ITEMID: 001-57926
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF PRAGER AND OBERSCHLICK v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (victim);No violation of Art. 10;Not necessary to examine Art. 14+10
JUDGES: C. Russo;R. Pekkanen
TEXT: 7. Mr Prager and Mr Oberschlick are journalists and live in Vienna. The latter is the publisher (Medieninhaber) of the periodical Forum.
8. On 15 March 1987 Forum no. 397/398 published an article by Mr Prager entitled "Danger! Harsh judges!" (Achtung! Scharfe Richter!). The article, which was thirteen pages long, contained criticism of the judges sitting in the Austrian criminal courts. He gave as sources for his article, in addition to his own experience of attending a number of trials, statements of lawyers and legal correspondents and surveys carried out by university researchers.
After a short summary of his main contention, followed by a general introduction, he described in detail the attitude of nine members of the Vienna Regional Criminal Court (Landesgericht für Strafsachen), including that of Judge J.
9. The summary was worded as follows:
"They treat each accused at the outset as if he had already been convicted. They have persons who have travelled from abroad arrested in court on the ground that there is a danger that they will abscond. They ask people who are unconscious after fainting whether they accept their sentence. Protestations of innocence are greeted on their part with a mere shrug of the shoulders and attract for their authors the heaviest sentence because they have not confessed. - Some Austrian criminal court judges are capable of anything; all of them are capable of a lot: there is a pattern to all this."
10. In the general introduction the journalist attacked in the first place the judges who, according to him, for years exercised absolute power "in the domain of their court", exploiting the smallest weaknesses or peculiarities in the accused. The susceptibility of judges was capable of turning the courtroom into a "battlefield"; a convicted person who caused even the slightest offence to the self-esteem of a judge risked, through the effect of the latter’s so-called unfettered discretion to assess the evidence, an extra year of imprisonment or losing the possibility of having his sentence suspended.
Mr Prager then criticised judges who acquitted only as a last resort, who handed down much heavier sentences than most of their colleagues, who treated lawyers like miscreants, who harassed and humiliated the accused to an excessive degree, who extended remand detention beyond the maximum duration of the sentence risked and who disregarded the jury’s verdict when they did not agree with it. He maintained that their independence served only to inflate inordinately their self-importance and enabled them to apply the law in all its cruelty and irrationality, without any scruples and without anyone being able to oppose them.
Mr Prager continued by recounting his personal experiences from meeting judges and visiting courtrooms, referring in this connection to the "arrogant bullying" (menschenverachtende Schikanen) of Judge J.
11. The article also gave a description of a number of individual judges. That of Judge J. read as follows:
"Type: rabid ... [J.].
...
[J.], addressing the Vienna lawyer [K.], counsel for the defence, some years ago: `Keep it short. I’ve already reached my decision.’
[J.]: a judge who does not allow probation officers to sit down in his office. In fact he refuses to speak to them.
[J.]: a judge who once laid a complaint against a prostitute because he had already paid her when she and her pimp vanished without anything having happened. She probably thought that her client was too drunk to notice the difference. [J.] however lay in wait and took down the car’s registration number.
[J.]’s complaint resulted in the prostitute’s conviction - and disciplinary proceedings for himself, which proved really effective because the smutty story, which at least says a lot for [J.]’s pigheadedness, got into the newspapers.
Despite all this he almost became a public prosecutor. But the press revealed a story in which his name cropped up again, this time in connection with criminal proceedings and the suspicion of having given legal advice without due authorisation (Winkelschreiberei). Two men, Mr L. and his son, were accused of having obtained money from people wishing to buy flats in old buildings, by means of fraudulent contracts. When it became clear that the contracts had been drawn up by [J.], the prosecution changed tactics: suddenly it was no longer the contracts that were fraudulent, but the intention which lay behind their use.
[J.] remained a judge instead of becoming a public prosecutor. The editors of Kurier [an Austrian daily newspaper] now regret this because a public prosecutor is less dangerous.
In September Profil [an Austrian magazine] showed why. In his capacity as an investigating judge, [J.] had left a drug addict in detention on remand for over one year, although the remand prisoner’s officially appointed defence counsel repeatedly told him that he was mistaken about the quantity of drugs involved and that the relevant sentence would be from four to six months’ imprisonment.
Notwithstanding this, rather than forwarding the final plea of nullity to the Supreme Court, as he was required to do by the regulations, he transmitted it to the Court of Appeal and to the President of the Court of Appeal, who took a further three months to consider whether the man should be released from prison and whether any mistakes had been made by the investigating judge.
A photocopier would have spared the prisoner at least those three months. Released at the beginning of March by the new judge to whom the case-file had been forwarded by the Supreme Court judges, the case having at last been brought before them, the prisoner, who had spent thirteen months in prison, was finally sentenced to five months’ imprisonment at the end of March.
The two defence lawyers appointed by the authorities to act for [J.]’s victim calculate that the lawyers’ fees alone up to that date amounted to 85,000 schillings.
All this does not seem to have left Judge [J.] unscathed. The tall, bearded judge has a deep, resonant voice. Yet throughout the trial of Marianne O., the `holiday-thief’, a persistent tick was to be seen on the face of Judge [S.]’s colleague on the Bench.
Then the jury’s verdict was suspended and defence counsel [G.] found himself facing disciplinary proceedings."
12. On 23 April 1987 Judge J. brought an action against Mr Prager for defamation (üble Nachrede, Article 111 of the Austrian Criminal Code - see paragraph 18 below). In addition to the seizure of the relevant Forum issue and the publication of extracts of the judgment, he sought, inter alia, damages from the publisher and an order imposing a fine on the latter jointly and severally with the author and requiring them to pay the legal costs (sections 33 to 36 of the Media Act - Mediengesetz, see paragraph 19 below).
13. On 11 May 1987 the applicants challenged the Vienna Regional Criminal Court and the Vienna Court of Appeal (Oberlandesgericht). On 5 August the Supreme Court (Oberster Gerichtshof) dismissed the challenge concerning the Court of Appeal. On 17 September it allowed that directed against the Vienna Regional Criminal Court and transferred the case to the Eisenstadt Regional Court.
14. On 11 October 1988 the Eisenstadt Regional Court found Mr Prager guilty of having defamed Judge J. by passages in the impugned article, which were cited as follows:
(1) "They treat each accused at the outset as if he had already been convicted."
(2) "Some Austrian criminal court judges are capable of anything."
(3) "Nothing was comparable to ... Judge [J.]’s arrogant bullying."
(4) "Type: rabid ... [J.]."
(5) "Despite all this he almost became a public prosecutor. But the press revealed a story in which his name cropped up again, this time in connection with criminal proceedings and the suspicion of having given legal advice without due authorisation. Two men, Mr L. and his son, were accused of having obtained money from people wishing to buy flats in old buildings, by means of fraudulent contracts. When it became clear that the contracts had been drawn up by [J.], the prosecution changed tactics: suddenly it was no longer the contracts that were fraudulent, but the intention which lay behind their use.
[J.] remained a judge instead of becoming a public prosecutor. The editors of Kurier now regret this because a public prosecutor is less dangerous."
Applying Article 111 of the Criminal Code, the Regional Court sentenced Mr Prager to 120 day fines at the rate of 30 schillings (ATS) per day and to sixty days’ imprisonment in the event of non-payment. Mr Oberschlick was ordered to pay Judge J. damages of ATS 30,000 and was declared jointly and severally liable with the first applicant in respect of the fine and the legal costs (sections 6 (1) and 35 of the Media Act). Finally, the court ordered the confiscation of the remaining stocks of the relevant issue of Forum and the publication of extracts from its judgment.
15. In the grounds of its judgment the Regional Court noted in the first place that the objective elements of the offence of defamation were made out. Of the contested passages, nos. 2 and 4 openly attributed to the plaintiff a despicable character or attitude (eine verächtliche Eigenschaft oder Gesinnung), while nos. 1, 3 and 5 accused him of conduct that was dishonourable and dishonest and that could objectively expose him to contempt or denigrate him in the public eye (ein unehrenhaftes und gegen die guten Sitten verstoßendes Verhalten, das objektiv geeignet ist, ihn in der öffentlichen Meinung verächtlich zu machen oder herabzusetzen). In short, confronted with such wholesale criticism, an impartial reader had little choice but to suspect that the plaintiff had behaved basely (ehrloses Verhalten) and that he was of despicable character (verächtliche Charaktereigenschaften), and the author had, moreover, been perfectly well aware of this.
The Regional Court then examined Mr Prager’s applications for the production of documents and testimony intended to establish the truth of his statements and the journalistic care that he had exercised in writing the article. The court took the view that only passages nos. 1, 3 and 5 were susceptible to this type of proof, as the other statements were value-judgments. After considering the matter, it decided that none of the evidence offered could sufficiently substantiate the allegations in issue.
Thus statement no. 1, according to which Judge J. treated every accused at the outset as if he had already been convicted, was not proved merely by the fact that the judge in question had, in a given case, asked defence counsel to be brief, as he had already made up his mind. Similarly, the three decisions of Judge J. reported by Mr Prager in support of statement no. 3 were not sufficient to bear out the allegation that the judge had adopted bullying tactics. None of these decisions disclosed the slightest intention to cause unnecessary suffering. Lastly, the accusations made in passage no. 5 had been definitively refuted by a disciplinary decision of the Vienna Court of Appeal of 6 December 1982. The two files whose production the applicant had requested could not alter the position, since the first contained no information on the personality of Judge J. and the second, relating to the judge’s candidature for the office of public prosecutor, had to remain confidential.
In the court’s view, Mr Prager had also failed to prove that he had written the article in issue with the care required of journalists by section 29 (1) of the Media Act (see paragraph 19 below). Not content with having denied Judge J. an opportunity to answer the accusations levelled against him, his research had been conducted in a very superficial manner; moreover, he had himself admitted that he had not attended any trials presided over by Judge J., that he had reproduced the content of old newspaper articles without checking their accuracy and had represented as true allegations based on hearsay.
16. On 26 June 1989 the Vienna Court of Appeal upheld this judgment, but reduced the damages to ATS 20,000 (see paragraph 14 above). It held in particular that the Regional Court had in no way infringed the rights of the defence by dismissing as immaterial the evidence that Mr Prager had sought to adduce. This situation had arisen because of the way in which he had formulated his criticism. It had been so comprehensive and general that it had been impossible to specify evidence capable of establishing its accuracy. The case could, moreover, be distinguished from the case of Lingens v. Austria (judgment of the European Court of Human Rights of 8 July 1986, Series A no. 103) in that it concerned the affirmation of various facts rather than the expression of value-judgments. As regards the care that journalists are required to exercise in pursuing their profession, it must obey the rule "audiatur et altera pars".
17. The remaining copies of the issue in question were never in fact seized (see paragraph 14 above).
18. Article 111 of the Criminal Code provides:
"1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
Article 112 provides:
"Evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ..."
Under Article 114 para. 1 "conduct of the kind mentioned in Article 111 ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right". Under paragraph 2 of the same provision "a person who is forced for special reasons to make an allegation within the meaning of Article 111 ... in the particular form and manner in which it was made, shall not be guilty of an offence, unless that allegation is untrue and he could have realised this if he had exercised due care ...".
19. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. Furthermore, the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings (section 35).
The person defamed may request the forfeiture of the publication by which a media offence has been committed (section 33). Under section 36 he may also request the immediate seizure of such a publication if section 33 is likely to be applied subsequently, unless the adverse consequences of seizure would be disproportionate to the legal interest to be protected by this measure. Seizure shall not be ordered if that interest can instead be protected by the publication of information that criminal proceedings have been instituted (section 37). Finally, the victim may request the publication of the judgment in so far as this appears necessary for the information of the public (section 34).
Section 29 (1) provides, inter alia, that publishers and journalists will avoid conviction of an offence in respect of information susceptible to proof as to its accuracy, not only if they provide such proof, but also if there was a major public interest in publishing the information and reasons which, in exercising proper journalistic care, justified giving credence to the statement in question.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-61547
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KMETTY v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 8. The applicant was born in 1946 and lives in Budapest.
9. The applicant is a merchant with business premises at the Budapest Market Hall. On 22 December 1998 the police arrived at the Market Hall in response to a bomb alert and required everyone to evacuate the building so that it could be searched. The applicant and several other persons refused to comply with this instruction. Following an argument lasting from 4 p.m. until 5.45 p.m. between certain merchants, including the applicant, and the police, the officer in charge decided to detain the applicant, believing him to be responsible for the general disobedience to the order to evacuate.
10. The Government stated that when two police officers grabbed him by his arms and started to hustle him out, the applicant threw himself on the ground.
11. The applicant stated that he had not resisted the police officers and that he had been grabbed without warning and his legs kicked from under him.
12. Having immobilised the applicant, two police officers dragged him through the Market Hall to the exit. Outside the building he was handcuffed and forced into a police car and then driven to the Budapest IX District Police Department.
13. The applicant stated that, while in the car, he was hit repeatedly by a police officer.
14. On their arrival at the Police Department, police officers lifted the applicant out of the car, hauling him up by the handcuffs attached to his wrists.
15. As the applicant had suffered some bruises to his wrists and face, a doctor was called. The applicant did not indicate to the doctor that he had been ill-treated by the police.
16. The applicant maintained that at the police station he was taken to the basement where at least four police officers repeatedly beat and kicked him. One of them stepped on his belly with such violence that it caused bowel movements. Subsequently, he was placed in a cell for about three hours. During that time a police lieutenant entered the cell, shouted at him, abused him verbally and spat in his face.
17. Eventually two police officers fetched the applicant and escorted him to the exit at about 9 p.m.
18. On 22 and 23 December 1998 the applicant was examined at the National Institute of Traumatology and the Central Institute of Stomatology.
19. On 23 December 1998 the applicant laid charges of ill-treatment and unlawful detention against the police. In the ensuing criminal proceedings, the Budapest Investigation Office heard the applicant, his wife and son and five other witnesses who had been present in the Market Hall at the time of the incident.
These witnesses, all from the applicant's side, confirmed that he had been dragged through the Market Hall but they remained inconclusive as to whether the applicant had been kicked off his feet or had thrown himself on the ground in resistance.
The Investigation Office also heard Mr F., who was the commander of the bomb disposal squad in charge of the operation at the Market Hall, as well as the managers of the Market Hall.
20. The applicant alleged that in the course of his interrogation he identified two of the police officers who had assaulted him and that he selected their photographs from several shown to him. However, the photograph of a third officer involved was not among those shown to him.
21. The prosecutor in charge obtained and watched a video recording shot by a television cameraman outside the Market Hall at the time of the incident, but found nothing of relevance.
22. The opinion of Dr M., a forensic medical expert, dated 24 March 1999, which was prepared at the request of the Investigation Office, contained the following conclusions:
“[...] According to the documents on the medical examination of [the applicant] carried out on 22 December 1998 at 9.58 p.m. at the National Institute of Traumatology, his right-side upper incisor no. 1 was loosened, he had concentrical bruises on the soft parts of both wrists and hyperaemia could be observed on a palm-sized surface on the left side of the belly wall. He complained of pain in the right side of his chest and the right ankle joint but no exterior signs of any injury could be observed. The X-ray examination did not display any traumatic deviation either. The diagnoses contained in the outpatient medical file, the medical report and the medical opinion read as follows: 'Dislocation of the right-side upper tooth. Bruises on both wrists. Bruises on the right side of the chest and on the left side of the belly wall. Bruises on the right hand.'
[The applicant's] stomatological examination carried out at the Central Institute of Stomatology on 23 December 1998 at 10 p.m. established the traumatic loosening of the upper incisor no. 1 on the right side and that of both incisors on the left side. It also established that the bridgework between the upper teeth nos. 3 and 7 on the left side became loose in a non-traumatic way. As treatment, his pain was alleviated and 'rehabilitative dental treatment' was proposed for him on account of the loosening of the bridgework and of the incisors indicated above. The stomatological report contains the diagnosis of 'loosening of the upper incisors'.
On the basis of the available medical files, it can be established from a forensic medical point of view that [the applicant] actually suffered loosening of the upper incisor no. 1 on the right side and of both incisors on the left side and, in addition, bruises on the soft parts of both wrists and circumscript hyperaemia on the left side of the belly wall.
The bruises on the right side of the chest and on the right hand diagnosed in the traumatological medical files cannot be substantiated from a forensic medical point of view, given that those diagnoses were based exclusively on pain alleged by [the applicant] but no exterior signs of any injury could be observed.
[...]
1. [The applicant's] injuries as described in the medical files jointly and severally healed within 8 days. No disability or serious deterioration of health may be expected as a consequence of the injuries suffered.
2. On the basis of the available medical findings, it can be substantiated that the body sustained three non-incisive knocks of maximally medium impact (közepesnél nem nagyobb erejű tompa erőhatás).
One knock may have affected the area of the upper incisors, necessarily at a moment when the lips did not cover the teeth. The mouth was probably open since three incisors became loose whereas the upper lip was not injured.
One knock may have affected the area of both wrists, almost certainly as a result of handcuffing.
One knock may have affected the belly wall, most probably in the form of a blow effected with an open hand.
It cannot be excluded that the injuries diagnosed in the medical files were occasioned at the time specified by [the applicant] in the course of the police action.
It can be stated most definitely that the truth of [the applicant's] allegation as to the degree and severity of the ill-treatment he allegedly suffered can be excluded from a forensic medical point of view. This conclusion is supported by the consideration that if [the applicant] had really been seriously ill-treated by several persons for a longer period of time in the form of numerous blows and kicks to his body, he would also have suffered, all over his body, injuries such as bruises of the covered soft parts. In addition, as a result of the alleged fact that he had been dragged on the ground, he would also have had bruises on the epithelium of the lower limbs.
On the basis of the medical files, however, only the fact of handcuffing can be established. In addition to the latter, the mouth and the belly wall areas may each have sustained a non-incisive knock of medium impact. A blow (ütés) or a bang (ütődés) could equally have caused these latter injuries, which means that they could easily be caused without ill-treatment, and simply result from an impact sustained in the course of the police action during which physical force was applied in order to effect the handcuffing.
3. The medical reports do not verify the alleged nose bleeding [of the applicant].”
23. On 27 July 1999 the Investigation Office discontinued the proceedings concerning the applicant's complaints against the police. Relying on the above medical report, the Investigation Office concluded that the applicant's allegations of ill-treatment were impossible to prove, whereas his police custody had been justified on account of his resistance to lawful police measures.
24. On 8 August 1999 the applicant complained to the Budapest Public Prosecutor's Office against the order to discontinue the investigations.
25. On 24 September 1999 the Public Prosecutor's Office dismissed the applicant's complaint. It noted that according to the medical documents in the case – and contrary to his statement of complaint – the applicant's injuries had healed within eight days. Furthermore, since his allegations were impossible to reconcile with some of the witness testimony, the Public Prosecutor's Office saw no reason to depart from the conclusions of the Investigation Office.
VIOLATED_ARTICLES: 3


ITEMID: 001-22826
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: COTTENHAM v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1946 and living in Southampton. She is represented before the Court by Mr S.E. Reynolds, a lawyer practising in Leigh. The facts of the case, as submitted by the parties, may be summarised as follows.
A.
On 2 October 1967 the applicant was convicted of an offence and committed to a psychiatric institution pursuant to the Mental Health Act 1959. Following the entry into force of the Mental Health Act 1983 (“the 1983 Act”) the applicant continued to be detained as a “restricted patient” under sections 37 and 41 of the 1983 Act.
On 2 April 1982 the applicant was conditionally discharged but she was recalled on 4 February 1993 by warrant of the Secretary of State pursuant to section 42(3) of the 1983 Act. She was then detained at a medium secure unit until 8 February 1995 when she was transferred to another ward from where, on 15 April 1996, she was moved to a community-based ward.
Between February 1993 and February 1996, the continuing grounds for applicant’s detention were reviewed twice by the Mental Health Review Tribunal (“MHRT”). In February 1996 the applicant made a third application to the MHRT, but then changed her mind and withdrew it. On 20 May 1996 she made a further application which was received by the MHRT on 24 May. By letter dated 10 June 1996, the MHRT informed the applicant’s solicitor that his client had made an application to have her case reviewed. The solicitor took instructions from the applicant and applied for legal aid on her behalf. Legal aid was granted by telephone on 18 June 1996, and expenditure of up to GBP 450 was approved in respect of an independent psychiatric report.
The following day the applicant’s solicitor wrote to a consultant psychiatrist, asking him to prepare a report. The psychiatrist informed that applicant’s solicitor that he was not free to examine the applicant until 19 July 1996. On 2 July 1996, therefore, the applicant’s solicitor wrote to the MHRT asking that the case should not be listed for hearing until mid-September 1996 to allow for the preparation of the independent psychiatric report. The appointment with the psychiatrist had subsequently to be postponed until 19 September 1996.
The MHRT received the statutory reports, namely the Responsible Medical Officer’s Report on 27 August 1996, and the Social Circumstances Report on 18 September 1996. Copies of these reports were sent to the applicant’s solicitors, who received them on 5 and 19 September respectively. The Home Office comments on these two reports were received by the MHRT on 19 and 30 September, and forwarded to the applicant’s solicitors on 23 September and 1 October.
On 18 November 1996 the applicant’s solicitor wrote to the psychiatrist instructed on behalf of the applicant to remind him that the independent psychiatric report was still outstanding. The report, dated 10 January 1997, was finally received by the applicant’s solicitor on 11 February 1997. The applicant claims that her solicitors wrote to the MHRT on 18 February 1997, but the MHRT has no record of this letter. According to the applicant, the MHRT then telephoned her solicitor on 19 February suggesting a hearing date of 5 March, but the applicant’s solicitor rejected this date since he was not available. It is not in dispute that the solicitor wrote to the MHRT on 26 February 1997, reminding the tribunal that the matter was outstanding and enclosing the psychiatric report prepared on the applicant’s behalf.
The case was then listed for hearing on 25 March 1997. Copies of the psychiatric report prepared on behalf of the applicant were sent to the other parties for their comments, and these comments were sent to the applicant’s solicitors before the hearing.
On 25 March 1997 the MHRT decided not to recommend the applicant’s discharge.
B. Relevant domestic law and practice
Section 37 of the Mental Health Act 1983 (“the 1983 Act”) empowers a Crown Court to order a person’s admission to and detention in a specified hospital (a “hospital order”). The court can only make a hospital order if it is satisfied on the evidence of two registered medical practitioners that the offender is mentally disordered, that the disorder is of a nature or degree which makes it appropriate for the person to be detained in a hospital for medical treatment and that a hospital order is the most suitable method of disposing of the case.
Section 41 of the 1983 Act empowers a Crown Court, when making a hospital order, to make a restriction order without limit of time. A restriction order may be made if it appears to the court, having regard to the nature of the offence, the offender’s antecedents and the risk of her committing further offences if set at large, that it is necessary for the protection of the public from serious harm to make the order.
Under section 70 of the 1983 Act a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, can apply to a Mental Health Review Tribunal (“MHRT”) after being detained for six months. After twelve months’ detention the patient can re-apply annually. Under section 71 of the 1983 Act the Secretary of State may at any time refer the case of a restricted patient to a MHRT and must do so when the case has not been considered by a MHRT for three years.
Under section 73(1) of the 1983 Act, read with section 72(1), where an application is made to a MHRT by a restricted patient who is subject to a restriction, the MHRT is required to direct the absolute discharge of the patient if satisfied -
(a) (i) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
By virtue of section 73(3) of the 1983 Act, a patient who is absolutely discharged ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.
Under section 73(2) of the 1983 Act, where the MHRT is satisfied as to either of the matters referred to in paragraph (a) above, but not as to the matters referred to in paragraph (b) above, it is required to direct the conditional discharge of the patient. By virtue of section 73(4), a patient who has been conditionally discharged may be recalled by the Secretary of State under section 42(3) and must comply with the conditions attached to her discharge. In contrast to the case of absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.


ITEMID: 001-100024
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HOVHANNISYAN AND SHIROYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Reminder inadmissible;Violation of P1-1;Just satisfaction reserved
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicants were born in 1976, 1973 and 1999 respectively and live in Yerevan.
5. According to the applicants, they enjoyed a right of use of accommodation in respect of 33.8 sq. m of a flat which in total measured 66.8 sq. m. and was situated at 17 Byuzand Street, Yerevan. It appears that the flat was owned by their family member, K.H. The Government contested this allegation and claimed that only the applicants Hovhannes Hovhannisyan and Astghik Hovhannisyan (“the first applicant” and “the second applicant”) enjoyed such a right, while the applicant Diana Shiroyan (“the third applicant”), who was a minor, was only entitled to live in the flat in question.
6. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones.
7. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Vizkon Ltd.
8. On 1 October 2004 Vizkon Ltd and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property.
9. By a letter of 25 February 2005 Vizkon Ltd informed the first and second applicants that the flat in question was situated within the expropriation zone of the Main Avenue area and was to be taken for State needs. Each applicant was offered a total of the Armenian dram (AMD) equivalent of 3,500 United States dollars (USD) as financial assistance, pursuant to paragraphs 7(c) and 8(e) of the compensation procedure approved by Government Decree no. 950 of 5 October 2001 (see paragraphs 26 and 27 below; hereafter, “the compensation procedure”).
10. It appears that the first and second applicants did not accept this offer.
11. On an unspecified date, Vizkon Ltd instituted proceedings against the first and second applicants on behalf of the State, seeking to terminate their right of use through payment of financial assistance and to evict all the applicants with reference to, inter alia, Articles 218 and 220 of the Civil Code. The plaintiff claimed that persons enjoying a right of use were entitled, pursuant to paragraph 8 of the compensation procedure, to receive assistance in the Armenian dram equivalent of USD 3,500.
12. It appears that in the course of the court proceedings Vizkon Ltd offered the same amount of compensation also to the third applicant, since she was also registered at the flat in question. The third applicant joined the proceedings as a co-defendant.
13. On 2 March 2005 a contract was signed between Vizkon Ltd and the owner of the flat, K.H., according to which she agreed to cede the flat to the State in exchange for another flat. It appears that two other persons who also enjoyed a right of use in respect of the same flat accepted the price offers made to them and gave up their rights.
14. On 16 March 2005 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the claim of Vizkon Ltd, terminating the applicants' right of use and awarding them a total of the Armenian dram equivalent of USD 10,500 as compensation. In doing so, the court referred to Article 218 §§ 1 and 2 and Article 220 § 1 of the Civil Code, as well as paragraph 10 of the compensation procedure.
15. On 31 March 2005 the applicants lodged an appeal.
16. On 3 June 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Vizkon Ltd on the same grounds as the District Court.
17. On 16 June 2005 another contract was signed between Vizkon Ltd and the owner of the flat, K.H., similar to that of 2 March 2005.
18. On 21 June 2005 the applicants lodged an appeal on points of law which they supplemented on 15 July 2005.
19. On 24 June 2005 the State's ownership in respect of the flat was formally registered on the basis of the contract of 16 June 2005.
20. On 18 July 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants' appeal.
21. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23 and 34-43, 23 June 2009).
22. According to Article 135, the right of ownership and other property rights in respect of immovable property, their limitations, origin, transfer and termination are subject to State registration.
23. According to Article 176, in cases when a right in respect of property is subject to State registration, the acquirer's right of ownership arises from the moment of such registration.
24. Article 218 §§ 1 and 2 provided that a plot of land might be taken from the owner for the needs of the State or the community by compensating its value. Depending on for whose needs a plot of land was to be taken, its value was to be compensated by either the State or the community. The decision to take a plot of land for the needs of the State or the community was to be taken by a public authority.
25. Article 220 § 1 provided that, if no agreement could be reached with the owner of the plot of land to be taken for State needs concerning the amount or other conditions of compensation, the relevant public authority might institute court proceedings seeking to take the plot of land.
26. According to paragraph 7(c) of the compensation procedure, persons and their minor children – who were registered, including in unauthorised constructions, prior to the date on which State registration was made (28 August 2001) on the basis of the competent public authority's decision to take the plot of land for the needs of the State – shall each receive assistance in the amount of the Armenian dram equivalent of USD 2,000, based on the document confirming the fact of registration (passport, birth certificate or a certificate provided by the competent authority in charge of the registration).
27. According to paragraph 8(e) of the compensation procedure, persons mentioned in Paragraph 7(c) of this Procedure shall receive assistance in the amount of the Armenian dram equivalent of USD 1,500.
28. According to paragraph 10 of the compensation procedure, persons who have acquired a right of use or of lease in accordance with the procedure prescribed by law in respect of a plot of land situated in an expropriation zone shall receive as compensation the assessed value of the right of use or of lease of the given plot of land.


ITEMID: 001-105226
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF WINEROWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Lech Garlicki;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1957 and lives in Gdańsk.
5. On 16 April 1998 the applicant was arrested and remanded in custody.
6. On 1 April 1999 the applicant was released from pre-trial detention.
7. On 12 January 2000 the prosecution lodged a bill of indictment with the Gdańsk District Court (Sąd Rejonowy). The applicant was charged with several counts of receiving and counterfeit. The bill of indictment comprised charges against 19 accused.
8. In the proceedings the Gdańsk District Court scheduled some thirty eight hearings. At least sixteen of them were adjourned. On many occasions the court did not give any reasons for adjournment decisions.
9. The proceedings are still pending before the Gdańsk District Court.
10. On an unspecified date the applicant lodged with the Gdańsk Regional Court (Sąd Okręgowy) a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
11. On 16 July 2009 the Gdańsk Regional Court confirmed that the proceedings in question had indeed been lengthy. The court stated, inter alia, that on at least three occasions the Gdańsk District Court had adjourned hearings without giving reasons for its decision. It further stated that on eight occasions the hearings had lasted less than two hours, which taking into account the number of co-accused and difficulties in scheduling a date convenient to all the participants, was proof of bad organisation of the proceedings on the part of the Gdańsk District Court. Furthermore, the court held that on numerous occasions hearings had been adjourned as some of the co–accused had participated on these dates in another set of proceedings or because prison authorities had been given too short notice to organise transport of the accused from a remand centre to the courtroom. The court also pointed out that the Gdańsk District Court did not apply any disciplinary measures against the co-accused who systematically failed to appear for hearings. Finally, the Gdańsk Regional Court stated that the intervals between the hearings had been too significant; in particular on one occasion the Gdańsk District Court had adjourned a hearing for a period of one year without submitting exceptional reasons for its decision as required by the code of criminal procedure. According to the Gdańsk Regional Court, it resulted from the above that the Gdańsk District Court had significantly contributed to the excessive length of the proceedings. The Gdańsk Regional Court did not, however, examine the period prior to the entry into force of the 2004 Act.
12. The court awarded the applicant 1,000 Polish zlotys (PLN) (approx. 250 euros (EUR)) in just satisfaction.
13. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85300
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF WROBLEWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1976 and lives in Toruń. As it appears from the documents submitted, he is currently detained in the Toruń Remand Centre.
6. On 29 August 2002 the applicant was detained and subsequently remanded in custody by the Chełmno District Court on charges of rape and murder by a detention order of 31 August 2002. The latter was upheld on 18 September 2002 by the Toruń Regional Court.
7. On several occasions, namely 25 November 2002, 25 February, 28 May, 29 September 2003 and 21 January 2004 the applicant’s pre-trial detention was prolonged. The Toruń Regional Court relied in its decisions on the reasonable suspicion that the applicant had committed the offences and on the severity of the likely sentence. According to its reasoning, the applicant’s detention was the only measure which could secure the proper conduct of the proceedings in view of the extensive body of evidence which was to be considered in the case. The court stressed that the evidence already collected in the case, including mechanoscopic and olfactory expert opinions, comparative hair analysis, testimonies of witnesses and an experimental reconstruction of the crime scene indicated a high probability that the applicant had committed the crimes. Moreover, a psychiatrist’s examination and the observation of the applicant in a mental institution had been ordered by the court, as well as a genetic and chemical comparative analysis of available evidence. The court further added that the applicant had a previous criminal record.
8. The applicant submitted that his appeals against some of the above decisions were dismissed by the Gdańsk Court of Appeal on 18 December 2002, 18 March, 11 June 2003 and 25 February 2004.
9. On 19 May 2003 the Chełmno District Prosecutor lodged a bill of indictment against the applicant with the Toruń Regional Court. The prosecutor requested to have 14 experts and 56 witnesses summoned to testify.
10. On 10 July 2003 the first hearing in the applicant’s case was scheduled for 20 August 2003; however the start of the trial had to be postponed, since the applicant’s counsel had asked the court to relieve him of his duties. The newly ex officio appointed lawyer informed the court that he was not able to fulfil his duties, as he had earlier been appointed as counsel of the auxiliary prosecutors – the victim’s parents. The Toruń Regional Bar immediately appointed another lawyer at the request of the court.
11. On 1 August 2003 the applicant’s counsel requested that the composition of the court to hear the applicant’s case be decided by the drawing of lots.
12. On 28 November 2003 the court scheduled the first hearings for 22 and 23 December 2003. On 3 December 2003 a supplementary drawing of lots was necessary as one of the lay judges could not take part in the proceedings.
13. The first hearings before the Toruń Regional Court were held on 22 and 23 December 2003.
14. Between 3 March and 24 May 2004 the Toruń Regional Court held 14 hearings. On 24 May 2004 the applicant requested the withdrawal of the presiding judge. His motion was dismissed by the Toruń Regional Court on the same day.
15. Between 21 September and 23 November 2004 the Toruń Regional Court held 7 hearings. On 25 November 2004 the applicant’s detention on remand was extended until 28 February 2005.
16. Between 10 January and 20 June 2005 the Toruń Regional Court held 10 hearings.
17. On 23 June 2005 the Toruń Regional Court found the applicant guilty as charged and sentenced him to 25 years’ imprisonment. The judgment ran to 167 pages.
18. The applicant, the prosecutor, as well as the auxiliary prosecutors, appealed.
19. On 30 May 2006 the Gdańsk Court of Appeal quashed the judgment and remitted the case for re-examination to the Toruń Regional Court. The proceedings are still pending. The applicant is still in detention in respect of the charges against him.
20. On 16 May 2002 the applicant was sentenced to 4 years and 6 months’ imprisonment for double rape.
21. On 5 February 2003 the Regional Court upheld the first–instance judgment.
22. As it transpires from the Government’s submissions, which were not contested by the applicant, he was serving the sentence imposed between 10 June 2003 and 9 February 2004, as well as between 29 February 2004 and 9 September 2007.
23. As it further transpires from the Government’s submissions, which were not contested either by the applicant, between 9 and 29 February 2004 he was serving a term of imprisonment imposed on 17 May 1996 by the Nowe Miasto Lubawskie District Court in another set of criminal proceedings.
24. Moreover, during the period between 21 May 2003 and 10 June 2003 the applicant was serving a term of imprisonment imposed by the Grudziądz District Court on 11 April 2001 for drunk driving.
25. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are described in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
NON_VIOLATED_ARTICLES: 5


ITEMID: 001-67169
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MARINKOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicants were born in 1946 and 1955, respectively and live in Boleč, Serbia and Montenegro.
7. On 6 or 7 May 1992 their house in Novska, Croatia, was set ablaze by unknown perpetrators.
8. On 11 November 1996 they instituted civil proceedings before the Novska Municipal Court (Općinski sud u Novskoj) seeking damages from the Republic of Croatia for their damaged property.
9. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Novska Municipal Court stayed the proceedings on 24 October 1997.
10. The proceedings resumed on 22 October 2003 pursuant to the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija).
11. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
12. The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant parts of that Act read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
13. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
14. The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage resulting from terrorist acts and public demonstrations.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-118044
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF C.B.  v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6-3-d - Examination of witnesses;Witnesses;Article 6 - Right to a fair trial)
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1966 and lives in Maria Enzersdorf.
6. In 2005 the Krems a.d. Donau Regional Court (Landesgericht Krems a.d. Donau) conducted criminal proceedings against the applicant, who was accused of both attempted and actual sexual abuse of minors and juveniles, and of offences under the Drug Offences Act.
7. During the proceedings, the Regional Court appointed a neurological and psychiatric expert to examine the applicant, to establish, inter alia, whether the applicant fulfilled the conditions for referral to an institution for mentally ill offenders (Anstalt für geistig abnorme Rechtsbrecher) pursuant to Article 21 § 2 of the Criminal Code (Strafgesetzbuch). The applicant does not appear to have objected to the choice of expert or to the subject matter on which the report was to be obtained. On 4 March 2005 the expert submitted his written opinion, establishing that the applicant was fully criminally responsible and diagnosing a disorder of sexual preferences, paedophilia and narcissistic personality disorder. The opinion was based on an examination of the applicant, the criminal files and the results of an MMPI-2 personality test. The expert found that the applicant’s disordered conduct had progressed, in view of the decreasing age of his victims. The opinion concluded that there was a very high risk that the applicant would relapse, with severe consequences. Subsequently, the opinion was served on the applicant’s counsel for comments.
8. On 8 June 2005 the applicant’s counsel commented on the expert’s opinion, submitted the opinion of a private expert, a psychiatrist and neurologist, and requested the court to have it read out to the court-appointed expert at the oral hearing and to appoint another expert in the event that the court-appointed expert did not concur with the private expert’s opinion.
9. The opinion of the private expert, dated 12 May 2005, also found that the applicant suffered from homosexual paedophilia, a disorder of his sexual preferences and a sexual maturity crisis. He found, however, that there was no indication of a narcissistic disorder. As regards the prognosis, the expert concluded that there was a low to moderate risk of the applicant reoffending as regards non-violent sexual abuse of children. The private expert commented on the court-appointed expert’s opinion and criticised his methods, considering in particular that the factual statements he had made were unclear and were not accompanied by sufficient explanation. Finally, he also questioned the court-appointed expert’s interpretation of those factual statements.
10. On 22 June 2005 the court-appointed expert supplemented his opinion in writing and commented on every observation made by the private expert.
11. On 30 June 2005 the Regional Court held an oral hearing in which the court-appointed expert summarised and supplemented his opinion. During the hearing, the applicant’s counsel questioned the court-appointed expert at length. The court did not, however, allow questions to be put by counsel which referred to the private expert opinion, or general questions regarding the court-appointed expert’s education and competencies. Counsel also made applications for the admission of the private expert opinion to the proceedings and for the private expert to be allowed to testify as a witness. According to the record of the hearing, counsel requested, in particular,
“... that evidence be heard from Dr W.B., a psychiatric specialist at the D. Clinic, on the subject of the requirements of Article 21 § 2 of the Criminal Code in the context of a psychiatric assessment and case history carried out after the assessment by the court-appointed expert and at a time when the accused’s detention for five weeks in an individual cell, a situation which was new to him and to which he was wholly unaccustomed, had come to an end ...
He requested that a further expert opinion be sought on the basis of the provisions of Article 429 § 2 (2) of the Code of Criminal Procedure (“CCP”), which made express reference to the need to seek the opinion of at least one psychiatric expert, and on the basis of Article 439 § 2 of the CCP, according to which at least one expert had to be called in the proceedings, failing which they would be declared null and void. Even after the additional questioning of the court-appointed expert there were grounds to assert that the conditions laid down in Articles 125 and 126 of the CCP had not been met, with the result that no reliable prognosis could be made as to the dangerousness of the accused without a further expert report.
He reiterated his request for Dr W.B.’s expert report and additional observations, contained in the file, to be read out and for B.S., J.H. and A.U. to be called as witnesses to testify that the accused had no difficulty forming relationships, had sufficient empathy and had no pathological need to control others. The appearance of those witnesses was also sought in order to testify that the facts on which the court-appointed expert based his opinion were partly inaccurate and incomplete, and thus defective overall.
The public prosecutor objected to the request. As far as the taking of evidence from Dr W.B. was concerned, this was a means of introducing a private expert opinion into the proceedings and served no other apparent purpose. The other witnesses were to be asked to testify on medical matters that should be assessed by an expert, and were therefore unsuited to that purpose. Matters relating to the psychiatric assessment should also be determined by the expert; an expert opinion was available which, even after several hours’ questioning, still appeared consistent. The public prosecutor was therefore also opposed to a second expert opinion being sought. He repeatedly expressed his opposition to having the private expert opinion of Dr W.B. read out in court.”
12. The Regional Court dismissed counsel’s requests at the hearing and reasoned the dismissal as follows:
“Decision refusing the requests
(1) As regards the taking of evidence from Dr W.B. concerning the requirements of Article 21 § 2 of the Criminal Code: it is not clear, first, in what capacity Dr W.B. might be examined. The requirements of Article 21 § 2 of the Criminal Code are a legal issue, to be determined solely by the court with the assistance of a court-appointed psychiatric expert. Witnesses are individuals who have to give their own observations regarding facts relevant to the taking of evidence: their role is in no sense to make statements concerning legal or empirical evidence or to speculate, express opinions, make value judgments or draw conclusions. As to the possibility of examining Dr W.B. as a witness on the subject of his psychiatric assessment, it must be pointed out that such assessments are not a matter for witnesses. Since Dr W.B. has prepared a private expert opinion in the present case, he cannot also be regarded as an expert for the purpose of the proceedings, and any statements he might make as a witness concerning the psychiatric assessment would not constitute valid evidence.
(2) As far as obtaining a further expert opinion is concerned: neither provision can be interpreted as imposing a requirement to call a further expert in the proceedings concerning the accused’s compulsory psychiatric admission. Here again, then, reference must be made to the provisions of Article 118 § 2 and Articles 125 and 126 of the CCP, according to which the calling of a further expert is required only if the existing findings and opinion are incomplete and inconclusive. This may arise in the event of difficulties in observing the patient and making an assessment; this in turn will arise only if the court-appointed expert is unable to reply with certainty, or at all, to the questions put to him, in which case the possibility of the questions being answered by another expert cannot be ruled out. In the instant case Dr R.B. answered the questions put to him with certainty from the outset. During today’s hearing, and especially during questioning by the defence, no important points were left unanswered. It cannot therefore be argued that the expert did not answer the questions conclusively and with certainty. As a result, the criteria laid down in Article 118 § 2, in particular read together with Articles 125 and 126 of the CCP, certainly do not apply and the request must be refused.
(3) As regards Dr W.B.’s private expert opinion and additional observations: the public prosecutor opposed the reading-out of the report. Hence, the conditions laid down in Article 252 § 1 (4) of the CCP do not apply, nor, in any sense, do those of Article 252 § 1 (1).
(4) As to the taking of evidence from witnesses B.S., J.H. and A.U.: the request does not explain why the witnesses in question might possess this knowledge. Furthermore, the assessment of whether an individual has difficulty forming relationships, is lacking in empathy and has a pathological need to control others can only be carried out by an expert, especially since witnesses may not draw conclusions from what they observe. It is not clear why these witnesses should know that the facts were inaccurately or incompletely conveyed by the expert in his opinion, nor has it been explained why they should have anything to contribute on the subject; hence, their evidence is not valid in this regard.“
13. Upon a repeated request by counsel to allow the private expert to testify as a witness, the Regional Court decided
“...to refuse the request for Dr W.B. to testify as a witness on the subject of the psychiatric assessment conducted by him, since this was carried out after the assessment by the courtsworn expert. According to Article 134 of the CCP, where there are doubts as to an individual’s mental incapacity or a mental disorder is suspected, an assessment of his mental or psychological state by one or, if need be, two doctors must be ordered. This clearly refers to court-appointed experts. This provision and, of course, the remaining provisions concerning the establishment of findings unambiguously provide that the examination or assessment is a matter exclusively for a court-appointed expert. It follows that Dr W.B., as a private expert, cannot have made any findings within the meaning of the law or, more specifically, of the provisions concerning expert evidence, with the result that his observations as a witness concerning such findings do not constitute valid evidence.”
14. On the same day, the Krems a.d. Donau Regional Court, sitting as a panel composed of two professional and two lay judges (Schöffengericht), convicted the applicant of both attempted and actual sexual abuse of minors and juveniles and of offences under the Drug Offences Act, and sentenced him to two years’ imprisonment. He was also admitted to an institution for mentally ill offenders pursuant to Article 21 § 2 of the Criminal Code.
15. The applicant was found to have sexually abused a minor born in 1992 by sustained touching of his sexual organs on at least ten occasions between 2003 and 2004, and to have enticed two juveniles born in 1988 to carry out sexual acts on approximately twenty-six occasions between 2003 and 2004 by offering them money. He was further found to have provided two juveniles with hashish five times between 1999 and 2002.
16. As regards the psychological expert opinions, the Regional Court found in its reasoning concerning the assessment of the evidence that
“... at the hearing and even beforehand the accused gave the court and Dr R.B., an experienced expert in neurology and psychiatry, a relatively full account of his life ...
On the basis of these extensive materials, Dr R.B. first produced his written opinion, which he presented during the hearing and added to at length and in detail ...
... at the hearing Dr R.B. gave reasons for his opinion in comprehensible, logical and consistent fashion. It is clear even to a lay person that the accused’s problems, which have been well established, are of such severity as to constitute a serious personality disorder, even though some of his problems (such as masochistic masturbation) do not necessarily result in criminal behaviour ...
... The expert also confirmed that the accused does not have violent tendencies in the sense of using physical violence. However, it must be borne in mind that, particularly in the sphere of psychology and psychiatry, psychological violence plays an important role. The accused repeatedly abused young people as a result of his disposition, whether by giving them alcohol, showing them pornographic films, offering them money or using his position in society. The expert and, accordingly, the court therefore concluded that it was likely that the accused, on account of his mental disorder and in particular his paedophile tendencies, would commit further offences of the kind with which he has been charged.
The accused and his counsel attempted at first to call the expert’s qualifications into question. However, in view of his training and professional experience, these were beyond doubt.
A request was then made for the private expert opinion of Dr W.B. to be read out in court. This request was refused by the court because the parties did not agree on that point and none of the grounds provided for by Articles 125 and 126 of the CCP applied. The defence then had the terms “abnormal sexual preferences” and “perversion” explained to them and the expert reiterated in this context too that the accused showed no signs of sadistic tendencies. The defence subsequently tried to undermine Dr R.B.’s opinion by claiming that he had not used all the available methods, which had apparently been used by the private expert. After Dr R.B. had answered all the questions asked by the defence in consistent, comprehensible and, above all, comprehensive terms, the request for the private expert’s opinion to be read out was repeated. This request was rejected on the same grounds and also, in particular, on the grounds that it was for experts themselves to decide which methods they used to substantiate their opinion, based on the present state of scientific knowledge. Only shortcomings in the procedure described in Articles 125 and 126 of the CCP or circumstances indicating particular difficulties in making a diagnosis or preparing the opinion could justify calling in a further court-sworn expert.
The request to circumvent these provisions by the taking of witness evidence from a private expert also had to be refused, since the latter did not and could not make observations concerning the alleged facts, and the findings are to be established exclusively by the courtappointed expert. For the same reason, the request for B.S., J.H. and A.U. to testify was also superfluous, especially since no specific subjects were even mentioned and, in particular, it was not made clear which of the facts (findings) presented by the expert had supposedly been incomplete or defective...
In sum, it was thus demonstrated that there was no call to question the statements of the expert Dr R.B. regarding the severity of the accused’s disorder and his dangerousness, with the result that the court was justified in basing its decision on those statements.”
17. On 28 October 2005 the applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) against the judgment.
18. On 22 December 2005 the Supreme Court (Oberster Gerichtshof) rejected the plea of nullity and referred the appeal to the Vienna Court of Appeal (Oberlandesgericht Wien). As regards the expert opinions, that court found as follows:
“The refusal of the request for a ‘a further expert opinion [to] be sought on the basis of the provisions of Article 429 § 2 (2) of the Code of Criminal Procedure (“CCP”), which made express reference to the need to seek the opinion of at least one psychiatric expert, and on the basis of Article 439 § 2 of the CCP, according to which at least one expert had to be called in the proceedings, failing which they would be declared null and void’ – which was further based on the assertion that ‘[e]ven after the additional questioning of the court-appointed expert there were grounds to assert that the conditions laid down in Articles 125 and 126 of the CCP had not been met, with the result that no reliable prognosis could be made as to the dangerousness of the accused without a further expert report’ – did not adversely affect the rights of the defence. The panel of professional and lay judges correctly pointed out in its decision based on Article 238 § 1 of the CCP that there were no grounds for calling in a second expert either on account of difficulty in observing the patient or making an assessment, as referred to in Article 118 § 2 of the CCP (which was also applicable to the committal proceedings), or on account of shortcomings in the findings or the opinion of the courtappointed expert (Articles 125 and 126 of the CCP), as the latter had answered all the questions ‘conclusively and with certainty’.
For the same reason – and also because it was patently concerned only with an examination that was inadmissible during the hearing – the request for the private expert Dr W.B. to testify as a witness ‘on the subject of the requirements of Article 21 § 2 of the Criminal Code in the context of a psychiatric assessment and case history carried out after the assessment by the court-appointed expert and at a time when the accused’s detention for five weeks in an individual cell, a situation which was new to him and to which he was wholly unaccustomed, had come to an end’ and ‘on the subject of factual observations in connection with the psychiatric assessment of the accused, carried out after the assessment by the court-appointed expert’ was correctly rejected, with reference to the settled case-law concerning the content of witness statements and the inadmissibility of statements made by private individuals concerning the legal subject-matter of the proceedings.
The same applies to the refusal of the request for the reading out of the private expert opinion of Dr W.B., which is of no significance in terms of the criminal proceedings.
Lastly, the accused has not been adversely affected by the refusal of the request to hear evidence from witnesses B.S., J.H. and A.U. The request did not specify the “facts” on which these persons were supposed to give evidence; hence, the subject to which it related could not be clearly identified. Furthermore, the request did not explain why the persons concerned should be expected to provide information concerning circumstances relevant to the accused’s guilt or the legal characterisation; this request therefore (also) related to inadmissible evidence.”
19. On 30 March 2006 the Vienna Court of Appeal dismissed the applicant’s appeal as unfounded. It stated that the expert’s prognosis that there was a risk of the applicant relapsing was convincing and stated further:
“As regards the criticism and the repeated request for the private expert opinion of Dr W.B., obtained by the accused, to be admitted in the proceedings and for a further expert opinion to be sought, these must be rejected first of all on the basis of the findings of the Supreme Court in its decision on the plea of nullity. Even after an in-depth study of the opinion of Dr R.B., the expert appointed by the first-instance court – whose opinion, incidentally, addressed all the criticisms raised in Dr W.B.’s opinion and countered convincingly and in detail all the defence’s criticisms based on the private expert opinion – the Court of Appeal could find no grounds for the appointment of another expert in accordance with the provisions of Article 125 or 126 of the CCP. Accordingly, the request for a further expert opinion must be rejected in the first place for lack of legal basis.”
20. That appeal judgment was served on the applicant’s counsel on 30 May 2006.
21. Article 21 of the Austrian Criminal Code (Strafgesetzbuch) provides as follows:
"1. If a person commits an offence punishable by a term of imprisonment exceeding one year, and if he cannot be punished for the sole reason that he committed the offence under the influence of a state of mind excluding responsibility (Article 11) resulting from a serious mental or emotional abnormality, the court shall order him to be placed in an institution for mentally ill offenders if, in view of his personality, his condition and the nature of the offence it is to be feared that he will otherwise, under the influence of his mental or emotional abnormality, commit a criminal offence with serious consequences.
2. If such a fear exists, an order for placement in an institution for mentally ill offenders shall also be made in respect of a person who, while not lacking criminal responsibility, commits an offence punishable by a term of imprisonment exceeding one year under the influence of severe mental or emotional abnormality. In such a case the placement is to be ordered at the same time as the sentence is passed."
22. The Code of Criminal Procedure (Strafprozeßordnung), as in force at the relevant time, provided that a court, during the proceedings and if the subject matter warranted it, should appoint an expert. The court had to appoint two experts only if the subject matter to be examined was particularly difficult (see Article 118 of the Code of Criminal Procedure). Domestic case-law determined that an allegation that an expert opinion had reached the wrong conclusion was not to be considered to render the subject matter “particularly difficult” within the meaning of the provision (EvBl 1996/125). Such difficulty could arise where an appointed expert was unable to answer a question put before him, if another expert would in all probability be able to answer it.
23. At the relevant time, an expert was appointed at the investigative stage by the investigative judge, or by the court. There was no right for the parties to formally object to the appointment of an expert. However, Article 120 of the Code of Criminal Procedure provided that the parties should be informed of the planned appointment of an expert. If the parties brought forward objections regarding the appointment of the expert in a timely manner, the court could appoint another expert.
24. In its Articles 125 and 126, the Code of Criminal Procedure provided for procedural steps to be taken in the event of a deficient expert opinion in criminal proceedings: the main principles deriving from those provisions were that in the event of an expert opinion being contradictory or inconclusive, or in the event that two expert opinions clearly differed from each other and another oral examination of the experts could not eliminate the doubts with regard to the conclusions of their opinions, a new expert was to be appointed by the court.
25. A citation from the domestic jurisprudence summarises the general view of Austrian domestic law on criminal procedure as regards private experts’ opinions: in a judgment of 21 November 1989 (15Os130/89), the Supreme Court, deciding on a plea of nullity, stated:
“As regards the procedural objection, it should be made clear from the outset that private expert opinions related to the case, of the kind commissioned by the applicant and submitted with a request for the taking of evidence, can properly serve only to provide the accused and his or her defence counsel with expert clarification on important aspects of the case and thereby enable them to put pertinent questions to the court-appointed experts; where applicable, they may also serve as grounds for obtaining an additional expert opinion (ordered by the court) ... As evidence, however, they have ... by law no procedural significance, since they lack in particular the guarantees of impartiality and judicial supervision of their preparation. Accordingly, they are not to be read out during the trial either.”
26. At the material time the Code of Criminal Procedure did not yet include an explicit provision allowing privately commissioned experts to be present at the oral hearing and to thereby assist defendants and their counsel in questioning the court-appointed experts during the hearing. Such a provision was introduced into the Code of Criminal Procedure in 2008 with its new Article 249 § 3. However, also before the reform of the Code of Criminal Procedure, the Austrian Supreme Court had stated in its case-law, with reference to a defendant’s rights under Article 6 § 3 (d) of the Convention, that to ensure that the defendant could question an expert effectively during the hearing, he or she could make use of the professional support of a privately commissioned expert, and that expert could not be refused permission to sit next to counsel in the hearing room, albeit without having the right to question the court-appointed expert directly (see judgment 14Os129/05k of the Supreme Court of 19 December 2005, and judgment 13Os34/01 of the Supreme Court of 29 September 2001).
27. According to the Code of Criminal Procedure at the material time, a witness testified before the court on his or her perception of the subject matter at issue (see Article 150 of the Code of Criminal Procedure). Again, the amended Code of Criminal Procedure of 2008 codified the principles deriving from the Supreme Court’s jurisprudence in the matter and stated in its Article 154 that a witness was a person having directly or indirectly perceived relevant facts regarding the subject matter of the investigation or the proceedings and who should thus testify on those perceptions.
28. The referral of a defendant to an institution for mentally ill offenders under Article 21 § 2 of the Criminal Code had in principle to be ordered at the same time as the sentence was imposed (see Article 435 of the Code of Criminal Procedure). However, such a referral was null and void if the defendant had not been represented by counsel throughout the proceedings and if the order had been made without hearing at least one psychiatric expert on the matter (see Article 439 in conjunction with Article 429 § 2 no. 2 of the Code of Criminal Procedure).
29. Finally, Article 252 of the Code of Criminal Procedure provided at the material time, inter alia, that witness statements or expert opinions were only permitted to be read out in the criminal proceedings if – among other things – both the defendant and the public prosecutor agreed.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d