FIFTH SECTION

Application no. 62054/12 Karsten BLÃœHDORN against Germany lodged on 13 September 2012

STATEMENT OF FACTS

1. The applicant, Mr Karsten Blühdorn , is a German national, who was born in 1943 and lives in Riedstadt . He is represented before the Court by Mr M. Seipel , a lawyer practising in Frankfurt.

A. The circumstances of the case

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

1. Background to the case

a. The criminal proceedings and the placement in a psychiatric hospital

3. The applicant was convicted, inter alia , of rape in 1968 and of indecent assault combined with causing bodily harm by dangerous means in 1990.

4. On 14 January 2002 the Darmstadt Regional Court convicted the applicant of rape combined with inflicting bodily injury. It included a sentence of a previous conviction and sentenced him in total to four years and six months ’ imprisonment. Simultaneously, the Regional Court ordered the applicant ’ s placement in a psychiatric hospital. It held that the applicant suffered from a disturbance of his sexual preference in form of sadism and found that therefore the commission of further crimes was to be expected. The Regional Court based its conviction mainly on the conclusions of a psychiatric expert opinion but had also regard to the applicant ’ s previous conviction for indecent assault in 1990. Further, it observed that the applicant had tried to subjugate several prostitutes who he had been seeing during the recent years. The Regional Court found that this indicated a progression of his behaviour. It stated that the applicant had refused psychiatric therapy so far and joined the expert ’ s opinion that the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive. The Regional Court concluded that similar crimes were to be expected and the applicant was, therefore, dangerous for the public.

5. The applicant was arrested on the same day and placed in the Haina Clinic for Forensic Psychiatry.

b. Forensic-psychiatric expert opinions rendered on the occasion of the annual review of the applicant ’ s placement in hospital

6. The applicant ’ s detention in a psychiatric hospital has been reviewed at regular intervals (compare Article 67d and 67e on f the Criminal Code, see Relevant domestic law below) and has been annually extended. In course of these proceedings the courts requested annually forensic-psychiatric expert opinions on the necessity of his committal to hospital. All expert opinions concluded that the applicant was likely to re-offend.

7. On 2 April 2003 the Haina Clinic for Forensic Psychiatry rendered an initial expert opinion. It established the diagnosis of antisocial behaviour as an adult and abuse of alcohol. However, the expert opinion did not make a diagnosis of sexual sadism. Referring to the Diagnostic and Statistical Manual of Mental Disorders it found that the necessary requirements were not met. It concluded that this diagnose seemed rather unlikely but could not be absolutely excluded without an extensive and credible sexual anamnesis.

8. On 13 May 2004 the applicant was transferred to the Hanau Clinic for Forensic Psychiatry.

9. On 21 November 2005 the applicant was examined by an exterior psychological expert who criticized in detail the diagnosis of sexual sadism during the trial, in particular the lack of information about the applicant ’ s inner experiences during the beginning of the disorder and its further development as well as the failure to evaluate his previous offences. The expert concluded that it remained doubtful, whether a diagnosis of sexual sadism could be made ( “ Es bleibt also weiterhin fraglich , inwieweit ein sexueller Sadismus wirklich vorliegt ” ).

10. On 11 December 2006 the Hanau Clinic for Forensic Psychiatry rendered an expert opinion. Although it mentioned the presumptive diagnosis of sexual sadism, it found that this presumption was not tenable in view of the history and the personality structure of the applicant. Even assuming that the applicant should have had a sadistic sexual disposition, he had experienced this without suffering and any ambition to change. According to the verdict of the trial court the applicant had realised this disposition probably with prostitutes in order to avoid that charges were pressed. Neither the files nor his statements disclosed indications which revealed a development of an addiction or of a pressing pervert imagination or of pathologic impulsiveness. There was no room for therapy as the applicant did neither suffer from his behaviour nor desired to change it. The clinic therefore concluded that the applicant ’ s committal to hospital had been erroneous.

11. On 3 September 2007, on 20 August 2008 and on 18 August 2009 the Hanau Clinic for Forensic Psychiatry rendered similar forensic psychiatric expert opinions. Despite the fact that all of them mentioned also the presumptive diagnosis of sexual sadism, they confirmed the previous findings. All expert opinions concluded that there were no indications for the diagnosis of sexual sadism except for the facts contained in the verdict of the trial court. In each expert opinion the applicant was described as a classic case of an erroneous hospital treatment order.

12. On 29 December 2009 the applicant refused to be examined by an external psychiatric expert.

13. On 26 January 2010 the applicant was transferred to the Haina Forensic-Psychiatric Hospital.

c. The re-opening of the criminal proceedings

14. On 30 September 2008 the Frankfurt am Main Court of Appeal admitted the re-opening of the criminal proceedings which had been terminated by the judgment of the Darmstadt Regional Court, dated 14 January 2002.

15. The Kassel Regional Court heard in the course of the proceedings, inter alia, a new psychiatric expert. The expert concluded that the applicant suffered from sexual sadism with the reservation that he had not examined the applicant in person but based his evaluation on the files only. Subsequently, the Kassel Regional Court dismissed the request to reopen the criminal proceedings. The applicant ’ appeal was to no avail.

16. The applicant lodged a constitutional complaint with the Federal Constitutional Court, which is still pending.

2 . The proceedings at issue

a. The current forensic psychiatric expert opinion

17. On 15 March 2011 the Haina Clinic for Forensic Psychiatry rendered an expert opinion on the necessity of the applicant ’ s further committal to a hospital. It made the diagnosis of a dissocial personality disorder, alcohol abuse and a presumptive diagnosis of sexual sadism. Although it found a high risk of the applicant to re-offend, it confirmed the prior assessment that the applicant was a classic case of an erroneous hospital treatment order. This conclusion was drawn from the fact that the applicant ’ s behaviour during the treatment never gave any grounds for the diagnosis of a mental disorder as it would have been to be expected from a person suffering from a psychiatric disorder.

b . The proceedings before the Darmstadt Regional Court

18. On 26 July 2011 the Regional Court heard the applicant and his counsel in person as well as a psychological expert from the Haina Clinic for Forensic Psychiatry.

19. On 28 July 2011 the Regional Court extended the applicant ’ s placement in hospital and refused to release him on probation. It elaborated that the detention in a psychiatric hospital could be terminated for an erroneous treatment order only, if it was with certainty established that the applicant did not suffer from a mental illness warranting his detention from the very beginning. In this context the Regional Court observed that neither the explanation of the psychological expert at the hearing nor the current and prior expert opinions had excluded that the applicant had suffered from sexual sadism although this diagnosis had been found to be rather unlikely. Further, the court took into account that the applicant had himself refused to give credible and full information about his sexual history and thus had rendered a diagnosis with certainty impossible. It held therefore that a committal to hospital by mistake had not been established beyond doubt. Without attaching any importance for the decision at issue the Regional Court mentioned finally the expert opinion which had been rendered in course of the re-opening proceedings of the criminal trial and which had confirmed the diagnosis of sadism.

c. The proceedings before the Frankfurt am Main Court of Appeal

20. On 29 September 2011 the Frankfurt am Main Court of Appeal affirmed the decision of the Regional Court. It observed that the applicant ’ s examination by an external psychiatric expert had not been necessary for exceptional reasons. The expert would have to base his findings on the files only as the applicant had announced to refuse any examination. Under these circumstances the Court of Appeal found that no new conclusions could be expected from an external expert opinion. Moreover, it found that the applicant ’ s condition and dangerousness had not changed since his last examination as he had refused to undergo any therapy. The Court of Appeal further rejected the applicant ’ s argument that the Regional Court had reproached him for failing to undergo therapy while the hospital considered him to be an erroneous admission. It held that in any event the cause of the applicant ’ s serious sexual crimes had to be reappraised therapeutically. In its view that would have been necessary even if the applicant had been sentenced to imprisonment. The applicant himself had to bear the consequences of his refusal to participate in any therapy as the hospital offered therapy to reappraise the causes of crime even for those patients which had been placed in hospital by error.

21. On 8 November 2011 the Frankfurt am Main Court of Appeal dismissed the applicant ’ s complaint not to have been heard.

d . The proceedings before the Federal Constitutional Court

22. On 16 August 2012 the Federal Constitutional Court (file no. 2 BvR 2679/11) refused to admit the applicant ’ s constitutional complaint for consideration without giving any further reasons.

B. Relevant domestic law

23. The German Criminal Code provides for the placement in a psychiatric hospital if an offender has acted with diminished criminal responsibility. The purpose of this measure is to rehabilitate dangerous offenders or to protect the public from them. The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to their dangerousness (Articles 62, 63 of the Criminal Code).

24. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court orders his placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant 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.

25. Article 67d of the Criminal Code governs the duration of detention. In its version in force at the relevant time, it provided in §§ 2 and 6:

“(2) If there is no provision for a maximum duration ... 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 offender.

...

(6) If, after the enforcement of a mental hospital order has begun, the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate, the court shall declare it terminated. The release shall automatically lead to the person being subjected to supervision. The court shall waive supervision if it can be expected that the person will not commit any further offences without it.”

26. Article 67e of the Criminal Code provides for the review of a person ’ s detention, inter alia, in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within a fixed time-limit of two years (Article 67e). According to Article 463 § 4 of the Code of Criminal Procedure the court shall obtain the opinion of an expert at least after every five year period of committal to a psychiatric hospital. The expert shall not, within the framework of such committal, have been concerned with the treatment of the person committed, nor shall he be working in the psychiatric hospital in which the person committed is located.

COMPLAINTS

27. The applicant complains under Articles 5 of the Convention about his internment in a psychiatric hospital despite the fact that the treating doctors in their annual reports did not make a diagnosis of a mental illness. He is of the opinion that the courts ignored these medical findings and arbitrarily extended his internment.

QUESTION TO THE PARTIES

Was the applicant deprived of his liberty in breach of Article 5 § 1 (e) of the Convention? In particular, was it reliably shown that the applicant was of unsound mind and that his mental disorder persisted?