CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 octobre 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. 12485/86                       by J.M.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 6 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 15 June 1986 by J.M. against the Federal Republic of Germany and registered on 16 October 1986 under file N° 12485/86;           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&S           The applicant is a stateless person of Hungarian origin, who was born, according to the documents submitted by him, in 1925 and is presently detained in a mental hospital at E.   He is represented by Mrs.   Marianne Kunisch, a lawyer practising in Munich.           The applicant complains that he is wrongly detained without being insane.   This complaint was already the main object of a previous application (No. 10272/82) which was declared inadmissible on 18 May 1984 (see D.R. 38, p. 104).                                   I           In the context of the previous application it was submitted that on 26 March 1980 the applicant was convicted by the Traunstein Regional Court (Landgericht) of aggravated theft, fraud and of having, under aggravating circumstances, offered resistance against state officials.   He was sentenced to three years' imprisonment.   The Court further ordered that, after having served sentence, the applicant should be detained in a mental hospital.   The judgment became final as the applicant did not appeal.           The Regional Court found that the applicant had lived in an empty house and had organised a bazar with goods stolen from the neighbourhood.   When two policemen came to the house in order to investigate the matter, he threatened them with an axe and only after considerable efforts could he be calmed down.   A medical expert stated at the trial that the applicant had acted in a state of violent emotion when threatening the policemen, and that he had therefore been unable to control himself and to realise the unlawfulness of his action.   This was due to a latent tendency of the applicant to become aggressive in situations where he was driven into a corner, a tendency which could be considered pathological.   In such situations the applicant was dangerous for the public and for himself.   It could not be excluded that he would also act in the same way in the future.   His criminal responsibility was by no means lacking, but it was considerably reduced, and this justified the taking of a measure under Section 63 of the Penal Code, i.e. the order for his preventive detention in a psychiatric hospital.           On completion of the sentence on 23 September 1982 the applicant was transferred to a mental institution at Ansbach, the Regional Court having ruled on 1 July 1982 that in view of the prison doctor's advice such detention was necessary.           On 6 June 1983 the Ansbach Regional Court ordered that the applicant's detention in the mental hospital should continue.   The Court had regard to two further psychiatric expert opinions denying the existence of a genuine mental disorder based on a physical nervous disease or psychosis finding, however, that the applicant was marked by a pathological aggressive character which made him dangerous for the public and himself.   The experts further stated that the applicant needed psychiatric treatment to stabilise his emotional overreaction, but that he refused to co-operate and was therefore inaccessible to treatment.   The Court found this to be sufficient ground for the applicant's continued detention in a mental hospital in order to protect the general public, although it admitted that, from a medical point of view, this might be unsatisfactory as the detention only served security purposes but would not improve the applicant's mental state of health.   The Regional Court's order of 6 June 1983 was confirmed on appeal in August 1983 and as the applicant then failed to lodge a constitutional complaint his previous application was to this extent rejected for non-exhaustion of domestic remedies.   II           Meanwhile the applicant's detention in the mental hospital was again ordered to continue and the applicant's appeal was rejected by the Munich Court of Appeal (Oberlandesgericht) on 16 April 1986. This Court heard the applicant personally and a medical expert. Subsequent to the hearing the Court had ordered this expert to submit an expert report.   In view of all the expert opinions obtained or previously submitted, the Court came to the result that the applicant suffers from a character anomaly which amounted to a psychic abnormality within the meaning of Section 20 of the Criminal Code (StGB).   This followed from concording expert opinions obtained from different medical experts in March 1980, February 1983, May 1983 and July 1985.           An additional expert opinion obtained in June 1984 from a mental hospital in Munich did not contradict the previous results, as the two examining doctors also concluded that the prevailing characteristics of the applicant's paranoiac personality were mistrust, querulous tendency and irritability.           Two previous expert reports obtained in 1979 in the course of the investigation proceedings and in October 1982 after short-term observation only were considered to be no longer valid in view of the results of the subsequent more extensive examinations and experience with the applicant in the mental hospitals where he had so far been detained.           The ultimate expert opinion of Dr.   W, who was heard by the appellate court on 18 December 1985 and who subsequently submitted a report after having examined the applicant for nearly three hours, likewise did, in the appellate court's opinion, only confirm the results of previous expert examinations.   Dr.   W considered the applicant to be a primitive hysterically structured psychopath marked by egotism.   The Court also pointed out that the applicant's irritability was noted by the judges who had heard him personally.           Referring to Section 67 d (2) first sentence StGB, the appellate court stated that continued detention was justified where there was danger that the detainee would commit important offences (erhebliche Taten) if he were released, such as coercion by physical force, or even aggression causing bodily harm or death.           The Court considered such danger to be given.   In this context the Court first referred to the applicant's numerous previous convictions based, inter alia, on the following facts:           - In March 1969 the applicant had attacked a man with a           chair and injured him and a woman standing aside;           - In June 1971 he had given a man several punches in his           face without any reason in a coffee-house;           - In June 1972 he tried to avoid customs control by driving           his car at customs police officers standing in his way;           - In September 1979 he threatened to kill policemen with an           axe (ultimate conviction).           The appellate court also noted that while detained in mental institutions the applicant repeatedly aggressed or tried to aggress and threaten the personnel of these institutions.   He also once tried to escape from a mental hospital and threatened to kill the policemen who arrested him.           The Court finally considered that the medical reports also confirmed the existence of danger that the applicant might commit further offences if he were released.   As the applicant so far had opposed treatment and continued in this attitude, it was furthermore unlikely that his conduct after release could be kept under control by measures of surveillance and ambulant medical treatment.           The applicant's constitutional complaint against the afore- mentioned decision of the Munich Court of Appeal was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 1 August 1986 as offering no prospects of success.           It is stated in the decision that, although the applicant has already been detained in a mental hospital for nearly four years, the appellate court rightly considered, in view of his antecedents, his behaviour in prison and in mental hospitals and the medical expert opinions, that the risk of releasing the applicant could not yet be taken as there was danger that he would commit serious offences.           It is, however, also pointed out in the decision that the applicant's release did not require a reliable expectancy as to his future good behaviour.   Release could only be denied where there was concrete danger of commission of offences.   The degree of such danger would have to be ascertained.   Meanwhile, those responsible for the applicant should try to convince him to adopt a more co-operative attitude allowing an external examination and his accommodation at a place other than a closed mental hospital.     &_COMPLAINTS&S           The applicant points out that, after three years' detention serving sentence, he has already spent more than four years in a mental hospital, altogether more than seven years, while he never committed any offence punishable with deprivation of liberty of such length.   Referring to the expert opinion of Dr.   W, who stated in his written report of 22 January 1986: "...   I found no symptoms allowing a diagnosis under the terms of strict psychiatry that can be subsumed to the legal term of mental illness" ("... keine Symptome, die geeignet wären, eine Diagnose aus der grossen Psychiatrie anzunehmen, die man unter den rechtlichen Begriff einer krankhaften seelischen Störung subsumieren könnte"), the applicant considers that his detention in a mental hospital is neither justified under Article 5 para. 1 (a) nor (e) and therefore violates para. 1 of this provision.     &_THE LAW&S           The applicant has complained that his detention in a mental hospital is neither justified by subpara. (a) or (e) of Article 5 para. 1 (Art. 5-1-a, 5-1-e) of the Convention, because he could not be considered as a person of unsound mind.   As the applicant is no longer serving sentence but is detained in a mental hospital and as subparas. (a) and (e) are not mutually exclusive it has, in the first place, to be examined whether the requirements for detention under Article 5 para. 1 (e) (Art. 5-1-e) of the Convention are fulfilled.           The term "unsound mind" as employed in Article 5 para. 1 (e) (Art. 5-1-e) does not only refer to mental illness in the strict sense of psychiatric science, but also to any kind of mental disorder, the kind or degree of which must be such as to warrant compulsory confinement (judgment of the Eur.   Court HR of 5 April 1981, case of X v.   United Kingdom, Series A, Vol. 46, p. 18, para. 40).   In the present case the German courts have, on the basis of several consecutive and concordant medical expert opinions and taking into account his numerous previous convictions relating to violent offences and his aggressive and violent behaviour in detention, concluded that there is concrete danger that the applicant, who, up to now, has refused treatment and also refuses to accept any kind of treatment or control after his eventual release, might again commit serious offences.           The Commission notes that the Munich Court of Appeal carefully examined all evidence available and, in addition to various expert opinions submitted previously, ordered Dr.   W to examine the applicant again and to submit a further report.   The appellate court also heard the applicant personally.   Although Dr.   W did not find the applicant to be mentally ill in the strict psychiatric sense, he nevertheless considered him to be a hysteric psychopath, who is completely unwilling to co-operate.   As the applicant was repeatedly convicted of violent acts and also showed, according to the findings of the German courts, aggressive or violent behaviour in detention without being willing to submit himself to any kind of treatment or control in the case of his release, the Commission cannot find that the German courts arbitrarily assumed that he is suffering from a mental disorder and that this disorder necessitates compulsory confinement for the protection of the public.           As the decision of the Federal Constitutional Court makes it clear, the applicant's release depends mainly on his own attitude.   The Commission notes that he refuses to co-operate and to accept some kind of therapeutic treatment.           It follows that the applicant's detention is justified under Article 5 para 1 (e) (Art. 5-1-e) of the Convention and his complaint as it has been submitted, does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.           The application is consequently manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             &_DECLARES THE APPLICATION INADMISSIBLE.&S     Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                                (C.A. NØRGAARD)