CASE OF PETSCHULIES v. GERMANY
Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
5. The applicant was born in 1952. At the time of lodging his application, he had been placed in a supervised residential facility in Springe (Germany). He was subsequently released. 6. Following five convictions for offences including burglary and dangerous assault, in 1977 the Hildesheim Regional Court convicted the applicant of committing offences while in a drunken state. It sentenced him to one year’s imprisonment and ordered his detention in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 35 below). The court found that the applicant’s criminal responsibility had been diminished at the time of the acts, owing to infantile brain damage combined with drunkenness. He was detained in psychiatric hospitals in Göttingen and Moringen from December 1977 to October 1980. 7. In 1981 the Göttingen Regional Court quashed the judgment of the Hildesheim Regional Court of 1977. It convicted the applicant of intentionally committing offences while in a drunken state and sentenced him to one year and eight months’ imprisonment, without ordering his detention in a psychiatric hospital. The court, having regard to the findings of a psychiatric expert and the results of a re-examination of the applicant’s brain by new technical means, found that he did not suffer and had never suffered from a pathological mental disorder. He had therefore not acted with diminished criminal responsibility. The court considered that the applicant did not have infantile brain damage, and although he had an abnormal personality, he was neither a psychopath nor an alcoholic. 8. On 11 December 1984 the Hildesheim Regional Court convicted the applicant of seven counts of dangerous assault, four counts of assault, coercion and two counts of attempted coercion. All these offences had been committed between 6 December 1982 and 1 May 1984. The court sentenced him to six years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraphs 28-29 below). 9. The Hildesheim Regional Court found that the applicant had attacked his victims in a violent manner. The victims had been almost exclusively male and had included schoolchildren. Some had been acquaintances, but others had not been known to the applicant – people in bars or those who had been randomly chosen on the street. He had either punched his victims in the face, kicked them in the face when they had fallen to the ground or set an Alsatian dog on them, which had significantly injured the victims by biting them, sometimes on the stomach and neck. He had attacked two homeless people whom he did not know with a knife. They had been sleeping in an abandoned building. He had injured the hand, lip, chest and thigh of one and the back and finger of another. Objectively, his victims had not provoked any conflict. 10. The Hildesheim Regional Court, having consulted a psychiatric expert and a psychological expert, found that the applicant had acted with full criminal responsibility at the time most of his offences had been committed, despite his prior consumption of alcohol. Only in relation to two of his offences could diminished criminal responsibility as a result of alcohol intoxication not be excluded as a relevant consideration (Article 21 of the Criminal Code, see paragraph 34 below). However, the consumption of alcohol had not been the cause of his offences. He did not suffer from any other pathological mental disorder within the meaning of Article 21 of the Criminal Code. His personality differed from that of the majority of the population in that he lacked empathy and saw himself as a strong and dominating man, without that difference being of a pathological nature. He had a propensity to commit serious violent offences against others, where the victims were significantly injured. 11. On 7 May 1990, having fully served his term of imprisonment, the applicant was placed in preventive detention for the first time, initially mainly in Salinenmoor Prison. In view of another prison sentence he had served, by 7 August 2000 he had spent ten years in preventive detention. On the same day, the Lüneburg Regional Court ordered that his preventive detention should continue. 12. On 2 May 2001 the Hildesheim District Court convicted the applicant of assault, finding that he had slapped his daughter in the face while under the influence of alcohol while on home leave from detention, and sentenced him to four months’ imprisonment. The applicant served that sentence in 2002. 13. On 25 August 2003 the applicant was transferred to the detoxification department of Moringen Hospital. By a decision of 18 April 2005 the Göttingen Regional Court then ordered further preventive detention in a psychiatric hospital (Article 63 of the Criminal Code) rather than in a detoxification facility, as his rehabilitation could be better promoted there. The applicant was then transferred to the psychiatric department of Moringen Hospital. 14. The order for the applicant’s continued preventive detention in a psychiatric hospital was subsequently extended. In March 2011 he was authorised to reside provisionally (Probewohnen) in Friedland Castle in Northeim, a supervised residential facility. 15. On 19 July 2011 the Göttingen Regional Court again ordered the applicant’s continued preventive detention in a psychiatric hospital, under Article 67d § 3 of the Criminal Code (see paragraph 31 below). 16. The Regional Court considered that the stricter criteria set out by the Federal Constitutional Court in its judgment of 4 May 2011 regarding preventive detention beyond the former ten-year time-limit during the transitional period lasting until 31 May 2013 (see paragraph 39 below) were met in the applicant’s case. 17. The Regional Court found that the applicant suffered from a mental disorder for the purposes of section 1(1) of the Therapy Detention Act (see paragraph 36 below), which was the cause of his previous offences. Following its own critical review, it endorsed the conclusions about the applicant’s mental condition which S., an experienced and reliable expert in the field of forensic psychiatry, had drawn in his report dated 26 May 2010 and supplemented on 24 April 2011. The expert had completed his report on the basis of case files, as the applicant had refused an examination. S. had stated that, just as at the time of his offences, the applicant still suffered from a dissocial personality disorder with marked psychopathic elements, as defined by the relevant tool for the classification of diseases, the ICD-10 (International Statistical Classification of Diseases and Related Health Problems in its current, revised version). This diagnosis had further been confirmed by the applicant’s treating doctors at Moringen Hospital. 18. Furthermore, the Regional Court considered that there was a high risk that the applicant, owing to specific circumstances relating to his character and conduct, would commit the most serious violent crimes if released from preventive detention. As had been confirmed by S., there was a danger that he would again threaten the lives of others by attacking them, for instance by kicking his victims in the head or setting a dog on them and inciting it to bite them on the neck and face. That risk was particularly high when the applicant – whom the expert had concluded abused alcohol without being addicted, as defined by the ICD-10 – was drunk. Owing to his dissocial personality disorder, the applicant had hardly any inhibitions with regard to injuring others, as he lacked empathy. As he did not question his own perception of a situation, a misinterpreted situation could lead to his using unlimited force against randomly chosen victims who objectively had not provoked any conflict by their conduct. 19. The Regional Court further considered that the applicant’s preventive detention was still proportionate. At that time, there was no residential accommodation outside of preventive detention where his conduct could be closely monitored. In view of his conduct, it was already unclear whether he would be permitted to continue residing in his current residential facility in Friedland Castle. Having regard to the high risk that the applicant would commit the most serious violent offences upon his release, his preventive detention for a period of more than twenty years was not unreasonable. 20. The Regional Court confirmed that the applicant’s rehabilitation could still be better promoted by detention in a psychiatric hospital than by placement in a preventive detention facility (Article 67a §§ 1 and 2 of the Criminal Code, see paragraph 32 below). Even though there had been no substantial change in his disorder, there had been some positive development in that he had started residing provisionally in a supervised residential facility. 21. On 19 September 2011 the Braunschweig Court of Appeal, endorsing the reasons given by the Göttingen Regional Court, dismissed the applicant’s appeal as ill-founded. 22. On 24 October 2011 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He claimed that his continued preventive detention in a psychiatric hospital breached his constitutional right to liberty. He argued that the strict criteria for continued preventive detention set out by the Federal Constitutional Court in its leading judgment of 4 May 2011 were not met. Having regard to the fact that his offences – committed under the influence of alcohol – dated back twenty-seven years, that he had not drunk alcohol since then, and that the conditions of his detention had been extensively relaxed, the experts and the courts had not convincingly shown that there was a risk that he would commit a serious violent offence again if released. Moreover, it had not been found by the experts or the domestic courts that his alleged mental disorder had caused the offences in question, nor that he was or had ever been an alcoholic. 23. On 18 July 2012, without giving reasons, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2270/11). The decision was served on the applicant’s counsel on 26 July 2012. 24. From March 2011 to August 2012 the applicant was authorised to reside provisionally in Friedland Castle in Northeim, a supervised residential facility. He received regular visits from staff members from Moringen Hospital. Three times a week he was allowed to go shopping in Moringen for two hours, and once a week he was allowed to go to Northeim for half a day under escort. The applicant continued his work therapy in Moringen Hospital. He no longer received any specific treatment for his mental condition or the alcohol abuse with which he had been diagnosed. The aim of his stay in the supervised residential facility was to enable him to cope with the requirements of everyday life by drawing on his own resources. 25. In August 2012 the applicant had to return to Moringen Hospital following conflict with the staff at Friedland Castle. From October 2012 onwards he resided provisionally in Gestorf Castle, a supervised residential facility in Springe, with conditions of detention comparable to those in Friedland Castle. 26. In accordance with the Göttingen Regional Court’s decision of 10 July 2014 to terminate his preventive detention, the applicant was released on 15 September 2014.