BÄCKER v. GERMANY
Inadmissible
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Mr Heinz-Werner Bäcker, is a German national, who was born in 1963 and lives in Lippstadt. He is currently confined in a psychiatric hospital in Eickelborn Lippstadt. He was represented before the Court by Mr C. Ernst, a lawyer practising in Bielefeld. 2. 3. On 29 January 1981 the Hamm Juvenile Court (Jugendschöffengericht) charged the applicant with rape and attempted rape, committed on 5 August and 19 September 1980 respectively. In the first case the applicant ran into a 16-year old girl and knocked her down. He then suffocated and threatened to kill her, and raped her. In the second case he had followed a girl and wanted to rape her. As his bike was jammed, he gave up the chase and masturbated in a field. He apprehended a 25-year old woman who was walking, choked her and threatened to strangle her. As she fought him off and cried for help, some passers-by noticed them and he could not penetrate her. The court sentenced him to a year and ten months imprisonment and placed him on probation because he and his mother had consented to him being given medication and placed in a young offender’s institution. 4. On 24 September 1981 the applicant knocked down a 24-year old cyclist, dragged her into a ditch, suffocated her until she lost consciousness and raped her. When she regained consciousness and made an attempt to flee, he abused her and left her senseless and badly injured in a field while he drove off. The victim was hospitalised for a month, and suffered from paralysis of the eye muscle until the beginning of 1982, and was, a year after the attack, still in a terrible psychological state with suicidal and depressive tendencies. 5. On 17 September 1982 the Münster Regional Court convicted the applicant of rape in two cases, in one case in combination with grievous bodily harm, and in the other case with attempted rape. He received a global youth sentence of five years, which included the previous sentence of the Juvenile Court. It based its decision on the opinion, dated 19 April 1982, of an external psychiatric expert, who had examined the applicant and had seen medical, social and school reports about the applicant and his family from 1970 until 1980, which all stated that the applicant had a difficult family situation and had physical and learning difficulties. The expert found that the applicant suffered from a psychopathic personality disorder with an increased sex drive and lack of willpower. The Regional Court further held that the applicant had acted with diminished responsibility when committing the offences because of a mental disorder (pursuant to Article 21 of the Criminal Code, see Relevant domestic law below). It consequently ordered that the applicant be placed in a psychiatric hospital in accordance with the relevant provisions of German law before starting the youth sentence. At the time of committing the offences, the applicant was 16 and 17 years old respectively. He has been in a psychiatric facility since 15 October 1982. 6. Since 1987 the applicant has been examined regularly every three years by different external psychiatric experts, who had not treated the applicant before and who did not belong to the psychiatric facility in which the applicant is placed. 7. On 6 December 2010 the external expert K., a psychologist, psychotherapist and professor at a university of applied science, issued a statement after examining the applicant on 19 and 27 October 2010. In his assessment of the applicant’s legal prognosis the expert took into account the previous opinions of eight different external psychiatric experts on the applicant’s state of health dating from 1987, 1991, 1993, 1995, 1998, 2001, 2004 and 2008 as well as his medical file containing statements by attending doctors regarding the applicant’s conduct in hospital and the therapy implemented since his confinement in 1982. 8. The expert found that the applicant was suffering from a histrionic, narcissistic and antisocial disorder with impulsive and aggressive tendencies, that had developed as a result of him being neglected and abused at home in the past. He was easy to provoke and irritate, emotionally instable and his threshold for aggressive behaviour was low. In the course of his stay in hospital the applicant had, on a few occasions, shown aggressive and somewhat violent reactions towards fellow patients after being provoked or in situations where he had felt harassed. However, in none of these cases had the applicant tried to strangle someone or injure them badly, and there was nothing to suggest that his aggressive behaviour had increased in frequency or intensity over the years. The expert emphasised that the applicant was trusted with looking after the ward’s petting zoo and always carried out his everyday tasks. 9. In the expert’s view, it had to be expected that outside the hospital the applicant would commit offences similar to those which had been the reason for his confinement. When examined by the expert, the applicant had indicated that he had seen no need to continue his therapy. Further treatment and medication were however necessary with a view to minimising the risk of him reoffending. For the time being, the applicant’s release from hospital could not therefore be recommended. The expert specified in this connection that his assessment was based on the assumption that the Regional Court would come to the conclusion that the offences the applicant might commit were so serious that for the safety of the general public his continued placement was required. The expert concluded that the applicant could not be regarded as a treated sex offender. 10. In March 2011 the applicant, represented by a lawyer, requested that his further placement be declared disproportionate or, alternatively, that an additional psychiatric assessment be carried out. He submitted that his continued detention for the past twenty eight and a half years had violated his human rights. 11. On 22 March 2011, without hearing the applicant orally, the Paderborn Regional Court rejected the applicant’s request. It took into consideration a report by the psychiatric facility of 1 September 2010, which concluded that despite the applicant’s mostly satisfactory behaviour in the daily routine on the ward, it could not issue a positive legal prognosis, owing to the stagnating progress of his therapy. 12. On 28 April 2011 the Hamm Court of Appeal overruled the Regional Court’s decision because the external expert opinion dated 6 December 2010 had not been included in the decision-making, and neither the expert nor the applicant had been heard. The Court of Appeal referred the case back to the Regional Court for a new decision. 13. On 10 June 2011 the Paderborn Regional Court again ordered that the applicant’s placement in hospital be continued. Relying on written statements by the Lippstadt Psychiatric Hospital, where he was held, see paragraph 1, of 6 June 2011 and the prosecution authorities, the independent expert opinion of 6 December 2010, the applicant’s oral testimony and the applicant’s lawyer’s statement, the court found it established that the applicant’s legal prognosis was still negative. The expert had stated that the applicant was suffering from a combined personality disorder including affective instability, lack of willpower, an inability to create relationships, and denial of the crimes. According to the expert, the applicant needed the protective environment and care of an institution for a fairly long time, as he still had not shown any insight into his illness or empathy with the victims, and obstinately refused to consider any proposals by the attending doctors to adjust his psychotherapy, as was required for the long-term treatment of his disorder. 14. On 1 September 2011 the Court of Appeal, endorsing the Regional Court’s reasoning, dismissed the applicant’s appeal as ill-founded. It added that as long as there remained a serious risk that he could commit similar offences, and as long as he refused treatment, his continued placement in a psychiatric facility was vital and proportionate. 15. On 1 June 2012 the Federal Constitutional Court rejected the applicant’s constitutional complaint without giving further reasons (file no. 2 BvR 2120/11). 16. The applicant’s further detention was subject to annual review. On 13 June 2012 the Paderborn Regional Court ordered that the applicant’s placement be continued after hearing the applicant and taking into consideration the psychiatric facility’s report of 13 April 2012. The report asserted that the applicant continued to suffer, without any change, from a combined personality disorder including histrionic, narcissistic and antisocial aspects with an undifferentiated perception of other people, a high level of egocentrism and rigid and inflexible behaviour and thinking. The report emphasised that despite the fact that in the psychiatric hospital the applicant was well integrated into everyday life and assumed responsibility for his behaviour, he had difficulties with change. The court considered that the applicant adhered to the accompanied relaxation of his detention but he considered the medical report and a supplementary opinion as “brashness” (Frechheit) and demanded his release. The court considered that the applicant’s placement had to be continued, as his demanding and impulsive behaviour gave grounds for suspecting that he would reoffend once outside a structured environment. 17. On 31 July 2012 the Hamm Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision. 18. On 5 June 2013 the Paderborn Regional Court on the basis of a fresh report of the psychiatric facility of 15 March 2013, ruled that the applicant’s detention should be continued as the applicant continued to lack social skills and showed a high level of egocentrism which was contrary to a positive social and legal prognosis. The court found that no progress in his treatment could be established as he continued to refuse proper treatment. 19. On 23 July 2013 the Hamm Court of Appeal confirmed the Regional Court’s decision and specified that since the applicant had refused any offers of therapy, there was still a risk of him reoffending. 20. On 18 November 2013 the Federal Constitutional Court (file nos. 2 BvR 2180/13 and 2 BvR 2200/13) declared inadmissible constitutional complaints lodged by the applicant against the Hamm Court of Appeal’s decisions of 31 July 2012 and 23 July 2013. It found that the applicant had not sufficiently substantiated his complaints, as he had simply alleged that his confinement was disproportionate, that medical opinion was lacking, and that he had formulated controversial allegations against the courts without dealing with their arguments and reasoning. The Federal Constitutional Court added that it was not its task to identify the relevant legal points among the documents submitted. Even applicants who were not represented by a lawyer had to – so far as possible – substantiate their complaints. 21. The pertinent domestic law is reproduced in the case of Klouten v. Germany ((dec.), no. 48057/10, 19 March 2013, §§ 38-43). 22. In accordance with Article 21 of the Criminal Code, if an offender is only partially capable of appreciating the unlawfulness of his actions or of acting in accordance with any such appreciation because of a pathological mental disorder, a profound consciousness disorder, mental incapacity or any other serious mental abnormality, he is said to have acted with diminished responsibility.