Lexploria

PARTIAL

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 12 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

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. 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 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 1955, is a Hungarian national. Since

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

repeatedly in psychiatric treatment. When lodging his application he

was detained in a mental institution in Düren.

The present application concerns different sets of

proceedings.

I

On 20 November 1981 the Cologne Public Prosecutor's Office

(Staatsanwaltschaft) instituted court proceedings against the

applicant with a view to confining him to a mental institution

(Sicherungsverfahren). The applicant was charged with several counts

of defamation, bodily assault, dangerous driving and resisting a

public officer in the exercise of his duties (Widerstand gegen die

Staatsgewalt).

On 21 November 1981 the Cologne Regional Court (Landgericht)

decided that the applicant be provisionally detained in a mental

institution. His appeal (Beschwerde) was rejected.

On 14 March 1983 the Cologne Regional Court took a final

decision that the applicant be detained in a mental institution

(Unterbringung in einem psychiatrischen Krankenhaus). The Court found

in particular that on several occasions in the period between June and

November 1981, the applicant had defamed the witness A, his previous

girl-friend, that he had beaten her several times, that he had been

driving recklessly and had resisted police officers at his arrest.

The Court relied, in this respect, on the testimonies of several

witnesses. Furthermore the Court considered that the applicant could

not be held responsible for these criminal offences on the ground that

he suffered from a schizophrenic psychosis with signs of paranoia.

The Court relied, in this respect, on the medical expert opinion of

the psychiatrist Dr. F who had examined the applicant himself and had

also considered the files concerning the applicant's previous

psychiatric treatment. The Court also found that, according to the

medical expert opinion, further criminal offences, especially directed

against the witness A, were to be expected.

In these proceedings the applicant was represented by an

official defence counsel.

On 8 September 1983 the Federal Court of Justice (Bundes-

gerichtshof), having heard the applicant, dismissed his appeal on

points of law (Revision).

On 3 October 1986 the Federal Constitutional Court (Bundes-

verfassungsgericht) declared the applicant's constitutional complaint

(Verfassungsbeschwerde) inadmissible. The Court found that the

applicant had not substantiated his complaints.

II

In 1983 and 1984 the applicant instituted numerous proceedings

before the Cologne Administrative Court (Verwaltungsgericht) against

the Land North-Rhine Westphalia and others in connection with his

detention in a mental institution.

On 7 September 1984 the Cologne Administrative Court, in one

of these cases, declared inadmissible the applicant's request for

legal aid in proceedings against the Land North-Rhine Westphalia

concerning the lawfulness of his detention. The Court found that the

applicant was incapable of taking part in proceedings concerning his

detention in a mental institution. The Court considered that it was

not necessary to order an expert opinion on that question. It found

that the applicant's mental illness was so obvious that the relevant

facts could be assessed without expert knowledge.

III

On 7 July 1986 the Aachen Court dismissed the applicant's

request to be released on probation. The Court, referring also to its

previous decision of 5 July 1985, found that it was too early to take

the risk of releasing the applicant. The Court, having heard the

applicant, relied in particular on the expert opinion of two

psychiatrists and a teacher of 20 June 1986 according to which the

applicant's mental illness had increased. 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 refused

to admit the applicant's constitutional complaint in this respect on

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

particular that, in the circumstances of the present case, it had so

far not been obvious that the applicant - having regard to his illness

and other circumstances - could not properly defend himself. 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.

IV

On 19 March 1987 the Cologne District Court (Amtsgericht)

decided to place the applicant under guardianship. The Court, having

regard to an expert opinion of June 1986, found that the applicant

suffered from a serious mental illness preventing him from dealing

with his private affairs.

Appeal proceedings are apparently still pending before the

Cologne Regional Court.

V

On 12 November 1986 the Aachen Regional Court declared the

applicant's request to re-open the trial against him inadmissible. His

appeal (Beschwerde) was dismissed by the Cologne Court of Appeal on 13

October 1987. On 13 November 1987 the Federal Constitutional Court

declared the applicant's constitutional complaint inadmissible.

VI

On 6 July 1987 the Aachen Regional Court dismissed the

applicant's renewed request to be released on probation. Having heard

expert opinions of two psychiatrists the Court found that it appeared

likely that the applicant's progressing mental illness would result in

further criminal offences. In these and the following appeal

proceedings the applicant was represented by an official defence

counsel.

On 30 July 1987 the Aachen Regional Court refused to

take a new decision on the applicant's request to be released on

probation. The applicant's appeals were dismissed by the Cologne Court

of Appeal on 4 September and 13 October 1987.

On 10 March 1988 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint as it offered no

prospect of success.

VII

In 1986 and 1987 the applicant unsucessfully attempted to

institute criminal proceedings against a public prosecutor and

officials of the regional body supervising the Düren mental

institution.

COMPLAINTS

The applicant complains that all the court decisions taken in

the different sets of proceedings are wrong and that the proceedings

concerned were unfair. He considers in particular that he is

unlawfully detained in a mental institution and that the conditions in

the mental institution amount to inhuman and degrading treatment.

He invokes Articles 2 to 14, 17 and 18 of the Convention,

Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4 to

the Convention.

THE LAW

1. As regards the applicant's complaints about the court

proceedings in 1986 concerning his request to be released, in

particular the questions under Article 5 para. 4 (Art. 5-4) of the

Convention, the Commission considers that further information is

required and accordingly reserves the examination of the admissibility

of this part of the application.

2. The Commission has examined the applicant's further

complaints as they have been submitted by him. However, after

considering the case as a whole, the Commission finds that the

remainder of the application does not disclose any appearance of a

violation of the rights and freedoms set out in the Convention.

It follows that this part of the application is as a whole manifestly

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

Convention.

For these reasons, the Commission

1. DECIDES TO ADJOURN THE EXAMINATION OF THE APPLICANT'S

COMPLAINTS ABOUT THE PROCEEDINGS BEFORE THE AACHEN

REGIONAL COURT AND THE COLOGNE COURT OF APPEAL IN 1986;

2. DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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Z.M. v. GERMANY

Z.M. v. GERMANY

LEXI