Communicated on 12 May 2014

FIRST SECTION

Application no. 11537/11 Günter LORENZ against Austria lodged on 15 February 2011

STATEMENT OF FACTS

The applicant, Mr Günter Lorenz, is an Austrian national, who was born in 1964 and is currently being detained in Stein Prison.

A. The circumstances of the case

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

On 14 March 1984, the Vienna Regional Criminal Court, sitting as an assize court, convicted the applicant of murder and sentenced him to twenty years ’ imprisonment. It ordered his detention in an institution for mentally - ill offenders, in accordance with Article 21 § 2 of the Criminal Code. He was found to have shot three persons and decapitated one of the bodies. The judgment was upheld by the Supreme Court on 27 September 1984.

Since 27 September 1984 the applicant has been detained in institutions for mentally ill offenders. He was detained in Wien- Mittersteig and Graz- Karlau Prisons, and since 2008 has been detained in Stein Prison.

Article 25 § 3 of the Criminal Code provides that the courts have to carry out a yearly review of the necessity of further detention in an institution for mentally - ill offenders. The courts have to initiate the yearly review at least one year after the last decision on the continuation of the detention (see relevant domestic law below). Moreover, the detainee can apply for conditional release.

On 25 February 2009, in the course of the yearly review proceedings, the Krems Regional Court ordered the continuation of the applicant ’ s detention in an institution for mentally - ill offenders. It referred to an expert opinion of 25 January 2009 by Dr. L., who had stated that the applicant ’ s condition had stabilised and that the danger emanating from him had considerably abated. However, while that was true in respect of the closed and protected living environment of the prison, it could not be prognosticated for a life outside prison. The director of the prison had not recommended releasing the applicant, as the special therapy needed in order to prepare him for release was only available in Wien- Mittersteig Prison.

On 20 September 2009 the applicant applied for release and requested that a certain expert be commissioned. On 15 March 2010, the Krems Regional Criminal Court again ordered the continuation of the detention in an institution for mentally ill offenders. In Dr. L. ’ s additional opinion of February 2010 he again referred to the fact that the applicant ’ s condition stabilized; however, no protection and support would be provided for the applicant after his release. The expert found it difficult to believe that the applicant ’ s lawyer would find him a flat and a job. The court also referr ed to the expert opinion of Dr. B. of March 2010 (not on file) in which he responded to the generally positive tenor of Dr. L. ’ s opinion and found that the stabilisation process was rather a reaction to the “enemy” institution in which the applicant was being held, and was not to be considered real or capable of surviving the challenges of daily life outside prison. Moreover, he did not recommend further therapy for the applicant, who had not been prepared for any self-reflection and was not ready to process the experiences and challenges of normal social interaction, and thus was still likely to present a danger to others. In any case, the applicant would refuse to undergo any more therapy. The court found that owing to the applicant ’ s negative approach to therapy, it was impossible to prepare him for release, even though his counsel had offered a flat and a job. The prosecutor and the director of the prison also recommended the continuation of the detention.

On 26 July 2010, the Vienna Court of Appeal dismissed an appeal lodged by the applicant. It reiterated the expert opinions obtained in 1983, 2000, 2002, 2006, 2009 and 2010 and confirmed the decision of the first-instance court. It also reiterated that the team of psychologists had recommended a transfer to Wien- Mittersteig Prison, where the necessary therapy was available.

The applicant lodged an application for release with the Krems Regional Court on 20 August 2010 and submitted some additional observations on 16 November and 3 December 2010. He also applied for an expert opinion from Dr. L.

On 7 December 2010, in the course of the yearly review proceedings, the Krems Regional Court again ordered the continuation of the detention in an institution for mentally ill offenders. It referred to the reasoning in the above-mentioned decisions and the recent information from the prison psychology service that there had been no change of circumstances. It therefore declined the request for a new expert opinion. It held that the necessary preparation for the applicant ’ s release was not available in Stein Prison, but only in Wien- Mittersteig Prison. However, the latter had not responded to a request for the applicant ’ s transfer. Moreover, the applicant had refused to make use of all the therapy offered to him in Stein Prison. On 25 January 2011, the Vienna Court of Appeal dismissed an appeal lodged by the applicant as unfounded.

On 23 January 2012 the Krems Regional Court held an oral hearing and then tried to commission an expert in the course of the yearly judicial review. On 1 February 2012 the applicant submitted his observations on the review: in summary he stated that the expert opinion of Dr. B. was wrong and the court should therefore rely on the expert opinion of Dr. L. As the applicant refused to be examined by any expert, the court held another hearing on 23 April 2012.

On 23 April 2012, the Krems Regional Court again ordered the continuation of the detention. The court found that based on the information on file, the expert opinion of 3 March 2010 and the information from the director of the prison, the risk of the applicant reoffending was still too high to have him released. That decision was upheld by the Vienna Court of Appeal on 30 July 2012.

On 20 June 2013, in the yearly review proceedings, the Krems Regional Court again ordered the continuation of the applicant ’ s detention, while reiterating the reasoning of the Krems Regional Court in its decision of 23 April 2012. The court again referred to the expert opinion of 2010 and the recommendation by the prison administration that the applicant should not be released as he had not undergone any therapy. It held that it would be unreasonable to order the applicant ’ s transfer to Wien- Mittersteig Prison as he had refused to undergo any therapy. It appears that the Krems Regional Court did not hold an oral hearing prior to that decision . On 19 July 2013 the Vienna Court of Appeal dismissed an appeal lodged by the applicant as unfounded.

The expert opinions have not been submitted by the applicant.

B. Relevant domestic law and practice

Placement in an institution for mentally ill offenders (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 those preventive measures is governed by Article 25 of the Criminal Code, which states that:

“(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.

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

...”

According to the domestic case-law, it is understood that the courts are obliged to initiate investigations and proceedings for review within one year after the last decision on the continuation of the detention. A decision on the continuation of the detention is not required on a yearly basis, since the legislation provides that further detention has to be “examined” (and not “decided”) on a yearly basis. According to this case-law it is sufficient to initiate the examination within a year after the last decision (see 10 Os 79/80, Ratz in WK ² StGB § 25 [ Rz 3]).

COMPLAINT

Although the applicant relied on Article 7 of the Convention, the essence of his complaint about the procedure for the review of his detention in an institution for mentally ill offenders falls under Article 5 § 4.

QUESTIONS TO THE PARTIES

1. Were the procedures concerning the review of the applicant ’ s detention between 2010 and 2013 in conformity with the fundamental guarantees of procedure applied in matters of deprivation of liberty under Article 5 § 4 of the Convention ( see, among other authorities, Megyeri v. Germany , 12 May 1992, § 22 (c), Series A no. 237 ‑ A, Hussein v. United Kingdom , no. 21928/93, § 59, 21 February 1996, X v. Finland , no. 34806/04, § 133, ECHR 2012 (extracts))?

2. Were the decisions concerning the review of the applicant ’ s detention between 2010 and 2013 given “speedily” and at reasonable intervals as required by Article 5 § 4 of the Convention?