FIFTH SECTION

Application no. 75095/11 Rosel ZIERD against Germany lodged on 4 December 2011

STATEMENT OF FACTS

The applicant, Ms Rosel Zierd , is a German national, who was born in 1950 and lives in Bad Salzungen . She is rep resented before the Court by Mr D. Schneider- Addae - Mensah , a lawyer practising in Strasbourg.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the mother and sole heir of H., who was born in 1982 and died on 27 February 2011.

On 31 May 2006 the Meiningen Regional Court found that H. had committed a number of traffic offences, including involuntary manslaughter, while being in a state of criminal incapacity and ordered his confinement in a psychiatric hospital as a measure of correction and prevention ( Maßnahme der Besserung und Sicherung ). Basing its assessment on expert opinion, the Regional Court considered that the applicant suffered from a bipolar affective disorder necessitating medical treatment.

As from February 2010, the applicant refused to take medication prescribed by the hospital doctors.

In the night from 18 to 19 July 2010, H. was found by hospital staff lying on his bed with a wet towel wrapped around his neck. He was taken to a special confinement room with constant video-surveillance ( Kriseninterventionsraum ) and was forcefully administered antipsychotic medication. Further medication was administered without the applicant ’ s consent on 21, 23 and 26 July and on 1 and 8 August 2010. The applicant remained in the special confinement room for approximately three months.

On 30 July 2010 counsel on behalf of H. requested the Mühlhausen Regional Court to order the immediate discontinuation of any measures of forced medication. The hospital submitted that hospital staff had feared that he would commit suicide by strangulation. H. had attacked hospital staff and had bitten one warden in the hand and upper leg. H. ’ s counsel submitted in reply that H. had not attempted to commit suicide, but had wrapped the towel around his neck in order to cool down. He had bitten the warden only after he had been handcuffed.

On 13 September 2010 the Mühlhausen Regional Court rejected the applicant ’ s requests as being unfounded. It noted that the medication had been administered in accordance with the pre requisites laid down in Section 12 paragraph 3 of the Law on the Placement and Treatment of Persons suffering from a Psychiatric Disease of the Land of Thuringia (see relevant domestic law, below). Under that provision, a patient ’ s treatment in the form of emergency medication was permitted without the patient ’ s or his custodian ’ s consent in case of imminent danger for the patient ’ s or another person ’ s life or health. The Regional Court considered that, in the instant case, there was “at least the outward appearance of self-harm and the actual harm done to another person”. All administered medication was thus justified under the relevant legislation. The applicant lodged an appeal on points of law against this decision with the Thuringia Court of Appeal.

On 22 September 2010 counsel on behalf of H. lodged a fresh motion with the Regional Court, requesting the court to order the clinic to desist from exercising pressure on H. with the aim of coercing him to take medication. He further requested that access be granted to his mother and other persons of his confidence.

On 1 November 2010 the Mühlhausen Regional Court rejected the motion against the alleged pressure to take medication as being inadmissible and the remainder of the motion lodged on 22 September 2010 as being unfounded. According to that court, the issue of alleged forced medication had already been the subject matter of its decision of 13 September 2010. Accordingly, the Thuringia Court of Appeal would give a decision in the appeal proceedings. The Regional Court further found that H. ’ s contacts by mail and telephone had not been restricted. Personal contacts to his mother had been prevented because they ran counter to therapeutic progress.

In October 2010 H. accepted to take specific neuroleptic medication and was subsequently placed in ordinary hospital accommodations.

On 30 November 2010 the Thuringia Court of Appeal rejected H. ’ s appeal on points of law against the decision given by the Regional Court on 13 September 2010 as inadmissible on the ground that the case did not raise questions of fundamental importance and that the Regional Court ’ s decision did not divert from the relevant case-law of the Courts of Appeal or of the Federal Court of Justice.

On 19 January 2011 counsel on behalf of H. lodged a complaint before the Federal Constitutional Court in which he complained about the forced medication. He further requested the Constitutional Court to issue an interim injunction ordering the clinic to desist from forcefully administering medication and from exercising any pressure on H. in order to induce him to accept medication. He submitted that the psychiatric clinic had exercised pressure on H., in particular by confining him in an isolation cell, in order to force him to accept taking the proposed medication.

On 28 January 2011 the Federal Constitutional Court served the applicant ’ s complaint on the Justice Ministry of the Land of Thuringia for comments.

On 3 February 2011 the Federal Constitutional Court (case no. 2 BvR 132/11) rejected the request for an interim order. The Federal Constitutional Court considered that the constitutional complaint was inadmissible in so far as H. complained about being pressured into accepting medication for failure to exhaust prior remedies. The Federal Constitutional Court considered that the facts submitted to the Regional Court exclusively concerned the medication administered by the clinic in the course of an assumed emergency. It followed that a further complaint could not be raised in the appeal on points of law. Under these circumstances, the Federal Constitutional Court did not consider it necessary to decide whether the constitutional complaint in this respect was also inadmissible because the applicant had the option of revoking his consent to the administration of medication.

In so far as H. complained about the forced administration of medication by way of an emergency measure, the Federal Constitutional Court considered that it could not be established within the framework of interim proceedings whether the impugned decision of the Regional Court violated the applicant ’ s basic rights and if the decision of the Court of Appeal complied with the basic right to an effective remedy.

The Constitutional Court considered that it could not be ruled out that H. was submitted to further forced medication if he should once again slip into a state which was assumed to be dangerous in case the requested interim order was denied. Forced medication of a hospitalised person constituted a serious interference with basic rights. On the other hand, based on the assumptions made by the clinic and the Regional Court, neither could it be ruled out that there was the danger of serious self-harm and of harm to third persons if the interim order was granted. Under these circumstances, the requested interim order was not to be granted because the factors militating in favour of issuing the order did not sufficiently outweigh the factors militating against it.

On 18 February 2011 the Thuringia Court of Appeal quashed the decision of the Müh lhausen Regional Court dated 1 November 2010 and remitted the case to the Regional Court, where this part of the proceedings remains pending.

On 27 February 2011 H. was found dead in his hospital room.

On 3 March 2011 the applicant lodged a criminal complaint against the doctors, hospital staff and judges for manslaughter, causing grievous bodily harm and a number of other alleged offences.

On 4 March 2011 H. ’ s counsel informed the Federal Constitutional Court about his client ’ s demise and requested that court to continue the proceedings because a question of general interest was at stake.

On 26 May 2011 the Federal Constitutional Court, sitting as a committee of three judges, decided to discontinue the proceedings in view of H. ’ s death. According to that court, there were no special reasons which would exceptionally warrant the continuation of the complaint proceedings after the complainant ’ s death.

B. Relevant domestic law and practice

Section 12 of the Law on the Care and Hospitalisation of Mentally Ill Persons of the Land of Thuringia ( Thüringisches Gesetz zur Hilfe und Unterbringung psychisch kranker Menschen, ThürPsychKG ) reads as follows:

Treatment

“(1) The patient has a right to receive all necessary treatment. This includes the necessary examinations and measures of social-therapy, psycho-therapy, therapeutic pedagogy and occupational therapy. The treatment follows a therapy plan, which has to be drawn up without delay at the time of hospitalisation. Therapy plans relating to measures of correction and prevention have to be drawn up by six weeks after the hospitalisation at the latest and have to be updated every six months. Treatment and therapy plans have to be discussed with the patient.

(2) Except when otherwise stipulated in paragraphs 3 and 5, treatments are subject to the consent given by the patient, his or her guardian or custodian.

(3) A patient ’ s treatment is permitted without the consent given by the patient, his or her guardian or custodian in case of imminent danger for the patient ’ s or for a third person ’ s life or health.

(4) Medical interventions and treatments which seriously endanger the patient ’ s health or life or which could harm the patient ’ s personality in a serious and persistent way are not permitted.

(5) [Concerns forced feeding]

(6) Measures under paragraphs 1 to 5 may only be taken by order and under the supervision of a medical practitioner. Notwithstanding, first aid has to be administered if treatment by a medical practitioner is not available in time and if a delay would entail a danger to life.”

Since April 2011, the Federal Constitutional Court issued a number of decisions on the question of compulsory medical treatment administered to persons confined in a psychiatric hospital (decisions no. 2 BvR 882/09 of 2 April 2011; 2 BvR 633/11 of 20 October 2011 and 2 BvR 228/12 of 20 February 2013).

The Federal Constitutional Court considered, at the outset, that medical treatment performed against the natural will of a person who, as a measure of correction and prevention, had been committed to an institution seriously interfered with that person ’ s right to physical integrity as guaranteed by the Basic Law. Accordingly, such measures were subject to a strict test of proportionality. Additionally, procedural safeguards had to be put in place in order to preserve the concerned person ’ s basic rights. The Federal Constitutional Court considered that the respective regulations issued by the Länder of Rheinland-Pfalz , Baden-Württemberg and Saxony were invalid because they did not meet these standards.

COMPLAINTS

The applicant complains under Articles 2, 3, 5 and 8 of the Convention about the forced administration of medication on H. The applicant submits that she, being H. ’ s mother and sole heir, should be allowed to lodge this complaint on her later son ’ s behalf. Furthermore, the forced medication interfered with her own Convention rights, as she suffered considerably from her son ’ s forced medication.

The applicant further submits that the administered drugs had considerable side-effects and that their forced administration amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Does the applicant have the legal standing to lodge a complaint about her late son ’ s subjection to forced medical treatment?

2. Has the applicant ’ s late son been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

3. Has there been a violation of the applicant ’ s late son ’ s right to respect for his private life, contrary to Article 8 of the Convention? In particular, was the forcible administration of medication in accordance with the law?

4. Has there been an interference with the applicant ’ s own right to respect for her private and family life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?