MICHAJLOV v. AUSTRIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Valentin Michajlov, is an Austrian national who was born in 1952 and lives in Krems. He is represented before the Court by Mr H. Blum, a lawyer practising in Linz. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 4 May 2005 the Vienna Regional Criminal Court (Landesgericht) convicted the applicant of various offences under the Drugs Act and sentenced him to eight years’ imprisonment. It found him guilty of having commissioned various persons between May and November 2001 to import cocaine to Austria and to have sold some seven kilos of cocaine to various individuals in Austria. In fixing the sentence, the court had regard to the fact that the applicant had four previous convictions two of which also concerned offences under the Drugs Act. It also revoked the suspension of a term of three months’ imprisonment resulting from a previous conviction. The applicant’s imprisonment was due to be terminated on 14 November 2011. 4. The applicant was detained at Sonnberg Prison when he was diagnosed with multiple sclerosis in December 2006. Subsequently, he was regularly taken to the public hospital in St. Pölten, which has an out-patient department specialised in the treatment of multiple sclerosis. Examinations took place on 11 January, 14 March and 25 September 2007 and on 23 January 2008. 5. By decision of 28 January 2008 the Korneuburg Regional Court, noting that the applicant required more intensive medical treatment and care, ordered his transfer to Stein Prison for the further execution of his sentence, as that prison centre was equipped with a hospital of its own. However, the Regional Court refused the applicant’s request for a suspension of the execution of his sentence pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act (Strafvollzugsgesetz). 6. The Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal on 3 March 2008. It noted on the basis of a medical expert opinion that the applicant, suffering from multiple sclerosis, was unfit for detention. However, he was to be considered dangerous within the meaning of section 5 § 3 of the Execution of Sentences Act. He had been convicted five times. His last conviction for importing and selling seven kilos of cocaine concerned a particularly serious crime. Although the applicant’s mobility was reduced by his illness, he could use his contacts within the criminal scene to commit or instigate further crimes. 7. On 3 April 2008 the applicant was transferred to Stein prison. From that date he was detained in the hospital of Stein prison. The Government submitted a statement of the head doctor of the Stein prison: The hospital has its own medical and nursing staff. Doctors carry out daily visits and medical and nursing assistance is available 24 hours per day. All sanitary facilities in the prison hospital are suitable for persons with disabilities. The preparation of food takes special needs into account. 8. Until 20 January 2009 the applicant was placed in room no. 117 of the prison hospital, which is equipped with sanitary facilities (shower and toilet) suitable for persons with disabilities. Subsequently, he was placed in two other rooms of the prison hospital, namely room no. 129 until 9 May 2009 and room no. 134 until his release. While staying in these rooms the applicant could use the hospital’s common shower room with the assistance of prison staff. 9. The applicant continued to receive treatment at the multiple sclerosis department at the St. Pölten public hospital. An examination scheduled for 22 April 2008 was refused by the applicant. Further examinations took place on 27 May and 26 November 2008 and on 17 February and 18 June 2009. The applicant’s therapy was fixed and continuously adapted by the specialists of the multiple sclerosis department and was carried out at the prison hospital. Moreover, the applicant was treated by the prison hospital’s pain specialist several times. 10. In addition to medication, the applicant received physiotherapy from 2009. This was available in the prison hospital. A first set of ten therapy units was prescribed. The applicant underwent five units between 2 and 17 March 2009 but renounced to make use of the remaining units. Subsequently, physiotherapy was resumed and the applicant received eleven therapy units between 4 and 29 May 2009. 11. On 10 June 2008 the applicant, represented by counsel, requested anew that the execution of his sentence be suspended due to his illness pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act and that he be released. 12. He joined an opinion by an expert on neurology and psychiatry, Dr. K. According to the expert’s opinion dated 8 January 2008 the applicant was unfit for detention. Since he had been diagnosed with multiple sclerosis in December 2006 his state of health had deteriorated considerably. In particular, the mobility of his arms and hands was restricted and he could no longer perform simple gestures necessary for everyday life, such as handling cutlery for instance. His general mobility on the EDSS scale was 4 (0 being full mobility, 7 meaning dependency on a wheel-chair). He received medication, however this was not sufficient as according to medical opinion a multidisciplinary approach, encompassing neurology, physiotherapy and psychology, was necessary for treating multiple sclerosis. The support by close relatives was also crucial. 13. As to the question whether there was still a danger that he would commit further offences, the applicant submitted that all his energy was devoted to combating his illness. Should the court have doubts in respect of his dangerousness, he requested that the opinion of an expert be taken. 14. On 23 July 2008 the Krems Regional Court dismissed the applicant’s request. It noted that according to the prison administration, the applicant’s conduct was good. According to the prison doctor, the applicant’s condition was stable for the time being but could deteriorate at any time. Referring to the expert opinion, the court acknowledged that the applicant was unfit for detention due to his illness. However, he was to be considered particularly dangerous. In that respect, the court referred to the decision by the Vienna Court of Appeal of 3 March 2008, which had found that even if his mobility was reduced there was a danger that the applicant might use his contacts to organise further drug trafficking. Therefore the conditions for suspending the execution of his prison term as laid down in section 133 § 1 taken in conjunction with section 5 § 3 of the Execution of Sentences Act were not met. 15. The applicant appealed, claiming in particular that his illness had weakened him substantially and all remaining energy was required to cope with the illness. Consequently, it could no longer be assumed that he would commit further offences. In that connection he complained that the Regional Court had assumed that his dangerousness persisted without having taken a further expert opinion. 16. By decision of 25 August 2008 the Vienna Court of Appeal dismissed the applicant’s appeal. It noted that the applicant suffered from multiple sclerosis and was unfit for detention. However, it confirmed the Regional Court’s view regarding the applicant’s dangerousness. It observed that he had been convicted five times. The prison term he was serving related to the trafficking of a substantial amount of drugs, namely seven kilos of cocaine which he had imported though third persons and sold in Austria. Pursuant to section 5 § 3 of the Execution of Sentences Act, the sentence had to be executed even where the detainee was unfit for detention if he presented a danger to the security of others having regard to the nature of his offences or the motive for which they were committed or in view of his prior conduct. The court referred to the applicant’s recidivism and the large amount of drugs which he had sold, and found that his dangerousness was not offset by the effects of his illness. 17. In sum, the Court of Appeal found that despite the fact that the applicant was unfit for detention, his substitute confinement (Ersatzhaft) – if need be in a public hospital – was required for the protection of others. 18. By application of 1 April 2009 the applicant again requested that the execution of his sentence be suspended pursuant to section 5 § 3 taken together with section 133 § 1 of the Execution of Sentences Act and that he be released. 19. He submitted a private expert opinion by Dr. H, a neurologist, psychiatrist and physiotherapist. The opinion, dated 26 March 2009, stated that the danger that the applicant would commit further offences had considerably decreased. While his prior convictions indicated a certain risk, all other relevant factors rather allowed a positive prognosis. His severe and progressive illness required all his energy and had led to a profound change. Moreover, the applicant’s age, his reduced mobility, the need of constant medical treatment and his dependency on help from others made it unlikely that he would commit further offences. 20. The Krems Regional Court appointed a psychiatric expert Dr. B. In his opinion, dated 15 September 2009, Dr. B. noted that the applicant was detained in the prison hospital and that according to the prison doctor his state of health had deteriorated over the last months. By now he was able to walk only with great difficulty. The expert confirmed that the applicant was unfit for detention due to his illness. Regarding his dangerousness, the expert found that the applicant still made an astonishingly energetic impression. Although his progressive illness and his age could be considered as a factor reducing the probability of a relapse into crime, his personality did not necessarily indicate that he would refrain from committing further offences. In sum, the remaining danger had to be compensated by stabilising factors such as assistance by a probation officer (Bewährungshelfer). 21. On 12 October 2009 the Krems Regional Court ordered the applicant’s release. It noted that the applicant was detained in the prison hospital. The hospital’s head doctor had submitted comments in favour of release. Furthermore, expert Dr. B. had found that the applicant’s inclination to commit further offences had decreased but not totally disappeared and had recommended that a probation officer be appointed in case of release. 22. Referring to its previous decision, the Regional Court noted that the applicant suffered from multiple sclerosis and was unfit for detention. While that decision had refused the applicant’s release on account of his dangerousness, the applicant’s good conduct in the meantime and Dr. B.’s expert opinion led to the conclusion that the applicant’s dangerousness had decreased. On the condition that he would reside with his mother and be assisted by a probation officer it could be assumed that he would not commit further offences. The execution of his sentence was therefore suspended pursuant to section 133 § 1 of the Execution of Sentences Act. 23. In order to allow for the necessary preparations, the court ordered that the applicant be released on 20 October 2009. 24. The applicant was released on that day. 25. Section 5 § 1 of the 1969 Execution of Sentences Act provides that the execution of a prison term is to be suspended if the convict is unfit for detention due to invalidity or a physical or mental illness. Pursuant to section 5 § 3 of the said Act a convict who is unfit for detention may nevertheless be deprived of his liberty if he presents a danger to the security of the State or to the security of third persons, having regard to the nature or the motive of the offence committed by him, or in view of his prior conduct. If need be, confinement is to be carried out at a public hospital. 26. Pursuant to section 133 § 1 the execution of a sentence has to be suspended if a prisoner becomes unfit for detention while serving his prison term. The conditions set out in section 5 apply.