The preventive detention following the execution of the principal sentence and the right of the accused to freedom
JUDGMENT
Lorenz v. Austria 20-07-2017 (no. 11537/11)
SUMMARY
The applicant was sentenced in 1984, among other things, to intentional triple murder and served a sentence of imprisonment for 20 years. Until 2003, he served his sentence, but since then he has been detained and undergoes a review every year to assess whether his mental health is stabilized in order for him to be released safely.
The case concerned his complaint about the legality and feasibility of three review procedures regarding his preventive detention. Mr Lorenz unsuccessfully requested a release in 2008 and 2009.
Based on Article 5 § 1 (a) and (e) (right to liberty and security) of the European Convention on Human Rights, Mr Lorenz complained that the periodic review of his detention was unlawful because the courts failed to justify the continuation of his detention. He also claimed, based on Article 5 § 4 (the right of detention to be dealt with promptly by a court) that these three sets of review procedures were not carried out with sufficient feasibility.
The ECtHR found that there had been a violation of Article 5 (1) regarding the verification procedure because the Austrian courts failed to consider the transfer of Mr Lorenz to the Vienna-Mittersteig prisons.
PROVISIONS
Article 5 § 1 and § 4
PRINCIPAL FACTS
The applicant, Günter Lorenz, is an Austrian national who was born in 1964 and is detained in Krems (Austria). Mr Lorenz was convicted in 1984 for, among other things, triple murder and served a 20-year prison sentence. His sentence ended in 2003 but, since then, he has remained in preventive detention, subject to yearly review proceedings to assess whether his mental condition has stabilised enough for him to be safely released. The case concerned his complaint about the lawfulness and expediency of three sets of proceedings for the review of his preventive detention.
Mr Lorenz applied and was denied release in 2008 and 2009. In July 2010, the Vienna Court of Appeal dismissed his appeal against these decisions on the basis that he had not been adequately prepared for release, referring to a number of previous expert opinions, the most recent of which were obtained in 2009 and 2010. He applied for release again in 2010, 2011 and 2013, but, relying on reasoning and expert testimony from the previous review proceedings, the Regional Court and Court of Appeal concluded that he continued to present a danger to society. During the review proceedings from 2010 to 2013, Mr Lorenz refused to undergo further therapy and, in the course of the 2011/12 proceedings, to be examined by an expert. The three sets of review proceedings in question lasted five months, almost eleven months, and four months, respectively.
Relying on Article 5 § 1 (a) and (e) (right to liberty and security) of the European Convention on Human Rights, Mr Lorenz complained that the periodic review of his detention in 2010/11, 2011/12 and 2012/13 had been unlawful because the courts had failed to sufficiently justify the continuation of his detention. He further complained, relying on Article 5 § 4 (right to have lawfulness of detention decided speedily by a court), that these three sets of review proceedings had not been conducted with sufficient expediency. Violation of Article 5 § 1 – as in the review proceedings in question the Austrian courts failed to examine the question of Mr Lorenz’s transfer to the Vienna-Mittersteig Prison
THE DECISION OF THE COURT
Violation of Article 5 § 1 – as in the 2011/12 and 2013 review proceedings the domestic courts did not have a sufficient factual basis to decide on Mr Lorenz’s requests for release
No violation of Article 5 § 4 – in respect of the 2010/11 and 2013 review proceedings
Violation of Article 5 § 4 – in respect of the 2011/12 review proceedings
Just satisfaction: 3,000 euros (EUR) (non-pecuniary damage) and EUR 1,000 for costs and expenses (echrcaselaw.com editing).
