CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mai 1987

.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 }  AS TO THE ADMISSIBILITY OF     Application No. 11457/85 by D.B. against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 4 May 1987, the following members being present:                     MM C.A NØRGAARD, President                    G. JÖRUNDSSON                    S. TRECHSEL                    B. KIERNAN                    A.S. GÖZÜBÜYÜK                    A. WEITZEL                    J.C. SOYER                    H.G. SCHERMERS                    H. DANELIUS                    G. BATLINER                Mrs G.H. THUNE                Sir Basil HALL                 Mr F. MARTINEZ                  Mr   H.C. KRÜGER, Secretary to the Commission           Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 13 February 1984 by D.B. against the Federal Republic of Germany and registered on 13 March 1985 under file No. 11457/85;           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 applicant is a German citizen born in the German Democratic Republic in 1956.   Allegedly after a political conviction for anti-State propaganda he came to the Federal Republic on 12 December 1978.   He now lives in Bonn.   In the proceedings before the Commission he is assisted by Mr.   Rolf Marschner, a lawyer practising in Munich.           After his arrival in the Federal Republic, the applicant had considerable difficulty to integrate himself in the new surroundings and to find appropriate work.   He first lived in various State hostels for refugees and received unemployment benefits.   In January 1979 he found a job, but was dismissed after one day.   He returned to the refugee hostel until April 1979 when he found another job.   He was again dismissed after a fortnight.   The hostel did not readmit him and therefore he moved to Bavaria where he found a new job near Garmisch- Partenkirchen.   During an absence of his employer he took cheques belonging to the latter and cashed them.   He fled and attempted suicide after which he was detained at the mental hospital of Hirsau for three months (5 July - 28 November 1979).           The hospital carried out investigations as to whether the applicant had already been in psychiatric treatment in the GDR.   It was confirmed by a report of the psychiatric clinic of Weimar of 4 September 1979 that he had in fact undergone several psychiatric examinations, inter alia for forensic purposes, and that certain symptoms of abnormal behaviour had been stated.   However, as they were limited to a hysterical character and lack of social adaptation, no psycho-pharmacological therapy had been administered.           The applicant's examination in the Hirsau hospital, which involved inter alia a computer tomography, revealed no signs of physical damage to the brain.   The diagnosis as stated in an expert opinion of the psychiatrist Dr.   Sch. of 11 October 1979 was a "paranoid psychosis".   The applicant claims that this diagnosis was wrong and that his state of mind as described in the expert opinion was only due to the neuroleptic drugs administered to him.           After completion of the psychiatric treatment at Hirsau the applicant was transferred to a rehabilitation centre in Stuttgart where he continued to receive treatment which, however, was interrupted after some time.           On 10 January 1980 the applicant presented himself to the psychiatric clinic of the university of Munich after a further attempt to commit suicide with drugs.   Because of his intoxication he was transferred to a medical clinic in Munich.   During his stay there his behaviour was peculiar and therefore he was taken back to the pyschiatric university clinic as an out-patient.   However, no mental disease could be found.           On 21 January 1980 he was transferred to the Day & Night Clinic for Upper Bavaria because of depressions.   He was dissatisfied with his treatment and left on 28 January 1980, announcing that he would return to the psychiatric clinic of the university of Munich. On his arrival there he attempted to commit suicide with drugs and because of his intoxication was immediately taken to a medical hospital.   The final report of the Day & Night Clinic stated that he suffered from schizophrenia.           On 29 January 1980 the applicant was taken to the Pyschiatric District Hospital of Haar near Munich under a committal order of the police made in accordance with Section 5 para. 1 of the Bavarian Mental Health (Detention) Act (Verwahrungsgesetz) based in particular on the danger of suicide.   As the applicant declared his consent to a treatment in the District Hospital no detention order was sought from a court.   However, already on 5 February 1980 the applicant left the District Hospital whose final report stated that he had been in a state of "depression and abnormal personality".           On 6 and 7 February the applicant stole the purses of three women and tried to use their cheque cards.   He was arrested by the police but was not detained because of being unfit for detention.   He then apparently found a job in Starnberg, but soon had difficulties with his workmates and was threatened with dismissal.   On 10 February he made a fourth attempt to commit suicide with drugs and was taken to the local hospital of Starnberg which, on 13 February 1980, had him brought back to the Psychiatric District Hospital of Haar.           On 17 March 1980 the District Court (Amtsgericht) of Weilheim ordered his provisional detention in this hospital under Section 126a of the Code of Criminal Procedure (Strafprozessordnung) pending the trial in the criminal case which had in the meantime been instituted. The relevant decision (which has not been submitted) was allegedly based on oral expert advice by the psychiatrist Dr.   A of the District Hospital who stated that the applicant suffered from paranoiac schizophrenia and a persecution complex.   The decision furthermore stressed that the applicant was dangerous to the public.   Following this decision the applicant was transferred to the District Hospital's closed department for the criminally insane.           The trial of the criminal case took place on 1 October 1980 before the Regional Court (Landgericht) of Munich II.   The Court had before it a psychiatric expert opinion by Dr.   A of 23 September 1980 (38 pages) which allegedly had been prepared without a personal examination of the applicant by the expert himself.   It confirmed the earlier diagnosis of schizophrenia without there being any signs of physical brain defects.   Although the psychiatric treatment had led to an improvement this did not mean that the applicant's abnormal personality had essentially changed.   If released he would unavoidably encounter new difficulties because of his egocentric attitude and lack of realism.   There was a concrete danger of a repetition of criminal acts although no danger of physical aggressiveness.   Only a long-term rehabilitation programme combined with a psycho-pharmacological treatment could lead to his resocialisation.   A preventive detention under Section 63 of the Penal Code (Strafgesetzbuch) was therefore indicated.   As an alternative, the expert suggested considering whether detention under the authority of a guardian (vormundschaftliche Unterbringung) was sufficient.   The conditions for placing the applicant under guardianship (Entmündigung) were in any event met in the expert's opinion.           The applicant was represented by an official defence counsel who allegedly did not defend him properly.   In particular he pleaded contrary to the applicant's wish that he lacked criminal responsibility because of a mental disease and that he should therefore be committed to a mental hospital for an indefinite term.   The applicant was allegedly prevented from stating his contrary point of view.           By its decision of 1 October 1980 the Regional Court, following the above expert advice, ordered the applicant's detention in a mental hospital under Section 63 of the Penal Code after having found that he had committed several offences in a state where he was not responsible for his actions (Section 20 of the Penal Code), including four offences of theft as well as two offences of fraud and one of attempted fraud, each time in conjunction with forgery, and that further similar offences were to be expected, making him dangerous for the public.   In these circumstances the Court further considered that there was no room to suspend (aussetzen) the measure under Section 67b of the Penal Code.           The applicant did not appeal against this judgment which therefore became final.           Various subsequent attempts of the applicant and his lawyers to obtain a revision of the detention order and his release were apparently unsuccessful because the treating psychiatrists confirmed the diagnosis of schizophrenia.   The applicant has submitted some of the medical evidence, including reports of the psychiatrist Dr.   W to the Regional Court of 6 October and 20 November 1981.   However, the relevant court decisions have not been submitted.           As the applicant did not succeed with his judicial remedies he made petitions to various other authorities including the Bavarian Diet (Landtag) which, on 19 May 1982, expressed certain doubts concerning the medical expert opinions underlying the applicant's detention and recommended the consultation of an independent expert not attached to the District Hospital where the applicant was detained.   No action was taken by the competent criminal court following this recommendation.           However, on 1 September 1982 the chamber of the Regional Court competent for the execution of sentences (Strafvollstreckungs- kammer) ordered the applicant's conditional release subject to supervision of his conduct (Führungs- und Bewährungsaufsicht) during a probationary period of five years as from 16 September 1982.   On this date the applicant was released from the closed department of the District Hospital and transferred to a sociotherapeutical department.           Nevertheless the applicant was not free because at the same time the District Court of Munich, acting as guardianship court (Vormundschaftsgericht), appointed a curator for his supervision (Aufenthaltspfleger).   The further detention of the applicant under the authority of the curator (vormundschaftliche Unterbringung) until 1 October 1983 was authorised by the guardianship court on 18 October 1982.           The applicant escaped from the sociotherapeutical department on 15 November 1982 following which the public prosecutor instituted proceedings for the revocation of the conditional release.   In an expert opinion delivered at the prosecutor's request by the director of the sociotherapeutical department on 23 November 1982 it was stated that also in liberty the applicant continued to suffer from the consequences of his mental disease.   The prosecution issued a warrant of arrest on the basis of which the applicant was apprehended on 14 January 1983.   The applicant raised objections, claiming that he had not violated the probationary conditions nor committed new criminal offences.   His arrest in fact interrupted a situation where he had settled down in Bruchsal, had reported his residence to the police, and found a job in his profession as geriatrical nurse.           However, on 26 January 1983 the Regional Court of Munich I revoked the applicant's conditional release and as from 1 February 1983 he was again sent to the closed department of the District Hospital.   The applicant appealed against the Regional Court's decision and requested to be examined by an independent expert. However, he was only examined by another phychiatrist of the District Hospital, Dr.   G, who in her report of 25 April 1983 stated that the symptoms found confirmed the earlier diagnosis of Dr.   A ("hebephrener Residualzustand"), but that there were no signs of "acute psychotic decompensation".   Further psychiatric treatment was indicated, however the expert considered that it was sufficient to detain the applicant on the basis of civil law.   This would allow a more flexible approach towards his resocialisation.   On the basis of this expert opinion the Regional Court, on 3 June 1983, ordered the conditional suspension of the measure under Section 63 of the Penal Code.   On 17 June 1983 the applicant was released from the closed department of the District Hospital and transferred to another department for long-term therapy.   The civil-law detention under the authority of the curator apparently continued to apply.           The applicant escaped on 14 July 1983 and went to Augsburg where he joined a circle for mental sanity (Arbeitsgemeinschaft für psychische Gesundheit) run by a private protestant organisation (Diakonisches Werk).   On 25 July he misappropriated funds of the organisation and left.   He travelled to Brussels, Athens and London where he demonstrated before the German Embassy against lack of support by the authorities in his efforts to be integrated in society. A German diplomat convinced him to return to the Federal Republic. His curator was informed and arranged for his detention in the Psychiatric District Hospital of Kaufbeuren as from 18 August 1983. A warrant of arrest (Sicherungshaftbefehl) issued by the Regional Court of Munich I on 30 August 1983 and a further warrant of arrest issued by the District Court of Augsburg because of the above misappropriation of funds were not immediately executed because of this detention.           On 9 November 1983 the Regional Court of Munich I revoked for the second time the suspension of the applicant's preventive detention under Section 63 of the Penal Code.   The applicant's appeal against this decision was rejected by the Munich Court of Appeal on 16 December 1983.   In execution of the above warrant of arrest of 30 August 1983 the applicant was brought back to the District Hospital of Haar on 12 December 1983.   However, as from 2 February 1984 he was again detained in the District Hospital of Kaufbeuren.           In connection with the criminal proceedings in Augsburg the director of this District Hospital, Dr.   K, submitted a comprehensive psychiatric report (82 pages) on 26 March 1984.   It came to the conclusion that the earlier diagnosis of the District Hospital of Haar, namely that the applicant suffered from schizophrenia, could not be maintained.   There were no signs of actual schizophrenia nor of a residual syndrome caused by earlier schizophrenia.   The applicant could be described as having an abnormal personality structure (borderline-syndrome with paranoid and hysterical elements) caused by chronic psychotraumatic maladjustment to surroundings.   Pyschopathic reactions were stirred up by continuous unfavourable conditions of the applicant's environment, including his detention in the mental hospital itself.   The applicant clearly had a wish for resocialisation, but his social integration by way of preventive detention in mental hospitals was bound to fail in these circumstances and even created a risk for an aggravation of his mental state.   The expert therefore recommended to expose the applicant to the realities of life and give him a chance to show that he was able to cope with them with some social assistance.   A reduced criminal responsibility (Section 21) of the Penal Code could not be excluded, but the applicant should, in principle, be expected to bear himself all positive and negative consequences of his rights and duties.           On the basis of this expert opinion and a supplementary opinion of 24 April 1984 the Regional Court of Kempten (Chamber for the execution of sentences) decided on 21 May 1984 that, although the preventive detention under Section 63 of the Penal Code could not be revoked for legal reasons, it should again be suspended under Section 67d of the Penal Code subject to a probationary period of three years.   The applicant was ordered to take residence in the hostel of the above protestant organisation in Augsburg and to comply with the instructions of the hostel's director, to report to a probationary officer and not to change his residence without prior consent of this officer.           On 24 August 1984 the District Court of Augsburg convicted the applicant of theft and other offences and sentenced him to a conditional prison sentence of seven months, subject to a probationary period of four years.   The Court found on the basis of the above expert opinion that the conditions for a preventive detention under Section 63 of the Penal Code were not met because the applicant did not suffer from a mental disease susceptible of psychiatric treatment. The Court further warned the applicant that in future he would be regarded as fully responsible for his acts.           The applicant subsequently left Augsburg and went to the Netherlands where he tried to obtain political asylum which, however, was refused.   On 15 May 1985 the public prosecutor applied to the District Court of Augsburg to revoke the conditional suspension of the above sentence and to issue a warrant of arrest.   The District Court in fact issued a warrant.           The applicant had in the meantime returned to the Federal Republic and was arrested in Bonn on 4 June 1985 in connection with an attempt to cash a cheque which he had forged.   He was detained on remand in connection with this offence for which he was tried by the District Court of Bonn on 30 August 1985.   He was convicted of forgery and attempted fraud and sentenced to a conditional prison sentence of eight months.   Also this Court used the psychiatric expert opinion of Dr.   K which had already been relied upon by the Regional Court of Kempten and the District Court of Augsburg.   It drew similar conclusions to those of the latter Court, namely that the applicant had a reduced criminal responsibility (Section 21 of the Penal Code) while there was no reason to assume a lack of criminal responsibility (Section 20).   A measure of preventive detention under Section 63 of the Penal Code was not considered.           Although the District Court of Bonn pronounced a conditional sentence, the applicant remained in detention in Augsburg until 27 March 1986 serving the earlier sentence imposed by the District Court of Augsburg whose conditional suspension had in the meantime been revoked on the ground that he had not complied with the conditions because he had allegedly failed to report his change of residence to the probation officer.   The applicant could subsequently show that he had in fact informed the probation officer and in July 1986 the revocation of the conditional suspension of the sentence was therefore criticised by the Bavarian Diet to which the applicant had submitted a new petition.   However, there was apparently no further judicial decision concerning this matter.           After his release the applicant moved to Bonn and concentrated on steps to obtain the definitive revocation of his preventive detention ordered in 1980 which was only suspended by the above decision of the Regional Court of Kempten of 21 May 1984.   He claimed that the expert opinion of Dr.   K of Kaufbeuren and the subsequent court judgments showed that this measure had been unlawful from the beginning as it had been based on a wrongful pschyiatric expert opinion.           Two lawyers in Bonn advised him in May and July 1986 respectively that there might be a base for claiming compensation under the Criminal Prosecution (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen), while an official liability action against the State of Bavaria seemed to be excluded.           On 21 July 1986 the applicant applied to declare the measure of preventive detention to be without object (erledigt) under Section 67c of the Penal Code.   The matter was referred to the Regional Court of Augsburg (Chamber for the supervision of sentences) which, on 7 August 1986, rejected the application as inadmissible on the ground of res judicata.   In the Court's opinion there were no new relevant facts since the decision of the Regional Court of Kempten of 21 May 1984 which had already had before it the psychiatric opinion which the applicant now invoked.           The applicant's appeal against this decision was successful. On 24 October 1986 the Munich Court of Appeal (Oberlandesgericht) declared the preventive detention and the probationary supervision of the applicant resulting therefrom as being without object.   It found that there was no res judicata because the Regional Court of Kempten had only examined the question of whether the measure could be terminated because the conditions for a successful treatment no longer existed.   It had not examined whether the conditions for imposing the measure had been lacking from the outset.   However, these conditions in fact had never existed.   The diagnosis of schizophrenia by Dr.   A had not been confirmed by later examinations, and it was also in conflict with earlier statements, e.g. of the psychiatric university clinic of Munich.   The remaining statements of Dr.   A were not sufficient to support a finding that, at the relevant time, the applicant's responsibility for his actions was reduced (Section 21) or lacking (Section 20).   That a reduced responsibility could not be excluded was not sufficient to justify a measure of preventive detention.           In view of this decision, the applicant filed a request on 22 December 1986 with the Regional Court of Munich II to re-open the proceedings by which his detention in a psychiatric hospital had been ordered in 1980.           His lawyer submits that only after the re-opening of those proceedings would there be a chance of obtaining compensation under the Criminal Prosecution (Compensation) Act.   A formal request under this Act has apparently not yet been made, although the applicant states that already in March 1986 he applied to be compensated for wrongful detention.   No documents have been submitted in this respect except for two letters to the Federal Chancellor in which a claim for compensation is mentioned.   In any event no decision has so far been taken on the compensation issue.           The applicant has in the meantime invited the court expert Dr. A to recognise his duty to compensate the material and moral damage caused to the applicant by the wrongful expert opinion.   The expert denied any liability, but informed the applicant that he had forwarded the claims to his insurance company.   Civil court proceedings have not so far been instituted against the expert in question.   The applicant observes in this context that, according to the case-law of the Federal Court of Justice, a court-appointed expert cannot be held liable for damages resulting from an incorrect opinion while, according to the case-law of the Federal Constitutional Court (NJW 1979, 305), he is liable to pay compensation in case of gross negligence.   The applicant submits that gross negligence is almost impossible to prove in the circumstances.           The applicant had laid a criminal information (Strafanzeige) against the expert in question already on 12 June 1985.   However, by a decision of the Public Prosecutor's Office (Staatsanwaltschaft) at the Regional Court of Munich I the proceedings were discontinued on 19 July 1985 on the ground that there was no criminally relevant behaviour.   The applicant apparently did not appeal from this decision under Section 172 of the Code of Criminal Procedure.   However, on 31 August 1986 he laid a new criminal information against the psychiatrists of the Haar District Hospital, Drs.   A, W and G, for issuing incorrect public documents and causing bodily harm.   He has not informed the Commission whether criminal proceedings were actually instituted.   COMPLAINTS   1.       The applicant now complains that his detention in mental hospitals during almost five years which was ordered by the Munich Regional Court's judgment of 1 October 1980 lacked justification because it was based on wrongful medical evidence.   This has subsequently been confirmed by several court decisions.   It is further submitted that this measure was the consequence of relatively minor offences committed by the applicant in a situation of acute distress and that it was therefore disproportionate and discriminatory.           The applicant considers that he can still claim to be a victim of the above measure.   Although it was declared to be without object by the decision of the Munich Court of Appeal of 24 October 1986 this decision produced effect only ex nunc and did not quash the original wrong decision.   Nor was the important moral and material damage which the applicant suffered as a result of this measure removed.   The applicant submits in this context that probably no more than a conditional prison sentence would have been pronounced if the Court had denied the existence of conditions for imposing preventive detention under Section 63.   The further offences which he committed were a direct consequence of the unlawful detention which led to an aggravation of his borderline syndrome.   The applicant finally submits that because of his detention in psychiatric hospitals for almost five years he now has great difficulty in finding an appropriate job.   The employers only consider the fact of this detention and are not impressed by the fact that it might have been unlawful.   His present job with a publishing company, which he got through the good services of the Social Office of the City of Bonn in February 1987, is limited to a term of two years.           The applicant submits that according to the case-law of the German courts a claim for compensation under the Criminal Prosecution (Compensation) Act is excluded in cases where a measure of preventive detention under Section 63 of the Penal Code has been declared to be without object.   In this respect he refers to a decision of the Hamm Court of Appeal of 9 July 1986 (EuGRZ 1986, 546).   He also considers that in principle financial compensation is insufficient to provide just satisfaction for the consequences of his unlawful detention.   He observes that the decision to declare the detention without object does not lead to erasion (Tilgung) of the measure from the criminal register under Section 43 para. 3 of the Federal Criminal Register Act (Bundeszentralregistergesetz).   He claims a right to measures for his full rehabilitation.           The applicant invokes Article 5 paras. 1, 4 and 5 of the Convention in this respect.   2.       The applicant also complains of the revocation of the conditional suspension of the prison sentence imposed on him by the Augsburg District Court.   He claims that the conditions for revocation were not met and that his detention was therefore unlawful.   The applicant does not invoke any particular provision of the Convention in this respect.   THE LAW   1.       The applicant first complains that his detention in various mental hospitals between 1980 and 1984 was unjustified because the relevant committal orders were based on wrongful psychiatric evidence stating that he suffered from schizophrenia.   New psychiatric reports of 1984 in fact confirmed that the applicant had never suffered from schizophrenia and these reports were relied upon in several subsequent court decisions, including in particular a decision by the Munich Court of Appeal of 24 October 1986 by which the original committal order of 1 October 1980 was declared to be without object in view of the new psychiatric reports.           The Commission considers that despite this latter decision the applicant can still claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of a violation of his Convention rights in connection with his above detention.   The effect of this decision, which operated ex nunc, was limited to terminating the probationary supervision which still was applicable to the applicant as a consequence of the committal order.   The original committal order was not revoked or annulled and the applicant did not obtain any compensation or other redress regarding his claim that the detention had been unjustified from the outset.   He therefore can still complain of that order.   2.       The applicant first refers to Article 5 para. 1 (Art. 5-1) of the Convention.   Insofar as relevant, this provision reads as follows:           1.       "Everyone has the right to liberty and security         of person.   No one shall be deprived of his liberty         save in the following cases and in accordance with         a procedure prescribed by law:           ...           (e) the lawful detention ... of persons of unsound mind, ..."           In the present case the question might arise whether the applicant's detention, although ordered "in accordance with a procedure prescribed by law", was unjustified, in that he was not a "person of unsound mind" at the relevant time.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5 (Art. 5) 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 the applicant failed to appeal against the relevant court decisions.   In particular he did not appeal against the provisional committal order issued by the District Court of Weilheim on 17 March 1980 under Section 126a of the Code of Criminal Procedure, or against the final committal order under Section 63 of the Penal Code made in the judgment of the Regional Court of Munich II of 1 October 1980.   It is true that the applicant challenged the subsequent decisions of the Regional Court of Munich I (Chamber for the execution of sentences) of 26 January and 9 November 1983 by which the provisional suspension of the committal order was revoked.   However, on no occasion did the applicant appeal to the Federal Constitutional Court (Bundesverfassungsgericht) as he could have done in last instance against all of the above decisions, invoking Article 2 para. 2 and Article 104 of the Basic Law (Grundgesetz).           The applicant 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 the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicant also invokes Article 5 para. 4 (Art. 5-4) of the Convention without, however, specifying in any way how he considers that this provision has been breached.   The Commission observes in this respect that the applicant could and did in fact use certain judicial remedies to challenge his detention.   He has not substantiated that these remedies did not comply with the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.   This part of the application must accordingly be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant further invokes Article 5 para. 5 (Art. 5-5) of the Convention which reads as follows:           "Everyone who has been the victim of arrest or         detention in contravention of the provisions of         this Article shall have an enforceable right to         compensation."           In the present case an issue under this provision could arise insofar as the Munich Court of Appeal's decision of 24 October 1986 may be understood as a recognition that the applicant's preventive detention under Section 63 of the Penal Code had lacked a substantive justification from the outset.   Even if it was not explicitly mentioned that the measure had been unlawful under domestic law or under the Convention it was at least implied in the decision that the conditions for the applicant's detention as a person of unsound mind might never have existed.   Such a finding by a domestic court must necessarily give rise to considerations whether or not the person concerned is entitled to compensation as defined in Article 5 para. 5 (Art. 5-5) of the Convention (cf. 9920/82, Naldi v.   Italy, Dec. 13.3.1984, DR 37, 75).           The applicant submits in this respect that he did not have an effective domestic remedy at his disposal because the case-law of the German courts excludes a compensation claim under the Criminal Proceedings (Compensation) Act in cases where a measure under Section 63 of the Penal Code has been declared to be without object.   The applicant invokes in particular a decision of the Hamm Court of Appeal of 9 July 1986.   However, that case concerned a measure under Section 63 which as such was apparently based on sufficient medical evidence. The measure was declared to be without object only because it had become disproportionate due to its length.   The applicant's case can be distinguished from that case.   Here the measure under Section 63 was declared to be without object for an entirely different reason, namely that there had never been sufficient medical evidence to justify detention in a mental hospital.   The decision of the Hamm Court of Appeal expressly mentions that in such circumstances a compensation claim under the above Act might not be excluded.   The Commission further observes that the Convention is part of the domestic law of the Federal Republic of Germany and that Article 5 para. 5 (Art. 5-5) can therefore be invoked before the competent domestic courts.           The applicant states that he filed an application for compensation in March 1986, but he has not submitted a copy of this remedy and thus has not substantiated that he actually used this remedy in the form prescribed by the domestic law.   It rather appears from the submissions of the applicant's lawyer that this is not the case and that the lawyer intends to submit a claim only after the re-opening of the original committal proceedings.    In any event no decision has as yet been taken by the competent German courts concerning the compensation issue.   The applicant's complaint to the Commission under Article 5 para. 5 (Art. 5-5) of the Convention is therefore premature:   The applicant has not complied with the conditions of Article 26 (Art. 26) of the Convention in this respect, and this part of the application must again be rejected under Article 27 para. 3 (Art. 27-3).   5.       The applicant finally complains of the revocation of the conditional suspension of the seven-month prison sentence imposed on him by the District Court of Augsburg.   He submits that this revocation was unjustified because the legal conditions were not met. The Commission considers that it is not required to examine whether any issue under the Convention, in particular under Article 5 (Art. 5), could arise in this respect.   In any event the applicant has again failed to comply with the conditions of Article 26 (Art. 26) of the Convention as he apparently did not take any legal remedies before the competent courts.   The fact that he filed a petition to the Bavarian Diet which was favourably received is irrelevant for the purposes of Article 26 (Art. 26). This last part of the application must therefore also be rejected under Article 27 para. 3 (Art. 27-3).           For these reasons, the Commission           &_DECLARES THE APPLICATION INADMISSIBLE&S     Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                                (C.A. NØRGAARD)