CEDH · CASELAW;REPORTS;ENG — 26 février 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 }  Application No. 13770/88   M. against   the FEDERAL REPUBLIC OF GERMANY   REPORT OF THE COMMISSION   (adopted on 26 February 1991)   TABLE OF CONTENTS                                                                  PAGE   I.       INTRODUCTION         (paras. 1 - 18) .......................................    1           A.       The application                 (paras. 2 - 4) ...............................     1           B.       The proceedings                 (paras. 5 - 14) ..............................   1 - 2           C.       The present Report                 (paras. 15 - 19) .............................   2 - 3     II.      ESTABLISHMENT OF THE FACTS         (paras. 20 - 33) .....................................   4 - 7           A.       The particular circumstances of the case                 (paras. 20 - 30) .............................   4 - 5           B.       Relevant domestic law                 (para. 31 - 34) ..............................   5 - 7     III.     OPINION OF THE COMMISSION         (paras.   35 - 47) ....................................   8 - 10           A.       Complaint declared admissible (para. 35) .....     8           B.       Point at issue (para. 36).....................     8           C.       Article 5 para. 4 of the Convention                 (paras. 37 - 46) .............................   8 - 10           D.       Conclusion                 (para. 47) ...................................    10   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................     9   APPENDIX II      :   PARTIAL DECISION OF 12 OCTOBER 1988 .......    10   APPENDIX III     :   DECISION TO STRIKE THE APPLICATION                    OFF THE LIST OF CASES .....................    15   APPENDIX IV      :   FINAL DECISION ON THE ADMISSIBILITY .......    18   I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant is a Hungarian citizen born in 1955.   He is at present at a mental hospital in Cologne.   Since November 1990 the applicant has been represented by Mr.   K. Bernsmann, a law professor at Cologne University.   3.       The application is directed against the Federal Republic of Germany. The Government are represented by their Agent, Mr.   J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice, Bonn.   4.        The case relates to German court proceedings to determine whether the applicant's detention in a psychiatric hospital should be terminated.   In these proceedings the applicant was not assisted by a lawyer.   He invokes Article 5 para. 4 of the Convention.     B.       The proceedings   5.       The application was introduced on 22 October 1986 and registered on 15 April 1988.   6.       On 12 October 1988, the Commission decided to give notice of the application, insofar as it concerned the court proceedings in 1986 concerning the applicant's request to be released, to the respondent Government in accordance with Rule 42 para. 2 (b) of its Rules of Procedure (former version) and to invite them to present, by 13 January 1989, written observations on the admissibility and merits of the complaint under Article 5 para. 4 of the Convention.   The Commission also declared inadmissible the remainder of the application, in which the applicant invoked Articles 2 - 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.   7.       The respondent Government submitted their observations on 10 January 1989.   8.       The applicant, who had been requested to submit observations in reply before 10 March 1989, failed to respond to repeated requests from the Commission and, on 10 July 1989, the Commission decided to strike the application off its list of cases in accordance with Rule 44 para. 1 of its Rules of Procedure (former version).   9.       On 13 November 1989 the applicant informed the Commission that, for health reasons, he had been prevented from replying to the Commission's letters.   He made further submissions on 24 and   27 November 1989.   10.       On 13 Febuary 1990, the Commission restored to its list of cases and declared admissible the applicant's complaint relating to the court proceedings in 1986 concerning his request to be released from detention in a mental hospital. 11.       The parties were then invited to submit any additional observations on the merits which they wished to make.   On 24 April 1990 the respondent Government informed the Commission that they did not find it necessary to submit any further observations on the merits of the case.   The applicant did not submit any substantial observations on the merits of the case.   12.      On 3 October 1990 the Commission decided to invite the parties to a hearing on the merits of the application.   The Commission also decided to grant the applicant legal aid.   13.      At the hearing which was held on 10 January 1991 the applicant was represented by Professor Bernsmann; the applicant was also present.   The Government were represented by their Agent, Ministerial- dirigent Meyer-Ladewig.   14.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 15 February and 8 May 1990 as well as in January and February 1991.   The Commission now finds that there is no basis on which such a settlement can be effected.     C.       The present Report   15.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. WEITZEL                   J. C. SOYER                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS                   J. C. GEUS                   M. PELLONPÄÄ   16.      The text of this Report was adopted on 26 February 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention. 18.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decisions on the application as Appendices II-IV.   19.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   20.       In November 1981 proceedings were instituted against the applicant with a view to confining him to a psychiatric hospital (Sicherungsverfahren), and he was provisionally detained in a psychiatric hospital.   21.      On 14 March 1983 the Cologne Regional Court (Landgericht) took a final decision under S. 63 of the German Criminal Code (Strafgesetzbuch) that the applicant be detained in a psychiatric hospital (Unterbringung in einem psychiatrischen Krankenhaus).   The Regional Court found that the applicant had performed acts which constituted the offences of insult (Beleidigung) contrary to S. 185 of the Criminal Code, injury (Körperverletzung) contrary to S. 223 para. 1 (1) of the Criminal Code applicable at the time, resisting law enforcement authorities (Widerstandsleistung) contrary to S. 113 para. 1 of the Criminal Code and various traffic offences.   However, he could not be held responsible for the offences on the ground that he suffered from a schizophrenic psychosis with signs of paranoia.   22.      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.   23.      On 3 September 1984 and on 5 August 1985, the Aachen Regional Court, referring to S. 67 e para. 2 of the Criminal Code, ordered that the applicant's detention in a psychiatric hospital should continue.   In its decision of 5 August 1985, the Regional Court found inter alia that the applicant's delusions had become more severe in the meantime, his thinking had lost any link with reality. The Court suggested that guardianship proceedings (Entmündigungs- verfahren) be instituted against the applicant.   24.         On 3 March 1986 the applicant complained to the Aachen Regional Court that, inter alia, he had not been represented by a lawyer in the above proceedings.   On 12 March 1986 the applicant was told by the Regional Court that there was no legal basis in such cases for detainees to be represented by official lawyers.   25.      On 7 July 1986 the Aachen Regional Court dismissed the applicant's request for release on probation (S. 67 e para. 2 of the Criminal Code).   The Regional 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 psychiatric hospital.           The Court relied in particular on a written opinion of 20 June 1986, by three members of the hospital staff, according to which the applicant's state of mental health had further deteriorated, and on its own personal impression of the applicant who had been heard at the hospital on 7 July 1986.   The Regional Court stated that, on this occasion, the applicant had lodged numerous complaints and contended that he was not identical with the person named M., that he had three doctor's degrees and was Presiding Judge at the Supreme Military Court of the United States of America.   The Regional Court, referring to recent case-law of the Federal Constitutional Court (Bundes- verfassungsgericht), considered that the applicant's continued detention was proportionate to the aim pursued, i.e. the protection of the general public.   Finally, the Court noted that proceedings with a view to placing the applicant under guardianship were pending.   26.      The applicant was not represented by counsel in these proceedings or in the appeal proceedings which followed.   27.      On 2 September 1986 the Cologne Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal (Beschwerde).   28.      On 10 February 1987 the Federal Constitutional Court refused to admit the applicant's constitutional complaint (Verfassungs- beschwerde) on the ground that it offered no prospect of success.   The Court found in particular that it had so far not been obvious, having regard to his illness, that the applicant could not properly defend himself.   The fact that he had not been represented by official lawyers 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 lawyer should, in future, be considered.   29.      On 19 March 1987 the Cologne District Court (Amtsgericht) decided to place the applicant under guardianship.   Having regard to an 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.   30.      On 4 January 1989 the Aachen Regional Court ordered that the applicant be released on probation as from 8 May 1989.   The supervisory conditions attached to this decision included that he remain on the premises of the hospital where he had been detained provided suitable accommodation was available.   The Court considered the fact that the applicant was now under guardianship as particularly relevant.       B.       Relevant domestic law   31.      S. 20 of the German Criminal Code (Strafgesetzbuch) determines the exemption from criminal liability by reason of mental or emotional disturbance as follows:   (German)   "Ohne Schuld handelt, wer bei Begehung der Tat wegen einer krankhaften seelischen Störung, wegen einer tiefgreifenden Bewußtseinsstörung oder wegen Schwachsinns oder einer schweren anderen seelischen Abartigkeit unfähig ist, das Unrecht der Tat einzusehen oder nach dieser Einsicht zu handeln." (Translation)   "Any person who, at the time of commission of the offence, is incapable of appreciating the unlawfulness of the offence or of acting in accordance with such appreciation by reason of a morbid mental or emotional disturbance, by reason of a profound disturbance of consciousness or by reason of mental deficiency or some other serious mental or emotional abnormality, acts without culpability."   32.      SS. 63 to 67 g of the Criminal Code concern non-punitive measures involving deprivation of liberty.   S. 63 concerning the detention in a psychiatric hospital reads as follows:   (German)   "Hat jemand eine rechtswidrige Tat im Zustand der Schuldunfähigkeit (S. 20) oder der verminderten Schuldfähigkeit (S. 21) begangen, so ordnet das Gericht die Unterbringung in einem psychiatrischen Krankenhaus an, wenn die Gesamtwürdigung des Täters und seiner Taten ergibt, daß von ihm infolge seines Zustandes erhebliche rechtswidrige Taten zu erwarten sind und er deshalb für die Allgemeinheit gefährlich ist."   (Translation)   "Where a person has committed an unlawful act in a state exempting him from criminal liability (S. 20) or in a state of diminished responsibility (S. 21), the court shall order his detention in a psychiatric hospital if the overall assessment of the offender and of his offence reveals that, in consequence of his state, he must be expected to commit serious unlawful acts and therefore poses a danger to the general public."           As regards the review of such detention, S. 67 d para. 2 and S.67 e provide:   S. 67 d para. 2   (German)   "Ist keine Höchstfrist vorgesehen ..., so setzt das Gericht die weitere Vollstreckung der Unterbringung zur Bewährung aus, sobald verantwortet werden kann zu erproben, ob der Untergebrachte außerhalb des Maßregelvollzugs keine rechtswidrigen Taten mehr begehen wird.   Mit der Aussetzung tritt Führungsaufsicht ein."   (Translation)   "Where there is no provision for a maximum period ..., the court shall suspend the further execution of the detention on probation as soon as the detainee can responsibly be allowed out of the psychiatric hospital to see whether he will desist from further unlawful acts. Suspension shall be followed by supervision of conduct." S. 67 e   (German)   "(1)   Das Gericht kann jederzeit prüfen, ob die weitere Vollstreckung der Unterbringung zur Bewährung auszusetzen ist.   Es muß dies vor Ablauf bestimmter Fristen prüfen.   (2)   Die Fristen betragen bei der Unterbringung in einer Erziehungsanstalt sechs Monate, in einem psychiatrischen Krankenhaus ein Jahr, in der Sicherungsverwahrung zwei Jahre."   (Translation)   "(1)   The court may at any time review the question of whether the further execution of the detention should be suspended on probation.   It shall review this before the expiry of certain periods.   (2)   The periods shall be for detention in an alcohol or drug dependency unit, six months; for detention in a psychiatric hospital, one year; for detention in preventive detention, two years."   33.      S. 140 of the German Code of Criminal Procedure (Strafprozeß- ordnung) regulates the cases in which an accused must be defended by counsel.   S. 140 para. 1 lists particular cases; with regard to other cases, paragraph 2, insofar as relevant, provides:   (German)   "In anderen Fällen bestellt der Vorsitzende auf Antrag oder von Amts wegen einen Verteidiger, wenn wegen der Schwere der Tat oder wegen der Schwierigkeit der Sach- oder Rechtslage die Mitwirkung eines Verteidigers geboten erscheint oder wenn ersichtlich ist, daß sich der Beschuldigte nicht selbst verteidigen kann ..."   (Translation)   "In other cases, the Presiding Judge, upon request or ex officio, shall appoint a defence counsel, if, having regard to the seriousness of the crime or the difficulty of the factual or legal issues involved, the assistance of a defence counsel appears to be necessary, or if it is obvious that the accused cannot defend himself ..."   34.      According to case-law of the Federal Constitutional Court (decision of 8 October 1985 - 2 BvR 1150/80, 2 BvR 1504/82 - Entscheidungssammlung des Bundesverfassungsgerichts Vol. 70, pp. 297 et seq.) the principle of proportionality governs the detention of a person in a psychiatric hospital and its continuance.   The judge deciding whether to suspend on probation the further execution of the detention in a psychiatric hospital has to consider in particular the risk of considerable criminal offences, the detainee's previous conduct and criminal behaviour, relevant changes in the circumstances since his detention was ordered and the detainee's future living conditions.   The longer the detention in a psychiatric hospital lasts, the stricter the test of proportionality becomes.   III.    OPINION OF THE COMMISSION     A.       Complaint declared admissible   35.      The Commisison has declared admissible the applicant's complaint that the proceedings before the Aachen Regional Court and the Cologne Court of Appeal in 1986, in which his detention in a psychiatric hospital was reviewed under S. 67 e of the Criminal Code, were not in accordance with Article 5 para. 4 (Art. 5-4) of the Convention.     B.       Point at issue   36.      Accordingly, the issue to be determined is whether there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.     C.       Article 5 para. 4 (Art. 5-4) of the Convention   37.      Article 5 para. 4 (Art. 5-4) of the Convention 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."   38.      The applicant submits that the court proceedings in 1986, concerning the review of his detention in a psychiatric hospital, did not satisfy the requirements under Article 5 para. 4 (Art. 5-4) of the Convention on the ground that he was not assisted by an official lawyer.           He considers that these proceedings involved difficult legal problems, i.e., the proportionality of his continued detention in a psychiatric hospital and a prognosis as to his dangerousness, and factual issues which could only be determined after consultation of the file, in particular the expert opinions.   Both aspects required assistance by a lawyer.   39.      The Government submit that the right to an officially appointed lawyer is only included in the procedural guarantees afforded by Article 5 para. 4 (Art. 5-4) of the Convention where the interests of justice so require.   They consider that the court, in review proceedings concerning detention in a psychiatric hospital, shall appoint an official lawyer in all cases where, in the light of the particular circumstances, it is obvious that, due to his illness, the detainee is unable to defend himself.           The Government admit that, in the present case, there are various reasons to conclude, with hindsight, that assistance by a lawyer was necessary.   They argue, however, that the Aachen Regional Court heard the applicant and was able to gain its own impression of his ability to defend himself.   It cannot be established that in the court proceedings in 1986 the necessity of legal assistance was obvious.   Moreover, the applicant did not request an official lawyer.   40.      The Commission recalls that in matters of deprivation of liberty Article 5 para. 4 (Art. 5-4) of the Convention requires a control procedure which has "a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question;   in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceedings take place" (cf.   Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 23, para. 57 with reference to the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 14, pp. 41, 42, paras. 76 in fine and 78; Wassink judgment of 7 September 1990, Series A no. 185A, para. 30 with further reference).           It is one of the principal guarantees of a judicial procedure for the purposes of the Convention that it is really adversarial and allows proper participation of the individual concerned (cf.   Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 32, para. 66 with further reference).   In particular circumstances, it is essential not only that the individual concerned should have the opportunity to be heard in person but also that he has the effective assistance of a lawyer (cf.   Eur.   Court H.R., Bouamar judgment of 29 February 1988, Series A no. 129, p. 24, para. 60 concerning the placement of juveniles in a remand prison).   41.      With regard to the judicial procedure under Article 5 para. 4 (Art. 5-4), the detention of persons of unsound mind within the meaning of Article 5 para. 1 (e) constitutes a special category. Mental illness may entail restricting or modifying the right of access to a court and the opportunity to be heard, but it cannot justify impairing the very essence of the right.   Indeed, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (cf.   Winterwerp judgment, op. cit., p. 23, para. 58 and p. 24, para. 60).   42.      In the present case the Aachen Regional Court and, upon appeal, the Cologne Court of Appeal, had to review the applicant's detention in a psychiatric hospital under S. 67 e of the Criminal Code.   The decisive issue under criminal law was whether the applicant, having regard to his state of mental health and in particular the probability of further acts of aggression, would commit unlawful acts outside a psychiatric hospital.   The Courts thereby had to consider difficult factual questions.   In this respect, the Aachen Regional Court had recourse to a psychiatric expert opinion and heard the applicant personally.   Furthermore, the applicant's case involved legal issues under constitutional law, namely the question of proportionality of his continued detention, which had, the provisional detention in 1981 taken into account, lasted almost five years.   43.      As regards the applicant's state of mental health, the Commission notes that, according to the judgment of the Cologne Regional Court of 1983, the applicant suffered from a schizophrenic psychosis with signs of paranoia.   The Cologne Administrative Court, in a decision in 1984, found that the applicant, having regard to his obvious mental illness, was incapable of instituting administrative court proceedings related to his detention.   In 1985 the Aachen Regional Court considered that the applicant's delusions had become more severe and that he had lost any link with reality, and suggested guardianship proceedings.   In 1986, the applicant's state of health   had further deteriorated.   At the hearing before the Aachen Regional Court, as summarised in the Regional Court's decision of 7 July 1986, the applicant's submissions reflected his grave mental disorder.   In 1987 he was placed under guardianship.   44.      The Commission, having regard to the course of the German court proceedings and in particular the Regional Court's reasoning in its decision of 7 July 1986, finds that the applicant himself could not effectively argue his case.   At the hearing of 7 July 1986 the Aachen Regional Court only obtained a personal impression of the applicant's state of health.   A lawyer would have had to deal not only with the important legal aspects of the applicant's case, which necessitated knowledge of the recent case-law of the Federal Constitutional Court in these matters.   He would also have had properly to present the relevant facts, in particular with regard to the psychiatric expert opinion, and to support the applicant in general.   45.      In the Commission's opinion it is not for the person detained as a "person of unsound mind" to request that a lawyer be officially appointed (cf. mutatis mutandis, Winterwerp judgment, op. cit., p. 26, para. 66).   Moreover, it appears from a letter of the Aachen Regional Court of 12 March 1986 which was addressed to the applicant in reply to his earlier submissions that the Court did not further consider the appointment of an official lawyer to assist the applicant in the review proceedings before it.   46.      In these circumstances, the proceedings before the Aachen Regional Court and the Cologne Court of Appeal in 1986 did not offer the fundamental procedural guarantees required under Article 5 para. 4 (Art. 5-4).     D.       Conclusion   47.      The Commission unanimously concludes that there has been a violation of Article 5 para. 4 (Art. 5-4)of the Convention.       Secretary to the Commission                 President of the Commission            (H.C. KRÜGER)                              (C.A. NØRGAARD) APPENDIX I     HISTORY OF PROCEEDINGS     Date                             Item   ______________________________________________________________________     22 October 1986                  Introduction of the application   15 April 1988                    Registration of the application   Examination of Admissibility   12 October 1988                  Commission's decisions (i) to invite                                 the Government to submit observations                                 on the admissibility and merits of                                 part of the application and                                 (ii) to declare the remainder of                                 the application inadmissible   10 January 1989                  Government's observations   10 July 1989                     Commission's decision to strike the                                 the application off its list of cases   13 February 1990                 Commission's decisions (i) to restore                                 to its list of cases the complaint                                 relating to Article 5 para. 4 and                                 (ii) to declare this complaint admissible   Examination of the merits   7 July 1990                      Commission's consideration of the                                 state of proceedings   3 October 1990                   Commission's decision to invite                                 the parties to an oral hearing   10 January 1991                  Oral hearing; Commission's                                 deliberations on the merits   26 February 1991                  Final vote and adoption of the Report