CASE OF KLINKENBUSS v. GERMANY
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1964 and is currently detained in a psychiatric hospital in Lippstadt. 6. 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 lay on top of the girl on a bench. The criminal proceedings relating to these offences were discontinued because of the applicant’s lack of criminal responsibility as a minor. 7. 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 paragraph 28 below). 8. 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, sexually assaulted her with a stick and then attempted to kill her by strangling her to cover up his offences. When, on return to the crime scene, he realised that his victim was not dead, he forcefully hit her buttocks with a branch. 9. 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 paragraph 27 below). Having regard to the findings of expert H., the court was convinced that the applicant had reduced mental capacities which had been caused by infantile brain damage. This damage, combined with failings 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 offence. These disorders amounted to an “other serious mental abnormality” for the purposes of Articles 20 and 21 of the Criminal Code (see paragraphs 26-27 below). Moreover, a comprehensive assessment of the applicant’s personality revealed that, as a result of his condition and notably the sadistic tendencies which had manifested themselves in the offence of which he was found guilty, he could be expected to commit further unlawful acts and was therefore dangerous to the general public. 10. Since 29 January 1983 the applicant has been detained in a psychiatric hospital. 11. 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. 12. 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 refused 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 sex therapy no longer possible. 13. 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 paragraphs 29-31 below). 14. The Regional Court noted that external psychiatric expert T., in his report dated 28 January 2010, had diagnosed the applicant, whom he had examined in person, with an abnormality of the sex chromosomes (so-called Klinefelter syndrome). The latter had most probably caused an endocrine personality syndrome characterised by retardation and disorders in the development of a person’s personality and by an insufficient internalisation of ethical rules. The applicant had therefore developed a dissocial and schizoid personality. It was unclear whether the applicant still suffered from sadistic paraphilia. The expert considered that the applicant’s retardation had partially been offset by hormonal treatment. Moreover, the applicant’s dissocial conduct and schizoid personality disorder had been alleviated by social therapy and psychotherapy. 15. 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 of which the applicant had been convicted in 1983, and the attack on a woman at a time when he had already been detained in the psychiatric hospital in 1990, had to be taken into consideration. It appeared that it had not been possible to continuously pursue sex therapy with the applicant during his long psychiatric internment. There was a risk that, if the applicant were overstrained or frustrated, he might commit offences as a result of sadistic tendencies. The expert stated, however, that it was impossible for him to assess how far the applicant was still driven by sadistic fantasies. Consequently, the risk that the applicant would reoffend if released was difficult to assess and could only be determined in the course of further therapy. 16. A representative of the psychiatric hospital, in submissions to the court dated 7 December 2010, confirmed that the applicant had spoken with a psychologist on his request. However, he was still unable to reflect on the motives for his offence. Therefore, it was difficult to assess how dangerous the applicant was; there was a risk that he would reoffend if released. Furthermore, the therapist responsible for the applicant confirmed that it was impossible to make a proper assessment of the danger posed by the applicant. 17. The Regional Court, having heard the applicant and 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 leave from detention during recent years, it could not be expected with sufficient probability that the applicant would not reoffend if released. In particular, it could not be ruled out that his sadistic tendencies persisted. The applicant was currently not undergoing therapy, in the proper sense of the term, and suffered from hospitalism. 18. The Regional Court further considered that the continuation of the applicant’s detention was proportionate. In support of this view, it referred to the serious offence which had led to the applicant’s placement in a psychiatric hospital, to the fact that he had relapsed during the execution of his detention order and to the potential risk, as confirmed by the expert and the psychiatric hospital staff, that the applicant would reoffend if released. 19. On 23 February 2011 the applicant lodged an appeal against the Regional Court’s decision. 20. On 15 March 2011 the Hamm Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. 21. By submissions dated 1 April 2011, the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued detention in a psychiatric hospital for more than twentyeight 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 twentyeight 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 was no longer undergoing any therapy and that it was unclear whether he was still dangerous to the public. 22. 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). 23. The applicant underwent several courses of therapy, including social therapy and psychotherapy, during his detention in the psychiatric hospital. After the applicant had failed in his attempts to complete a sex therapy course on a number of occasions, the Lippstadt Psychiatric Hospital authorities decided to discontinue attempts at sex therapy for some time. The applicant was transferred to the so-called “long-stay” department of the hospital in 2006, where he was detained during the time covered by the proceedings at issue and where he did not undergo any sex therapy. The purpose of the applicant’s placement in the “long-stay” department was in fact to grant him a break from his failed attempts to complete sex therapy. He was being prepared for another attempt at completing sex therapy in psychotherapeutic one-to-one meetings with a psychologist. However, he had repeatedly declined offers to restart such individual or group therapy. 24. The applicant has been working in the factory on the premises of the psychiatric hospital. When granted leave under escort several times per year, he has visited members of his family. 25. On 18 January 2012 the Paderborn Regional Court, endorsing the reasons given in its previous decision, ordered the applicant’s continued detention in a psychiatric hospital. It agreed with the view expressed by the psychiatric hospital representative that sadism could not be cured and considered that there was a high risk that the applicant would again commit further serious offences against the life and sexual self-determination of others. On 20 March 2012 the Hamm Court of Appeal dismissed the applicant’s appeal.