CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 26778/95                       by P. S.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 14 January 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 15 December 1994 by P. S. against Austria and registered on 21 March 1995 under file No. 26778/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      9 May 1997 and the observations in reply submitted by the      applicant on 11 July 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1963, is an Austrian national. At the time of the introduction of the application he was detained at Vienna-Mittersteig, an institution for mentally ill offenders. In the proceedings before the Commission he is represented by Mr. R. Soyer, a lawyer practising in Vienna.   A.    The particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        On 6 March 1991 the Eisenstadt Regional Court (Landesgericht) convicted the applicant of sexual abuse of a minor (Unzucht mit Unmündigen) and sentenced him to two and a half years' imprisonment.        The Regional Court, referring to S. 21 para. 2 of the Criminal Code (Strafgesetzbuch) also ordered that the applicant be placed in an institution for mentally ill offenders (Unterbringung in einer Anstalt für geistig abnorme Rechtsbrecher). The Court had regard to the opinions of two psychiatric experts, Dr. K. and Dr. G., according to which the applicant suffered from a sexual neurosis, which amounted to a psychical abnormality and made it likely that he would commit similar offences.        On 17 March 1992 the Graz Regional Criminal Court decided that the applicant's detention in an institution for mentally ill offenders was still necessary. It referred to the above expert opinions. Further, it noted the applicant's submissions according to which he had, after conversations with several psychologists, deeply regretted the offence and regained his self-confidence. However, he was still waiting in order to obtain a place for regular therapy. In the circumstances of the case, the Court found that the expert opinions were still valid.        On 9 December 1992 the Vienna Regional Criminal Court refused the applicant's conditional release from detention in an institution for mentally ill offenders. It found that the danger that the applicant would commit further sexual offences still subsisted. The applicant did not appeal from this decision.        On 22 October 1993 the Vienna Regional Criminal Court submitted the file to the Vienna Public Prosecutor's Office (Staatsanwaltschaft) which moved on 3 November 1993 that an expert opinion on the question of reduction of risk be procured and that the applicant be heard.        On 8 November 1993 the Vienna Regional Criminal Court appointed Dr. Q. as psychologic expert and ordered him to submit an opinion on the applicant's personality and his dangerousness. Dr. Q. examined the applicant on 19 November 1993. His opinion, dated 10 December 1993, was received by the court on 21 December 1993. On 23 December 1993 the file was sent to the Public Prosecutor's Office for inspection.        On 3 January 1994 the Public Prosecutor's Office, in view of the results of the psychological examination, requested the applicant's release from detention. After procurement of a copy of the applicant's criminal record which arrived on 24 January 1994, the Vienna Regional Criminal Court, on 11 February 1994, decided to obtain another expert opinion on the applicant's dangerousness.        On 11 February 1994 the Vienna Regional Criminal Court appointed Dr. Kr., an expert in neurology and psychiatry, whose opinion of 8 March 1994 was received by the court on 14 March 1994.        On 22 March 1994 the Public Prosecutor's Office recommended not to release the applicant in view of the second expert opinion. On 25 March 1994 the court decided to hear the applicant on 13 April 1994.        On 13 April 1994 the Vienna Regional Criminal Court decided that the applicant's detention in an institution for mentally ill offenders was still necessary. The court noted that the applicant's term of imprisonment had ended on 25 September 1993. Further it noted the report of the prison governor, according to which an open prison regime (Freigang) was being applied to the applicant. He was studying psychology at the Vienna University and working for a consultancy firm. He had made good progress in his psychotherapy as regards his sexual neurosis and had a relationship with a woman of his own age. The court also had regard to the opinions of the two experts: According to Dr. Q. the applicant's condition had stabilised and he was now able to handle his aggressions. According to Dr. Kr., however, the reasons for the commission of the offence had not yet been clarified by the applicant's therapy, and there was still no guarantee that he would not follow a sudden impulse to commit illicit sexual acts with a minor.        On 17 May 1994 the applicant's appeal against this decision was received by the court and submitted to the appellate court the following day.        On 10 June 1994 the Vienna Court of Appeal (Oberlandesgericht) quashed the Regional Court's decision. It found that the two psychiatric experts had contradicted each other. While Dr. Q. had found that the applicant no longer presented a danger, Dr. Kr. had come to the opposite conclusion. In this situation and in particular having regard to the complexity of the case, it was necessary to hear the two experts again and, in case the contradiction in their opinions could not be removed, to order a further opinion by an expert holding a university chair at a domestic or foreign university.        On 23 June 1994 the Vienna Regional Court ordered Dr. Q. to comment upon Dr. Kr.'s opinion.        On 12 December 1994 Dr. Q., after having been urged   by the court several times, submitted his opinion in which he criticised in particular the fact that Dr. Kr. seemed to consider it necessary to offer a guarantee that the applicant would not commit further offences, if released. However, it was never possible to predict a person's future conduct with absolute certainty.        On 22 December 1994 the Court, indicating the urgency of the matter, ordered Dr. Kr. to make any comments which could serve to clarify the contradictions between the opinion of Dr. Q. and his own position.        On 17 January 1995 Dr. Kr. submitted an additional expert opinion in which he upheld his prior assessment.        On 20 January 1995 the Public Prosecutor's Office requested that the applicant should not be released. On 23 January 1995 a supplementary statement was obtained from the Vienna Mittersteig Prison.On 1 February 1995 the Vienna Regional Criminal Court decided to appoint a further expert.        On 16 February 1995 the Regional Court appointed Dr. L., an expert in forensic psychiatry and ordered him to submit an expert opinion on the applicant's dangerousness, having regard to the previous expert opinions. Further, the Court informed Dr. L. that the case had to be dealt with speedily. Dr. L. examined the applicant on 1 March 1995 and submitted his expert opinion on 15 March 1995. He stated that the applicant's personality had developed in the course of the psychotherapy. He had learned to control his sexual desires and had stabilised his personality.        On 24 March 1995 the Public Prosecutor's Office stated that it would agree to the applicant's conditional release provided that he was ordered to continue his psychotherapy.        On 19 April 1995 the Vienna Regional Criminal Court ordered that the applicant be released conditionally from the institution for mentally ill offenders on 11 May 1995. It found that the danger that the applicant would commit further sexual offences no longer subsisted. The Regional Court appointed a probation officer and ordered the applicant to continue his psychotherapy. The Regional Court noted the report of the prison director, according to which the applicant's psychotherapy had been focused on the conditions under which he committed the offence and had been aimed at developing a strategy to avoid further offences. The Court also referred to the above opinion of the psychiatric expert, Dr. L. It noted further the applicant's submissions that he had learned to control his sexual desires and had now a stable relationship with an adult woman.        On 11 May 1995 the applicant was released.   B.    Relevant domestic law and practice        S. 21 of the Criminal Code (Strafgesetzbuch) deals with the preventive measure (vorbeugende Maßnahme) of placement in an institution for mentally ill offenders.        Paragraph 1 provides that if a person commits an offence punishable with a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders, if in view of his personality, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.        Paragraph 2 states that if such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking responsibility, commits an offence punishable with a term of imprisonment exceeding one year under the influence of his severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed.        According to S. 24 para. 1 of the Criminal Code the placement in an institution for mentally ill offenders is to be effected prior to the serving of the prison sentence, the time spent in that institution being deductible from the prison sentence. If the placement ends before the completion of sentence, the offender has to be transferred to a penal institution, unless his sentence is remitted conditionally or unconditionally.          S. 25 para. 1 provides that preventive measures are to be ordered for an indefinite period and that they are to be implemented as long as is required by their purpose.        Paragraph 2 states that the termination of preventive measures shall be decided by the court.        Paragraph 3 provides that the court must of its own motion examine at least once yearly whether the placement in an institution for mentally ill offenders is still necessary.        According to the Supreme Court's decision of 30 September 1980, which was taken upon a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), S. 25 para. 3 requires the court only to start its examination within a year of the last decision relating to the necessity of further placement. A decision has then to be taken without undue delay. The Supreme Court had regard to the wording of the said provision and added that it would be contrary to its purpose, namely guaranteeing a regular examination, if a court had to decide within a year of the last decision irrespective of whether or not it had the necessary evidence before it. As the examination by a psychiatric expert often required considerable time, it was possible that a decision could only be issued more than a year after the last decision had been taken.     COMPLAINTS        The applicant complains under Article 5 para. 4 of the Convention that the courts failed to decide speedily on the lawfulness of his detention. He submits in particular that S. 25 para. 3 of the Criminal Code requires the courts to examine at least once yearly whether the conditions for detention in an institution for mentally ill offenders are still met. He points out that in his case more than a year elapsed between the decisions of 9 December 1992 and 13 April 1994. Moreover, the latter decision was quashed by the appeal court and a new decision, which finally ordered his release, was only taken on 19 April 1995.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 December 1994 and registered on 21 March 1995.        On 27 February 1997 the Commission decided to communicate the application.        The Government's written observations were submitted on 9 May 1997. The applicant replied on 11 July 1997.     THE LAW        The applicant complains under Article 5 para. 4 (Art. 5-4) of the Convention that the courts failed to decide speedily on the lawfulness of his detention in an institution for mentally ill offenders.        Article 5 (Art. 5), so far as relevant, reads as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:                a.     the lawful detention of a person after conviction by      a competent court;              ...              e.     the lawful detention of persons for the prevention of      the spreading of infectious diseases, of persons of unsound mind,      alcoholics or drug addicts or vagrants;              ...        4.     Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which the      lawfulness of his detention shall be decided speedily by a court      and his release ordered if the detention is not lawful.        The Government submit that the question whether or not the courts decided speedily on a request for release from detention depends on the type of the detention and on the circumstances of the case, whereby particular regard must be had to the complexity of the proceedings. The Government argue that the present case was complex as it necessitated the taking of both a psychological and a neurological expert opinion. In view of the contradictions between these opinions a third expert opinion had to be ordered. Further, the courts proceeded without any unavoidable delays. The only delays that occurred were caused by the establishment of the expert opinions. However, the courts urged the experts to file their opinions in good time.        The Government also point out that the courts complied with the relevant time-limits laid down in domestic law. Referring to the Supreme Court's decision of 30 September 1980 they state that S. 25 para. 3 of the Criminal Code only requires the court to initiate a review within the one year time-limit. Following the decision of 9 December 1992 the court ordered an expert opinion on 8 November 1993 and obtained it on 19 November 1993 i.e. within the statutory time- limit. Its decision of 13 April 1994 was given a little over four months after the end of the one year period, following the taking of a second expert opinion. Finally,   the Government argue that after the quashing of this decision the renewed first instance proceedings, for which no statutory time-limit is set, were nevertheless conducted speedily having regard to the complexity of the case.        The applicant contests the Government's view. He argues that, between the decision of 9 December 1992 and the final decision of 19 April 1995 ordering his release, a period of two years and four months elapsed. Given that S. 25 para. 3 of the Criminal Code requires an examination once yearly, an examination which only ends more than a year and four months after the expiry of the one year period cannot be considered as being conducted "speedily" within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention. Moreover, the applicant submits that the proceedings were not particularly complex as the establishment of expert opinions is a standard procedure in such cases. He also points out that a considerable delay was caused by the Vienna Regional Criminal Court as its decision of 13 April 1994 was defective and had to be quashed upon his appeal. Finally, the applicant points out that no delays are attributable to him.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber