AURNHAMMER v. GERMANY
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mr Veit Aurnhammer, is a German national who was born in 1984 and is currently detained in Straubing, Germany. When lodging his application he was represented before the Court by Mr G. Althammer, a lawyer practising in Cham, Germany. The latter informed the Court on 1 August 2014 that he no longer represented the applicant. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On 19 August 2004 the applicant was convicted by the Regensburg Juvenile District Court of causing bodily harm and damage to property because he had hit two ticket collectors in the face when they tried to prevent him from evading ticket controls and had damaged their clothes and glasses. He was further convicted of defamation and attempted coercion as he had insulted a prosecutor during one of his previous trials and had tried to intimidate her. Moreover, he was convicted of dangerous bodily injury because he had attacked with a knife the neck of a sleeping cellmate of whom he had previously felt humiliated and slightly injured him. Besides, the applicant was convicted of various offences of theft, minor fraud, and trespassing. Adding on another prison sentence imposed on the applicant in a previous judgment of 15 February 2000 for various offences of defamation, resisting bailiffs, bodily injury and theft, the court sentenced the applicant to an overall prison term of two years and six months in a juvenile prison. 4. Besides, the Court ordered the applicant’s indefinite placement in a psychiatric hospital in accordance with Article 63 of the Criminal Code (see paragraphs 17 and 18 below). 5. At the time the applicant committed the relevant criminal offences he was between nineteen and twenty years old. The court decided to apply the juvenile criminal law instead of the criminal law rules applicable to adults because it found, in line with the report of the psychiatric expert Dr S., deputy medical director (Oberarzt) of the forensic psychiatry and psychotherapy department of Regensburg Psychiatric Clinic and with the additional psychological expert opinion of psychotherapist H., that the applicant’s development as an adult was delayed, that he was still immature and had therefore to be treated as a juvenile and not as an adult. The court further found, in line with the psychiatric experts’ opinions, that the applicant had committed the criminal offences of causing bodily harm and damage to property, dangerous bodily injury, defamation and attempted coercion while in a state of diminished criminal responsibility (Article 21 of the Criminal Code, see paragraph 19 below), as he suffered mainly from a “borderline personality disorder of an impulsive type with dissocial components” and also from “adult hyperactivity syndrome”, which limited his ability to control his impulses. With regard to the other criminal offences he was convicted of, the court, in line with the psychiatric experts’ opinion, regarded the applicant as fully liable. 6. On 2 November 2005, 27 September 2006 and 27 September 2007 the criminal courts reviewed the applicant’s compulsory confinement in the psychiatric clinic in accordance with Articles 67d and 67e of the Code of Criminal Procedure (see §§ 20/21 below) and found on all three occasions that the applicant’s detention in a psychiatric clinic could not yet be suspended on probation. For the purposes of these review decisions, the inhouse psychiatric doctors at Straubing Psychiatric Hospital issued medical opinions on 9 August 2005, 14 August 2006 and 2 July 2007. 7. On 9 October 2008 the District Court again decided that the applicant still suffered from the psychological disorder which had led to the criminal offences of which he had been convicted in 2004 and that he could be expected to commit further offences of a certain gravity if released. The decision was delivered after having heard the applicant on 26 September 2007 and again on 21 May 2008. It was based on the above-mentioned expert opinion of 2 July 2007 by the in-house psychiatric team at Straubing Psychiatric Hospital and on a newly commissioned external expert opinion of the psychiatric expert Prof. Dr O., head of the forensic psychiatry and psychotherapy department of the University of Regensburg at Regensburg Psychiatric Clinic, who had delivered his expert opinion on 19 February 2008, had supplemented it on 28 July 2008 and had personally been heard by the court on 21 May 2008. 8. In the medical report of 2 July 2007 the team of in-house psychiatric experts at Straubing Psychiatric Hospital had expressed the view that the applicant could be expected to commit further crimes if released because he showed no insight into his psychological disorder. The expert opinion had further expressed the suspicion that the applicant might in fact be schizophrenic. 9. In his expert opinion Prof. Dr O. had diagnosed the applicant with an “emotionally unstable personality disorder of the impulsive type” and possibly also with “adult hyperactivity syndrome”. O. had further stated that, despite the fact that the personality of the applicant had matured considerably during his confinement, he could not at this stage be expected to abstain from committing any significant crimes if released. Although the applicant had obviously benefited from his placement in a psychiatric hospital and had not committed any criminal offences within the hospital, he was still not psychologically stable enough to be released. The biggest obstacle to his release was that the applicant still had very little insight into the fact that medical treatment was necessary now and in the future after a possible release. His compliance with his treatment had hence not yet been achieved. Furthermore, the applicant would need clearly structured sheltered accommodation if released. The preparations for such accommodation were not yet in place. The expert had further stated that, if the applicant could be further stabilised by psychotherapy, if his compliance with his treatment could be achieved in the future and if a place in adequately structured sheltered accommodation was prepared, the applicant could be released but would need to be prepared over a period of six to twelve months for such release on probation. 10. Following an appeal by the applicant, the Regional Court upheld the decision of the District Court on 16 January 2009. 11. On 8 October 2009 the District Court decided in accordance with Article 67d § 2 of the Criminal Code (see paragraph 19 below) that the applicant could not yet be released because, owing to his ongoing psychiatric illness, he could still be expected to commit crimes of a certain gravity if released. The Court based its decision on a newly commissioned expert opinion of the internal psychiatric team of Straubing Psychiatric Hospital of 7 July 2009 and the oral hearing of the deputy medical director treating the applicant of 30 September 2009. 12. The respective medical experts were still of the view that the applicant could be expected to commit further crimes if released, because he still lacked sufficient insight into his psychological disorder. There was still a suspicion that he might in fact be suffering from schizophrenia rather than from a borderline personality syndrome. But as he refused to cooperate fully with the doctors, a clear diagnosis that would allow a more specific treatment was difficult. The idea that the applicant was suffering from schizophrenia was therefore only a presumption which could not be confirmed or refuted. More rapid results from the applicant’s treatment could only be achieved if he complied fully with the medical and psychotherapeutic treatment. As he still had a negative attitude towards the medication and the psychotherapists, sufficient progress to justify his release could not be achieved. 13. On 23 December 2009 the Regional Court upheld the decision. It based its decision on the above-mentioned external medical opinion of Prof. Dr O. of 19 February and 21 May 2008 respectively and on the internal expert opinion of the psychiatric team of Straubing Psychiatric Hospital of 7 July 2009. The court held that there was still a clear diagnosis of “emotionally unstable personality disorder of the impulsive type” and possibly also of “adult hyperactivity syndrome”. This diagnosis did not contradict the diagnosis of “borderline personality disorder of an impulsive type with dissocial components” established by S. at the time of the applicant’s initial compulsory confinement. According to the Regional Court, Prof. Dr O. had made it clear before the court that that diagnosis just gave a more precise description of the mental disturbance from which the applicant had already been suffering when he committed the offences of which he had been convicted and when he had been compulsorily admitted, but did not describe a new mental illness. 14. The court further held that the idea that the applicant in fact suffered from schizophrenia was only an unverified presumption. His situation had not changed since the external expert O. had given his opinion on 19 February and 21 May 2008. According to the statement of the in-house psychiatric doctor, the applicant had still not developed any insight into his psychological illness that would result in full cooperation with regard to his medication. At the same time no structured sheltered accommodation had yet been prepared into which he could be placed after his release. He was therefore still to be expected to commit further crimes of a certain gravity if released. Considering the criminal offences he had committed in the past and the risk that he might again commit similar offences such as causing bodily harm and aggravated bodily injury, his continued detention for more than five years by that time was not yet disproportionate. 15. A further appeal lodged by the applicant with the Court of Appeal was rejected on the ground that domestic law did not provide for such an appeal. 16. A constitutional complaint and a request for restoration of the previous situation lodged by the applicant were of no avail. On 10 June 2010 the Federal Constitutional Court declined to admit the constitutional complaint for examination, without giving any reasons, and did not rule on the request for restoration of the previous situation (no. 2 BvR 1001/10). 17. In accordance with Article 63 of the Criminal Code placement in a psychiatric hospital may be ordered in the case of offenders who have acted without criminal responsibility or in the case of offenders who have acted with diminished criminal responsibility in addition to their punishment. 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 (Article 62 of the Criminal Code). 18. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court must order his placement in a psychiatric hospital without specifying a maximum duration, if a comprehensive evaluation of the defendant and his acts 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. 19. Criminal incapacity and diminished criminal responsibility are regulated by Articles 20 and 21 of the Criminal Code, which read as follows: Article 20 Criminal incapacity on account of psychological disturbance “Any person who at the time of the commission of the offence is incapable of understanding the unlawfulness of his or her actions or of acting in accordance with any such understanding on account of a pathological mental disorder, a profound consciousness disorder, mental deficiency or any other serious mental abnormality, shall be deemed to have acted without guilt.” Article 21 Diminished criminal responsibility “If the capacity of the offender to understand the unlawfulness of his or her actions or to act in accordance with any such understanding is substantially diminished at the time of the commission of the offence for one of the reasons indicated in Article 20, the sentence may be mitigated in accordance with Article 49(1).” 20. Article 67d of the Criminal Code governs the duration of detention. In the version in force at the relevant time, it provided: Article 67d Duration of detention “(1) ... (2) If no maximum period has been provided or the period has not yet expired, the court shall suspend the measure for a probationary period if it can be expected that the person subject to the measure will not commit any more unlawful acts if released. The order for suspension shall automatically lead to the person being subjected to supervision. ... (6) If, after the enforcement of a 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. Following release the person concerned shall automatically be placed under supervision. ...” 21. Article 67e of the Criminal Code provides for the review of a person’s detention, including in a psychiatric hospital. The court may review at any time whether the continued execution of the detention order should be suspended and the person concerned placed on probation. It is obliged to do so within fixed time-limits (Article 67e, first paragraph). For persons detained in a psychiatric hospital, this time-limit is one year (Article 67e, second paragraph).