Resolution CM /ResDH(2007)123 [1]

Execution of the judgment of the European Court of Human Rights

Storck against Germany

(Application No. 61603/00, judgment of 16 June 2005, final on 16 September 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the admission and the detention of the applicant in a private psychiatric clinic without consent or court order for 20 months (violation of Article 5, paragraph 1) and medical treatment against her will (violation of Article 8), (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Germany ' s obligation under Article 46, paragraph 1, of the Conve n tion 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 a p plicant 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 in the judgment, 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

- general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state or still under way (see Appendix), that it has exe r cised 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(2007)123

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

Storck against Germany

Introductory case summary

The case concerns the unlawfulness of the applicant ' s detention in a locked ward of a private psychiatric clinic for 20 months in 1977-1979 at her father ' s request following family conflicts, as well as medical treatment administered to her against her will.

The applicant, who had attained her majority at the time, was not subject to a declaration of incapacity and had never signed any form of declaration consenting to her detention, which was moreover not authorised by judicial decision. The cost of her internment and treatment were borne by the state health insurance.

She made repeated attempts to escape from the clinic and was forcibly brought back by the police in March 1979. After medical treatment in the clinic for what was thought to be schizophrenia, she developed post-poliomyelitis syndrome and is today 100% disabled. Between 1980 and 1992 she was unable to speak. Two reports, in 1994 and 1999, confirmed that the applicant had never suffered from schizophrenia.

In 1998 the Bremen Regional Court granted the applicant leave to sue for damages, as her detention had been illegal under German law. In December 2000, this judgment was quashed by the Bremen Court of Appeal which found that her detention had been lawful and that her claim for damages in respect of the criminal act was in any case time-barred. The court also dismissed her contractual claim for compensation on the grounds that the applicant had not sufficiently proved that she had expressly opposed her internment and in any event that a contract between the clinic and the applicant ' s father was implicitly to the applicant ' s benefit. The Federal Court of Justice and the Federal Constitutional Court both rejected her appeals.

The European Court found first of all that the applicant had been deprived of her liberty between 1977 and 1979 and that her psychiatric detention without a judicial decision had been unlawful. The Court considered furthermore that, in dismissing the applicant ' s requests for compensation, the appellate court had not interpreted the domestic law in the spirit of Articles 5 and 8 of the Convention, considering not least that the applicant had been unable to lodge such appeal within the time-limits laid down on account of the heavy medication administered to her and because there was no factual proof that she had consented to her internment or treatment. The Court also found that German law did not provide sufficient safeguards against abuse and that the state had failed in its positive obligation to protect the applicant ' s rights in respect of Articles 5 and 8 (violations of Articles 5, paragraph 1 and 8).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary damage

Costs and expenses

Total

P aid on

18 315 €

27/10/2005

b) Individual measures

Until the end of 2006 there was no explicit possibility in German law to ask for reopening of civil proceedings on the grounds that the domestic court ' s judgment did not interpret domestic law in the spirit of the Convention. In that respect the German Code of Civil P rocedure differed from the Criminal Code of P rocedure, which explicitly provides reopening in cases where the European Court found a violation which might have had repercussions on the outcome of the proceedings at issue (paragraph 359 Nr. 6 St P O).

On 31/12/2006 new legislation entered into force providing for reopening of civil proceedings in the same way as it was already the case for criminal proceedings (paragraph 580 Nr. 8 Code of Civil P rocedures, introduced through the 2nd law on modernising the judiciary, BGBl. I 2006 no. 66 of 30/12/2006). As the law does not have any retroactive effect, it appears that the applicant might not benefit from it. The applicant could not initiate criminal proceedings for deprivation of liberty (paragraph 239 St P O) and bodily harm (paragraph 223 St P O) as they were already time-barred when the applicant regained her ability to speak. Nevertheless the applicant is currently seeking reopening of domestic proceedings with a view to receiving additional compensation for pecuniary damage caused by her illegal detention. Her claim for legal aid was rejected by the Bremen Court of Appeal in February 2006. In March 2006 the applicant lodged a constitutional complaint against this decision, arguing that under German constitutional law as well as under the Convention, reopening proceedings would be possible and not futile and therefore legal aid ought to be granted. Given the constant practice of the Federal Constitutional Court , it is expected that the domestic court in its decision will fully implement the Convention as well as the European Court ' s case law in order to grant full redress to the applicant.

II. General measures

- Law reforms enacted

In the Land of Bremen a new Act on Measures of Aid and P rotection in cases of Mental Disorders ( Gesetz über Hilfen und Schutzmaßnahmen bei psychiatrischen Krankheiten, P sychKG ) entered into force in 1979, providing an independent commission to visit psychiatric hospitals where patients are detained on the basis of a court order. Several years after the Act entered into force, the commission extended its visit to all psychiatric hospitals. As this went beyond the strict wording of the article, visits to private clinics were carried out with the consent of the institutions concerned. The revised law of 2000 enables the commission to visit all institutions where patients are being kept against their will, at least once a year (paragraph 8, 13, 36 P sychKG Bremen of 19/12/2000). Furthermore, patients have the right to send and receive mail which must not be supervised if addressed to certain bodies, i.e. attorneys, courts, parliaments or the visitation commission. Similar provisions exist in most Länder .

In addition to the new Act on Measures of Aid and P rotection in cases of Mental Disorders of 1979 (see above), new federal legislation entered into force in 1992. Since then, the placement of a minor by his/her parents in a mental institution requires an order of a court (paragraph 1631 b BGB, civil code). The same applies for adults having a guardian (paragraph 1906 BGB, civil code). Furthermore, since 1992 the reformed law on non-contentious proceedings ( Freiwillige Gerichtsbarkeit , FGG) in paragraph 70 ff. provides procedural safeguards, in particular the duty of the judge to hear the patient in person (paragraph 70 c FGG), to assign a legal guardian if the patient cannot be heard because he/she is incapable of expressing him/herself, to give a person of confidence named by the patient the opportunity to be heard (paragraph 70 d FGG) and to obtain an expert opinion (paragraph 70 e FGG). The decision to put the patient in placement has to be limited in time with a maximum duration of 2 years (paragraph 70 f FGG) and may be appealed by the patient, a relative, a person of confidence or the competent authorities (paragraph 70 m and d FGG).

- Draft legislation authorising reopening of civil proceedings

Legislative steps have also been taken to introduce into German law, in line with Recommendation Rec(2000)2 of the Committee of Ministers to member states, the possibility of reopening civil proceedings following a violation found by the European Court. The new law entered into force in December 2006 (see above under individual measures).

- The effect given to the European Court ' s judgment by domestic authorities: The judgment has been widely disseminated to the domestic authorities concerned and covered by the media. Furthermore, the competent ministry of the Land of Bremen ( Senator für Arbeit, Frauen, Gesundheit, Jugend und Soziales ), sent a reminder of the current law to the responsible clinic in the present case as well as all other hospitals treating mental illnesses, stressing that a court order is mandatory in all cases. The topic will also be raised by the independent board of visitors to psychiatric hospitals on the occasion of future hospital visits.

As is the case with all judgments of the European Court against Germany , the judgment is publicly available via the website of the Federal Ministry of Justice ( www.bmj.de , Themen: 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 / . Furthermore, the judgment was published in the Rechtsprechungsreport of the Neue Juristische Wochenschrift , NJW-RR, 2006 p. 308-319.

III. Conclusions of the respondent state

The government considers that the measures adopted or under way will so far as possible remedy the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies