Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23058/93

by H.S.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 4 October 1993 by

H.S. against Germany and registered on 7 December 1993 under file

No. 23058/93;

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 facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1951, is a German national and resident

in Duisburg-Homberg. When lodging his application he was detained at

a psychiatric hospital in Düren. Before the Commission he is

represented by Mr. P. Powierski, a lawyer practising in Düren.

A. Particular circumstances of the case

On 16 July 1976 the Duisburg Regional Court (Landgericht)

convicted the applicant of attempted murder and sentenced him to ten

years' imprisonment. Furthermore, it ordered that the applicant be

confined to a psychiatric hospital in accordance with S. 63 para. 1 of

the Penal Code (Strafgesetzbuch). The Regional Court found that the

applicant, in the course of a term of leave while serving a prison

sentence, had attacked a twenty-year-old girl in a public street at

night with the intention to murder her. The psychiatric expert had

found that the applicant was suffering from a neurotic disturbance of

his personality; and that he would continue to be haunted by fantasies

to overwhelm and to be aggressive to women.

On 29 June 1978 the Euskirchen District Court (Amtsgericht)

convicted the applicant of theft and sentenced him to four months'

imprisonment.

On 8 December 1978 the Duisburg Regional Court fixed a cumulative

sentence (Gesamtfreiheitsstrafe) combining the two above sentences,

namely a sentence to ten years and one month's imprisonment; the

decision to confine the applicant to a psychiatric hospital was upheld.

Between October 1977 and September 1978, the applicant was

detained in a psychiatric hospital in Bedburg-Hau, subsequently he

served his sentence to imprisonment until 15 November 1987. As from

16 November 1987 he was again confined to a psychiatric hospital.

On 3 December 1991, in the course of the regular proceedings to

review the applicant's confinement to a psychiatric hospital, the

Aachen Regional Court decided not to suspend the further execution of

the applicant's confinement to a psychiatric hospital on probation.

On 3 December 1992 the Aachen Regional Court again refused to

suspend the further execution of the applicant's confinement to a

psychiatric hospital on probation. The Regional Court, referring to

S. 67 d para. 2 and S. 67 e para. 2 of the Penal Code, found that it

was too early to put to the test whether the applicant would no longer

commit criminal offences outside a psychiatric hospital. In these

proceedings and the following proceedings, the applicant was

represented by counsel.

The Court relied in particular on a written opinion of

7 August 1992 of the psychiatric hospital in Düren, as confirmed by two

members of the hospital staff at a hearing on 2 December 1992,

according to which the applicant continued to suffer from a serious

neurotic disturbance of his personality (schwer gestörte neurotische

Persönlichkeitsstruktur), resulting in neglect, delinquency, signs of

sexual deviance, impulses of aggressiveness towards women. In the

report, it was stated that in the preceding year the applicant had in

particular again attempted to obtain privileges in the execution of his

confinement, which he had prior to his absconding in July 1991. While

he still required further psychiatric treatment, he himself regarded

his psychological problems as solved and his treatment as terminated.

The report concluded that the applicant, if released from the

psychiatric hospital, would very probably be recidivous. The Court

also noted that the applicant had refused to appear at the hearing of

2 December 1992.

The Regional Court considered that there was no reason to doubt

the therapists' statements in respect of the diagnosis and the state

of the applicant's therapy. Moreover, there was no reason to doubt

their prognosis that the applicant would again commit criminal offences

of the same kind as the one of which he had been convicted in 1978, if

he was released. In this context the Regional Court also found that

counsel's criticism as to the applicant's therapy in the Düren

psychiatric hospital was unfounded.

On 12 February 1993 the Cologne Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal. The Court of Appeal

confirmed the Regional Court's finding 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 of Appeal had detailed

regard to the applicant's psychiatric problems and to his therapy and

general conduct in the course of his detention in the Düren psychiatric

hospital. The Court of Appeal, referring to the case-law of the

Federal Constitutional Court (Bundesverfassungsgericht), further

considered that the applicant's continued detention did not infringe

the principle of proportionality. The Court of Appeal observed that,

the longer the detention in a psychiatric hospital lasted, the stricter

the test of proportionality became. In the present case, the

applicant's right to liberty, taking his lengthy detention into

account, was of considerable importance, but not decisive as, having

regard to the nature and risk of further criminal offences committed

by him, it was unreasonable to release him. In particular, there was

a risk that he would commit further offences against life and limb, as

his state of mind which resulted in the attempted murder in the past,

had not yet been sufficiently cured.

On 11 May 1993 the Federal Constitutional Court refused to admit

the applicant's constitutional complaint (Verfassungsbeschwerde) on the

ground that it offered no prospect of success. The Constitutional

Court, referring to its case-law on the proportionality of prolonged

detention, considered that the impugned court decisions could not be

objected to under constitutional law. The decision was served upon the

applicant's counsel on 5 July 1993.

The applicant continues to be detained in a psychiatric hospital.

B. Relevant domestic law

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 Schuldunfähig-

keit ... oder der verminderten Schuldfähigkeit ... 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 ... or in a state of

diminished responsibility ..., 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 preventive detention, two years."

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 his committing serious 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.

COMPLAINTS

The applicant complains under Article 5 para. 1 (a) and (e) of

the Convention about his continued detention in a psychiatric hospital.

He submits in particular that the court decisions of 1992 were

arbitrary on the ground that the courts had not sufficiently examined

the relevant circumstances; the opinion submitted by the psychiatric

hospital where the applicant was detained, and even by the therapists

treating him, was inappropriate to justify the applicant's further

detention. The applicant also alleges that the expert opinion

delivered in 1992 was identical to opinions submitted previously in the

context of review proceedings.

THE LAW

The applicant complains that his continued detention in a

psychiatric hospital is arbitrary. He invokes Article 5 para. 1

(Art. 5-1) of the Convention.

Article 5 para. 1 (Art. 5-1), so far as relevant, provides as

follows:

"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;

...

e. the lawful detention of persons for the prevention of the

spreading of infectious diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants;

..."

In the present case, the Commission considers that the

applicant's detention in a psychiatric hospital was based on his

conviction in 1976, and, therefore, comes within the scope of Article 5

para. 1 (a) (Art. 5-1-a). However, in view of the fact that his

present detention is based on a finding of a state of unsound mind, it

must in addition and primarily be considered under Article 5 para. 1

(e) (Art. 5-1-e) (cf. Eur. Court H.R., X. v. the United Kingdom

judgment of 5 November 1981, Series A no. 46, pp. 17-18, para. 39).

The Commission recalls that three minimum conditions have to be

satisfied in order for there to be "the lawful detention of a person

of unsound mind" within the meaning of Article 5 para. 1 (e)

(Art. 5-1-e): the individual concerned must be reliably shown to be of

unsound mind, i.e. 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 (cf. Eur. Court H.R., Winterwerp

judgment of 24 October 1979, Series A no. 33, p. 18, para. 39; X v. the

United Kingdom judgment, loc. cit., p. 18, para. 40).

In the present case, the applicant challenges his continued

confinement to a psychiatric hospital, as decided by the Aachen

Regional Court on 3 December 1992, and confirmed by the Cologne Court

of Appeal on 12 February 1993.

The Commission notes that the impugned court decisions were based

on S. 67 d para. 2 of the German Penal Code according to which 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, and on S. 67 e of the Penal Code which provides that the

court may at any time review the question of whether the further

execution of the detention should be suspended on probation; in case

of detention in a psychiatric hospital, the review should take place

before the expiry of one year. Moreover, according to case-law of the

Federal Constitutional Court, 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 his committing serious 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.

These conditions governing the continued confinement in a

psychiatric hospital do not appear to be incompatible with the meaning

under the Convention of the expression "the lawful detention of persons

of unsound mind".

The Commission has next considered whether the manner in which

these provisions were in fact applied to the applicant disclose any

appearance of a violation of Article 5 para. 1 (e) (Art. 5-1-e).

However, since the national authorities are better placed to evaluate

the evidence adduced before them, they are recognised as having a

certain discretion in the matter and the task of the Convention organs

is limited to reviewing under the Convention the decisions they have

taken (cf. Eur. Court H.R., Winterwerp judgment, loc. cit., pp. 18 and

20, paras. 40 and 46; X v. the United Kingdom judgment, loc. cit., pp.

19-20, para. 43).

In the present case, the applicant's detention in a psychiatric

hospital was first ordered by the Duisburg Regional Court in 1976, in

the context of his conviction for attempted murder regarding a twenty-

year-old girl in a public street at night. At that time the

psychiatric expert had found that the applicant was suffering from a

neurotic disturbance of his personality; and that he would continue to

be haunted by fantasies to overwhelm and to be aggressive to women.

The applicant's continued detention in a psychiatric hospital,

after having served his term of imprisonment, was subsequently

confirmed by the competent courts. In particular, on 3 December 1992

the Aachen Regional Court, applying the relevant provisions of the

German Penal Code, again refused to suspend the further execution of

the applicant's confinement to a psychiatric hospital on probation.

The Court relied in particular on a written opinion of August 1992 of

the psychiatric hospital in Düren, as confirmed by two members of the

hospital staff at a hearing in December 1992, according to which the

applicant continued to suffer from a serious neurotic disturbance of

his personality, resulting inter alia in delinquency, signs of sexual

deviance, impulses to of aggressiveness towards women. The report

stated the development of the applicant's therapy and concluded that

the applicant, if released from the psychiatric hospital, would very

probably be recidivous. The Regional Court considered that there was

no reason to doubt the therapists' statements. This decision was

confirmed upon appeal by the Cologne Court of Appeal in February 1993.

The Court of Appeal again examined the applicant's psychiatric

problems, the course of his therapy and his general conduct during his

detention in the Düren psychiatric hospital, and also considered the

question of proportionality of the applicant's continued detention on

remand.

There is no indication that the medical expertise submitted in

August 1991, as confirmed at a hearing conducted by the Regional Court,

was not a substantive analysis of the situation at the relevant time,

or that the courts did not carefully consider all material before it,

including the arguments put forward by the applicant's counsel. The

fact that the expertise was delivered by the staff at the Düren

psychiatric hospital, where the applicant was detained, and more

particularly by the therapists responsible for him, does not in itself

give rise to doubts as to the objectivity and reliability of their

medical judgment (cf., mutatis mutandis, Eur. Court H.R., X v. the

United Kingdom judgment, loc. cit., pp. 20-21, paras. 44-46).

The Commission finds that in these circumstances the interests

of the protection of the public prevail over the individual's right to

liberty, justifying his continued detention in a psychiatric hospital.

Thus, there is no appearance of a violation of the applicant's right

under Article 5 para. 1 (Art. 5-1- of the Convention.

Consequently, the application is manifestly ill-founded within

the meaning of Article 27 (Art. 27) 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) (A. WEITZEL)

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