CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1988

.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 }                                  PARTIAL                           AS TO THE ADMISSIBILITY OF                         Application No. 13770/88                       by Z. M.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 12 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   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 22 October 1986 by Z. M. against the Federal Republic of Germany and registered on 15 April 1988 under file No. 13770/88;           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, born in 1955, is a Hungarian national.   Since the applicant entered the Federal Republic of Germany in 1975 he was repeatedly in psychiatric treatment.   When lodging his application he was detained in a mental institution in Düren.           The present application concerns different sets of proceedings.   I           On 20 November 1981 the Cologne Public Prosecutor's Office (Staatsanwaltschaft) instituted court proceedings against the applicant with a view to confining him to a mental institution (Sicherungsverfahren).   The applicant was charged with several counts of defamation, bodily assault, dangerous driving and resisting a public officer in the exercise of his duties (Widerstand gegen die Staatsgewalt).           On 21 November 1981 the Cologne Regional Court (Landgericht) decided that the applicant be provisionally detained in a mental institution.   His appeal (Beschwerde) was rejected.           On 14 March 1983 the Cologne Regional Court took a final decision that the applicant be detained in a mental institution (Unterbringung in einem psychiatrischen Krankenhaus).   The Court found in particular that on several occasions in the period between June and November 1981, the applicant had defamed the witness A, his previous girl-friend, that he had beaten her several times, that he had been driving recklessly and had resisted police officers at his arrest. The Court relied, in this respect, on the testimonies of several witnesses.   Furthermore the Court considered that the applicant could not be held responsible for these criminal offences on the ground that he suffered from a schizophrenic psychosis with signs of paranoia. The Court relied, in this respect, on the medical expert opinion of the psychiatrist Dr.   F who had examined the applicant himself and had also considered the files concerning the applicant's previous psychiatric treatment.   The Court also found that, according to the medical expert opinion, further criminal offences, especially directed against the witness A, were to be expected.           In these proceedings the applicant was represented by an official defence counsel.           On 8 September 1983 the Federal Court of Justice (Bundes- gerichtshof), having heard the applicant, dismissed his appeal on points of law (Revision).           On 3 October 1986 the Federal Constitutional Court (Bundes- verfassungsgericht) declared the applicant's constitutional complaint (Verfassungsbeschwerde) inadmissible.   The Court found that the applicant had not substantiated his complaints.   II           In 1983 and 1984 the applicant instituted numerous proceedings before the Cologne Administrative Court (Verwaltungsgericht) against the Land North-Rhine Westphalia and others in connection with his detention in a mental institution.           On 7 September 1984 the Cologne Administrative Court, in one of these cases, declared inadmissible the applicant's request for legal aid in proceedings against the Land North-Rhine Westphalia concerning the lawfulness of his detention.   The Court found that the applicant was incapable of taking part in proceedings concerning his detention in a mental institution.   The Court considered that it was not necessary to order an expert opinion on that question.   It found that the applicant's mental illness was so obvious that the relevant facts could be assessed without expert knowledge.   III           On 7 July 1986 the Aachen Court dismissed the applicant's request to be released on probation.   The Court, referring also to its previous decision of 5 July 1985, found that it was too early to take the risk of releasing the applicant.   The Court, having heard the applicant, relied in particular on the expert opinion of two psychiatrists and a teacher of 20 June 1986 according to which the applicant's mental illness had increased.   Furthermore the Court considered that the applicant's continued detention was proportionate to the aim pursued, i.e. the protection of the general public. Moreover, the Court noted that proceedings with a view to removing the applicant's legal capacity were pending.           In these and the following appeal proceedings the applicant was not represented by counsel.           On 2 September 1986 the Cologne Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (Beschwerde).           On 10 February 1987 the Federal Constitutional Court refused to admit the applicant's constitutional complaint in this respect on the ground that it offered no prospect of success.   The Court found in particular that, in the circumstances of the present case, it had so far not been obvious that the applicant - having regard to his illness and other circumstances - could not properly defend himself.   The fact that he had not been represented by official defence counsel in the preceding proceedings could not, therefore, be objected to under constitutional law.   However, having regard to the increasing symptoms of his illness and the length of his detention, the appointment of an official defence counsel should, in future, be considered.   IV           On 19 March 1987 the Cologne District Court (Amtsgericht) decided to place the applicant under guardianship.   The Court, having regard to an expert opinion of June 1986, found that the applicant   suffered from a serious mental illness preventing him from dealing with his private affairs.           Appeal proceedings are apparently still pending before the Cologne Regional Court.   V           On 12 November 1986 the Aachen Regional Court declared the applicant's request to re-open the trial against him inadmissible.   His appeal (Beschwerde) was dismissed by the Cologne Court of Appeal on 13 October 1987.   On 13 November 1987 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible.   VI           On 6 July 1987 the Aachen Regional Court dismissed the applicant's renewed request to be released on probation.   Having heard expert opinions of two psychiatrists the Court found that it appeared likely that the applicant's progressing mental illness would result in further criminal offences.   In these and the following appeal proceedings the applicant was represented by an official defence counsel.           On 30 July 1987 the Aachen Regional Court refused to take a new decision on the applicant's request to be released on probation.   The applicant's appeals were dismissed by the Cologne Court of Appeal on 4 September and 13 October 1987.           On 10 March 1988 the Federal Constitutional Court refused to admit the applicant's constitutional complaint as it offered no prospect of success.   VII           In 1986 and 1987 the applicant unsucessfully attempted to institute criminal proceedings against a public prosecutor and officials of the regional body supervising the Düren mental institution.     COMPLAINTS           The applicant complains that all the court decisions taken in the different sets of proceedings are wrong and that the proceedings concerned were unfair.   He considers in particular that he is unlawfully detained in a mental institution and that the conditions in the mental institution amount to inhuman and degrading treatment.           He invokes Articles 2 to 14, 17 and 18 of the Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention.   THE LAW   1.       As regards the applicant's complaints about the court proceedings in 1986 concerning his request to be released, in particular the questions under Article 5 para. 4 (Art. 5-4) of the Convention, the Commission considers that further information is required and accordingly reserves the examination of the admissibility of this part of the application.   2.       The Commission has examined the applicant's further complaints as they have been submitted by him.   However, after considering the case as a whole, the Commission finds that the remainder of the application does not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application is as a whole manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission   1.       DECIDES TO ADJOURN THE EXAMINATION OF THE APPLICANT'S         COMPLAINTS ABOUT THE PROCEEDINGS BEFORE THE AACHEN         REGIONAL COURT AND THE COLOGNE COURT OF APPEAL IN 1986;   2.       DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.     Secretary to the Commission                President of the Commission             (H. C. KRÜGER)                               (C. A. NØRGAARD)