DISSENTING OPINION OF JUDGE Zupančič

1. It is to my regret that I cannot agree with my colleagues on one particular point in this judgment against Germany, which is why I dissented concerning point 2 of the operative part (violation of Article 5 § 1).

2. The essence of the disagreement concerns paragraph 88 of the judgment. The majority seems to maintain that a person of “unsound mind” must be offered the appropriate therapeutic environment. In the case at hand there has indeed been a disagreement between the medical director of the psychiatric department of Straubing Prison and some other experts engaged concerning the proper diagnosis, prognosis and treatment of Mr O.H.

3. The key question is not whether a person diagnosed as having personality disturbances (psychopathy) is either sane or insane according to the usual rules of substantive criminal law. However, the problem of their placement in a psychiatric hospital is at least 30 years old. As a constitutional question it arose in the D.C. Circuit in American law in the late 60s and early 70s. At that time, the general staff of the St. Elizabeth Hospital in the District of Columbia has taken the position that people with personality disturbances (psychopaths) are not treatable and are not for the purposes of criminal responsibility insane. We shall not here entertain the question of insanity defence although it is not completely detachable from the question of placement of an inmate with a personality disturbance.

4. The question is whether a person with such a diagnosis, given the communis opinio doctorum is treatable at all and whether he does or does not belong in the psychiatric hospital in the first place. Let us emphasise that this is not a question of principle or inherent (in)justice. It is a question of policy deriving from the established empirical fact that people with personality disorders tend to create problems which psychiatric hospitals are ill-equipped to deal with.

5. The problem is neither new nor undecided. The constitutional issues deriving from the right to treatment referred to in the last sentence of paragraph 90 of the judgment have already been confronted and in fact decided. This would be one case in which the resulting comparisons with other legal systems that have already dealt with the problem ought to be taken seriously.

6. If the implication of the judgment is that psychopaths ought to be transferred to psychiatric hospitals and offered the (non-existent) treatment for their personality disorders, then this kind of decision with consequences not only for Germany but also for the rest of the 47 countries of the Council of Europe, is a subject for the Grand Chamber.

7. The issue there would not be a question whether the person with a personality disturbance is or is not of “unsound mind”: it would be much more specific.

8. A categorical position would have to be taken concerning the criminal responsibility of people with personality disturbances on the one hand and their right to treatment, should they be committed as criminally insane on the other hand.

9. The way things stand in jurisdictions that have already dealt with the problem is that people with personality disturbances (psychopaths) are criminally responsible and they do belong in prison, not in a psychiatric hospital. More specifically the problem with the judgment of the majority is simply the assumption, elaborated in paragraphs 88, 89, 90 and 91, to the effect that people of “unsound mind” belong in psychiatric hospitals and have a right to treatment. To put it differently, the category of persons of “unsound mind” is far too broad and insufficiently nuancé to cover the problem that we are dealing with here.