CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 16 October 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         G. JÖRUNDSSON                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                     Mrs G.H. THUNE                     Sir Basil HALL                     Mr. F. MARTINEZ                       Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 1 August 1983 by J.Z. against the Federal Republic of Germany and registered on 15 November 1984 under file No. 11249/84;   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   The facts of the case, as they have been submitted by the applicant, may be summarised as follows:   The applicant is a German citizen born in 1938.   He is a joiner by profession.   At the time of lodging his application he was detained in the Moabit Prison, Berlin.   On 4 October 1978, the Berlin Regional Court (Landgericht) acquitted the applicant of the charge of murder on the ground that he could not be held responsible.   The Court relied on the opinion of the psychiatrical expert Prof. C. according to which the applicant had a severely disturbed personality as well as on the results of an alcohol test.   The Court concluded that without psychiatric treatment of the applicant's mental deficiencies further crimes were to be expected. It therefore ordered the applicant's detention in a neuropathic hospital under S. 63 of the German Penal Code (Strafgesetzbuch). S. 63 provides for the detention in a neuropathic hospital of a person, who cannot be held responsible for having committed a crime, if, in view of all the circumstances of the case, further crimes are to be expected and if, therefore, this person has to be considered as being a danger to the general public.   The applicant was subsequently detained in a neuropathic hospital from which, on 11 January 1973, he managed to escape.   On 10 October 1979, the Berlin Regional Court sentenced the applicant to eight years imprisonment on the ground that he had murdered a woman during the night after his escape.   The Court furthermore ordered that the applicant should be detained in a neuropathic hospital and that the sentence should be executed before the measure of detention in a neuropathic hospital.   The Court found that the applicant was psychologically abnormal in several respects and that his responsibility was therefore reduced.   It relied on the corresponding psychiatrical opinions of Prof. C. and Prof. E.   The Court moreover found that the applicant was a danger to the general public within the meaning of S. 63 of the Penal Code in view of the fact that he had committed two murders in similar situations within one year.   It considered that the applicant's abnormal character required special treatment which he could not receive in a neuropathic hospital, as he was not mentally ill.   In the interest of the applicant's rehabilitation, the Court, therefore, admitted an exception under S. 67 para. 2 to the rule of S. 67 para. 1 of the Penal Code.   S. 67 para. 1 states that normally the execution of a measure under S. 63 of the Penal Code prevails over the execution of a sentence.   S. 67 para. 2 provides for an exception if prior execution of the sentence meets the aims of the supplementary measure under S. 63 of the Penal Code.   S. 67 para. 3 provides for a subsequent review of the order made in the judgment in the light of changes in the personality of the convicted person.   In 1982 the applicant unsuccessfully applied to the Berlin Regional Court and Court of Appeal (Kammergericht) for review under S. 67 para. 3 of the Penal Code.   The Courts found in particular that the factual requirements of the relevant provision were not fulfilled.   On 16 April 1984 the Berlin Regional Court rejected the applicant's renewed request for review under S. 67 para. 3.   The Court found no new factors in the applicant's personality or other changes that would justify a revision.   It referred to the opinion of the chief physician of the local neuropathic hospital that there were no changes in the applicant's personality.   The fact that the facilities to rehabilitate the applicant during his imprisonment were reduced contrary to the Berlin Regional Court's expectations in 1979 could not justify the amendment requested.   On 29 June 1984 the Berlin Court of Appeal rejected the applicant's appeal (Beschwerde).   The Court found that the Berlin Regional Court's expectations with regard to a special therapy and training during the imprisonment had not been met.   Nevertheless, this circumstance did not justify the revision of the order of execution, i.e. priority of detention in a neuropathic hospital.   As the local neuropathic hospital was overburdened according to a statement of its chief physician, a special medical treatment could only be carried out after the completion of a new building in autumn 1986.   Moreover, the Court had regard to security requirements in respect of the applicant's detention.   Furthermore, the Court held that it was not competent to decide upon the applicant's request dated 27 June 1984 according to which he should be released or detained in another prison.   The applicant unsuccessfully filed a further request for review in 1985.   In April 1986, proceedings concerning the review of the execution order were again pending before the Berlin Regional Court. In 1983 and 1984 the applicant also made various requests to be transferred to another prison in order to undergo a special treatment of his character deficiencies.   The Berlin Ministry of Justice refused on 28 January 1985.   The applicant did not appeal against this decision to the Berlin courts.   COMPLAINTS   1.       When introducing the application, the applicant in general complained that, while he was serving his prison sentence, he did not receive a special training and rehabilitation for his mental deficiencies and moral abnormalities.   In his view this situation amounted to an inhuman and degrading treatment within the meaning of Article 3 (art. 3) of the Convention.   The applicant referred in particular to the Berlin Ministry of Justice's decisions not to transfer him to another prison and the refusal of his request for release.   He moreover complained of the respective Berlin courts' decisions confirming the order according to which the imprisonment to which he had been sentenced was to be executed prior to the detention in a neuropathic hospital.   The applicant also invoked Articles 4, 5 para. 1 (a), 8, 13, 14 and 17 (art. 4, art. 5-1-a, art. 8, art. 13, art. 14, art. 17) of the Convention.   By letter of 25 September 1986 the applicant informed the Commission that he wants to withdraw his above original complaints in view of the fact that he nearly served his prison sentence.   2.       He now complains that the order of 1979 that he be detained in a neuropathic hospital is still in force.   He submits that he was able to change his character by himself and to build up a new existence for the time after imprisonment.   He considers that there are no longer any reasons to detain him in a neuropathic hospital.   He does not invoke any Articles of the Convention.   THE LAW   1.       The applicant has initially complained that he did not receive a special rehabilitation in prison and that the courts maintained the order of 1979 according to which the sentence to imprisonment was to be executed prior to the detention in a neuropathic hospital.   The Commission notes that by letter of 25 September 1986 the applicant expressed his wish to withdraw these complaints on the ground that he nearly served the time of his prison sentence.   It considers that there are no reasons of a general character affecting the observance of the Convention which necessitate a further examination of these complaints.   It concludes that it is no longer seized of the applicant's initial complaints.   2.       The applicant now complains that though his character changed the order of 1979 that he be detained in a neuropathic hospital is still in force.   However, the Commission is not required to decide whether or not this new complaint discloses any appearance of a violation of the Convention as, under Article 26 (art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case no court proceedings have yet taken place under S. 67 c of the German Penal Code which provides for a review of the initial court order that the applicant be detained in a neuropathic hospital after he had served a sentence to imprisonment. The applicant has not applied for a discontinuance of the order of 1979 on the grounds of an alleged change of circumstances.   He has, therefore, not exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.   It follows that in respect of his new complaint the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must therefore be rejected under Article 27 para. 3 (art. 27-3) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                 President of the Commission          (H.C. KRÜGER)                               (C.A. NØRGAARD)