Published on 18 May 2026
 
FOURTH SECTION
Applications nos. 4197/25 and 28873/25
Martin PELLECH against Austria
lodged on 27 January 2025 and 10 September 2025 respectively
communicated on 27 April 2026
SUBJECT MATTER OF THE CASE
The applications concern the confinement of the applicant, who is an Austrian national, in a “forensic-therapeutic centre” (which was known as “an institution for mentally ill offenders” until 1 March 2023) under Article 21 § 2 of the Criminal Code.
On 22 October 2021 the Vienna Regional Criminal Court convicted the applicant of dangerous threat (gefährliche Drohung) under section 107 § 1 and 2 of the Criminal Code. It sentenced him to two years’ imprisonment and ordered his confinement in a forensic-therapeutic centre. With the judgment becoming final on 25 February 2022, the applicant was transferred to a forensic-therapeutic centre, where he remains confined to this day. The applicant completed his prison sentence on 19 May 2023.
As regards application no. 4197/25:
On 22 October 2024, in the course of the annual review proceedings pursuant to section 25 § 3 of the Criminal Code, the Steyr Regional Court found that it was still necessary to continue the applicant’s confinement in the forensic-therapeutic centre and dismissed the applicant’s request for conditional release. Based on a reasoned forensic statement of 14 August 2024, submitted by the warden and the specialist team of the forensic‑therapeutic centre in which the applicant was confined, read in conjunction with an expert report of 18 October 2023, the court found that the applicant continued to suffer from a severe and persistent psychological disorder in the form of a combined personality disorder and alcohol abuse, and that the high risk of the applicant to re-offend persisted. Referring again to the forensic statement, the court found, among others, that the applicant was only at the beginning of a treatment process and did not recognise his disorder or assume responsibility for his actions. The applicant had also discontinued his therapy.
The applicant appealed, referring, among other things, to the fact that the Regional Court had based its decision on an expert report that was more than a year old. The Linz Court of Appeal dismissed the applicant’s appeal as unfounded on 28 November 2024.
Under Article 5 § 1 (e) of the Convention the applicant complains that no recent, objective psychiatric evaluation or expert report had been commissioned for the annual review of his confinement in a forensic‑therapeutic centre in 2024.
As regards application no. 28873/25:
In the course of the subsequent annual review proceedings, the Steyr Regional Court ruled on 15 July 2025 that the applicant’s confinement in a forensic-therapeutic centre was still necessary and dismissed the applicant’s request for conditional release. Referring to an expert report of 27 July 2021, supplemented on 15 October 2021, which initially recommended the applicant’s referral to a forensic-therapeutic centre, as well as a private expert report of 2 September 2021, and an expert report of 18 October 2023 and a reasoned forensic statement by the institution of 12 June 2025, the Regional Court found, among other things, that a new expert report was unnecessary due to a lack of relevant changes in the applicant’s status since the expert report of 18 October 2023.
The applicant appealed, arguing, among other things, that the expert reports referred to in the Regional Court’s decision were several years old, and that a new one should therefore have been commissioned during the present review proceedings.
On 12 August 2025 the Linz Court of Appeal dismissed the applicant’s appeal. Pointing to the forensic statement and the reference therein to the expert report of 18 October 2023, the court found that the applicant undoubtedly still suffered from a severe and persistent combined personality disorder, and that the applicant’s risk of re-offending remained high, as indicated in the institution’s forensic statement. The Court of Appeal further stated that, for the purposes of the yearly review proceedings, it was not mandatory to commission a new expert report: the expert report of 18 October 2023 could still be considered sufficiently recent, particularly since the forensic statement of the institution of 12 June 2025 did not show any relevant changes with regard to the applicant’s mental status.
Relying on Article 5 § 1 (e) of the Convention, the applicant complains that no objective medical expert report was commissioned in the course of the review proceedings of his confinement in a forensic-therapeutic centre.
QUESTIONS TO THE PARTIES
Was the applicant deprived of his liberty in breach of Article 5 § 1 (e) of the Convention? In particular, did the deprivation of liberty after 19 May 2023 fall within the scope of this provision? Was the extension of the applicant’s deprivation of liberty in 2024 and 2025 carried out “in accordance with a procedure prescribed by law”?
 
Has it been reliably established, on the basis of recent objective medical expertise, that the applicant continued to be of unsound mind within the meaning of Article 5 § 1 (e) of the Convention, and that his detention remained necessary in the circumstances (see, for example, Kadusic v. Switzerland, no. 43977/13, §§ 44 and 55, 9 January 2018, with reference to Herz v. Germany, no. 44672/98, § 50, 12 June 2003)?