Last Updated on June 21, 2022 by LawEuro
Information Note on the Court’s case-law 263
June 2022
Judgment 21.6.2022 [Section IV]
Article 5
Article 5-1-e
Persons of unsound mind
Compulsory confinement for about 3 years warranted by applicant’s persisting mental disorder verified on the basis of objective medical expertise: no violation
Article 14
Discrimination
Applicant resisting police not in a relevantly similar situation with an individual who has hit a private person: inadmissible
Facts – In August 2017 the Linz Regional Court ordered the confinement of the applicant, who suffers from a schizophrenic disorder, in an institution for mentally ill offenders as a preventive measure following criminal proceedings relating to charges of having attempted to resist arrest by the police in May 2016. The applicant had also been the subject of two earlier civil placement proceedings held in 2016-2017. Both her nullity plea and her challenge against the constitutionality of the relevant domestic law were unsuccessful. Her case was referred for a decision on appeal and in August 2018 the Court of Appeal confirmed her continued confinement. In October 2020 the Linz Regional Court ordered her conditional release.
Law – Article 5 § 1 (e): The applicant had mainly contended that her confinement had been disproportionate to the underlying minor offence, and that there had been differing conclusions by the experts and therefore another, decisive, expert opinion had been called for. Three psychiatric experts, who were all medical specialists in psychiatry and neurology, had given their opinion concerning the applicant: two during the criminal proceedings and one in both the civil placement proceedings. Their opinions had thus been sufficiently recent in the circumstances of this case. The applicant had been diagnosed by all three experts, two of whom had been able to conduct face-to-face examinations of her, with a type of schizophrenic disorder. This was undoubtedly serious enough to be considered as a “true” mental disorder which might render treatment in an institution necessary. She had thus been reliably shown to be of unsound mind. Further, the applicant’s mental disorder had been established before a competent authority on the basis of objective medical expertise and had been of a kind or degree warranting compulsory confinement. The applicant’s deprivation of liberty had therefore been shown to have been necessary in the circumstances of her case. In this connection, the Court highlighted the Regional Court’s reliance above all on the detailed and lengthy opinion of one of the experts, who had conducted a face-to-face examination of the applicant, and his assessment of the danger she represented to others. During the trial that expert had discussed the other expert opinions and had explained the differences between them. Moreover, when deciding on the applicant’s confinement as opposed to outpatient treatment, the domestic courts had taken into account that the applicant had been described as lacking awareness of the fact that she suffered from a disorder, as displaying a negative attitude towards treatment, and as sometimes having refused to take medication in the past.
Furthermore, the Court of Appeal before confirming her continued confinement one year later, had reliably verified the persistence of her mental disorder on the basis of objective medical evidence. In particular, because of the lapse of time, it had sought a supplementary opinion from the expert whose report the Regional Court had relied on and who then held another face‑to‑face examination of the applicant. About two years later, the same regional court had ordered her conditional release from confinement.
While the Court was mindful of the fact that the applicant had been accused of attempted resistance to State authority, which the applicant considered an offence of a minor character and therefore not proportionate to the sanction of confinement as preventive measure imposed on her, it had already held that whether or not an offence was minor was not decisive when examining the compliance of a person’s deprivation of liberty with Article 5 § 1 (e). Indeed, the authorities were not required to take into account the nature of the acts committed by the individual concerned which gave rise to his or her compulsory confinement. Nonetheless, the Court took note of the currently ongoing discussion on a comprehensive reform of the system of preventive measures in Austria, in particular its aim to achieve compliance with the Court´s case-law, to strengthen the principle of proportionality in the system of preventive detention and to improve considerably the quality of the risk prognoses. This encompassed the aim of improving the quality of expert opinions produced in this context by, for example, establishing (minimum) quality standards for such expert opinions.
Conclusion: no violation (unanimously)
Article 14: It was evident from the definition in the Criminal Code of the offence of resistance to State authority that, while the use of “force” was a necessary requirement to establish that offence, its purpose was not to punish the fact that the applicant had hit a police officer but rather to punish (in this case) the attempt to prevent the police officer from performing an official act when the latter had been arresting her, contrary to the special protection the Austrian legislator had intended to confer on the enforcement and the exercise of State authority. The same provision could not come into play when the same action was done vis‑à‑vis a private citizen, so far as the latter were not entitled to perform an official act in the exercise of State authority. The applicant was therefore not in a relevantly similar situation with someone who had hit a private person.
Conclusion: manifestly ill-founded
(See Denis and Irvine v. Belgium [GC], 62819/17 and 63921/17, 1 June 2021, Legal Summary)
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