FRANK v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Michael Frank, is a German national who was born in 1956. He is currently confined in a psychiatric hospital in Weissenthurm. He was represented before the Court by Mr W. Karczewski, a lawyer practising in Neuwied. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 July 1982 the applicant was arrested on suspicion of sexual abuse of a nine-year-old girl. He confessed and was released the same day. On 26 July 1982 the applicant voluntarily admitted himself to a psychiatric clinic at Andernach. In the course of the applicant’s trial at Koblenz Regional Court it was established that between 1975 and 1982 the applicant had committed twenty offences of sexual abuse of children. At the time of the first offence the applicant was nineteen years old. The applicant had manipulated the genitals of his victims, girls between the age of eight and ten, with his hands, whereupon he had spontaneous ejaculations or masturbated. He ceased the sexual manipulations as soon as his victims resisted him. The first sixteen offences of sexual abuse had been committed between 1975 and 1978. The victims were schoolmates of the applicant at a special boarding school for visually impaired persons which the applicant, who suffers from a serious congenital visual impairment himself, attended from 1966 to 1978, first as a pupil and later as an apprentice. The other victims were children of relatives or of other acquaintances. On 18 August 1983 Koblenz Regional Court, following a confession by the applicant and after consulting a medical expert at the Andernach psychiatric hospital, who diagnosed the applicant as suffering from a personality disorder characterised by very low self-esteem and difficulties with social integration as well as from a serious sexual deviation in the form of heterosexual paedophilia, acquitted the applicant. The Regional Court considered that the applicant had committed his offences without criminal responsibility and ordered him to be placed in a forensic psychiatric clinic, since there was a high risk that he would commit further serious sexual offences (Articles 20 and 63 of the Criminal Code, see Relevant domestic law below). Since then the applicant has been confined in psychiatric hospitals for more than twenty-seven years. The applicant was initially detained in the forensic psychiatric hospital at Andernach, then from 1984 to 1986 in Landeck, where it was established that the applicant’s sexual deviation was the consequence of a compulsive neurotic development and that - among other factors - the applicant’s congenital visual impairment and problematic family background had led to his social marginalisation and prevented him from learning how to deal adequately with his sexuality. Following a failed therapy attempt the applicant was retransferred to the Andernach psychiatric hospital in 1986, where he stayed until July 1997. An authorisation to work in an external sheltered workshop for disabled persons was revoked in 1992 when the applicant extended his journeys to work without permission on several occasions. In August 1997 the applicant was transferred to a forensic psychiatric clinic in Alzey, where he entered into a homosexual relationship with a fellow patient. In February 2001 he was transferred back to a ward of the Andernach clinic in Weissenthurm, where he has remained. Expert opinions established at regular intervals by the respective clinics in the period from 1989 to 2001 (for instance on 25 August 1989, 28 October 1993, 27 September 1995, 29 February 1996, 17 December 1999 and 6 November 2001) while acknowledging that the applicant had adapted to life in the institution and had made some progress in his therapy, highlighted that he had a tendency to trivialise the offences he had committed and was not ready to deal with his personality disorder, and that it could not be ruled out that he would commit similar offences if released. An external expert opinion commissioned by the Regional Court at the request of the applicant and rendered on 11 December 2000 suggested that further therapeutic measures be pursued with the applicant, that accompanied exits from the hospital be allowed, and that his criminal prognosis be reviewed after three years. Subsequent accompanied exits of the applicant from the clinic and further relaxations of his detention did not give cause for complaint. In 2002 the applicant entered into a further homosexual relationship with a fellow patient, which was qualified by the attending therapists as relatively stable and estimated as the beginning of development towards a mature form of sexuality. Pursuant to an expert report rendered by the clinic on 16 December 2003 the applicant showed progress in dealing with the offences he had committed but there was still a risk that he would commit related sexual offences. In an expert opinion dated 21 November 2004 the same external expert who had rendered the opinion of 11 December 2000 came to the conclusion that the applicant was not suffering from paedophilia and that the offences committed were to be qualified as compensatory acts of an inhibited and severely visually impaired person, who had considered his victims little adults. In view of the progress made by the applicant, as confirmed by the attending therapist, the expert found that the criminal prognosis for the applicant was rather positive and recommended that following a one-year probationary period a conditional release of the applicant and his placement in supervised accommodation (Betreutes Wohnen) could be considered. The expert further pointed out that he had hardly ever come across a case where a person detained in a psychiatric hospital had been exposed to so many different treatments and transferred so often from one clinic to another, resulting in alternating positive and negative prognoses. For instance, a course of therapy at the Alzey psychiatric clinic showing positive results was interrupted in 2001 when the applicant was retransferred to the clinic in Weissenthurm. 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) by the relevant courts, and his requests for probationary suspension of his detention have repeatedly been refused by the courts. For instance, by a decision dated 3 November 1995 Koblenz Regional Court, while refusing a further request by the applicant for a probationary suspension of his detention, held that after more than twelve years of detention its further continuation might no longer be proportionate and that therefore the hospital was under an obligation to expedite rehabilitation measures, in particular in view of the applicant’Regional Court reduced the statutory one-year period for the subsequent review of the applicant’s detention to six months. An appeal by the applicant against a subsequent refusal of a similar request by Koblenz Regional Court was dismissed by the Koblenz Court of Appeal by a decision of 24 April 2002. On 30 January 2004 Koblenz Regional Court, in a decision confirmed on appeal, again rejected the request of the applicant for a probationary suspension of his detention. On 14 January 2005 the Koblenz Regional Court rejected a further request for conditional discharge and ordered a review of his detention after six months instead of the statutory one-year period. On 1 September 2005 Koblenz Regional Court, after hearing the applicant, dismissed his request to have his detention in a psychiatric hospital terminated or suspended on probation (see Article 67d and Article 67e of the Criminal Code). Having heard the applicant on 26 August 2005 in the presence of his counsel as well as the ward physician and another doctor and relying in particular on an expert report by the Andernach psychiatric clinic dated 13 June 2005, the Regional Court found that since the last review of the applicant’s detention on 14 January 2005 the applicant, who had for a while been displaying aggressive behaviour, was now participating regularly in therapy groups again but had only agreed to do so after being informed that a refusal to undergo treatment would have a negative impact on his legal and medical prognosis. While taking into account the length of the applicant’s detention, the Regional Court emphasised the fact that the latter was still at the beginning of a new therapy attempt, that he was trivialising the committed offences on the ground that he had never used force against his victims, that he did not show any empathy with them and was incapable of speaking about his emotions. The Regional Court held that for these reasons there persisted a high risk that the applicant would commit similar sexual offences if released. On 20 October 2005 the Koblenz Court of Appeal dismissed the applicant’s appeal. The Court of Appeal was convinced that the applicant was still suffering from paedophilia and stressed that this diagnosis had repeatedly been confirmed by attending doctors. The Court of Appeal further emphasised that it was not persuaded by the findings to the contrary of the external expert in 2004. It pointed out that in 1992 the applicant had abused his unsupervised journeys to work in a sheltered workshop in order to visit locations frequented by children and juveniles, that pictures depicting child pornography had been discovered in his room and that he had subscribed to magazines for children and young people. The Court of Appeal held that a probationary suspension of the applicant’s detention would only be possible in the event that his therapy could be regarded as having reached such an advanced stage that the remaining threat to pre-adolescent girls would be low. These conditions had not been met in the instant case and it had to be assumed with certainty that the applicant would sexually abuse little girls if released. The Court of Appeal referring also to its previous decision of 24 April 2002 further considered that in view of this risk the applicant’s continued detention for more than twenty years was still proportionate. Having regard to the nature of the offences at stake and the obligation of the State to protect the rights of individuals and of the general public it was unjustifiable to release the applicant. Even lifelong detention in a psychiatric hospital could be proportionate and constitutional if justified by protection of the rights of third parties. On 17 February 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2096/05) on the ground that it had no prospect of success. It held that the courts dealing with the execution of the applicant’s detention were under an obligation to independently assess statements made or opinions rendered by experts and to reach a decision on the resulting prognosis. The Court of Appeal was not bound by the conclusions of the external expert but was free to make its own assessment as to whether the conditions of Articles 20 and 63 of the Criminal Code had been met in the instant case. The Court of Appeal’s conclusion had been in line with the findings of other experts, who had obviously assumed for over twenty years that the applicant was a paedophile. It had had sufficient regard to the external expert’s findings and evaluations and had not come to any arbitrary conclusions. A negative legal prognosis for the applicant had been justified in view of the fact that he did not show any empathy with his victims and had a tendency to trivialise the committed offences. When assessing the proportionality of the continuing detention the Court of Appeal had struck a fair balance between the applicant’s request to be released after more than twenty years of detention in a psychiatric hospital and the threat he posed to society. On the occasion of a subsequent review of the applicant’s detention Koblenz Regional Court, by a decision of 8 September 2006 after hearing the applicant, and relying on an opinion by the attending doctors of 31 May 2006, again ordered that the applicant remain in a psychiatric hospital. The attending doctors had confirmed the diagnosis of paedophilia and given a negative criminal prognosis for the applicant, in particular in view of insufficient progress made in the course of his therapy and the resulting risk of recidivism. As regards the assessment as to whether the duration of the detention was still proportionate, the Regional Court referred to the Koblenz Court of Appeal’s reasoning in its aforementioned decision of 20 October 2005. The applicant’s related appeal was dismissed by the Koblenz Court of Appeal as manifestly ill-founded by a decision of 18 December 2006. On 21 January 2008 Koblenz Regional Court obtained an external expert opinion in view of a further review of the applicant’s detention. The expert found that the applicant was suffering from heterosexual paedophilia and that the homosexual relationships he had established with other prisoners had to be qualified as compensatory acts. The expert was of the opinion that the applicant continued to show paedophilic tendencies and that there persisted a risk that the applicant would commit similar sexual offences if released. In view of the external expert’s conclusion and after hearing the applicant, the Regional Court confirmed his continued detention by a decision dated 20 February 2008. On 17 April 2009 Koblenz Regional Court, after hearing the applicant and on the basis of a statement of the attending doctors of 13 January 2009, again found that a probationary suspension of the applicant’s detention could not yet be envisaged, since the risk persisted that he would reoffend. The applicant’s paedophilia and personality disorder remained unchanged and his capacity and willingness to cooperate in therapy was severely limited due to his lack of acknowledgement of his illness and need for treatment. He was still trivialising the offences committed and was incapable of showing sufficient emotional concern and empathy. The Regional Court, while taking into consideration the considerable length of the applicant’s detention, pointed out that there was no doubt that his placement in a psychiatric hospital was still proportionate. The crimes which had been at the origin of the applicant’s placement in the psychiatric hospital were serious and there persisted a high risk of recidivism. According to the statements of the attending doctors there were no other measures capable of responding to such a risk, in particular since the applicant’s attitude towards his sexuality and paedophilic tendencies was completely unclear. Thus, at present the interest of the safety of the general public could only be protected by means of the applicant’s continued detention and still took priority over the applicant’s interest to be released. On 7 July 2009 the Koblenz Court of Appeal dismissed a related appeal by the applicant. The German Criminal Code distinguishes between penalties (Strafen) and socalled correction and prevention measures (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 without, or with diminished, criminal responsibility. 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 the danger they present (Article 62 of the Criminal Code). Pursuant to Article 20 of the German Criminal Code, a person who upon commission of a criminal offence is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound personality disorder, mental defect or any other serious emotional abnormality, acts without guilt. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility pursuant to Article 20, 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. 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 further execution of the measure would be disproportionate, it declares the measure terminated (Article 67d § 6). Article 67e of the Criminal Code provides for review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether 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 (§ 2 of Article 67e).