CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 février 1990

.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 }                                F I N A L                           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 13 February 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   E. BUSUTTIL                   G. JÖRUNDSSON                   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.   L. LOUCAIDES                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 regard to :        -   the   Commission's partial decision of 12 October 1988 to         declare the remainder of the application inadmissible insofar         as it related to the court proceedings in 1986 concerning the         applicant's request to be released from detention in a mental         hospital;        -   the observations submitted by the respondent Government on         10 January 1989;        -   the applicant's failure to reply;        -   the Commission's decision of 10 July 1989 to strike the         application off its list of cases;        -   the applicant's request of 13 November 1989 to restore his         application to the list of cases and his further submissions         of 24 and 27 November 1989;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, submitted by the parties with regard to the remaining part of the application, may be summarised as follows:           The applicant, born in 1955, is a Hungarian national.   Since he entered the Federal Republic of Germany in 1975 he was repeatedly in psychiatric treatment.   When lodging his application he was detained in a mental hospital in Düren after a decision by the Cologne Regional Court (Landgericht) in 1983.   In June 1989 he was admitted for in-patient treatment at a mental hospital in Cologne.           In November 1981 proceedings were instituted against the applicant with a view to confining him to a mental hospital (Sicherungsverfahren), and he was provisionally detained in a mental hospital.   On 14 March 1983 the Cologne Regional Court took a final decision that the applicant be detained in a mental hospital (Unterbringung in einem psychiatrischen Krankenhaus).   The Regional Court found that the applicant had committed various criminal offences.   However, he could not be held responsible for these offences on the ground that he suffered from a schizophrenic psychosis with signs of paranoia.           On 7 September 1984 the Cologne Administrative Court (Verwaltungsgericht), in one of numerous proceedings instituted by the applicant in connection with his detention, declared inadmissible the applicant's request for legal aid on the ground that he was incapable of taking part in such proceedings.   The Administrative Court considered that it was not necessary to order an expert opinion on that question, as the applicant's mental illness was so obvious that the relevant facts could be assessed without expert knowledge.           In September 1984 and August 1985 respectively, the Aachen Regional Court ordered the applicant's further detention in a mental hospital.   In its decision of 5 August 1985, the Regional Court suggested that tutelage proceedings be instituted against the applicant.           On 3 March 1986 the applicant complained to the Aachen Regional Court that, inter alia, in the above proceedings he had not been represented by counsel.   By letter of 12 March 1986 the Aachen Regional Court informed the applicant that there was no legal basis in such cases for detainees to be represented by official defence counsel.           On 7 July 1986 the Aachen Regional Court dismissed the applicant's request to be released on probation.   The Court, referring also to its previous decision of 5 August 1985, found that it was too early to put to the test whether the applicant would no longer commit criminal offences outside a mental hospital.   Having heard the applicant, the Court relied in particular on the expert opinion of two psychiatrists and a teacher dated 20 June 1986, according to which the applicant's state of mental health had further deteriorated. 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 (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) in this respect on the ground that it offered no prospect of success.   The Court found in particular that it had so far not been obvious that the applicant could not properly defend himself - for instance having regard to his illness.   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.           On 19 March 1987 the Cologne District Court (Amtsgericht) decided to place the applicant under guardianship.   Having regard to the expert opinion of June 1986, the District Court found that the applicant suffered from a serious mental illness preventing him from dealing with his private affairs.   COMPLAINTS           The applicant's remaining complaint concerns the court proceedings in 1986 relating to his request to be released from detention in a mental hospital.   He invokes Articles 2 to 14, 17 and 18 of the Convention, Articles 1 and 2 of Procotol No. 1 and Article 2 of Protocol No. 4 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 22 October 1986 and registered on 15 April 1988.           On 12 October 1988 the Commission decided that, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, the complaint relating to the proceedings before the Aachen Regional Court and the Cologne Court of Appeal in 1986 be brought to the notice of the respondent Government and that they be invited to submit, within a time limit of 10 weeks, written observations on the admissibility and merits of this complaint under Article 5 para. 4 of the Convention. The Commission declared the remainder of the application inadmissible.           The observations of the respondent Government were submitted on 10 January 1989.           On 24 January 1989 the applicant was requested to submit observations in reply before 10 March 1989.   In a further letter of the Secretariat of 29 March 1989, it was noted that he had not submitted his observations in time, and recalled that he might request legal aid.   Furthermore, the applicant was warned about the consequences under Rule 44 para. 1 of the Commission's Rules of Procedure.   He was sent a second reminder by registered mail on 26 April 1989.   The applicant, whose last letter to the Commission was dated 1 May 1988, did not react to the above letters from the Secretariat.           On 10 July 1989 the Commission, in accordance with Rule 44 para. 1 of its Rules of Procedure, decided to strike the application off its list of cases.           On 13 November 1989 the applicant requested that his application be restored to the list of cases.   He submitted that his strong medical treatment at hospital and his therapist had prevented him from replying to the Secretariat's letters.   On 27 November 1989 he filed a medical certificate issued by a mental hospital in Cologne according to which he had been admitted in May 1989 for in-patient treatment of an indefinite duration.   The certificate also stated that he was for the time being receiving drug therapy (psychopharmakolo- gische Behandlung) and that since March 1988 he had been treated with neuroleptic drugs.   THE LAW   I.       The Commission is satisfied that, for reasons of health, the applicant was prevented from duly pursuing his application.   It therefore finds that the circumstances of the present case justify restoration of his application, insofar as it is related to the court proceedings in 1986 concerning his request to be released from detention in a mental hospital, to its list of cases in accordance with Article 30 para. 3 (Art. 30-3) of the Convention.   II.      1.   The applicant complains about the proceedings in 1986 before the Aachen Regional Court and the Cologne Court of Appeal concerning his further detention in a mental hospital.   He submits, inter alia, that in these proceedings he was not assisted by counsel.           The applicant's complaint falls within the scope of Article 5 para. 4 (Art. 5-4) of the Convention which provides:   "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."           2.   The respondent Government consider the applicant's complaint as inadmissible under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.   They submit that the applicant failed to request assistance by an official defence counsel in the proceedings concerned.           It is true that under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           The Commission notes that on 12 March 1986, the Aachen Regional Court, upon a petition by the applicant, informed him that there was no legal basis for detainees to be assisted by official counsel in proceedings of the kind in question.   Furthermore, the Federal Constitutional Court, in its decision of 10 February 1987 refusing to accept his constitutional appeal, dealt with the merits of the applicant's complaint.           In these circumstances the Commission finds that the applicant has properly exhausted the remedies available to him under German law.           3.   The Government further submit that the proceedings in 1986 were in accordance with Article 5 para. 4 (Art. 5-4) of the Convention. They   contend that this provision does not in general guarantee the right to   have free legal assistance.   In the present case, an official counsel    was not required by the interests of justice or of the applicant, who    represented himself and had not requested legal assistance.   In particular, the applicant was not obviously unfit to plead his case due to his mental illness.           The Commission considers that, in the particular circumstances of the present case, the applicant's complaint about the proceedings before the Aachen Regional Court and the Cologne Court of Appeal in 1986 raises questions of fact and of law which are of such a complex nature that their determination requires an examination of the merits. The application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.           For these reasons, the Commission   1.       RESTORES THE APPLICATION, insofar as it is related to         the court proceedings in 1986 concerning the applicant's         request to be released from detention in a mental hospital,         to its list of cases   2.       DECLARES THIS PART OF THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.       Secretary to the Commission                President of the Commission             (H. C. KRÜGER)                               (C. A. NØRGAARD)