AS TO THE ADMISSIBILITY OF

Application No. 11457/85

by D.B.

against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private on

4 May 1987, the following members being present:

                MM C.A NØRGAARD, President

                   G. JÖRUNDSSON

                   S. TRECHSEL

                   B. KIERNAN

                   A.S. GÖZÜBÜYÜK

                   A. WEITZEL

                   J.C. SOYER

                   H.G. SCHERMERS

                   H. DANELIUS

                   G. BATLINER

               Mrs G.H. THUNE

               Sir Basil HALL

                Mr F. MARTINEZ

               Mr  H.C. KRÜGER, Secretary to the Commission

        Having regard to Art. 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 13 February 1984

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

13 March 1985 under file No. 11457/85;

        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 applicant is a German citizen born in the German

Democratic Republic in 1956.  Allegedly after a political conviction

for anti-State propaganda he came to the Federal Republic on

12 December 1978.  He now lives in Bonn.  In the proceedings before

the Commission he is assisted by Mr.  Rolf Marschner, a lawyer

practising in Munich.

        After his arrival in the Federal Republic, the applicant had

considerable difficulty to integrate himself in the new surroundings

and to find appropriate work.  He first lived in various State hostels

for refugees and received unemployment benefits.  In January 1979 he

found a job, but was dismissed after one day.  He returned to the

refugee hostel until April 1979 when he found another job.  He was

again dismissed after a fortnight.  The hostel did not readmit him and

therefore he moved to Bavaria where he found a new job near Garmisch-

Partenkirchen.  During an absence of his employer he took cheques

belonging to the latter and cashed them.  He fled and attempted

suicide after which he was detained at the mental hospital of Hirsau

for three months (5 July - 28 November 1979).

        The hospital carried out investigations as to whether the

applicant had already been in psychiatric treatment in the GDR.  It

was confirmed by a report of the psychiatric clinic of Weimar of

4 September 1979 that he had in fact undergone several psychiatric

examinations, inter alia for forensic purposes, and that certain

symptoms of abnormal behaviour had been stated.  However, as they were

limited to a hysterical character and lack of social adaptation, no

psycho-pharmacological therapy had been administered.

        The applicant's examination in the Hirsau hospital, which

involved inter alia a computer tomography, revealed no signs of

physical damage to the brain.  The diagnosis as stated in an expert

opinion of the psychiatrist Dr.  Sch. of 11 October 1979 was a

"paranoid psychosis".  The applicant claims that this diagnosis was

wrong and that his state of mind as described in the expert opinion

was only due to the neuroleptic drugs administered to him.

        After completion of the psychiatric treatment at Hirsau the

applicant was transferred to a rehabilitation centre in Stuttgart

where he continued to receive treatment which, however, was

interrupted after some time.

        On 10 January 1980 the applicant presented himself to the

psychiatric clinic of the university of Munich after a further attempt

to commit suicide with drugs.  Because of his intoxication he was

transferred to a medical clinic in Munich.  During his stay there his

behaviour was peculiar and therefore he was taken back to the

pyschiatric university clinic as an out-patient.  However, no mental

disease could be found.

        On 21 January 1980 he was transferred to the Day & Night

Clinic for Upper Bavaria because of depressions.  He was dissatisfied

with his treatment and left on 28 January 1980, announcing that he

would return to the psychiatric clinic of the university of Munich.

On his arrival there he attempted to commit suicide with drugs and

because of his intoxication was immediately taken to a medical

hospital.  The final report of the Day & Night Clinic stated that he

suffered from schizophrenia.

        On 29 January 1980 the applicant was taken to the Pyschiatric

District Hospital of Haar near Munich under a committal order of the

police made in accordance with Section 5 para. 1 of the Bavarian

Mental Health (Detention) Act (Verwahrungsgesetz) based in particular

on the danger of suicide.  As the applicant declared his consent to a

treatment in the District Hospital no detention order was sought from

a court.  However, already on 5 February 1980 the applicant left the

District Hospital whose final report stated that he had been in a

state of "depression and abnormal personality".

        On 6 and 7 February the applicant stole the purses of three

women and tried to use their cheque cards.  He was arrested by the

police but was not detained because of being unfit for detention.  He

then apparently found a job in Starnberg, but soon had difficulties

with his workmates and was threatened with dismissal.  On 10 February

he made a fourth attempt to commit suicide with drugs and was taken to

the local hospital of Starnberg which, on 13 February 1980, had him

brought back to the Psychiatric District Hospital of Haar.

        On 17 March 1980 the District Court (Amtsgericht) of Weilheim

ordered his provisional detention in this hospital under Section 126a

of the Code of Criminal Procedure (Strafprozessordnung) pending the

trial in the criminal case which had in the meantime been instituted.

The relevant decision (which has not been submitted) was allegedly

based on oral expert advice by the psychiatrist Dr.  A of the District

Hospital who stated that the applicant suffered from paranoiac

schizophrenia and a persecution complex.  The decision furthermore

stressed that the applicant was dangerous to the public.  Following

this decision the applicant was transferred to the District Hospital's

closed department for the criminally insane.

        The trial of the criminal case took place on 1 October 1980

before the Regional Court (Landgericht) of Munich II.  The Court had

before it a psychiatric expert opinion by Dr.  A of 23 September 1980

(38 pages) which allegedly had been prepared without a personal

examination of the applicant by the expert himself.  It confirmed the

earlier diagnosis of schizophrenia without there being any signs of

physical brain defects.  Although the psychiatric treatment had led to

an improvement this did not mean that the applicant's abnormal

personality had essentially changed.  If released he would unavoidably

encounter new difficulties because of his egocentric attitude and lack

of realism.  There was a concrete danger of a repetition of criminal

acts although no danger of physical aggressiveness.  Only a long-term

rehabilitation programme combined with a psycho-pharmacological

treatment could lead to his resocialisation.  A preventive detention

under Section 63 of the Penal Code (Strafgesetzbuch) was therefore

indicated.  As an alternative, the expert suggested considering

whether detention under the authority of a guardian (vormundschaftliche

Unterbringung) was sufficient.  The conditions for placing the

applicant under guardianship (Entmündigung) were in any event met in

the expert's opinion.

        The applicant was represented by an official defence counsel

who allegedly did not defend him properly.  In particular he pleaded

contrary to the applicant's wish that he lacked criminal responsibility

because of a mental disease and that he should therefore be committed

to a mental hospital for an indefinite term.  The applicant was

allegedly prevented from stating his contrary point of view.

        By its decision of 1 October 1980 the Regional Court,

following the above expert advice, ordered the applicant's

detention in a mental hospital under Section 63 of the Penal Code

after having found that he had committed several offences in a state

where he was not responsible for his actions (Section 20 of the Penal

Code), including four offences of theft as well as two offences of

fraud and one of attempted fraud, each time in conjunction with

forgery, and that further similar offences were to be expected, making

him dangerous for the public.  In these circumstances the Court

further considered that there was no room to suspend (aussetzen) the

measure under Section 67b of the Penal Code.

        The applicant did not appeal against this judgment which

therefore became final.

        Various subsequent attempts of the applicant and his lawyers

to obtain a revision of the detention order and his release were

apparently unsuccessful because the treating psychiatrists confirmed

the diagnosis of schizophrenia.  The applicant has submitted some of

the medical evidence, including reports of the psychiatrist Dr.  W to

the Regional Court of 6 October and 20 November 1981.  However, the

relevant court decisions have not been submitted.

        As the applicant did not succeed with his judicial remedies he

made petitions to various other authorities including the Bavarian

Diet (Landtag) which, on 19 May 1982, expressed certain doubts

concerning the medical expert opinions underlying the applicant's

detention and recommended the consultation of an independent expert

not attached to the District Hospital where the applicant was

detained.  No action was taken by the competent criminal court

following this recommendation.

        However, on 1 September 1982 the chamber of the Regional

Court competent for the execution of sentences (Strafvollstreckungs-

kammer) ordered the applicant's conditional release subject to

supervision of his conduct (Führungs- und Bewährungsaufsicht) during a

probationary period of five years as from 16 September 1982.  On this

date the applicant was released from the closed department of the

District Hospital and transferred to a sociotherapeutical department.

        Nevertheless the applicant was not free because at

the same time the District Court of Munich, acting as guardianship

court (Vormundschaftsgericht), appointed a curator for his supervision

(Aufenthaltspfleger).  The further detention of the applicant under

the authority of the curator (vormundschaftliche Unterbringung) until

1 October 1983 was authorised by the guardianship court on

18 October 1982.

        The applicant escaped from the sociotherapeutical department

on 15 November 1982 following which the public prosecutor instituted

proceedings for the revocation of the conditional release.  In an

expert opinion delivered at the prosecutor's request by the director

of the sociotherapeutical department on 23 November 1982 it was

stated that also in liberty the applicant continued to suffer from the

consequences of his mental disease.  The prosecution issued a warrant

of arrest on the basis of which the applicant was apprehended on

14 January 1983.  The applicant raised objections, claiming that he

had not violated the probationary conditions nor committed new

criminal offences.  His arrest in fact interrupted a situation where

he had settled down in Bruchsal, had reported his residence to the

police, and found a job in his profession as geriatrical nurse.

        However, on 26 January 1983 the Regional Court of Munich I

revoked the applicant's conditional release and as from 1 February 1983

he was again sent to the closed department of the District

Hospital.  The applicant appealed against the Regional Court's

decision and requested to be examined by an independent expert.

However, he was only examined by another phychiatrist of the District

Hospital, Dr.  G, who in her report of 25 April 1983 stated that the

symptoms found confirmed the earlier diagnosis of Dr.  A

("hebephrener Residualzustand"), but that there were no signs of

"acute psychotic decompensation".  Further psychiatric treatment was

indicated, however the expert considered that it was sufficient to

detain the applicant on the basis of civil law.  This would allow a

more flexible approach towards his resocialisation.  On the basis of

this expert opinion the Regional Court, on 3 June 1983, ordered the

conditional suspension of the measure under Section 63 of the Penal

Code.  On 17 June 1983 the applicant was released from the closed

department of the District Hospital and transferred to another

department for long-term therapy.  The civil-law detention under

the authority of the curator apparently continued to apply.

        The applicant escaped on 14 July 1983 and went to Augsburg

where he joined a circle for mental sanity (Arbeitsgemeinschaft für

psychische Gesundheit) run by a private protestant organisation

(Diakonisches Werk).  On 25 July he misappropriated funds of the

organisation and left.  He travelled to Brussels, Athens and London

where he demonstrated before the German Embassy against lack of

support by the authorities in his efforts to be integrated in society.

A German diplomat convinced him to return to the Federal Republic.

His curator was informed and arranged for his detention in the

Psychiatric District Hospital of Kaufbeuren as from 18 August 1983.

A warrant of arrest (Sicherungshaftbefehl) issued by the Regional

Court of Munich I on 30 August 1983 and a further warrant of arrest

issued by the District Court of Augsburg because of the above

misappropriation of funds were not immediately executed because of

this detention.

        On 9 November 1983 the Regional Court of Munich I revoked for

the second time the suspension of the applicant's preventive detention

under Section 63 of the Penal Code.  The applicant's appeal against

this decision was rejected by the Munich Court of Appeal on

16 December 1983.  In execution of the above warrant of arrest of

30 August 1983 the applicant was brought back to the District Hospital

of Haar on 12 December 1983.  However, as from 2 February 1984 he was

again detained in the District Hospital of Kaufbeuren.

        In connection with the criminal proceedings in Augsburg the

director of this District Hospital, Dr.  K, submitted a comprehensive

psychiatric report (82 pages) on 26 March 1984.  It came to the

conclusion that the earlier diagnosis of the District Hospital of

Haar, namely that the applicant suffered from schizophrenia, could not

be maintained.  There were no signs of actual schizophrenia nor of a

residual syndrome caused by earlier schizophrenia.  The applicant

could be described as having an abnormal personality structure

(borderline-syndrome with paranoid and hysterical elements) caused by

chronic psychotraumatic maladjustment to surroundings.  Pyschopathic

reactions were stirred up by continuous unfavourable conditions of the

applicant's environment, including his detention in the mental

hospital itself.  The applicant clearly had a wish for resocialisation,

but his social integration by way of preventive detention in mental

hospitals was bound to fail in these circumstances and even created a

risk for an aggravation of his mental state.  The expert therefore

recommended to expose the applicant to the realities of life and give

him a chance to show that he was able to cope with them with some

social assistance.  A reduced criminal responsibility (Section 21) of

the Penal Code could not be excluded, but the applicant should, in

principle, be expected to bear himself all positive and negative

consequences of his rights and duties.

        On the basis of this expert opinion and a supplementary

opinion of 24 April 1984 the Regional Court of Kempten (Chamber for

the execution of sentences) decided on 21 May 1984 that, although the

preventive detention under Section 63 of the Penal Code could not be

revoked for legal reasons, it should again be suspended under

Section 67d of the Penal Code subject to a probationary period of

three years.  The applicant was ordered to take residence in the

hostel of the above protestant organisation in Augsburg and to comply

with the instructions of the hostel's director, to report to a

probationary officer and not to change his residence without prior

consent of this officer.

        On 24 August 1984 the District Court of Augsburg convicted

the applicant of theft and other offences and sentenced him to a

conditional prison sentence of seven months, subject to a probationary

period of four years.  The Court found on the basis of the above

expert opinion that the conditions for a preventive detention under

Section 63 of the Penal Code were not met because the applicant did

not suffer from a mental disease susceptible of psychiatric treatment.

The Court further warned the applicant that in future he would be

regarded as fully responsible for his acts.

        The applicant subsequently left Augsburg and went to the

Netherlands where he tried to obtain political asylum which, however,

was refused.  On 15 May 1985 the public prosecutor applied to the

District Court of Augsburg to revoke the conditional suspension of the

above sentence and to issue a warrant of arrest.  The District Court

in fact issued a warrant.

        The applicant had in the meantime returned to the Federal

Republic and was arrested in Bonn on 4 June 1985 in connection with an

attempt to cash a cheque which he had forged.  He was detained on

remand in connection with this offence for which he was tried by the

District Court of Bonn on 30 August 1985.  He was convicted of forgery

and attempted fraud and sentenced to a conditional prison sentence of

eight months.  Also this Court used the psychiatric expert opinion of

Dr.  K which had already been relied upon by the Regional Court of

Kempten and the District Court of Augsburg.  It drew similar

conclusions to those of the latter Court, namely that the applicant

had a reduced criminal responsibility (Section 21 of the Penal Code)

while there was no reason to assume a lack of criminal responsibility

(Section 20).  A measure of preventive detention under Section 63 of

the Penal Code was not considered.

        Although the District Court of Bonn pronounced a conditional

sentence, the applicant remained in detention in Augsburg until

27 March 1986 serving the earlier sentence imposed by the District

Court of Augsburg whose conditional suspension had in the meantime

been revoked on the ground that he had not complied with the

conditions because he had allegedly failed to report his change of

residence to the probation officer.  The applicant could subsequently

show that he had in fact informed the probation officer and in

July 1986 the revocation of the conditional suspension of the sentence

was therefore criticised by the Bavarian Diet to which the applicant

had submitted a new petition.  However, there was apparently no

further judicial decision concerning this matter.

        After his release the applicant moved to Bonn and concentrated

on steps to obtain the definitive revocation of his preventive

detention ordered in 1980 which was only suspended by the above

decision of the Regional Court of Kempten of 21 May 1984.  He claimed

that the expert opinion of Dr.  K of Kaufbeuren and the subsequent

court judgments showed that this measure had been unlawful from the

beginning as it had been based on a wrongful pschyiatric expert opinion.

        Two lawyers in Bonn advised him in May and July 1986

respectively that there might be a base for claiming compensation

under the Criminal Prosecution (Compensation) Act (Gesetz über die

Entschädigung für Strafverfolgungsmassnahmen), while an official

liability action against the State of Bavaria seemed to be excluded.

        On 21 July 1986 the applicant applied to declare the measure

of preventive detention to be without object (erledigt) under

Section 67c of the Penal Code.  The matter was referred to the

Regional Court of Augsburg (Chamber for the supervision of sentences)

which, on 7 August 1986, rejected the application as inadmissible on

the ground of res judicata.  In the Court's opinion there were no new

relevant facts since the decision of the Regional Court of Kempten of

21 May 1984 which had already had before it the psychiatric opinion

which the applicant now invoked.

        The applicant's appeal against this decision was successful.

On 24 October 1986 the Munich Court of Appeal (Oberlandesgericht)

declared the preventive detention and the probationary supervision of

the applicant resulting therefrom as being without object.  It found

that there was no res judicata because the Regional Court of Kempten

had only examined the question of whether the measure could be

terminated because the conditions for a successful treatment no longer

existed.  It had not examined whether the conditions for imposing the

measure had been lacking from the outset.  However, these conditions

in fact had never existed.  The diagnosis of schizophrenia by Dr.  A

had not been confirmed by later examinations, and it was also in

conflict with earlier statements, e.g. of the psychiatric university

clinic of Munich.  The remaining statements of Dr.  A were not

sufficient to support a finding that, at the relevant time, the

applicant's responsibility for his actions was reduced (Section 21)

or lacking (Section 20).  That a reduced responsibility could not be

excluded was not sufficient to justify a measure of preventive

detention.

        In view of this decision, the applicant filed a request on

22 December 1986 with the Regional Court of Munich II to re-open the

proceedings by which his detention in a psychiatric hospital had been

ordered in 1980.

        His lawyer submits that only after the re-opening of those

proceedings would there be a chance of obtaining compensation under

the Criminal Prosecution (Compensation) Act.  A formal request under

this Act has apparently not yet been made, although the applicant

states that already in March 1986 he applied to be compensated for

wrongful detention.  No documents have been submitted in this respect

except for two letters to the Federal Chancellor in which a claim for

compensation is mentioned.  In any event no decision has so far been

taken on the compensation issue.

        The applicant has in the meantime invited the court expert Dr.

A to recognise his duty to compensate the material and moral damage

caused to the applicant by the wrongful expert opinion.  The expert

denied any liability, but informed the applicant that he had forwarded

the claims to his insurance company.  Civil court proceedings have not

so far been instituted against the expert in question.  The applicant

observes in this context that, according to the case-law of the

Federal Court of Justice, a court-appointed expert cannot be held

liable for damages resulting from an incorrect opinion while,

according to the case-law of the Federal Constitutional Court

(NJW 1979, 305), he is liable to pay compensation in case of gross

negligence.  The applicant submits that gross negligence is almost

impossible to prove in the circumstances.

        The applicant had laid a criminal information (Strafanzeige)

against the expert in question already on 12 June 1985.  However, by a

decision of the Public Prosecutor's Office (Staatsanwaltschaft) at the

Regional Court of Munich I the proceedings were discontinued on

19 July 1985 on the ground that there was no criminally relevant

behaviour.  The applicant apparently did not appeal from this decision

under Section 172 of the Code of Criminal Procedure.  However, on

31 August 1986 he laid a new criminal information against the

psychiatrists of the Haar District Hospital, Drs.  A, W and G, for

issuing incorrect public documents and causing bodily harm.  He has not

informed the Commission whether criminal proceedings were actually

instituted.

COMPLAINTS

1.      The applicant now complains that his detention in mental

hospitals during almost five years which was ordered by the Munich

Regional Court's judgment of 1 October 1980 lacked justification

because it was based on wrongful medical evidence.  This has

subsequently been confirmed by several court decisions.  It is further

submitted that this measure was the consequence of relatively minor

offences committed by the applicant in a situation of acute distress

and that it was therefore disproportionate and discriminatory.

        The applicant considers that he can still claim to be a victim

of the above measure.  Although it was declared to be without object

by the decision of the Munich Court of Appeal of 24 October 1986 this

decision produced effect only ex nunc and did not quash the original

wrong decision.  Nor was the important moral and material damage which

the applicant suffered as a result of this measure removed.  The

applicant submits in this context that probably no more than a

conditional prison sentence would have been pronounced if the Court

had denied the existence of conditions for imposing preventive

detention under Section 63.  The further offences which he committed

were a direct consequence of the unlawful detention which led to an

aggravation of his borderline syndrome.  The applicant finally submits

that because of his detention in psychiatric hospitals for almost five

years he now has great difficulty in finding an appropriate job.  The

employers only consider the fact of this detention and are not

impressed by the fact that it might have been unlawful.  His present

job with a publishing company, which he got through the good services

of the Social Office of the City of Bonn in February 1987, is

limited to a term of two years.

        The applicant submits that according to the case-law of the

German courts a claim for compensation under the Criminal Prosecution

(Compensation) Act is excluded in cases where a measure of preventive

detention under Section 63 of the Penal Code has been declared to be

without object.  In this respect he refers to a decision of the Hamm

Court of Appeal of 9 July 1986 (EuGRZ 1986, 546).  He also considers

that in principle financial compensation is insufficient to provide

just satisfaction for the consequences of his unlawful detention.  He

observes that the decision to declare the detention without object

does not lead to erasion (Tilgung) of the measure from the criminal

register under Section 43 para. 3 of the Federal Criminal Register Act

(Bundeszentralregistergesetz).  He claims a right to measures for his

full rehabilitation.

        The applicant invokes Article 5 paras. 1, 4 and 5 of the

Convention in this respect.

2.      The applicant also complains of the revocation of the

conditional suspension of the prison sentence imposed on him by the

Augsburg District Court.  He claims that the conditions for revocation

were not met and that his detention was therefore unlawful.  The

applicant does not invoke any particular provision of the Convention

in this respect.

THE LAW

1.      The applicant first complains that his detention in various

mental hospitals between 1980 and 1984 was unjustified because the

relevant committal orders were based on wrongful psychiatric evidence

stating that he suffered from schizophrenia.  New psychiatric reports

of 1984 in fact confirmed that the applicant had never suffered from

schizophrenia and these reports were relied upon in several subsequent

court decisions, including in particular a decision by the Munich

Court of Appeal of 24 October 1986 by which the original committal

order of 1 October 1980 was declared to be without object in view of

the new psychiatric reports.

        The Commission considers that despite this latter decision the

applicant can still claim to be a victim, within the meaning of

Article 25 (Art. 25) of the Convention, of a violation of his

Convention rights in connection with his above detention.  The effect

of this decision, which operated ex nunc, was limited to terminating

the probationary supervision which still was applicable to the

applicant as a consequence of the committal order.  The original

committal order was not revoked or annulled and the applicant did not

obtain any compensation or other redress regarding his claim that the

detention had been unjustified from the outset.  He therefore can

still complain of that order.

2.      The applicant first refers to Article 5 para. 1 (Art. 5-1) of the

Convention.  Insofar as relevant, this provision reads as follows:

        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 of unsound mind, ..."

        In the present case the question might arise whether the

applicant's detention, although ordered "in accordance with a

procedure prescribed by law", was unjustified, in that he was not a

"person of unsound mind" at the relevant time.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of Article 5 (Art. 5) as, under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

        In the present case the applicant failed to appeal against the

relevant court decisions.  In particular he did not appeal against the

provisional committal order issued by the District Court of Weilheim

on 17 March 1980 under Section 126a of the Code of Criminal Procedure,

or against the final committal order under Section 63 of the Penal

Code made in the judgment of the Regional Court of Munich II of

1 October 1980.  It is true that the applicant challenged the

subsequent decisions of the Regional Court of Munich I (Chamber for

the execution of sentences) of 26 January and 9 November 1983

by which the provisional suspension of the committal order was

revoked.  However, on no occasion did the applicant appeal to the

Federal Constitutional Court (Bundesverfassungsgericht) as he could

have done in last instance against all of the above decisions,

invoking Article 2 para. 2 and Article 104 of the Basic Law

(Grundgesetz).

        The applicant has, therefore, not exhausted the remedies

available to him under German law.  Moreover, an examination of the

case does not disclose the existence of any special circumstances

which might have absolved the applicant, according to the generally

recognised rules of international law, from exhausting the domestic

remedies at his disposal.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this part of

the application must accordingly be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3.      The applicant also invokes Article 5 para. 4 (Art. 5-4) of the

Convention without, however, specifying in any way how he considers that this

provision has been breached.  The Commission observes in this respect that the

applicant could and did in fact use certain judicial remedies to challenge his

detention.  He has not substantiated that these remedies did not comply with

the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.  This part

of the application must accordingly be rejected as being manifestly ill-founded

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

4.      The applicant further invokes Article 5 para. 5 (Art. 5-5) of the

Convention which reads as follows:

        "Everyone who has been the victim of arrest or

        detention in contravention of the provisions of

        this Article shall have an enforceable right to

        compensation."

        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 (Art. 5-5) of the

Convention (cf. 9920/82, Naldi v.  Italy, Dec. 13.3.1984, DR 37, 75).

        The applicant submits in this respect that he did not have an

effective domestic remedy at his disposal because the case-law of the

German courts excludes a compensation claim under the Criminal

Proceedings (Compensation) Act in cases where a measure under Section

63 of the Penal Code has been declared to be without object.  The

applicant invokes in particular a decision of the Hamm Court of Appeal

of 9 July 1986.  However, that case concerned a measure under Section

63 which as such was apparently based on sufficient medical evidence.

The measure was declared to be without object only because it had

become disproportionate due to its length.  The applicant's case can be

distinguished from that case.  Here the measure under Section 63 was

declared to be without object for an entirely different reason, namely

that there had never been sufficient medical evidence to justify

detention in a mental hospital.  The decision of the Hamm Court of

Appeal expressly mentions that in such circumstances a compensation

claim under the above Act might not be excluded.  The Commission

further observes that the Convention is part of the domestic law of

the Federal Republic of Germany and that Article 5 para. 5 (Art. 5-5) can

therefore be invoked before the competent domestic courts.

        The applicant states that he filed an application for

compensation in March 1986, but he has not submitted a copy of this

remedy and thus has not substantiated that he actually used this

remedy in the form prescribed by the domestic law.  It rather appears

from the submissions of the applicant's lawyer that this is not the

case and that the lawyer intends to submit a claim only after the

re-opening of the original committal proceedings.   In any event no

decision has as yet been taken by the competent German courts

concerning the compensation issue.  The applicant's complaint to the

Commission under Article 5 para. 5 (Art. 5-5) of the Convention is therefore

premature:  The applicant has not complied with the conditions of

Article 26 (Art. 26) of the Convention in this respect, and this part of the

application must again be rejected under Article 27 para. 3 (Art. 27-3).

5.      The applicant finally complains of the revocation of the

conditional suspension of the seven-month prison sentence imposed on

him by the District Court of Augsburg.  He submits that this

revocation was unjustified because the legal conditions were not met.

The Commission considers that it is not required to examine whether

any issue under the Convention, in particular under Article 5 (Art.

5), could arise in this respect.  In any event the applicant has again

failed to comply with the conditions of Article 26 (Art. 26) of the

Convention as he apparently did not take any legal remedies before the

competent courts.  The fact that he filed a petition to the Bavarian

Diet which was favourably received is irrelevant for the purposes of

Article 26 (Art. 26). This last part of the application must therefore

also be rejected under Article 27 para. 3 (Art. 27-3).

        For these reasons, the Commission

        &_DECLARES THE APPLICATION INADMISSIBLE&S

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)