Communicated on 11 October 2019

FIFTH SECTION

Application no. 28043/19 Walter FELDHOFER against Austria lodged on 21 May 2019

SUBJECT MATTER OF THE CASE

The Leoben Regional Court ( Landesgericht ) on 27 August 2018 found the applicant guilty of having committed the offences of dangerous threatening behaviour and for having injured a police officer. However, it found that the applicant could not be held criminally responsible for these offences, as he had committed them in a state of mind that excluded responsibility, which resulted from a serious mental illness. Furthermore, the court held that it was highly likely that the applicant would commit further offences with serious consequences and therefore ordered the applicant ’ s detention in an institution for mentally ill offenders in accordance with Article 21 § 1 of the Austrian Criminal Code ( Strafgesetzbuch ).

The court essentially based its findings on the expert opinion of a court ‑ appointed psychiatrist W. Another psychiatrist, S, appointed by the public prosecutor ’ s office ( Staatsanwaltschaft ) during the preliminary proceedings, had come to a different conclusion. S had found that the applicant could be held responsible for his acts as there was no indication of a mental illness in the narrower sense. He diagnosed the applicant with a narcissistic personality disorder, but not of such a degree that the threshold of Article 21 of the Austrian Criminal Code was met. Another psychiatrist, K, examined the written medical report of the court-appointed psychiatrist upon request by the applicant ’ s lawyer and stated that this medical report did not even meet the minimal required quality standards.

The regional court dismissed the applicant ’ s requests to question psychiatrist S during his trial and to appoint another psychiatrist. The Supreme Court ( Oberster Gerichtshof ) and the Graz Court of Appeal ( Oberlandesgericht ) dismissed the applicant ’ s appeals.

The applicant complains under Articles 5 and 6 of the Convention that the dismissal of his requests, namely to summon psychiatrist S and to appoint another psychiatrist, amounted to a violation of his rights under these provisions. He alleges that his detention in an institution for mentally ill criminal offenders is hence unlawful and in breach of Article 5 of the Convention.

QUESTION S TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraph (e) of this provision? Was it reliably shown that the applicant was of unsound mind and that his mental disorder was of a kind to warrant compulsory confinement?

2. Was the dismissal of the applicant ’ s requests to summon psychiatrist S and to appoint another psychiatrist in the present case in breach of the “fair hearing” requirement of Article 6 § 1 of the Convention?