GOBEL v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Alexander Göbel, is a German national who was born in 1970 and has been placed in a psychiatric clinic (Schloß Werdeck) in Straubing. The applicant has been convicted eleven times in the period between 1985 and 1994, inter alia of fraud in thirty-eight cases (judgment of the Bad Kissingen District Court of 12 February 1991) and in sixty cases (judgment of the Stuttgart Regional Court of 7 July 1994). On the latter occasion, he had been sentenced to two years’ imprisonment. On 13 March 2001, the Schweinfurt Regional Court convicted the applicant of fraud in nineteen cases and sentenced him to four years’ imprisonment. The Schweinfurt Regional Court stressed that the damage which the applicant had caused with his offences amounted to around 80.000 DEM. After having considered an expert opinion by a psychiatrist, the Schweinfurt Regional Court ordered the applicant’s placement in a psychiatric hospital because of his diminished culpability (eingeschränkte Schuldfähigkeit). According to the expert opinion, the applicant suffered from a severe personality disorder in combination with diminished intelligence. The numerous cases of fraud committed by the applicant were a direct consequence of that personality disorder. The disorder had also been noted in other examinations of the applicant in connection with previous criminal proceedings. The expert opinion stressed that the applicant had built his own dreamworld in which he saw himself as a very wealthy and smart businessman and which was carefully protected from outside social contacts. Because of his diminished intellectual capacity, the applicant lacked the capacity to estimate the consequences of his behaviour. The expert opinion concluded that there was a high danger of recidivism. The Schweinfurt Regional Court agreed with this conclusion, given that the lengthy period of imprisonment had not deterred the applicant from committing the above frauds. On 20 November 2002, the Schweinfurt Regional Court ordered the continuation of the placement. I. The decisions during the period 2003-2004 On 20 November 2003, the Schweinfurt Regional Court again ordered the continuation of the applicant’s placement in the hospital and scheduled the next review date for 19 November 2004. The court found that it could not be expected that the applicant would not commit any further offences and concluded that the remainder of the sentence could not be suspended on probation. The Schweinfurt Regional Court heard the applicant in the presence of his therapist and obtained a statement by the treating doctors of the psychiatric clinic. That statement was explained and discussed during the court hearing. According to the statement, collaboration with the applicant was markedly difficult. There was no sign of understanding of his disorder or a motivation for improvement on the part of the applicant. On the other hand, the applicant sought to live out his need for recognition through numerous legal proceedings, denunciations of clinic staff and disciplinary complaints. For a period of six months, the therapist had tried to increase trust in order to enable the applicant to settle his disputes without recourse to legal means. As the applicant increasingly adopted realistic views, the treatment showed first signs of success. An essential change in the applicant’s personality could however not be noted. The Schweinfurt Regional Court, after having heard the applicant, agreed with the clinic’s statement and found that the applicant’s situation, in particular his need for recognition, had not changed. As the impression which the court obtained from hearing the applicant matched exactly the clinic’s statement, the court saw no need to order an expert opinion by an outside expert. On 2 February 2004, the Bamberg Court of Appeal dismissed the applicant’s appeal against the decision of the Schweinfurt Regional Court of 20 November 2003. It found that it had not been necessary to obtain the opinion of an independent expert as the convincing expert opinion of the clinic doctors clearly indicated that a suspension could not be accounted for. The court agreed with the reasoning of the Schweinfurt Regional Court that a positive change in the applicant’s personality could not be observed. On the contrary, there existed the risk that the applicant, left at large, would commit further offences in the future which demanded the execution of the placement and continuing treatment. The Bamberg Court of Appeal noted that the applicant had announced the submission of an expert opinion (Privatgutachten) which had not been introduced in time. On 5 October 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It reasoned that the ordinary courts had sufficiently taken into account the applicant’s right to liberty. The courts had considered an expert opinion which at the time had not been older than three years together with a statement by the hospital. The latter document had not indicated that the applicant had responded to the treatment. Hence the courts had not been required to order a new expert opinion by an independent expert. It could not be objected to from a constitutional point of view that the courts had made a prognosis which was unfavourable to the applicant and that they did not consider the suspension of the applicant’s placement. On the contrary, the decisions were reasonable given the number of frauds committed by the applicant who had caused considerable damage and the lack of success in treating the applicant’s personality disorder which had abetted those offences. The applicant was represented by legal counsel in the above proceedings. II. Further developments regarding the applicant’s placement According to the applicant, the continuation of his placement was ordered on an annual basis in the following years, each time allegedly without having considered the opinion of an independent expert. Relevant provisions of the German Criminal Code (Strafgesetzbuch) Measures of reform and prevention are: 1. placement in a psychiatric hospital; (...) A measure of reform and prevention may not be ordered when it is disproportionate to the significance of the acts committed by, or expected to be committed by the perpetrator, as well as to the degree of danger he poses. Section 63 Placement in a Psychiatric Hospital If someone committed an unlawful act and at the time lacked capacity to be adjudged guilty (Section 20) or was in a state of diminished capacity (Section 21), the court shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator and his act reveals that, as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public. (1) If placement in an institution pursuant to Sections 63 and 64 is ordered collaterally to imprisonment, then the measure shall be executed before the punishment. (...) (5) If the measure is executed before the punishment, then the court may suspend the execution of the remainder of punishment and grant probation under the provisions of Section 57 subsection (1), sent. 1, no. 2, if half of the punishment has been completed. If the remainder of punishment is not suspended, the execution of the measure shall continue; the court may nevertheless order the execution of the punishment if circumstances relating to the convicted person make it seem advisable. (2) If no maximum term has been provided or the term has not yet expired, then the court shall suspend the further execution of the placement and grant probation if it can be expected that the person under placement will not commit any more unlawful acts if released from execution of the measure. Supervision of conduct shall commence with the suspension. (1) The court may review at any time whether the further execution of the placement should be suspended and probation granted. It shall make this review before the expiration of specified terms. (2) With respect to the various placements, these terms shall be: (...) one year, if in a psychiatric hospital;