Lexploria

The European Commission of Human Rights sitting in private on

16 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 August 1983 by J.Z.

against the Federal Republic of Germany and registered on 15 November

1984 under file No. 11249/84;

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 is a German citizen born in 1938. He is a joiner by

profession. At the time of lodging his application he was detained in

the Moabit Prison, Berlin.

On 4 October 1978, the Berlin Regional Court (Landgericht) acquitted

the applicant of the charge of murder on the ground that he could not

be held responsible. The Court relied on the opinion of the

psychiatrical expert Prof. C. according to which the applicant had a

severely disturbed personality as well as on the results of an alcohol

test. The Court concluded that without psychiatric treatment of the

applicant's mental deficiencies further crimes were to be expected. It

therefore ordered the applicant's detention in a neuropathic hospital

under S. 63 of the German Penal Code (Strafgesetzbuch). S. 63 provides

for the detention in a neuropathic hospital of a person, who cannot be

held responsible for having committed a crime, if, in view of all the

circumstances of the case, further crimes are to be expected and if,

therefore, this person has to be considered as being a danger to the

general public.

The applicant was subsequently detained in a neuropathic hospital from

which, on 11 January 1973, he managed to escape.

On 10 October 1979, the Berlin Regional Court sentenced the applicant

to eight years imprisonment on the ground that he had murdered a woman

during the night after his escape. The Court furthermore ordered that

the applicant should be detained in a neuropathic hospital and that

the sentence should be executed before the measure of detention in a

neuropathic hospital. The Court found that the applicant was

psychologically abnormal in several respects and that his

responsibility was therefore reduced. It relied on the corresponding

psychiatrical opinions of Prof. C. and Prof. E. The Court moreover

found that the applicant was a danger to the general public within the

meaning of S. 63 of the Penal Code in view of the fact that he had

committed two murders in similar situations within one year. It

considered that the applicant's abnormal character required special

treatment which he could not receive in a neuropathic hospital, as he

was not mentally ill.

In the interest of the applicant's rehabilitation, the Court,

therefore, admitted an exception under S. 67 para. 2 to the rule of

S. 67 para. 1 of the Penal Code. S. 67 para. 1 states that normally

the execution of a measure under S. 63 of the Penal Code prevails over

the execution of a sentence. S. 67 para. 2 provides for an exception

if prior execution of the sentence meets the aims of the supplementary

measure under S. 63 of the Penal Code. S. 67 para. 3 provides for a

subsequent review of the order made in the judgment in the light of

changes in the personality of the convicted person.

In 1982 the applicant unsuccessfully applied to the Berlin Regional

Court and Court of Appeal (Kammergericht) for review under S. 67

para. 3 of the Penal Code. The Courts found in particular that the

factual requirements of the relevant provision were not fulfilled.

On 16 April 1984 the Berlin Regional Court rejected the applicant's

renewed request for review under S. 67 para. 3. The Court found no

new factors in the applicant's personality or other changes that would

justify a revision. It referred to the opinion of the chief physician

of the local neuropathic hospital that there were no changes in the

applicant's personality. The fact that the facilities to rehabilitate

the applicant during his imprisonment were reduced contrary to the

Berlin Regional Court's expectations in 1979 could not justify the

amendment requested.

On 29 June 1984 the Berlin Court of Appeal rejected the applicant's

appeal (Beschwerde). The Court found that the Berlin Regional Court's

expectations with regard to a special therapy and training during the

imprisonment had not been met. Nevertheless, this circumstance did

not justify the revision of the order of execution, i.e. priority of

detention in a neuropathic hospital. As the local neuropathic

hospital was overburdened according to a statement of its chief

physician, a special medical treatment could only be carried out after

the completion of a new building in autumn 1986. Moreover, the Court

had regard to security requirements in respect of the applicant's

detention.

Furthermore, the Court held that it was not competent to decide upon

the applicant's request dated 27 June 1984 according to which he

should be released or detained in another prison.

The applicant unsuccessfully filed a further request for review in

1985. In April 1986, proceedings concerning the review of the

execution order were again pending before the Berlin Regional Court.

In 1983 and 1984 the applicant also made various requests to be

transferred to another prison in order to undergo a special treatment

of his character deficiencies. The Berlin Ministry of Justice refused

on 28 January 1985. The applicant did not appeal against this

decision to the Berlin courts.

COMPLAINTS

1. When introducing the application, the applicant in general

complained that, while he was serving his prison sentence, he did not

receive a special training and rehabilitation for his mental

deficiencies and moral abnormalities. In his view this situation

amounted to an inhuman and degrading treatment within the meaning of

Article 3 (art. 3) of the Convention. The applicant referred in

particular to the Berlin Ministry of Justice's decisions not to

transfer him to another prison and the refusal of his request for

release. He moreover complained of the respective Berlin courts'

decisions confirming the order according to which the imprisonment to

which he had been sentenced was to be executed prior to the detention

in a neuropathic hospital. The applicant also invoked Articles 4,

5 para. 1 (a), 8, 13, 14 and 17 (art. 4, art. 5-1-a, art. 8, art. 13,

art. 14, art. 17) of the Convention.

By letter of 25 September 1986 the applicant informed the Commission

that he wants to withdraw his above original complaints in view of the

fact that he nearly served his prison sentence.

2. He now complains that the order of 1979 that he be detained in

a neuropathic hospital is still in force. He submits that he was able

to change his character by himself and to build up a new existence for

the time after imprisonment. He considers that there are no longer

any reasons to detain him in a neuropathic hospital. He does not

invoke any Articles of the Convention.

THE LAW

1. The applicant has initially complained that he did not receive

a special rehabilitation in prison and that the courts maintained the

order of 1979 according to which the sentence to imprisonment was to

be executed prior to the detention in a neuropathic hospital.

The Commission notes that by letter of 25 September 1986 the applicant

expressed his wish to withdraw these complaints on the ground that he

nearly served the time of his prison sentence. It considers that

there are no reasons of a general character affecting the observance

of the Convention which necessitate a further examination of these

complaints.

It concludes that it is no longer seized of the applicant's initial

complaints.

2. The applicant now complains that though his character changed

the order of 1979 that he be detained in a neuropathic hospital is

still in force.

However, the Commission is not required to decide whether or not this

new complaint discloses any appearance of a violation of the

Convention 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 no court proceedings have yet taken place under

S. 67 c of the German Penal Code which provides for a review of the

initial court order that the applicant be detained in a neuropathic

hospital after he had served a sentence to imprisonment. The applicant

has not applied for a discontinuance of the order of 1979 on the

grounds of an alleged change of circumstances. He 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 in respect of his new complaint the applicant has not

complied with the condition as to the exhaustion of domestic remedies

and his application must therefore be rejected under Article 27

para. 3 (art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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Z. v. THE FEDERAL REPUBLIC OF GERMANY

Z. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI