CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1994

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s23A41E03 { width:36pt; display:inline-block } .sF9FF877E { width:9.34pt; display:inline-block } .sA047E36C { width:24.66pt; display:inline-block } .s5CDAE21E { width:35.32pt; display:inline-block } .s307223E7 { width:5.98pt; display:inline-block } .s21B1FE17 { width:12.67pt; display:inline-block } .sD0C8129C { width:23.99pt; display:inline-block } .sA62DF3A3 { width:8.63pt; display:inline-block } .s1188E1D8 { width:5.99pt; display:inline-block } .s33D75D3F { width:10pt; display:inline-block } .sCA7CBB31 { width:30.67pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .s275C5FB8 { width:26.67pt; display:inline-block } .s8AFB426F { width:32.67pt; display:inline-block } .sE0EA7154 { width:21.33pt; display:inline-block }     AS TO THE ADMISSIBILITY               Application No. 22565/93         by Garip YILDIRIM         against Germany       The European Commission of Human Rights (First Chamber) sitting in private on 30 November 1994, the following members being present:       MM.   A. WEITZEL, President       C.L. ROZAKIS       F. ERMACORA             E. BUSUTTIL             A.S. GÖZÜBÜYÜK           Mrs.   J. LIDDY           MM.   M.P. PELLONPÄÄ             B. MARXER               G.B. REFFI               B. CONFORTI               N. BRATZA       I. BÉKÉS       E. KONSTANTINOV       G. RESS       Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber       Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to the application introduced on 19 July 1993 by Garip YILDIRIM against Germany and registered on 1 September 1993 under file No. 22565/93;     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 applicant, may be summarised as follows.     The applicant, born in 1968, is a Turkish national.   When lodging his application he was detained at a psychiatric hospital in Wiesloch. Before the Commission he is represented by Ms. B. Tilgner, a lawyer practising in Stuttgart.   A.   Particular circumstances of the case     On 14 July 1992 the applicant was arrested on the suspicion of attempted murder and of having resisted a police officer in the exercise of his duties (Widerstand gegen die Staatsgewalt).   At the relevant time, the applicant had absconded from a psychiatric hospital.     On 15 July 1992 the Bruchsal District Court (Amtsgericht) issued a warrant of arrest against the applicant who was taken into detention on remand.   The District Court found that there was a strong suspicion (dringender Tatverdacht) that the applicant had attempted murder and further had resisted a police officer in the exercise of his duties.   In this respect, the Court noted that, following charges against the applicant of having intimidated third persons with a knife, two police officers had searched for him.   When they had found him, still with the said knife in his hands, the police officers had requested him to drop the knife.   Thereupon, the applicant had attacked one of them with the knife. The later accepted that the police officer, who managed to escape, might have been killed.   Referring to S. 112 para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), the District Court also considered that there was a danger of the applicant's absconding, as he had no place of residence and no family links and risked a heavy sentence.     On 27 January 1993 the Bruchsal District Court ordered the applicant's provisional detention (vorläufige Unterbringung) in a psychiatric hospital in accordance with S. 126 a of the Code of Criminal Procedure.   The Court stated the charges against the applicant who was suspected of having suffered at the relevant time from schizophrenia with the effect that he was not criminally responsible.   The Court, having regard to a medical expert opinion of 13 January 1993, found that it was probable that due to his mental illness the applicant would commit further aggressive offences.   Public safety therefore required his provisional detention in a psychiatric hospital.     On 8 February 1993 the District Court lifted the arrest warrant against the applicant.       Furthermore, on 8 February 1993 the Karlsruhe Court of Appeal (Oberlandesgericht) decided that the proceedings regarding the review of the applicant's detention on remand, pursuant to SS. 121 et seq. of the Code of Criminal Proceedings, had been disposed of following the decision of 27 January 1993 to detain the applicant in accordance with S. 126 a of the Code of Criminal Procedure.     On 19 March 1993 the Karlsruhe Regional Court (Landgericht) dismissed the applicant's appeal against the decision of 27 January 1993.   The Regional Court confirmed the reasoning of the Bruchsal District Court and also observed that, taking into account the seriousness of the charges against the applicant, there was no disproportionality.     On 10 May 1993 the Karlsruhe Court of Appeal dismissed the applicant's further appeal.   The Court of Appeal found that the conditions to detain the applicant under S. 126 a of the Code of Criminal Procedure were still met.   The Court of Appeal, having regard to the statements of the police officers concerned and the medical expert opinion, considered that there were strong reasons to suspect that the applicant had committed the crimes referred to in the decision of 27 January 1993 in a state of mind excluding his criminal responsibility and that, therefore, his detention in a psychiatric hospital would be ordered in the criminal proceedings against him, pursuant to S. 63 of the Penal Code (Strafgesetzbuch).   In these circumstances the interests of public safety required the applicant's provisional detention.   There were no less severe means to achieve this aim.   Moreover, the principle of proportionality was not breached as the criminal proceedings were to terminate soon.     On 8 June 1993 the Federal Constitutional Court (Bundesver-fassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.       The Constitutional Court considered that the Court of Appeal's reasoning as to the conditions under S. 126 a of the Code of Criminal Procedure was conclusive and did not disclose any appearance of arbitrariness.   Moreover, the fact that, in contrast to remand proceedings under SS. 121 et seq. of the Code of Criminal Procedure, in proceedings under S. 126 a of the Code of Criminal Procedure, there was no review of the detention after six months, could not be objected to from a constitutional point of view.   The Court found that this procedural difference was justified on the ground that, an arrest warrant under S. 112 of the Code of Criminal Procedure, unlike detention pursuant to a detention order under S. 126 a of the Code of Criminal Procedure, aimed not only at ensuring the further conduct of the proceedings, but also at protecting the public against dangerous criminals.   Furthermore, a person detained pursuant to S. 126 a of the Code of Criminal Procedure could, in the context of the appeal proceedings under S. 304 and S. 310 of the Code of Criminal Procedure, argue that his continued detention exceeded a reasonable length and thereby violated the rule of law (Rechtsstaatsgebot).   In the present case, the competent courts had correctly balanced the seriousness of the charges against the applicant and the fact that the proceedings would terminate soon.   In this respect, the Court noted that the applicant had not shown any delays on the part of the authorities.     On 10 January 1994 the Karlsruhe Regional Court found that the applicant had committed an attempted murder and resisted police officers in the exercise of their duties, but that, due to his mental illness, namely a psychosis of a schizophrenic nature, he was not criminally responsible.   The Regional Court ordered his detention in a psychiatric hospital in accordance with S. 63 of the Penal Code.   The Regional Court proceeded from the statements of several witnesses and had in particular regard to the opinions of two psychiatric experts, noting that the applicant had undergone a thorough neuropsychiatric and psychological examination.     The applicant, assisted by counsel, waived his right to appeal against this judgment.   B.   Relevant domestic law     SS. 112 to 131 of the Code of Criminal Procedure (Strafprozeß-ordnung) concern the arrest and detention of a person on reasonable suspicion of having committed a criminal offence.   S. 112 prescribes the prerequisites of detention on remand, in particular a strong suspicion that the person concerned committed a criminal offence and that there was a reason justifying detention, as for example, a risk of the person's absconding.       S. 117 of the Code of Criminal Procedure provides that the detainee can, at any stage, apply for a review whether the arrest warrant be lifted or its execution be suspended.   According to SS. 121 and 122, detention on remand may only exceed a period of six months, without any judgment imposing a sentence of imprisonment or other measure requiring the accused's detention having been passed, if the complexity of the case or investigations or another important reason justified such detention.   In these review proceedings, the Court of Appeal decides after having heard the detainee and his counsel.     S. 126 a of the Code of Criminal Procedure provides for a person's provisional detention in a psychiatric hospital, if there are strong reasons to suppose that the person has committed an offence in a state of mind excluding or diminishing his criminal responsibility and that, therefore, his detention in a psychiatric hospital would be ordered, and if public safety requires such a measure.   Certain procedural provisions relating to detention on remand apply also in the context of provisional detention.   However, SS. 121 et seq. regarding review proceedings are not included among those provisions.   The provisional detention order is lifted when the conditions for such detention are no longer met, or when the trial court, in its judgment, does not order detention in a psychiatric hospital.     COMPLAINTS     The applicant complains under Article 6 of the Convention about the length of his detention and of the criminal proceedings against him.   He considers that the proceedings against him were delayed as, in case of provisional detention in a psychiatric hospital, there is no court review such as that provided for detention on remand exceeding a period of six months.     THE LAW   1.   The applicant complains about the length of his detention and of the criminal proceedings against him.   He invokes Article 6 of the Convention.   2.   As regards the applicant's complaint about the length of the criminal proceedings against him, the Commission notes that the applicant failed to lodge a constitutional complaint with the Federal Constitutional Court.       However, even assuming exhaustion of domestic remedies, the Commission, having regard to the criteria established in the case-law of the Convention organs, finds that the criminal proceedings against the applicant, which lasted about one and a half years, did not attain an excessive length.       In this respect, the Commission considers in particular that the applicant was suspected of having attempted murder in a mental state excluding his criminal responsibility, and that extensive expert medical evidence had to be taken as regards both his mental illness and the question of his confinement to a psychiatric hospital.     In these circumstances, there is no appearance of a violation of the applicant's right to trial within a reasonable time, as guaranteed by Article 6 para. 1.   3.   The Commission has examined the applicant's further submissions regarding his detention pending the criminal proceedings against him under Article 5 para. 1 of the Convention.     Article 5 para. 1, so far as relevant, provides as follows:     "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:   ...     c.   the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;   ...     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;   ..."   a.   The Commission notes that in July 1992 the applicant was detained on remand on the basis of an arrest warrant issued by the Bruchsal District Court in accordance with the relevant provisions of the German Code of Criminal Procedure.   The arrest warrant stated a strong suspicion that the applicant had in particular attempted murder, and the danger of the applicant's absconding.   The Commission, even assuming exhaustion of domesic remedies in this respect, finds no indication that the applicant's detention on remand did not comply with the requirements under Article 5 para. 1 (c) of the Convention.   b.   The Commission further notes that on 27 January 1993 the Bruchsal District Court ordered the applicant's provisional detention in a psychiatric hospital.   This detention falls to be considered under Article 5 para. 1 (e) of the Convention.     The Commission recalls that three minimum conditions have to be satisfied in order for there to be "the lawful detention of a person of unsound mind" within the meaning of Article 5 para. 1 (e): the individual concerned must be reliably shown to be of unsound mind, i.e. a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (cf. Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 18, para. 39; X v. the United Kingdom judgment, loc. cit., p. 18, para. 40).       In the present case, the applicant's detention in a psychiatric hospital was ordered in the context of criminal proceedings against him in accordance with S. 126 a of the Code of Criminal Procedure which provides for a person's provisional detention in a psychiatric hospital, if there were strong reasons to suppose that the person had committed an offence in a state of mind excluding or diminishing his criminal responsibility and that, therefore, his detention in a psychiatric hospital would be ordered, and if public safety required such a measure.     The Commission finds that these conditions governing the provisional detention in a psychiatric hospital do not appear to be incompatible with the meaning under the Convention of the expression "the lawful detention of persons of unsound mind".     The Commission has next considered whether the manner in which these provisions were in fact applied to the applicant disclose any appearance of a violation of Article 5 para. 1 (e).   However, since the national authorities are better placed to evaluate the evidence adduced before them, they are recognised as having a certain discretion in the matter and the task of the Convention organs is limited to reviewing under the Convention the decisions they have taken (cf. Eur. Court H.R., Winterwerp judgment, loc. cit., pp. 18 and 20, paras. 40 and 46; X v. the United Kingdom judgment, loc. cit., pp. 19-20, para. 43).     The German courts, having regard to a medical expert opinion, found that the applicant was suffering from schizophrenia and probably not criminally responsible and that there was a risk that, due to his mental illness, he would commit further aggressive offences.   This decision was confirmed by the Karlsruhe Regional Court on 19 March 1993, and by the Karlsruhe Court of Appeal on 10 May 1993.   In the context of these appeal proceedings, the courts examined whether the conditions under S. 126 a of the Code of Criminal Procedure continued to be met and had regard to the question of the proportionality of the applicant's continued detention.   The Federal Constitutional Court, in its decision of 8 June 1993, considered in particular that there was no appearance of arbitrariness and that proceedings under S. 126 a of the Code of Criminal Procedure, given their specific features, did not require a review of the length of detention after six months, like in remand proceedings.   In any event, the competent courts in the appeal proceedings brought by the applicant had considered the proportionality of his continued detention.       The Commission finds that in these circumstances the interests of the protection of the public prevail over the individual's right to liberty, justifying his provisional detention in a psychiatric hospital. Thus, there is no appearance of a violation of the applicant's right under Article 5 para. 1 of the Convention.     c.   The Commission further observes that, in the course of his provisional detention in a psychiatric hospital, which lasted about eleven and a half months, the conditions of such detention were reviewed in appeal proceedings in March and May 1993, in accordance with Article 5 para. 4 of the Convention (cf. Eur. Court H.R., X v. the United Kingdom judgment, loc. cit., pp. 22-23, para. 52), and the competent courts also examined the reasonableness of his continued detention.   The absence of a court review of the length of detention as provided for in respect of detention on remand does not, in itself, disclose any appearance of a violation of his right to a judicial control of his detention in the psychiatric hospital.       Consequently, this part of the application is manifestly ill-founded within the meaning of Article 27 of the Convention.     For these reasons, the Commission unanimously     DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber              (M.F. BUQUICCHIO)                (A. WEITZEL)