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On 26 January 1983 the order of provisional release was revoked.
An appeal lodged by the applicant was eventually withdrawn and the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)
Full & Egal Universal Law Academy