Lexploria

Application No. 13770/88

M.

against

the FEDERAL REPUBLIC OF GERMANY

REPORT OF THE COMMISSION

(adopted on 26 February 1991)

TABLE OF CONTENTS

PAGE

I. INTRODUCTION

(paras. 1 - 18) ....................................... 1

A. The application

(paras. 2 - 4) ............................... 1

B. The proceedings

(paras. 5 - 14) .............................. 1 - 2

C. The present Report

(paras. 15 - 19) ............................. 2 - 3

II. ESTABLISHMENT OF THE FACTS

(paras. 20 - 33) ..................................... 4 - 7

A. The particular circumstances of the case

(paras. 20 - 30) ............................. 4 - 5

B. Relevant domestic law

(para. 31 - 34) .............................. 5 - 7

III. OPINION OF THE COMMISSION

(paras. 35 - 47) .................................... 8 - 10

A. Complaint declared admissible (para. 35) ..... 8

B. Point at issue (para. 36)..................... 8

C. Article 5 para. 4 of the Convention

(paras. 37 - 46) ............................. 8 - 10

D. Conclusion

(para. 47) ................................... 10

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 9

APPENDIX II : PARTIAL DECISION OF 12 OCTOBER 1988 ....... 10

APPENDIX III : DECISION TO STRIKE THE APPLICATION

OFF THE LIST OF CASES ..................... 15

APPENDIX IV : FINAL DECISION ON THE ADMISSIBILITY ....... 18

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 citizen born in 1955. He is at

present at a mental hospital in Cologne. Since November 1990 the

applicant has been represented by Mr. K. Bernsmann, a law professor at

Cologne University.

3. The application is directed against the Federal Republic of Germany.

The Government are represented by their Agent, Mr. J. Meyer-Ladewig,

Ministerialdirigent, of the Federal Ministry of Justice, Bonn.

4. The case relates to German court proceedings to determine

whether the applicant's detention in a psychiatric hospital should be

terminated. In these proceedings the applicant was not assisted by a

lawyer. He invokes Article 5 para. 4 of the Convention.

B. The proceedings

5. The application was introduced on 22 October 1986 and

registered on 15 April 1988.

6. On 12 October 1988, the Commission decided to give notice of the

application, insofar as it concerned the court proceedings in 1986

concerning the applicant's request to be released, to the respondent

Government in accordance with Rule 42 para. 2 (b) of its Rules of

Procedure (former version) and to invite them to present, by

13 January 1989, written observations on the admissibility and merits

of the complaint under Article 5 para. 4 of the Convention. The

Commission also declared inadmissible the remainder of the application,

in which the applicant invoked Articles 2 - 14, 17 and 18 of the

Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of

Protocol No. 4 to the Convention.

7. The respondent Government submitted their observations on

10 January 1989.

8. The applicant, who had been requested to submit observations

in reply before 10 March 1989, failed to respond to repeated requests

from the Commission and, on 10 July 1989, the Commission decided to

strike the application off its list of cases in accordance with

Rule 44 para. 1 of its Rules of Procedure (former version).

9. On 13 November 1989 the applicant informed the Commission that,

for health reasons, he had been prevented from replying to the Commission's

letters. He made further submissions on 24 and 27 November 1989.

10. On 13 Febuary 1990, the Commission restored to its list of

cases and declared admissible the applicant's complaint relating to

the court proceedings in 1986 concerning his request to be released

from detention in a mental hospital.

11. The parties were then invited to submit any additional

observations on the merits which they wished to make. On 24 April 1990

the respondent Government informed the Commission that they did not find

it necessary to submit any further observations on the merits of the

case. The applicant did not submit any substantial observations on

the merits of the case.

12. On 3 October 1990 the Commission decided to invite the parties

to a hearing on the merits of the application. The Commission also

decided to grant the applicant legal aid.

13. At the hearing which was held on 10 January 1991 the applicant

was represented by Professor Bernsmann; the applicant was also

present. The Government were represented by their Agent, Ministerial-

dirigent Meyer-Ladewig.

14. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. Consultations with the parties took

place between 15 February and 8 May 1990 as well as in January and

February 1991. The Commission now finds that there is no basis on

which such a settlement can be effected.

C. The present Report

15. 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

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

J. C. SOYER

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

J. C. GEUS

M. PELLONPÄÄ

16. The text of this Report was adopted on 26 February 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.

17. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

18. 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 application as Appendices II-IV.

19. The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

20. In November 1981 proceedings were instituted against the

applicant with a view to confining him to a psychiatric hospital

(Sicherungsverfahren), and he was provisionally detained in a

psychiatric hospital.

21. On 14 March 1983 the Cologne Regional Court (Landgericht)

took a final decision under S. 63 of the German Criminal Code

(Strafgesetzbuch) that the applicant be detained in a psychiatric

hospital (Unterbringung in einem psychiatrischen Krankenhaus). The

Regional Court found that the applicant had performed acts which

constituted the offences of insult (Beleidigung) contrary to S. 185 of

the Criminal Code, injury (Körperverletzung) contrary to S. 223

para. 1 (1) of the Criminal Code applicable at the time, resisting law

enforcement authorities (Widerstandsleistung) contrary to S. 113

para. 1 of the Criminal Code and various traffic offences. However,

he could not be held responsible for the offences on the ground that

he suffered from a schizophrenic psychosis with signs of paranoia.

22. On 7 September 1984 the Cologne Administrative Court

(Verwaltungsgericht), in one of numerous proceedings instituted by the

applicant in connection with his detention, declared inadmissible the

applicant's request for legal aid on the ground that he was incapable

of taking part in such proceedings. The Administrative Court

considered that it was not necessary to order an expert opinion on

that question, as the applicant's mental illness was so obvious that

the relevant facts could be assessed without expert knowledge.

23. On 3 September 1984 and on 5 August 1985, the Aachen

Regional Court, referring to S. 67 e para. 2 of the Criminal Code,

ordered that the applicant's detention in a psychiatric hospital

should continue. In its decision of 5 August 1985, the Regional Court

found inter alia that the applicant's delusions had become more

severe in the meantime, his thinking had lost any link with reality.

The Court suggested that guardianship proceedings (Entmündigungs-

verfahren) be instituted against the applicant.

24. On 3 March 1986 the applicant complained to the Aachen

Regional Court that, inter alia, he had not been represented by a

lawyer in the above proceedings. On 12 March 1986 the applicant was

told by the Regional Court that there was no legal basis in such cases

for detainees to be represented by official lawyers.

25. On 7 July 1986 the Aachen Regional Court dismissed the

applicant's request for release on probation (S. 67 e para. 2 of the

Criminal Code). The Regional Court, referring also to its previous

decision of 5 August 1985, found that it was too early to put to the

test whether the applicant would no longer commit criminal offences

outside a psychiatric hospital.

The Court relied in particular on a written opinion of 20 June

1986, by three members of the hospital staff, according to which the

applicant's state of mental health had further deteriorated, and on

its own personal impression of the applicant who had been heard at the

hospital on 7 July 1986. The Regional Court stated that, on this

occasion, the applicant had lodged numerous complaints and contended

that he was not identical with the person named M., that he had three

doctor's degrees and was Presiding Judge at the Supreme Military Court

of the United States of America. The Regional Court, referring to

recent case-law of the Federal Constitutional Court (Bundes-

verfassungsgericht), considered that the applicant's continued

detention was proportionate to the aim pursued, i.e. the protection of

the general public. Finally, the Court noted that proceedings with a

view to placing the applicant under guardianship were pending.

26. The applicant was not represented by counsel in these

proceedings or in the appeal proceedings which followed.

27. On 2 September 1986 the Cologne Court of Appeal

(Oberlandesgericht) dismissed the applicant's appeal (Beschwerde).

28. On 10 February 1987 the Federal Constitutional Court refused

to admit the applicant's constitutional complaint (Verfassungs-

beschwerde) on the ground that it offered no prospect of success. The

Court found in particular that it had so far not been obvious, having

regard to his illness, that the applicant could not properly defend

himself. The fact that he had not been represented by official

lawyers in the preceding proceedings could not, therefore, be objected

to under constitutional law. However, having regard to the increasing

symptoms of his illness and the length of his detention, the

appointment of an official lawyer should, in future, be considered.

29. On 19 March 1987 the Cologne District Court (Amtsgericht)

decided to place the applicant under guardianship. Having regard to

an expert opinion of June 1986, the District Court found that the

applicant suffered from a serious mental illness preventing him from

dealing with his private affairs.

30. On 4 January 1989 the Aachen Regional Court ordered that the

applicant be released on probation as from 8 May 1989. The

supervisory conditions attached to this decision included that he

remain on the premises of the hospital where he had been detained

provided suitable accommodation was available. The Court considered

the fact that the applicant was now under guardianship as particularly

relevant.

B. Relevant domestic law

31. S. 20 of the German Criminal Code (Strafgesetzbuch) determines

the exemption from criminal liability by reason of mental or emotional

disturbance as follows:

(German)

"Ohne Schuld handelt, wer bei Begehung der Tat wegen einer

krankhaften seelischen Störung, wegen einer tiefgreifenden

Bewußtseinsstörung oder wegen Schwachsinns oder einer

schweren anderen seelischen Abartigkeit unfähig ist, das

Unrecht der Tat einzusehen oder nach dieser Einsicht zu

handeln."

(Translation)

"Any person who, at the time of commission of the offence, is

incapable of appreciating the unlawfulness of the offence or

of acting in accordance with such appreciation by reason of

a morbid mental or emotional disturbance, by reason of a

profound disturbance of consciousness or by reason of mental

deficiency or some other serious mental or emotional

abnormality, acts without culpability."

32. SS. 63 to 67 g of the Criminal Code concern non-punitive

measures involving deprivation of liberty. S. 63 concerning the

detention in a psychiatric hospital reads as follows:

(German)

"Hat jemand eine rechtswidrige Tat im Zustand der

Schuldunfähigkeit (S. 20) oder der verminderten

Schuldfähigkeit (S. 21) begangen, so ordnet das Gericht die

Unterbringung in einem psychiatrischen Krankenhaus an, wenn

die Gesamtwürdigung des Täters und seiner Taten ergibt, daß

von ihm infolge seines Zustandes erhebliche rechtswidrige

Taten zu erwarten sind und er deshalb für die Allgemeinheit

gefährlich ist."

(Translation)

"Where a person has committed an unlawful act in a state

exempting him from criminal liability (S. 20) or in a

state of diminished responsibility (S. 21), the court

shall order his detention in a psychiatric hospital if the

overall assessment of the offender and of his offence reveals

that, in consequence of his state, he must be expected to

commit serious unlawful acts and therefore poses a danger to

the general public."

As regards the review of such detention, S. 67 d para. 2 and

S.67 e provide:

S. 67 d para. 2

(German)

"Ist keine Höchstfrist vorgesehen ..., so setzt das

Gericht die weitere Vollstreckung der Unterbringung zur

Bewährung aus, sobald verantwortet werden kann zu erproben,

ob der Untergebrachte außerhalb des Maßregelvollzugs keine

rechtswidrigen Taten mehr begehen wird. Mit der Aussetzung

tritt Führungsaufsicht ein."

(Translation)

"Where there is no provision for a maximum period ...,

the court shall suspend the further execution of the

detention on probation as soon as the detainee can

responsibly be allowed out of the psychiatric hospital to

see whether he will desist from further unlawful acts.

Suspension shall be followed by supervision of conduct."

S. 67 e

(German)

"(1) Das Gericht kann jederzeit prüfen, ob die weitere

Vollstreckung der Unterbringung zur Bewährung

auszusetzen ist. Es muß dies vor Ablauf bestimmter

Fristen prüfen.

(2) Die Fristen betragen bei der Unterbringung in einer

Erziehungsanstalt sechs Monate, in einem psychiatrischen

Krankenhaus ein Jahr, in der Sicherungsverwahrung zwei

Jahre."

(Translation)

"(1) The court may at any time review the question of

whether the further execution of the detention should

be suspended on probation. It shall review this before the

expiry of certain periods.

(2) The periods shall be for detention in an alcohol or drug

dependency unit, six months; for detention in a psychiatric

hospital, one year; for detention in preventive detention,

two years."

33. S. 140 of the German Code of Criminal Procedure (Strafprozeß-

ordnung) regulates the cases in which an accused must be defended by

counsel. S. 140 para. 1 lists particular cases; with regard to other

cases, paragraph 2, insofar as relevant, provides:

(German)

"In anderen Fällen bestellt der Vorsitzende auf Antrag oder von

Amts wegen einen Verteidiger, wenn wegen der Schwere der Tat oder

wegen der Schwierigkeit der Sach- oder Rechtslage die Mitwirkung

eines Verteidigers geboten erscheint oder wenn ersichtlich ist,

daß sich der Beschuldigte nicht selbst verteidigen kann ..."

(Translation)

"In other cases, the Presiding Judge, upon request or ex officio,

shall appoint a defence counsel, if, having regard to the

seriousness of the crime or the difficulty of the factual or

legal issues involved, the assistance of a defence counsel

appears to be necessary, or if it is obvious that the accused

cannot defend himself ..."

34. According to case-law of the Federal Constitutional Court

(decision of 8 October 1985 - 2 BvR 1150/80, 2 BvR 1504/82 -

Entscheidungssammlung des Bundesverfassungsgerichts Vol. 70, pp. 297

et seq.) the principle of proportionality governs the detention of a

person in a psychiatric hospital and its continuance. The judge

deciding whether to suspend on probation the further execution of the

detention in a psychiatric hospital has to consider in particular the

risk of considerable criminal offences, the detainee's previous

conduct and criminal behaviour, relevant changes in the circumstances

since his detention was ordered and the detainee's future living

conditions. The longer the detention in a psychiatric hospital lasts,

the stricter the test of proportionality becomes.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

35. The Commisison has declared admissible the applicant's

complaint that the proceedings before the Aachen Regional Court and

the Cologne Court of Appeal in 1986, in which his detention in a

psychiatric hospital was reviewed under S. 67 e of the Criminal Code,

were not in accordance with Article 5 para. 4 (Art. 5-4) of the Convention.

B. Point at issue

36. Accordingly, the issue to be determined is whether there has

been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.

C. Article 5 para. 4 (Art. 5-4) of the Convention

37. Article 5 para. 4 (Art. 5-4) of the Convention provides:

"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."

38. The applicant submits that the court proceedings in 1986,

concerning the review of his detention in a psychiatric hospital, did

not satisfy the requirements under Article 5 para. 4 (Art. 5-4) of the

Convention on the ground that he was not assisted by an official

lawyer.

He considers that these proceedings involved difficult legal

problems, i.e., the proportionality of his continued detention in a

psychiatric hospital and a prognosis as to his dangerousness, and

factual issues which could only be determined after consultation of

the file, in particular the expert opinions. Both aspects required

assistance by a lawyer.

39. The Government submit that the right to an officially

appointed lawyer is only included in the procedural guarantees

afforded by Article 5 para. 4 (Art. 5-4) of the Convention where the

interests of justice so require. They consider that the court, in

review proceedings concerning detention in a psychiatric hospital,

shall appoint an official lawyer in all cases where, in the light of

the particular circumstances, it is obvious that, due to his illness,

the detainee is unable to defend himself.

The Government admit that, in the present case, there are

various reasons to conclude, with hindsight, that assistance by a

lawyer was necessary. They argue, however, that the Aachen Regional

Court heard the applicant and was able to gain its own impression of

his ability to defend himself. It cannot be established that in the

court proceedings in 1986 the necessity of legal assistance was

obvious. Moreover, the applicant did not request an official lawyer.

40. The Commission recalls that in matters of deprivation of

liberty Article 5 para. 4 (Art. 5-4) of the Convention requires a control

procedure which has "a judicial character and gives to the individual

concerned guarantees appropriate to the kind of deprivation of liberty

in question; in order to determine whether a proceeding provides

adequate guarantees, regard must be had to the particular nature of

the circumstances in which such proceedings take place" (cf. Eur.

Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33,

p. 23, para. 57 with reference to the De Wilde, Ooms and Versyp

judgment of 18 June 1971, Series A no. 14, pp. 41, 42, paras. 76 in

fine and 78; Wassink judgment of 7 September 1990, Series A no. 185A,

para. 30 with further reference).

It is one of the principal guarantees of a judicial procedure

for the purposes of the Convention that it is really adversarial and

allows proper participation of the individual concerned (cf. Eur.

Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 32,

para. 66 with further reference). In particular circumstances, it is

essential not only that the individual concerned should have the

opportunity to be heard in person but also that he has the effective

assistance of a lawyer (cf. Eur. Court H.R., Bouamar judgment of 29

February 1988, Series A no. 129, p. 24, para. 60 concerning the

placement of juveniles in a remand prison).

41. With regard to the judicial procedure under Article 5

para. 4 (Art. 5-4), the detention of persons of unsound mind within

the meaning of Article 5 para. 1 (e) constitutes a special category.

Mental illness may entail restricting or modifying the right of access

to a court and the opportunity to be heard, but it cannot justify

impairing the very essence of the right. Indeed, special procedural

safeguards may be called for in order to protect the interests of

persons who, on account of their mental disabilities, are not fully

capable of acting for themselves (cf. Winterwerp judgment, op. cit.,

p. 23, para. 58 and p. 24, para. 60).

42. In the present case the Aachen Regional Court and, upon

appeal, the Cologne Court of Appeal, had to review the applicant's

detention in a psychiatric hospital under S. 67 e of the Criminal

Code. The decisive issue under criminal law was whether the

applicant, having regard to his state of mental health and in

particular the probability of further acts of aggression, would commit

unlawful acts outside a psychiatric hospital. The Courts thereby

had to consider difficult factual questions. In this respect, the

Aachen Regional Court had recourse to a psychiatric expert opinion and

heard the applicant personally. Furthermore, the applicant's case

involved legal issues under constitutional law, namely the question of

proportionality of his continued detention, which had, the provisional

detention in 1981 taken into account, lasted almost five years.

43. As regards the applicant's state of mental health, the

Commission notes that, according to the judgment of the Cologne

Regional Court of 1983, the applicant suffered from a schizophrenic

psychosis with signs of paranoia. The Cologne Administrative Court,

in a decision in 1984, found that the applicant, having regard to his

obvious mental illness, was incapable of instituting administrative

court proceedings related to his detention. In 1985 the Aachen

Regional Court considered that the applicant's delusions had become

more severe and that he had lost any link with reality, and suggested

guardianship proceedings. In 1986, the applicant's state of health

had further deteriorated. At the hearing before the Aachen Regional

Court, as summarised in the Regional Court's decision of 7 July 1986,

the applicant's submissions reflected his grave mental disorder. In

1987 he was placed under guardianship.

44. The Commission, having regard to the course of the German court

proceedings and in particular the Regional Court's reasoning in its

decision of 7 July 1986, finds that the applicant himself could not

effectively argue his case. At the hearing of 7 July 1986 the Aachen

Regional Court only obtained a personal impression of the applicant's

state of health. A lawyer would have had to deal not only with the

important legal aspects of the applicant's case, which necessitated

knowledge of the recent case-law of the Federal Constitutional

Court in these matters. He would also have had properly to present the

relevant facts, in particular with regard to the psychiatric expert

opinion, and to support the applicant in general.

45. In the Commission's opinion it is not for the person detained

as a "person of unsound mind" to request that a lawyer be officially

appointed (cf. mutatis mutandis, Winterwerp judgment, op. cit., p. 26,

para. 66). Moreover, it appears from a letter of the Aachen Regional

Court of 12 March 1986 which was addressed to the applicant in reply

to his earlier submissions that the Court did not further consider the

appointment of an official lawyer to assist the applicant in the

review proceedings before it.

46. In these circumstances, the proceedings before the Aachen

Regional Court and the Cologne Court of Appeal in 1986 did not

offer the fundamental procedural guarantees required under Article 5

para. 4 (Art. 5-4).

D. Conclusion

47. The Commission unanimously concludes that there has been a

violation of Article 5 para. 4 (Art. 5-4)of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

22 October 1986 Introduction of the application

15 April 1988 Registration of the application

Examination of Admissibility

12 October 1988 Commission's decisions (i) to invite

the Government to submit observations

on the admissibility and merits of

part of the application and

(ii) to declare the remainder of

the application inadmissible

10 January 1989 Government's observations

10 July 1989 Commission's decision to strike the

the application off its list of cases

13 February 1990 Commission's decisions (i) to restore

to its list of cases the complaint

relating to Article 5 para. 4 and

(ii) to declare this complaint admissible

Examination of the merits

7 July 1990 Commission's consideration of the

state of proceedings

3 October 1990 Commission's decision to invite

the parties to an oral hearing

10 January 1991 Oral hearing; Commission's

deliberations on the merits

26 February 1991 Final vote and adoption of the Report

Menu

M. v. GERMANY

M. v. GERMANY

LEXI