AS TO THE ADMISSIBILITY OF

                      Application No. 14219/88

                      by D.B.

                      against the Federal Republic of Germany

      The European Commission of Human Rights sitting in private on

18 May 1992, the following members being present:

                 MM.  C.A. NØRGAARD, President

                 J. A. FROWEIN

                 S. TRECHSEL

                 F. ERMACORA

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

           Mr. K. ROGGE, Deputy to the Secretary to the Commission,

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 25 August 1988 by

D.B. against the Federal Republic of Germany and registered on

14 September 1988 under file No. 14219/88;

      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 1956 who resides in

Bonn.  He is represented by Mrs. Marianne Kunisch and MM. Rolf

Marschner and Steffen Ufer, lawyers in Munich.

1.      In an earlier application (No. 11457/85), declared inadmissible

on 4 May 1987, the applicant had complained of his detention in various

mental institutions between 1980 and 1984.  The detention had been

ordered on 1 October 1980 by a judgment of the 2nd Regional Court of

Munich (Landgericht München II) on the ground that, as stated by the

psychiatric expert A., the applicant suffered from chronic

schizophrenia and therefore lacked criminal responsibility.  As no

appeal was lodged against the order of 1 October 1980, it became final

on 7 November 1980.

      The applicant was then committed to a mental hospital in Haar

until 30 May 1984 with the following interruptions:

      On 16 September 1982 the applicant's provisional release was

ordered but he agreed to remain in the socio-therapeutic department.

On 15 November 1982 he left the hospital without authorisation.

      According to an expert opinion of 25 November 1982 by Dr. B., the

applicant's continued treatment in a hospital was considered necessary.

      On 27 December 1982 a warrant of arrest  (Sicherungshaftbefehl)

was issued and the applicant was arrested on 11 January 1983.

      On 26 January 1983 the order of provisional release was revoked.

An appeal lodged by the applicant was eventually withdrawn and the

revocation became final on 26 May 1983.

      On 25 April 1983 another expert opinion (Dr. G.) was submitted.

On 3 June 1983 the Munich Regional Court ordered provisional release

again and on 17 June 1983 the applicant was transferred from the closed

ward to a therapeutical department of the mental hospital.

      On 10 July 1983 the applicant again left without authorisation.

      On 30 August 1983 another arrest warrant was issued.

      On 18 August 1983 the applicant voluntarily submitted himself to

a hospital in Kaufbeuren.

      On 9 November 1983 his provisional release was revoked.  The

applicant's appeal was dismissed on 17 December 1983.

      From 12 December 1983 to 2 February 1984 the applicant was

treated in Haar and then, at his request, transferred back to the

hospital in Kaufbeuren.

      On 26 March 1984 Dr. Z. established an expert opinion on the

question whether the applicant was criminally responsible for an

offence which, according to an indictment, he had committed in

July/August 1983.

      A supplementary expert opinion was submitted on 24 April 1984 by

Dr. K. of the Kaufbeuren hospital.

      On 21 May 1984 provisional release under supervision (Führungs-

aufsicht) was ordered.  The order became final on 2 June 1984.

      On 24 August 1984 the Augsburg District Court (Amtsgericht)

convicted the applicant of theft and forgery.  He was sentenced to

seven months' imprisonment.  The enforcement of the sentence was

suspended on probation.

      On 18 December 1984 the Regional Court in Kempten rejected the

applicant's request to set aside the order for his detention in a

mental hospital.

      On 30 August 1985 the applicant was sentenced to eight months'

imprisonment by the Bonn District Court which considered him criminally

responsible to a limited extent (vermindert schuldfähig).

      From 1 October 1985 to 29 March 1986 the applicant served the

sentence imposed on him by the Augsburg District Court.

      On 7 August 1986 the Augsburg Regional Court rejected as

inadmissible the applicant's request to declare that the measure

requiring his detention in a mental hospital had become without object

("erledigt" sei).

      However, on 24 October 1986 the Munich Court of Appeal granted

the applicant's request and also terminated the probationary

supervision.  In the reasons for this decision it relied on the medical

evidence of the two psychiatric experts, K. and Z., who had found no

signs of schizophrenia.  The Court of Appeal concluded that the

conditions for the applicant's detention in a mental institution had

never existed.  This conclusion was based on the premise that

schizophrenia was incurable and that consequently the applicant could

not have suffered from this illness in 1980 if he was not affected by

it at a later time.  The Court pointed out that, according to Dr. K.,

the applicant's personality disorder was a borderline syndrome.  In the

Court's opinion this disorder did not, however, amount to a diminution

of the applicant's power of self control (Steuerungsfähigkeit).

        In Application No. 11457/85 the applicant inter alia invoked

Article 5 paras. 1 and 5 of the Convention.  On 4 May 1987 the

Commission declared that application inadmissible finding that the

applicant had not exhausted the domestic remedies. Concerning the

complaint under Article 5 para. 5 the Commission observed:

        "In the present case an issue under this provision could

        arise insofar as the Munich Court of Appeal's decision

        of 24 October 1986 may be understood as a recognition

        that the applicant's preventive detention under Section 63

        of the Penal Code had lacked a substantive justification

        from the outset.  Even if it was not explicitly mentioned

        that the measure had been unlawful under domestic law or

        under the Convention it was at least implied in the decision

        that the conditions for the applicant's detention as a person

        of unsound mind might never have existed.  Such a finding by

        a domestic court must necessarily give rise to considerations

        whether or not the person concerned is entitled to

        compensation as defined in Article 5 para. 5 of the Convention

        (cf. 9920/82, Naldi v. Italy, Dec. 13.3.1984, D.R. 37 p. 75)."

2.      The applicant subsequently applied for the reopening of the

criminal proceedings (Wiederaufnahme des Verfahrens) which had led to

the Munich II Regional Court's judgment of 1 October 1980, and for

compensation under the Criminal Law Compensation Act (Strafrechts-

entschädigungsgesetz).  Both applications remained without success.

        The case concerning the reopening of the criminal proceedings

was conducted before the 1st Regional Court of Munich (Landgericht

München I).  On 28 July 1987 it declared the application admissible on

the ground that the expert opinions of K. and Z. justified doubts as

to the correctness of the expert opinion of A. on which the 2nd

Regional Court's judgment had been based.  However, after having taken

further evidence by hearing K. and Z. and consulting an additional

psychiatric expert, Professor S., the Court refused the reopening of

the criminal proceedings on 9 March 1988.

        The Court considered that the evidence taken did not justify

the conclusion that the doubts concerning the correctness of A.'s

expert opinion were well-founded.  In particular it had not been

established beyond doubt that in 1980 the applicant's criminal

responsibility had not been considerably reduced.  His actual state of

mental health did not necessarily exclude that.  While experts K. and

Z. were experienced psychiatrists, their written expert opinions and

oral declarations did not convince the court that at the relevant time

the applicant had not suffered from schizophrenia or another mental

defect within the meaning of Sections 20 or 21 of the Penal Code

(Strafgesetzbuch).  On the contrary, the Court considered it as highly

probable that A.'s diagnosis of schizophrenia had been correct.

        The Court pointed out that even in the written expert opinions

of K. and Z. reference had been made to a borderline syndrome while

these experts had not found any residual symptoms of schizophrenia.

From this they had drawn the erroneous conclusion that the applicant

could not have suffered from schizophrenia in 1979/1980.  However,

Professor S. had convincingly demonstrated that in the light of the

symptoms observed in the applicant at the relevant time a diagnosis of

schizophrenia was not excluded and that it was impossible to conclude

from the further development of the applicant's state of mental health

that there had never been schizophrenia.  K. and Z. had also wrongly

assumed that A.'s diagnosis had merely been based on short-time

observations while A. had in fact taken into account symptoms observed

during a longer period, including observations made by another

psychiatric expert Sch. in October 1979.

        While it could not be maintained that the applicant suffered

from chronic schizophrenia, the Court considered that it could not be

excluded that he had suffered from schizophrenia in 1980 and that his

criminal responsibility had at that time at least been considerably

reduced or excluded, thus justifying an order for his detention under

Section 63 of the Penal Code.  A.'s prognosis of a danger of the

applicant committing further criminal offences had in fact been

confirmed by the further development of his criminal behaviour which

had led to two convictions.  Finally it was not the task of the Court

in the reopening proceedings to examine whether the continued detention

of the applicant had ceased to be justified at any subsequent date; it

was only relevant that the order for his detention was justified on 1

October 1980.

        The applicant's appeal was rejected by the Munich Court of

Appeal on 8 June 1988.  The appellate court noted in particular Dr.

Z.'s admission in the proceedings before the Regional Court that the

absence of residual symptoms of schizophrenia did not warrant with

certainty the conclusion that the applicant had never suffered from

schizophrenia.  It further observed that the principle "in dubio pro

reo" did not apply in reopening proceedings and that the facts

established in the judgment of 1 October 1980 had not been put in doubt

to such a degree as to justify a new trial.  Professor S. had made it

clear that the absence of schizophrenia in 1988 did not allow the

cogent conclusion that A.'s diagnosis of schizophrenia in 1980 had been

wrong.  Contrary to earlier assumptions it was now known that

schizophrenia was not always a chronic disease, but that it was only

so in about one third of the cases.  In the applicant's case A. had

found sufficient symptoms to justify a diagnosis of schizophrenia.

According to Professor S. this was also confirmed by the observations

made by other psychiatrists at the relevant time who, although they had

come to different conclusions, converged to find a psychotic defect in

the applicant in the period between 1979 and 1983 which had excluded

his criminal responsibility.  The appellate court concluded that, while

A.'s diagnosis of chronic schizophrenia was certainly wrong, there were

no sufficient reasons to exclude with the degree of probability

required for reopening proceedings that the applicant had not at the

relevant time suffered from an acute schizophrenic psychosis.

Consequently there was nothing to show that the applicant had wrongly

been considered to be criminally not responsible.

        The applicant's constitutional complaint (Verfassungs-

beschwerde) against this decision was rejected by a panel of three

judges of the Federal Constitutional Court on 19 April 1989 on the

ground that it lacked sufficient prospects of success.  The judges

stated that in decisions concerning reopening of proceedings a balance

had to be struck between material justice and legal security which were

both fundamental principles of the rule of law.  From the point of view

of constitutional law it was not objectionable that the grounds for

reopening proceedings were limited to exceptional cases where new facts

or evidence were capable of undermining the basic facts established in

the impugned judgment.  In the applicant's case the courts had taken

decisions which in the light of the evidence appeared realistic and

which were in no way arbitrary.  Their conclusion that there were not

sufficient doubts concerning the correctness of A.'s diagnosis was not

based on unreasonable considerations, nor had the importance of

fundamental rights been disregarded.  The applicant's submission that

the courts had considered a merely temporary reduction of criminal

responsibility sufficient to justify his detention under Section 63 of

the Penal Code was contradicted by the findings in the impugned

decisions, in particular the finding by the 1st Regional Court of

Munich which had confirmed that the applicant continued to constitute

a danger as assumed in the 2nd Regional Court's judgment.

        In the proceedings on the applicant's compensation claim, the

Regional Court of Augsburg enforcement of sentences section -

(Strafvollstreckungskammer) - declined jurisdiction on the ground that

the competent court was the one which had established the unlawfulness

of the detention, i.e. the Munich Court of Appeal (decision of 30

November 1988).

        On 6 February 1989 the Munich Court of Appeal rejected the

applicant's appeal against this decision.  It observed that its earlier

decision of 24 October 1986 by which the applicant's detention had been

declared to be "without object" had not been taken following a

reopening of the original criminal proceedings and had accordingly not

set aside the 2nd Regional Court's judgment of 1 October 1980.  It had

only contained an order for the future, namely that the detention was

henceforth without object and that the probationary supervision of the

applicant should be terminated.  The operative part of the decision

(Entscheidungssatz) did not contain a finding that the applicant's

detention had been unlawful from the outset.  The reasons for the

decision had not acquired force of law ("nehmen an der Rechtskraft

nicht teil") and it was therefore irrelevant that the Court of Appeal

had tended to the opinion that the legal conditions of the detention

might never have existed.  Such a finding could be made with binding

legal force only in the context of reopening proceedings.  The Court

of Appeal then referred to the result of the proceedings taken by the

applicant to obtain the reopening of his criminal case which had

confirmed that the 2nd Regional Court's judgment of 1 October 1980

continued to be valid.  As the applicant had recovered from his mental

disease, this judgment could no longer be enforced.  However, there was

no decision that he had in the past been subjected to unjustified

enforcement measures. The Court of Appeal's decision of 8 June 1988 had

indeed finally confirmed that the 2nd Regional Court's judgment of 1

October 1980 was not to be set aside retroactively.  There was

accordingly no legal basis for the applicant's compensation claim.

        The applicant's constitutional complaint against these

decisions was rejected by a panel of three judges of the Federal

Constitutional Court on 22 March 1989.  It considered the complaint

inadmissible insofar as it was directed against the decision of the

Regional Court of Augsburg, and as lacking sufficient prospects of

success insofar as it was directed against the Court of Appeal's

decision.  The latter decision was not arbitrary because it could be

concluded from the fact that the 2nd Regional Court's judgment had not

been set aside nor amended as a result of the reopening proceedings

that there was no legal basis for a compensation claim against the

State.

COMPLAINTS

      The applicant complains under Article 5 para. 1 of the Convention

that his detention was unlawful and under Article 5 para. 5 of the

Convention that he was refused compensation for unlawful detention.

On 29 May 1990 the applicant has further invoked Article 3 of Protocol

No. 7 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 25 August 1988 and registered

on 14 September 1988.

      On 5 November 1990 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

      The Government submitted their observations on 21 February 1991.

The applicant's observations in reply were received on 20 June 1991

after an extension of the initial time-limit.

THE LAW

1.    The applicant first complains under Article 5 para. 1

(Art. 5-1) of the Convention that his detention in the years 1980-1984

was unlawful because he never suffered from a mental disease justifying

this detention.

      A similar complaint by the applicant has already been examined

by the Commission in Application No. 11457/85.  In its decision of 4

May 1987 the Commission rejected that complaint for non-exhaustion of

the domestic remedies.  It is true that in the meantime the applicant

has taken a number of further remedies, including in particular an

application for the reopening of the criminal proceedings which had led

to the order for his detention.  It is also true that in this context

the question of the lawfulness of the original detention order was

again examined by the German courts. However, the Commission has

constantly held that applications for the reopening of proceedings do

not constitute effective remedies within the meaning of Article 26

(Art. 26) of the Convention, and that, unless the proceedings are

actually reopened as a result of such applications, they do not provide

the applicant with a further opportunity to challenge the underlying

measures.  As in the present case these measures were not at the

relevant time challenged by the appropriate remedies, and as the

applicant's unsuccessful efforts to obtain a reopening of the

proceedings are not relevant under Article 26 (Art. 26), the situation

complained of has not essentially changed since the Commission's

examination of Application No. 11457/85.

      It follows that this part of the application must be rejected

under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention as being

substantially the same as the previous application and containing no

relevant new information.

2.    The applicant further complains under Article 5 para. 5

(Art. 5-5) of the Convention that he was unjustifiably refused

compensation for unlawful detention.  In this respect, too, the

Commission rejected a similar complaint in Application No. 11457/85 on

the ground of non-exhaustion of domestic remedies.  Here, however, the

applicant has submitted relevant new information within the meaning of

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention showing that he

has now exhausted all domestic remedies.  He claims compensation under

Article 5 para. 5 (Art. 5-1) of the Convention because his detention

allegedly was not lawful under Article 5 para. 1 (Art. 5-1).

      The Commission observes that the application of Article 5 para.

5 (Art. 5-5) presupposes a finding, either by a Convention organ or by

a domestic authority, that one of the other paragraphs of Article 5

(Art. 5) has been violated.  The Commission itself could not deal with

the issue of the alleged violation of Article 5 para. 1 (Art. 5-1)

because the applicant had not exhausted the domestic remedies.  His

claim can therefore only be based on the decisions of the German

courts.

      The applicant argues that the Munich Court of Appeal's decision

of 24 October 1986 must be understood as a recognition that his

detention under Section 63 of the Penal Code was unjustified from the

outset: even if it was not stated that the detention had been unlawful

under domestic law or under the Convention, it was at least implied in

the decision that the conditions for this measure might never have

existed.  In the light of the Commission's decision on the

admissibility of the applicant's previous application No. 11457/85,

such a finding by a domestic court must raise the question whether or

not he is entitled to compensation under Article 5 para. 5 (Art. 5-5).

However, that question can only be determined after the domestic

remedies concerning the issue of compensation have been exhausted.

      The Commission notes that the finding in question only appeared

in the reasons, but not in the operative part of the decision of the

Court of Appeal of 24 October 1986.  It thus could not be considered

in the German legal system as an authoritative statement on the

lawfulness or otherwise of the applicant's detention.

      It is true that this question was again considered in the

proceedings concerning the applicant's application for the reopening

of his criminal case.  The applicant submits that the evidence obtained

in the proceedings shows that his detention in a mental hospital was

never justified.  He alleges that he was only once examined by Dr. A.

He refers to an expert opinion established at his request on 8 April

1989 by Prof. W. who came to the conclusion that A.'s expert opinion

was wrong and that the subsequent expert opinions do not justify the

assumption that in 1980 there had been reasons to consider the

applicant to be criminally not responsible.

      The respondent Government rely on the reasons stated by the

German courts in the retrial proceedings.  They point out that despite

extensive new evidence (expert opinion of Prof. S.) it had not been

possible to establish with the degree of probability required in

retrial proceedings that the applicant's detention in a mental hospital

had been wrongly ordered.

      The Commission notes that in the retrial proceedings the German

courts considered very carefully the evidence underlying the original

detention order as well as new expert evidence.  Ultimately it was

found that the doubts, which might exist concerning the correctness of

the diagnosis which had led to the detention order of 1980, were

unjustified.  While the assumption of a chronic schizophrenia could not

be upheld, it could not be excluded that the applicant had in fact

suffered in 1980 from an acute schizophrenic psychosis excluding his

criminal responsibility and thus justifying his detention as a person

of unsound mind. Without expressly referring to Article 5 para. 1 (e)

(Art. 5-1-e) of the Convention, the German courts thus in substance

confirmed that the applicant's detention had been covered by this

provision.

      The Commission finds no indication that their decisions were

unreasonable or arbitrary.  In particular the expert opinion of Prof.

W., established at the applicant's request, does not clearly show that

the reasons relied upon by the courts, when examining the applicant's

request for the reopening of the previous criminal proceedings, were

incongruent with the available expert evidence.

      As no violation of Article 5 para. 1 (Art. 5-1) has been

established, there is accordingly no basis for a claim under Article

5 para. 5 (Art. 5-5).  It follows that the applicant's complaint under

this provision must be rejected as being manifestly ill-founded within

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

3.    The applicant finally invokes Article 3 of Protocol No. 7 (P7-3)

to the Convention which has, however, not yet been ratified by the

Federal Republic of Germany.  This part of the application must

therefore be rejected as being incompatible ratione materiae with the

Convention in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Deputy to the Secretary to the Commission   President of the Commission

           (K. ROGGE)                             (C.A. NØRGAARD)