FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1241/06
by Klaus PUTTRUS
against Germany
The European Court of Human Rights (Fifth Section), sitting on 
24 March 2009 as a Chamber composed of:

and ,
Having regard to the above application lodged on 1 January 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Klaus Puttrus, is a German national who was born in 1952. He is currently in a forensic psychiatric clinic in Hanau.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Background to the case
a.  The applicant’s convictions and his placement in a psychiatric hospital
In 1969, 1972 and 1974 respectively the applicant was convicted of attempted rape.
On 5 February 1984 the applicant was placed in pre-trial detention.
On 3 December 1984 the Frankfurt am Main Regional Court convicted the applicant of three counts of attempted rape, combined with sexual assault in one case, with assault in another case and with dangerous assault in the third case. Having consulted an expert, who had diagnosed the applicant as suffering from a schizoid and narcissistic personality disorder, the court considered that the applicant had committed his offences with diminished criminal responsibility. It sentenced him to five years and six months’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see Relevant domestic law below).
The applicant was detained in prison until 27 March 1985. Since then, he has been detained in a psychiatric hospital (apart from the period from 26 June 1995 to 5 September 1997 during which he was in preventive detention), initially in Haina and since 2003 in Hanau.
b.  Previous reviews of the applicant’s detention in a psychiatric hospital
The applicant’s detention in a psychiatric hospital has been reviewed at regular intervals (compare Article 67d and Article 67e of the Criminal Code, see Relevant domestic law below).
In particular, on 29 April 2005 the Gießen Regional Court, in a decision confirmed on appeal, rejected the request of the applicant, represented by counsel, toterminate or suspend on probation his detention in a psychiatric hospital. It had regard to the report of an external expert consulted in 2001, who had diagnosed the applicant with a schizoid personality disorder with narcissistic and sadist elements, to two earlier medical expert reports and to a statement of the director of the Hanau clinic for forensic psychiatry of 2005. The latter had agreed with the finding of the external expert that the applicant’s personality disorder persisted and had confirmed that, contrary to the applicant’s own assessment, the applicant had not cured his sexual sadism by meditation. The Regional Court found that the conditions for the detention of the applicant, who kept refusing all offers of therapy made to him, in a psychiatric hospital were still met and that there was a risk that the applicant would commit further serious sexual offences if released 
(Article 67d of the Criminal Code, see Relevant domestic law below).
On 16 December 2005 the Federal Constitutional Court dismissed the applicant’s constitutional complaint (file no. 2 BvR 1212/05). It found, in particular, that the courts ordering the continuation of the applicant’s lengthy detention respected the principle of proportionality. In finding that there was a risk that the applicant would commit serious offences, the courts had not only considered earlier expert reports, but also a recent statement made by the psychiatric hospital. It had not yet been necessary to consult an external psychiatric expert again. Even though the applicant’s detention had lasted for more than twenty years, its continuation was not yet excessive as the offences the applicant might commit were serious and as the applicant refused any therapy.
2.  The proceedings at issue
a.  The decision of the Gießen Regional Court
On 19 April 2006 the Gießen Regional Court dismissed the request of the applicant, who had refused to be heard in person, to have his detention in a psychiatric hospital terminated or suspended on probation (see Article 67d and Article 67e of the Criminal Code). Having regard to the applicant’s written submissions and referring to its decision of 29 April 2005 
(see 1.b. above), it argued that there had been no changes justifying a different assessment. In particular, as the director of the Hanau forensic psychiatric clinic had confirmed in his statement of 2 February 2006, no progress in the applicant’s treatment could be made as the applicant kept refusing all offers of therapy. The applicant still suffered from a schizoid personality disorder and might suffer from sexual sadism. Even though this did not necessarily entail a constantly diminished criminal responsibility, the applicant still risked committing sexual offences if released, similar to the ones of which he had previously been convicted.
b.  The decision of the Frankfurt am Main Court of Appeal
On 23 May 2006 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. Referring also to the decision taken by the Gießen Regional Court on 29 April 2005, as confirmed on appeal and by the Federal Constitutional Court, the Court of Appeal found that the grounds for these decisions, in particular the applicant’s dangerousness, had not changed.
The Court of Appeal further considered that the applicant’s continued detention for more than twenty years was still proportionate. There was a risk that the applicant would commit offences causing grave damage if released and kept refusing treatment even though he had himself been aware of his need of therapy since 1984, believing that he could cure himself by meditation. As had again been confirmed by the medical director of the Hanau forensic psychiatric clinic in his statement of 2 February 2006, repeated attempts to motivate him to accept treatment had been to no avail.
c.  The decision of the Federal Constitutional Court
On 19 October 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1368/06) lodged against the decisions of the Gießen Regional Court dated 
19 April 2006 and of the Frankfurt am Main Court of Appeal dated 
23 May 2006.
The Federal Constitutional Court found that the applicant’s complaint had no prospect of success. The courts dealing with the execution of the applicant’s detention had had sufficient regard to the numerous external and internal expert reports obtained during the applicant’s long detention and had taken into account possibly different assessments made by these experts. There was nothing to indicate that the reports drafted by external experts had failed to comply with the minimum standards required by the Basic Law. In so far as the applicant considered himself cured, he was simply replacing by his own view the assessment made by the courts with the help of experts and by the psychiatric hospital.
As to the question whether the applicant’s continued detention in a psychiatric hospital was proportionate, the Federal Constitutional Court referred to the reasons of its decision of 16 December 2005 
(file no. 2 BvR 1212/05, see 1.b. above).
B.  Relevant domestic law
The German Criminal Code distinguishes between penalties (Strafen) and so‑called measures of correction and prevention 
(Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code). Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. Placement in a psychiatric hospital may be ordered against offenders who have acted with diminished criminal responsibility, in addition to their punishment (compare Article 63). The measure must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants concerned, as well as to their dangerousness 
(Article 62 of the Criminal Code).
Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court orders their placement without a maximum duration in a psychiatric hospital if a comprehensive evaluation of the defendant and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public.
Article 67d of the Criminal Code governs the duration of detention. In its version in force at the relevant time, it provided:

Article 67d
“(1) Detention in a detoxification facility may not exceed two years ...
(2) If there is no provision for a maximum  or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall  entail supervision of the conduct of the offender.
(3) If a person has spent ten years in preventive detention, the court shall declare the measure terminated if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in  psychological or physical harm to the victims. Termination shall  entail supervision of the conduct of the offender. (...)”
If the court considers following the commencement of detention in a psychiatric hospital that the conditions for the measure are no longer met or that the further execution of the measure would be disproportionate, 
it declares the measure terminated (Article 67d § 6).
Article 67e of the Criminal Code provides for the review of a person’s detention, inter alia, in a psychiatric hospital. The court may review at any time whether the further execution of the detention order should be suspended on probation. It is obliged to do so within fixed time-limits 
(§ 1 of Article 67e). For persons detained in a psychiatric hospital, this 
time-limit is one year, for persons in preventive detention it is two years 
(§ 2 of Article 67e).
COMPLAINTS
The applicant complained under Article 5 § 1 (e) of the Convention that he had been detained in a psychiatric hospital since 1985. He argued that he did not suffer from a mental illness which justified his placement in such a hospital. Moreover, he considered that his detention for more than 
twenty-four years was disproportionate, not least as he had been sentenced to a much shorter term of imprisonment.
The applicant further argued that the domestic courts’ failure to hear the medical experts who had examined him in person at a hearing, despite the fact that they had taken different views on the question whether his detention in a psychiatric hospital had been justified, violated his rights under Article 6 § 3 (d) of the Convention.
THE LAW
1.  Complaint concerning the continued detention in a psychiatric hospital
The applicant complained that his continued detention in a psychiatric hospital on the basis of an order made by the Frankfurt am Main Regional Court on 3 December 1984, in addition to his criminal conviction and as confirmed in the proceedings at issue, failed to comply with Article 5 § 1 which, in so far as relevant, provides:
“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; ...”
The Court finds that the applicant was deprived of his liberty during his detention in a psychiatric hospital by virtue of a court decision. As to the reason for his detention, it reiterates that the applicability of one ground listed in Article 5 § 1 does not necessarily preclude the applicability of another and that a detention may be justified under more than one sub-paragraph of that provision (see Eriksen v. Norway, 27 May 1997, § 76, Reports of Judgments and Decisions1997‑III, and 
Johnson v. the United Kingdom, 24 October 1997, § 58, Reports ‑VII).
The Court considers that the applicant’s detention in a psychiatric hospital, which was based on an order made in a judgment convicting him of sexual offences, could fall under Article 5 § 1 (a) as being detention “after conviction” by a “competent court”, and/or under Article 5 § 1 (e) as constituting detention of a person of “unsound mind”. The Court shall first examine the complaint, as was proposed by the applicant, under 
Article 5 § 1 (e).
a.  Was the applicant of “unsound mind”?
In determining whether the applicant was of unsound mind within the meaning of Article 5 § 1 (e) – which he contested – the Court reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: 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; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement must depend upon the persistence of such a disorder 
(see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Johnson, cited above, § 60; H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004‑IX; and Shtukaturov v. Russia, no. 44009/05, § 114, 
27 March 2008). The national authorities have a certain margin of appreciation regarding the merits of clinical diagnoses since it is in the first place for them to evaluate the evidence in a particular case: the Court’s task is to review under the Convention the decisions of those authorities 
(see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75).
In examining whether the applicant has reliably been shown to be of unsound mind of a kind or degree warranting compulsory confinement,the Court notes that not only had the Frankfurt am Main Regional Court obtained medical expert advice before ordering the applicant’s placement in a psychiatric hospital in its judgment delivered in 1984, but the expert had diagnosed the applicant as suffering from a schizoid and narcissistic personality disorder. On that basis, that court had considered that the applicant’s mental condition was such that he was likely to commit further serious unlawful acts and that he was therefore dangerous to the general public. the relevant time of the further extension of the applicant’s detention in a psychiatric hospital in the proceedings at issue (see, mutatis mutandis, Luberti, cited above, § 28), the Gießen Regional Court and the Frankfurt am Main Court of Appeal had again had regard to a recent statement of the director of the clinic for forensic psychiatry, as well as to previous reports drawn up by external experts, who had all confirmed that the applicant continued to suffer from a schizoid personality disorder and, if released, still risked committing sexual offences similar to the ones he had been convicted of. The Court is therefore satisfied that, contrary to the applicant’s own assessment, a true mental disorder of a kind and degree warranting the applicant’s confinement for the protection of the public was established by the competent domestic courts on the basis of objective and sufficiently recent medical expertise.
Furthermore, in the proceedings at issue, the Regional Court and the Court of Appeal re-examined the need for the applicant’s continued detention in the course of the periodic review prescribed by Article 67e of the Criminal Code (see Relevant domestic law above), which demonstrates that the validity of his continued confinement depended on the persistence of his mental disorder.
The Court therefore concludes that the applicant was of unsound mind within the meaning of Article 5 § 1 (e).
b.  Lawfulness of the applicant’s detention
The Court reiterates that the lawfulness of detention depends on conformity with the procedural and the substantive rules of domestic law, the term “lawful” overlapping to a certain extent with the general requirement in Article 5 § 1 to observe a “procedure prescribed by law” 
(see Winterwerp, cited above, § 39, and H.L. v. the United Kingdom, cited above, § 114). A necessary element of the “lawfulness” of the detention within the meaning of Article 5 § 1 (e) is the absence of arbitrariness. 
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 
(see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000‑III, and Varbanov v. Bulgaria, no. 31365/96, § 46, ECHR 2000‑X).
The Court notes that the continuation of the applicant’s detention in a psychiatric hospital was ordered by the Frankfurt am Main Regional Court on 3 December 1984 under Article 63 of the Criminal Code for an unlimited duration, and was not subsequently terminated or suspended on probation by the domestic courts in the proceedings at issue under Article 67e of the Criminal Code. It therefore finds that the applicant’s detention was in conformity with the procedural and substantive rules of domestic law, which has in fact not been contested by the applicant.
In determining whether the applicant’s detention has been in keeping with the purpose of Article 5 § 1 of protecting him from arbitrariness, Court notes that at the time of the proceedings before the domestic courts the applicant had already been detained in a psychiatric hospital for more than twenty years. However, the domestic courts, who expressly took this fact into consideration when examining the proportionality of the applicant’s continued detention, found that because of his continued dangerousness, the applicant’s detention could not be suspended on probation. The Court further observes that the applicant’s mental condition did not change throughout his stay in the psychiatric hospital, which was also attributable to the fact that, having concluded that he was in need of treatment, the applicant had nevertheless refused repeated offers of therapy, arguing that he could cure himself by meditation. As there was a risk that the applicant would commit serious offences, such as attempted rape combined with dangerous assault, and thus posed a considerable threat to the public if released, the Court considers that his continued detention which has moreover been subject to periodic judicial review 
(see Article 67 e § 2 of the Criminal Code) and has been shown to be necessary in the circumstances and cannot, therefore, be considered arbitrary.
Consequently, the applicant’s deprivation of liberty was justified under Article 5 § 1 (e) of the Convention. Having reached that conclusion, 
the Court does not find it necessary to examine whether sub-paragraph (a) also applied in the instant case.
It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2.  Complaint concerning the fairness of the proceedings for judicial review of the applicant’s detention
The applicant further complained that in view of the contradictions between the medical expert reports submitted to the domestic courts, the courts’ failure to hear the experts in person at a hearing had violated his rights under Article 6 § 3 (d) of the Convention.
The Court has examined the applicant’s complaint as submitted by him. However, having regard to all material in its possession, the Court finds that, even assuming the exhaustion of domestic remedies, this complaint, which falls to be examined under Article 5 § 4 of the Convention, does not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that this part of the application must equally be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
	Claudia Westerdiek	Rait Maruste
	Registrar	President