Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26353/95

by E. J.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 October 1994

by E. J. against Germany and registered on 30 January 1995 under file

No. 26353/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a German citizen born in 1934, is a car mechanic

residing in Giessen in Germany. Before the Commission he is

represented by Mr T. Döhmer, a lawyer practising in Giessen.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1962 the Kassel Regional Court (Landgericht) convicted the

applicant of having committed bodily injury. In view of a medical

expert opinion, which found that the applicant suffered from

schizophrenia, the Court ordered his detention in a psychiatric

hospital.

The detention was suspended on probation in 1971. The applicant

was ordered to live in an open house belonging to the hospital and

regularly to take neuroleptic medication. From 1972 until 1973 he was

again detained whereupon the conditions of detention were gradually

relaxed. From 1980 to 1981 he was detained. As from 1982 he was

allowed to leave the hospital to visit the town. When during this time

the applicant's medication was occasionally reduced, he suffered

mental alienations (Wahnvorstellungen).

In 1984 the applicant was observed at the hospital during a

period of three months. A medical opinion prepared by two medical

specialists concluded as a result that the applicant suffered from

schizophrenia which could nevertheless be alleviated by medication.

As from 1985 he lived in a home of the hospital. In 1987

medication was stopped temporarily whereupon his mental situation

deteriorated.

In 1989 the applicant's suspended detention on probation was

revoked and he was placed in psychiatric detention from which he was

released on 15 October 1993.

On 21 December 1993 the Marburg Regional Court ordered the

applicant's continuing psychiatric detention, as he had to be protected

from committing acts amounting to criminal offences.

In a separate decision of the same day, the Court also refused

the applicant's request not to be treated with medication. The Court

referred to the psychiatric hospital's conclusions according to which

the applicant suffered from paranoid schizophrenia leading to a change

of his perception of the interior and exterior situation and bringing

about fear and persecution paranoia. While the medication could not

actually cure the applicant, it alleviated his psychotic experiences

(psychotisches Erleben). To the extent that the applicant did not

agree to medication, the Court relied on S. 7 of the Hessen Act on the

Enforcement of Preventive Measures (Massregelvollzugsgesetz) which

envisages medical treatment against the will of a person. The Court

considered that the applicant's medication actually enabled an

amelioration of his situation permitting his release from hospital.

A further medical opinion of 3 February 1994 concluded that,

while the applicant continued to suffer from chronic schizophrenia, he

could be released from psychiatric detention, though he would continue

to require medication.

On 21 March 1994 the Marburg Regional Court suspended the

applicant's psychiatric detention on probation and placed the applicant

under curatorship (Führungsaufsicht) for a period of five years. With

reference to the previous decisions the applicant was ordered regularly

to obtain medication at the psychiatric hospital.

The applicant's appeal was dismissed by the Frankfurt Court of

Appeal (Oberlandesgericht) on 21 June 1994 which found that it could

only examine the lawfulness of the contested decision, and that in the

given case the contested decision of 21 March 1994 did not disclose any

legal errors (Rechtsfehler).

The applicant's constitutional complaint (Verfassungsbeschwerde),

in which he complained about a breach of the principle of

proportionality, was dismissed by the Federal Constitutional Court

(Bundesverfassungsgericht) on 13 September 1994.

On 11 October 1994 the Kassel Regional Court dismissed the

applicant's request for compensation for having spent 32 years in a

psychiatric hospital.

COMPLAINTS

The applicant complains of the unduly long period of enforcement

of preventive measures (Massregelvollzug) which amounted to inhuman and

degrading punishment and treatment contrary to Article 3 of the

Convention. In respect of the medication which he is obliged to take

and which, in his view, is not indicated in his case, he also raises

complaints under Articles 8 and 9 of the Convention.

Under Article 5 para. 1 of the Convention the applicant, who

directs his application against the decision of the Marburg Regional

Court of 21 March 1994, complains of deprivation of liberty lasting

more than 30 years.

THE LAW

1. The applicant complains under Articles 3, 8 and 9 (Art. 3, 8, 9)

of the unduly long enforcement of preventive measures and in particular

of the medication which he is obliged to take.

The Commission has examined these complaints under Article 3

(Art. 3) of the Convention (see Eur. Court HR, Herzegfalvy v. Austria

judgment of 24 September 1992, Series A no. 244, p. 26, para. 86).

This provision states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

According to the Convention organs' case-law, ill-treatment must

attain a certain level of severity if it is to fall within the scope

of Article 3 (Art. 3). The assessment of this minimum is, in the

nature of things, relative; it depends on all the circumstances of the

case, such as the duration of the treatment, its physical or mental

effects and, in some cases, the sex, age and state of health of the

victim (Eur. Court HR, Ireland v. the United Kingdom judgment of 18

January 1978, Series A no. 25, pp. 65 et seq., paras. 162 et seq.).

The Commission furthermore recalls that, as a general rule, a

measure which is a therapeutic necessity, cannot be regarded as inhuman

or degrading. The Convention organs must nevertheless satisfy

themselves that the medical necessity has been convincingly established

(see Eur. Court HR, Herzcegfalvy v. Austria judgment, op. cit., p. 26,

para. 82).

In the present case, the Commission notes, on the one hand, that

the domestic authorities, in particular the Marburg Regional Court in

its decisions of 21 December 1993 and 21 March 1994, relied on S. 7 of

the Hessen Act on the Enforcement of Preventive Measures which

envisages medical treatment against the will of a person.

On the other hand, the domestic authorities carefully balanced

the different interests at stake. Based on various medical expert

opinions it was considered that the applicant suffered from chronic

schizophrenia which was alleviated by medication. The authorities

carefully monitored the applicant's situation and, as a result, either

placed him in psychiatric detention when it was necessary to protect

him, or released him whereby he occasionally lived in houses belonging

to the psychiatric hospital. In its decisions of 21 December 1993 and

21 March 1994 the Marburg Regional Court found that the medication at

issue enabled an amelioration of the applicant's situation in that it

protected him from committing criminal acts and eventually permitted

his release from detention.

In these circumstances, the Commission finds that the treatment

complained of does not fall within the scope of treatment prohibited

by Article 3 (Art. 3) of the Convention.

This part of the application is, therefore, manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 5 para. 1 (Art. 5-1) of the

Convention of deprivation of liberty lasting more than 30 years.

The Commission observes that on 21 March 1994 the Marburg

Regional Court in fact released the applicant from psychiatric

detention.

Insofar as the applicant is complaining of the previous decisions

which ordered his detention in a psychiatric hospital, he has not shown

that he appealed against the various decisions and, in last resort,

filed a constitutional complaint with the Federal Constitutional Court.

In this respect, the applicant has not complied with the

requirement as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention. The remainder of

the application must, therefore, be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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E.J. v. GERMANY

E.J. v. GERMANY

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