CEDH · PRESS;GENERAL;ENG — 20 février 2003

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s86AC02D9 { width:333.56pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s75A32C27 { border-collapse:collapse } .s938C1CCA { padding-right:5.4pt; padding-left:5.4pt; vertical-align:top } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s94C36C9A { margin-top:0pt; margin-bottom:0pt; text-align:right; page-break-after:avoid; font-size:12pt } .s6A296D71 { width:7.5pt; display:inline-block } .s672BE378 { width:310.89pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     100   20.2.2003   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Germany, Italy and the United Kingdom   The European Court of Human Rights has today notified in writing the following five Chamber judgments, of which only the friendly-settlement judgments are final: [1]   Section 1     Friendly settlements The applicants in the following three Italian cases complained about their prolonged inability - through lack of police assistance - to recover possession of their apartments and about the duration of the eviction proceedings. They relied on Article 6 § 1 (right to determination of civil rights within a reasonable time) and Article 1 of Protocol No. 1 (protection of property).   The cases have been struck out following friendly settlements in which the following amounts, in euros (EUR), are to be paid for any non-pecuniary damage, pecuniary damage, costs and expenses. ( G.G. v. Italy and Savarese v. Italy are available only in English whereas Bologna v. Italy is available only in French).   (1)     G.G. v. Italy (no. 42414/98) EUR   5,085 (2)     Bologna v. Italy (no. 53231/99) EUR 9,000 (3)     Savarese v. Italy (no. 55673/00) EUR 2,500 (1,250 to each applicant)   Section 3   (4)     Forrer-Niedenthal v. Germany (no. 47316/99) No violation Article 1 of Protocol No. 1 No violation Article 6 § 1 Evamarie Forrer-Niedenthal is a Swiss national who was born in 1957 and lives in Thun (Switzerland).   She is the legal successor ( Rechtsnachfolgerin ) of her grandmother, who was herself one of the joint-heirs to an estate inherited collectively in equal shares ( Erbengemeinschaft ). The estate included a plot of land in Halle in the German Democratic Republic (GDR) on which a pharmaceutical company had its premises. The company was sold on 13 November 1959 for 180,650 East German marks to the Halle-Trotha Institute for the Sugar and Starch Industry ( Institut für Zucker- und Stärkeindustrie ), owned by the GDR, and on 25 May 1960 its land was registered in the Land Register ( Grundbuch ) as a “property of the people” ( Volkseigentum ), although two of the joint-heirs, including the applicant’s grandmother, had not been duly represented at the time of the sale. After German reunification, ownership of the land passed to the Institute for the Sugar and Starch Industry, which had in the meantime become the property of the Federal Republic of Germany (FRG).   The applicant applied to the administrative courts seeking recognition of her title to the land. The administrative courts ruled that the applicant had lost her title to the land by adverse possession ( Ersitzung ) and dismissed her claims. She then applied to the civil courts. In a judgment of 10 October 1997 the Federal Court of Justice ( Bundesgerichtshof ) held that the applicant had not lost her title by adverse possession but ruled that the defects which in her submission vitiated the sale had been cured by section 237(1) of the Introductory Act to the Civil Code ( Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB), as amended by the Law of 17 July 1997 on preserving the modernisation of living space ( Wohnraummodernisierungssicherungsgesetz ), and that the defects in question were not of a nature to make the sale void.   In a decision of 3 July 1998 the Federal Constitutional Court ( Bundesverfassungsgericht ) refused to entertain an appeal by the applicant, holding that section 237(1) of the Introductory Act to the Civil Code did not entail an expropriation but was a rule aimed at ensuring that any defects that might have existed at the time of a property transfer did not remain a basis ( Grundlage ) for the future, and that the objective of the rule was to re-establish legal certainty, while protecting acquired rights ( Bestandsschutz ) and legal stability.   Relying on Article 1 of Protocol No. 1 (protection of property), the applicant submitted that she had been the victim of a retrospective expropriation which had infringed her right to the peaceful enjoyment of her possessions. She further complained, under Article 6 § 1 (right to a fair hearing), that the proceedings had been unfair on account of the FRG’s retrospective change, to her detriment, of the situation that had formerly obtained in the GDR.   The Court noted that there had been interference with the applicant’s right to the peaceful enjoyment of her possessions and that it had been based on section 237(1) of the Introductory Act to the Civil Code. That provision pursued an aim consistent with the general interest, namely re-establishing legal certainty and stability in Germany by preserving acquired rights in cases where property transfers at the time of the GDR making the possessions in question “properties of the people” were vitiated by defects which were only formal or of minor importance. Section 237(1) of the Introductory Act to the Civil Code ensured that such defects would be taken into account if the land could not validly be transformed into a “property of the people” “according to the general legal principles, procedural rules and administrative practice in force”, or if the transfer had been “clearly incompatible with the principles of the rule of law”. The Court further noted that at the material time the joint-heirs had been paid a sum of money. Consequently, they had not had to bear a disproportionate burden.   The Court accordingly considered that the State had not exceeded its margin of appreciation and had preserved a “fair balance” between the interests of the applicant and the general interest, concluding unanimously that there had been no violation of Article 1 of Protocol No.   1.   As regards the complaint under Article 6 § 1, the Court noted that the legislature had intervened during the dispute. The public authorities had given the Law of 17 July 1997 on preserving the modernisation of living space retrospective effect regarding all these property transfers and pending judicial proceedings. That legislation was not specially framed to deal with the applicant’s case but pursued an aim consistent with the general interest, namely to settle these disputes which followed German reunification in order to secure lasting legal certainty and stability in Germany. In the instant case the applicant had been able to challenge the authorities’ refusal to return the property or award her compensation and had been able to present her arguments at the various stages of the proceedings. The Federal Court of Justice had conducted a thorough examination of the circumstances of the case and the Federal Constitutional Court had determined the compatibility with the Basic Law of the legal provision in issue. The applicant had therefore had access to independent courts which had tried her case. In addition, the Court considered that, viewed as a whole, the proceedings complained of had been fair. It accordingly concluded unanimously that there had been no violation of Article 6 § 1 of the Convention. (The judgment is available only in French.)   (5)     Hutchison Reid v. the United Kingdom (no. 50272/99)   Violation Article 5 § 4     No violation Article 5 § 1 Alexander Lewis Hutchison Reid, a United Kingdom national, was born in 1950 and is currently detained in Carstairs Hospital, Lanarkshire.   On 8 September 1967, the applicant, aged 17, was convicted, after a guilty plea, of culpable homicide. The court found that the applicant was suffering from “mental deficiency” warranting his detention. It ordered that he be detained in a mental hospital under a hospital order and made an order restricting his discharge from detention without limit of time.   From no later than 1980, the applicant has not been considered to suffer from a mental deficiency; the sole basis for his detention being a diagnosis of anti-social personality or psychopathic disorder.   Following the introduction of the Mental Health (Scotland) Act 1984 (the 1984 Act), Section 17, a person suffering from a psychopathic or anti-social personality disorder could only be detained where medical treatment was likely to alleviate or prevent a deterioration of his condition. The Sheriff was required to release a restricted patient who was not suffering from a mental disorder making it appropriate for him to be detained in a hospital for medical treatment, or if it was not necessary for the health and safety of the patient or the protection of others that he receive such treatment.   In 1985, the applicant was transferred to an open hospital. On 6   August 1986, he re-offended, was arrested and remanded to prison. He was charged on a summary complaint with the assault and attempted abduction of an eight-year-old child. Psychiatric reports found the applicant to have a personality disorder, but that he was, nonetheless, sane and fit to plead. Accordingly, on conviction of assault and attempted abduction by a Sheriff on 26 September 1986, he was sentenced to three months’ imprisonment.   On completion of his sentence in prison, the applicant was recalled to the State Hospital on the recommendation of a consultant psychiatrist, who found that the incident with the child raised grave doubts concerning the safety to other people of allowing the applicant to be released from institutional care.   The applicant applied unsuccessfully to be discharged from hospital on a number of occasions. Between February 1987 and June 1994 he obtained some 18 reports from six psychiatrists, the majority of which concluded that he did not suffer from a mental disorder justifying his continued detention, as he was not treatable. Between August 1986 and May 1994 further psychiatric reports provided varying opinions as to the applicant’s susceptibility to treatment.   On 19 July 1994 the Sheriff refused to discharge the applicant, finding that, if released, there was a very high risk of the applicant re-offending and that any such offence was likely to have a sexual connotation. He noted that the applicant’s disorder was severe and that it was appropriate for him to be detained in a hospital for medical treatment. No appeal against the Sheriff’s decision was possible.   On 21 February 1996, the applicant lodged a petition in the Outer House of the Court of Session for judicial review of the Sheriff’s decision, which was dismissed.   On 14 June 1996, the applicant renewed his application to the Inner House of the Court of Session, which allowed the appeal and quashed the Sheriff’s decision. They held that the discharge criteria under the 1984 Act required that, for a person suffering from a mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct, the medical treatment must be likely to alleviate or prevent a deterioration in his condition. The Sheriff had, therefore, been obliged to discharge a restricted psychopathic patient who was not treatable.   The Secretary of State appealed to the House of Lords which allowed the appeal on 3   December 1998. In their judgment,   their Lordships held that treatment which alleviated the symptoms and manifestations of the underlying medical disorder of a psychopath was treatment within the meaning of section 17(1), even if the treatment did not cure the disorder itself. Lord Hutton noted the danger which could arise if the Sheriff were obliged to release an untreatable psychopath who might well harm members of the public. The balancing of the protection of the public as against the claim of a psychopath convicted many years ago that he should not continue to be detained in hospital when medical treatment would not improve his condition was an issue for Parliament to decide, not the judges.   The applicant alleged that he was wrongly detained in a mental hospital and that he was not   provided with a prompt or adequate review of the continued lawfulness of his detention.   The European Court of Human Rights was not persuaded that there was anything arbitrary in the decision not to release the applicant in 1994. The unanimous medical evidence was that he suffered from a mental disorder of a psychopathic type manifesting itself in abnormally aggressive behaviour. In the light of the Sheriff’s finding that there was a high risk of his re-offending if released, such offending being likely to have a sexual connotation, the decision not to release could be regarded as justified.   Furthermore, the Court did not consider any issues of arbitrariness to be disclosed by the fact that the grounds on which detention in hospital might be ordered in domestic law had altered over the period during which the applicant had been detained.   Since he was first detained in 1967, considerable time had elapsed and medical, psychiatric and legal developments had, inevitably, occurred. Most recently, the Court noted that the law had been amended to make it clear in cases such as the applicant’s that the fact that the mental disorder was not treatable in clinical terms did not require release where a risk to the public remained.   Nor did the Court consider that the detention of the applicant in a mental hospital offended the spirit of Article 5; it would be unacceptable not to detain a mentally-ill person in a suitable therapeutic environment. The Sheriff found on the basis of the evidence before him that the applicant benefited from the hospital environment.   The Court therefore concluded, unanimously, that there had been no breach of Article 5 § 1 (right to liberty and security).   The Court further found that, insofar as the burden of proof was placed on the applicant in his appeal to establish that his continued detention did not satisfy the conditions of lawfulness, it was not compatible with Article 5 § 4 (right to have lawfulness of detention decided speedily by a court). The Court also found no exceptional grounds justifying the delay in determining the applicant’s application for release. It concluded, unanimously, that there had, therefore, been a violation of Article 5 § 4 in respect of both the burden of proof imposed on the applicant and the delay in the proceedings for release.   The Court found that it was not necessary to consider the applicant’s complaint under Article 13 (right to an effective remedy).   The applicant was awarded EUR 2,000 for non-pecuniary damage and EUR 3,218 for costs and expenses. (The judgment is available only in English.)   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.