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E.M. v. AUSTRIA

Doc ref: 18166/91 • ECHR ID: 001-45704

Document date: January 11, 1995

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E.M. v. AUSTRIA

Doc ref: 18166/91 • ECHR ID: 001-45704

Document date: January 11, 1995

Cited paragraphs only



                  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)

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