Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13843/88

by Gottfried VITZTHUM

against Austria

The European Commission of Human Rights sitting in private

on 17 January 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, 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 14 January 1988

by Gottfried Vitzthum against Austria and registered on 6 May 1988

under file No. 13843/88;

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

parties, may be summarised as follows:

A. The particular circumstances of the case

The applicant, born in 1943, is an Austrian national. When

lodging his application, he was detained at a mental hospital

(Landeskrankenhaus) in Salzburg, where he had been admitted on a

voluntary basis, in 1967. Before the Commission he is represented by

Mr. G. O. Mory, a lawyer practising in Salzburg.

On 12 September 1972 the Neumarkt District Court

(Bezirksgericht) placed the applicant under guardianship as regards

all matters (volle Entmündigung) on account of his mental illness

(Geisteskrankheit).

On 24 October 1985 the applicant's guardian requested the

Salzburg District Court to decide upon the applicant's further

detention in the Salzburg mental hospital. She submitted that the

applicant had stayed there with short interruptions for many years.

She considered his further detention necessary.

On 25 November 1985 the Salzburg District Court, in

guardianship proceedings (Sachwalterschaftssache), decided that the

applicant should be detained in the above mental hospital for a

further period of twelve months. The District Court considered that

his further detention (Anhaltung) was necessary in order to prevent

him from endangering himself and the public. It relied, in this

respect, upon two reports of the mental hospital concerned, according

to which the applicant, suffering from schizophrenia, constantly had

paranoic hallucinations and a persecution mania, and could, in such

circumstances, be aggressive. The District Court considered the

reports to be consistent and, therefore, trustworthy. The Court did

not refer to any provision under Austrian law.

On 3 November 1986 the Salzburg District Court decided that

the applicant should be detained in the mental hospital for a further

period of six months. The District Court stated that the applicant's

continued detention was necessary on the ground that, according to the

trustworthy report of the mental hospital dated 27 October 1986, he

was still suffering from dangerous hallucinations and thereby

constituted a danger to himself. The Court referred to its decision

of 25 November 1985. It did not mention any legal provisions.

On 13 November 1986 the applicant's guardian lodged an appeal

(Rekurs) and submitted in particular that she and the applicant would

have voluntarily agreed to his further stay in the mental hospital.

The appeal was first rejected for lack of legal interest by the

District Court.

On 5 March 1987 the Salzburg Regional Court (Landesgericht),

sitting in camera, quashed the District Court's appeal decision, and

dismissed the appeal against the District Court's decision of

3 November 1986. The Regional Court considered that the admission of

a person placed under guardianship to a mental hospital did not

require proceedings under SS. 16 et seq. of the Guardianship Act

(Entmündigungsordnung). Rather, the Guardianship Court (Pfleg-

schaftsgericht) had to authorise such a measure. The Guardianship

Court could order detention in the closed ward of a mental hospital if

the person placed under guardianship constituted a danger to himself

or to the public. In this respect, the Regional Court referred to S.

49 of the Austrian Hospital Act (Krankenanstaltengesetz).

In the present case, the Regional Court found that the

applicant's further detention had been lawfully ordered on the

grounds that he constituted a danger to himself and to others. It

considered that the reports of the mental hospital concerned dated

19 November 1984 and 27 October 1986, according to which the applicant

was likely to be aggressive towards other patients and visitors and an

attempt to place him in an open ward (offene Anstalt) had failed,

showed clearly and without any doubt that he could only be detained in

a closed ward (Pflegeabteilung). The Regional Court also noted

that in October 1985 the applicant's guardian had herself stated that

the applicant constituted a danger to others and should be detained in

a closed ward. In the appeal, she had not objected to the applicant's

further stay in the hospital. The applicant himself had, according to

the hospital's reports of 4 and 19 November 1985, agreed to stay in

the closed ward. However, the relevant provisions of the Guardianship

Act and the Hospital Act did not provide that a person placed under

guardianship could voluntarily stay in a mental hospital, even if in

daily practice there might be some advantages.

The decision was served upon the applicant's guardian on

26 March 1987.

On 7 April 1988 the applicant's guardian, represented by

Mr. Mory, lodged an appeal on points of law (Revisionsrekurs) with the

Supreme Court (Oberster Gerichtshof). He argued in particular that

under the circumstances of the present case, in particular the

reasoning of the lower courts, such an appeal was admissible. He

submitted several reasons of nullity, inter alia the lack of a legal

basis for the applicant's detention in a mental hospital.

On 8 May 1988 the Austrian Supreme Court declared the appeal

inadmissible on points of law. The Supreme Court found that the

District and the Regional Court had ordered the applicant's further

detention in the mental hospital under S. 22 of the Guardianship

Act. An appeal on points of law was, therefore, excluded under S. 24

para. 3. The decision was served on 16 July 1988.

B. The relevant domestic law

SS. 269 et seq. of the Austrian Civil Code (Allgemeines

bürgerliches Gesetzbuch) govern guardianship matters (Kuratel,

Sachwalterschaft). In particular, under S. 273 para. 1, a guardian

will be appointed for a person of unsound mind, if this person cannot

handle all or some of his own matters without risks of disadvantages.

With a view to the rights and duties of a guardian, S. 282, first

sentence, provides that the provisions concerning the guardian of

a minor (Vormund) apply mutatis mutandis. The second sentence reads:

"Der Sachwalter einer behinderten Person hat auch die

erforderliche Personensorge, besonders auch die ärztliche und

soziale Betreuung, sicherzustellen, soweit das Gericht nicht

anderes bestimmt."

"The guardian of a person of unsound mind has also to ensure that

the person concerned is taken care of, in particular as regards

medical and social care, if the court does not decide otherwise."

The Guardianship Act of 1916 concerns the placement of a

person of unsound mind under guardianship, and related matters.

SS. 16 et seq. regulate the detention of a person of unsound mind in

the closed ward of a mental hospital, and the court proceedings

concerned. Thus the head of a mental hospital has to inform the

district court competent for the judicial district of the mental

hospital concerned about the forced admission of a person of unsound

mind. The competent judge has to investigate the mental health of the

person detained (S. 20, S. 21) and to decide upon his further

detention in the mental hospital concerned (S. 22). S. 23 concerns

primarily time-limits of detention under the preceding provisions.

S. 23 para. 1, first sentence, and para. 3 read:

"(1) Der Beschluß über die Zulässigkeit der Anhaltung steht einer

anderen Anordnung des Pflegschaftsgerichtes nicht entgegen. ...

(3) Einer Ausdehnung der Anhaltung über die bestimmte Frist muß,

falls nicht inzwischen das Pflegschaftsgericht die weitere

Unterbringung in der Anstalt veranlaßt hat, eine neuerliche

Vernehmung des Angehaltenen durch den Richter und eine

Untersuchung durch einen oder zwei Sachverständige vorausgehen."

"(1) The decision on further detention does not preclude another

decision of the guardianship court. ...

(3) The prolongation of a fixed period of detention must be

preceded by a further questioning of the detained person by the

competent judge and his examination by one or two experts, if the

guardianship court has not, in the meantime, ordered the person's

further placement in the mental hospital."

With regard to the remedies concerning decisions under S. 22,

S. 24 para. 1 provides for a right to appeal (Rekurs); S. 24 para. 3,

second sentence, excludes a further appeal against a decision

confirmed upon appeal.

The Hospital Act regulates in general the establishment,

organisation and management of hospitals. S. 49 provides inter alia

that a person may only be forcibly admitted (zwangsweise aufgenommen)

to a mental hospital if a certificate shows that, on account of

mental illness, he constitutes a danger to himself or others. Such a

certificate is not needed if a court ordered the detention. S. 54

provides that S. 49 does not affect the provisions of the

Guardianship Act concerning the court proceedings as to a person's

detention in a mental hospital.

The detention of persons of unsound mind was reformed in 1990,

the new provisions entered into force on 1 January 1991, and were not,

therefore, applicable in the present case.

COMPLAINTS

The applicant complains that his continued detention in a

mental hospital is unlawful. He submits in particular that under

Austrian law there is no legal basis for the detention of persons

placed under guardianship in a mental hospital. Furthermore, the

Austrian courts failed to take independent expert evidence upon the

question whether or not he was suffering from a mental illness

requiring his detention. Moreover, the proceedings were not fair. In

particular, he was not heard in person and no counsel was appointed to

defend his interests. The applicant invokes Article 5 paras. 1, 2

and 4 and Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 January 1988 and

registered on 6 May 1988.

On 6 February 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

Observations were submitted by the Government on 11 May 1990.

The applicant replied on 6 July 1990.

THE LAW

1. The applicant complains that his continued detention in a

mental hospital was not lawful within the meaning of Article 5 para.

1 (Art. 5-1) of the Convention. Furthermore, he submits that the

proceedings before the Salzburg District Court in 1986 and, upon

appeal, before the Salzburg Regional Court in 1987, in which his

detention was reviewed, were not fair.

Article 5 (Art. 5), insofar as relevant, reads:

"1. 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:

...

(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;

...

4. 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.

..."

2. The respondent Government contend that the applicant cannot

claim to be a victim within the meaning of Article 25 para. 1

(Art. 25-1) of the Convention on the ground that he would in any event

continue to stay in the mental hospital on a voluntary basis.

The applicant submits that there are important differences

between a voluntary stay and forced detention in a mental hospital.

The Commission considers that the applicant's forced detention

in a mental hospital cannot, in principle, be equated with a voluntary

stay. It follows that the applicant can claim to be a victim of a

violation of his rights under Article 5 (Art. 5) of the Convention.

3. The Government contend that the applicant has not lodged his

application within the time-limit of six months under Article 26

(Art. 26) of the Convention. They consider that the decision of the

Salzburg Regional Court of 5 March 1987 was the final domestic

judgment, whereas the applicant's further appeal to the Supreme Court

was an ineffective remedy. They also submit that, in any event, the

applicant's further appeal would have had to be rejected on the ground

that he failed to show any relevant reasons of nullity.

The applicant states that, in view of the reasoning of the

Salzburg District Court and especially the Salzburg Regional Court in

their respective decisions of 3 November 1986 and 5 March 1987, the

appeal on points of law appeared to be admissible.

The Commission notes that the appeal on points of law was

declared inadmissible by the Supreme Court under S. 23 para. 4 of the

Guardianship Act, which exceptionally excludes such an appeal where

detention in a mental hospital was ordered under the Guardianship Act.

The Commission considers that the guardian's lawyer arguably

considered that this exception did not apply to the present case - the

District and the Regional Court had not based their decisions on

provisions of the Guardianship Act. In any event, the applicant could

not be expected to lodge his application with the Commission as long

as his guardian's appeal proceedings were still pending.

Consequently, the applicant has not failed to comply with the

six months' rule under Article 26 (Art. 26) of the Convention.

4. As regards the lawfulness of the applicant's continued

detention in a mental hospital within the meaning of Article 5

para. 1 (Art. 5-1) of the Convention, the Government submit that,

according to general jurisprudence, the detention of persons placed

under guardianship in a mental hospital is based on S. 282, second

half sentence of the Civil Code and S. 23 para. 3 of the Guardianship

Act. In such cases, guardianship courts have a margin of appreciation.

However, four conditions, elaborated in the jurisprudence of the

Supreme Court, had to be fulfilled: the mental illness must be

convincingly proven, and justify detention. Furthermore, the person

placed under guardianship must constitute a risk to his own or other

persons' security. The Government consider that these conditions were

fulfilled in the present case.

Furthermore, the Government contend that the applicant was

afforded the procedural guarantees under Article 5 para. 4 (Art. 5-4)

of the Convention. They state that the applicant had been heard

personally in the preceding proceedings to place him under

guardianship. In the present proceedings, his guardian had acted on

his behalf.

The Commission considers that the applicant's complaints raise

complicated issues of fact and law, which can only be resolved by an

examination on the merits. The application cannot therefore, be

declared manifestly ill-founded under Article 27 para. 2 (Art. 27-2)

of the Convention. No other grounds for inadmissibility have been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE

Without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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VITZTHUM v. AUSTRIA

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