Communicated on 31 August 2020 Published on 21 September 2020

FIFTH SECTION

Application no. 63950/19 Hildegard GAGGL against Austria lodged on 3 December 2019

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s criminal trial for attempted murder of her husband. Two psychiatric-neurological expert opinions were obtained during the trial; one stated that she could not be held criminally responsible ( nicht zurechnungsfähig ) for her acts, the other concluded that she could be held criminally responsible. Both the applicant and the public prosecutor requested that a decisive expert opinion be obtained ( Obergutachten ), as foreseen by Article 127 § 3 of the Code of Criminal Procedure. However, the Klagenfurt Regional Court ( Landesgericht ), sitting as an assize court, dismissed the request. On 3 December 2018 the applicant was convicted by that court for attempted murder and sentenced to 12 years ’ imprisonment, dismissing her insanity plea. On 21 May 2019 the Supreme Court ( Oberster Gerichtshof ) dismissed her plea of nullity, and on 10 July 2019 the Graz Court of Appeal ( Oberlandesgericht ) dismissed her appeal against the sentence.

The applicant complains under Article 6 and in substance also under Article 5 of the Convention that she was criminally convicted on the basis of two contradicting expert opinions, which rendered her trial unfair and her detention in prison unlawful. Because she was tried before an assize court, she was not given any reasons why the jury followed one expert opinion but not the other. The applicant argues that she should have been placed in an institution for mentally ill criminal offenders, where she could have received therapy, instead of being criminally convicted and sentenced to a prison term.

Relevant domestic law:

The placement in an institution for mentally ill offenders as a preventive measure is dealt with under Article 21 of the Criminal Code, the relevant parts of which read as follows:

“(1) If a person commits an offence punishable by a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence in a state of mind that excludes responsibility (Article 11) resulting from a serious mental or emotional disorder, and if in view of his mental state, his condition and the nature of the offence it is feared that he might otherwise, in view of his mental or emotional disorder, commit another criminal offence with serious consequences, the court shall order his placement in an institution for mentally ill offenders.

(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 responsibility, commits an offence punishable by a term of imprisonment exceeding one year on account 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.”

The duration of a preventive measure is governed by Article 25 of the Criminal Code, which states:

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

(2) The termination of the preventive measure shall be decided by the court.

...”

Article 127 of the Code of Criminal Procedure concerning expert opinions reads as follows in its relevant parts:

“(1) ...

(2) Experts must give their findings and expert opinion lege artis and according to the best of their knowledge and conscience. They must follow summons by the public prosecutor ’ s office and the court, and answer questions during trials, questionings and the reconstruction of the criminal act.

(3) If the findings are inconclusive or the expert opinion is contradictory or otherwise insufficient, or if the statements of two experts on the facts observed by them or the conclusions drawn from their observations are significantly contradictory, and the reservations cannot be dissolved by questioning them, a further expert must be commissioned. In case it concerns the examination of psychological conditions and developments, an expert opinion must be obtained by an expert who holds a licence to teach at a domestic or foreign university .“

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 (a) of this provision, in the sense that the conviction had been in accordance with a procedure prescribed by law? Has Article 127 § 3 of the Code of Criminal Procedure been complied with in the applicant ’ s case? Have the two 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? Have the two 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? Has the applicant been able to understand the verdict that has been given, in particular why the jury followed one expert opinion, but not the other? Have there been sufficient safeguards against arbitrariness (compare Lhermitte v. Belgium [GC], no. 34238/09, §§ 66 ‑ 74, 29 November 2016)?