Chemical castration of a rapist. Rejection of a conviction for release of a convicted person for rape because he refused to be subjected to chemical castration. The continuation of his detention despite his requests for an expert opinion to prove his mental health is a violation of personal freedom and security.

JUDGMENT 

Tim Henrik Bruun Hansen v. Denmark  09.07.2019 (no. 51072/15)

see here  

SUMMARY 

Rapist and chemical castration. Non-release of convicted prisoner on grounds of his non-acceptance of being castrated. Offenses against sexual freedom, relapse risk, medical expertise.

The applicant was convicted of attempted rape of a minor and detained in prison for 19 years. During his multi-year detention, he submitted requests for release, which were rejected on the grounds that there was a risk of recurrence of serious offenses against sexual freedom because he refused to be subjected to chemical castration. The applicant complains that the Courts rejected his requests for an expert opinion to establish his mental health, as he had undergone counseling treatment by psychiatrists and psychologists.

The European Court of Human Rights held that the applicant’s detention on a long-term basis under strict supervision and the rejection of the detention requests constituted a violation of Article 5 §1 of the ECHR because the decision not to release a prisoner because he still poses a threat to the public would initially in accordance with Article 5 § 1 (a), it becomes, as in the present case, an arbitrary deprivation of liberty if the person concerned lacks the necessary means, such as appropriate treatment, to prove that he was no longer dangerous; and why in the case of imprisonment, it has been judged that external expertise is necessary, which was denied by the domestic Courts.

PROVISION 

Article 5 § 1 (α).

PRINCIPAL FACTS 

The applicant, Tim Henrik Brun Hansen, is a Danish national who was born in 1965. He is currently
serving a sentence at Herstedvester Institution (Denmark).

The case concerned his complaint about the lack of an external medical opinion in a 2015 High Court
decision to keep him in Herstedvester Institution, where he had been held since 1997.
Mr Hansen was found guilty in 1996 of deprivation of liberty, attempted rape in particularly
aggravating circumstances and abandoning a 10-year-old girl. He was subsequently transferred to
Herstedvester Institution.

He has several times requested release or a more lenient sentence. Based on medical reports by
Herstedvester Institution experts, the requests were refused owing to a risk of his committing similar
crimes unless he agreed to chemical castration, which he refused.

A new request for release was brought before the courts in 2014 and it was again rejected at first
instance by the District Court.

Mr Hansen appealed, arguing that an external medical opinion was needed as his case had reached
deadlock as the institution was insisting on chemical castration prior to his release but he refused on
health grounds. He relied on Article 5 (right to liberty and security) of the European Convention on
Human Rights and the Court’s case-law in H.W. v. Germany and Ruiz Rivera v. Switzerland.

The High Court upheld the safe custody measure in January 2015, stating also that the submissions
under Article 5 of the European Convention could not lead to a different finding and citing a
Supreme Court case on that matter in its conclusions. Proceedings for his release also took place in
2016 and when they went to appeal the High Court sought an external opinion from the MedicoLegal Council. The appeal court subsequently maintained his placement in the institute.

The applicant complained that the High Court’s decision of January 2015 to maintain his sentence of
safe custody, without hearing an external medical expert, had breached his rights under Article 5 § 1
(a) (right to liberty and security) of the Convention

THE DECISION OF THE COURT 

The main issue in the present case concerns the question whether there was sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1 of the Convention, between the applicants criminal conviction by the sentencing High Court on 1 May 1996 and his continued deprivation of liberty ordered by that court on 28 January 2015 The Court reiterates in this respect that “conviction” under sub-paragraph (a) of Article 5 § 1 signifies a finding of guilt of an offence and the imposition of a penalty or other measure involving deprivation of libertyIt is not in dispute that the applicantcontinued detention in safe custody could not be justified under any of the other sub-paragraphs (b) to (f) of Article 5 § 1.

Furthermore, it is uncontested that since his conviction in 1996, by virtue of article 72 of the Penal Code, the applicants safe custody sentence was regularly reviewed, and that each time a fresh assessment was obtained by medical experts at Herstedvester Institution.

The Court is aware, though, that the High Court, in its decision of 28 January 2015 to uphold the applicants sentence, and its implied decision to refuse the applicants request for an external expert, had before it a number of elements for concluding that safe custody had to be maintained in order to prevent an imminent risk of relapse into the very serious sexual crimes of which the applicant had been convicted three times in the period between 1989 and May 1996.

The Court also observes that when the High Court passed its decision of 28 January 2015, the Medico-Legal Council had been heard twice in the applicants case, namely in November 1995 and January 2007. On the latter date, the Medico-Legal Council recommended that the applicant take libido-suppressing drugs, which apparently he was motivated for at the relevant time. It also noted that although initially the applicant had refused counselling therapy with the psychologists or psychiatrists at Herstedvester Institution, he had lately availed himself of such, for example, in the years between 2001 to 2003 with psychologist T.L., and for a subsequent two-year period with one of the regular psychologists of the Institution.

Moreover, the Court has regard to the information that the Medico-Legal Council is an independent body which provides medico-forensic and pharmaceutical assessments for public authorities for the purpose of cases concerning the legal circumstances of individuals. It comprises up to 12 physicians. The applicant has not alleged that any of its members were affiliated to Herstedvester Institution, nor has he, in the Courts view, submitted any convincing arguments which could lead it to conclude that, in general, theMedico-Legal Council cannot be qualified as an external expert.

In the present case, however, the High Court dismissed the applicants specific request for an external expert opinion, be it by the Medico-Legal Council or another expert appointed for the consideration of the case, although at that point in time the applicant had been detained in safe custody for almost 19 years, namely since the judgment of 1 May 1996. Furthermore, the most recent external expert opinion was from January 2007, when the Medico-Legal Council gave its opinion.

The matter remains of whether the applicant can still claim to be a victim in this respect since the High Court, in the ensuing review proceedings leading to its decision of 16 December 2016 to uphold the sanction, had previously obtained an external expert opinion from the Medico-Legal Council of 22 August and 21 September 2016, in addition to the medical reports of 11 August 2015 and 27 July 2016 prepared by consultant psychiatrist E.P. from Herstedvester Institution.

The applicant relied on Article 5 of the Convention both in the 2015 and the 2016 review proceedings. During the latter proceedings, the High Court did not take a specific stand on the applicants complaint and there is no indication that it found that there had been any shortcomings in the former proceedings. Admittedly, it did not anew dismiss his request for an external expert opinion with reference to the Supreme Court judgment of 4 September 2014. Instead it granted his request and obtained two opinions from the MedicoLegal Council. Nevertheless, even if the granting of an external expert opinion in the 2016 review proceedings could have remedied the decision by the High Court in the 2015 review proceedings not to obtain an external expert opinion, the Court is not convinced that the High Court thereby acknowledged, in essence, that a violation of Article 5 of the Convention had occurred.

The Court therefore rejects the Governments objection which it has previously joined to the merits.

 In view of the foregoing, the Court reiterates that the High Court, in its decision of 28 January 2015, by failing at least to attempt to obtain fresh advice from an external medical expert on the necessity of the applicants continuing safe custody, did not sufficiently establish the relevant facts in this respect. Their decision not to release the applicant,or to apply a more lenient sentence than safe custody, was therefore not based on an assessment that was reasonable in terms of the objectives pursued by the sentencing High Court on 1 May 1996.

There has accordingly been a violation of Article 5 § 1 of the Convention.

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage sustained by Mr Hansen. It further awarded him
2,000 euros (EUR) for costs and expenses(echrcaselaw.com).

 


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