E.M. v. AUSTRIA
Doc ref: 18166/91 • ECHR ID: 001-45704
Document date: January 11, 1995
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 18166/91
E. M.
against
Austria
REPORT OF THE COMMISSION
(adopted on 11 January 1995)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PART I : STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 2
PART II : SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4
INTRODUCTION
1. This Report relates to the application introduced under Article
25 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms by E. M. against Austria on 31 January 1991. It
was registered on 6 May 1991 under file No. 18166/91.
The applicant was represented by Mr. Walter Riedl, a lawyer
practising in Vienna.
The Government of Austria were represented by their Agent,
Mr. F. Cede, Ambassador, Head of the International Law Department at
the Federal Ministry of Foreign Affairs.
2. The application relates to the applicant's committal to short
term detention in a mental hospital on the basis of a medical
certificate and on the ground that the applicant had threatened a
colleague and was found to be an alcoholic.
3. On 13 October 1993 the Commission (First Chamber) declared the
application partially admissible.
4. The Commission then proceeded to carry out its task under
Article 28 para. 1 of the Convention which provides as follows :
"In the event of the Commission accepting a petition referred to
it :
a. it shall, with a view to ascertaining the facts, undertake
together with the representatives of the parties an examination
of the petition and, if need be, an investigation, for the
effective conduct of which the States concerned shall furnish all
necessary facilities, after an exchange of views with the
Commission ;
b. it shall at the same time place itself at the disposal of
the parties concerned with a view to securing a friendly
settlement of the matter on the basis of respect for Human Rights
as defined in this Convention."
5. The Commission (First Chamber) found that the parties had reached
a friendly settlement of the case and on 11 January 1995 it adopted
this Report, which, in accordance with Article 28 para. 2 of the
Convention, is confined to a brief statement of the facts and of the
solution reached.
The following members were present when the Report was adopted :
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
PART I
STATEMENT OF THE FACTS
6. The applicant is an Austrian citizen, born in 1948 and resident
in Forstenstein.
7. On the afternoon of Friday 3 July 1987 the applicant had been
committed to a mental hospital against his will at the request of a
hierarchical superior, and on the basis of a medical certificate
(Parere) by a public health officer (Amtsarzt). According to the
certificate the applicant had "verbally" threatened a colleague in the
service, was found to be under the influence of alcohol and there were
indications of chronic alcohol abuse.
8. Three days after the applicant's committal to a mental hospital,
the superior in question and two other colleagues reported the incident
to the police. They confirmed that the applicant had acted in a
threatening manner.
9. On 6 July 1987 the applicant was released from the mental
hospital as there was no longer any reason to fear that he would be a
danger to himself or to others. An earlier release had apparently not
been possible due to the absence of the competent medical director.
10. In a medical report of 9 July 1987 it is stated that during his
arrival interview the applicant stated that he considered the action
taken against him to be arbitrary. He also gave another version of the
incident at the office. As to the therapy and treatment, it is stated
that the applicant behaved normally and did not show any signs of
withdrawal symptoms. He furthermore did not show any signs of having
hallucinations or mania and therefore did not need any medical
treatment.
11. Summarising, the report states a diagnosis of psychopathy with
aggressive tendencies as already discovered in a test of 1985. As a
therapy it is suggested that the applicant give up alcohol and be
supervised by a psychotherapist.
12. The applicant lodged a constitutional complaint with the
Constitutional Court (Verfassungsgerichtshof) invoking his right to
personal liberty. He pointed out that no other remedy was given
against the measure in question which he considered to be unlawful
alleging that he had not been examined by the medical officer and that
there had been no circumstances justifying his committal to the
hospital. The remedy was rejected on 27 February 1990. According to
the applicant this decision was served on 1 August 1990.
13. The court denied a violation of the applicant's right to liberty
stating that the measure in question was justified under Section 49 (1)
of the Hospital Act (Krankenanstaltengesetz). This provision allows
provisional detention of persons in a mental hospital if a public
health officer has certified that the person is a threat to his or her
own security or that of others on account of mental illness. The
certificate must not be older than a week. According to the
Constitutional Court such a certificate is not an expert opinion and
is not subject to evaluation by the authority which has to decide on
the detention. Rather it is a mere formality and the authority only
has to examine whether the certificate is in conformity with the formal
requirements of the law.
14. The Constitutional Court concluded that in view of the
certificate of 3 July 1987 there was no reason to doubt the lawfulness
of the applicant's committal to a mental hospital. It was also in the
court's opinion irrelevant whether or not the applicant had threatened
colleagues and whether or not he had been examined by the medical
officer. It was likewise irrelevant that it did not follow from the
medical order whether the committal was considered necessary for the
applicant's own security or that of other persons. The formula used
for the medical order contained a standard printed text referring to
both possibilities. According to the court it followed from the fact
that the medical officer had not crossed out one of the two
alternatives that he considered both alternatives to be given.
PART II
SOLUTION REACHED
15. Following the decision on the admissibility of the application,
the Commission (First Chamber) placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and eventually, at the
request of the parties submitted to them the following proposal for a
friendly settlement.
[Translation]
"1) The Government of the Republic of Austria will pay to the
applicant the sum of AS 20,000 in compensation for any possible
claims relating to the present application and in addition the
costs incurred by the applicant in the domestic as well as the
proceedings before the Commission.
2) The applicant declares his application (No. 18166/91) to
have become without object.
3) The applicant waives any further claims against Austria in
connection with the object of the present application."
[German]
"1) Die Regierung der Republik Österreich zahlt dem
Beschwerdeführer als Ausgleich für sämtliche etwaigen
Ansprüche im Zusammenhang mit der vorliegenden
Individualbeschwerde einen Betrag von ÖS 20.000 sowie die
ihm sowohl durch das innerstaatliche als auch durch das
Beschwerdeverfahren vor der Kommission entstandenen Kosten.
2) Der Beschwerdeführer erklärt seine Beschwerde (No.
18166/91) als erledigt.
3) Der Beschwerdeführer verzichtet auf die Geltendmachung
allfälliger weiterer Forderungen gegen Österreich, die mit
dem Gegenstand der Beschwerde zusammenhängen."
16. By letter of 11 May 1994 applicant's counsel indicated the amount
of costs incurred by the applicant in the domestic and European
Commission of Human Rights proceedings, namely a total of AS 58,583.
17. This letter was communicated to the Austrian Government. In
reply, by letter of 5 September 1994, the respondent Government
accepted the above proposal on the understanding that the settlement
covers all the applicant's claims against the Austrian Government.
18. The applicant submitted a signed copy of the friendly settlement
declaration on 10 October 1994
19. At its session on 11 January 1995, the Commission noted that the
parties had reached an agreement regarding the terms of a settlement.
It further considered, having regard to Article 28 para. 1 (b) of the
Convention, that the friendly settlement of the case had been secured
on the basis of respect for Human Rights as defined in the Convention.
20. For these reasons, the Commission adopted the present Report.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)