CASE OF LORENZ v. AUSTRIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1964 and is detained in Krems. 7. On 9 February 1983 the applicant shot his cousin, P.D., three times in the chest and stomach. His victim died. The applicant then decapitated P.D. and disposed of his head. 8. On 15 February 1983 the applicant shot dead two women, namely his former girlfriend, U.E., as well as her mother, S.E., using the same gun as he had used for the previous murder. 9. The applicant was arrested on 26 February 1983 and remanded in custody. 10. On 14 March 1984 the Vienna Regional Criminal Court (Straflandesgericht – hereinafter, “the Criminal Court”), sitting as an assize court (Geschworenengericht), convicted the applicant of triple murder and disturbing the peace of the dead (Störung der Totenruhe). He was found to be criminally responsible for his acts and was sentenced to twenty years’ imprisonment. In addition to the sentence, the Criminal Court ordered his detention in an institution for mentally ill offenders in accordance with Article 21 § 2 of the Criminal Code (Strafgesetzbuch; see paragraph 31 below). A psychiatric expert, Dr Q., had found in his expert opinion that the applicant presented a distinctive picture of secondary personality defence mechanisms, in the sense of suppression of fear, emotion and sexuality. His potential for aggression was increased and he was emotionally unstable and could easily become aggressive. Moreover, there were clear signs of an identity disorder. 11. The above judgment was upheld by the Supreme Court (Oberster Gerichtshof) on 27 September 1984. 12. The applicant has been detained in institutions for mentally ill offenders since 27 September 1984. He served his prison sentence until 26 February 2003 (as the time he had spent in pre-trial detention – see paragraph 9 above – was counted towards his prison sentence). Thereafter, he remained in preventive detention, subject to yearly review proceedings in accordance with Article 25 § 3 of the Criminal Code (see paragraph 32 below). He was first detained in the units for mentally ill offenders of the Vienna-Mittersteig Prison and Graz-Karlau Prison (Justizanstalt), and since 2008 has been detained in the respective unit of Stein Prison in Krems. 13. On an unknown date in 2008, the applicant applied for release from the institution for mentally ill offenders. He argued that he had completed individual therapy with Professor G. in the Vienna-Mittersteig Prison as well as specialised therapy preparing him for his release with an external therapist. Two psychiatric experts had attested that the danger emanating from him had abated or was significantly reduced. Even though different entities had suggested that he be granted privileges (Vollzugslockerung) under section 126 of the Execution of Sentences Act (Strafvollzugsgesetz – see paragraph 41 below), he had not yet been granted any. The applicant claimed that his lawyer had offered him a job and a small apartment if he were released. 14. On 25 February 2009 the Krems a.d. Donau Regional Court (Landesgericht – hereinafter, “the Regional Court”) ordered the continuation of the applicant’s detention in the institution for mentally ill offenders. It referred to an expert opinion of 25 January 2009 by Dr L., who had stated that the applicant’s condition had stabilised and that the danger emanating from him had considerably abated in respect of the closed and protected living environment of the prison. However, the same could not be said with certainty for a life outside prison. The director of the prison did not recommend releasing the applicant either, as the special therapy he needed in order to be prepared for release was only available in the ViennaMittersteig Prison. The applicant waived his right to appeal against that decision. 15. On 20 September 2009 the applicant again applied for release, reiterating that Dr L. in his expert opinion of 25 January 2009 had attested that a process of mental stabilisation had taken place and that it was highly likely that the danger emanating from him was significantly reduced. The applicant claimed that he had successfully completed psychotherapy, which he considered as sufficient preparation for life outside of prison. He emphasised that he was willing to be treated, but that currently he was not receiving any therapy. Moreover, he reminded the court that his lawyer would be able to supply a flat and a job for him if he were released. He complained that the prison authorities had refused his requests to be granted privileges, and as a consequence the domestic courts had dismissed his previous applications for release as he had not been prepared for it. 16. On 15 March 2010 the Regional Court, having held an oral hearing, ordered the continuation of the applicant’s detention. It confirmed that Dr L., in his additional expert opinion of 24 February 2010, had referred to the fact that the applicant’s condition had stabilised. Even though the applicant had developed an aversion to psychotherapy, he did not refuse to talk to psychiatrists. He was actively seeking a dialogue with them. However, Dr L. also found that no protection and support would be provided for the applicant after his release. Without such support, conditional release would be too risky from a psychiatric point of view. The stress caused by the overwhelming feeling of unpreparedness for release could lead to near-psychotic or micropsychotic disorders, the danger of which was unpredictable. 17. The Regional Court also referred to the expert opinion of Dr H. of 31 October 2006 and the forensic expert opinion by the Vienna-Mittersteig Prison of January 2007, as well as the most recent expert opinion by Dr B. (the resident psychologist of Stein Prison, where the applicant was held at that time) of 3 March 2010. The latter had come to the conclusion that the applicant still suffered from a pronounced combined personality disorder with paranoid, schizoid, emotionally unstable and narcissistic elements. Dr B. responded to the generally positive tenor of Dr L.’s opinion and found that the stabilisation process was rather a reaction to the “enemy” institution, namely the prison, in which the applicant was being held, and was not to be considered real or rendering the applicant capable of surviving the challenges of daily life outside prison. Moreover, at that time, Dr B. did not recommend further therapy for the applicant, who was not prepared for any self-reflection and was not ready to process the experiences and challenges of normal social interaction, and thus was still likely to present a danger to others. The director of Stein Prison also recommended the continuation of the applicant’s detention, adding that his institution was not equipped to deal with the preparation of his release, which it considered to be a complex and risk-prone task. Only the Vienna-Mittersteig Prison was capable of preparing the applicant for his release. The applicant in any event refused to undergo any more therapy. 18. The Regional Court found that owing to the applicant’s negative approach to therapy, it was impossible to prepare him for release, even though his counsel had confirmed the offer of a flat and a job, and the applicant appeared to be stable. In line with the argumentation of the expert opinions of Dr B. and Dr L., the court held that in the light of the gravity of the underlying criminal offences, there was a danger that an unprepared release would overwhelm the applicant and could have unpredictable consequences. Therefore, the application for conditional release had to be dismissed. 19. On 26 July 2010, the Vienna Court of Appeal (Oberlandesgericht – hereinafter, “the Court of Appeal”) dismissed an appeal lodged by the applicant. It referred to the expert opinions obtained in 1983, 2000, 2002, 2006, 2009 and 2010, and confirmed the decision of the first-instance court. It also reiterated that Stein Prison’s psychology service had recommended a transfer to the Vienna-Mittersteig Prison, where the necessary therapy was available. 20. The applicant lodged an application for release with the Regional Court on 20 August 2010 and submitted additional observations on 16 November and 3 December 2010. In essence, he repeated the arguments he had made in the previous review proceedings (see paragraphs 13 and 15 above). He also requested that a new expert opinion be obtained from Dr L. 21. On 7 December 2010 the Regional Court, ordered the continuation of the applicant’s detention in an institution for mentally ill offenders, referring to the most recent expert opinion by Dr B. of 3 March 2010 (see paragraph 17 above). It found that there had been no changes in his circumstances and therefore declined the request for a new expert opinion. Recently obtained information from Stein Prison’s psychology service stated that the applicant still refused to undergo further therapy at their institution and requested preparation for his release. It reiterated that the necessary preparation was not available in Stein Prison, but only in the Vienna-Mittersteig Prison. However, the latter had not yet responded to a request for the applicant’s transfer. The Regional Court further referred to the reasoning in previous review decisions to avoid repetition, in particular the one by the Court of Appeal of 26 July 2010 (see paragraph 19 above). It stressed that the applicant still refused to deal with his offences in a therapeutic setting, which in turn was a prerequisite for being granted privileges. In the light of the gravity of the underlying offence, the statements obtained from the various prison services as well as the recent expert opinions, the Regional Court concluded that the applicant still presented a danger to society. 22. On 25 January 2011 the Court of Appeal dismissed an appeal lodged by the applicant as unfounded, as it was evident that there had not been a change in his negative attitude towards further therapy. 23. On 8 September 2011 the applicant applied for conditional release from the institution. 24. On 23 January 2012 the Regional Court held an oral hearing and subsequently ordered an expert opinion in the framework of the yearly judicial review proceedings. On 1 February 2012 the applicant submitted his observations on the review. He stated that the expert opinion of Dr B. (see paragraph 17 above) had been wrong and the court should therefore rather rely on Dr L.’s expert opinion (see paragraphs 13-16 above). As the applicant refused to be examined by any expert, the court held another hearing on 23 April 2012. On that occasion, the presiding judge reproached the applicant with the fact that he could not expect to be granted privileges if he did not collaborate with the experts and the authorities. The applicant replied that previously one of the experts had found that privileges were a prerequisite for his release, and that another expert had even come to the conclusion that he could already be released. He explained that he had refused to be examined by a psychiatrist because he was not suffering from a mental illness. The applicant repeated that his lawyer had offered him a small apartment and work in his law firm. He was not willing to live in an assisted-living facility or to follow psychotherapy after his eventual release, but would agree to work with a probation officer. 25. On 23 April 2012, the Regional Court ordered the continuation of the applicant’s detention. Based on the information on file, the latest expert opinion of Dr B. of 3 March 2010 and the information from the director of the prison, it concluded that the danger emanating from the applicant still persisted and therefore his application for release had to be dismissed. 26. That decision was upheld by the Court of Appeal on 30 July 2012. The court summarised the genesis of the case so far and the applicant’s complaints, and reiterated the lower court’s findings. As to its own conclusion, it almost exclusively referred to its previous decisions in the applicant’s case of 26 July 2010 and 25 January 2011, holding that there had been no significant changes in the applicant’s situation, in particular that he still refused any further therapy. 27. On 26 March 2013 the applicant applied for release from the institution for mentally ill offenders. 28. On 20 June 2013 the Regional Court again ordered the continuation of the applicant’s detention, essentially reiterating the reasoning it had given in its decision of 23 April 2012 (see paragraph 25 above). It appears that the Regional Court did not hold an oral hearing prior to that decision. It referred to the “current” expert opinion of Dr B. of 2010 (see paragraph 17 above) and statements by the prison administration and the social service of the prison (Maßnahmenteam) that the applicant should not be released, as he refused to undergo therapy and still posed a threat. The Regional Court reiterated that the applicant could only be prepared for his release at the Vienna-Mittersteig Prison, but found that it would be unreasonable to order his transfer because of his negative attitude towards therapy. 29. On 19 July 2013 the Court of Appeal dismissed an appeal lodged by the applicant as unfounded. It held that the Regional Court had had no choice but to take into consideration the expert opinion of 2010, as in the course of the 2011/12 review proceedings the applicant had refused to be examined by an expert. The Court of Appeal again referred to the reasoning it had given in its three previous decisions relating to the applicant. 30. At the time of the above decision, the applicant was almost fortynine years old and had spent some twenty-nine years of his life in different institutions for mentally ill offenders.