CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 mai 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } Published on 3 June 2024   FOURTH SECTION Application no. 44001/22 K.A. against Austria lodged on 10 September 2022 communicated on 17 May 2024 SUBJECT MATTER OF THE CASE The application concerns the criminal trial and subsequent confinement of the applicant, a national of Kosovo [1] living in Austria since 2001, in an institution for mentally ill offenders under Article 21 § 2 of the Criminal Code (confinement of mentally ill offenders who were criminally liable at the time of their offence). On 30 May 2021 the applicant was arrested, and a criminal investigation was initiated against him on suspicion of committing several offences (serious coercion, (attempted) bodily injury and dangerous threat) against his family members. On 30 June 2021 an adversarial hearing of witnesses ( kontradiktorische Zeugenvernehmung ) of three of his children took place at the Regional Court, in accordance with Article 165 § 3 of the Code of Criminal Procedure. Together with an interpreter and his lawyer, the applicant followed the witness questioning via a live audio and video connection from another room. Subsequently, the public prosecutor’s office requested an expert report on the applicant’s criminal liability and whether the legal conditions were fulfilled for his confinement in an institution for mentally ill offenders. In the expert report of 29 September 2021, the expert concluded as follows: (i)   accentuated personality structure or suspected personality disorder ( akzentuierte Persönlichkeitsstruktur beziehungsweise Verdacht auf Persönlichkeitsstörung ) and (ii)   alcohol abuse ( Alkoholmissbrauch ). She further noted that a personality disorder, which would have to manifest itself in a continuous, identical pattern of failure in practically all areas of life, could not clearly be attributed to the applicant on the basis of his apparently functioning professional activity. In her opinion, the applicant was certainly not mentally ill, nor could any symptoms be explored either currently or in the past that would suggest such an illness. From a psychiatric point of view, it could be assumed that at the relevant times the psychiatric basis of the applicant’s sanity was fully present. In the absence of the applicant’s openness, no diagnostic classification could be made. A higher degree of emotional-mental abnormality could not be attributed without an evaluation of the witness statements. On 10 and 17 December 2021 trial hearings took place before the Regional Court. The applicant’s three children who had given statements during their adversarial hearings as witnesses did not attend. Instead, an audio and video recording of those hearings was played during the trial hearing. On 17 December 2021, the Regional Court found the applicant guilty of having committed numerous counts of several offences (continued use of force against his wife and four children, deprivation of liberty, bodily injury and dangerous threat) and sentenced him to eight years’ imprisonment. Referring to the findings in the expert report and the expert’s testimony during the trial, it also ordered his confinement in an institution for mentally ill offenders. On 27 April 2022 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant’s plea of nullity ( Nichtigkeitsbeschwerde ), and on 21 June 2022 the Court of Appeal ( Oberlandesgericht ) dismissed his appeal against the sentence ( Berufung ) and upheld his confinement in an institution for mentally ill offenders. Under Article 5 § 1 of the Convention, the applicant complains of his confinement in an institution for mentally ill offenders, claiming that the expert had not established in her report that he suffered from a mental disorder, not even from a personality disorder, but rather from a certain personality structure (or character). Having a certain personality structure (or character) is not the same as being of unsound mind in the meaning of Article   5 §   1   (e) of the Convention. Under Article 6 §§ 1 and 3 (d) and (e) of the Convention, he further complains of his conviction based on the statements given by the three witnesses during their adversarial hearings in the criminal investigative proceedings, claiming that a part of those hearings lacked interpretation. While the trial court made up for this by translating the witness statements during the trial hearing, this did not give him the possibility to put questions to the witnesses because the court rejected his motion to summon them for an additional questioning during the trial itself. His right to examine witnesses has thus been violated. QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of his liberty in breach of Article   5 §   1 of the Convention? In particular, did the deprivation of liberty fall within the meaning of paragraph (e) of this provision and was it ordered “in accordance with a procedure prescribed by law”? Has the applicant been reliably shown, by objective medical expertise, to be of unsound mind in the meaning of the Convention and, if so, is his disorder of a kind to warrant compulsory confinement, that is, has it been shown to have been necessary in the circumstances (see, for example, Petschulies v. Germany , no.   6281/13, §§   59 ‑ 65 and 77, 2 June 2016; Kronfeldner v. Germany , no.   21906/09, §§   78 ‑ 80, 19 January 2012;   B v. Germany , no. 61272/09, §§ 78-80, 19   April 2012; and Glien v. Germany , no. 7345/12, §§ 88-91, 28 November 2013)?   2.     Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article   6 §   1 of the Convention? Have the requirements of Article 6 § 3 of the Convention concerning the rights of the defence been met? In particular, was the applicant able to examine witnesses against him, as required by Article   6 § 3   (d) of the Convention (see, for example, Schatschaschwili v. Germany   [GC], no.   9154/10, §§ 100-107, ECHR 2015)? Did the applicant require and was he afforded the free and effective assistance of an interpreter, within the meaning of Article   6 §   3   (e) of the Convention (see, for example, Hermi v. Italy   [GC], no.   18114/02, §§ 68-72, ECHR   2006-XII)? [1] All references to   Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nation’s Security Council Resolution 1244 and without prejudice to the status of   Kosovo.