CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1991

.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. 13843/88                       by Gottfried VITZTHUM                       against Austria             The European Commission of Human Rights sitting in private on 17 January 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 14 January 1988 by Gottfried Vitzthum against Austria and registered on 6 May 1988 under file No. 13843/88;           Having regard to the report provided for in Rule 47 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 parties, may be summarised as follows:   A.   The particular circumstances of the case           The applicant, born in 1943, is an Austrian national.   When lodging his application, he was detained at a mental hospital (Landeskrankenhaus) in Salzburg, where he had been admitted on a voluntary basis, in 1967.   Before the Commission he is represented by Mr.   G. O. Mory, a lawyer practising in Salzburg.           On 12 September 1972 the Neumarkt District Court (Bezirksgericht) placed the applicant under guardianship as regards all matters (volle Entmündigung) on account of his mental illness (Geisteskrankheit).           On 24 October 1985 the applicant's guardian requested the Salzburg District Court to decide upon the applicant's further detention in the Salzburg mental hospital.   She submitted that the applicant had stayed there with short interruptions for many years. She considered his further detention necessary.           On 25 November 1985 the Salzburg District Court, in guardianship proceedings (Sachwalterschaftssache), decided that the applicant should be detained in the above mental hospital for a further period of twelve months.   The District Court considered that his further detention (Anhaltung) was necessary in order to prevent him from endangering himself and the public.   It relied, in this respect, upon two reports of the mental hospital concerned, according to which the applicant, suffering from schizophrenia, constantly had paranoic hallucinations and a persecution mania, and could, in such circumstances, be aggressive.   The District Court considered the reports to be consistent and, therefore, trustworthy.   The Court did not refer to any provision under Austrian law.           On 3 November 1986 the Salzburg District Court decided that the applicant should be detained in the mental hospital for a further period of six months.   The District Court stated that the applicant's continued detention was necessary on the ground that, according to the trustworthy report of the mental hospital dated 27 October 1986, he was still suffering from dangerous hallucinations and thereby constituted a danger to himself.   The Court referred to its decision of 25 November 1985.   It did not mention any legal provisions.           On 13 November 1986 the applicant's guardian lodged an appeal (Rekurs) and submitted in particular that she and the applicant would have voluntarily agreed to his further stay in the mental hospital. The appeal was first rejected for lack of legal interest by the District Court.           On 5 March 1987 the Salzburg Regional Court (Landesgericht), sitting in camera, quashed the District Court's appeal decision, and dismissed the appeal against the District Court's decision of 3 November 1986.   The Regional Court considered that the admission of a person placed under guardianship to a mental hospital did not require proceedings under SS. 16 et seq. of the Guardianship Act (Entmündigungsordnung).   Rather, the Guardianship Court (Pfleg- schaftsgericht) had to authorise such a measure.   The Guardianship Court could order detention in the closed ward of a mental hospital if the person placed under guardianship constituted a danger to himself or to the public.   In this respect, the Regional Court referred to S. 49 of the Austrian Hospital Act (Krankenanstaltengesetz).           In the present case, the Regional Court found that the applicant's further detention had been lawfully ordered on the grounds that he constituted a danger to himself and to others.   It considered that the reports of the mental hospital concerned dated 19 November 1984 and 27 October 1986, according to which the applicant was likely to be aggressive towards other patients and visitors and an attempt to place him in an open ward (offene Anstalt) had failed, showed clearly and without any doubt that he could only be detained in a closed ward (Pflegeabteilung).   The Regional Court also noted that in October 1985 the applicant's guardian had herself stated that the applicant constituted a danger to others and should be detained in a closed ward.   In the appeal, she had not objected to the applicant's further stay in the hospital.   The applicant himself had, according to the hospital's reports of 4 and 19 November 1985, agreed to stay in the closed ward.   However, the relevant provisions of the Guardianship Act and the Hospital Act did not provide that a person placed under guardianship could voluntarily stay in a mental hospital, even if in daily practice there might be some advantages.           The decision was served upon the applicant's guardian on 26 March 1987.           On 7 April 1988 the applicant's guardian, represented by Mr.   Mory, lodged an appeal on points of law (Revisionsrekurs) with the Supreme Court (Oberster Gerichtshof).   He argued in particular that under the circumstances of the present case, in particular the reasoning of the lower courts, such an appeal was admissible.   He submitted several reasons of nullity, inter alia the lack of a legal basis for the applicant's detention in a mental hospital.           On 8 May 1988 the Austrian Supreme Court declared the appeal inadmissible on points of law.   The Supreme Court found that the District and the Regional Court had ordered the applicant's further detention in the mental hospital under S. 22 of the Guardianship Act.   An appeal on points of law was, therefore, excluded under S. 24 para. 3.   The decision was served on 16 July 1988.   B.   The relevant domestic law           SS. 269 et seq. of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch) govern guardianship matters (Kuratel, Sachwalterschaft).   In particular, under S. 273 para. 1, a guardian will be appointed for a person of unsound mind, if this person cannot handle all or some of his own matters without risks of disadvantages. With a view to the rights and duties of a guardian, S. 282, first sentence, provides that the provisions concerning the guardian of a minor (Vormund) apply mutatis mutandis.   The second sentence reads:   <German>   "Der Sachwalter einer behinderten Person hat auch die erforderliche Personensorge, besonders auch die ärztliche und soziale Betreuung, sicherzustellen, soweit das Gericht nicht anderes bestimmt."   <Translation>   "The guardian of a person of unsound mind has also to ensure that the person concerned is taken care of, in particular as regards medical and social care, if the court does not decide otherwise."           The Guardianship Act of 1916 concerns the placement of a person of unsound mind under guardianship, and related matters. SS. 16 et seq. regulate the detention of a person of unsound mind in the closed ward of a mental hospital, and the court proceedings concerned.   Thus the head of a mental hospital has to inform the district court competent for the judicial district of the mental hospital concerned about the forced admission of a person of unsound mind.   The competent judge has to investigate the mental health of the person detained (S. 20, S. 21) and to decide upon his further detention in the mental hospital concerned (S. 22).   S. 23 concerns primarily time-limits of detention under the preceding provisions. S. 23 para. 1, first sentence, and para. 3 read:   <German>   "(1) Der Beschluß über die Zulässigkeit der Anhaltung steht einer anderen Anordnung des Pflegschaftsgerichtes nicht entgegen. ...   (3) Einer Ausdehnung der Anhaltung über die bestimmte Frist muß, falls nicht inzwischen das Pflegschaftsgericht die weitere Unterbringung in der Anstalt veranlaßt hat, eine neuerliche Vernehmung des Angehaltenen durch den Richter und eine Untersuchung durch einen oder zwei Sachverständige vorausgehen."   <Translation>   "(1) The decision on further detention does not preclude another decision of the guardianship court. ...   (3)   The prolongation of a fixed period of detention must be preceded by a further questioning of the detained person by the competent judge and his examination by one or two experts, if the guardianship court has not, in the meantime, ordered the person's further placement in the mental hospital."           With regard to the remedies concerning decisions under S. 22, S. 24 para. 1 provides for a right to appeal (Rekurs);   S. 24 para. 3, second sentence, excludes a further appeal against a decision confirmed upon appeal.           The Hospital Act regulates in general the establishment, organisation and management of hospitals.   S. 49 provides inter alia that a person may only be forcibly admitted (zwangsweise aufgenommen) to a mental hospital if a certificate shows that, on account of mental illness, he constitutes a danger to himself or others.   Such a certificate is not needed if a court ordered the detention.   S. 54 provides that S. 49 does not affect the provisions of the Guardianship Act concerning the court proceedings as to a person's detention in a mental hospital.           The detention of persons of unsound mind was reformed in 1990, the new provisions entered into force on 1 January 1991, and were not, therefore, applicable in the present case.   COMPLAINTS           The applicant complains that his continued detention in a mental hospital is unlawful.   He submits in particular that under Austrian law there is no legal basis for the detention of persons placed under guardianship in a mental hospital.   Furthermore, the Austrian courts failed to take independent expert evidence upon the question whether or not he was suffering from a mental illness requiring his detention.   Moreover, the proceedings were not fair.   In particular, he was not heard in person and no counsel was appointed to defend his interests.   The applicant invokes Article 5 paras. 1, 2 and 4 and Article 6 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 14 January 1988 and registered on 6 May 1988.           On 6 February 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.           Observations were submitted by the Government on 11 May 1990. The applicant replied on 6 July 1990.   THE LAW   1.       The applicant complains that his continued detention in a mental hospital was not lawful within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention.   Furthermore, he submits that the proceedings before the Salzburg District Court in 1986 and, upon appeal, before the Salzburg Regional Court in 1987, in which his detention was reviewed, were not fair.           Article 5 (Art. 5), insofar as relevant, reads:   "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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;    ...   4.       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 contend that the applicant cannot claim to be a victim within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention on the ground that he would in any event continue to stay in the mental hospital on a voluntary basis.           The applicant submits that there are important differences between a voluntary stay and forced detention in a mental hospital.           The Commission considers that the applicant's forced detention in a mental hospital cannot, in principle, be equated with a voluntary stay.   It follows that the applicant can claim to be a victim of a violation of his rights under Article 5 (Art. 5) of the Convention.   3.       The Government contend that the applicant has not lodged his application within the time-limit of six months under Article 26 (Art. 26) of the Convention.   They consider that the decision of the Salzburg Regional Court of 5 March 1987 was the final domestic judgment, whereas the applicant's further appeal to the Supreme Court was an ineffective remedy.   They also submit that, in any event, the applicant's further appeal would have had to be rejected on the ground that he failed to show any relevant reasons of nullity.           The applicant states that, in view of the reasoning of the Salzburg District Court and especially the Salzburg Regional Court in their respective decisions of 3 November 1986 and 5 March 1987, the appeal on points of law appeared to be admissible.           The Commission notes that the appeal on points of law was declared inadmissible by the Supreme Court under S. 23 para. 4 of the Guardianship Act, which exceptionally excludes such an appeal where detention in a mental hospital was ordered under the Guardianship Act.           The Commission considers that the guardian's lawyer arguably considered that this exception did not apply to the present case - the District and the Regional Court had not based their decisions on provisions of the Guardianship Act.   In any event, the applicant could not be expected to lodge his application with the Commission as long as his guardian's appeal proceedings were still pending.           Consequently, the applicant has not failed to comply with the six months' rule under Article 26 (Art. 26) of the Convention.   4.       As regards the lawfulness of the applicant's continued detention in a mental hospital within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention, the Government submit that, according to general jurisprudence, the detention of persons placed under guardianship in a mental hospital is based on S. 282, second half sentence of the Civil Code and S. 23 para. 3 of the Guardianship Act. In such cases, guardianship courts have a margin of appreciation. However, four conditions, elaborated in the jurisprudence of the Supreme Court, had to be fulfilled:   the mental illness must be convincingly proven, and justify detention.   Furthermore, the person placed under guardianship must constitute a risk to his own or other persons' security.   The Government consider that these conditions were fulfilled in the present case.           Furthermore, the Government contend that the applicant was afforded the procedural guarantees under Article 5 para. 4 (Art. 5-4) of the Convention.   They state that the applicant had been heard personally in the preceding proceedings to place him under guardianship.   In the present proceedings, his guardian had acted on his behalf.           The Commission considers that the applicant's complaints raise complicated issues of fact and law, which can only be resolved by an examination on the merits.   The application cannot therefore, be declared manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION ADMISSIBLE         Without prejudging the merits of the case.     Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)