CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 mai 1992

.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. 14219/88                       by D.B.                       against the Federal Republic of Germany           The European Commission of Human Rights sitting in private on 18 May 1992, the following members being present:                    MM.   C.A. NØRGAARD, President                  J. A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER              Mr. K. ROGGE, Deputy to the 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 25 August 1988 by D.B. against the Federal Republic of Germany and registered on 14 September 1988 under file No. 14219/88;         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 applicant is a German citizen born in 1956 who resides in Bonn.   He is represented by Mrs. Marianne Kunisch and MM. Rolf Marschner and Steffen Ufer, lawyers in Munich.   1.       In an earlier application (No. 11457/85), declared inadmissible on 4 May 1987, the applicant had complained of his detention in various mental institutions between 1980 and 1984.   The detention had been ordered on 1 October 1980 by a judgment of the 2nd Regional Court of Munich (Landgericht München II) on the ground that, as stated by the psychiatric expert A., the applicant suffered from chronic schizophrenia and therefore lacked criminal responsibility.   As no appeal was lodged against the order of 1 October 1980, it became final on 7 November 1980.         The applicant was then committed to a mental hospital in Haar until 30 May 1984 with the following interruptions:         On 16 September 1982 the applicant's provisional release was ordered but he agreed to remain in the socio-therapeutic department. On 15 November 1982 he left the hospital without authorisation.         According to an expert opinion of 25 November 1982 by Dr. B., the applicant's continued treatment in a hospital was considered necessary.         On 27 December 1982 a warrant of arrest   (Sicherungshaftbefehl) was issued and the applicant was arrested on 11 January 1983.         On 26 January 1983 the order of provisional release was revoked. An appeal lodged by the applicant was eventually withdrawn and the revocation became final on 26 May 1983.         On 25 April 1983 another expert opinion (Dr. G.) was submitted. On 3 June 1983 the Munich Regional Court ordered provisional release again and on 17 June 1983 the applicant was transferred from the closed ward to a therapeutical department of the mental hospital.         On 10 July 1983 the applicant again left without authorisation.         On 30 August 1983 another arrest warrant was issued.         On 18 August 1983 the applicant voluntarily submitted himself to a hospital in Kaufbeuren.         On 9 November 1983 his provisional release was revoked.   The applicant's appeal was dismissed on 17 December 1983.         From 12 December 1983 to 2 February 1984 the applicant was treated in Haar and then, at his request, transferred back to the hospital in Kaufbeuren.         On 26 March 1984 Dr. Z. established an expert opinion on the question whether the applicant was criminally responsible for an offence which, according to an indictment, he had committed in July/August 1983.         A supplementary expert opinion was submitted on 24 April 1984 by Dr. K. of the Kaufbeuren hospital.           On 21 May 1984 provisional release under supervision (Führungs- aufsicht) was ordered.   The order became final on 2 June 1984.         On 24 August 1984 the Augsburg District Court (Amtsgericht) convicted the applicant of theft and forgery.   He was sentenced to seven months' imprisonment.   The enforcement of the sentence was suspended on probation.         On 18 December 1984 the Regional Court in Kempten rejected the applicant's request to set aside the order for his detention in a mental hospital.         On 30 August 1985 the applicant was sentenced to eight months' imprisonment by the Bonn District Court which considered him criminally responsible to a limited extent (vermindert schuldfähig).         From 1 October 1985 to 29 March 1986 the applicant served the sentence imposed on him by the Augsburg District Court.         On 7 August 1986 the Augsburg Regional Court rejected as inadmissible the applicant's request to declare that the measure requiring his detention in a mental hospital had become without object ("erledigt" sei).         However, on 24 October 1986 the Munich Court of Appeal granted the applicant's request and also terminated the probationary supervision.   In the reasons for this decision it relied on the medical evidence of the two psychiatric experts, K. and Z., who had found no signs of schizophrenia.   The Court of Appeal concluded that the conditions for the applicant's detention in a mental institution had never existed.   This conclusion was based on the premise that schizophrenia was incurable and that consequently the applicant could not have suffered from this illness in 1980 if he was not affected by it at a later time.   The Court pointed out that, according to Dr. K., the applicant's personality disorder was a borderline syndrome.   In the Court's opinion this disorder did not, however, amount to a diminution of the applicant's power of self control (Steuerungsfähigkeit).           In Application No. 11457/85 the applicant inter alia invoked Article 5 paras. 1 and 5 of the Convention.   On 4 May 1987 the Commission declared that application inadmissible finding that the applicant had not exhausted the domestic remedies. Concerning the complaint under Article 5 para. 5 the Commission observed:           "In the present case an issue under this provision could         arise insofar as the Munich Court of Appeal's decision         of 24 October 1986 may be understood as a recognition         that the applicant's preventive detention under Section 63         of the Penal Code had lacked a substantive justification         from the outset.   Even if it was not explicitly mentioned         that the measure had been unlawful under domestic law or         under the Convention it was at least implied in the decision         that the conditions for the applicant's detention as a person         of unsound mind might never have existed.   Such a finding by         a domestic court must necessarily give rise to considerations         whether or not the person concerned is entitled to         compensation as defined in Article 5 para. 5 of the Convention         (cf. 9920/82, Naldi v. Italy, Dec. 13.3.1984, D.R. 37 p. 75)."   2.       The applicant subsequently applied for the reopening of the criminal proceedings (Wiederaufnahme des Verfahrens) which had led to the Munich II Regional Court's judgment of 1 October 1980, and for compensation under the Criminal Law Compensation Act (Strafrechts- entschädigungsgesetz).   Both applications remained without success.           The case concerning the reopening of the criminal proceedings was conducted before the 1st Regional Court of Munich (Landgericht München I).   On 28 July 1987 it declared the application admissible on the ground that the expert opinions of K. and Z. justified doubts as to the correctness of the expert opinion of A. on which the 2nd Regional Court's judgment had been based.   However, after having taken further evidence by hearing K. and Z. and consulting an additional psychiatric expert, Professor S., the Court refused the reopening of the criminal proceedings on 9 March 1988.           The Court considered that the evidence taken did not justify the conclusion that the doubts concerning the correctness of A.'s expert opinion were well-founded.   In particular it had not been established beyond doubt that in 1980 the applicant's criminal responsibility had not been considerably reduced.   His actual state of mental health did not necessarily exclude that.   While experts K. and Z. were experienced psychiatrists, their written expert opinions and oral declarations did not convince the court that at the relevant time the applicant had not suffered from schizophrenia or another mental defect within the meaning of Sections 20 or 21 of the Penal Code (Strafgesetzbuch).   On the contrary, the Court considered it as highly probable that A.'s diagnosis of schizophrenia had been correct.           The Court pointed out that even in the written expert opinions of K. and Z. reference had been made to a borderline syndrome while these experts had not found any residual symptoms of schizophrenia. From this they had drawn the erroneous conclusion that the applicant could not have suffered from schizophrenia in 1979/1980.   However, Professor S. had convincingly demonstrated that in the light of the symptoms observed in the applicant at the relevant time a diagnosis of schizophrenia was not excluded and that it was impossible to conclude from the further development of the applicant's state of mental health that there had never been schizophrenia.   K. and Z. had also wrongly assumed that A.'s diagnosis had merely been based on short-time observations while A. had in fact taken into account symptoms observed during a longer period, including observations made by another psychiatric expert Sch. in October 1979.           While it could not be maintained that the applicant suffered from chronic schizophrenia, the Court considered that it could not be excluded that he had suffered from schizophrenia in 1980 and that his criminal responsibility had at that time at least been considerably reduced or excluded, thus justifying an order for his detention under Section 63 of the Penal Code.   A.'s prognosis of a danger of the applicant committing further criminal offences had in fact been confirmed by the further development of his criminal behaviour which had led to two convictions.   Finally it was not the task of the Court in the reopening proceedings to examine whether the continued detention of the applicant had ceased to be justified at any subsequent date; it was only relevant that the order for his detention was justified on 1 October 1980.           The applicant's appeal was rejected by the Munich Court of Appeal on 8 June 1988.   The appellate court noted in particular Dr. Z.'s admission in the proceedings before the Regional Court that the absence of residual symptoms of schizophrenia did not warrant with certainty the conclusion that the applicant had never suffered from schizophrenia.   It further observed that the principle "in dubio pro reo" did not apply in reopening proceedings and that the facts established in the judgment of 1 October 1980 had not been put in doubt to such a degree as to justify a new trial.   Professor S. had made it clear that the absence of schizophrenia in 1988 did not allow the cogent conclusion that A.'s diagnosis of schizophrenia in 1980 had been wrong.   Contrary to earlier assumptions it was now known that schizophrenia was not always a chronic disease, but that it was only so in about one third of the cases.   In the applicant's case A. had found sufficient symptoms to justify a diagnosis of schizophrenia. According to Professor S. this was also confirmed by the observations made by other psychiatrists at the relevant time who, although they had come to different conclusions, converged to find a psychotic defect in the applicant in the period between 1979 and 1983 which had excluded his criminal responsibility.   The appellate court concluded that, while A.'s diagnosis of chronic schizophrenia was certainly wrong, there were no sufficient reasons to exclude with the degree of probability required for reopening proceedings that the applicant had not at the relevant time suffered from an acute schizophrenic psychosis. Consequently there was nothing to show that the applicant had wrongly been considered to be criminally not responsible.           The applicant's constitutional complaint (Verfassungs- beschwerde) against this decision was rejected by a panel of three judges of the Federal Constitutional Court on 19 April 1989 on the ground that it lacked sufficient prospects of success.   The judges stated that in decisions concerning reopening of proceedings a balance had to be struck between material justice and legal security which were both fundamental principles of the rule of law.   From the point of view of constitutional law it was not objectionable that the grounds for reopening proceedings were limited to exceptional cases where new facts or evidence were capable of undermining the basic facts established in the impugned judgment.   In the applicant's case the courts had taken decisions which in the light of the evidence appeared realistic and which were in no way arbitrary.   Their conclusion that there were not sufficient doubts concerning the correctness of A.'s diagnosis was not based on unreasonable considerations, nor had the importance of fundamental rights been disregarded.   The applicant's submission that the courts had considered a merely temporary reduction of criminal responsibility sufficient to justify his detention under Section 63 of the Penal Code was contradicted by the findings in the impugned decisions, in particular the finding by the 1st Regional Court of Munich which had confirmed that the applicant continued to constitute a danger as assumed in the 2nd Regional Court's judgment.           In the proceedings on the applicant's compensation claim, the Regional Court of Augsburg enforcement of sentences section - (Strafvollstreckungskammer) - declined jurisdiction on the ground that the competent court was the one which had established the unlawfulness of the detention, i.e. the Munich Court of Appeal (decision of 30 November 1988).           On 6 February 1989 the Munich Court of Appeal rejected the applicant's appeal against this decision.   It observed that its earlier decision of 24 October 1986 by which the applicant's detention had been declared to be "without object" had not been taken following a reopening of the original criminal proceedings and had accordingly not set aside the 2nd Regional Court's judgment of 1 October 1980.   It had only contained an order for the future, namely that the detention was henceforth without object and that the probationary supervision of the applicant should be terminated.   The operative part of the decision (Entscheidungssatz) did not contain a finding that the applicant's detention had been unlawful from the outset.   The reasons for the decision had not acquired force of law ("nehmen an der Rechtskraft nicht teil") and it was therefore irrelevant that the Court of Appeal had tended to the opinion that the legal conditions of the detention might never have existed.   Such a finding could be made with binding legal force only in the context of reopening proceedings.   The Court of Appeal then referred to the result of the proceedings taken by the applicant to obtain the reopening of his criminal case which had confirmed that the 2nd Regional Court's judgment of 1 October 1980 continued to be valid.   As the applicant had recovered from his mental disease, this judgment could no longer be enforced.   However, there was no decision that he had in the past been subjected to unjustified enforcement measures. The Court of Appeal's decision of 8 June 1988 had indeed finally confirmed that the 2nd Regional Court's judgment of 1 October 1980 was not to be set aside retroactively.   There was accordingly no legal basis for the applicant's compensation claim.           The applicant's constitutional complaint against these decisions was rejected by a panel of three judges of the Federal Constitutional Court on 22 March 1989.   It considered the complaint inadmissible insofar as it was directed against the decision of the Regional Court of Augsburg, and as lacking sufficient prospects of success insofar as it was directed against the Court of Appeal's decision.   The latter decision was not arbitrary because it could be concluded from the fact that the 2nd Regional Court's judgment had not been set aside nor amended as a result of the reopening proceedings that there was no legal basis for a compensation claim against the State.     COMPLAINTS         The applicant complains under Article 5 para. 1 of the Convention that his detention was unlawful and under Article 5 para. 5 of the Convention that he was refused compensation for unlawful detention. On 29 May 1990 the applicant has further invoked Article 3 of Protocol No. 7 to the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 25 August 1988 and registered on 14 September 1988.         On 5 November 1990 the Commission decided to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.         The Government submitted their observations on 21 February 1991. The applicant's observations in reply were received on 20 June 1991 after an extension of the initial time-limit.   THE LAW   1.     The applicant first complains under Article 5 para. 1 (Art. 5-1) of the Convention that his detention in the years 1980-1984 was unlawful because he never suffered from a mental disease justifying this detention.         A similar complaint by the applicant has already been examined by the Commission in Application No. 11457/85.   In its decision of 4 May 1987 the Commission rejected that complaint for non-exhaustion of the domestic remedies.   It is true that in the meantime the applicant has taken a number of further remedies, including in particular an application for the reopening of the criminal proceedings which had led to the order for his detention.   It is also true that in this context the question of the lawfulness of the original detention order was again examined by the German courts. However, the Commission has constantly held that applications for the reopening of proceedings do not constitute effective remedies within the meaning of Article 26 (Art. 26) of the Convention, and that, unless the proceedings are actually reopened as a result of such applications, they do not provide the applicant with a further opportunity to challenge the underlying measures.   As in the present case these measures were not at the relevant time challenged by the appropriate remedies, and as the applicant's unsuccessful efforts to obtain a reopening of the proceedings are not relevant under Article 26 (Art. 26), the situation complained of has not essentially changed since the Commission's examination of Application No. 11457/85.         It follows that this part of the application must be rejected under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention as being substantially the same as the previous application and containing no relevant new information.   2.     The applicant further complains under Article 5 para. 5 (Art. 5-5) of the Convention that he was unjustifiably refused compensation for unlawful detention.   In this respect, too, the Commission rejected a similar complaint in Application No. 11457/85 on the ground of non-exhaustion of domestic remedies.   Here, however, the applicant has submitted relevant new information within the meaning of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention showing that he has now exhausted all domestic remedies.   He claims compensation under Article 5 para. 5 (Art. 5-1) of the Convention because his detention allegedly was not lawful under Article 5 para. 1 (Art. 5-1).         The Commission observes that the application of Article 5 para. 5 (Art. 5-5) presupposes a finding, either by a Convention organ or by a domestic authority, that one of the other paragraphs of Article 5 (Art. 5) has been violated.   The Commission itself could not deal with the issue of the alleged violation of Article 5 para. 1 (Art. 5-1) because the applicant had not exhausted the domestic remedies.   His claim can therefore only be based on the decisions of the German courts.         The applicant argues that the Munich Court of Appeal's decision of 24 October 1986 must be understood as a recognition that his detention under Section 63 of the Penal Code was unjustified from the outset: even if it was not stated that the detention had been unlawful under domestic law or under the Convention, it was at least implied in the decision that the conditions for this measure might never have existed.   In the light of the Commission's decision on the admissibility of the applicant's previous application No. 11457/85, such a finding by a domestic court must raise the question whether or not he is entitled to compensation under Article 5 para. 5 (Art. 5-5). However, that question can only be determined after the domestic remedies concerning the issue of compensation have been exhausted.         The Commission notes that the finding in question only appeared in the reasons, but not in the operative part of the decision of the Court of Appeal of 24 October 1986.   It thus could not be considered in the German legal system as an authoritative statement on the lawfulness or otherwise of the applicant's detention.         It is true that this question was again considered in the proceedings concerning the applicant's application for the reopening of his criminal case.   The applicant submits that the evidence obtained in the proceedings shows that his detention in a mental hospital was never justified.   He alleges that he was only once examined by Dr. A. He refers to an expert opinion established at his request on 8 April 1989 by Prof. W. who came to the conclusion that A.'s expert opinion was wrong and that the subsequent expert opinions do not justify the assumption that in 1980 there had been reasons to consider the applicant to be criminally not responsible.         The respondent Government rely on the reasons stated by the German courts in the retrial proceedings.   They point out that despite extensive new evidence (expert opinion of Prof. S.) it had not been possible to establish with the degree of probability required in retrial proceedings that the applicant's detention in a mental hospital had been wrongly ordered.         The Commission notes that in the retrial proceedings the German courts considered very carefully the evidence underlying the original detention order as well as new expert evidence.   Ultimately it was found that the doubts, which might exist concerning the correctness of the diagnosis which had led to the detention order of 1980, were unjustified.   While the assumption of a chronic schizophrenia could not be upheld, it could not be excluded that the applicant had in fact suffered in 1980 from an acute schizophrenic psychosis excluding his criminal responsibility and thus justifying his detention as a person of unsound mind. Without expressly referring to Article 5 para. 1 (e) (Art. 5-1-e) of the Convention, the German courts thus in substance confirmed that the applicant's detention had been covered by this provision.         The Commission finds no indication that their decisions were unreasonable or arbitrary.   In particular the expert opinion of Prof. W., established at the applicant's request, does not clearly show that the reasons relied upon by the courts, when examining the applicant's request for the reopening of the previous criminal proceedings, were incongruent with the available expert evidence.         As no violation of Article 5 para. 1 (Art. 5-1) has been established, there is accordingly no basis for a claim under Article 5 para. 5 (Art. 5-5).   It follows that the applicant's complaint under this provision must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant finally invokes Article 3 of Protocol No. 7 (P7-3) to the Convention which has, however, not yet been ratified by the Federal Republic of Germany.   This part of the application must therefore be rejected as being incompatible ratione materiae with the Convention in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Deputy to the Secretary to the Commission    President of the Commission                (K. ROGGE)                              (C.A. NØRGAARD)