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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 26 August 2013, 2 BvR 371/12 [CODICES]
Abstract
Third Chamber of the Second Senate
Order of 26 August 2013
2 BvR 371/12

Headnotes (non-official):

An order for continuation of long-term confinement for residential psychiatric treatment needs to meet the strict standards that follow from the principle of proportionality.



Summary:

I.

The constitutional complaint concerns an order of continuation of the applicant’s confinement in a psychiatric hospital.

By judgment of the Nuremberg-Fuerth Regional Court (Landgericht) of 8 August 2006, the applicant was acquitted of the charges of causing bodily harm by dangerous means, unlawful imprisonment, and criminal damage. At the same time he was ordered to be confined in a psychiatric hospital. According to the judgment’s reasoning, the Regional Court held that the objective elements of the criminal offences with which he had been charged were satisfied. But the court was of the opinion that it could not be excluded that the applicant lacked criminal responsibility at the times of the offences because he displayed the symptoms of paranoid delusion. It was necessary for the applicant to be confined in a psychiatric hospital because he could be expected to commit further serious unlawful acts.

In an order of 9 June 2011, the Bayreuth Regional Court ordered that the confinement was to continue. The court stated that it was not to be expected that the applicant would not commit further unlawful acts outside hospital confinement. The applicant filed an immediate appeal against this decision, which the Bamberg Higher Regional Court (Oberlandesgericht) dismissed as unfounded in an order of 26 August 2011.

II.
The Federal Constitutional Court granted the constitutional complaint against the orders of the Bayreuth Regional Court and the Bamberg Higher Regional Court. The matter was remitted to the Bamberg Higher Regional Court for a new decision.

1. The constitutional complaint is admissible. That the applicant has meanwhile been released from the psychiatric confinement does not prevent its admissibility. He still has a continuing interest, which warrants protection, in a subsequent constitutional review of the challenged decisions, for these were the basis of a far-reaching interference with his fundamental right to personal freedom.

2. The constitutional complaint is clearly well-founded. The orders of the Bayreuth Regional Court and the Bamberg Higher Regional Court violate the applicant’s fundamental right to personal freedom (second sentence of Article 2.2 of the Basic Law) in conjunction with the principle of proportionality (Article 20.3 of the Basic Law). The reasons set out in the orders are not sufficient to justify the continuation of the confinement.

a) Decisions on the deprivation of personal freedom must be based on a sufficient determination of the facts by the court, and must have a sufficient factual basis. In particular, the competent judge must not leave the prognosis to the expert but has to come to his or her own decision on the matter. In an overall assessment, the dangers emanating from the perpetrator must be set in relation to the seriousness of the interference by the envisaged treatment. For this, the danger emanating from the person confined must be sufficiently specified. Consideration must be given to the earlier conduct of the person confined and the offences committed by that person to date. However, attention must also be given to circumstances which have changed since the confinement for treatment was ordered, and which will determine the future development. The principle of proportionality also demands that the confinement be enforced only as long as it is absolutely required by the measure’s purpose and less onerous measures would be insufficient.

This is an evaluative prognosis-based decision. Consequently, the Federal Constitutional Court cannot examine it in all particulars but can only review whether a balancing of interests took place, and whether the standards for evaluation on which the balancing was based comply with the Constitution. In case of long-term confinements for treatment, the increasing weight of the right to freedom also affects the standards for justification. In such cases, the judge’s scope in assessing the situation narrows, while the intensity of the Constitutional Court’s review increases with the severity of the interference with freedom. This can be accommodated by the judge drafting the assessment in more detail. This means that the judge may not, for example, limit his or her assessment to short, general phrases, but explains the assessment in a substantiated way with reference to the relevant legal criteria. Only in this way can a constitutional review determine whether the danger emanating from the perpetrator can, in a way, counterbalance his or her right to freedom. It is mainly necessary to specify the likelihood of further unlawful acts by the perpetrator, and the type of offence that is to be expected.

b) The challenged orders of the Bayreuth Regional Court and of the Bamberg Higher Regional Court are incompatible with these constitutional standards. The reasons set out in their orders are not sufficient to justify the continuation of the applicant’s confinement.

aa) The danger that the applicant may commit unlawful acts in future is not put into sufficiently specific terms. The Regional Court did not critically consider the fact that the expert’s submissions on the likelihood of future unlawful acts in the written opinion of 12 February 2011 and the oral hearing of 9 May 2011 differed from each other. Against this background, the Regional Court could not restrict itself to referring to the submissions of the expert in the oral hearing only. On the contrary, it should have balanced these assessments against each other, taking account of other remarks by the expert and other circumstances of the case, and come to its own independent prognosis-based decision. As part of such an independent assessment, the court should have set out what specific offences the applicant is expected to commit, why the degree of probability of such offences is very high, and on what factors and findings this prognosis is based.

Ultimately, the same applies to the order of the Higher Regional Court. It largely refers to the written expert opinion, which actually shows no high probability of future unlawful acts. In so far as the Higher Regional Court also relies on the opinion of the Bayreuth district hospital, this does not justify a different assessment.

bb) Furthermore, there is no evidence that the required prognosis-based decision took factors into account that could exonerate the applicant. In addition, the challenged orders do not sufficiently show that the danger emanating from the applicant is capable of counterbalancing the – considering the length of his confinement – increasing weight of his right to freedom. Finally, there was also no consideration of the question whether the safety interests of the general public could not have been protected by the use of measures less onerous to the applicant.

Languages available

Additional Information

ECLI:DE:BVerfG:2013:rk20130826.2bvr037112

Please note that only the German version is authoritative. Translations are generally abriged.