CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 juillet 2015

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AUSTRIA   (Application no. 7997/08)               JUDGMENT     STRASBOURG   16 July 2015     FINAL   16/10/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kuttner v. Austria, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Paulo Pinto de Albuquerque,   Erik Møse,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 23 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 7997/08) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Franz Kuttner (“the applicant”), on 8 February 2008. 2.     The applicant, who had been granted legal aid, was initially represented by Mr H. Blum, a lawyer practising in Linz. After the application was communicated to the Government, Mr H. Graupner, a lawyer practising in Vienna, took over the applicant’s legal representation. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.     The applicant complained under Articles 5 § 4 and 6 § 1 of the Convention of the length of the proceedings relating to his application for release from the institution for mentally ill offenders. He further relied on Article 13 of the Convention. 4.     On 30 April 2010 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1950 and currently lives in Traun. A.     The applicant’s conviction and sentence 6.     On 21 January 2005 the Linz Regional Court convicted the applicant of having deliberately caused severe bodily harm and sentenced him to six years’ imprisonment. The court found that the applicant had beaten his 80 ‑ year-old mother by kicking and punching her face, head and thorax, which resulted in a severe and lasting infirmity. The applicant had been convicted on seven previous occasions, four of which involved similar offences of violence. Relying on a report by a psychiatric expert, the court found that even though the applicant was responsible for his acts, he was suffering from a grave mental disorder, was dangerous to the public and was likely to re-offend. For these reasons, the court ordered the applicant’s detention in an institution for mentally ill offenders in accordance with section 21 § 2 of the Criminal Code, in addition to the term of imprisonment. Given the time the applicant had served in detention on remand, the Court stated that the applicant’s detention pursuant to the prison sentence was likely to end on 7 May 2010. 7.     On 7 June 2005 the Linz Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against his sentence. On the same day the applicant was placed in Garsten detention centre, an institution for mentally ill offenders. B.     The first set of proceedings for release from the institution 8.     On 31 March 2006, in a first set of proceedings in which the applicant requested his conditional release from the institution, the Steyr Regional Court (“the Regional Court”) ordered that the applicant remain in the institution. The Court of Appeal dismissed the applicant’s appeal against this decision on 9 May 2006. C.     The second set of proceedings for release from the institution 9.     On 10 January 2007 the applicant applied for the lifting of the order to detain him at Garsten detention centre (under section 21 § 2 of the Criminal Code) in order to serve his sentence in an ordinary prison. 10.     On 12 January 2007 the Regional Court asked the Garsten prison administration and its psychiatric and psychological service to transmit further information on the applicant, which it received on 9 March 2007. On 12 March 2007 it ordered a fresh psychiatric expert report and instructed the expert to submit the report before 11 June 2007. 11.     On 23 June 2007 the applicant filed an application with the Court of Appeal for the setting of a time-limit ( Fristsetzungsantrag ) under section 91 of the Court Act ( Gerichtsorganisationsgesetz ) for the Regional Court to decide on his application, as the last determination of the continuing need to detain him had taken place on 9 May 2006, and he had not yet received a decision concerning his application of 10 January 2007. 12.     On an unspecified date, the applicant was transferred to a psychiatric institution in Vienna. It appears, however, that this transfer was only temporary, and on an unspecified date, the applicant was transferred back to Garsten detention centre. 13.     After having been urged by the Regional Court to deliver her report, the expert replied on 3 July 2007 that she would submit it as soon as possible. She did so on 10 July 2007 and explained that the applicant had meanwhile been transferred to an institution in Vienna, for which reason she had not been able to examine him earlier. She found that the applicant, even though he had started to respond positively to his therapy, was still suffering from a serious mental disorder and that there was still the risk that the applicant would commit dangerous acts of violence. 14 .     On 30 July 2007 the Court of Appeal granted the applicant’s application under section 91 of the Court Act and ordered the Regional Court to take a decision by 3 August 2007 at the latest. It held that in the light of the chronology of events in this case, the Regional Court had not fulfilled its duty to take a decision within a reasonable amount of time. 15.     On 31 July 2007, after having held an oral hearing with the applicant present, the Regional Court ordered the continuation of his detention in an institution for mentally ill offenders. On the basis of the expert opinion obtained, the court found that the applicant was still dangerous and likely to re-offend. It dismissed the applicant’s request for the hearing of two prison officers as witnesses, since these persons could not make a relevant assessment in this respect and that therefore the applicant’s request lacked a relevant issue on which evidence should be taken ( relevantes Beweisthema ). 16.     On 16 August 2007 the applicant appealed against this decision to the Court of Appeal maintaining his view that the placement in a psychiatric institution was no longer justified. He maintained, furthermore, that the length of the proceedings for the determination of this issue was in breach of Articles 5 and 6 of the Convention. 17.     On 10 September 2007 the Court of Appeal dismissed the applicant’s appeal. On the basis of the evidence obtained, the expert report of a psychiatrist, reports by the head of Garsten detention centre and its psychiatric and psychological service, it found that despite progress in the applicant’s therapy he still suffered from a grave mental disorder and was likely to commit acts of violence in the future. The Court of Appeal also considered that the Regional Court had correctly dismissed the applicant’s request for the taking of further evidence. As to the applicant’s argument that the proceedings related to his request had lasted an unreasonably long time, the Court of Appeal found that, according to the relevant case ‑ law, the condition under section 25 § 3 of the Penal Code for annual review of the further necessity of detention in an institution was complied with if such a review had been started by the competent court within the one-year period, whereas it was not necessary that the decision following the review be taken within that time-limit. D.     The third set of proceedings for release from the institution 18.     On 28 February 2008 the applicant again applied for the order for psychiatric detention to be lifted, and to be transferred to an ordinary prison. After a further application by the applicant under section 91 of the Court Act, the application was finally examined on 10 September 2009, when the Regional Court ordered the termination of the applicant’s psychiatric detention, suspended the remaining seven months of his prison sentence and released him subject to a number of conditions. II.     RELEVANT DOMESTIC LAW AND PRACTICE 19.     Section 21 of the Criminal Code (under the heading “preventive measures”) as in force at the relevant time provided as follows: “(1)     If a person commits an offence punishable with a term of imprisonment exceeding one year, and if the person cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (section 11) 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 person, 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. (2)     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 by 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.” 20 .     Section 25 of the Criminal Code, as far as relevant, provides as follows: “(1)     Preventive measures are to be ordered for an indefinite period. They are to be implemented for as long as is required by their purpose ... (2)     The termination of preventive measures shall be decided by the court. (3)     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 case-law of the Supreme Court, section 25 § 3 is complied with if the review of the necessity of further detention has started within one year of the last decision on that matter. The law guarantees an examination at regular intervals, but does not fix a time-limit for the actual decision. It is therefore not necessary that the decisions of first and/or second instance be taken within a one-year time-limit (Supreme Court, judgment of 30 September 1980, 10 Os 79/80). 21.     By virtue of section 46 of the Criminal Code, conditional release from prison is possible after half or two thirds of the sentence respectively have been served, subject to certain conditions. 22.     Section 91 of the Court Act provides for interlocutory applications whereby a court is required to request a higher instance to impose an adequate time-limit for taking a procedural measure which the lower court has failed to take to date. III.     RELEVANT INTERNATIONAL INSTRUMENTS 23.     In its 75th plenary meeting, the United Nations General Assembly on 17 December 1991 adopted the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, (Resolution A/RES/46/119), which read in the relevant parts as follows: “Application The present Principles shall be applied without discrimination on any grounds, such as disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth. ... Principle 17 Review body ... 3.     The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law. 4.     An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law. 5.     At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of principle 16 above are still satisfied, and, if not, the patient shall be discharged as an involuntary patient. 6.     If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient. 7.     A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility. ... Principle 20 Criminal offenders 1.     The present Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 24.     The applicant alleged that the length of the proceedings relating to his second application to be released from the psychiatric hospital was in violation of Article 5 § 4 of the Convention. Article 5 provides, so far as relevant, 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.” 25.     The Government contested that argument. A.     Admissibility 1.     The parties’ submissions 26.     The Government noted that pursuant to section 46 § 1 of the Penal Code, the applicant, in case of his previous release from the psychiatric institution, could have been conditionally released from detention at the earliest after having served half of his prison term, meaning that his release was excluded by statute until 8 May 2007. In their view, a violation of Article 5 § 4 because of proceedings conducted prior to that date was impossible, which is why only the examination period between 8 May 2007 and 20 September 2007 should be taken into consideration. In that context, the Government emphasised the nature of the applicant’s detention: section   21   §   2 of the Criminal Code enabled the sentencing court, in addition to imposing a sentence of imprisonment, to order detention in an institution for mentally ill offenders. Such detention was to be served before the prison sentence, but counted as part of the prison sentence. They pointed out that where a prison sentence was imposed by a convicting court, the review of lawfulness required by Article 5 § 4 was incorporated in the initial conviction. Accordingly – because the applicant was not asking for his release, but merely for a transfer from one type of detention facility to another – that provision was not applicable in the present case. 27.     The applicant maintained that the purpose of the proceedings was the question of his release from detention in the psychiatric institution, and that Article 5 § 4 was applicable to such release issues. 2.     The Court’s assessment 28.     The Court reiterates that Article 5 § 1 of the Convention contains a list of permissible grounds for deprivation of liberty, a list which is exhaustive. Consequently, no deprivation of liberty will be lawful unless it falls within one of the grounds set out in sub-paragraphs (a) to (f) of Article   5 § 1. However, the applicability of one ground does not necessarily preclude that of another; deprivation of liberty may, depending on the circumstances, be justified under one or more sub-paragraphs (see, among other authorities, the Erkalo v. the Netherlands judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2477, § 50). 29.     The Court reiterates that Article 5 § 4 of the Convention guarantees a review of the lawfulness of detention. That review is incorporated in the decision depriving a person of his liberty when that decision is made by a court at the close of judicial proceedings; this is so, for example, where a sentence of imprisonment is pronounced after conviction by a competent court within the meaning of Article 5 § 1 (a) of the Convention. However, Article 5 § 4 may require the possibility of subsequent review of the lawfulness of detention by a court. This usually applies to the detention of persons of unsound mind within the meaning of Article 5 § 1 (e), where the reasons initially warranting psychiatric confinement may cease to exist. The same principle may apply to the detention “after conviction by a competent court” mentioned in Article 5 § 1 (a), but only in certain quite specific circumstances (see, with further references, Iribarne Pérez v. France , 24   October 1995, § 30, Series A no. 325 ‑ C). 30.     In the present case the Linz Regional Court, in convicting the applicant on 21 January 2005, made two substantive orders. First, it imposed a term of imprisonment of six years on the applicant. Secondly, it ordered his detention in an institution for mentally ill offenders under section 21 § 2 of the Criminal Code. That order, confirmed on appeal on 7   June 2005 by the Linz Court of Appeal, constituted an initial decision that the applicant could be detained in such an institution. The second part of the order, which ran parallel to the prison sentence, required the applicant’s placement in an institution for mentally ill offenders for as long as this measure was necessary. 31.     In terms of Article 5 § 1, the applicant’s detention in general was therefore initially covered both by sub-sections (a) and (e) of that provision. His application of 10 January 2007 to the Regional Court for the order under section 21 § 2 of the Criminal Code to be lifted, however, was not an application for a review of the lawfulness of his detention in general. The applicant rather alleged that the reasons for his detention under Article 5 §   1   (e) of the Convention had ceased to exist. He was asking for the lifting of the measure of detention under section 21 § 2 of the Criminal Code, which ran parallel to his prison sentence but could be challenged independently by virtue of the domestic law, even if at the material time this could not have led to his release, but only to his transfer to an ordinary prison . In this context the Court considers that in cases concerning the placement in mental institutions where the reasons initially warranting confinement may cease to exist, it would be contrary to the object and purpose of Article 5 to interpret paragraph 4 thereof as making this category of confinement immune from subsequent review of lawfulness merely because the initial decision of detention was taken by a court under Article 5 § 1 (a) of the Convention. This must be the case even if the review under Article 5 § 4 would not lead to release but to a transfer to an ordinary prison. The reason for guaranteeing a review under Article 5 § 4 is equally important to persons detained in a mental institution regardless of whether or not these persons are serving sentences of imprisonment for criminal offenses. The Court also reiterates that in the Austrian legal system a separate challenge of such confinement is allowed. 32.     Having regard to this, the Court finds that Article 5 § 4 of the Convention was applicable to the proceedings in question. 33.     The Court does not find that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) or inadmissible on any other ground. It must therefore be declares admissible. B.     Merits 1.     The parties’ submissions 34.     The Government considered that the proceedings in question did not last too long: the Austrian legislation provided for annual reviews of such detention, and the automatic review would have begun on 30 March 2007. The second instance decision on the review was given on 10 September 2007, that is eight months after the applicant’s request of 10 January 2007, a little over five months after the time for the annual review of detention, and scarcely four months after the applicant was even eligible for release. In the circumstances, that period was not unduly long. 35.     The applicant submitted that the proceedings in question lasted ten months, namely from 10 January to 10 September 2007. In particular, he alleged that the court took too long to appoint the expert, too long to ensure that the expert report was prepared, and too long to set down the case for a hearing. The decision by the appellate court was taken more than sixteen months after the earlier appeal decision on preventive detention (9 May 2006 – 10 September 2007). If one considered the time that passed between the decisions in the first instance, that period also lasted sixteen months, namely from 31 March 2006 to 31 July 2007. He claimed that section 25 § 3 of the Criminal Code unambiguously stated that a review had to take place at least yearly, meaning that not less than once every 12 months a decision on further detention had to be taken. Therefore, the authorities had failed to fulfil the requirement of a “speedy” review of detention pursuant to Article   5 § 4 of the Convention. 2.     The Court’s assessment (a)     General principles 36.     The Court reiterates that Article 5 § 4 of the Convention proclaims the right to a speedy judicial decision concerning the lawfulness of detention, and to an order for release it if proved unlawful (see Baranowski v. Poland , no. 28358/95, § 68, ECHR 2000 ‑ III, and Kadirzhanov and Mamashev v. Russia , nos. 42351/13 and 47823/13, § 119, 17 July 2014). Whereas the Court has held above, that Article 5 § 4 is applicable in this case, it reiterates that Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for an appeal, the appellate body must also comply with the requirements of Article 5 § 4, for instance as concerns the speediness of the review in appeal proceedings. Accordingly, in order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary to effect an overall assessment where the proceedings have been conducted at more than one level of jurisdiction (see Mooren v. Germany [GC], no. 11364/03, §   106, 9 July 2009). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before an appellate court (see Lebedev v. Russia , no. 4493/04, § 96, 25 October 2007). 37.     The question of whether periods comply with the requirement of “speediness” under Article 5 § 4 must be determined in the light of the circumstances of each case (see Sanchez-Reisse v. Switzerland , 21 October 1986, § 55, Series A no. 107, Oldham v. the United Kingdom , no. 36273/97, § 31, ECHR 2000-X, and Rehbock v. Slovenia , no. 29462/95, § 84, ECHR 2000-XII). Although the amount of time taken by the relevant proceedings is obviously an important element, it is not necessarily in itself decisive for the question of whether a decision has been given with the requisite speed (see Merie v. the Netherlands (dec.), no. 664/05, 20 September 2007). What is taken into account is the diligence shown by the authorities, the delay attributable to the applicant, and any factors causing delay for which the State cannot be held responsible, such as the complexity of a case (see, mutatis mutandis , Jablonski v. Poland , no. 33492/96, §§ 91-94, 21   December 2000). The Court must also examine whether any new relevant factors that have arisen in the interval between periodic reviews have been assessed, without unreasonable delay, by a court having jurisdiction to decide whether or not the detention has become “unlawful” in the light of these new factors (see Abdulkhakov v. Russia , no. 14743/11, §   215, 2 October 2012). 38 .     The Court observes that it is not its task to attempt to rule on the maximum period of time between reviews which should automatically apply to a certain category of detainees (see Kadirzhanov and Mamashev v.   Russia , cited above, § 130). The requirements of Article 5 § 4 as to what may be considered a “reasonable” interval in the context of periodic judicial review varies from one domain to another, depending on the type of deprivation of liberty in question (see, for a summary of the Court’s case ‑ law in the context of detention for the purposes set out in sub ‑ paragraphs (a), (c), (e) and (f) of Article 5 § 1, Abdulkhakov v. Russia , §§ 212-14, cited above). Long intervals in the context of automatic periodic review may give rise to a violation of Article 5 § 4 (see, among other authorities, Herczegfalvy v. Austria , 24 September 1992, § 77, Series A no.   244). (b)     Application of these principles to the present case 39.     At the outset, the Court notes that section 25 § 3 of the Austrian Criminal Code requires that a court must “examine” at least once yearly whether the placement in an institution for mentally ill offenders is still necessary. This provision has been interpreted by the Supreme Court to stipulate that it has been complied with if the review was started within one year of the last decision being taken (see paragraph 20 above). The Court notes that this requirement under domestic law and jurisprudence appears to have been fulfilled in the proceedings in question. 40.     However, according to the Court’s case-law such a decision must also be taken speedily. The Court observes that the Court of Appeal in its decision of 30 July 2007 found that the Regional Court had not fulfilled its duty to take a decision within a reasonable amount of time (see paragraph   14 above). 41.     The Court notes in particular that there is no indication that would suggest that the applicant had caused any delays in the examination of his request. On the contrary, he availed himself of the legal remedy he had at hand in order to accelerate the proceedings, namely an application for the setting of a time-limit under section 91 of the Court Act. 42.     When it comes to the authorities’ conduct, the Court considers, as pointed out by the Court of Appeal in its decision of 30 July 2007, that there were significant delays in the proceedings before the Regional Court. The Court further considers that the delay in the submission of the expert opinion is attributable to the Regional Court. These delays which occurred before the first instance court cannot be offset by the fact that the Court of Appeal issued its appeal decision just four weeks after having received the applicant’s appeal. 43.     Taking into account the authorities’ conduct, the Court finds that under the specific circumstances of the present case, the interval of sixteen months between the final decisions in the first and the second set of proceedings (9 May 2006 to 10 September 2007) on the applicant’s further detention in a psychiatric institution did not fulfill the “speediness” requirement under Article 5 § 4 of the Convention. Accordingly, there has been a violation of that provision. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 44.     The applicant further contended that the above proceedings had lasted an unduly long time, and for that reason were in breach of Article 6 §   1 of the Convention. Under Article 6 § 3 (d) of the Convention, he complained that the courts had failed to take evidence requested by him. That provision, so far as relevant, reads as follows: “1.     In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” 45.     The Government, referring to the relationship between Article 5 § 4 and Article 6 of the Convention and, in particular, to the case of Reinprecht v. Austria (no. 67175/01, ECHR 2005 ‑ XII), submitted that Article 6 of the Convention was not applicable to the present case. However, even if Article   6 of the Convention were applicable, the proceedings had not lasted too long. 46.     The applicant argued that Article 6 was applicable at least in its civil limb, as preventive detention under the special preventive detention regime puts detainees under special restrictions which affect their civil rights and obligations. He maintained that the proceedings in question had lasted too long. 47.     The Court considers that whereas the complaints are admissible, having regard to its findings under Article 5 § 4 of the Convention, it does not find it necessary to examine them further. III.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 48.     Lastly, the applicant complained under Article 13, read in conjunction with Articles 5 § 4 and 6 § 1 of the Convention, that it was not open to him to complain about the length of the proceedings to the Supreme Court. Furthermore, he complained that an application for the setting of a time ‑ limit under section 91 of the Court Act was not an effective remedy against the length of the proceedings, as it took the Court of Appeal more than eleven weeks to decide on this request. 49.     The Court has previously held that an application under section 91 of the Court Act is in principle an effective remedy against court delays (see Tuma v. Austria , no. 22833/07, § 21, 18 October 2011, with further references). In the instant case, the applicant’s application under that provision led to the setting of a time-limit for a decision by the first instance court. The mere fact that he did not have the possibility to appeal to the Supreme Court does not render this remedy inefficient. Therefore, having regard to all the material in its possession and in so far as they fall within the Court’s competence, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 50.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 51.     The applicant claimed 10,000   euros (EUR) in respect of non ‑ pecuniary damage. 52.     The Government questioned whether the applicant had actually suffered non-pecuniary damage from being detained in an institution for mentally ill offenders instead of an ordinary prison, as he had failed to specify in what way this had caused him harm. It considered this claim in any event to be excessive. 53.     The Court finds that the violation of the speed requirement under Article 5 § 4 caused the applicant non-pecuniary damage, such as stress and frustration, which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, it awards the applicant EUR 3,000 under this head, plus any tax that may be chargeable. B.     Costs and expenses 54.     The applicant also claimed EUR   3,592.08 less the amount of EUR   850 already paid to his current legal counsel under the Court’s legal aid scheme for the costs and expenses incurred before the Court. 55.     The Government pointed out that the applicant has not incurred any costs at all, since he was granted legal aid. 56.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, in particular the fact that the application to the Court was lodged by the applicant’s former legal counsel, and that the services of the applicant’s current legal counsel were only engaged for the purposes of submitting observations, the Court considers that the legal aid already received by the latter suffices to cover his costs and expenses incurred in the Convention proceedings and makes no additional award under this head. C.     Default interest 57.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT 1.     Declares unanimously the complaints under Article 5 § 4 and Article 6 of the Convention admissible and the remainder of the application inadmissible;   2.     Holds unanimously that there has been a violation of Article 5 § 4 of the Convention;   3.     Holds by six votes to one that it is not necessary to examine further the complaints under Article 6 of the Convention;   4.     Holds unanimously (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses unanimously the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Søren Nielsen   Isabelle Berro   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pinto de Albuquerque is annexed to this judgment. I.B.L. S.N.   PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE 1.     I agree with the Chamber that there has been a violation of Article   5   §   4 of the European Convention on Human Rights (“the Convention”), on the basis of the excessive length of the proceedings relating to the second application, namely the period of sixteen months between the final decisions in the first and the second set of proceedings (that is to say, between 9 May 2006 and 10 September 2007). But I disagree with its decision not to consider the applicant’s other grievances regarding the entire proceedings, including the period of two years between the Court of Appeal’s final decision in the second set of proceedings, issued on 10   September 2007, and the Regional Court’s order terminating the applicant’s psychiatric detention, suspending the remaining seven months of his prison sentence and releasing him subject to a number of conditions, issued on 10 September 2009. I cannot understand that the Chamber took issue with a delay of sixteen months in the second set of proceedings, but did not find it necessary to censure a delay of twenty ‑ four months in the third set of proceedings and still less the overall duration of the proceedings for release. I also regret the fact that the Chamber did not take the opportunity to clarify the nature of the procedural guarantees applicable to offenders made subject to preventive measures such as the one applied to the applicant. By so doing, the Chamber also left unsaid what it thinks about the applicant’s complaint of a violation of Article 6 § 3 (d) of the Convention on account of the Linz Regional Court’s alleged failure to take the evidence requested by him during the proceedings for the review of the preventive measure. Finally, and above all, I am disappointed that the Chamber did not address the broader issue of the compatibility of the preventive measure under section 21 § 2 of the Austrian Criminal Code with the guarantees of lawfulness and proportionality under Article 5 of the Convention. In the light of the “serious human rights problems” ( ernstzunehmende menschenrechtliche Probleme ) involved in this issue and the need for measures against “the increasing duration of detention in the light of the principle of proportionality according to Article 5 of the ECHR” ( die zunehmende Anhaltedauer im Lichte des Verhältnismässigkeitsprinzips gemäss Art. 5 EMRK ), which the Government themselves acknowledge [1] , I thought it wise to further discuss the case at the point where the Chamber concluded its analysis. The international standards on the treatment of offenders with mental health problems 2.     Disability-based arrest, detention or imprisonment is in breach of Article 14 § 1 (b) of the Convention on the Rights of Persons with Disabilities (“the CRPD”). Detention based on the perceived danger of mentally ill persons to themselves or to others breaches Article 14, the approach taken in the 1991 Principles for the Protection of Persons with Mental Illness, which condoned deprivation of liberty in the field of mental health, having been rejected [2] . When persons with disabilities are subjected to arrest, detention or imprisonment, Article 14 § 2 of the CRPD guarantees non-discrimination, including by the provision of reasonable accommodation on an individualised basis, in other words, accommodation with the necessary and appropriate modification and adjustments to secure to each person with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Deprivations of liberty based on the existence of a disability are intrinsically discriminatory. Detention regimes which by their own terms discriminate on the basis of disability constitute arbitrary detention. The involuntary detention of persons with disabilities based on presumptions of risk or dangerousness linked to disability labels is contrary to the right to liberty [3] . In the criminal-law context, the automatic and involuntary transfer to mental health facilities within or outside of an ordinary prison facility, or the automatic imposition of mental health treatment as a condition of probation, parole or a transfer to a softer or “normal” prison regime, cannot be considered a reasonable individualised accommodation for persons with a disability. Thus, States parties should ensure that each detained person with disabilities has access to voluntary, suitable, timely health care that is in keeping with his or her state of health as well as full access to rehabilitation therapy on a regular basis [4] . 3.     The United Nations Special Rapporteur on Torture has called for the replacement of Rules 82 and 83 of the Standard Minimum Rules on the Treatment of Prisoners, which mandate transfers of “insane and mentally abnormal prisoners” to mental health facilities and placement under medical supervision. The new provisions should not only articulate certain rights enshrined in the CRPD, but also state clearly that inmates with disabilities are entitled to be eligible for all programmes and services available to others, including voluntary engagement in activities and community release programmes, and to be housed in the general prison population on an equal basis with others without discrimination [5] . This call was followed by the Observations on the Standard Minimum Rules for the Treatment of Prisoners, adopted by the Committee on 20   November 2013. The Committee insisted that the denial of reasonable accommodation in custody facilities or any other detention institutions should be considered as a form of discrimination, and in some instances as a form of torture and ill ‑ treatment. Detentions conditions should never amount to causing increased suffering to inmates with disabilities. In no case should the disability entail added forms of suffering for persons in detention. Improper health conditions in prisons and detention centres could result in the creation of further disabilities in addition to the existing ones. These conditions should be properly identified and preventive measures adopted to avoid the progression of an existing disability or further disabilities in the prisoner. Prison authorities should be obliged to implement appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability and full inclusion and participation in all aspects of prison life, on an equal basis with others. Rehabilitation and habilitation programmes should be put in place in order to achieve these goals. 4.     The Court has adopted the approach taken by the Committee. According to well-established case-law, States must provide reasonable accommodations for disabled detainees, and failure to do so amounts to inhuman and degrading treatment, regardless of any positive intention to humiliate or debase the detainee [6] . The placement of detainees in conditions not suitable for their mental health status and needs represents an unlawful deprivation of liberty [7] . There must be some relationship between the ground of permitted deprivation of liberty relied on and the conditions of detention [8] . The legal treatment of offenders with mental health problems in Austria 5.     In Austria, offenders who are found to be criminally responsible ( zurechnungsfähige Rechtsbrecher ) may be punished by a criminal penalty ( Strafe ) and those found not to be criminally responsible ( unzurechnungsunfähige Rechtsbrecher ) may be punished by a preventive detention measure ( vorbeugende Massnahme der Unterbringung ). In addition, Austrian law provides for three other groups of offenders who may be punished for the same criminal conduct (fact or omission) by both a criminal penalty and a preventive measure, in the framework of a “dual system” of criminal sanctions ( Zweispurigkeit von Strafen and Massnahmen ), which provides in certain cases for the interchangeable execution of both the criminal penalty and the preventive measure ( Vikariieren von Strafe und Massnahme im Vollzug ). The third group of offenders includes those in need of treatment for alcohol or drug addiction ( entwöhnungsbedürftige Rechtsbrecher ) who committed an offence while in a state of intoxication or in any other way related to their addiction ( wegen einer im Rausch oder sonst im Zusammenhang mit seiner Gewöhnung begangenen strafbaren Handlung oder wegen Begehung einer mit Strafe bedrohten Handlung im Zustand voller Berauschung ). These offenders may be made subject to a preventive measure and a criminal penalty (section 22 of the Austrian Criminal Code). In this case, the criminal penalty is executed after the preventive measure (section 24 § 1 of the Criminal Code), but the maximum duration of the preventive measure is limited to two years (section 25 § 1 of the Criminal Code). A fourth group of offenders may be made subject to a criminal penalty and a preventive detention measure: the so-called “dangerous recidivists” ( gefährliche Rückfallstäter ). These are offenders who have committed certain types of offences owing to an “inherent tendency to commit these offences” ( wegen seines Hanges zu strafbaren Handlungen : section 23 of the Criminal Code). In this case, the criminal penalty is executed before the preventi