CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 octobre 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 12 November 2024   FOURTH SECTION Application no. 22881/24 K.A. against Austria lodged on 8 August 2024 communicated on 22 October 2024 SUBJECT MATTER OF THE CASE The case concerns the rejection of the application for release of the applicant, a national of Kosovo [1] living in Austria since 2001, from confinement in a forensic-therapeutic centre ( Anhaltung in einem forensisch ‑ therapeutischen Zentrum ) (for the applicant’s complaints concerning his criminal trial in 2021 and the ensuing confinement in an institution for mentally ill offenders ( Einweisung in eine Anstalt für geistig abnorme Rechtsbrecher ) since December 2021, see application no. 44001/22, K.A. v. Austria ). On 1 March 2023 the law on the 2022 reform of preventive measures ( Maβnahmenvollzugsanpassungsgesetz 2022 ) entered into force. The reform introduced, inter alia , the above-mentioned new terminology for confinement as a preventive measure. According to a transitory provision, persons who should not be confined under the new legal provisions were to be released. On 11 March 2023 the applicant submitted an application for release from the forensic-therapeutic centre. He argued that under the new legal provisions, a confinement no longer required the existence of a serious mental or emotional abnormality ( schwere geistige oder seelische Abartigkeit ) but a serious and persistent mental disorder ( schwere und nachhaltige psychische Störung ). This meant that the legislature’s focus was now on the concept of illness ( Krankheitsbegriff ), which was not fulfilled in his case. The applicant also submitted a private expert opinion of 8 January 2023 which, in his view, confirmed that he did not suffer from a mental disorder. The Regional Court ( Landesgericht ) ordered a new expert opinion from the same expert as the one who had been commissioned during the applicant’s criminal trial in 2021. Following a new face-to-face examination of the applicant held without an interpreter, the court-appointed expert concluded in her new expert report of 24 September 2023 that, from a psychiatric perspective, there had been no changes with regard to the applicant’s serious and persistent disorder since 2021. A release on probation could therefore not be recommended. On 13 February 2024 the Regional Court rejected the applicant’s application for release, thereby confirming his continued confinement also under the new legal provisions. On 3 April 2024 the Court of Appeal ( Oberlandesgericht ) upheld this decision. Under Article 5 §§ 1 and 4 of the Convention, the applicant complains of the rejection of his application for release from the forensic-therapeutic centre, claiming that it had not been established that he suffered from a mental disorder, not even from a personality disorder. He considers that only a true mental disorder, as recognised by the current state of medical science, could qualify him as being of “unsound mind” within the meaning of Article   5   §   1   (e) of the Convention. Under Article 6 §§ 1 and 3 (e) of the Convention, he further complains that his application for release was rejected on the sole basis of the expert opinion of the court-appointed expert who had examined him without an interpreter. He claimed that in view of his poor knowledge of German, a normal conversation with him, let alone a psychiatric examination of him, was not possible in German. 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 after 1 March 2023 fall within paragraph (e) of this provision and was it extended “in accordance with a procedure prescribed by law”? Has the applicant been reliably shown, by objective medical expertise, to continue to be of unsound mind within the meaning of the Convention and, if so, is his disorder of a kind to continue to warrant compulsory confinement, that is, has this confinement been shown to continue 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.     Was the procedure by which the applicant sought to challenge the lawfulness of his deprivation of liberty after 1 March 2023 in conformity with Article 5 § 4 of the Convention (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 128-31, 15 December 2016, and M.H. v. the United Kingdom , no. 11577/06, §§ 74-77, 22 October 2013)?   3.     Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case? If so, did the applicant have a fair hearing in these proceedings, in accordance with Article 6 § 1 of the Convention? Did the applicant require and was he afforded the free assistance of an interpreter, within the meaning of Article 6 § 3 (e) of the Convention? [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.