Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12485/86

by J.M.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 6 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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 15 June 1986

by J.M. against the Federal Republic of Germany and registered

on 16 October 1986 under file N° 12485/86;

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&S

The applicant is a stateless person of Hungarian origin, who

was born, according to the documents submitted by him, in 1925 and is

presently detained in a mental hospital at E. He is

represented by Mrs. Marianne Kunisch, a lawyer practising in Munich.

The applicant complains that he is wrongly detained without

being insane. This complaint was already the main object of a

previous application (No. 10272/82) which was declared inadmissible on

18 May 1984 (see D.R. 38, p. 104).

I

In the context of the previous application it was submitted

that on 26 March 1980 the applicant was convicted by the Traunstein

Regional Court (Landgericht) of aggravated theft, fraud and of having,

under aggravating circumstances, offered resistance against state

officials. He was sentenced to three years' imprisonment. The Court

further ordered that, after having served sentence, the applicant

should be detained in a mental hospital. The judgment became final as

the applicant did not appeal.

The Regional Court found that the applicant had lived in an

empty house and had organised a bazar with goods stolen from the

neighbourhood. When two policemen came to the house in order to

investigate the matter, he threatened them with an axe and only after

considerable efforts could he be calmed down. A medical expert

stated at the trial that the applicant had acted in a state of violent

emotion when threatening the policemen, and that he had therefore been

unable to control himself and to realise the unlawfulness of his

action. This was due to a latent tendency of the applicant to become

aggressive in situations where he was driven into a corner, a tendency

which could be considered pathological. In such situations the

applicant was dangerous for the public and for himself. It could not

be excluded that he would also act in the same way in the future. His

criminal responsibility was by no means lacking, but it was

considerably reduced, and this justified the taking of a measure under

Section 63 of the Penal Code, i.e. the order for his preventive

detention in a psychiatric hospital.

On completion of the sentence on 23 September 1982 the

applicant was transferred to a mental institution at Ansbach, the

Regional Court having ruled on 1 July 1982 that in view of the prison

doctor's advice such detention was necessary.

On 6 June 1983 the Ansbach Regional Court ordered that the

applicant's detention in the mental hospital should continue. The

Court had regard to two further psychiatric expert opinions denying

the existence of a genuine mental disorder based on a physical nervous

disease or psychosis finding, however, that the applicant was marked

by a pathological aggressive character which made him dangerous for

the public and himself. The experts further stated that the applicant

needed psychiatric treatment to stabilise his emotional overreaction,

but that he refused to co-operate and was therefore inaccessible to

treatment. The Court found this to be sufficient ground for the

applicant's continued detention in a mental hospital in order to

protect the general public, although it admitted that, from a medical

point of view, this might be unsatisfactory as the detention only

served security purposes but would not improve the applicant's mental

state of health. The Regional Court's order of 6 June 1983 was

confirmed on appeal in August 1983 and as the applicant then failed to

lodge a constitutional complaint his previous application was to this

extent rejected for non-exhaustion of domestic remedies.

II

Meanwhile the applicant's detention in the mental hospital was

again ordered to continue and the applicant's appeal was rejected by

the Munich Court of Appeal (Oberlandesgericht) on 16 April 1986.

This Court heard the applicant personally and a medical expert.

Subsequent to the hearing the Court had ordered this expert to submit

an expert report. In view of all the expert opinions obtained or

previously submitted, the Court came to the result that the applicant

suffers from a character anomaly which amounted to a psychic

abnormality within the meaning of Section 20 of the Criminal Code

(StGB). This followed from concording expert opinions obtained from

different medical experts in March 1980, February 1983, May 1983 and

July 1985.

An additional expert opinion obtained in June 1984 from a

mental hospital in Munich did not contradict the previous results, as

the two examining doctors also concluded that the prevailing

characteristics of the applicant's paranoiac personality were mistrust,

querulous tendency and irritability.

Two previous expert reports obtained in 1979 in the course of

the investigation proceedings and in October 1982 after short-term

observation only were considered to be no longer valid in view of the

results of the subsequent more extensive examinations and experience

with the applicant in the mental hospitals where he had so far been

detained.

The ultimate expert opinion of Dr. W, who was heard by the

appellate court on 18 December 1985 and who subsequently submitted a

report after having examined the applicant for nearly three hours,

likewise did, in the appellate court's opinion, only confirm the

results of previous expert examinations. Dr. W considered the

applicant to be a primitive hysterically structured psychopath marked

by egotism. The Court also pointed out that the applicant's

irritability was noted by the judges who had heard him personally.

Referring to Section 67 d (2) first sentence StGB, the

appellate court stated that continued detention was justified where

there was danger that the detainee would commit important offences

(erhebliche Taten) if he were released, such as coercion by physical

force, or even aggression causing bodily harm or death.

The Court considered such danger to be given. In this context

the Court first referred to the applicant's numerous previous

convictions based, inter alia, on the following facts:

- In March 1969 the applicant had attacked a man with a

chair and injured him and a woman standing aside;

- In June 1971 he had given a man several punches in his

face without any reason in a coffee-house;

- In June 1972 he tried to avoid customs control by driving

his car at customs police officers standing in his way;

- In September 1979 he threatened to kill policemen with an

axe (ultimate conviction).

The appellate court also noted that while detained in mental

institutions the applicant repeatedly aggressed or tried to aggress

and threaten the personnel of these institutions. He also once tried

to escape from a mental hospital and threatened to kill the policemen

who arrested him.

The Court finally considered that the medical reports also

confirmed the existence of danger that the applicant might commit

further offences if he were released. As the applicant so far had

opposed treatment and continued in this attitude, it was furthermore

unlikely that his conduct after release could be kept under control by

measures of surveillance and ambulant medical treatment.

The applicant's constitutional complaint against the afore-

mentioned decision of the Munich Court of Appeal was rejected by a

group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 1 August 1986 as offering no prospects

of success.

It is stated in the decision that, although the applicant

has already been detained in a mental hospital for nearly four

years, the appellate court rightly considered, in view of his

antecedents, his behaviour in prison and in mental hospitals and the

medical expert opinions, that the risk of releasing the applicant

could not yet be taken as there was danger that he would commit

serious offences.

It is, however, also pointed out in the decision that the

applicant's release did not require a reliable expectancy as to his

future good behaviour. Release could only be denied where there was

concrete danger of commission of offences. The degree of such danger

would have to be ascertained. Meanwhile, those responsible for the

applicant should try to convince him to adopt a more co-operative

attitude allowing an external examination and his accommodation at a

place other than a closed mental hospital.

&_COMPLAINTS&S

The applicant points out that, after three years' detention

serving sentence, he has already spent more than four years in a

mental hospital, altogether more than seven years, while he never

committed any offence punishable with deprivation of liberty of such

length. Referring to the expert opinion of Dr. W, who stated in his

written report of 22 January 1986: "... I found no symptoms allowing a

diagnosis under the terms of strict psychiatry that can be subsumed to

the legal term of mental illness" ("... keine Symptome, die geeignet

wären, eine Diagnose aus der grossen Psychiatrie anzunehmen, die man

unter den rechtlichen Begriff einer krankhaften seelischen Störung

subsumieren könnte"), the applicant considers that his detention in a

mental hospital is neither justified under Article 5 para. 1 (a) nor

(e) and therefore violates para. 1 of this provision.

&_THE LAW&S

The applicant has complained that his detention in a mental

hospital is neither justified by subpara. (a) or (e) of Article 5 para. 1

(Art. 5-1-a, 5-1-e) of the Convention, because he could not be considered

as a person of unsound mind. As the applicant is no longer serving sentence

but is detained in a mental hospital and as subparas. (a) and (e) are

not mutually exclusive it has, in the first place, to be examined whether

the requirements for detention under Article 5 para. 1 (e) (Art. 5-1-e) of

the Convention are fulfilled.

The term "unsound mind" as employed in Article 5 para. 1 (e)

(Art. 5-1-e) does not only refer to mental illness in the strict sense of

psychiatric science, but also to any kind of mental disorder, the kind

or degree of which must be such as to warrant compulsory confinement

(judgment of the Eur. Court HR of 5 April 1981, case of X v. United

Kingdom, Series A, Vol. 46, p. 18, para. 40). In the present case the

German courts have, on the basis of several consecutive and concordant

medical expert opinions and taking into account his numerous previous

convictions relating to violent offences and his aggressive and

violent behaviour in detention, concluded that there is concrete

danger that the applicant, who, up to now, has refused treatment and

also refuses to accept any kind of treatment or control after his

eventual release, might again commit serious offences.

The Commission notes that the Munich Court of Appeal carefully

examined all evidence available and, in addition to various expert

opinions submitted previously, ordered Dr. W to examine the applicant

again and to submit a further report. The appellate court also heard

the applicant personally. Although Dr. W did not find the applicant

to be mentally ill in the strict psychiatric sense, he nevertheless

considered him to be a hysteric psychopath, who is completely

unwilling to co-operate. As the applicant was repeatedly convicted of

violent acts and also showed, according to the findings of the German

courts, aggressive or violent behaviour in detention without being

willing to submit himself to any kind of treatment or control in the

case of his release, the Commission cannot find that the German courts

arbitrarily assumed that he is suffering from a mental disorder and

that this disorder necessitates compulsory confinement for the

protection of the public.

As the decision of the Federal Constitutional Court makes it

clear, the applicant's release depends mainly on his own attitude. The

Commission notes that he refuses to co-operate and to accept some kind

of therapeutic treatment.

It follows that the applicant's detention is justified under Article 5

para 1 (e) (Art. 5-1-e) of the Convention and his complaint as it has been

submitted, does not therefore disclose any appearance of a violation of the

rights and freedoms set out in the Convention and in particular in the above

Article.

The application is consequently manifestly ill-founded within

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

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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