CASE OF KUTTNER v. AUSTRIA
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1950 and currently lives in Traun. 6. On 21 January 2005 the Linz Regional Court convicted the applicant of having deliberately caused severe bodily harm and sentenced him to six years’ imprisonment. The court found that the applicant had beaten his 80year-old mother by kicking and punching her face, head and thorax, which resulted in a severe and lasting infirmity. The applicant had been convicted on seven previous occasions, four of which involved similar offences of violence. Relying on a report by a psychiatric expert, the court found that even though the applicant was responsible for his acts, he was suffering from a grave mental disorder, was dangerous to the public and was likely to re-offend. For these reasons, the court ordered the applicant’s detention in an institution for mentally ill offenders in accordance with section 21 § 2 of the Criminal Code, in addition to the term of imprisonment. Given the time the applicant had served in detention on remand, the Court stated that the applicant’s detention pursuant to the prison sentence was likely to end on 7 May 2010. 7. On 7 June 2005 the Linz Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against his sentence. On the same day the applicant was placed in Garsten detention centre, an institution for mentally ill offenders. 8. On 31 March 2006, in a first set of proceedings in which the applicant requested his conditional release from the institution, the Steyr Regional Court (“the Regional Court”) ordered that the applicant remain in the institution. The Court of Appeal dismissed the applicant’s appeal against this decision on 9 May 2006. 9. On 10 January 2007 the applicant applied for the lifting of the order to detain him at Garsten detention centre (under section 21 § 2 of the Criminal Code) in order to serve his sentence in an ordinary prison. 10. On 12 January 2007 the Regional Court asked the Garsten prison administration and its psychiatric and psychological service to transmit further information on the applicant, which it received on 9 March 2007. On 12 March 2007 it ordered a fresh psychiatric expert report and instructed the expert to submit the report before 11 June 2007. 11. On 23 June 2007 the applicant filed an application with the Court of Appeal for the setting of a time-limit (Fristsetzungsantrag) under section 91 of the Court Act (Gerichtsorganisationsgesetz) for the Regional Court to decide on his application, as the last determination of the continuing need to detain him had taken place on 9 May 2006, and he had not yet received a decision concerning his application of 10 January 2007. 12. On an unspecified date, the applicant was transferred to a psychiatric institution in Vienna. It appears, however, that this transfer was only temporary, and on an unspecified date, the applicant was transferred back to Garsten detention centre. 13. After having been urged by the Regional Court to deliver her report, the expert replied on 3 July 2007 that she would submit it as soon as possible. She did so on 10 July 2007 and explained that the applicant had meanwhile been transferred to an institution in Vienna, for which reason she had not been able to examine him earlier. She found that the applicant, even though he had started to respond positively to his therapy, was still suffering from a serious mental disorder and that there was still the risk that the applicant would commit dangerous acts of violence. 14. On 30 July 2007 the Court of Appeal granted the applicant’s application under section 91 of the Court Act and ordered the Regional Court to take a decision by 3 August 2007 at the latest. It held that in the light of the chronology of events in this case, the Regional Court had not fulfilled its duty to take a decision within a reasonable amount of time. 15. On 31 July 2007, after having held an oral hearing with the applicant present, the Regional Court ordered the continuation of his detention in an institution for mentally ill offenders. On the basis of the expert opinion obtained, the court found that the applicant was still dangerous and likely to re-offend. It dismissed the applicant’s request for the hearing of two prison officers as witnesses, since these persons could not make a relevant assessment in this respect and that therefore the applicant’s request lacked a relevant issue on which evidence should be taken (relevantes Beweisthema). 16. On 16 August 2007 the applicant appealed against this decision to the Court of Appeal maintaining his view that the placement in a psychiatric institution was no longer justified. He maintained, furthermore, that the length of the proceedings for the determination of this issue was in breach of Articles 5 and 6 of the Convention. 17. On 10 September 2007 the Court of Appeal dismissed the applicant’s appeal. On the basis of the evidence obtained, the expert report of a psychiatrist, reports by the head of Garsten detention centre and its psychiatric and psychological service, it found that despite progress in the applicant’s therapy he still suffered from a grave mental disorder and was likely to commit acts of violence in the future. The Court of Appeal also considered that the Regional Court had correctly dismissed the applicant’s request for the taking of further evidence. As to the applicant’s argument that the proceedings related to his request had lasted an unreasonably long time, the Court of Appeal found that, according to the relevant caselaw, the condition under section 25 § 3 of the Penal Code for annual review of the further necessity of detention in an institution was complied with if such a review had been started by the competent court within the one-year period, whereas it was not necessary that the decision following the review be taken within that time-limit. 18. On 28 February 2008 the applicant again applied for the order for psychiatric detention to be lifted, and to be transferred to an ordinary prison. After a further application by the applicant under section 91 of the Court Act, the application was finally examined on 10 September 2009, when the Regional Court ordered the termination of the applicant’s psychiatric detention, suspended the remaining seven months of his prison sentence and released him subject to a number of conditions.