Resolution CM/ ResDH (2011)110 [1]

Execution of the judgment of the European Court of Human Rights

Herz against Germany

(Application No. 44672/98, judgment of 12 June 2003, final on 3 December 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant ’ s right to freedom due to the failure to review the lawfulness of his temporary detention in a psychiatric hospital in 1996 (violation of Article 5, paragraph 4) (see details in Appendix) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)110

Information about the measures to comply with the judgment in the case of

Herz against Germany

Introductory case summary

The case concerns the failure to review the lawfulness of the applicant ’ s temporary detention in a psychiatric hospital in 1996 (violation of Article 5§4).The domestic courts dismissed the applicant ’ s requests to review the lawfulness of his detention on the grounds that, in the meantime, the detention order had expired and the applicant had escaped from hospital. The European Court considered that, in view of the gravity of such measures – be they only temporary – the mere fact that the detention order had expired could not deprive the applicant of the right to review the lawfulness of his detention.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 500 EUR

6 500 EUR

10 000 EUR

Paid on 3/03/2004

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. It made no award in respect pecuniary damage as the Court found no causal link between the violation and the damage alleged. The applicant was released on 10 July 1998 (§ 34 of the judgment). Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

At the time when the European Court rendered this judgment, the Federal Constitutional Court had already established new case-law which has been also followed by the lower instance courts when examining the legality of detention measures (§§ 39 and 67 of the judgment).

In addition, the European Court ’ s judgment has been transmitted to the courts and justice authorities directly concerned and was published in Neue Juristische Wochenschrift (NJW 2004, pp. 2209-2211). All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( www.bmj.de , Menschenrechte , EGMR) which provides a direct link to the European Court ’ s website for judgments in German ( www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/ ).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Germany has thus complied with their obligations under Article 46, paragraph 1, of the Convention .

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies