HERCZEGFALVY v. AUSTRIA
Doc ref: 10533/83 • ECHR ID: 001-45446
Document date: March 1, 1991
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Application No. 10533/83
Istvan HERCZEGFALVY
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 1 March 1991)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 23) ...................................... 1
A. The application
(paras. 2 - 4) .............................. 1
B. The proceedings
(paras. 5 - 18) .............................. 2
C. The present Report
(paras. 19 - 23) ............................. 3
II. ESTABLISHMENT OF THE FACTS
(paras. 24 - 159) ................................... 5
A. The particular circumstances of the case
(paras. 24 - 129) ............................ 5
1. Criminal proceedings against the
applicant in 1973 and 1974
(paras. 24 - 27) .......................... 5
2. The guardianship proceedings
(paras. 28 - 32) .......................... 5
3. Further criminal proceedings against
the applicant and his detention on
remand in this connection
(paras. 33 - 63) .......................... 6
4. The applicant's detention under
Section 21 para. 1 of the Penal Code
and its judicial review
(paras. 64 - 71) .......................... 11
5. Medical treatment
(paras. 72 - 117) ......................... 13
6. Control of correspondence
(paras. 118 - 124) ........................ 20
7. Restriction of access to information
(paras. 125 - 129) ........................ 21
B. Relevant domestic law
(paras. 130 - 159) ............................ 22
1. Deprivation of liberty
(paras. 130 - 140) ........................ 22
2. Conditions of detention
(paras. 141 - 152) ........................ 25
3. Provisions on legal incapacitation and
the functions of the guardian
(paras. 153 - 158) ........................ 30
4. Complaints to the Administrative Court
and the Constitutional Court
(para. 159) ............................... 32
TABLE OF CONTENTS (continued)
Page
III. OPINION OF THE COMMISSION
(paras. 160 - 290) ................................... 33
A. Complaints declared admissible
(para. 160) ................................... 33
B. Points at issue
(para. 161) ................................... 33
C. Deprivation of liberty
(paras. 162 - 240) ............................ 34
1. Justification of the applicant's detention
under Article 5 para. 1
(paras. 164 - 218) ......................... 35
2. Length of detention on remand
(Article 5 para. 3 of the Convention)
(paras. 219 - 229) ......................... 44
3. Review of the lawfulness of the applicant's
continued detention
(Article 5 para. 4 of the Convention)
(paras. 230 - 240) ......................... 45
D. Conditions of detention
(paras. 241 - 279) ............................ 47
1. Compulsory medical treatment, artificial
feeding and isolation
(Article 3 of the Convention)
(paras. 241 - 255) ......................... 47
2. Alleged interference with the right
to respect for private life
(Article 8 of the Convention)
(paras. 256 - 260) ......................... 51
3. Correspondence
(Article 8 of the Convention)
(paras. 261 - 274) ......................... 52
4. Access to information
(Article 10 of the Convention)
(paras. 275 - 279) ......................... 54
E. Effective remedies
(Article 13 of the Convention)
(paras. 280 - 289) ............................ 55
F. Recapitulation
(para. 290) ................................... 56
APPENDIX I : HISTORY OF THE PROCEEDINGS ................. 58
APPENDIX II : PARTIAL DECISION ON ADMISSIBILITY .......... 60
(10 March 1988)
APPENDIX III : FINAL DECISION ON ADMISSIBILITY ............ 79
(4 October 1989)
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Hungarian refugee born in 1944, who came to
Austria in 1964. He now lives in Vienna. From 30 January 1989 until
5 June 1990 he was represented by Mr. Heinrich Vana, a lawyer
practising in Vienna, and as from 8 June 1990 by Mr. Holger Hoffmann,
a lawyer practising in Bremen (Federal Republic of Germany).
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Mr. Helmut Türk, Head of
the International Law Department of the Federal Ministry of Foreign
Affairs.
4. The case concerns the applicant's detention in the period
between 27 May 1978, six months before the introduction of the present
application, and 28 November 1984, the date of the applicant's release
from detention. The applicant complains
a) that his detention from 27 May 1978 until 9 April 1980 was
not justified under Article 5 para. 1 (c) and/or (e) of the
Convention and that, contrary to Article 5 para. 3 of the
Convention, he was not brought to trial within a reasonable
time;
b) that his detention as a person of unsound mind from
9 April 1980 until his release on 28 November 1984 was
not justified under Article 5 para. 1 (e);
c) that after 9 April 1980 he was not able to obtain judicial
review of the continued lawfulness of this detention in
conformity with Article 5 para. 4 of the Convention;
d) that the conditions of his detention, including his
medical treatment, amounted to inhuman or degrading
treatment contrary to Article 3 or to an unjustified
interference with his right to respect for his private
life under Article 8 of the Convention;
e) that there have been violations of his right to
respect for his correspondence (Article 8) and
his right to receive information (Article 10 of the
Convention); and
f) that there was no effective remedy to challenge the violations
under d) and e) above (Article 13 of the Convention).
B. The proceedings
5. The application was introduced on 27 November 1978 and
registered on 22 August 1983.
6. On 14 October 1983 a member of the Commission, acting as
Rapporteur, requested information from the respondent Government in
accordance with Rule 40 para. 2 (a) of the Rules of Procedure (former
version), concerning restrictions of the applicant's correspondence
with the Commission and withholding of relevant documents.
7. The Government replied on 13 December 1983 that the applicant
was free to correspond with the Commission, subject to supervision,
and that necessary documents would be handed out to him upon his
request. In his replies of 31 December 1984 and 21 April 1984 the
applicant complained of continuing restrictions preventing him from
submitting documents to the Commission.
8. On 21 May 1984 the Commission's Rapporteur requested the
respondent Government to submit a full documentation of the case.
9. On 11 July 1984 the Government submitted voluminous documents
on which the applicant commented on 26 July and 25 October 1984.
10. By a partial decision of 10 March 1988 the Commission rejected
certain complaints (cf. Appendix II). At the same time it
communicated a number of other complaints to the respondent
Government, inviting them, pursuant to Rule 42 para. 2 (b) of the
Rules of Procedure (former version), to submit observations in writing
on the admissibility and merits of these complaints.
11. The time-limit fixed for this purpose was extended until
1 August 1988 and the Government's observations were submitted on
29 July 1988.
12. The applicant was invited to reply before 20 September 1988,
but this time-limit was suspended in view of his request for legal aid
which was granted by the Commission's President on 9 January 1989.
A new time-limit was fixed for the submission of the applicant's
observations by his legal aid lawyer, which was extended upon the
latter's request until 31 May 1989. The applicant's observations were
submitted on that date.
13. On 4 October 1989, the Commission declared the complaints
outlined in para. 4 above admissible. It rejected the remainder of
the application and decided to take no further action in respect of
the complaint concerning effective exercise of the right of petition
(Article 25 para. 1 in fine).
14. The parties were invited to submit observations on the merits
before 15 December 1989. On that date the applicant's legal aid
lawyer informed the Commission that he did not consider it necessary
to submit such observations, but that he reserved the right to comment
on the Government's observations. The Government requested an
extension of the time-limit which the President granted until
1 February 1990.
15. On 10 February 1990 the Commission suspended the above
time-limit in view of efforts for securing a friendly settlement (cf.
para. 18 below). On 21 May 1990 the President fixed 15 June 1990 as
the new time-limit for the observations of both parties.
16. The Government submitted their observations on the merits on
that date. The applicant requested an extension due to the change in
his representation (cf. para. 2 above).
17. On 7 July 1990 the Commission fixed 3 September 1990 as the
time-limit for the applicant's observations. These were submitted by
the applicant's new lawyer on 3 September 1990 and supplemented on
11 October 1990.
18. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. Negotiations were conducted with the parties between
February and May 1990. In the light of the parties' reactions, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
19. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
20. The text of this Report was adopted on 1 March 1991 and is
now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
21. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
22. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decisions on the admissibility of the application as Appendices II
and III.
23. The full text of the parties' submissions, together with the
documents lodged as exhibits, is held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. Criminal proceedings against the applicant in 1973 and 1974
24. The applicant came to Austria in 1964. He married an Austrian
woman and established himself as a self-employed businessman, running
a TV repair shop in Vienna.
25. Criminal proceedings were instituted against him in 1972. In
connection with these proceedings he was arrested on 13 May 1972. He
remained in detention until 28 November 1984.
26. On 9 November 1972, the Regional Criminal Court (Landesgericht
für Strafsachen) of Vienna convicted the applicant of several criminal
offences including acts of physical aggression against his wife and
clients. It pronounced a prison sentence of two years. This judgment
was in substance confirmed by the Supreme Court (Oberster Gerichtshof)
on 28 June 1973. The applicant served his sentence until 13 May 1974.
An application concerning his conviction (No. 6398/73) was declared
inadmissible by the Commission on 12 December 1974.
27. On 2 February 1973, the Regional Criminal Court of Vienna
found the applicant guilty of a number of further offences (fraud,
extortion, resistance against officials involving physical aggression).
It imposed a prison sentence of five and a half years which was
reduced to three years by the Supreme Court on 12 December 1973. The
applicant served this sentence after the first one, until 13 May 1977.
2. The guardianship proceedings
28. During his detention in various prisons the applicant was
found to be a difficult prisoner, mainly because he addressed numerous
petitions and complaints to various authorities concerning his
allegedly wrongful convictions and his treatment in prison.
29. Because of this behaviour, civil proceedings were
eventually taken against him in 1975 by the prosecution authorities
with a view to establishing a partial lack of legal capacity to act
(beschränkte Entmündigung). After having heard psychiatric expert
evidence, the District Court of Vienna City (Bezirksgericht Wien -
Innere Stadt) by a decision of 23 December 1975 declared him to lack
legal capacity, and appointed a guardian (Beistand) for him.
30. In the reasons, the Court stated inter alia that anyone who
considered his rights to have been infringed was entitled to bring his
complaint before a statutory authority. The exercise of this right
was kept within set limits by the appointment of a legal guardian.
In his own interests and those of his environment and of the
authorities, the applicant was restrained from pursuing what he
believed to be his rights, but the necessary pursuit of his rights
was not impaired by his deprivation of legal capacity. Since the
applicant - apart from matters concerning legal action - was able to
perform for himself the normal acts of everyday life, a partial
deprivation of legal capacity under the protection of a legal guardian
was found sufficient.
31. This decision was confirmed by the Vienna Regional
Civil Court (Landesgericht für Zivilrechtssachen) on 3 November 1977
and according to the Government became final on 7 February 1978. The
applicant denies that there is a valid final decision.
32. By a decision of the District Court of Vienna-City of
9 August 1983 the guardian was replaced by another guardian who
continues to exercise his functions to the present day. On
19 July 1984 the guardianship court ruled by virtue of Article X
para. 3 sub-para. 1 of the Federal Act concerning Guardianship for
Handicapped Persons (cf. para. 156 below) that as from 1 July 1984 the
applicant had an equivalent position to a person for whom a curator
(Sachwalter) had been appointed to take care of all matters under
Section 273 para. 3 sub-para. 3 of the Civil Code (cf. para. 157
below).
3. Further criminal proceedings against the applicant and
his detention on remand in this connection
a) Preliminary investigation and first court hearing;
order for the applicant's detention on remand
--------------------------------------------------
33. While the applicant was serving the sentence resulting from
his conviction on 2 February 1973, new criminal proceedings were
instituted against him on suspicion of his having committed
further criminal offences during his detention (assaults on prison
officers and fellow prisoners, uttering dangerous threats in letters
addressed to the presiding judge of the first trial).
34. According to the Government the indictment in the new criminal
case "presumably" dated from 2 June 1976. On 29 October 1976 an
official defence counsel was appointed for the applicant, and the
counsel was replaced several times. In November 1976 the applicant
was granted access to the file, from which a considerable number of
documents disappeared.
35. On 24 November 1976 the public prosecutor requested the
inclusion of additional offences (attacks against prison officers) in
the proceedings.
36. The trial, which had been fixed for 14 and 17 December 1976,
apparently was not held. On 14 December, the whole file had
disappeared and therefore it had to be reconstituted.
37. On 5 April 1977 the new trial date was fixed for 3 May 1977.
A court hearing was held on that date, but adjourned in view of the
applicant's request to hear numerous witnesses whose whereabouts had
to be established. The case therefore was still pending on
13 May 1977 when the applicant completed his above sentence.
38. Three days earlier, on 10 May 1977, the Court ordered that
following the completion of the sentence the applicant should remain
in detention, being remanded in custody in connection with the new
case. The detention order in question made under Section 180 para. 2
sub-paras. (1) and (3) of the Code of Criminal Procedure (Straf-
prozessordnung) was based on the suspicion that the applicant had
committed criminal offences and the fear that he might abscond and
carry out his threat to commit further offences. The applicant was
transferred on 12 May 1977 to the prison of the Regional Court of
Vienna. His complaints against his continued detention were rejected
by the Review Chamber (Ratskammer) of the Regional Court on 18 May 1977
and the Vienna Court of Appeal (Oberlandesgericht) on 21 June 1977.
39. On 27 June 1977 the Court appointed an expert of forensic
medicine to examine the injuries of a prison officer suffered at an
altercation with the applicant on 24 August 1975, which formed the
background of one of the charges. That officer had no longer
exercised his functions after the incident, had complained of
permanent headaches, and had been retired in September 1976. The
expert opinion was submitted on 3 August 1977 and supplemented by a
report of 20 July 1977 on X-ray examinations of the prison officer
concerned.
b) Second court hearing and order for provisional
detention in an institution for mentally
deranged offenders
----------------------------------------------
40. On 14 September 1977 the applicant was summoned to a court
hearing to be held on 25 October 1977, which subsequently had to be
postponed due to the absence of the presiding judge. The hearing was
held on 2 November 1977 but adjourned for the purpose of taking
further evidence. The Court also decided to maintain the applicant's
detention on remand.
41. On 9 January 1978 the presiding judge decided that the
applicant's detention on remand should henceforth be carried out as
provisional detention (vorläufige Unterbringung) in an institution for
mentally deranged offenders (Anstalt für geistig abnorme Rechtsbrecher)
under Section 438 of the Code of Criminal Procedure (cf. para. 136 below).
This decision was based on the advice of several experts. It was
confirmed by the Review Chamber of the Regional Court of Vienna on
6 March 1978, and by the Vienna Court of Appeal on 19 April 1978.
The applicant was accordingly transferred to the special prison for
mentally deranged offenders of Vienna-Mittersteig.
c) Third court hearing and new indictment
--------------------------------------
42. A court hearing planned for 6 and 10 March 1978 could not take
place because the clerk of the court had erroneously failed to send
out the summonses.
43. On 5 April 1978 a hearing took place which was interrupted
because the presiding judge declared himself disqualified after the
applicant had spat him in the face. On 7 April 1978 the file was
transmitted to a new presiding judge.
44. The applicant was then examined by a psychiatric expert who
expressed the view that the applicant suffered from paranoia querulans
which could be considered as being equivalent to a mental illness and
that he was therefore not responsible for his acts. His criminal
offences therefore had to be seen in a different light. His presence
at the trial could be harmful to his health. In a supplementary
report, a psychological expert also confirmed that the applicant was
incapable of realising the unlawfulness of his behaviour and to act
accordingly. He suffered from a serious mental disturbance and had a
massive potential of aggression.
45. In view of these expert opinions, the prosecution on
15 June 1978 abandoned the original indictment seeking the applicant's
conviction and replaced it by a new one aiming at his detention in an
institution for mentally deranged offenders according to Section 21
para. 1 of the Penal Code (Strafgesetzbuch) (cf. para. 137 below). It
also applied for the trial to be held in the absence of the applicant,
pursuant to Section 430 para. 5 of the Code of Criminal Procedure.
From this time, the applicant's provisional detention in an
institution for mentally deranged offenders was based on Section 429
para. 4 of the Code of Criminal Procedure (cf. para. 136 below).
46. The applicant's objections against the new indictment were
rejected by the Court of Appeal on 30 August 1978.
d) Fourth court hearing and judgment
---------------------------------
47. On 10 October 1978 the applicant was informed by the presiding
judge that the question of his exclusion from the trial would be
decided by the full Court.
48. On 8 November 1978 the court hearing was fixed for 9 and
10 January 1979. The applicant's requests to postpone these hearings,
to enable him to prepare his defence sufficiently, were rejected. He
was initially present at the trial, but then excluded according to
Section 430 para. 5 of the Code of Criminal Proceedings. His request
to be released from detention on remand was rejected on the grounds
that his continued detention was required under Section 429 para. 4 of
the Code of Criminal Procedure.
49. By its judgment of 10 January 1979 the Court found the facts
of three of the charges established (threats against a prison director
and a judge, resistance against officials, and bodily injury of a
prison officer). It ordered the applicant's detention in an
institution for mentally deranged offenders under Section 21 para. 1
of the Penal Code, on the ground that he was a dangerous person who
was not responsible for his acts under criminal law.
50. As to the question of criminal responsibility, the Court
took into account the expert opinions of three psychiatrists who all
considered that, although there were no signs of a mental illness in
the strict sense, the applicant suffered from paranoia querulans with
strong tendencies to aggression. In this state of mind he had already
committed the earlier criminal offences which had led to his criminal
convictions in 1972 and 1973, but the symptoms had aggravated during
the period of his subsequent detention. At least since 1975, the
querulous behaviour had reached the level of a serious mental
instability equivalent to a mental illness, preventing the applicant
from realising the unlawfulness of his behaviour and from acting
lawfully. The Court found the applicant to be a dangerous person
ridden by the obsession that he must fight against his "persecutors"
not only by a flood of petitions and complaints but also by threats
and physical acts of aggression.
e) Continued detention on remand pending the nullity
proceedings before the Supreme Court
-------------------------------------------------
51. Pending the applicant's plea of nullity (Nichtigkeits-
beschwerde) against this judgment, he continued to be detained on
remand in the form of provisional detention according to Section 429
para. 4 of the Code of Criminal Procedure. However, according to the
recommendation of a psychiatric expert, this provisional detention was
now carried out in the prison of the Vienna Regional Court and no
longer in the special prison of Mittersteig.
52. On 28 June 1979 the Regional Court ordered the immediate
transfer of the applicant to the psychiatric hospital of Vienna
because he needed urgent treatment which could not be administered to
him in the Regional Court's prison hospital, as confirmed by that
hospital's psychiatric consultant. The applicant remained in the
psychiatric hospital from 29 June to 23 July 1979 (cf. para. 75 below)
when he returned to the Regional Court's prison.
53. On 29 August 1979 the applicant's appeal against the Regional
Court's decision was rejected as inadmissible by the Court of Appeal.
It observed that the Regional Court had wrongly referred to Section 50
of the Hospitals Act (Krankenanstaltengesetz) instead of Section 429
para. 4 of the Code of Criminal Procedure. Therefore the Review
Chamber of the Regional Court was competent to decide on the
applicant's appeal.
54. On 5 September 1979 the Review Chamber confirmed the
applicant's continued detention. It ordered that it should henceforth
be carried out in the psychiatric hospital of Vienna as provisional
detention under Section 429 para. 4, because due to a hunger-strike which
the applicant pursued since 2 August 1979 he needed urgent treatment
which could not be administered to him in the prison hospital. He
should receive intensive medical, socio- and psychotherapeutic
treatment. On the basis of this decision the applicant was transferred
to Ward 23 of the psychiatric hospital of Vienna on 10 September 1979.
He remained there until his release on 28 November 1984.
55. On 8 October 1979 the Court of Appeal rejected the applicant's
appeal against the Regional Court's decision of 5 September 1979,
finding that it was obvious in view of the applicant's behaviour
during his detention on remand and at the trial that he could not be
released without danger to himself and others; there was a clear
danger of recidivism.
f) Continued detention on remand following
the Supreme Court's decision
---------------------------------------
56. On 3 October 1979 the Supreme Court in part allowed the
applicant's plea of nullity against the Regional Court's judgment of
10 January 1979 (cf. paras. 49 - 50 above). It confirmed the findings
concerning the first charge (dangerous threats) but quashed those
relating to the second and third charges on the ground that the trial
court had failed to hear certain witnesses. The Supreme Court also
quashed the order for the applicant's committal to an institution for
mentally deranged offenders and referred the case back to the Regional
Court for a new trial.
57. On 14 December 1979 the investigating judge of the Regional
Court informed the applicant that he continued to be detained under
Section 429 para. 4. In view of the applicant's request for release
of 4 December 1979 the investigating judge further addressed a note to
the Governor of the Regional Court's prison requesting him to submit
comments by the prison's medical service, in consultation with the
psychiatric hospital, on whether the applicant's continued detention
under Section 429 para. 4 was necessary.
58. In reply, the psychiatric hospital on 17 January 1980
submitted a report according to which aggressive and dangerous acts of
the applicant were still to be feared. It referred to the incident of
15 January 1980 (paras. 88 - 89 below) and expressed the view that the
applicant's return to normal detention on remand was inconceivable.
59. On 28 January 1980, the Review Chamber confirmed the
applicant's continued detention under Section 429 para. 4. The
applicant's complaint against this decision was rejected by the Court
of Appeal at a date not indicated to the Commission.
g) New trial and judgment
----------------------
60. Prior to his new trial before the Regional Court on 20 March
1980, the presiding judge made enquiries concerning the applicant's
fitness to appear for trial. The institute for forensic medicine
declined to deliver an opinion on this question, stating that the
doctors treating the applicant should do so. The director of the
psychiatric hospital confirmed the applicant's physical fitness to be
tried, provided that he was allowed to sit.
61. The trial took place on 20 March and 9 April 1980. It covered
the two charges in relation to which the Supreme Court had quashed the
earlier judgment (cf. para. 56 above), and a new charge of dangerous
threats uttered against a judge in a letter of 24 December 1979. The
facts of all three offences were found to be established. The Court
again ordered the applicant's detention in an institution for mentally
deranged offenders under Section 21 para 1 of the Penal Code, on the
grounds stated in its earlier judgment of 10 January 1979 (cf. paras.
49-50 above). It also relied on new expert evidence showing that the
situation had not essentially changed despite some improvement which
had been brought about by the applicant's psychiatric treatment.
62. This judgment became final on 6 November 1980 as the applicant
withdrew his plea of nullity and appeal. The applicant did so in
writing on 30 October 1980 and confirmed the withdrawal orally at a
hearing on 6 November 1980. By a file note (Endverfügung) of the same
date the judgment was declared to be final (rechtskräftig) and
1 October 1981 was determined as the date for the next annual judicial
review of the detention according to Section 25 para. 3 of the Penal
Code (cf. para. 138 below).
63. The applicant has subsequently contested that he validly
waived his right to appeal. He claims that he only declared it in
view of his intended transfer to Hungary which was also discussed at
the hearing on 6 November 1980. However, the efforts to secure such a
transfer eventually failed. After preparatory steps by the public
prosecutor's office, the Federal Ministry of Justice on 6 March 1981
informed the Court that the Hungarian authorities had not yet reacted.
Subsequently, it informed the Court that the Hungarian authorities had
only consented to allow the applicant's entry. Finally, by a note of
4 January 1983, the Ministry informed the Court that by a letter of
20 December 1982 the Hungarian authorities had refused to enforce the
Austrian court's judgment on their territory.
4. The applicant's detention under Section 21 para. 1
of the Penal Code and its judicial review
a) First review period
-------------------
64. After the Regional Court's judgment had become final on
6 November 1980 (cf. para. 62 above), the applicant continued to be
detained in the psychiatrical hospital of the city of Vienna, in the
same closed department (Ward 23) in which he had earlier been.
65. On 3 December 1981 an officer of the closed department
reminded the Court that the annual review of the lawfulness of the
applicant's detention under Section 25 para. 3 of the Penal Code,
fixed for 1 October 1981 (cf. para. 62 above), was overdue. According
to a file note of 11 December 1981 the file was transmitted to the
judge only on this date. The judge asked the psychiatric hospital for
a report on the applicant.
66. On 8 February 1982 the Regional Court maintained the detention
order under Section 21 para. 1 of the Penal Code on the ground that
the applicant continued to be a dangerous person as confirmed by the
report of the psychiatric hospital. The applicant did not appeal
against this decision.
b) Second review period
--------------------
67. In July, September and October 1983, the applicant requested
his release, observing that no decision ordering his continued
detention had been taken within the statutory one year time-limit,
which had expired on 8 February 1983. Following the application of
13 July 1983, the Court requested the return of the file from the
public prosecutor's office where it had been since 2 May 1983.
Following the application of 19 September 1983, the Court urged the
psychiatric expert, to whom the file had been sent on 11 August 1983,
to submit his comments on the necessity of further psychiatric
treatment (Nachbehandlung). The report was submitted on 22 October
1983 (see para. 110 below).
68. On 14 February 1984 the Court of Appeal, acting upon a
hierarchical appeal (Dienstaufsichtsbeschwerde) by the applicant,
directed the Regional Court to take its decision as quickly as
possible.
69. Two days later, on 16 February 1984, the Regional Court
ordered the applicant's continued detention. It found that, according
to the report of the psychiatric hospital (cf. para. 112 below), the
applicant's state of mental health had not essentially changed. His
paranoia querulans could not be stopped even with modern medical
treatment. He still continued to write vexatious complaints without
the consent of his guardian whose appointment he did not accept, and
if released he would presumably raise numerous claims. At the same
time, it could not be predicted whether he would carry out any of the
threats previously uttered in particular against the prison staff.
After his release he would certainly refuse to undergo any treatment
which, however, was absolutely necessary. The applicant's behaviour
without the sedative effect of this treatment could not be predicted.
The danger requiring his detention thus continued to exist.
70. The applicant's appeal (Beschwerde) against this decision was
rejected by the Vienna Court of Appeal on 4 April 1984. It considered
that the Regional Court had reached the correct conclusions on the
basis of the very detailed expert opinion of the director of the
psychiatric hospital and a supplementary report by another psychiatrist.
There was thus no basis for a conditional release under Section 47
para. 2 of the Penal Code (cf. para. 139 below).
c) Third review period
-------------------
71. On 6 June and 23 September 1984 the applicant submitted
new requests for his release. He was eventually released on
28 November 1984 following a decision of the Regional Court of
14 November 1984. On the basis of an expert opinion obtained on 14
September 1984 the Court found no essential improvement of the
applicant's state of health. His paranoia querulans had even developed
by acquiring a political component after the treatment with injections
had been discontinued, and he still uttered serious threats. However,
the querulous behaviour was primarily concerned with the detention
(Haftquerulanz). The vexatious litigation (Rechtsquerulanz) was only a
secondary phenomenon, which would probably remain after a release, but
vexatious complaints, petitions etc. did not constitute a danger
within the meaning of Section 21 of the Penal Code. The querulous
behaviour concerning the detention would cease in the case of release.
A genuine aggressiveness had been observed only on rare occasions
since the commission of the offences which had led to the applicant's
detention. The applicant would probably seek to redress the wrong
allegedly or even in reality done to him first of all by querulous
complaints. While it could not be excluded that he would become
aggressive in the case of frustration, there was from the psychiatric
point of view no acute danger that he would commit criminal offences
with grave consequences because of his abnormal personality. A
conditional release was therefore now possible. A further psychiatric
treatment or treatment by drugs was no longer considered necessary by
the expert, although it was recommended.
5. Medical treatment
a) Situation until the summer of 1979
----------------------------------
72. Already in November 1976 the applicant's guardian had
suggested that the applicant should be subjected to compulsory
psychiatric treatment in order to prevent vexatious complaints.
73. Following an incident in the special prison of Mittersteig on
17 December 1976, the applicant's transfer to the psychiatric hospital
of Vienna was ordered on 20 December 1976, on the grounds that he
suffered from a detention psychosis and was dangerous to himself and
others (Selbst- und Gemeingefährlichkeit). He apparently remained in
the psychiatric hospital from 22 to 27 December 1976.
74. After a hunger-strike and an incident in which a prison
officer was injured, the applicant was again transferred to the
psychiatric hospital of Vienna from 22 to 27 December 1977. At his
arrival he was highly agitated. On 22 and 23 December 1977 he was
treated with sedatives (Taractan i.m. and Dapotum D i.m.). He
subsequently complained that he had been treated with sedatives
against his will.
75. Finding increased aggressiveness the Vienna Regional Court
on 20 June 1979 ordered four weeks' detention in a security cot
(Gitterbett). The applicant was transferred to the psychiatric
hospital of Vienna from 29 June to 23 July 1979 (cf. para. 52 above).
According to the Government he was not actually kept in a security cot
although that had been authorised by the Court, and he was not given
any medicaments. He refused to take a medicament offered to him in
order to raise his blood pressure.
b) Hunger-strike and transfer to the psychiatric hospital
------------------------------------------------------
76. Upon his return to the Regional Court's prison, the applicant
on 2 August 1979 began another hunger-strike to protest against his
continued detention and deprivation of his files. He had a complete
breakdown on 28 August 1979 and was transferred to a hospital for
intensive medical treatment.
77. The applicant was transferred to the closed department
for mentally deranged offenders of the psychiatric hospital of
Vienna on 10 September 1979. He remained there until his release
on 28 November 1984 (cf. para. 54 above).
78. At his arrival, the applicant was found to show increased
symptoms of querulous behaviour and paranoid ideas, as compared to his
earlier periods of detention in the psychiatric hospital.
79. In view of his bad physical condition, which was due to his
hunger-strike, the director of the department on 12 September 1979
ordered the applicant's compulsory feeding pursuant to Section 8 of
the Hospitals Act.
80. Subsequently the applicant refused any medical examination and
treatment. He showed high tension and refused contacts with anybody.
He was given sedatives against his will (3 times 30 mg Taractan i.m.).
On 14 and 15 September 1979 he was detained in a security cot which
he damaged by cutting through the net and belts. Compulsory feeding
was administered through infusion.
81. Because of beginning infiltrations, the earlier sedation
treatment was replaced on 17 September 1979 by a depot treatment
with another neurolepticum (Sordinol i.m.).
82. On 19 September 1979 the applicant declared to be ready to
stop his hunger-strike under certain conditions (recognition as a
normal remand prisoner, single cell, return of his files, forwarding
of his mail, provision of writing utensils). As not all of these
conditions were fulfilled, he continued his hunger-strike.
83. On 24 September 1979 the applicant declared himself ready to
accept infusion treatment by certain doctors. A part of his files
was returned to him, but could not be kept in his room. On
27 September 1979 the applicant was transferred to a single room as
requested by him and he stopped his hunger-strike. On the same day
the above depot neurolepticum Sordinol i.m. was again administered to
him.
84. On 1 October 1979 the applicant refused a medical examination
because he was not recognised as a normal remand prisoner. He
threatened to start a new hunger-strike.
c) New hunger-strike and compulsory treatment and feeding
-----------------------------------------------------
85. On 26 November 1979 the applicant began a new hunger-strike
which he continued on 28 November although he was allowed to wear his
private clothes and have a radio. On 4 December 1979 it was recorded
that he was in good physical condition despite the hunger-strike. He
had sugar, fruit and fruit juice in his room. His physical condition
was constantly supervised by medical examinations including blood tests.
86. On 13 December 1979 the applicant declared his consent to
feeding through a tube (Sondenernährung). The applicant contests that
this declaration was valid as it was apparently considered necessary
at that time also to obtain the consent of the guardian. On 14 or
16 December 1979 his guardian gave his consent in writing to a
compulsory treatment which might become necessary. The applicant
contests that the guardian was authorised to do so since his functions
were limited to the area of the assertion of the applicant's rights
(cf. para. 30 above). Moreover, he contests that the guardian's
consent could cover any kind of compulsory treatment throughout the
subsequent period until the applicant's release.
87. On 14 January 1980 it was recorded that the applicant appeared
more dysphoric and aggressive than before. He was fed once a day
through a tube, but accepted this treatment only by one female doctor
so that he could not be fed when she was not present. In view of the
deterioration of the applicant's mental and physical conditions, it
was decided to subject him to compulsory treatment with medicaments by
which he would be brought into a state of somnolence (Dämmerschlaf)
making possible his treatment with infusions. It was feared in view
of his bad physical condition that sedative treatment would involve
greater risks.
88. On 15 January 1980 the applicant was injected 90 mg Taractan
i.m. against his will. According to the Government he vehemently
opposed the treatment, damaged the door of his cell and armed himself
with a club. An emergency squad of the Regional Court's prison was
called to overwhelm him. A knife and a knuckleduster were found
hidden in the cell.
89. The applicant contests the Government's description of this
incident. According to him there was no other furniture in his cell
than a bed. He had no hard shoes or other objects with which he could
have damaged the door. Several wardens came to the cell to administer
an injection to the applicant as ordered by the department's director.
Since the applicant refused the injection, the wardens tried to
overwhelm him and in the ensuing altercation one of the wardens fell
against the door of the cell, following which the wardens left. After
a while an officer of the emergency squad, wearing a helmet and a gas
mask and armed with a truncheon, came to see the applicant and asked
him whether he still objected to having the injection. The applicant
persisted in his objections. The officer of the emergency squad left
the cell and three tear gas grenades were thrown through the slit of
the door. After ten minutes ten officers of the emergency squad
entered and hit the applicant with their truncheons. The applicant
became unconscious and when he regained consciousness he found himself
on the stone floor of the cell. During the night he developed a high
temperature which developed into pneumonia and nephritis. A doctor
was called during the night who ordered his immediate transfer to the
department for intensive care of the psychiatric clinic. The
applicant does not know whether this transfer took place on 15 or
18 January 1980.
90. According to the Government the transfer took place on
18 January 1980. The applicant was given penicillin and Binotal to prevent
pneumonia, and subjected to close medical observation (change of
position, control of vital functions, prophylaxis of decubitus, check
of liquid). According to the applicant he was unconscious during the
first seven days in the department for intensive care and had not
fully recovered on 30 January 1980, the date when he returned to the
closed department. The Government state that the treatment with
antibiotics and neuroleptics was continued after this date.
91. The Government submit that because of the danger of aggression
the applicant was handcuffed and fettered with a belt around the
ankles. On 31 January he refused prophylactic treatment for decubitus.
In view of a danger of a paralysis of nerves the handcuffs were fixed
in different places at regular intervals. On 2 February 1980 an
attempt was made to remove the fetters. However, the applicant became
agitated about an injection and threatened to kill doctors and nurses.
Therefore the fetters were fixed again. On 11 February 1980 a medical
examination revealed that there was no need for further antibiotic
treatment which was stopped. In view of a high level of uric acid
the applicant was given Urosin and subjected to a blood test. On
12 February 1980 the applicant accepted being fed by a female doctor.
Neuroleptics were reduced to 3 times Haldol i.v. During the following
days the applicant drank water and sweetened tea, he did not refuse
injections. On 14 February 1980 the handcuffs were removed and a depot
neuroleptic (Sordinol i.m.) administered to the applicant.
92. The applicant contests the Government's description. According
to him there were additional belts around his thighs and stomach. The
fetters were not even temporarily removed until 14 February. They
were put in another position for the first time on 2 February because
of signs of paralysis of his arms and legs. He also continued his
hunger-strike during this period. He was artificially fed and did not
eat yoghurt or drink tea. On 12 February he expressly declared he
would continue his hunger-strike as long as his files were not
returned and he was not given writing utensils in order to exercise
his rights of defence.
93. On 19 February 1980 it was recorded that the applicant had
somewhat calmed down, and although he continued to use insulting
language, he was prepared to communicate with others. He drank
sufficiently and ate yoghurt. On 22 February 1980 the applicant was
much more cooperative. He was not fettered and was given paper and a
ballpoint pen. On 27 February 1980 the dosis of Haldol i.v. was
reduced.
94. On 26 March 1980 the applicant was cooperative at the medical
examination, he no longer insulted the doctors and the nurses. On
18 April 1980 the applicant continued to be cooperative, made insulting
remarks only on the director of the department, and continued to
accept feeding by a female doctor.
95. On 15 June 1980 the applicant was described as calm and
friendly, he was on good terms with the hospital staff, watched
television and took walks in the garden. He continued to be
stubbornly opposed to the director of the department. This state
of affairs had not changed on 5 August 1980. The applicant contests
that after 15 June 1980 he was allowed to watch television or walk in
the garden. There was no television set in his cell nor was there a
garden. There was a courtyard of 10 x 4m which, according to him,
only the other patients were allowed to use.
96. In October 1980 it was recorded that the applicant received
every second week the depot neuroleptic Sordinol. Twice a week he
was fed through a tube by a particular female doctor.
97. In November 1980 it was recorded that the applicant had gained
10 kg of weight during the last ten months. The Government infer
therefrom that the applicant's hunger-strike was not genuinely pursued,
because such a gain of weight would not have been possible on the
basis of feeding through a tube twice a week. In the Government's
submission this feeding was more like a ritual conceded to the
applicant in order to calm him down.
98. The applicant claims that his gain of weight can be explained
by the administration of the neurolyptic Sordinol, which has a
bloating effect. The applicant contests that he was only simulating a
hunger-strike. He was given two litres of pulpy food each time he was
fed through the tube and did not eat anything apart from that.
99. Towards the end of the year 1980 new difficulties arose in
connection with the applicant's correspondence. On 27 December 1980
he was sanctioned by temporary withdrawal of the benefit of watching
television. His treatment with neuroleptics remained the same. Only
in the summer of 1981 it was reduced to one dosis of Sordinol every
three weeks.
100. The applicant submits that the new difficulties with his
correspondence were related to the compulsory administration of
neuroleptic drugs. In view of the fact that physical resistance had
turned out to be impossible and had repeatedly led to injuries of the
applicant (loss of teeth, broken ribs and bruises), he adopted a new
method of resistance, declaring a verbal protest each time against the
medication and writing complaints that the wardens thereby committed
an offence of bodily injury. The relevant correspondence fills six
Leitz files of such complaints (partly written on wrapping paper)
which apparently were not forwarded to the competent authorities.
They were returned to the applicant after his release.
101. On 13 April 1981 it was recorded that the applicant from time
to time ate half a portion of his meals at lunchtime or in the
evening. On 29 May 1981 he still did not regularly eat the meals
offered to him by the psychiatric hospital, but it appeared that he
ate food brought by visitors and therefore was sufficiently
nourished. He continued to be fed twice a week through a tube by a
particular doctor.
102. On 9 July 1981 an altercation took place between the applicant
and hospital staff.
103. On 31 July 1981 it was recorded that he demonstratively
refused food when the doctor responsible for him was absent, but that
he was sufficiently nourished. The feeding through a tube twice a
week continued. Also there were therapeutical discussions with his
doctor twice a week.
104. On 16 March 1982 it was recorded that the applicant now ate
regularly, but continued to insist on being fed through a tube, thus
demonstrating that, in principle, he still maintained his hunger-strike.
He was kept in a single room and had his own radio. He could also use
the television of the department in which he was the only detainee at
that time. He refused routine blood tests.
105. On 12 November 1982 the applicant was occupied in a workshop
of the hospital as a basket-maker. He told the visiting doctor that
he no longer needed artificial feeding.
106. The applicant contests that he spontaneously declared that
he would terminate his hunger-strike. He did so only after a
conversation with a doctor who explained to him that his health had
already suffered considerably as a result of the hunger-strike (loss
of teeth and hair, damage to his liver and stomach) and that its
continuation would endanger his life.
d) Preparation of release
----------------------
107. On 11 December 1982 the applicant had a long conversation with
the director of the department in which the future neuroleptic
treatment was discussed. The applicant refused treatment by oral
medicaments as proposed by the director. As from 3 January 1983 the
depot injections were reduced to a double dosis of Sordinol every four
weeks, and as from 31 January 1983 to one dosis every four weeks.
108. On 5 March 1983 a psychiatric expert submitted a report
according to which a conditional release of the applicant could be
considered under certain circumstances. His behaviour had
considerably improved during the last months and it could be assumed
that his initial dangerousness had for the most part disappeared. It
was however necessary to take measures for his future life outside the
psychiatric hospital, such as putting him on an open prison regime,
finding him a place to live and work, and probationary assistance.
Some psychiatric observation was considered indispensable.
109. As from the summer of 1983 querulous behaviour of the applicant
was again observed in connection with his correspondence. This was
referred to in a letter of 28 July 1983 in which the Regional Court
informed the psychiatric hospital that it considered ordering the
applicant's conditional release and asked whether he would accept
subsequent psychiatric treatment. On 16 April 1983 it was recorded
that the applicant had recently made numerous complaints which were
apparently smuggled out of the closed department, and later in the
autumn, that he had started to instigate other patients to querulous
behaviour. On 7 November 1983 the dosis of Sordinol was doubled. In
December an altercation took place with another patient.
110. A new psychiatric expert opinion was submitted to the Regional
Court on 22 October 1983. It observed that the querulous behaviour as
such did not indicate a particular dangerousness as required by
Section 21 of the Penal Code. The applicant's behaviour had
considerably improved, his actual aggressiveness having stopped long
ago. The expert agreed with the psychiatric hospital that it would
not be advisable to order compulsory injections after the applicant's
release. But he considered a psychiatric supervision without
medication indispensable.
111. In January 1984 it was recorded that the applicant did not
resist the depot injections administered to him while declaring that
they were made against his will.
112. In a letter of 25 January 1984 the director of the closed
department informed the Regional Court that in a case of paranoia
querulans it was not possible to achieve essential changes even by
medical treatment with modern means. The patients were not accessible
to psychotherapy, and medication as administered to the applicant
during the last years could only lead to a general sedation, thus
preventing incidents and aggressive behaviour such as had been
observed in the applicant years ago in the special prison of
Mittersteig, in the Regional Court's prison and also in the
psychiatric hospital. It could not be expected that the medication
would influence his psychogene delusions and accordingly that had
never been a realistic aim of the hospital's therapy. But it was
probably due to the medication that during the last years no further
acts of aggressiveness had occurred. Aggressive acts in the future
could not be excluded in the light of the applicant's earlier
behaviour. In these circumstances his conditional release did not
appear appropriate. On the basis of this report the Regional Court
refused conditional release on 16 February 1984 (see para. 69 above).
113. In a letter to the applicant's guardian of 3 April 1984 the
director of the psychiatric hospital commented on complaints by the
applicant raised in a letter of 19 January 1984 according to which
inappropriate and brutal force had been used when administering the
depot injections to him. However, neither the medical reports, nor
the diary (Rapportbuch) of the department nor the answers of the
responsible doctors who had been questioned showed any indication of
the actual use of inappropriate and brutal force.
114. On 30 April 1984 the medication was reduced to one dosis of
Dapotum D. On 4 May 1984 reference was made to a simulated tremor during
the medical visits, which however disappeared when the applicant felt
unobserved. He could work normally. On 22 May 1984 the medication
was stopped.
115. On 4 July 1984 the question of the applicant's psychiatric
treatment after his release was discussed with him.
116. In the summer of 1984 a number of difficulties arose
concerning the handling of the applicant's mail. The applicant showed
a querulous behaviour concerning this and other issues. He stopped
his work therapy after his guardian had seized the applicant's
remuneration (3,900 AS) for the purpose of covering his fees.
117. On 19 September 1984 a new expert opinion was submitted to
the Regional Court which finally led to his conditional release on
28 November 1984 (cf. para. 71 above).
6. Control of correspondence
118. Throughout his detention the applicant conducted
correspondence on an extremely large scale, including private and
business letters and first of all letters, petitions and complaints
addressed to various authorities in connection with the numerous
proceedings in which he was involved or which he wished to institute,
and also concerning his treatment during his detention, including the
medical treatment and the handling of his correspondence.
119. In their attempts to reduce the flood of correspondence the
authorities resorted to different measures, including temporary
restrictions on the use of writing material. Thus the applicant's
first letter to the Commission of 27 November 1978 was written on
brown paper bags and the applicant stated that he had been refused
other paper and had also complained of this to the Ministry. Most of
the applicant's subsequent letters to the Commission were according to
him smuggled out under circumvention of the prison rules because he
did not get sufficient writing material or permission to write.
120. As regards delivery of correspondence, the applicant also
encountered difficulties on numerous occasions, both concerning the
incoming and outgoing mail. The applicant was repeatedly advised
of the applicable provisions of the Criminal Law Enforcement Act
(Strafvollzugsgesetz), in particular that letters must be submitted in
unsealed envelopes, that they must be correctly addressed and that he
must pay the postage. He was also advised repeatedly that it was
inadmissible to request an authority other than the prison, e.g. the
Ministry of Justice, to forward letters to other addresses on his
behalf. Such letters were regularly returned to him.
121. The payment of postage developed into a special issue of
confrontation with the authorities. The applicant claimed that he was
unable to pay postage from the money available to him for this purpose
(Eigengeld), and that the postage must therefore be paid by the
State. However, the authorities did not accept this view and
frequently refused to forward letters without stamps. On 27 January 1977
the Ministry of Justice confirmed that the postage was, in principle,
to be paid by the applicant from his own money, and that letters
without postage should not be accepted for transmission. Only letters
addressed to authorities competent for criminal matters were to be
forwarded through the official channels.
122. It appears that in practice letters addressed to
authorities and courts were in fact transmitted to them, despite the
applicant's failure to pay postage, while other letters without
postage were returned to the applicant. The applicant nevertheless
consistently maintained his practice of submitting letters without
postage. He continued to do so even after his release and he has also
posted letters to the Commission without stamps on numerous occasions.
Some were returned and when the applicant refused to pay additional
postage they were retained by the Post Office and not handed back to
him.
123. During his detention on remand after 13 May 1977, the
applicant's mail was in principle subject to control by the
investigating judge under the relevant provisions of the Code of
Criminal Procedure (cf. para. 144 below). However, when the applicant
was detained in the psychiatric hospital of Vienna, special
arrangements were made for the control of his mail. The hospital
concluded an agreement with the applicant's guardian according to
which the applicant's letters were no longer directly transmitted to
the addressees, but collected and from time to time sent to the
guardian, who then decided whether they should be forwarded or not.
Only letters addressed to the guardianship court and concerning the
guardian as well as letters addressed to the applicant's defence
counsel were excepted. This practice was apparently maintained until
the applicant's release in November 1984.
124. The applicant claims that despite the above arrangements many
letters were not even forwarded to the guardian. This concerns, in
particular, many letters and complaints which he wrote concerning
his compulsory medical treatment (cf. para. 100 above). The originals
of these documents, which fill six Leitz files, were returned to him
after his release, together with a large number of other documents
including some 50 sealed letters, as part of the applicant's personal
belongings (Effekten). The mailing books concerning the relevant
period, which were also handed to him on this occasion, show that the
letters in question had not been transmitted to the competent
authorities, i.e. the police, the public prosecutor's office or the
courts.
7. Restriction of access to information
125. The applicant claims that during considerable periods of his
detention he was not allowed to receive generally accessible
information in the form of books, newspapers and journals or by
listening to the radio or watching television.
126. The Government admit that there were restrictions which,
however, were of relatively short duration each time. They submit
that after November 1979 the applicant was regularly allowed to listen
to radio programmes and, after May 1980, watch television. The
permission to listen to the radio and watch television was temporarily
withdrawn on 15 January 1980, and the permission to watch television
was again withdrawn on 27 December 1980 as a disciplinary measure.
127. According to the applicant the restrictions in question lasted
much longer, in particular the restriction imposed on 15 January 1980
also covered the receipt of books and newspapers and was maintained
until the end of February 1980. The restriction of the right to watch
television on 27 December 1980 continued for some time after this
date. After 15 June 1981 it was not possible for him to watch
television because there was no television set in his cell or in the
ward.
128. The applicant states that the various restrictions were
generally imposed by the medical staff of the ward at their
discretion, purportedly for therapeutical reasons but in fact as a
kind of disciplinary measure.
129. The Government submit that the measures in question were based
on Section 51 of the Hospitals Act (cf. para. 151 below) and justified
for therapeutical reasons. The applicant claims that Section 51 of
the Hospitals Act is not sufficiently precise to allow an effective
control of the measures in question.
B. Relevant domestic law
1. Deprivation of liberty
a) Detention on remand
-------------------
130. The conditions for imposing detention on remand are regulated
in Section 180 of the Code of Criminal Procedure (Strafprozessordnung).
Insofar as relevant, this provision, at the time it was applied in the
applicant's case, read as follows:
"(1) Detention on remand may be imposed only if the
accused is gravely suspected of having committed a
particular crime or misdemeanour, if one of the
grounds for detention under paras. 2 or 7* below is
established and if the investigating judge has
already heard the accused on the substance of the
case and on the conditions for detention on remand.
(2) Apart from the cases mentioned in para. 7*, the
imposition of detention on remand requires the
existence of a risk, based on particular facts, that
the accused, if left at liberty, will
1. escape or hide because of the severity of the
expected sentence or for other reasons (danger of
absconding);
2. ...
3. repeat the offence (danger of recidivism) or
carry out an attempted or threatened offence (danger
of execution).
(3) Unless the accused has already taken preparatory steps
for escaping, a danger of absconding may not be assumed
if he is suspected of an offence carrying a legal
maximum sentence of not more than five years and if he
is living in orderly circumstances and has a fixed
abode in the country.
(4) Detention on remand may not be ordered or maintained
... in the cases of para. 2 ..., if the purposes of
detention can also be achieved by one or more of less
severe measures ..."
____________
* Para. 7 not reproduced as not applicable in the present case
_________________
131. Under Section 193 of the Code of Criminal Procedure all
authorities involved in the criminal proceedings are obliged to ensure
that the detention on remand will last as shortly as possible. It
shall be lifted as soon as the conditions justifying it no longer
exist or if its length is manifestly disproportionate to the sentence
expected.
132. Section 193 further regulates the maximum length of
detention on remand. As a rule it shall not exceed six months, but
this time-limit can be extended under certain conditions. Since
1 July 1983 these time-limits run until the opening of the trial
(Section 193, paras. 3 - 5 in the 1983 version), but previously they
were only fixed until the date when the indictment became final
(Section 193, para. 2 in the 1971 version).
133. Under Section 194 there shall be regular judicial review of
the continued necessity of detention on remand until the date when the
indictment becomes final. After this date there is no regular
review, but the accused may request his release at any time. It is
for the Review Chamber to decide on such requests in the procedure
under Section 195 of the Code. The Review Chamber's decision can be
challenged before the Court of Appeal (Section 196).
134. At the trial, the decision on continued detention on remand is
to be taken by the trial court (cf. Section 194 para. 4).
b) Provisional detention in an institution
for mentally deranged offenders
---------------------------------------
135. Detention on remand can under the Code of Criminal Procedure
be carried out as provisional detention in an institution for mentally
deranged offenders in two cases, regulated in Section 429 paras. 4 - 5
and Section 438 respectively.
136. These provisions read as follows:
Section 429
"(4) Where any of the grounds for detention referred to in
Section 180 paras. 2 or 7* exists, [and] where the person
concerned cannot remain at liberty without danger to himself
or others or where his medical observation is required, his
provisional detention in an institution for mentally deranged
offenders or his committal to a public hospital for mental
diseases shall be ordered. Such hospitals must accept the
person concerned and must take the necessary steps to confine
him. The cost of hospitalisation shall be borne by the
federal authorities.
(5) The decision on the admissibility of the provisional
detention is to be taken upon request or ex officio by
analogous application of Sections 113, 114 and 194 - 196**.
The provisions on the execution of preventive measures in
an institution for mentally deranged offenders shall,
mutatis mutandis, apply to the provisional detention in
such an institution."
_______________________________
* See para. 130 above.
** See para 133 above.
______________________________
Section 438
"If there are sufficient reasons to assume that the
conditions of Section 21 para. 2 ... of the Penal Code*
are met and if there exist grounds for detention
(Section 180 paras. 2 or 7**) while the accused cannot
be detained without difficulty in a remand prison of a
court, a decision shall be taken ordering the execution
of the detention on remand by provisional detention in
an institution for mentally deranged offenders ... In such
cases the provisions on the execution of the preventive
measure in question shall, mutatis mutandis, be applied
to the execution of the detention on remand."
c) Preventive detention in an institution
for mentally deranged offenders
--------------------------------------
137. Section 21 of the Penal Code reads as follows:
"(1) If a person commits an offence carrying a legal
minimum sentence of more than one year's imprisonment
and if he cannot be punished for the sole reason that
he has committed this offence in a state of mind
involving a mental or emotional disturbance of serious
degree which excludes his criminal responsibility
(Section 11), the Court shall commit him to an
institution for mentally deranged offenders if it
must be feared, having regard to his state of mind
and the kind of his offence, that he might otherwise
commit a criminal offence with serious consequences
under the influence of his mental or emotional
disturbance.
(2) If there is such a fear, a committal to an
institution for mentally deranged offenders shall also
be ordered concerning a person who, under the influence
of a mental or emotional disturbance of serious degree
not excluding his criminal responsibility, has committed
a criminal offence carrying a legal minimum sentence of
more than one year's imprisonment. In such a case the
committal shall be ordered together with the pronouncement
of the sentence."
_______________________________
* See para. 137 below.
** See para. 130 above.
_________________________________
138. The duration of preventive measures is regulated in Section 25
of the Penal Code as follows:
"(1) Preventive measures shall be ordered for an
indeterminate period. They shall be enforced as long
as this is necessary having regard to their purpose ...
(2) It is for the court to decide on the termination of
preventive measures.
(3) The court shall examine ex officio at least once each
year whether the detention in an institution for mentally
deranged offenders ... is still necessary."
139. Section 47 of the Penal Code further provides:
"Release of persons committed to an institution for
mentally deranged offenders shall always be conditional
subject to a probationary period ...
The conditional release from a preventive measure
involving deprivation of liberty shall be ordered where
it must be assumed that the dangerousness which prompted
the imposition of this preventive measure no longer exists,
having regard to the behaviour and development of the
detainee in the institution, his personality, his state of
health, his earlier life and the probability of his leading
a normal life in future."
140. Under Section 51 of the Penal Code the Court may issue
instructions to a person conditionally released from a preventative
measure, including the instruction to undergo a psychotherapeutic
or medical treatment (para. 3).
2. Conditions of detention
a) Regime applicable to remand prisoners
-------------------------------------
141. The conditions of detention applicable to remand prisoners are
regulated in the Code of Criminal Procedure (Strafprozessordnung).
However, concerning matters on which no special regulation is
contained in this Code, its Section 183 generally refers to the
provisions of the Criminal Law Enforcement Act (Strafvollzugsgesetz)
on the execution of prison sentences up to one year.
142. Section 184 of the Code of Criminal Procedure stipulates:
"Detention on remand serves to prevent the dangers referred
to in Section 180 para. 2*. Having regard to the statutory
_____________________________
* See para. 130 above.
______________________________
provisions and regulations based thereon, remand prisoners
shall be subjected only to such restrictions as serve to
achieve the purposes of the detention and to maintain the
security and order of the prison. Remand prisoners shall
be treated with calm, seriousness and determination; the
treatment shall be just and respect their sense of honour,
human dignity and shall interfere as little as possible
with their personality."
143. The detention on remand is normally carried out in the prison
of the competent court (Section 185), if possible in a single cell
(Section 186 para. 1). Under Section 188 it is for the prison
governor and the prison officers delegated by him to determine
the conditions of detention (in some cases after having heard the
investigating judge). Decisions concerning the contacts of the
prisoner with the outside world are, however, reserved to the
investigating judge (cf. para. 144 below).
144. Certain specific rights of remand prisoners are regulated in
Section 186 of the Code. They include, inter alia:
- the right to have objects in their cell apart from those
left to them on admission to the prison, provided that no abuse is to
be feared and that supervision is possible without interfering with the
order of the prison (Section 186 para. 3);
- the right to self-financed facilities and occupations (e.g.
books, radio and television) which are compatible with the purposes of
detention and do not interfere with the order and security of the
prison (Section 186 para. 4);
- the right to receive newspapers and journals; individual
issues or parts may be withheld only if they could endanger the
investigation or the order or security of the prison (Section 186
para. 6).
145. The remand prisoners' right to correspondence is regulated in
Sections 187 - 188 of the Code in the following terms:
Section 187
"(1) Notwithstanding the provisions in Section 45 of this
Code* and in Sections 85 and 86 of the Criminal Law
Enforcement Act** remand prisoners may correspond with
and receive visits from all persons who are not likely to
prejudice the purpose of the detention on remand.
______________________________
* Contacts with the defence counsel.
** Visits of priests and correspondence with authorities
and legal representatives - see para. 148 below.
____________________________
(2) No limitations shall be placed on correspondence unless
the surveillance is jeopardised by the exceptional volume
of the correspondence of a remand prisoner. In this case,
such limitations may be ordered as are necessary for correct
surveillance. Correspondence which is likely to prejudice
the purpose of detention shall be withheld, save provisions
to the contrary in Sections 88 and 90 para. 4 of the
Criminal Law Enforcement Act on correspondence with
authorities and legal counsel. Letters from remand prisoners
which give rise to the suspicion that through them an offence
is being committed, which is not an offence which must be
investigated solely at the request of one of the parties
concerned, shall be withheld at all times save when they are
addressed to a national general representative body, a
national court or other national body or to the European
Commission of Human Rights."
Section 188
"(1) The decision on the question with which persons the
remand prisoners may correspond and from whom they may
receive visits and all other orders and decisions concerning
the contact of remand prisoners with the outside world
(Sections 86 - 100 of the Criminal Law Enforcement Act*),
except the control of parcels, are the task of the
investigating judge. Exceptions from the control of
correspondence are permissible only if no interference
with the purpose of detention is to be feared."
b) Regime applicable to detainees in institutions
for mentally deranged offenders
----------------------------------------------
146. The conditions of preventive detention in special institutions
such as institutions for mentally deranged offenders are regulated in
the Criminal Law Enforcement Act (Sections 157 et seq.).
147. The aim of the detention is the prevention of criminal
offences committed under the influence of the mental or emotional
disturbance of the person concerned, and the improvement of his state
of mind so that the commission of such offences must no longer be
feared (Section 164). To this end, and having regard to the
detainee's state of mind and the necessity to maintain order and
security in the institution, he shall be treated according to
recognised principles of psychiatry, psychology and pedagogy (Section
165 para. 1 sub-para. 1, first phrase). He shall receive medical (in
particular psychotherapeutic and psychohygienic) and educational
care according to his state of mind (Section 166 para. 2).
_____________________________
* See para. 148 below.
_____________________________
148. Except express stipulation to the contrary, the provisions
concerning convicted prisoners also apply, mutatis mutandis, to
detainees of the special institutions (Section 167 para. 1). This
includes, inter alia, detailed regulations on
- the right to the necessary medical treatment
(Sections 66 et seq.) and compulsory medical
treatment and feeding (Section 69);
- the right of access to information by books, journals,
newspapers, radio and television (Sections 58 et seq.);
- the right to correspondence including correspondence
with relatives, other persons, lawyers, courts and other
authorities, representative bodies, the ombudsman's office,
the Commission, and, in the case of a foreign national, his
consulate (Sections 86 et seq.);
- the right of complaint (Sections 119 et seq.). Prisoners
have the right to make applications concerning the conditions
of their detention (Section 119) and the right to complain
of acts of the prison staff which they claim violate their
rights (Section 120). There is a normal complaints procedure
before the prison governor, or if the complaint is directed
against him, before the Federal Ministry of Justice
(Section 121), subject to review by the Administrative
and Constitutional Courts (Articles 130 and 144 of the
Federal Constitution), and a hierarchical appeal to the
supervisory authorities, i.e. as a rule the Federal Ministry
of Justice (Section 122). Complaints concerning medical
treatment can only be raised by way of hierarchical appeal
(Section 120 para. 1, second sentence). In distinction from
the normal complaints procedure, the hierarchical appeal does
not give rise to a right to an administrative decision
(Section 122, second sentence).
149. The detainees of special institutions for mentally deranged
offenders have some additional rights, but on the other hand their
rights may be restricted to a higher degree than those of convicted
prisoners. In this respect, Section 165 para. 1 sub-para. 1 of the
Criminal Law Enforcement Act stipulates the following (phrases 2 - 4):
"The rights of the detainees which correspond to the rights of
convicted prisoners, as laid down in Sections 20 to 129, may
be restricted only insofar as this is absolutely necessary
(unerlässlich) for the above aims*. The rights of the
detainees, which correspond to the rights guaranteed to
convicted prisoners under Sections 119 to 122**, and the
human dignity of the detainees may not be interfered with.
_____________________________
* Cf. para. 147 above.
** Rights of complaint, see para. 148 above.
______________________________
However, complaints which are obviously raised exclusively
as a result of the detainee's mental or emotional disturbance
and which do not go back to an actual interference with his
rights shall be dismissed (zurückzulegen) without a formal
procedure."
c) Regime applicable to detainees in the closed ward
of a public hospital
-------------------------------------------------
150. Until the opening of special institutions for mentally
deranged offenders, Article III para. 1 sub-para. 1(a) of the Criminal
Law Enforcement (Adaptation) Act (Strafvollzugsanpassungsgesetz 1974)
imposed the obligation on public hospitals for the mentally ill to
admit and detain persons against whom a measure under Section 21
para. 1 of the Penal Code had been pronounced, or whose provisional
committal under Section 429 para. 4 of the Code of Criminal Procedure
had been ordered. On the basis of this provision the applicant was
detained in Ward 23 of the Psychiatric Hospital of Vienna.
151. In this hospital, the applicant's detention was governed by the
Hospitals Act (Krankenanstaltengesetz 1948), the relevant provisions
of which read as follows:
Section 8
"(1) The medical service shall be organised in such a manner
that medical assistance is available at any time immediately
in the hospital.
(2) Patients of hospitals may only be treated medically in
accordance with the principles and recognised methods of
medical science.
(3) Special curative treatments including surgical operations
may be administered to a patient only with the latter's
consent, but where the patient has not yet reached the age
of 18 or where he cannot assess the necessity or usefulness
of the treatment, only with the consent of his legal
representative. Such consent is not required where the
treatment is so urgently necessary that the delay entailed
by obtaining the consent of the patient or his legal
representative or by the appointment of a legal representative
would endanger the patient's life or would entail the danger
of grave damage to his health. The medical director of the
hospital or the physician responsible for the management of
the hospital division concerned shall decide on the necessity
and urgency of a treatment."
Section 51
"(1) Patients who are compulsorily detained in accordance with
the existing provisions may be subjected to restrictions with
respect to freedom of movement or contacts with the outside
world.
(3) Patients subjected to such restrictions to their freedom
of movement or contacts with the outside world may also be
assigned appropriate occupations in the framework of
curative treatment."
152. The applicability of the provisions of the Hospitals Act to
persons committed to an institution for mentally deranged offenders
under Section 21 para. 1 of the Penal Code, who are detained in a
public hospital for the mentally ill, has in 1987 been confirmed by an
amendment to the Criminal Law Enforcement Act (cf. Section 158 para.
3 and Section 167a of that Act in the new version).
3. Provisions on legal incapacitation and the
functions of the guardian
153. The partial legal incapacitation of the applicant pronounced
in 1975 was based on Sections 1 para. 2 and 4 of the Incapacitation
Rules (Entmündigungsordnung 1916). These provisions read as follows:
Section 1 para. 2
"Adults who are unable to care for their own matters but
who, because of a mental disease or a handicap, need the
assistance of a guardian (Beistand) to care for their matters
appropriately, may be declared partially incapacitated."
Section 4
"(1) He who is partially incapacitated is equal to a minor
over 14 (mündiger Minderjähriger) and shall be given a
guardian (Beistand).
(2) ...
(3) The guardian has the rights and duties of a minor's
guardian (Vormund), but the guardianship court may reserve
to the guardian the right to dispose of what the incapacitated
person acquires by his work."
154. The functions of a minor's guardian are circumscribed in
Section 188 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch),
the first phrase of which reads:
"The guardian is primarily called upon to care for the person
of the minor, but he shall at the same time administer the
latter's property."
155. In 1977, the Civil Code provisions on minors were amended
(Neuordnung des Kindschaftsrechts). The following provisions
introduced at that time appear relevant:
- Section 216 stipulating inter alia that it is the guardian's
task to assume the personal care (Pflege) for the minor.
According to Section 146 personal care includes the protection
of the physical well-being and health;
- Section 228 stipulating that the guardian's property
administration shall be governed by the same rules that apply
to parents. According to Section 154 certain important
matters require agreement between both parents or consent by
the guardianship court;
- Section 245 stipulating that the guardian shall represent the
minor and that in the matters referred to in Section 154 he
always requires the consent of the guardianship court.
156. In 1983, the Civil Code provisions on guardianship for
handicapped persons were amended with effect from 1 July 1984
(Federal Act concerning Guardianship for Handicapped Persons -
Sachwaltergesetz). Simultaneously the Incapacitation Rules (cf.
para. 153 above) were abrogated as regards their application to these
persons. By virtue of Article X para. 3 sub-para. 1 of the Amendment
Act the persons who had been declared to be fully or partly
incapacitated were to be treated as if a curator (Sachwalter) had been
appointed for them under Section 273 para. 3 sub-para. 3 of the Civil
Code in the new version. Persons declared to be partly incapacitated
retained the legal capacity of a minor over the age of 14.
157. Section 273 of the Civil Code in the new version reads as
follows:
"(1) Where a person who suffers from a mental illness or is
mentally handicapped is incapable of managing his affairs
without danger of a disadvantage to himself, a curator shall
be appointed for him at his own request or ex officio.
(2) Appointment of a curator is inadmissible if the person
concerned is in a position to take sufficient care of his
matters with the help of others, in particular his family
or public or private institutions for handicapped persons.
A curator may not be appointed for the sole reason of
protecting a third person against the assertion of an even
imaginary claim.
(3) Depending on the extent of the person's handicap and on
the nature and scale of the affairs to be managed, the
curator shall be entrusted
1. with managing specific affairs such as enforcement of
or defence against a claim or entry upon and execution of
a legal transaction,
2. with managing a certain class of affairs such as
administering a part of his property or his entire property,
or
3. with managing all affairs of the handicapped person."
158. Section 282 of the Civil Code in the new version further
provides that the rights and duties of the curator of a handicapped
person shall be the same as those of a minor's guardian and that he
also has to ensure the necessary care for the person, in particular
medical and social care, unless the court orders otherwise.
4. Complaints to the Administrative Court and
the Constitutional Court
159. All acts of the administration can in principle be challenged
before the Administrative Court (Verwaltungsgerichtshof) as to their
lawfulness (Article 130 of the Federal Constitution /
Bundes-Verfassungsgesetz) and before the Constitutional Court
(Verfassungsgerichtshof) as to their constitutionality (Article 144 of
the Federal Constitution). Both constitutional provisions clarify
that a complaints procedure is available not only against formal
administrative decisions (Bescheide) but also against the exercise of
direct administrative compulsion against a particular person (Ausübung
unmittelbarer behördlicher Befehls- und Zwangsgewalt gegen eine
bestimmte Person). The case-law of the above-mentioned courts has
essentially clarified what constitutes an act of direct administrative
compulsion in this sense. However, there is apparently no case-law on
acts of a psychiatric hospital such as those challenged by the
applicant in the present case.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
160. The following complaints of the applicant were declared
admissible by the Commission:
a) that his detention from 27 May 1978 until 9 April 1980
was not justified under Article 5 para. 1 (c) and/or (e)
(Art. 5-1-c, 5-1-e) of the Convention and that, contrary
to Article 5 para. 3 (Art. 5-3), he was not brought to trial
within a reasonable time;
b) that his detention as a person of unsound mind from
9 April 1980 until his release on 28 November 1984 was
not justified under Article 5 para. 1 (e) (Art. 5-1-e);
c) that after 9 April 1980 he was not able to obtain a judicial
review of the continued lawfulness of this detention in
conformity with Article 5 para. 4 (Art. 5-4);
d) that the conditions of his detention, in particular
his medical treatment, amounted to inhuman or
degrading treatment contrary to Article 3 (Art. 3) or to an
unjustified interference with his right to respect for his
private life under Article 8 (Art. 8) of the Convention;
e) that there were violations of his right to respect
for his correspondence (Article 8) (Art. 8) and his right to
receive information (Article 10 (Art. 10) of the Convention); and
f) that there was no effective remedy to challenge the
violations under d) and e) above (Article 13
(Art. 13) of the Convention).
B. Points at issue
161. Accordingly, the issues to be determined are:
a) as regards the deprivation of the applicant's liberty
-----------------------------------------------------
- whether there has been a violation of Article 5 para. 1
(Art. 5-1) of the Convention in that the applicant's
detention on remand
was not justified under sub-paragraph (c) or his detention
as a person of unsound mind was not justified under
sub-paragraph (e);
- whether there has been a violation of Article 5 para. 3
(Art. 5-3) in that the applicant was not brought to trial within
a reasonable time;
- whether there has been a violation of Article 5 para. 4
(Art. 5-4) in that the decisions on the lawfulness of the
applicant's continued detention were not taken speedily and at
reasonable intervals; b) as regards the conditions of the
applicant's detention
------------------------------------------------------
- whether there has been a violation of Article 3 (Art. 3) of the
Convention in that by his compulsory medical treatment,
artificial feeding and isolation the applicant was
subjected to inhuman or degrading treatment;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention in that the applicant's compulsory medical
treatment and his artificial feeding unjustifiedly
interfered with his right to respect for his private life;
- whether there has been a violation of Article 8 (Art. 8) of the
Convention through interferences with the applicant's
right to respect for his correspondence;
- whether there has been a violation of Article 10 (Art. 10)
of the Convention through interferences with the applicant's
right to receive information;
c) as regards the legal remedies available to the applicant
--------------------------------------------------------
- whether there has been a violation of Article 13 (Art. 13) of the
Convention in that no effective remedies were available to
the applicant before the national authorities to assert
his rights under Articles 3, 8 and 10 (Art. 3, 8, 10)
of the Convention.
C. Deprivation of liberty
162. The Commission is called upon to examine the justification
under Article 5 (Art. 5) of the Convention of the applicant's
detention in the time between 27 May 1978 and 28 November 1984 (cf.
final decision on admissibility, Appendix III).
163. Insofar as relevant, Article 5 (Art. 5) reads as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing
after having done so;
...
(e) the lawful detention of ... persons of
unsound mind ...;
...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within
a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful."
1. Justification of the applicant's detention
under Article 5 para. 1 (Art. 5-1)
a) The period between 27 May 1978 and 10 January 1979
(Article 5 para. 1 (c)) (Art. 5-1-c)
--------------------------------------------------
164. During this period, the applicant was detained on remand
pending the first determination of the new criminal charges raised
against him during his previous detention as a convicted prisoner.
It is not contested between the parties that Article 5 para. 1 (c)
(Art. 5-1-c) applied during this period.
165. The applicant was remanded in custody in May 1977, about one
year before the beginning of the period to be considered by the
Commission. The order of 10 May 1977, based on Section 180 paras. 1
and 2, sub-paras. 1 and 3, of the Code of Criminal Procedure, was
issued shortly before the applicant completed his previous prison
sentence, ensuring his continued detention in connection with the
suspicion that while purging that sentence he had committed new
criminal offences.
166. The indictment had been preferred in June 1976 and a first
trial had taken place on 3 May 1977. The detention order was
therefore not subject to any time-limit under national law
(Section 193 para. 2 of the Code of Criminal Procedure in the
version then in force, cf. para. 132 above). It was confirmed by the
presiding judge on 2 November 1977 and 9 January 1978, by the Review
Chamber on 6 March 1978 and by the Court of Appeal on 19 April 1978.
167. On 27 May 1978, when the period to be considered started,
there was thus a lawful judicial order authorising the applicant's
detention on remand. The applicant was suspected of criminal offences
and detained for the purpose of being brought before the competent
legal authority - the Regional Criminal Court of Vienna - for trial.
168. On 15 June 1978 the prosecution, finding that the applicant
lacked criminal responsibility, withdrew the request for his
conviction. However, the applicant continued to be suspected of
criminal offences and deprived of his liberty "for the purpose of
bringing him before the competent legal authority". Article 5 para. 1
(c) (Art. 5-1-c) therefore did not cease to apply on 15 June 1978.
169. The Commission notes that since the presiding judge's decision
of 9 January 1978 the applicant's detention on remand was carried out
in the special form of provisional detention in an institution for
mentally deranged offenders, first under Section 438 and subsequently
under Section 429 para. 4 of the Code of Criminal Procedure.
170. There were several court decisions confirming the continued
necessity of the execution of the applicant's detention in the form of
provisional detention in an institution for mentally deranged
offenders. There is no indication that these decisions were not taken
according to the procedure prescribed by Austrian law, nor is there
any indication that the conditions for applying Section 438 and
subsequently Section 429 para. 4 of the Code of Criminal Procedure
were not fulfilled at the relevant times or that these provisions were
applied in an arbitrary or unreasonable manner.
171. The applicant's detention on remand, including the particular
form of its execution, was therefore lawful.
172. As to its justification, the Commission is satisfied that at
the beginning of the period to be considered there existed a
reasonable suspicion of the applicant having committed criminal
offences during his previous detention. Since the suspected offences
involved acts of physical aggression and serious threats, it could
also reasonably be considered necessary to detain the applicant for
the purpose of preventing the commission of further offences. This
justified the applicant's detention under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention.
173. The situation did not change until the Regional Court's first
judgment of 10 January 1979. The new indictment of 15 June 1978 did
not affect the substantive justification of the applicant's detention
on remand. The applicant continued to be suspected of criminal
offences, although it appeared from an expert opinion that he lacked
criminal responsibility. The fear of the commission of further
offences was corroborated by this expert opinion.
174. The Commission therefore finds that the applicant's detention
on remand in the period between 27 May 1978 and 10 January 1979 was
covered by Article 5 para. 1 (c) (Art. 5-1-c).
b) The period between 10 January and 3 October 1979
(Article 5 para. 1 (e)) (Art. 5-1-e)
------------------------------------------------
175. Following the Regional Court's first judgment ordering the
applicant's confinement in an institution for mentally deranged
offenders under Section 21 para. 1 of the Penal Code, the applicant
continued to be detained pending the determination of his plea of
nullity by the Supreme Court.
176. The Commission notes in this context that under domestic law
the detention continued to be considered as detention on remand.
Formally, it was not based on the Regional Court's judgment of
10 January 1979, but on a separate decision of the Regional Court.
177. The applicant claims that during this period Article 5
para. 1 (c) (Art. 5-1-c) continued to apply. The Government claim
that Article 5 para. 1 (c) (Art. 5-1-c) ceased to apply on 10 January
1979, and that the applicant's subsequent detention falls to be
considered under Article 5 para. 1 (a) and (e) (Art. 5-1-a, 5-1-e).
178. The Commission recalls that detention on remand under Article
5 para. 1 (c) (Art. 5-1-c) ends at the date of the determination of
the criminal charge in first instance (Eur. Court H.R., Wemhoff
judgment of 27 June 1986, Series A no. 7, pp. 23-24 para. 9; B. v.
Austria judgment of 28 March 1990, Series A no. 175, paras. 38-39).
Detention after this date will normally be "detention after conviction
by a competent court" within the meaning of sub-paragraph (a).
179. In the present case the Regional Court only established the
objective elements of the criminal offences of which the applicant was
suspected, but did not pronounce a finding of guilt. However, a
measure of detention within the meaning of Article 5 para. 1 (a) (Art.
5-1-a) presupposes a formal finding of guilt (cf. Eur. Court H.R.,
Guzzardi judgment of 6 November 1980, Series A no. 39, p. 37 para 100,
and Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 19
para. 35). Accordingly, Article 5 para. 1 (a) (Art. 5-1-a) is not
applicable to the present case which in this respect must be
distinguished from the case of X. v. the United Kingdom where
detention in a mental institution was imposed in connection with a
conviction, thus leading to the simultaneous applicability of
sub-paras. (a) and (e) of Article 5 para. 1 (Art. 5-1-a, 5-1-e) (cf.
Eur. Court H.R. judgment of 5 November 1981, Series A no. 46, p.
17-18 para. 39).
180. It follows that the applicant's detention during this period
falls to be considered exclusively under Article 5 para. 1 (e)
(Art. 5-1-e).
181. As to its lawfulness, the Commission notes that the detention
continued to be based on Section 429 para. 4 of the Code of Criminal
Procedure, the confinement order under Section 21 para. 1 of the Penal
Code not being executory pending the applicant's plea of nullity
against the Regional Court's judgment of 10 January 1979. The
continued applicability of Section 429 para. 4 of the Code of Criminal
Procedure was confirmed by the Regional Court on 10 January, 28 June
and 5 September 1979, and by the Court of Appeal on 29 August and
8 October 1979. The Commission cannot find that these decisions were
unreasonable or arbitrary. The fact that the Regional Court's
decision of 28 June 1979 wrongly referred to Section 50 of the
Hospitals Act as the basis of the applicant's detention was rectified
by the Court of Appeal's decision of 29 August 1979.
182. The Commission notes that immediately after the Regional
Court's judgment of 10 January 1979 the applicant was not detained in
a special institution for persons of unsound mind but in the normal
remand prison of the Vienna Regional Court. As the Court held in the
Ashingdane case (Eur. Court H.R., judgment of 28 May 1985, Series A
no. 93, p. 21 para. 44), "in principle, the 'detention' of a person as
a mental health patient will only be 'lawful' for the purposes of
sub-para. (e) of para. 1 of Article 5 (Art. 5) if effected in a hospital,
clinic or other appropriate institution authorised for that purpose",
notwithstanding that "Article 5 para. 1 (e) (Art. 5-1-e) is not in principle
concerned with suitable treatment or conditions" (cf. also Eur. Court
H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 21
para. 51). The Commission notes, however, that the present
applicant's detention in a remand prison pursued a therapeutical
purpose having regard to the particular form of his mental
instability. Therefore it cannot be said that the applicant was
detained in an inappropriate institution and that his detention during
the relevant period was for this reason unlawful.
183. Apart from the requirement of lawfulness, the following
conditions must be fulfilled in order to justify the detention of
an individual as a "person of unsound mind" within the meaning of
Article 5 para. 1 (e) (Art. 5-1-e):
"Except in emergency cases, a true mental disorder must be
established before a competent authority on the basis of
objective medical expertise; the mental disorder must be of
a kind or degree warranting compulsory confinement; and the
validity of continued confinement depends upon the
persistence of such a disorder" (Winterwerp judgment,
loc.cit., p. 18 para. 39; Ashingdane judgment, loc. cit.,
p. 18 para. 37).
184. The applicant complains that his detention as a person of
unsound mind was unjustified. He contests that he was ever insane and
claims in addition that a querulous behaviour such as diagnosed in his
case cannot justify detention under Article 5 para. 1 (e) (Art. 5-1-e). He
believes that it was exclusively because of his vexatious behaviour
that his detention as a person of unsound mind was ordered.
185. The Government claim that the conditions of Article 5
para. 1 (e) (Art. 5-1-e) were met. They submit that the applicant was
not detained merely because of his vexatious behaviour, but because of
his aggressiveness which was a danger to society.
186. The Commission considers the distinction between a mentally
disturbed person who is and one who is not dangerous to himself or
others as important. Merely querulous behaviour resulting from
mental disturbance cannot in itself justify detention under
Article 5 para. 1 (e) (Art. 5-1-e).
187. The various judicial decisions ordering the applicant's
detention as a person of unsound mind were based each time on medical
expert evidence confirming that, while not suffering from a genuine
mental disease, the applicant showed a grave mental disturbance
equivalent to such a disease. Apart from querulous behaviour, a
potential aggressiveness was diagnosed.
188. The Commission notes that already the applicant's convictions
in 1972 and 1973 concerned acts of physical aggression. The third
criminal proceedings which led to the Regional Court's confinement
order of 10 January 1979 likewise concerned aggressive behaviour,
i.e. bodily injury and dangerous threats. Although the Regional
Court's judgment of 10 January 1979 did not become final, it was later
in substance confirmed by the Regional Court's further judgment of
9 April 1980 which became final. The applicant's aggressiveness has
thus been established as the result of the criminal proceedings in
question which the Commission cannot review.
189. The Commission is satisfied that the applicant's aggressive
state of mind existed not only at the time when he committed the
criminal offences with which he was charged, but also continued during
the period under consideration. The Regional Court's judgment of
10 January 1979 ordering his confinement was in fact based on a
prognosis of further aggressive behaviour. The subsequent developments,
in particular the necessity to transfer the applicant to a psychiatric
hospital in June and again in September 1979, confirm the justification
of this prognosis.
190. The Commission therefore finds that the applicant's detention
as a person of unsound mind in the period between 10 January and
3 October 1979 was covered by Article 5 para. 1 (e) (Art. 5-1-e).
c) The period betweeen 3 October 1979 and 9 April 1980
(Article 5 para. 1 (c)) (Art. 5-1-c)
---------------------------------------------------
191. Following the Supreme Court's judgment of 3 October 1979 the
applicant continued to be detained on remand although by that judgment
the Supreme Court had quashed the Regional Court's judgment of
10 January 1979, including the order for the applicant's confinement
in an institution for mentally deranged offenders.
192. The applicant claims that also during this period Article 5
para. 1 (c) (Art. 5-1-c) of the Convention continued to apply. The
Government submit that Article 5 para. 1 (c) (Art. 5-1-c) ceased to
apply on 10 January 1979. They seem to be of the opinion that the
basis for the applicant's detention was Article 5 paras. 1 (a) and (e)
(Art. 5-1-a, 5-1-e) (cf. para. 177).
193. The Commission does not share the Government's view. It notes
that following the Supreme Court's judgment the case was again pending
before the Regional Court. That Court's confinement order of
10 January 1979 having been quashed, it could not possibily provide
a basis for the applicant's continued detention as a person of unsound
mind. Instead the procedural situation reverted to the state as it
was before the Regional Court's judgment of 10 January 1979, i.e. the
applicant was still suspected of criminal offences and detained for
the purpose of being brought before the competent authority of first
instance. Article 5 para. 1 (c) (Art. 5-1-c) therefore again became
applicable.
194. The Supreme Court did not make a pronouncement on the question
of the applicant's detention on remand. However, the decisions
ordering the applicant's detention on remand continued to produce
effect. This was confirmed by the investigating judge of the Regional
Court on 14 December 1979 and subsequently by the Regional Court's
Review Chamber and the Court of Appeal (cf. paras. 57 - 59 above).
These decisions confirmed the lawfulness of the applicant's continued
detention on remand as provisional detention in a mental institution
according to Section 429 para. 4 of the Code of Criminal Procedure.
There is no indication that the procedure followed was unlawful under
Austrian law.
195. As regards the substantive justification of the detention on
remand during this second period, the Commission notes the new offence
committed by the applicant on 24 December 1979, which was added to the
charges and subsequently established in the Regional Court's judgment
of 9 April 1980 (cf. para. 61 above). This shows that the fear of the
commission of new offences continued to be justified.
196. The Commission therefore finds that the applicant's detention
on remand between 3 October 1979 and 9 April 1980 was covered by
Article 5 para. 1 (c) (Art. 5-1-c).
d) The period between 9 April 1980 and 28 November 1984
(Article 5 para. 1 (e)) (Art. 5-1-e)
----------------------------------------------------
197. On 9 April 1980 the Regional Court, in its second judgment,
again ordered the applicant's confinement in an institution for
mentally deranged offenders. Although this judgment became executory
only on 6 November 1980 when the applicant withdrew his plea of
nullity, it provided the substantive basis for the applicant's
detention from the moment it was pronounced.
198. The applicant claims that Article 5 para. 1 (c) (Art. 5-1-c)
continued to apply until 6 November 1980, because until that date the
detention was still regarded under domestic law as detention on
remand. However, for the reasons already stated (cf. para. 178)
Article 5 para. 1 (c) (Art. 5-1-c) ceased to apply at the date of the
determination of the criminal charges in first instance. From this
moment, only Article 5 para. 1 (e) (Art. 5-1-e) applied (cf. para.
179).
199. As to the lawfulness of this detention, it is nevertheless
necessary to distinguish between the periods before and after
6 November 1980. Before this date, Section 429 para. 4 of the Code of
Criminal Procedure continued to provide the legal basis for the
detention. Thereafter, the Regional Court's judgment of 9 April 1980
was enforced until the applicant's release on 28 November 1984.
During this second part of the period to be considered the applicant's
detention was based on Section 21 para. 1 of the Penal Code.
200. The applicant contests the lawfulness of his detention during
this period, claiming that he did not validly waive his plea of
nullity and appeal and that there were irregularities in the annual
review procedure under Section 25 para. 3 of the Penal Code.
201. The Commission finds no indication that the declaration by
which the applicant waived his plea of nullity and appeal was invalid.
The fact that the applicant made this declaration in the expectation
of his repatriation to Hungary, and that the authorities' efforts to
secure this repatriation subsequently failed, cannot be regarded as a
circumstance depriving the waiver of its validity. The applicant's
detention as a person of unsound mind immediately after 6 November 1980
was therefore lawful.
202. As regards the alleged irregularity of the annual review
procedure under Section 25 para. 3 of the Penal Code, the Commission
notes the interpretation of this provision by the Austrian Supreme
Court (decision of 30 September 1980, 10 Os 79 = EvBl. 87/1981) to
which the Government have referred. According to the Supreme Court
the one year period has to be calculated from the date of the last
judicial decision on detention. It is not necessary that a new
decision is handed down before the expiration of the period. It
suffices that the review proceedings are instituted by this date.
Detention after the end of the period until the decision of the court
will not be considered as unlawful unless the proceedings have been
unreasonably delayed.
203. The Commission notes that the first review procedure under
Section 25 para. 3 of the Penal Code commenced on 11 December 1981
and led to a judicial decision on 8 February 1982. According to
the Government the one year period was to be calculated from
6 November 1980, the date when the Regional Court's judgment of
9 April 1980 became final. The Commission observes, however, that
on 6 November 1980 there was no judicial decision on the substantive
justification of the detention, and therefore it is doubtful
whether the calculation of the one year period from this date
corresponds to the criteria enunciated by the Supreme Court in its
above-mentioned decision. In any event the review procedure in the
applicant's case did not start until 11 December 1981, i.e. one
month and five days after the expiration of the period considered as
relevant by the Government. The "procedure prescribed by law"
(introductory phrase of Article 5 para. 1) (Art. 5-1) was therefore
not complied with and the applicant's detention was unlawful for this
reason.
204. The Commission accepts that after the decision of
8 February 1982 the applicant's detention was again lawful as its
necessity was confirmed on the basis of psychiatric evidence.
According to the Supreme Court's above case-law the second review
period was to be calculated from this date and therefore expired on
8 February 1983. Austrian law required that by this date new review
proceedings had started and were brought to an end within a reasonable
time thereafter.
205. The Commission notes that the first criterion was met, as the
review proceedings started within the period on 6 December 1982.
However, in the Commission's opinion the second criterion was not met
as the Regional Court's decision was only taken on 16 February 1984,
more than a year after the expiration of the period. The Government
argue that the delay was justified as the applicant's requests for
release made several transmissions of the file necessary and as it was
also necessary to obtain extensive expert evidence. However, the
Commission considers it as unreasonable to interpret a provision which
requires a judicial review "at least once each year" in a manner which
would in fact allow the court to take a decision only after two years.
The applicant's detention therefore became unlawful by an unreasonable
prolongation of the proceedings after 8 February 1983.
206. The Commission finds no indication of unlawfulness as regards
the proceedings during the third review period.
207. Insofar as the applicant's detention as a person of unsound
mind was not unlawful for the above reasons, the Commission must also
deal with its substantive justification.
208. It first notes that on the basis of the psychiatric evidence
the Regional Court's judgment of 9 April 1980 confirmed that the
applicant had, in a state of unsound mind, committed criminal offences
involving acts of physical aggression on a number of occasions, the
last incident of dangerous threats dating from 24 December 1979, and
that he had to be considered as a dangerous and aggressive person
likely to commit further offences of the same kind.
209. The Commission further notes that also during his detention
after 9 April 1980 the applicant committed acts of aggression on a
number of occasions. This justified the fear that he might again
become aggressive. Not only could it reasonably be assumed that the
applicant was aggressive and dangerous to others, he also behaved
unreasonably in that he exposed his own health to serious risks by
stubbornly maintaining his hunger-strike and refusing any kind of
medical treatment. As it had been established in September 1979, he
needed intensive medical treatment during this period. His
confinement could therefore appear necessary not only for the
protection of society, but also for the purpose of preventing the
applicant from doing harm to himself. This, too, was a legitimate
reason for his detention under Article 5 para. 1 (e) (Art. 5-1-e).
210. The Commission accepts the applicant's submission that the
latest relevant act of physical aggression occurred on 9 July 1981.
The incident of 22 December 1983 to which the Government have referred
has not been decribed in detail. It appears that the applicant had an
altercation with another patient in circumstances which remain
unclear. In any event this incident cannot have been a very serious
one because in the comprehensive report of January 1984 the director
of the closed ward in which the applicant was detained did not mention
it, stating that "during the last years" no aggressive acts had
occurred.
211. It is true that despite the absence of actual aggression there
continued to exist a fear of latent aggressiveness. The Government
refer to the sedative treatment administered to the applicant which
might have been the reason why he remained calm. Since March 1983
the experts considered the applicant's conditional release possible
subject to certain safeguards including, in particular, medical
supervision under Section 51 para. 3 of the Penal Code. According
to the Government a conditional release was impossible because the
applicant was categorically opposed to any medical treatment.
212. The Commission notes that, according to an expert opinion of
October 1983, the applicant's aggressive behaviour had long
disappeared and he was no longer particularly dangerous. The opinion
recommended the applicant's release followed by medical supervision,
not including sedative treatment (cf. para. 110). A further expert
opinion of January 1984 also found that the applicant had not been
aggressive for years but that he might become aggressive again if the
sedative treatment were stopped. The expert therefore did not
recommend the applicant's release (cf. para. 112).
213. The Regional Court took its decision on 16 February 1984, two
days after an order by the Court of Appeal enjoining it to proceed
with the review procedure as quickly as possible. It followed the
second expert's opinion, refusing release on the ground that the
applicant's medical supervision was absolutely necessary and
could not be ensured after his release because the applicant was
opposed to it. This decision was confirmed by the Court of Appeal
on 4 April 1984.
214. The Commission considers that at the date of these decisions
the applicant's detention as a person of unsound mind was still
justified under Article 5 para. 1 (e) (Art. 5-1-e).
215. Following the submission of a new expert opinion in
September 1984 according to which the applicant's release was
now possible even without subsequent medical supervision, the
applicant's conditional release was ordered by the Regional Court on
14 November 1984. This decision became effective on 28 November 1984.
216. The Commission considers that until this date the applicant
could reasonably be regarded as a person of unsound mind and that his
detention therefore continued to be justified under Article 5
para. 1 (e) (Art. 5-1-e).
Conclusions
217. The Commission concludes, by 11 votes to 9, that there has
been no violation of Article 5 para. 1 (Art. 5-1), concerning the
substantive justification of the applicant's detention under
sub-paragraphs (c) and (e) of this provision during the periods when
it was lawful.
218. The Commission concludes by a unanimous vote that there has
been a violation of Article 5 para. 1 (Art. 5-1) of the Convention in
that there were two periods during which the applicant's detention as
a person of unsound mind was not lawful under sub-paragraph (e) of
this provision.
2. Length of detention on remand
(Article 5 para. 3 (Art. 5-3) of the Convention)
219. The applicant complains that the length of his detention on
remand was excessive in that he was not tried within a reasonable time
as required by Article 5 para. 3 (Art. 5-3) of the Convention. The
Government claim that the requirements of this provision were
respected.
220. As regards the periods during which Article 5 para. 3
(Art. 5-3) applied, the Commission refers to its above considerations
concerning the applicability of Article 5 para. 1 (c) (Art. 5-1-c)
(see paras. 164 et seq. and paras. 192 - 193). There are therefore
two periods to be considered: from 27 May 1978 to 10 January 1979
(about 7½ months) and from 3 October 1979 to 9 April 1980 (about 6
months).
221. As regards the criteria relevant for assessing whether
the applicant has been brought to trial "within a reasonable time" in
the meaning of Article 5 para. 3 (Art. 5-3), the Commission refers to
its Report on Application No. 11894/85 (Toth v. Austria, Comm.
Report 3.7.1990, para. 71 et seq. with further references). In the
present case there was reasonable suspicion of the applicant having
committed criminal offences, and it could reasonably be assumed that
there was a danger of his committing further offences. The reasons
given in the various decisions of the Austrian authorities for
refusing the applicant's release were relevant and sufficient and did
not diminish in pertinence with the lapse of time. The Commission
here refers to its above considerations under Article 5 para. 1 (c)
(Art. 5-1-c).
222. It remains to be seen whether in addition the Austrian
authorities displayed the diligence required by the Convention in
the case of a detained person, in particular whether the applicant's
detention was not prolonged unduly by the manner in which the case was
conducted (cf. No. 11894/85, Toth v. Austria, loc.cit., para. 90
et seq. and No. 8118/77, Schertenleib v. Switzerland, Comm. Report
11.12.80, D.R. 23 p. 190, para. 176 et seq.).
223. The criminal proceedings underlying the applicant's detention
on remand, which were not particularly complex, started long before
the beginning of the first period to be considered here, probably soon
after the serious offence of 24 August 1975 (cf. para. 39 above).
The first indictment was, according to the Government, preferred on
2 June 1976. A trial planned in December 1976 was cancelled. The first
trial actually took place on 3 May 1977, at a time when the applicant
was still serving a previous prison sentence.
224. The Commission next notes that the applicant's detention on
remand in connection with this case also started long before the
beginning of the first period to be considered. The first detention
order dates from 10 May 1977 and detention on remand started on
13 May 1977, immediately following completion of the applicant's above
sentence. By 27 May 1978 he therefore had already been detained on
remand for more than one year.
225. The Commission is not called upon to examine the applicant's
detention before 27 May 1978 as such. Nor can it deal with the
conduct of the proceedings by the authorities until that date insofar
as it might have involved unjustifiable delays contributing to the
length of the detention. However, by 27 May 1978 both the length of
the proceedings and the length of the actual detention had become so
considerable that a duty of special expediency was incumbent on the
Austrian authorities during the subsequent period.
226. The procedural situation at that time was characterised by
the reconsideration of the indictment following the incident of
5 April 1978 when the applicant had spat in the face of the presiding
judge (cf. para. 43 above). The new indictment, based on psychiatric
expert evidence, was preferred on 15 June 1978 and thus without
unreasonable delay. The applicant then raised objections to the
indictment which were determined on 30 August 1978, again without
unreasonable delay.
227. On 8 November 1978 the date of the trial was fixed and it was
held on 9 and 10 January 1979. The Commission notes, however, that
the applicant himself requested a further postponement of the trial
claiming that he had not been granted sufficient preparatory time for
his defence. The Commission is not required to determine whether or
not the applicant's request was justified. The simple fact that the
applicant made such a request at the relevant time must affect his
present claim that he has been a victim, during the same period, of a
violation of his right to be brought to trial within reasonable time.
228. As regards the subsequent period of detention on remand
pending the second round of the proceedings (3 October 1979 to
9 April 1980), the Commission is of the opinion that the Austrian
authorities complied with their duty of special expediency. During
this period the applicant was in a particularly bad state of health
which necessitated enquiries as to his fitness to appear at trial.
They were somewhat delayed by the attitude of the institute for
forensic medicine (cf. para. 60 above), but simultaneously the Court,
sitting in a different composition, had to familiarise itself with the
case and prepare the trial, involving the hearing of new evidence. In
the Commission's opinion this was done within a period which was not
unreasonably long.
Conclusion
229. The Commission concludes by a unanimous vote that there has
been no violation of Article 5 para. 3 (Art. 5-3) of the Convention.
3. Review of the lawfulness of the applicant's continued
detention (Article 5 para. 4 (Art. 5-4) of the Convention)
230. The applicant alleges a violation of Article 5 para. 4
(Art. 5-4) of the Convention in that his requests for release were
disregarded and the legal time-limits for judicial review of the
detention were not respected. The Commission admitted this complaint
with regard to the applicant's detention after 9 April 1980 (cf. final
decision on admissibility, Appendix III p. 94).
231. The Convention requires that any detention imposed on a person
for an indeterminate period, on grounds which by their nature are
susceptible of change with the passage of time, should be subject to
judicial review in conformity with Article 5 para. 4 (Art. 5-4) at
reasonable intervals (cf. Eur. Court H.R. Winterwerp judgment, loc.
cit., p. 23 para. 55; X. v. United Kingdom judgment loc. cit., p. 23
para. 52; Van Droogenbroeck judgment, loc. cit., p. 26 para. 48; Weeks
judgment of 2 March 1987, Series A no. 114, p. 29 para. 58; Bezicheri
judgment of 25 October 1989, Series A no. 164, p. 10 para. 20; E. v.
Norway judgment of 29 August 1990, Series A no. 181-A, para. 50, and
Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no.
190, para. 69).
232. The Government submit that the above requirements of Article 5
para. 4 (Art. 5-4) were complied with because an annual judicial
review of his detention was available to the applicant under Section
25 para. 3 of the Austrian Penal Code and because the Courts were
further obliged to deal at even shorter intervals with any request for
release submitted by him. In this context, they refer to the case-law
of the Supreme Court (cf. para. 202 above) claiming that the criteria
laid down in this case-law were complied with in the applicant's case,
although they admit that the one year period was overstepped at the
beginning of the first review procedure.
233. The applicant claims that the interpretation given to
Section 25 para. 3 of the Penal Code by the Supreme Court is contra
legem. This provision requires judicial review and not the institution
of review proceedings after one year. However, even on the basis of
the Supreme Court's jurisprudence the first review period was clearly
overstepped because the proceedings were not instituted within one
year. As regards the second review period, the Supreme Court's
reasoning cannot justify an arbitrary prolongation of the review
proceedings. Finally, there was an unreasonable delay of the court's
decision in the third review period because it was not taken
immediately after the submission of an expert opinion favourable
to the applicant on 14 September 1984.
234. The Commission considers that an annual review such as
stipulated in Section 25 para. 3 of the Penal Code may be appropriate
for the particular kind of detention in question, especially as it
does not exclude a judicial review at shorter intervals at the request
of the detainee or of the institution in which he is confined.
235. The Commission notes, however, that the judicial decisions on
the applicant's detention were taken at much longer intervals: for the
first time in February 1982 - 22 months after the Regional Court's
judgment; for the second time in February/April 1984 - two years after
the first review. Only the last review in November 1984 took place
after less than a year - seven months after the close of the second
review proceedings.
236. The Commission has already found above (paras. 204-205) that
on two occasions the criteria laid down in the Supreme Court's
case-law were not complied with, making the applicant's detention
during the relevant periods unlawful under Article 5 para. 1
(Art. 5-1) of the Convention. The Commission must nevertheless
examine whether or not the requirements of Article 5 para. 4 (Art.
5-4) have also been violated.
237. The first review period was not calculated from the Regional
Court's judgment of 9 April 1980, but from 6 November 1980 when this
judgment became final, although on this date no judicial review of
the detention took place. The review procedure commenced on
11 December 1981, more than 20 months, and ended on 8 February 1982,
almost 22 months after the Regional Court's judgment. The Commission
considers that the interval between this judgment and the first
judicial review of the applicant's detention was unreasonable.
238. Due to the unreasonable extension of the first review period,
the second already started later than would have been appropriate.
According to the national law, it expired on 8 February 1983, but in
fact a decision was not taken until 16 February 1984, more than a year
later. It is true that the review proceedings commenced within the
period, on 6 December 1982. However, they were then unreasonably
delayed despite repeated reminders by the applicant. Contrary to the
Government's assertion that requests for release made before the
expiration of the legal time-limit must also be dealt with by the
competent courts, the Regional Court did not act promptly on the
applicant's requests of July, September and October 1983. Not only
was the interval between the first and second review unreasonable, in
addition the Court failed to respect the applicant's right to a
"speedy" decision guaranteed by Article 5 para. 4 (Art. 5-4) of the
Convention.
239. Finally, as regards the third review period, which started at
the date of the Court of Appeal's decision of 4 April 1984, the actual
interval until the Court's next examination was not unreasonable. It
took place on 14 November 1984, a little more than seven months after
the beginning of the period and the applicant was released on
28 November 1984, a fortnight after the Court's decision. However,
no prompt action was taken on the applicant's requests for release of
6 June and 23 September 1984. The Court was informed of a change in
the applicant's state of mind already on 14 September 1984, when the
expert submitted his opinion favourable to a conditional release of
the applicant. Therefore, the requirement of "speediness" was also
disregarded during this period.
Conclusion
240. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in
that the decisions on the lawfulness of the applicant's continued
detention were not taken speedily and at reasonable intervals.
D. Conditions of detention
1. Compulsory medical treatment, artificial feeding and isolation
(Article 3 (Art. 3) of the Convention)
241. The applicant complains that during his detention in the
psychiatric hospital, which included compulsory medical treatment,
artificial feeding and isolation, he was subjected to inhuman and
degrading treatment contrary to Article 3 (Art. 3) of the Convention
which reads as follows:
"No one shall be subjected to torture or
to inhuman or degrading treatment or punishment."
242. The Commission has repeatedly considered the medical
treatment of prisoners or mental health patients under Article 3
(Art. 3) of the Convention. Failure to provide adequate medical
treatment may be contrary to this provision (cf. e.g. No. 7994/77,
Kotälla v. the Netherlands, Dec. 6.5.78, D.R. 14 p. 238; No. 6870/75,
B. v. the United Kingdom, Comm. Report 7.10.81, D.R. 32 p. 5; No.
9044/80, Chartier v. Italy, Dec. 17.12.81, Comm. Report 8.12.82,
D.R. 33 p. 41). Compulsory medical treatment does not violate Article
3 if it is necessary from the medical point of view and carried out in
conformity with standards accepted by medical science (cf. No.
8334/78, Dec. 7.5.81, D.R. 24 p. 103, No. 8518/79, Dec. 14.3.80, D.R.
20 p. 193 and No. 9974/82, Dec. 2.3.83, D.R. 32 p. 282). Finally,
even an obstructive attitude of the person concerned does not relieve
the State from its obligation to comply with the requirements of
Article 3 (Art. 3) (cf. in particular No. 8281/78, X. v. the United
Kingdom, Dec. 6.3.82, D.R. 28 p. 5).
243. The applicant claims that his treatment with sedatives was
not necessary as he was not insane and in any event the authorities
admitted that his mental disturbance was not susceptible of any
curative treatment. The Government submit that the applicant's
compulsory treatment with sedatives was necessary in view of his
aggressiveness, even if the underlying mental disturbance could not be
treated as such.
244. The Commission accepts the Government's view which is
supported by the medical evidence. It appears that the treatment
given to the applicant could reasonably be considered to be justified
by medical considerations. The applicant's compulsory medical
treatment was therefore not as such contrary to Article 3 (Art. 3).
245. This does not exclude a violation of Article 3 (Art. 3) by the
particular manner in which the compulsory treatment was administered.
The applicant claims that brutal force was applied to this end. He
refers in particular to the incident of 15 January 1980 and the
subsequent period during which he was fettered to his bed without
interruption for several weeks, including about a week when he was
unconscious. The Government give a different version of the incident
of 15 January 1980. They admit that force was used to overcome the
applicant's physical resistance against his treatment, but deny that
this was done in a brutal manner. Generally they claim that the
measures taken in January/February 1980, although harsh, were not
excessive having regard to the applicant's behaviour during this
period.
246. The Commission has not been able to clarify the facts of the
incident of 15 January 1980. It is, however, clear that on this date
the applicant was in a very bad physical condition. Despite his
weakness caused by his hunger-strike he became extremely agitated
about the intended compulsory treatment and fell into a rage. The
staff of the hospital were not able to overwhelm him and an emergency
squad was called in. It is not contested that after this incident the
applicant collapsed and developed pneumonia and nephritis requiring
urgent medical treatment in a different department of the hospital.
Nor is it contested that the applicant was fettered to his bed for
several weeks in January/February 1980.
247. The overcoming of the physical resistance of a mental health
patient lacking insight concerning the necessity of a particular
treatment can, in certain circumstances, be regarded as necessary,
especially if the treatment in question appears imperative. The
Commission considers that this condition was at least initially met in
the applicant's case. It is nevertheless doubtful whether in view of
the applicant's reaction on 15 January 1980 it was really necessary to
insist on the immediate administration of his compulsory treatment and
apply massive force to this end, including overwhelming him by an
emergency squad. The Commission notes in this context that the use of
force seems to have contributed to the applicant's state of agitation
and his complete physical breakdown. It does not appear that the
medical authorities could foresee this development when the treatment
was started. They should, however, have reconsidered the appropriateness
of the measures taken to overcome the applicant's physical resistance
once their effect on his state of health became apparent.
248. In any event the Commission finds the manner in which the
treatment was administered after this incident in January/February
1980 excessive. The applicant, who was still in a very bad physical
condition, was fettered to his bed without interruption for a period
of several weeks, including a period when he was unconscious. Even if
fettering may have been unavoidable in order to secure his effective
treatment, the manner in which it was carried out and the period
during which it was maintained appear disproportionate.
249. As to the applicant's compulsory feeding, the Commission
considers that it could reasonably be regarded as necessary both in
September and again in December 1979. The medical authorities'
margin of appreciation in this respect was in the Commission's opinion
not overstepped. The methods applied, i.e. infusions and artificial
feeding through a tube, corresponded to the standards of medical
science as long as there was an acute danger for the applicant's
health resulting from his hunger-strike.
250. As the Government admit, the maintenance of artifical feeding
through a tube during a long period where such an acute danger no
longer existed was, however, unusual from the medical point of view,
even if it may have had a therapeutical purpose in the context of the
simultaneous psychiatric treatment of the applicant. The applicant's
position in this respect is contradictory. On the one hand he claims
that he effectively pursued his hunger-strike throughout the relevant
period, implying that artificial feeding was in fact necessary. On the
other hand he claims that the artificial feeding became disproportionate
from the moment when it was no longer necessary.
251. Finally, as regards the alleged isolation of the applicant in
the psychiatric hospital, the Commission recalls its case-law
(cf. inter alia No. 6038/73, Dec. 11.7.73, Collection 44 p. 115;
No. 7854/77, Dec. 12.7.78, D.R. 12 p. 185; No. 8317/78, Dec. 15.5.80,
D.R. 20 p. 44). It has repeatedly stated that prolonged solitary
confinement is undesirable, especially during detention on remand.
Complete sensory isolation, coupled with total social isolation, can
destroy the personality and constitutes a form of treatment which
cannot be justified by the requirements of security or for any other
reason. However, removal from association with other prisoners for
security, disciplinary or protective reasons does not normally amount
to inhuman treatment or punishment (cf. No. 5310/71, Ireland v. the
United Kingdom, Comm. Rep. 25.1.76, p. 379; Nos. 7572/76, 7586/76
and 7587/76, Dec. 8.7.78, D.R. 14 p. 64; No. 8317/78, Dec. 15.5.80,
D.R. 20 para. 49 at p. 82). The same reasoning applies mutatis
mutandis to persons who have been committed to a mental hospital in
the framework of criminal proceedings (cf. No. 10448/83, Dhoest v.
Belgium, Comm. Report 14.5.87, para. 117). In making an assessment in
a given case, regard must be had to the surrounding circumstances
including the particular conditions, the stringency of the measure,
its duration, the objective pursued and its effects on the person
concerned (cf. Dhoest Report ibid., para. 118 and also No. 8463/78,
Kröcher and Möller v. Switzerland, 16.12.82, D.R. 26 p. 24, para. 62).
252. In the present case the facts concerning the alleged isolation
of the applicant in the psychiatric hospital during long periods are
in dispute between the parties. The Government stress that the
applicant requested a single room. In fact he made this a condition
for terminating his hunger-strike. Except for short periods he was
relatively free to move around in Ward 23. He could have contact with
other mental health patients in this ward although the Government
admit that during a certain period the applicant was the only patient
in the ward. Also during this period, however, he had contacts with
the medical and other staff and also repeatedly received visits from
outside.
253. The Commission notes that the applicant's isolation was
partly a result of his own conduct. Insofar as imposed on him by the
hospital, it constituted, together with the compulsory artificial
feeding and medical treatment a further element to be considered under
Article 3 (Art. 3) of the Convention (cf. the Commission's
above-mentioned Dhoest Report and No. 11701/85, E. v. Norway, Dec.
7.3.1988, to be published in D.R.).
254. The Commission finds that in particular during the period
following the incident of 15 January 1980 the applicant's compulsory
medical treatment and the way in which it was administered, combined
with his artificial feeding and isolation, amounted to inhuman and
degrading treatment.
Conclusion
255. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 3 (Art. 3) of the Convention as regards the
conditions of the applicant's detention in the psychiatric hospital.
2. Alleged interference with the right to respect for
private life (Article 8 (Art. 8) of the Convention)
256. The applicant also complains that his compulsory medical
treatment and artificial feeding unjustifiedly interfered with his
right to respect for his private life as guaranteed by Article 8
(Art. 8) of the Convention, which reads as follows:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
257. In principle, the right to respect for a person's private life
includes his right to decide himself whether he wishes to undergo a
certain medical treatment (cf. e.g. No. 10435/83, Dec. 10.12.84,
D.R. 40 p. 251). A compulsory medical treatment ordered by a State
authority or administered to a detained person in a State institution
therefore constitutes an interference with this right (cf. No. 8278/78,
Dec. 13.12.79, D.R. 18 p. 154; No. 8334/78, Dec. 7.5.81, D.R. 24 p. 103).
258. The Government do not contest the applicability of Article 8
(Art. 8), but claim that the applicant's compulsory medical treatment
and artificial feeding were justified under the second paragraph of
this provision.
259. However, in view of its above conclusion under Article 3
(Art. 3) of the Convention (cf. para. 255) the Commission does not
regard it as necessary to examine whether the conditions of the
applicant's detention, and in particular his compulsory medical
treatment and artificial feeding, also infringed his rights under
Article 8 (Art. 8) of the Convention.
Conclusion
260. The Commission concludes, by a unanimous vote, that it is not
necessary to consider the facts which have been dealt with under
Article 3 (Art. 3) also under Article 8 (Art. 8) of the Convention.
3. Correspondence (Article 8 (Art. 8) of the Convention)
261. The applicant complains that there have been violations of his
right to respect for correspondence as guaranteed in Article 8
(Art. 8) of the Convention (for the text of this provision, see para.
256 above).
262. The Government claim that there has been no interference with
the applicant's right to correspond insofar as his letters were not
forwarded to their addressees on the ground that he had failed to pay
the postage. In the Government's view Article 8 para. 1 (Art. 8-1)
does not include a right to the transmission of correspondence at
public expense in the case of a detained person.
263. The Commission may leave this point undecided as in any event
there have been interferences with the applicant's right to
correspond on a large scale in other forms.
264. The Government claim that these interferences were justified
under Article 8 para. 2 (Art. 8-2). Under this provision any
interference with the rights set out in Article 8 para. 1 (Art. 8-1)
requires
- to be in accordance with the law;
- to pursue one or more of the legitimate purposes
enumerated in this provision; and
- to be necessary in a democratic society in order
to achieve this purpose or these purposes.
265. The Government claim that the restrictions of the applicant's
correspondence were based on provisions of Austrian law. During his
detention on remand his correspondence was subject to control by the
investigating judge by virtue of Sections 187-188 of the Code of
Criminal Procedure (cf. para. 145 above). In the psychiatric hospital
Section 51 of the Hospitals Act applied (cf. para. 151 above). In
addition, under the Civil Code the guardian's functions (cf. paras.
153 et seq. above) included control of the applicant's correspondence
as part of the care for his personal interests and his health. The
Government do not rely on the provisions on the control of prisoners'
correspondence in the Criminal Law Enforcement Act (cf. para. 148
above). The Commission therefore assumes that these provisions were
irrelevant in the present case.
266. Insofar as the provisions of the Code of Criminal Procedure
on the control of the correspondence of remand prisoners were applied
in the applicant's case, the Commission finds no unlawful acts by the
Austrian authorities. The provisions in question were sufficiently
precise and have not been applied unreasonably or arbitrarily.
267. Section 51 of the Hospitals Act and the provisions of the
Civil Code on the guardian's functions are framed in very general
terms and do not expressly refer to restrictions on correspondence.
The applicant claims in particular that Section 51 of the Hospitals
Act does not contain a clear legal basis for the measures taken by the
hospital.
268. There were three types of measures:
- restrictions on writing material;
- withholding of letters of complaint on the applicant's
medical treatment: they were apparently not forwarded
to the guardian nor delivered to the addressees, but
simply filed and returned to the applicant at the time
of his release;
- an agreement with the applicant's guardian whereby, with
certain exceptions, the applicant's entire outgoing mail
was sent at regular intervals to the guardian who was
entrusted with the function of controlling it and
deciding which pieces of correspondence should be
forwarded to the addressees.
269. These measures were taken by the hospital's medical staff in
exercise of the discretion left to them by Section 51 of the Hospitals
Act which stipulates that persons confined in a mental hospital "may
be subjected to restrictions ... as to their contacts with the outside
world". There is no indication of any particular criteria or
procedure to be observed in this respect, nor does the law indicate
the authority entitled to order such restrictions. There is no
procedure by which such a decision can be reviewed as to its
lawfulness and substantive justification.
270. The Commission considers that a legislation authorising
far-reaching restrictions of fundamental rights in such a general and
unspecificed manner falls short of the requirements of legal precision
and foreseeability inherent in the concept of lawfulness as
presupposed in a legal system governed by the rule of law. Even with
appropriate legal advice the applicant could not know with a reasonable
degree of certainty which of the measures applied to him were lawful
and which were unlawful (cf. Eur. Court H.R., Sunday Times judgment of
26 April 1976, Series A no. 30, p. 31 para. 49; Barthold judgment of
25 March 1985, Series A no. 90, p. 22 para. 47; Olsson judgment of
24 March 1988, Series A no. 130, p. 30 para. 61; Huvig and Kruslin
judgments of 24 April 1990, Series A no. 176-B).
271. The same is true as regards the control of the applicant's
mail by his guardian under the agreement with the hospital. The
provisions of the Civil Code to which the Government have referred do
not provide a sufficiently precise legal basis for the measures taken
by the guardian, in particular the refusal to forward a large number
of the applicant's letters to their respective addressees.
272. The Commission therefore finds that the various measures taken
by the hospital and the guardian to control the applicant's
correspondence lacked a sufficient legal basis and therefore cannot be
regarded as "lawful" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
273. In view of this finding it does not appear necessary to
examine whether the various restrictions imposed on the applicant
pursued a legitimate aim and whether they were proportionate and thus
necessary in a democratic society.
Conclusion
274. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 8 (Art. 8) of the Convention, as regards
interference with the applicant's correspondence.
3. Access to information (Article 10 (Art. 10) of the Convention)
275. The applicant complains that there have been violations of his
right to receive information as guaranteed by Article 10 (Art. 10) of the
Convention. Insofar as relevant, this provision reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
276. The applicant claims that there have been interferences with
his right to receive information within the meaning of Article 10
para. 1 (Art. 10-1) in that his access to publications (books, journals and
newspapers) as well as to radio and television programmes was
temporarily restricted. The Government admit that there have been
some interferences with the applicant's right to receive information,
but claim that they were justified under Article 10 para. 2 (Art.
10-2) for reasons similar to those justifying the restriction of the
applicant's correspondence: They were based on Section 51 of the
Hospitals Act and therefore lawful, and pursued therapeutical purposes
and were thus necessary in a democratic society for the protection of
health.
277. The Commission, for the reasons set out above (para. 270),
finds that Section 51 of the Hospitals Act does not provide a
sufficiently precise legal basis for restrictions of the right to
receive information. It follows that the restrictions complained of
cannot be regarded as "lawful" within the meaning of Article 10
para. 2 (Art. 10-2).
278. In view of this finding it does not appear necessary to
examine whether the various restrictions pursued a legitimate aim and
whether they were proportionate and thus necessary in a democratic
society.
Conclusion
279. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 10 (Art. 10) of the Convention, as regards the
applicant's right to receive information.
E. Effective remedies (Article 13 (Art. 13) of the Convention)
280. The applicant complains that Austrian law did not provide for
any legal remedies by which he could have obtained a decision on the
question whether the measures taken by the psychiatric hospital
complied with Articles 3, 8 and 10 (Art. 3, 8, 10) of the Convention.
He claims that this violated Article 13 (Art. 13) of the Convention,
which reads as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
281. Article 13 (Art. 13) does not presuppose the actual violation
of other Convention Articles, but requires an "arguable claim" that
Convention rights have been violated (cf. Eur. Court H.R. Klass and
Others judgment of 6 September 1978, Series A no. 28; Boyle and Rice
judgment of 27 April 1988, Series A no. 131; and Plattform "Ärzte für
das Leben" judgment of 21 June 1988, Series A no. 139). The applicant
could arguably claim that various measures taken by the psychiatric
hospital concerning his medical treatment violated his rights under
Article 3 (Art. 3) of the Convention. He could also arguably claim
that the restrictions on his correspondence violated Article 8 (Art.
8) and those on his access to information Article 10 (Art. 10) of the
Convention. Article 13 (Art. 13) therefore applies in the present
case. However, insofar as the Commission did not find it necessary to
examine whether there had been a violation of the applicant's right to
respect for his private life protected by Article 8 (Art. 8) (para.
260), the same finding must be made as regards the right to a remedy
in relation to this specific complaint.
282. The Government submit that, insofar as the restrictions of the
applicant's rights in the psychiatric hospital were based on the
consent of his guardian, he could have taken proceedings in the
guardianship court claiming that the guardian's actions were
unjustified. He did in fact lodge complaints concerning the guardian's
conduct. The Commission has accepted that effective remedies existed
in this respect (cf. final decision on admissibility of 4 October
1989, Annex III at pp. 98-99).
283. However, the Commission recalls that the applicant's rights
under the Convention were mainly restricted by the hospital's
measures, and therefore effective remedies against these measures were
required. The Commission is aware that if such remedies existed the
applicant would not have been able, due to his legal incapacitation,
to exercise them himself, but would have needed the assistance of
his guardian or another curator appointed for him. In the
Commission's view this circumstance would not have deprived the
remedies in question of their effectiveness.
284. The only remedies in the Austrian legal system against the
acts of the hospital which appear to be relevant are the complaints
procedure before the Constitutional Court under Article 144 of the
Federal Constitution and the complaints procedure before the
Administrative Court under Article 130 of the Federal Constitution.
Both procedures are available under the same conditions.
285. The Government have expressed doubts that the applicant could
have challenged the measures of the hospital concerning his medical
treatment, his correspondence and his access to information before the
Constitutional Court. They submit that the applicant could
nevertheless have tried this remedy with the assistance of his
guardian. The applicant claims that he was not required to use this
remedy as it was clear from the Austrian legal doctrine and the
Constitutional Court's case-law that he had no chance of success.
286. The parties agree that a possibility of challenging the
hospital's measures before the Constitutional Court would only have
existed if these measures were qualified as administrative acts,
i.e. either as formal administrative decisions or as acts of direct
administrative compulsion. The Government do not assert that such a
qualification of the measures in question was possible under Austrian
law. The applicant excludes such a possibility.
287. In these circumstances the Commission does not find it
established that the complaints procedure before the Constitutional
Court or the Administrative Court would have constituted effective
remedies in the applicant's case. There was apparently no other remedy
available to the applicant by which he could effectively challenge the
hospital's measures. Even with the assistance of his guardian or
another curator he could not bring the substance of his complaints
under Article 3, Article 8 (Art. 3, 8) as regards correspondence, and
Article 10 (Art. 10) of the Convention before a competent national
authority clearly empowered to take a decision on the matter.
Conclusions
288. The Commission concludes, by 18 votes to 2, that there has
been a violation of Article 13 (Art. 13) of the Convention in that no
effective remedy was available to the applicant before a national
authority concerning his complaints under Article 3, Article 8 (Art.
3, 8) as regards correspondence, and Article 10 (Art. 10) of the
Convention.
289. The Commission concludes, by a unanimous vote, that it is not
necessary to examine whether there has been a violation of Article 13
(Art. 13) in regard to the remaining complaint under Article 8
(Art. 8) of the Convention.
F. Recapitulation
290. The Commission concludes, by 11 votes to 9, that there has
been no violation of Article 5 para. 1 (Art. 5-1), concerning the
substantive justification of the applicant's detention under
sub-paragraphs (c) and (e) of this provision during the periods when
it was lawful (cf. para. 217 above).
The Commission concludes by a unanimous vote that there has
been a violation of Article 5 para. 1 (Art. 5-1) of the Convention in
that there were two periods during which the applicant's detention as
a person of unsound mind was not lawful under sub-paragraph (e) of
this provision (cf. para. 218 above).
The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 para. 3 (Art. 5-3) of the Convention
(cf. para. 229 above).
The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 4 (Art. 5-4) of the Convention in
that the decisions on the lawfulness of the applicant's continued
detention were not taken speedily and at reasonable intervals (cf.
para. 240 above).
The Commission concludes, by a unanimous vote, that there has
been a violation of Article 3 (Art. 3) of the Convention as regards
the conditions of the applicant's detention in the psychiatric
hospital (cf. para. 255 above).
The Commission concludes, by a unanimous vote, that it is not
necessary to consider the facts which have been dealt with under
Article 3 also under Article 8 (Art. 3, 8) of the Convention (cf.
para. 260 above).
The Commission concludes, by a unanimous vote, that there has
been a violation of Article 8 (Art. 8) of the Convention, as regards
interference with the applicant's correspondence (cf. para. 274
above).
The Commission concludes, by a unanimous vote, that there has
been a violation of Article 10 (Art. 10) of the Convention, as regards the
applicant's right to receive information (cf. para. 279 above).
The Commission concludes, by 18 votes to 2, that there has been
a violation of Article 13 (Art. 13) of the Convention in that no effective
remedy was available to the applicant before a national authority
concerning his complaints under Article 3, Article 8 (Art. 3, 8) as
regards correspondence, and Article 10 (Art. 10) of the Convention
(cf. para. 288 above).
The Commission concludes, by a unanimous vote, that it is not
necessary to examine whether there has been a violation of Article 13
(Art. 3) in regard to the remaining complaint under Article 8 (Art. 8)
of the Convention. (cf. para. 289 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
27 November 1978 Introduction of the application
22 August 1983 Registration of the application
Examination of Admissibility
4 October 1983 Rapporteur requests information
from Government
13 December 1983 Government submit information
31 December 1983 ) Applicant's comments
21 April 1984 )
21 May 1984 Rapporteur requests Government to
submit full documentation of case
11 July 1984 Government submits documents
26 July 1984 ) Applicant's comments
25 October 1984 )
10 March 1988 Commission's decision to reject
certain complaints and to invite
the Government to submit
observations on the admissibility
and merits of remaining complaints
6 June 1988 Extension of time-limit
22 July 1988 Further extension of time-limit
29 July 1988 Government's observations
2 August 1988 Applicant invited to submit
observations in reply before
20 September 1988
29 September 1988 Suspension of time-limit in view of
applicant's request for legal aid
9 January 1989 Legal aid granted. Applicant invited
to submit observations before
6 March 1989
10 March 1989 Extension of time-limit
HISTORY OF PROCEEDINGS (continued)
Date Item
______________________________________________________________________
26 May 1989 Further extension of time-limit
31 May 1989 Applicant's observations
4 October 1989 Commission's decision to declare part
of application admissible and to
reject remainder of application
Examination of the merits
27 October 1989 Admissibility decision communicated
to the parties who are invited to
submit observations on the merits
before 15 December 1989
15 December 1989 Applicant has no further legal
submissions to make but reserves
reply to Government's observations
8 January 1990 Extension of time-limit at
Government's request
10 February 1990 Commission suspends time-limit in
view of settlement negotiations
21 May 1990 President fixes new time-limit
15 June 1990 Government's observations
Applicant's request to extend
time-limit in view of change of
legal representative
7 July 1990 Commission fixes 3 September 1990
as time-limit for applicant's
observations
3 September 1990 Applicant's observations
11 October 1990 Supplement to applicant's observations
7 December 1990 Commission considers state of
proceedings
8 and 17 January 1991 Commission's deliberations
on the merits and final votes
1 March 1991 Adoption of the Report