Aurnhammer v. Germany

App. No. 36356/10
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On August 19, 2004, Mr. Veit Aurnhammer was convicted by the Regensburg Juvenile District Court of causing bodily harm and damage to property after he struck two ticket collectors in the face when they tried to prevent him from evading ticket controls. Aurnhammer was further convicted of dangerous bodily injury after attacking his sleeping cellmate with a knife and he had also insulted and intimidated the prosecutor in one of the previous trials. Although Aurnhammer was between nineteen and twenty years old at the time of the offenses, the court decided to apply the juvenile criminal law because it found, in line with the psychiatric expert’s report, that Aurnhammer’s adult persona was not developed and that he should be treated as a juvenile and not as an adult. Aurnhammer was found to have committed the crimes in a state of diminished criminal responsibility and was placed in a psychiatric hospital pursuant to Article 63 of the Criminal Code.

On November 2, 2005, September 27, 2006, and September 27, 2007, the criminal courts reviewed Aurnhammer’s compulsory confinement in the psychiatric clinic and found on all occasions that Aurnhammer’s detention in a psychiatric clinic could not yet be suspended on probation. Psychiatric experts at the hospital conveyed suspicion that Aurnhammer might be schizophrenic and that he had shown no insight of the requirement of treatment and that he had a pyschological problem. On October 8, 2009, the District Court again decided that Aurnhammer “could not yet be released because, owing to his ongoing psychiatric illness, he could still be expected to commit crimes of a certain gravity if released.” Experts stated that since Aurnhammer still had a negative attitude towards medication and psychotherapists, sufficient progress to justify his release could not be achieved.

On December 23, 2009, the Regional Court upheld the decision to require Aurnhammer to remain in the psychiatric hospital. The Regional Court held that since there was no sheltered accommodation into which Aurnhammer could be placed after his release, and since the risk of him again committing offenses such as causing bodily harm was great, his continued detention for more than five years was not yet disproportionate. The Court of Appeal rejected the applicant’s appeal of the Regional Court’s decision. On June 10, 2010, the Federal Constitutional Court declined to admit the complaint for examination without giving any reasons.

The applicant complained under Article 5 of the European Convention of Human Rights that his continuous confinement in a psychiatric hospital since 2004 was disproportionately long. The applicant also claimed that the proceedings regarding the judicial review of his continued detention had been unfair. Finally, the applicant complained under Article 2 & 8 of the Convention that his life and health were endangered by the side-effects of all the medication he was required to take for the treatment of his psychological disorder.

The following are the relevant provisions:

Criminal Code Article 20: “Any person who at the time of the commission of the offence is incapable of understanding the unlawfulness of his or her actions or of acting in accordance with any such understanding on account of a pathological mental disorder, a profound consciousness disorder, mental deficiency or any other serious mental abnormality, shall be deemed to have acted without guilt.”

Criminal Code Article 21: “If the capacity of the offender to understand the unlawfulness of his or her actions or to act in accordance with any such understanding is substantially diminished at the time of the commission of the offence for one of the reasons indicated in Article 20, the sentence may be mitigated in accordance with Article 49(1).”

Criminal Code Article 67d(2): “(2) If no maximum period has been provided or the period has not yet expired, the court shall suspend the measure for a probationary period if it can be expected that the person subject to the measure will not commit any more unlawful acts if released. The order for suspension shall automatically lead to the person being subjected to supervision.”

Criminal Code Article 67d(6): “If, after the enforcement of a hospital order has begun, the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate, the court shall declare it terminated. Following release the person concerned shall automatically be placed under supervision. …”

Criminal Code Article 67(e): “The court may review at any time whether the further execution of the placement should be suspended and probation granted. It shall make this review before the expiration of specified terms.” The term shall be one year, if in a psychiatric hospital.

The Court dismissed the application. In determining whether an applicant was of “unsound mind,” the Court states that the following three minimum conditions must be satisfied: (1) the applicant must be shown to be of unsound mind (i.e. “a true mental disorder must be established before a competent authority on the basis of objective medical expertise”); (2) the mental disorder must be of a kind or degree warranting compulsory confinement; and (3) continued confinement depends upon the persistence of such a disorder.

The Court states that the relevant time at which a person must be reliably established to be of unsound mind is the date of the adoption of the measure that deprives the person of his or her liberty. Case law showed that the question of whether medical expertise was sufficiently recent depends on the specific circumstances of each case.

The Court held that the applicant was of unsound mind within the meaning of Article 5 § 1 (e). Here, the Court found that at the time that the Straubing District Court and the Regensburg Regional Court reviewed the applicant’s detention, the courts had medical opinions of external experts stating that the applicant did indeed suffer from a mental disorder. Thus, at the time of the review proceedings at issue, there was a clear diagnosis of a true mental disorder on the basis of medical expertise.

The Court found that the medical expertise relied on by the domestic courts was sufficiently recent. At the time of the review proceedings at issue, the relevant “expert’s opinion was only twenty months old (at the time of the District Court’s decision) and twenty-two months old (at the time of the Regional Court’s decision).” The written statement by the psychiatric team responsible for treating the applicant was only three and five months old respectively, and the oral statement from the deputy medical director treating Aurnhammer was only nine days old. The Court further considered that the applicant’s situation had not changed since the last external expert’s opinion and that the opinions given by the various medical experts did not contradict one another. Furthermore, the Court took into account that the applicant’s relationship with the psychiatric team treating him was not sufficiently troubled as to deadlock the situation.

The Court held that the true mental disorder that was established was “of a kind and degree that warranted the applicant’s continued confinement at the time of the review decisions.” The Court notes the various medical expert opinions that state that the applicant’s mental disorder warranted his continued confinement because he could still be expected to commit further offenses of a similar nature that lead to his initial confinement. Those initial crimes, punching individuals in the face and attacking a fellow prisoner with a knife, are serious offenses that present a serious danger to the public. The Court further notes that the domestic courts showed convincingly and on the basis of medical expertise, that the applicant still suffered from the mental disorder that led to the initial offenses described above.

Lastly, the Court finds that the applicant’s continued detention is not arbitrary and therefore the deprivation of the applicant’s library under Article 5 § 1 (e) of the Convention was justified. On August 19, 2004, the Regensburg Juvenile District Court validly ordered the applicant’s confinement under Article 63 of the Criminal Code for an indefinite duration. The Court therefore “finds that the applicant’s detention was in conformity with procedural and substantive rules of domestic law.” As to the applicant’s continued detention, the Court notes that although the applicant has matured during his time at the psychiatric hospital, his mental condition had not changed sufficiently for it to be expected that he would not reoffend if released. As the past has shown, only minor reasons are needed to provoke unexpected violent behavior of the applicant. The Court also finds that the domestic courts had sufficiently examined whether there were other equally suitable but less severe measures than the applicant’s compulsory confinement in the psychiatric clinic. The Court therefore has no reason to believe that the applicant’s continued confinement was arbitrary.

“In determining whether the applicant was of “unsound mind” within the meaning of Article 5 § 1 (e), the Court reiterates that an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.” (Para 31)

“The detention of an individual is such a serious measure that it is only justified where other, less severe, measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances.” (Para 53)

“… Considering the length of the applicant’s confinement and the seriousness of the criminal offences he was expected to commit if released, the domestic courts had thoroughly balanced the applicant’s right to liberty against the public interest in security and came to the conclusion that at the relevant time the further detention of the applicant was not excessive.” (Para 57)

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