PUTTRUS v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Klaus Puttrus, is a German national who was born in 1952. He is currently in a forensic psychiatric clinic in Hanau. In 1969, 1972 and 1974 respectively the applicant was convicted of attempted rape. On 5 February 1984 the applicant was placed in pre-trial detention. On 3 December 1984 the Frankfurt am Main Regional Court convicted the applicant of three counts of attempted rape, combined with sexual assault in one case, with assault in another case and with dangerous assault in the third case. Having consulted an expert, who had diagnosed the applicant as suffering from a schizoid and narcissistic personality disorder, the court considered that the applicant had committed his offences with diminished criminal responsibility. It sentenced him to five years and six months’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see Relevant domestic law below). The applicant was detained in prison until 27 March 1985. Since then, he has been detained in a psychiatric hospital (apart from the period from 26 June 1995 to 5 September 1997 during which he was in preventive detention), initially in Haina and since 2003 in Hanau. The applicant’s detention in a psychiatric hospital has been reviewed at regular intervals (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below). In particular, on 29 April 2005 the Gießen Regional Court, in a decision confirmed on appeal, rejected the request of the applicant, represented by counsel, to terminate or suspend on probation his detention in a psychiatric hospital. It had regard to the report of an external expert consulted in 2001, who had diagnosed the applicant with a schizoid personality disorder with narcissistic and sadist elements, to two earlier medical expert reports and to a statement of the director of the Hanau clinic for forensic psychiatry of 2005. The latter had agreed with the finding of the external expert that the applicant’s personality disorder persisted and had confirmed that, contrary to the applicant’s own assessment, the applicant had not cured his sexual sadism by meditation. The Regional Court found that the conditions for the detention of the applicant, who kept refusing all offers of therapy made to him, in a psychiatric hospital were still met and that there was a risk that the applicant would commit further serious sexual offences if released (Article 67d of the Criminal Code, see Relevant domestic law below). On 16 December 2005 the Federal Constitutional Court dismissed the applicant’s constitutional complaint (file no. 2 BvR 1212/05). It found, in particular, that the courts ordering the continuation of the applicant’s lengthy detention respected the principle of proportionality. In finding that there was a risk that the applicant would commit serious offences, the courts had not only considered earlier expert reports, but also a recent statement made by the psychiatric hospital. It had not yet been necessary to consult an external psychiatric expert again. Even though the applicant’s detention had lasted for more than twenty years, its continuation was not yet excessive as the offences the applicant might commit were serious and as the applicant refused any therapy. On 19 April 2006 the Gießen Regional Court dismissed the request of the applicant, who had refused to be heard in person, to have his detention in a psychiatric hospital terminated or suspended on probation (see Article 67d and Article 67e of the Criminal Code). Having regard to the applicant’s written submissions and referring to its decision of 29 April 2005 (see 1.b. above), it argued that there had been no changes justifying a different assessment. In particular, as the director of the Hanau forensic psychiatric clinic had confirmed in his statement of 2 February 2006, no progress in the applicant’s treatment could be made as the applicant kept refusing all offers of therapy. The applicant still suffered from a schizoid personality disorder and might suffer from sexual sadism. Even though this did not necessarily entail a constantly diminished criminal responsibility, the applicant still risked committing sexual offences if released, similar to the ones of which he had previously been convicted. On 23 May 2006 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. Referring also to the decision taken by the Gießen Regional Court on 29 April 2005, as confirmed on appeal and by the Federal Constitutional Court, the Court of Appeal found that the grounds for these decisions, in particular the applicant’s dangerousness, had not changed. The Court of Appeal further considered that the applicant’s continued detention for more than twenty years was still proportionate. There was a risk that the applicant would commit offences causing grave damage if released and kept refusing treatment even though he had himself been aware of his need of therapy since 1984, believing that he could cure himself by meditation. As had again been confirmed by the medical director of the Hanau forensic psychiatric clinic in his statement of 2 February 2006, repeated attempts to motivate him to accept treatment had been to no avail. On 19 October 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1368/06) lodged against the decisions of the Gießen Regional Court dated 19 April 2006 and of the Frankfurt am Main Court of Appeal dated 23 May 2006. The Federal Constitutional Court found that the applicant’s complaint had no prospect of success. The courts dealing with the execution of the applicant’s detention had had sufficient regard to the numerous external and internal expert reports obtained during the applicant’s long detention and had taken into account possibly different assessments made by these experts. There was nothing to indicate that the reports drafted by external experts had failed to comply with the minimum standards required by the Basic Law. In so far as the applicant considered himself cured, he was simply replacing by his own view the assessment made by the courts with the help of experts and by the psychiatric hospital. As to the question whether the applicant’s continued detention in a psychiatric hospital was proportionate, the Federal Constitutional Court referred to the reasons of its decision of 16 December 2005 (file no. 2 BvR 1212/05, see 1.b. above). The German Criminal Code distinguishes between penalties (Strafen) and socalled measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted with diminished criminal responsibility, in addition to their punishment (compare Article 63). 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). Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant and his act 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. Article 67d of the Criminal Code governs the duration of detention. In its version in force at the relevant time, it provided: Article 67d “(1) Detention in a detoxification facility may not exceed two years ... (2) If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the offender. (3) If a person has spent ten years in preventive detention, the court shall declare the measure terminated if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. (...)” If the court considers following the commencement of detention in a psychiatric hospital that the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate, it declares the measure terminated (Article 67d § 6). Article 67e of the Criminal Code provides for the review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§ 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year, for persons in preventive detention it is two years (§ 2 of Article 67e).