Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24874/94

by Frank BECHER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 27 June 1994 by

Frank BECHER against Germany and registered on 10 August 1994 under

file No. 24874/94;

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 is a German citizen, born in 1963. He was detained

in prison in Butzbach when he lodged the present application. He is

represented by Mr. Volker Seiring, a lawyer practising in Freiburg.

It follows from his statements and the documents submitted that

on 13 May 1992 the applicant was convicted by the Regional Court

(Landesgericht) in Freiburg of sexual abuse of children and other

offenses. He was sentenced to six years' imprisonment.

On 16 April 1993 a court officer (Rechtspfleger) rejected as

being inadmissible the applicant's request to deduct from his prison

sentence the time he had previously spent in a mental hospital as a

consequence of a decision given by the Lörrach District Court

(Amtsgericht) on 12 March 1990 revoking the applicant's provisional

release in a previous matter.

The applicant had previously been committed to a mental hospital

by the Offenbach District Court on 10 March 1982 as he had sexually

abused a child and in the light of a medical expert opinion it was

considered that he was criminally not responsible on account of a

personality disorder (Persönlichkeitsstörung) and that there was a

danger that he would repeat the offence.

On 15 March 1988 the applicant had been conditionally released

from the mental hospital.

On 18 October 1990 the applicant was convicted by the Regional

Court of Freiburg on two counts of sexual abuse of children and related

offences. He was sentenced to one year and three months' imprisonment.

In addition the court ordered in accordance with Section 63 of the

Penal Code (StGB) that he be detained in a mental hospital. While he

was detained on remand between 7 February 1990 and 29 July 1990 he was

committed to a mental hospital on 30 July 1990 in execution of the

judgment of 10 March 1982 as the applicant's conditional release of

15 March 1988 had been revoked on account of the new charges.

On 11 February 1992 the Marburg Regional Court decided that the

orders of 10 March 1982 and 18 October 1990 committing the applicant

to a mental hospital had become without object (für erledigt erklärt)

as according to an expert opinion obtained in the criminal proceedings

leading to the conviction of 13 May 1992 the applicant was criminally

responsible and consequently the requirement to commit him to a mental

hospital in accordance with Section 63 of the Penal Code was not given.

The applicant therefore considered that the total of the time he

spent in a mental hospital after the revocation of his conditional

release should be applied towards his sentence.

The applicant's appeal (Einwendung) against the court officer's

order of 16 April 1993 was rejected by the Giessen Regional Court on

6 May 1993. The Court found that the order complained of was in

conformity with the law (entsprechen der [derzeitigen] Gesetzeslage)

and therefore unobjectionable.

A further appeal (sofortige Beschwerde) was rejected by the Court

of Appeal (Oberlandesgericht) at Frankfurt am Main for the reasons

stated by the Regional Court.

The applicant then lodged a constitutional complaint which was

rejected by a panel of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 3 January 1994 as offering no prospects

of success. It is stated in the decision that it did not violate a

person's dignity (Würde des Menschen, Art. 1 (1) of the Basic Law -GG)

if the time spent in a mental hospital was not credited towards a

sentence imposed in another matter. This was furthermore not

discriminatory as the present regulation was justified for reasons of

practicality and because it avoided possible unjustified advantages in

cases of recidivists (... eine Anrechnung hätte zu einer

ungerechtfertigten Vergünstigung für Wiederholungstäter geführt und bei

der Durchführung im Einzelfall erhebliche Praktikalitätsprobleme

erwarten lassen).

COMPLAINTS

The applicant argues that his detention in the mental hospital

was retroactively declared unlawful. He considers that the denial of

the judicial authorities to deduct the period in question from the

sentence he has to serve therefore violates Article 5 para. 1 and

Article 7 para. 1 of the Convention, because if he had been treated

lawfully he would have been detained on remand and in this case the

relevant period would have been deductible from the sentence.

THE LAW

1. The applicant mainly complains under Article 5 (Art. 5) of the

Convention that the revocation of his conditional release and

subsequent detention in a mental hospital was unlawful because the

Marburg Regional Court decided on 11 February 1992 that the orders of

10 March 1982 and 18 October 1990 committing him to a mental hospital

had become without object. He therefore considers that his request to

deduct the time spent in a mental hospital from the sentence imposed

on him on 13 May 1992 was wrongly refused.

However, the orders of 10 March 1982 and 18 October 1990 have

been given in the course of criminal proceedings against the applicant

and thus in accordance with a procedure prescribed by law. The

applicant has not shown that the orders given in these proceedings were

unlawful.

The Commission already held that a national court's decision

setting aside a conviction did not retroactively affect the

"lawfulness" of the detention following that conviction (No. 3245/67,

Dec. 4.2.69, Yearbook 12, pp. 207, 236; cf. also No. 2932/66,

Dec. 19.12.69, Collection 31, pp. 8, 14).

In the present case, there is likewise nothing to show that the

Regional Court's decision declaring the orders of 10 March 1982 and

18 October 1990 to be without object and thereby setting aside the

order revoking the applicant's conditional release retroactively

affected the lawfulness of the applicant's preventive detention in a

mental hospital (cf. No. 14129/88, Dec. 18.5.92, unpublished).

In any event, a violation of Article 5 para. 1 (Art. 5-1) of the

Convention would, if it were found to exist, possibly give rise to a

claim for compensation under Article 5 para. 5 (Art. 5-5) but not to

a claim that the period during which a person was unlawfully detained

be deducted from a prison sentence imposed on that person in another

matter.

2. The applicant also invokes Article 7 (Art. 7) of the Convention

which embodies the principle of nullum crimen sine lege. However the

applicant's detention in a mental hospital was not ordered because he

was held guilty of a criminal offence but because he was considered to

be criminally not responsible. The Commission considers that the

impugned court decisions do not disclose any appearance of

arbitrariness. In these circumstances Article 7 (Art. 7) is not

applicable and to this extent the application has to be rejected as

being incompatible with the Convention ratione materiae under Article

27 para. 2 (Art. 27-2).

As no appearance of a violation of Article 5 para. 1 (Art. 5-1)

nor of Article 7 (Art. 7) has been established the applicant's

complaint about the order refusing to deduct from his prison sentence

the time he spent detained in a mental hospital must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BECHER v. GERMANY

BECHER v. GERMANY

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