Information Note on the Court’s case-law 54

June 2003

Herz v. Germany - 44672/98

Judgment 12.6.2003 [Section III]

Article 5

Article 5-1-e

Persons of unsound mind

Lawfulness of an urgent measure of provisional confinement: no violation

Article 5-4

Review of lawfulness of detention

Lack of effective review of lawfulness of provisional psychiatric confinement: violation

Facts : In October 1996, a guardianship cour t ordered that the applicant be provisionally detained for not more than six weeks, without hearing the applicant owing to the urgency of the matter. The court based its decision on the diagnosis of the hospital doctor, obtained on the same day by telephon e; the doctor, who had examined the applicant on the previous day and had already treated him on a number of occasions, again found that he was suffering from paranoid psychosis. According to the guardianship court, it was necessary to order the applicant’ s internment because he refused treatment and thus represented a danger to his own health and to public safety. On 11 November 1996, the applicant’s lawyer appealed against the detention order and stated that he would provide the grounds of the appeal afte r consulting the court file. On 18 November 1996, the applicant absconded from the hospital. The grounds of the applicant’s appeal were received at the court on 2 December 1996. On 13 December 1996, one day after the expiry of the detention order, the regi onal court dismissed the appeal against the provisional internment order on the ground that the applicant was no longer affected, as the effects of the order had lapsed on 12 December 1996. The court further stated that at the time when the grounds of the appeal had reached it, the applicant was at liberty and was therefore no longer concerned by the impugned measure. The applicant’s subsequent appeals were dismissed.

Law : Article 5 § 1 (e) – The temporary detention order of October 1996, made without a wri tten medical report and without hearing the applicant – which is permissible under domestic law in the event of immediate danger – is not unlawful because the court was required to reach a rapid decision. As regards the merits of the order, the Court obser ves that the national court made the detention order solely on the basis of a diagnosis obtained by telephone on the same day from the doctor treating the applicant. The numerous medical reports previously drawn up in respect of the applicant made contradi ctory findings as to the applicant’s health; thus, a definitive conclusion as to his health did not appear easy to obtain. There is no reason to conclude that the situation, as presented to the judge responsible for the matter on the day on which he made t he impugned order, did not warrant the decision to have the applicant medically examined and to order his provisional detention. Moreover, the order was made for a limited period of six weeks and had been made for the specific purpose of establishing wheth er or not the applicant was suffering from mental disease. Last, unlike in Varbanov v. Bulgaria (ECHR 2000-X), the applicant’s provisional detention was ordered on the basis of a medical opinion. Having regard to the latitude which the Contracting States e njoy in relation to emergency detention, the procedure followed by the national court was consistent with the Convention.

Conclusion : no violation (unanimously).

Article 5 § 4 – Existence of an effective remedy to secure a review of the lawfulness of the detention : the detention was ordered by a court and the applicant was able to take judicial action against that decision. However, the applicant was unable to secure an effective review of the lawfulness of his detention since his actions were dismissed without an examination of the merits, on the ground that the measure depriving him of his liberty had expired and the applicant had in the meantime absconded from the hospital. The mere fact that a provisional detention order has expired cannot deprive the person concerned of the right to a review of the lawfulness of the measure even after its expiry, having regard in particular to the gravity of detention in a psychiatric instituti on, albeit provisional. Furthermore, the fact that the applicant had absconded cannot be taken into consideration because he continued to be affected by the internment measure.

Conclusion : violation (unanimously).

Article 5 § 4 – “Speedy” review of the lawfulness of the internment : the applicant’s lawyer had stated that he would provide the grounds for the appeal against the detention order only after he had been able to consult the file. The Court considers that the national court was therefore entitled to wait until the applicant provided the grounds of his appeal before adjudicating on the matter; for the purpose of examining this complaint, the Court therefore takes into consideration only the period of eleven days between the d ate of receipt of the grounds of the appeal and the date of the national court’s decision and concludes that that period is not open to criticism. In the Court’s opinion, the fact that the applicant had absconded from the hospital during that period assume s definite importance for the examination of the question of a speedy review; in such circumstances, the applicant’s interest in having the court decide rapidly on his action concerning the lawfulness of his provisional detention which was in any event for a limited period is not sufficiently made out.

Conclusion : no violation (unanimously).

Article 41 – The Court awards a sum for non-pecuniary damage and a sum for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the R egistry does not bind the Court.

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