Information Note on the Court’s case-law 231
July 2019
Tim Henrik Bruun Hansen v. Denmark - 51072/15
Judgment 9.7.2019 [Section IV]
Article 5
Article 5-1
Lawful arrest or detention
Failure to obtain external expert report when reviewing necessity of continuing safe custody in deadlock situation: violation
Facts – Following previous similar convictions, the applicant was convicted in 1996 of a serious sexual assault of a minor and sentenced to “safe custody” for an indefinite term. His therapeutic treatment, and thus his chances of rehabilitative release from prison, had reached a deadlock in terms of the relationship of trust with staff of the institution, the applicant having refused chemical castration which was a condition of release and, eventually, having refused counselling. In 2015 a court ordered his continued deprivation of liberty. He complained under Article 5 § 1 (a) arguing that his continued imprisonment was not sufficiently linked to the original objective of detention.
Law – Article 5 § 1: The main issue was whether there had been a sufficient causal connection, for the purposes of sub-paragraph (a) of Article 5 § 1, between the applicant’s criminal conviction by the sentencing court in 1996 and his continued deprivation of liberty ordered in 2015.
In ordering his continued deprivation of liberty, the domestic court had 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 1996. The domestic court had however dismissed the applicant’s specific request for an external expert opinion, although at that point in time the applicant had been detained in safe custody for almost 19 years and the most recent external expert opinion had been from 2007.
There seemed to have been no means of cooperation between the applicant and the medical staff at the detaining Institution, in order to work towards reducing significantly the applicant’s dangerousness, the situation had indeed ended in deadlock. In such a situation it was particularly important to consult an external expert in order to obtain fresh propositions for initiating the necessary therapeutic treatment. By failing at least to attempt to obtain fresh advice from an external medical expert on the necessity of the applicant’s continuing safe custody, the domestic court had not sufficiently established the relevant facts in this respect. The decision not to release the applicant, or to apply a more lenient sentence than safe custody, had therefore not been based on an assessment that was reasonable in terms of the objectives pursued by the sentencing court in 1996.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
(See also S., V. and A. v. Denmark [GC], 35553/12 et al., 22 October 2018, Information Note 222; Ruiz Riviera v. Switzerland, 8300/06, 18 February 2014, Information Note 171; M. v. Germany, 19359/04, 17 December 2009, Information Note 125; H.W. v. Germany, 17167/11, 19 September 2013, Information Note 166; and Ilnseher v. Germany [GC], 10211/12 and 27505/14, 4 December 2018, Information Note 224)
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