CASE OF BLÜHDORN v. GERMANY
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - After conviction)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1943 and is currently detained in Riedstadt Psychiatric Hospital. 6. The applicant has previous convictions for rape dating from 1968 and for indecent assault combined with causing bodily harm by dangerous means dating from 1990. 7. On 14 January 2002 the Darmstadt Regional Court convicted the applicant of rape combined with the infliction of bodily injury. The judge incorporated a prison term arising from a previous conviction and sentenced him to a total of four years and six months’ imprisonment. Simultaneously, the court ordered the applicant’s placement in a psychiatric hospital pursuant to Article 63 of the Criminal Code (see paragraph 31 below). It held that the applicant was suffering from a disturbance in his sexual preference taking the form of sadism and found that the commission of further crimes was to be expected. The verdict of the Regional Court was based mainly on the conclusions of a psychiatric expert opinion but also took into account the applicant’s previous conviction for indecent assault in 1990. It also observed that the applicant had tried to subjugate several prostitutes whom he had been seeing in recent years. The Regional Court found that this indicated an evolution in his behaviour. It noted that the applicant had refused psychiatric therapy so far and shared the expert’s opinion that the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive. The Regional Court concluded that similar crimes were to be expected and the applicant therefore represented a danger to the public. 8. The applicant was arrested on the same day and placed in the Haina Clinic for Forensic Psychiatry. 9. The applicant’s detention in psychiatric hospitals has been reviewed at regular intervals (compare Articles 67d and 67e of the Criminal Code, see paragraphs 32 and 33, below) and has been extended annually. In the course of the respective proceedings, the courts have requested annual forensicpsychiatric expert opinions on the necessity of his detention in hospital. All expert opinions concluded that the applicant was likely to reoffend. 10. On 2 April 2003 the Haina Clinic for Forensic Psychiatry delivered an initial expert opinion, affirming the diagnosis of antisocial behaviour as an adult and abuse of alcohol. However, the expert opinion did not diagnose sexual sadism. Referring to the Diagnostic and Statistical Manual of Mental Disorders ‒ which is published by the American Psychiatric Association and offers a common language and standard criteria for the classification of mental disorders ‒ it found that the necessary criteria were not met. It concluded that this diagnosis seemed rather unlikely but could not be absolutely excluded without an extensive and credible sexual anamnesis. 11. On 13 May 2004 the applicant was transferred to the Hanau Clinic for Forensic Psychiatry. 12. On 21 November 2005 the applicant was examined by an external psychological expert who criticised in detail the diagnosis of sexual sadism during the trial, in particular the lack of information about the applicant’s inner experiences during the onset of the disorder, its further development, and the failure to evaluate his previous offences. The expert concluded that it remained doubtful whether a diagnosis of sexual sadism could be made (“Es bleibt also weiterhin fraglich, inwieweit ein sexueller Sadismus wirklich vorliegt”). 13. On 11 December 2006 the Hanau Clinic for Forensic Psychiatry delivered a further expert opinion. Although it mentioned the presumptive diagnosis of sexual sadism, it found that this presumption was not tenable in view of the history and the personality structure of the applicant. Even assuming that the applicant might have a sadistic sexual disposition, he experienced this without suffering and had no desire to change. According to the verdict of the trial court, the applicant had probably fulfilled his sexual inclinations with prostitutes in order to avoid being charged with an offence. Neither the files nor his statements revealed the development of an addiction or of a pressing perverted imagination or of pathologic impulsiveness. There was no call for therapy as the applicant neither suffered from his behaviour nor desired to change it. The clinic therefore concluded that the applicant’s committal to hospital had been erroneous. 14. On 3 September 2007, on 20 August 2008 and on 18 August 2009 similar forensic psychiatric expert opinions were delivered by the Hanau Clinic for Forensic Psychiatry. Although all of them also mentioned the presumptive diagnosis of sexual sadism, they confirmed the previous findings. All the expert opinions concluded that there were no indications for the diagnosis of sexual sadism apart from the facts contained in the verdict of the trial court. In each expert opinion the applicant was described as a classic instance of an erroneous hospital treatment order. 15. On 29 December 2009 the applicant refused to be examined by an external psychiatric expert. 16. On 26 January 2010 the applicant was transferred to the Haina Forensic-Psychiatric Hospital. 17. On 30 September 2008 the Frankfurt am Main Court of Appeal allowed the re-opening of the criminal proceedings which had been terminated by the judgment of the Darmstadt Regional Court dated 14 January 2002. 18. In 2010 the Kassel Regional Court appointed a new external psychiatric expert. The expert concluded that the applicant was suffering from sexual sadism, subject to the reservation that he had not examined the applicant in person but had based his evaluation on the medical files only. The Kassel Regional Court subsequently dismissed the request to reopen the criminal proceedings. The applicant’s appeal against this dismissal was dismissed. 19. On 17 September 2013 the Federal Constitutional Court declined to consider the applicant’s related constitutional complaint without providing reasons (file no. 2 BvR 1364/12). 20. On 15 March 2011 the Haina Clinic for Forensic Psychiatry, where the applicant was detained, delivered an expert opinion on the necessity of the applicant’s further detention in hospital. It made the diagnosis of a dissocial personality disorder, alcohol abuse and a presumptive diagnosis of sexual sadism. Although it found a high risk that the applicant would reoffend, it confirmed the prior assessment that the applicant represented a classic instance of an erroneous hospital treatment order. This conclusion was drawn from the fact that the applicant’s behaviour during treatment never gave any grounds for diagnosing a mental disorder such as would have been expected from a person suffering from a psychiatric disorder. 21. On 24 May 2011 the Darmstadt Regional Court asked the applicant to inform the court whether he agreed to being examined by the external expert Dr. Egg. 22. On 29 May 2011 the applicant wrote to the Regional Court and refused a medical examination. 23. On 26 July 2011 the Regional Court heard the applicant and his counsel in person as well as a psychological expert from the Haina Clinic for Forensic Psychiatry. 24. On 28 July 2011 the Regional Court declined to terminate the applicant’s placement in hospital and refused to release him on probation as the requirements of Article 67 d §§ 2 and 6 of the Criminal Code were not met (see paragraph 32, below). It explained that detention in a psychiatric hospital could be terminated on the grounds of an erroneous treatment order only if it was established with certainty that the applicant was not suffering from a mental illness warranting his detention under Article 63 of the Criminal Code owing to a diminished criminal responsibility from the very beginning. In this context the Regional Court observed that neither the statement by the psychological expert at the hearing nor the current and prior expert opinions had excluded the possibility that the applicant was suffering from sexual sadism, although this diagnosis had been found to be rather unlikely (see paragraphs 10 to 14, above). Furthermore, the court took into account that the applicant had refused to provide credible and full information about his sexual history and had thus rendered a certain diagnosis impossible. It therefore held that a committal to hospital by mistake had not been established beyond doubt. For this reason alone, therefore, the conditions for application of Article 67 d § 6 of the Criminal Code were not met. Lastly, the Regional Court noted, but explicitly without basing its decision on this fact, that the expert opinion which had been delivered in the course of the re-opening proceedings of the criminal trial had confirmed the diagnosis of sadism. 25. In conclusion, the Regional Court found that the applicant could not be released on probation as he had refused investigation of his problems relating to sexuality and violence. The evolution of the applicant’s detention and his lack of awareness regarding his crimes rendered it very probable that he would re-offend. 26. On 29 September 2011 the Frankfurt am Main Court of Appeal upheld the decision of the Regional Court. It observed that, for exceptional reasons, an examination of the applicant by an external psychiatric expert was not necessary. Such an expert report would have to be based on the files only, since the applicant had announced his refusal of any examination. Under these circumstances the Court of Appeal found that no new conclusions could be expected from such an external expert opinion. Moreover, it found that the applicant’s condition and dangerousness had not changed since his last examination as he had refused to undergo any therapy. The Court of Appeal further rejected the applicant’s allegation that the Regional Court had reproached him for failing to undergo therapy, while the hospital considered him to be an erroneous admission. It held that in any event the root cause of the applicant’s serious sexual crimes should be reappraised through therapy. In its view that would have been a requirement even if the applicant had been sentenced to imprisonment. The applicant himself had to bear the consequences of his refusal to participate in any therapy as the hospital offered therapy in order to reappraise the causes of crime even for patients who had been placed in hospital erroneously. 27. On 16 August 2012 the Federal Constitutional Court (file no. 2 BvR 2679/11) refused to admit the applicant’s constitutional complaint for its consideration without giving any further reasons. 28. On 23 April 2014 the Darmstadt Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining an external expert opinion dated 22 February 2014 and having heard the expert and the applicant’s counsel. The expert, who had not examined the applicant in person due to his refusal to permit such examination, found that the applicant was suffering from a disturbance of his sexual preference in the form of sadism and that the commission of further crimes was to be expected. The applicant’s appeal in this respect was dismissed by the Court of Appeal. The proceedings before the Federal Constitutional Court are still pending. 29. On 19 January 2015 the Darmstadt Regional Court again decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining a written opinion from the Haina Forensic-Psychiatric clinic in which the applicant has been detained and after hearing the applicant. The applicant’s appeal in this respect was dismissed by the Court of Appeal.