CEDH · CASELAW;REPORTS;ENG — 11 janvier 1995

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 18166/91                                    E. M.                                   against                                     Austria                          REPORT OF THE COMMISSION                        (adopted on 11 January 1995)                              TABLE OF CONTENTS                                                                    Page   INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1   PART I   :   STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . 2   PART II :   SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . 4                                INTRODUCTION   1.     This Report relates to the application introduced under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by E. M. against Austria on 31 January 1991.   It was registered on 6 May 1991 under file No. 18166/91.         The applicant was represented by Mr. Walter Riedl, a lawyer practising in Vienna.         The Government of Austria were represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   2.     The application relates to the applicant's committal to short term detention in a mental hospital on the basis of a medical certificate and on the ground that the applicant had threatened a colleague and was found to be an alcoholic.   3.     On 13 October 1993 the Commission (First Chamber) declared the application partially admissible.   4.     The Commission then proceeded to carry out its task under Article 28 para. 1 of the Convention which provides as follows :         "In the event of the Commission accepting a petition referred to       it :         a.    it shall, with a view to ascertaining the facts, undertake       together with the representatives of the parties an examination       of the petition and, if need be, an investigation, for the       effective conduct of which the States concerned shall furnish all       necessary facilities, after an exchange of views with the       Commission ;         b.    it shall at the same time place itself at the disposal of       the parties concerned with a view to securing a friendly       settlement of the matter on the basis of respect for Human Rights       as defined in this Convention."   5.     The Commission (First Chamber) found that the parties had reached a friendly settlement of the case and on 11 January 1995 it adopted this Report, which, in accordance with Article 28 para. 2 of the Convention, is confined to a brief statement of the facts and of the solution reached.         The following members were present when the Report was adopted :         MM.   A. WEITZEL, President            C.L. ROZAKIS            F. ERMACORA            E. BUSUTTIL            A.S. GÖZÜBÜYÜK       Mrs. J. LIDDY       MM.   M.P. PELLONPÄÄ            B. MARXER            B. CONFORTI            N. BRATZA            I. BÉKÉS            E. KONSTANTINOV            G. RESS                                   PART I                           STATEMENT OF THE FACTS   6.     The applicant is an Austrian citizen, born in 1948 and resident in Forstenstein.   7.      On the afternoon of Friday 3 July 1987 the applicant had been committed to a mental hospital against his will at the request of a hierarchical superior, and on the basis of a medical certificate (Parere) by a public health officer (Amtsarzt).   According to the certificate the applicant had "verbally" threatened a colleague in the service, was found to be under the influence of alcohol and there were indications of chronic alcohol abuse.   8.     Three days after the applicant's committal to a mental hospital, the superior in question and two other colleagues reported the incident to the police.   They confirmed that the applicant had acted in a threatening manner.   9.     On 6 July 1987 the applicant was released from the mental hospital as there was no longer any reason to fear that he would be a danger to himself or to others.   An earlier release had apparently not been possible due to the absence of the competent medical director.   10.    In a medical report of 9 July 1987 it is stated that during his arrival interview the applicant stated that he considered the action taken against him to be arbitrary.   He also gave another version of the incident at the office.   As to the therapy and treatment, it is stated that the applicant behaved normally and did not show any signs of withdrawal symptoms.   He furthermore did not show any signs of having hallucinations or mania and therefore did not need any medical treatment.   11.    Summarising, the report states a diagnosis of psychopathy with aggressive tendencies as already discovered in a test of 1985.   As a therapy it is suggested that the applicant give up alcohol and be supervised by a psychotherapist.   12.    The applicant lodged a constitutional complaint with the Constitutional Court (Verfassungsgerichtshof) invoking his right to personal liberty.   He pointed out that no other remedy was given against the measure in question which he considered to be unlawful alleging that he had not been examined by the medical officer and that there had been no circumstances justifying his committal to the hospital.   The remedy was rejected on 27 February 1990.   According to the applicant this decision was served on 1 August 1990.   13.    The court denied a violation of the applicant's right to liberty stating that the measure in question was justified under Section 49 (1) of the Hospital Act (Krankenanstaltengesetz).   This provision allows provisional detention of persons in a mental hospital if a public health officer has certified that the person is a threat to his or her own security or that of others on account of mental illness.   The certificate must not be older than a week.   According to the Constitutional Court such a certificate is not an expert opinion and is not subject to evaluation by the authority which has to decide on the detention.   Rather it is a mere formality and the authority only has to examine whether the certificate is in conformity with the formal requirements of the law.   14.    The Constitutional Court concluded that in view of the certificate of 3 July 1987 there was no reason to doubt the lawfulness of the applicant's committal to a mental hospital.   It was also in the court's opinion irrelevant whether or not the applicant had threatened colleagues and whether or not he had been examined by the medical officer.   It was likewise irrelevant that it did not follow from the medical order whether the committal was considered necessary for the applicant's own security or that of other persons.   The formula used for the medical order contained a standard printed text referring to both possibilities.   According to the court it followed from the fact that the medical officer had not crossed out one of the two alternatives that he considered both alternatives to be given.                                   PART II                              SOLUTION REACHED   15.    Following the decision on the admissibility of the application, the Commission (First Chamber) placed itself at the disposal of the parties with a view to securing a friendly settlement in accordance with Article 28 para. 1 (b) of the Convention and eventually, at the request of the parties submitted to them the following proposal for a friendly settlement.   [Translation]         "1)   The Government of the Republic of Austria will pay to the       applicant the sum of AS 20,000 in compensation for any possible       claims relating to the present application and in addition the       costs incurred by the applicant in the domestic as well as the       proceedings before the Commission.         2)    The applicant declares his application (No. 18166/91) to       have become without object.         3)    The applicant waives any further claims against Austria in       connection with the object of the present application."   [German]         "1)   Die Regierung der Republik Österreich zahlt dem            Beschwerdeführer als Ausgleich für sämtliche etwaigen            Ansprüche im Zusammenhang mit der vorliegenden            Individualbeschwerde einen Betrag von ÖS 20.000 sowie die            ihm sowohl durch das innerstaatliche als auch durch das            Beschwerdeverfahren vor der Kommission entstandenen Kosten.         2)    Der Beschwerdeführer erklärt seine Beschwerde (No.            18166/91) als erledigt.         3)    Der Beschwerdeführer verzichtet auf die Geltendmachung            allfälliger weiterer Forderungen gegen Österreich, die mit            dem Gegenstand der Beschwerde zusammenhängen."   16.    By letter of 11 May 1994 applicant's counsel indicated the amount of costs incurred by the applicant in the domestic and European Commission of Human Rights proceedings, namely a total of AS 58,583.   17.    This letter was communicated to the Austrian Government.   In reply, by letter of 5 September 1994, the respondent Government accepted the above proposal on the understanding that the settlement covers all the applicant's claims against the Austrian Government.   18.    The applicant submitted a signed copy of the friendly settlement declaration on 10 October 1994   19.    At its session on 11 January 1995, the Commission noted that the parties had reached an agreement regarding the terms of a settlement. It further considered, having regard to Article 28 para. 1 (b) of the Convention, that the friendly settlement of the case had been secured on the basis of respect for Human Rights as defined in the Convention.   20.    For these reasons, the Commission adopted the present Report.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                           (C.L. ROZAKIS)