Communicated on 14 April 2014

FIFTH SECTION

Application no. 53157/11 Andreas KLINKENBUSS against Germany lodged on 18 August 2011

STATEMENT OF FACTS

The applicant, Mr Andreas Klinkenbuß, is a German national, who was born in 1964 and is currently detained in a psychiatric hospital in Lippstadt.

A. The circumstances of the case

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

1. The applicant ’ s conviction and the order for his placement in a psychiatric hospital and execution thereof

In 1979 the applicant forced two seven-year-old girls and in 1980 a four-year-old girl to undress and hit them with a stick. In 1981 the applicant forced a seven-year-old girl to undress and laid himself on the girl on a bank. The criminal proceedings relating to these offences were discontinued because of the minor applicant ’ s lack of criminal responsibility.

On 21 January 1983 the Münster Regional Court convicted the applicant of attempted rape together with sexual assault and dangerous assault and of attempted murder and assault. Applying the criminal law relating to young offenders, it sentenced him to five years ’ imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see Relevant domestic law below).

The Regional Court found that on 22 June 1982 the applicant, then aged seventeen, had forced a fourteen-year-old girl to follow him into a forest, where he had attempted to rape her, had sexually assaulted her with a stick and had then attempted to strangle her to death to cover up his offences and had hit her again with a stick.

In the Regional Court ’ s finding, it was necessary to order the applicant ’ s detention in a psychiatric hospital under Article 63 of the Criminal Code. It considered that the applicant had acted with diminished criminal responsibility (Article 21 of the Criminal Code; see Relevant domestic law below). It found that the applicant had reduced mental capacities which had been caused by an infantile brain damage. This damage, combined with deficits in his upbringing (he had repeatedly been hit by his father with a stick himself), had caused a consciousness disorder and the sadistic sexual tendencies the applicant had disclosed in his offences. In accordance with the findings of expert H., these disorders amounted to an “other serious mental abnormality” for the purposes of Articles 20 and 21 of the Criminal Code (see Relevant domestic law below). Moreover, a comprehensive assessment of the applicant ’ s personality revealed that, as a result of his condition, he could be expected to commit further unlawful acts and was therefore dangerous to the general public.

Since 29 January 1983 the applicant has been detained in a psychiatric hospital.

In December 1990, when the applicant was granted leave from detention, he attacked a twenty-six-year-old cyclist, threatened her with a knife and attempted to force her into a forest. He was chased away by a car driver. The criminal proceedings in this respect were discontinued with regard to his previous conviction.

The courts dealing with the execution of sentences reviewed the applicant ’ s detention at regular intervals. In particular, on 5 February 2010 the Paderborn Regional Court ordered the applicant ’ s detention in a psychiatric hospital to continue. It had noted, in particular, that the applicant had even refused to accept therapeutic discussions. There was stagnation in the applicant ’ s treatment, the representatives of the psychiatric hospital having explained that they considered substantial changes in the applicant ’ s personality by a sexual therapy no longer possible.

2. The proceedings at issue

(a) The proceedings before the Paderborn Regional Court

On 28 January 2011 the Paderborn Regional Court ordered the continuation of the applicant ’ s detention in a psychiatric hospital under Articles 67d and 67e of the Criminal Code (see Relevant domestic law below).

The Regional Court noted that psychiatric expert T., in his report dated 28 January 2010, had diagnosed the applicant, whom he had examined in person, with an abnormity of the sex chromosomes (so-called Klinefelter syndrome). The latter had most probably caused an endocrine personality syndrome characterised by retardations and disorders in the development of a person ’ s personality and by an insufficient internalisation of ethic rules. The applicant had therefore developed a dissocial and schizoid personality. It was unclear whether the applicant still suffered from a sadistic paraphilia. The expert considered that the applicant ’ s retardations had partly been offset by a hormonal treatment. Moreover, the applicant ’ s dissocial conduct and schizoid personality had been considerably alleviated by a social therapy and a psychotherapy .

In assessing the risk emanating from the applicant, the expert considered that it had to be taken into account that the applicant had already committed a number of sadistic offences against children. Moreover, the seriousness of the offence the applicant had been convicted of in 1983 and the attack on a woman during his detention in a psychiatric hospital in 1990 had to be taken into consideration. However, it had either been impossible or been omitted to pursue a sexual therapy with the applicant during his long detention in a psychiatric hospital. The expert stated that it was impossible for him to assess in how far the applicant was still driven by sadistic phantasies. Consequently, the risk that the applicant reoffended if released was difficult to assess and could only be determined in the course of a new therapy.

A representative of the psychiatric hospital, in submissions dated 7 December 2010, had confirmed that the applicant spoke with a psychologist on his request. He worked within the hospital and had proved reliable when visiting members of his family during leave from detention under escort. However, he was still unable to reflect on the motives for his offences. Therefore, it was difficult to assess the applicant ’ s dangerousness; there was a risk that he reoffended if released. Furthermore, the therapist responsible for the applicant confirmed that it was impossible to make a proper assessment of the applicant ’ s dangerousness.

The Regional Court, having regard to the evidence before it, considered that the continuation of the applicant ’ s detention in a psychiatric hospital had to be ordered. Despite the fact that the applicant had proved reliable during leaves from detention, there was no proof that it was likely that the applicant would not reoffend if released. In particular, it could not be excluded that his sadistic tendencies persisted. The applicant currently did not undergo a proper therapy and suffered from hospitalism.

The Regional Court further considered that the continuation of the applicant ’ s detention was proportionate. It referred to the serious offences having led to the applicant ’ s placement in a psychiatric hospital, to the fact that he had reoffended during the execution of his detention order and to the potential risk that the applicant reoffended if released to support its view.

(b) The proceedings before the Hamm Court of Appeal

On 23 February 2011 the applicant lodged an appeal against the Regional Court ’ s decision.

On 15 March 2011 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court and referring to its previous decision dated 18 March 2010, dismissed the applicant ’ s appeal.

(c) The proceedings before the Federal Constitutional Court

By submissions dated 1 April 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continuing detention in a psychiatric hospital for more than twenty-eight years was disproportionate and had therefore breached his constitutional right to liberty and the constitutional protection of the rule of law. It had been insufficient for the courts to base their assessment that he was currently still dangerous on offences dating back more than twenty-eight years and on an incident during the execution of his detention order dating back more than twenty years. Moreover, the experts and courts had confirmed that he no longer pursued any therapy and that it was unclear whether he was still dangerous to the public.

On 27 July 2011 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint without giving reasons (file no. 2 BvR 735/11).

3. The execution of the applicant ’ s detention in a psychiatric hospital

The applicant made several therapies, including a social therapy and a psychotherapy , during his detention in the psychiatric hospital. In the applicant ’ s submission, he had not been offered any therapies any longer since 2005. He did not pursue any therapy in the so-called “longstay” department he had been placed in during the relevant time covered by the proceedings at issue. The therapists responsible for him in the psychiatric hospital expressed the view that the applicant ’ s sadism could not be treated anymore with the therapeutic means available.

The applicant has been working in the factory on the premises of the psychiatric hospital. When being granted leave under escort several times per year, he visited members of his family.

4. Further developments

On 18 January 2012 the Paderborn Regional Court, endorsing the reasons given in its previous decision, ordered the applicant ’ s detention in a psychiatric hospital to continue. On 20 March 2012 the Hamm Court of Appeal dismissed the applicant ’ s appeal.

B. Relevant domestic law

1. Provisions on criminal liability

Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt.

Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated if the perpetrator ’ s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the reasons indicated in Article 20 of the Criminal Code.

2. Provisions on the detention in a psychiatric hospital

(a) The order for a person ’ s detention in a psychiatric hospital

Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility (Article 20 of the Criminal Code) or with diminished criminal responsibility (Article 21 of the Criminal Code), the court shall order his placement in a psychiatric hospital if a comprehensive assessment of the perpetrator and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.

(b) Judicial review and duration of detention in a psychiatric hospital

Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the order for a person ’ s placement in a psychiatric hospital should be suspended and a measure of probation applied or should be terminated. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year (paragraph 2 of Article 67e).

Article 67d of the Criminal Code contains provisions on the duration of detention. Paragraph 2 of that provision provides that if there is no provision for a maximum duration of the confinement or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the person concerned.

Article 67d § 6 of the Criminal Code provides, in particular, that if, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised.

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention about his detention in a psychiatric hospital, which has been executed for more than twenty-eight years. He argues that his detention was not justified under sub-paragraph (e) of Article 5 § 1. He kept being detained despite the fact that, even according to the reports drawn up after an insufficient examination by medical experts, it was unclear whether he actually suffered from a mental disorder, which he contested. Moreover, he has no longer received any therapy since 2005 and thus had no perspective of a life outside prison.

QUESTIONS TO THE PARTIES

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

a) In particular, did the deprivation of liberty as a result of the proceedings at issue fall within sub-paragraph (e) of Article 5 § 1? Was the applicant “of unsound mind” and was the applicant ’ s detention “lawful” for the purposes of this provision?

b) And did the deprivation of liberty fall within sub-paragraph (a) of Article 5 § 1? Did the applicant ’ s detention occur “after” conviction and was the applicant ’ s detention “lawful” for the purposes of this provision?

c) Did the domestic courts, in their decision to order the applicant ’ s continuing detention in a psychiatric hospital, take the considerable duration of the applicant ’ s detention sufficiently into account?

2. Which measures, therapeutic and others, are currently being taken with the aim to reduce the applicant ’ s dangerousness and not to deprive him of any prospect of release?