Lexploria

F I N A L

AS TO THE ADMISSIBILITY OF

Application No. 13770/88

by Z.M.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 13 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 22 October 1986

by Z.M. against the Federal Republic of Germany and registered on 15

April 1988 under file No. 13770/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to :

- the Commission's partial decision of 12 October 1988 to

declare the remainder of the application inadmissible insofar

as it related to the court proceedings in 1986 concerning the

applicant's request to be released from detention in a mental

hospital;

- the observations submitted by the respondent Government on

10 January 1989;

- the applicant's failure to reply;

- the Commission's decision of 10 July 1989 to strike the

application off its list of cases;

- the applicant's request of 13 November 1989 to restore his

application to the list of cases and his further submissions

of 24 and 27 November 1989;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, submitted by the parties with regard

to the remaining part of the application, may be summarised as follows:

The applicant, born in 1955, is a Hungarian national. Since

he entered the Federal Republic of Germany in 1975 he was repeatedly

in psychiatric treatment. When lodging his application he was

detained in a mental hospital in Düren after a decision by the Cologne

Regional Court (Landgericht) in 1983. In June 1989 he was admitted

for in-patient treatment at a mental hospital in Cologne.

In November 1981 proceedings were instituted against the

applicant with a view to confining him to a mental hospital

(Sicherungsverfahren), and he was provisionally detained in a mental

hospital. On 14 March 1983 the Cologne Regional Court took a final

decision that the applicant be detained in a mental hospital

(Unterbringung in einem psychiatrischen Krankenhaus). The Regional

Court found that the applicant had committed various criminal

offences. However, he could not be held responsible for these

offences on the ground that he suffered from a schizophrenic psychosis

with signs of paranoia.

On 7 September 1984 the Cologne Administrative Court

(Verwaltungsgericht), in one of numerous proceedings instituted by the

applicant in connection with his detention, declared inadmissible the

applicant's request for legal aid on the ground that he was incapable

of taking part in such proceedings. The Administrative Court

considered that it was not necessary to order an expert opinion on

that question, as the applicant's mental illness was so obvious that

the relevant facts could be assessed without expert knowledge.

In September 1984 and August 1985 respectively, the Aachen

Regional Court ordered the applicant's further detention in a mental

hospital. In its decision of 5 August 1985, the Regional Court

suggested that tutelage proceedings be instituted against the

applicant.

On 3 March 1986 the applicant complained to the Aachen

Regional Court that, inter alia, in the above proceedings he had not

been represented by counsel. By letter of 12 March 1986 the Aachen

Regional Court informed the applicant that there was no legal basis

in such cases for detainees to be represented by official defence

counsel.

On 7 July 1986 the Aachen Regional Court dismissed the

applicant's request to be released on probation. The Court, referring

also to its previous decision of 5 August 1985, found that it was too

early to put to the test whether the applicant would no longer commit

criminal offences outside a mental hospital. Having heard the

applicant, the Court relied in particular on the expert opinion of two

psychiatrists and a teacher dated 20 June 1986, according to which the

applicant's state of mental health had further deteriorated.

Furthermore the Court considered that the applicant's continued

detention was proportionate to the aim pursued, i.e. the protection of

the general public. Moreover, the Court noted that proceedings with a

view to removing the applicant's legal capacity were pending.

In these and the following appeal proceedings the applicant

was not represented by counsel.

On 2 September 1986 the Cologne Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal (Beschwerde).

On 10 February 1987 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) in this respect on the ground that

it offered no prospect of success. The Court found in particular that

it had so far not been obvious that the applicant could not properly

defend himself - for instance having regard to his illness. The fact

that he had not been represented by official defence counsel in the

preceding proceedings could not, therefore, be objected to under

constitutional law. However, having regard to the increasing symptoms

of his illness and the length of his detention, the appointment of an

official defence counsel should, in future, be considered.

On 19 March 1987 the Cologne District Court (Amtsgericht)

decided to place the applicant under guardianship. Having regard to

the expert opinion of June 1986, the District Court found that the

applicant suffered from a serious mental illness preventing him from

dealing with his private affairs.

COMPLAINTS

The applicant's remaining complaint concerns the court

proceedings in 1986 relating to his request to be released from

detention in a mental hospital. He invokes Articles 2 to 14, 17 and

18 of the Convention, Articles 1 and 2 of Procotol No. 1 and Article 2

of Protocol No. 4 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 October 1986 and

registered on 15 April 1988.

On 12 October 1988 the Commission decided that, in accordance

with Rule 42 para. 2 (b) of its Rules of Procedure, the complaint

relating to the proceedings before the Aachen Regional Court and the

Cologne Court of Appeal in 1986 be brought to the notice of the

respondent Government and that they be invited to submit, within a

time limit of 10 weeks, written observations on the admissibility and

merits of this complaint under Article 5 para. 4 of the Convention.

The Commission declared the remainder of the application inadmissible.

The observations of the respondent Government were submitted

on 10 January 1989.

On 24 January 1989 the applicant was requested to submit

observations in reply before 10 March 1989. In a further letter of

the Secretariat of 29 March 1989, it was noted that he had not

submitted his observations in time, and recalled that he might request

legal aid. Furthermore, the applicant was warned about the

consequences under Rule 44 para. 1 of the Commission's Rules of

Procedure. He was sent a second reminder by registered mail on

26 April 1989. The applicant, whose last letter to the Commission was

dated 1 May 1988, did not react to the above letters from the

Secretariat.

On 10 July 1989 the Commission, in accordance with Rule 44

para. 1 of its Rules of Procedure, decided to strike the application

off its list of cases.

On 13 November 1989 the applicant requested that his

application be restored to the list of cases. He submitted that his

strong medical treatment at hospital and his therapist had prevented

him from replying to the Secretariat's letters. On 27 November 1989

he filed a medical certificate issued by a mental hospital in Cologne

according to which he had been admitted in May 1989 for in-patient

treatment of an indefinite duration. The certificate also stated that

he was for the time being receiving drug therapy (psychopharmakolo-

gische Behandlung) and that since March 1988 he had been treated with

neuroleptic drugs.

THE LAW

I. The Commission is satisfied that, for reasons of health, the

applicant was prevented from duly pursuing his application. It

therefore finds that the circumstances of the present case justify

restoration of his application, insofar as it is related to the court

proceedings in 1986 concerning his request to be released from

detention in a mental hospital, to its list of cases in accordance

with Article 30 para. 3 (Art. 30-3) of the Convention.

II. 1. The applicant complains about the proceedings in 1986

before the Aachen Regional Court and the Cologne Court of Appeal

concerning his further detention in a mental hospital. He submits,

inter alia, that in these proceedings he was not assisted by counsel.

The applicant's complaint falls within the scope of Article 5

para. 4 (Art. 5-4) of the Convention which provides:

"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 consider the applicant's

complaint as inadmissible under Article 26 (Art. 26) of the Convention for

non-exhaustion of domestic remedies. They submit that the applicant

failed to request assistance by an official defence counsel in the

proceedings concerned.

It is true that under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

The Commission notes that on 12 March 1986, the Aachen

Regional Court, upon a petition by the applicant, informed him that

there was no legal basis for detainees to be assisted by official

counsel in proceedings of the kind in question. Furthermore, the

Federal Constitutional Court, in its decision of 10 February 1987

refusing to accept his constitutional appeal, dealt with the merits of

the applicant's complaint.

In these circumstances the Commission finds that the applicant

has properly exhausted the remedies available to him under German law.

3. The Government further submit that the proceedings in 1986

were in accordance with Article 5 para. 4 (Art. 5-4) of the Convention.

They contend that this provision does not in general guarantee the

right to have free legal assistance. In the present case, an

official counsel was not required by the interests of justice or of

the applicant, who represented himself and had not requested legal

assistance. In particular, the applicant was not obviously unfit to

plead his case due to his mental illness.

The Commission considers that, in the particular circumstances

of the present case, the applicant's complaint about the proceedings

before the Aachen Regional Court and the Cologne Court of Appeal in

1986 raises questions of fact and of law which are of such a complex

nature that their determination requires an examination of the merits.

The application cannot, therefore, be declared manifestly ill-founded

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

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission

1. RESTORES THE APPLICATION, insofar as it is related to

the court proceedings in 1986 concerning the applicant's

request to be released from detention in a mental hospital,

to its list of cases

2. DECLARES THIS PART OF THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

Z.M. v. GERMANY

Z.M. v. GERMANY

LEXI