preventive measures is governed by Article 25 of the Criminal Code, which states that:

“1. Preventive measures are to be ordered for an indefinite period. They are to be implemented as long as is required by their purpose ...

2. The termination of preventive measures shall be decided by the court.

3. The court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders ... is still necessary.”

43 . In accordance with Article 47 § 2 of the Criminal Code, conditional release from a preventive measure which is combined with a deprivation of liberty must be ordered if, from the demeanour and development of the detained person, his or her state of health, personality, past life, and prospects for living an honest life, it can be assumed that he or she no longer presents the level of dangerousness that had led to the preventive measure.

44 . According to section 164(1) of the Execution of Sentences Act ( Strafvollzugsgesetz ), the aim of a placement measure under Article 21 of the Criminal Code is to prevent inmates from committing further criminal offences under the influence of their “mental or spiritual abnormality” ( geistige oder seelische Abartigkeit ). The placement should improve the mental condition of inmates to the degree that reoffending would no longer be expected and that they would be able to lead a law-abiding life in society. For this purpose, inmates shall be provided, according to their needs, with medical, psychiatric, psychotherapeutic, psycho-hygienic and educational care (see section 166(1) of the Execution of Sentences Act, which, according to its section 165(2), also applies to the execution of the placement of a person in an institution for mentally ill offenders under Article 21 § 1 of the Criminal Code).

45 . Section 166(2) of the Execution of Sentences Act governs the granting of a temporary stay of the forensic placement. A stay may only be granted, if it can be expected that the person concerned will not commit a criminally punishable act for the duration of the stay. It may further be granted if this is requisite or appropriate for the treatment of the person, or to prepare them for their life in freedom, any can be granted for up to one month. The competent court decides on stays of more than 14 days.

46 . In June 2014, a working group on forensic placement was established, consisting of experts in that field. In January 2015, it issued a report to the Federal Minister of Justice on the results reached ( Arbeitsgruppe Massnahmenvollzug – Bericht an den Bundesminister f ü r Justiz über die erzielten Ergebnisse , led by Michael Schwanda, January 2015). The relevant parts read as follows (pp. 53-54 of the report):

“4.7. VOLLZUGSLOCKERUNGEN

Behandlungs- und Betreuungskonzepte erfordern stets freiheitsbezogene Erprobungen und extramurale sozialrehabilitative Maßnahmen. Lockerungen sind zentraler Bestandteil im Maßnahmenvollzug gemäß § 21 StGB. Eine erfolgreiche Therapie mündet ab einem bestimmten Zeitpunkt der Anhaltung in sorgfältig abgestufte und strukturierte Lockerungen der vorbeugenden Maßnahme. Vollzugslockerungen dienen insgesamt der Überprüfung der Stabilität der Entwicklungsschritte unter gelockerten Bedingungen. Aus dem Verlauf der Lockerungen können wichtige Schlüsse für den weiteren Vollzugs- und Behandlungsplan gezogen werden.

Je nach therapeutischem Fortschritt und Grad der bisher erwiesenen Stabilität werden den Untergebrachten Lockerungen gewährt, wenn eine Gefährdung der öffentlichen Sicherheit nicht zu befürchten ist. Jede/r Untergebrachte, der/die freiheitsbezogene Maßnahmen braucht, um damit sein/ihr individuelles Resozialisierungsziel erreichen zu können, wird diese bekommen, wenn diese Maßnahmen mit den hierzu abzuwägenden Sicherheitsaspekten vereinbar sind. Die Aussicht auf Freiheitsmaßnahmen kann in bestimmten Fällen eine Motivation zum Einlassen auf andere wichtige therapeutische Interventionen bedeuten.

Die Erprobungen außerhalb der forensischen Institutionen, die mit steigendem Lockerungsumfang eine zunehmende Absicherung der im therapeutischen Prozess erreichten Fortschritte darstellen, dienen damit auch der Vorbereitung der (bedingten) Entlassung der Untergebrachten und erreichen final in der Entlassungsvorbereitung den Umfang von längerfristigen Unterbrechungen der Unterbringung mit Aufenthalt im künftigen sozialen Empfangsraum.

Ziel der Unterbrechungen der Unterbringungen ist, dass der/die Untergebrachte unter therapeutischer Begleitung schrittweise an das Leben in Freiheit herangeführt wird und die sozialen und lebenspraktischen Fertigkeiten lernt, die ihm/ihr ein straffreies Leben ermöglichen. Ein funktionierendes Management in die Nachbetreuung schließt an eine risikoorientierte State-of-the-Art-Behandlung und Betreuung mit freiheitsbezogenen Erprobungen an. Ein differenziertes Nachbetreuungsumfeld, das auf individuelle Risikomerkmale und Bedürfnisse der Betroffenen im Sinne einer personenzentrierten Hilfeplanung eingeht, kann die verbliebene (Rest-)Gefährlichkeit bestmöglich kompensieren. Diesem Erfordernis wird im Maßnahmenvollzug große Aufmerksamkeit eingeräumt. Zur Abwicklung der freiheitsbezogenen Erprobungen werden innerhalb der Institutionen vielfältige Ressourcen eingesetzt.”

Translation by the Court:

“4.7. Relaxation of enforcement measures

Treatment and care concepts always require freedom-related trials and extramural social rehabilitation measures. Relaxation is a central component in the implementation of measures according to Article 21 of the Criminal Code. After a certain point in time, successful therapy leads to carefully graded and structured relaxation of the preventive measure. The overall purpose of the relaxation of enforcement measures is to check the stability of the development steps under relaxed conditions. From the course of the relaxation, important conclusions for the further execution and treatment plan can be drawn.

Depending on the therapeutic progress and the degree of stability that has been demonstrated so far, the detainees are granted relaxation if there is no risk of a threat to public safety. Every inmate who needs freedom-related measures in order to be able to achieve his / her individual rehabilitation goal will receive these if these measures are compatible with the safety aspects to be weighed up. In certain cases, the prospect of freedom measures can be a motivation to engage in other important therapeutic interventions.

The tests outside of the forensic institutions, which with the increasing extent of relaxation represent an increasing safeguard of the progress achieved in the therapeutic process, also serve to prepare for the (conditional) release of the detainees and finally reach the extent of long-term interruptions in the accommodation with stay in the release preparation future social reception room.

The aim of the interruptions in the placement is that the detainee is gradually introduced to life in freedom under therapeutic supervision and learns the social and practical skills that enable him / her to lead a life free from punishment. A functioning management in the follow-up care follows a risk-oriented state-of-the-art treatment and care with freedom-related trials. A differentiated follow-up care environment that addresses the individual risk characteristics and needs of those affected in the sense of person-centered help planning can compensate for the remaining (residual) danger as best as possible. Great attention is paid to this requirement in the implementation of measures. Various resources are used within the institutions to carry out the freedom ‑ related tests. ”

(a) United Nations

47 . The United Nations Convention on the Rights of Persons with Disabilities (hereinafter the “CRPD”) (adopted by the United Nations General Assembly on 13 December 2006, Resolution A/RES/61/106) is designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity. The CRPD updated and revised the standards which had been established by the above-mentioned General Assembly resolution. It was ratified by Austria on 26 September 2008. All Council of Europe member States are now parties to the CRPD except for Liechtenstein. The relevant Articles of the CRPD as well as the relating General Comments of the Committee on the Rights of Persons with Disabilities (“the Committee”) have recently been set out in the judgment of Fernandes de Oliveira v. Portugal [GC] (no. 78103/14, § 69, 31 January 2019) .

(b) Council of Europe

48 . In its report of 6 November 2015 (CPT/Inf (2015) 34), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) noted the following:

“D. Situation of persons subjected to a court-ordered measure of forensic placement

1. Preliminary remarks

100. As already mentioned, the delegation carried out a targeted visit to Stein Prison, in order to examine the situation of persons who were subjected to a court ‑ ordered measure of forensic placement (Massnahmenvollzug).

...

2. Conditions of detention, staff and treatment

103. Material conditions in the two units [of Stein prison] for Massnahmenvollzug were adequate in terms of repair but not suitable for accommodating persons in need of therapy and assistance. In particular, they lacked appropriate facilities for therapeutic activities.

...

109. At the end of the visit, the shortcomings described above were brought to the attention of the Minister of Justice who indicated that he was fully aware of many of the structural deficiencies criticised by the delegation. He said that he himself and his Ministry were determined to embark on a complete overhaul of the Massnahmenvollzug throughout Austria and that, for that purpose, a multi ‑ disciplinary working group had recently been established. One of the plans under discussion was to progressively close down units for Massnahmenvollzug in “ordinary” prisons and to create new specialised establishments within or even outside the prison system.

The CPT welcomes these initiatives and fully concurs with the views expressed by various interlocutors that Stein Prison, like any other “ordinary” prison, is not suited to the implementation of a meaningful Massnahmenvollzug in which persons suffering from a mental disorder are offered, according to their needs, medical, psychiatric, psychotherapeutic, psycho-hygienic and educational care, as required under the relevant legislation.

110. The CPT recommends that the Austrian authorities review the current system of Massnahmenvollzug, in the light of the remarks made in paragraphs 103 to 109. In this context, a comprehensive concept for motivation and individualised treatment should be drawn up for all inmates. In addition, special training of custodial staff and multi-disciplinary teamwork should be introduced.

The Committee would like to be informed of the progress made in the ongoing reform of the Massnahmenvollzug in Austria and receive a copy of the final report of the abovementioned working group.” [footnotes omitted]

COMPLAINT

49 . The applicant complains under Article 5 of the Convention of the lawfulness of his continued detention in the institution for mentally ill offenders, despite the psychiatric experts having found that his mental illness was in remission. He considers that he should be released, or at least be granted a stay of his detention in order to prepare him for his release, as he was no longer a danger to society. He argues that failing to do so rendered his further detention in breach of Article 5 of the Convention.

QUESTIONS TO THE PARTIES

1. Does the applicant ’ s mother have legal standing to pursue the application in his name (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08 , §§ 96-100, ECHR 2014) ?

2. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the continued deprivation of liberty fall within paragraph (e) of this provision, having regard to the diverging expert opinions obtained in the review proceedings at issue, and to the delays in organizing the stay of the applicant ’ s detention?

3. The parties are requested to inform the Court of the circumstances of the applicant ’ s suicide. They are further requested to submit a copy of the latest expert opinion(s) of Dr A.K. (which had been ordered by the Steyr Regional Court on 17 December 2019 and 23 January 2020).