AS TO THE ADMISSIBILITY OF
Application No. 11457/85
by D.B.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
4 May 1987, the following members being present:
MM C.A NØRGAARD, President
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G.H. THUNE
Sir Basil HALL
Mr F. MARTINEZ
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 February 1984
by D.B. against the Federal Republic of Germany and registered on
13 March 1985 under file No. 11457/85;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in the German
Democratic Republic in 1956. Allegedly after a political conviction
for anti-State propaganda he came to the Federal Republic on
12 December 1978. He now lives in Bonn. In the proceedings before
the Commission he is assisted by Mr. Rolf Marschner, a lawyer
practising in Munich.
After his arrival in the Federal Republic, the applicant had
considerable difficulty to integrate himself in the new surroundings
and to find appropriate work. He first lived in various State hostels
for refugees and received unemployment benefits. In January 1979 he
found a job, but was dismissed after one day. He returned to the
refugee hostel until April 1979 when he found another job. He was
again dismissed after a fortnight. The hostel did not readmit him and
therefore he moved to Bavaria where he found a new job near Garmisch-
Partenkirchen. During an absence of his employer he took cheques
belonging to the latter and cashed them. He fled and attempted
suicide after which he was detained at the mental hospital of Hirsau
for three months (5 July - 28 November 1979).
The hospital carried out investigations as to whether the
applicant had already been in psychiatric treatment in the GDR. It
was confirmed by a report of the psychiatric clinic of Weimar of
4 September 1979 that he had in fact undergone several psychiatric
examinations, inter alia for forensic purposes, and that certain
symptoms of abnormal behaviour had been stated. However, as they were
limited to a hysterical character and lack of social adaptation, no
psycho-pharmacological therapy had been administered.
The applicant's examination in the Hirsau hospital, which
involved inter alia a computer tomography, revealed no signs of
physical damage to the brain. The diagnosis as stated in an expert
opinion of the psychiatrist Dr. Sch. of 11 October 1979 was a
"paranoid psychosis". The applicant claims that this diagnosis was
wrong and that his state of mind as described in the expert opinion
was only due to the neuroleptic drugs administered to him.
After completion of the psychiatric treatment at Hirsau the
applicant was transferred to a rehabilitation centre in Stuttgart
where he continued to receive treatment which, however, was
interrupted after some time.
On 10 January 1980 the applicant presented himself to the
psychiatric clinic of the university of Munich after a further attempt
to commit suicide with drugs. Because of his intoxication he was
transferred to a medical clinic in Munich. During his stay there his
behaviour was peculiar and therefore he was taken back to the
pyschiatric university clinic as an out-patient. However, no mental
disease could be found.
On 21 January 1980 he was transferred to the Day & Night
Clinic for Upper Bavaria because of depressions. He was dissatisfied
with his treatment and left on 28 January 1980, announcing that he
would return to the psychiatric clinic of the university of Munich.
On his arrival there he attempted to commit suicide with drugs and
because of his intoxication was immediately taken to a medical
hospital. The final report of the Day & Night Clinic stated that he
suffered from schizophrenia.
On 29 January 1980 the applicant was taken to the Pyschiatric
District Hospital of Haar near Munich under a committal order of the
police made in accordance with Section 5 para. 1 of the Bavarian
Mental Health (Detention) Act (Verwahrungsgesetz) based in particular
on the danger of suicide. As the applicant declared his consent to a
treatment in the District Hospital no detention order was sought from
a court. However, already on 5 February 1980 the applicant left the
District Hospital whose final report stated that he had been in a
state of "depression and abnormal personality".
On 6 and 7 February the applicant stole the purses of three
women and tried to use their cheque cards. He was arrested by the
police but was not detained because of being unfit for detention. He
then apparently found a job in Starnberg, but soon had difficulties
with his workmates and was threatened with dismissal. On 10 February
he made a fourth attempt to commit suicide with drugs and was taken to
the local hospital of Starnberg which, on 13 February 1980, had him
brought back to the Psychiatric District Hospital of Haar.
On 17 March 1980 the District Court (Amtsgericht) of Weilheim
ordered his provisional detention in this hospital under Section 126a
of the Code of Criminal Procedure (Strafprozessordnung) pending the
trial in the criminal case which had in the meantime been instituted.
The relevant decision (which has not been submitted) was allegedly
based on oral expert advice by the psychiatrist Dr. A of the District
Hospital who stated that the applicant suffered from paranoiac
schizophrenia and a persecution complex. The decision furthermore
stressed that the applicant was dangerous to the public. Following
this decision the applicant was transferred to the District Hospital's
closed department for the criminally insane.
The trial of the criminal case took place on 1 October 1980
before the Regional Court (Landgericht) of Munich II. The Court had
before it a psychiatric expert opinion by Dr. A of 23 September 1980
(38 pages) which allegedly had been prepared without a personal
examination of the applicant by the expert himself. It confirmed the
earlier diagnosis of schizophrenia without there being any signs of
physical brain defects. Although the psychiatric treatment had led to
an improvement this did not mean that the applicant's abnormal
personality had essentially changed. If released he would unavoidably
encounter new difficulties because of his egocentric attitude and lack
of realism. There was a concrete danger of a repetition of criminal
acts although no danger of physical aggressiveness. Only a long-term
rehabilitation programme combined with a psycho-pharmacological
treatment could lead to his resocialisation. A preventive detention
under Section 63 of the Penal Code (Strafgesetzbuch) was therefore
indicated. As an alternative, the expert suggested considering
whether detention under the authority of a guardian (vormundschaftliche
Unterbringung) was sufficient. The conditions for placing the
applicant under guardianship (Entmündigung) were in any event met in
the expert's opinion.
The applicant was represented by an official defence counsel
who allegedly did not defend him properly. In particular he pleaded
contrary to the applicant's wish that he lacked criminal responsibility
because of a mental disease and that he should therefore be committed
to a mental hospital for an indefinite term. The applicant was
allegedly prevented from stating his contrary point of view.
By its decision of 1 October 1980 the Regional Court,
following the above expert advice, ordered the applicant's
detention in a mental hospital under Section 63 of the Penal Code
after having found that he had committed several offences in a state
where he was not responsible for his actions (Section 20 of the Penal
Code), including four offences of theft as well as two offences of
fraud and one of attempted fraud, each time in conjunction with
forgery, and that further similar offences were to be expected, making
him dangerous for the public. In these circumstances the Court
further considered that there was no room to suspend (aussetzen) the
measure under Section 67b of the Penal Code.
The applicant did not appeal against this judgment which
therefore became final.
Various subsequent attempts of the applicant and his lawyers
to obtain a revision of the detention order and his release were
apparently unsuccessful because the treating psychiatrists confirmed
the diagnosis of schizophrenia. The applicant has submitted some of
the medical evidence, including reports of the psychiatrist Dr. W to
the Regional Court of 6 October and 20 November 1981. However, the
relevant court decisions have not been submitted.
As the applicant did not succeed with his judicial remedies he
made petitions to various other authorities including the Bavarian
Diet (Landtag) which, on 19 May 1982, expressed certain doubts
concerning the medical expert opinions underlying the applicant's
detention and recommended the consultation of an independent expert
not attached to the District Hospital where the applicant was
detained. No action was taken by the competent criminal court
following this recommendation.
However, on 1 September 1982 the chamber of the Regional
Court competent for the execution of sentences (Strafvollstreckungs-
kammer) ordered the applicant's conditional release subject to
supervision of his conduct (Führungs- und Bewährungsaufsicht) during a
probationary period of five years as from 16 September 1982. On this
date the applicant was released from the closed department of the
District Hospital and transferred to a sociotherapeutical department.
Nevertheless the applicant was not free because at
the same time the District Court of Munich, acting as guardianship
court (Vormundschaftsgericht), appointed a curator for his supervision
(Aufenthaltspfleger). The further detention of the applicant under
the authority of the curator (vormundschaftliche Unterbringung) until
1 October 1983 was authorised by the guardianship court on
18 October 1982.
The applicant escaped from the sociotherapeutical department
on 15 November 1982 following which the public prosecutor instituted
proceedings for the revocation of the conditional release. In an
expert opinion delivered at the prosecutor's request by the director
of the sociotherapeutical department on 23 November 1982 it was
stated that also in liberty the applicant continued to suffer from the
consequences of his mental disease. The prosecution issued a warrant
of arrest on the basis of which the applicant was apprehended on
14 January 1983. The applicant raised objections, claiming that he
had not violated the probationary conditions nor committed new
criminal offences. His arrest in fact interrupted a situation where
he had settled down in Bruchsal, had reported his residence to the
police, and found a job in his profession as geriatrical nurse.
However, on 26 January 1983 the Regional Court of Munich I
revoked the applicant's conditional release and as from 1 February 1983
he was again sent to the closed department of the District
Hospital. The applicant appealed against the Regional Court's
decision and requested to be examined by an independent expert.
However, he was only examined by another phychiatrist of the District
Hospital, Dr. G, who in her report of 25 April 1983 stated that the
symptoms found confirmed the earlier diagnosis of Dr. A
("hebephrener Residualzustand"), but that there were no signs of
"acute psychotic decompensation". Further psychiatric treatment was
indicated, however the expert considered that it was sufficient to
detain the applicant on the basis of civil law. This would allow a
more flexible approach towards his resocialisation. On the basis of
this expert opinion the Regional Court, on 3 June 1983, ordered the
conditional suspension of the measure under Section 63 of the Penal
Code. On 17 June 1983 the applicant was released from the closed
department of the District Hospital and transferred to another
department for long-term therapy. The civil-law detention under
the authority of the curator apparently continued to apply.
The applicant escaped on 14 July 1983 and went to Augsburg
where he joined a circle for mental sanity (Arbeitsgemeinschaft für
psychische Gesundheit) run by a private protestant organisation
(Diakonisches Werk). On 25 July he misappropriated funds of the
organisation and left. He travelled to Brussels, Athens and London
where he demonstrated before the German Embassy against lack of
support by the authorities in his efforts to be integrated in society.
A German diplomat convinced him to return to the Federal Republic.
His curator was informed and arranged for his detention in the
Psychiatric District Hospital of Kaufbeuren as from 18 August 1983.
A warrant of arrest (Sicherungshaftbefehl) issued by the Regional
Court of Munich I on 30 August 1983 and a further warrant of arrest
issued by the District Court of Augsburg because of the above
misappropriation of funds were not immediately executed because of
this detention.
On 9 November 1983 the Regional Court of Munich I revoked for
the second time the suspension of the applicant's preventive detention
under Section 63 of the Penal Code. The applicant's appeal against
this decision was rejected by the Munich Court of Appeal on
16 December 1983. In execution of the above warrant of arrest of
30 August 1983 the applicant was brought back to the District Hospital
of Haar on 12 December 1983. However, as from 2 February 1984 he was
again detained in the District Hospital of Kaufbeuren.
In connection with the criminal proceedings in Augsburg the
director of this District Hospital, Dr. K, submitted a comprehensive
psychiatric report (82 pages) on 26 March 1984. It came to the
conclusion that the earlier diagnosis of the District Hospital of
Haar, namely that the applicant suffered from schizophrenia, could not
be maintained. There were no signs of actual schizophrenia nor of a
residual syndrome caused by earlier schizophrenia. The applicant
could be described as having an abnormal personality structure
(borderline-syndrome with paranoid and hysterical elements) caused by
chronic psychotraumatic maladjustment to surroundings. Pyschopathic
reactions were stirred up by continuous unfavourable conditions of the
applicant's environment, including his detention in the mental
hospital itself. The applicant clearly had a wish for resocialisation,
but his social integration by way of preventive detention in mental
hospitals was bound to fail in these circumstances and even created a
risk for an aggravation of his mental state. The expert therefore
recommended to expose the applicant to the realities of life and give
him a chance to show that he was able to cope with them with some
social assistance. A reduced criminal responsibility (Section 21) of
the Penal Code could not be excluded, but the applicant should, in
principle, be expected to bear himself all positive and negative
consequences of his rights and duties.
On the basis of this expert opinion and a supplementary
opinion of 24 April 1984 the Regional Court of Kempten (Chamber for
the execution of sentences) decided on 21 May 1984 that, although the
preventive detention under Section 63 of the Penal Code could not be
revoked for legal reasons, it should again be suspended under
Section 67d of the Penal Code subject to a probationary period of
three years. The applicant was ordered to take residence in the
hostel of the above protestant organisation in Augsburg and to comply
with the instructions of the hostel's director, to report to a
probationary officer and not to change his residence without prior
consent of this officer.
On 24 August 1984 the District Court of Augsburg convicted
the applicant of theft and other offences and sentenced him to a
conditional prison sentence of seven months, subject to a probationary
period of four years. The Court found on the basis of the above
expert opinion that the conditions for a preventive detention under
Section 63 of the Penal Code were not met because the applicant did
not suffer from a mental disease susceptible of psychiatric treatment.
The Court further warned the applicant that in future he would be
regarded as fully responsible for his acts.
The applicant subsequently left Augsburg and went to the
Netherlands where he tried to obtain political asylum which, however,
was refused. On 15 May 1985 the public prosecutor applied to the
District Court of Augsburg to revoke the conditional suspension of the
above sentence and to issue a warrant of arrest. The District Court
in fact issued a warrant.
The applicant had in the meantime returned to the Federal
Republic and was arrested in Bonn on 4 June 1985 in connection with an
attempt to cash a cheque which he had forged. He was detained on
remand in connection with this offence for which he was tried by the
District Court of Bonn on 30 August 1985. He was convicted of forgery
and attempted fraud and sentenced to a conditional prison sentence of
eight months. Also this Court used the psychiatric expert opinion of
Dr. K which had already been relied upon by the Regional Court of
Kempten and the District Court of Augsburg. It drew similar
conclusions to those of the latter Court, namely that the applicant
had a reduced criminal responsibility (Section 21 of the Penal Code)
while there was no reason to assume a lack of criminal responsibility
(Section 20). A measure of preventive detention under Section 63 of
the Penal Code was not considered.
Although the District Court of Bonn pronounced a conditional
sentence, the applicant remained in detention in Augsburg until
27 March 1986 serving the earlier sentence imposed by the District
Court of Augsburg whose conditional suspension had in the meantime
been revoked on the ground that he had not complied with the
conditions because he had allegedly failed to report his change of
residence to the probation officer. The applicant could subsequently
show that he had in fact informed the probation officer and in
July 1986 the revocation of the conditional suspension of the sentence
was therefore criticised by the Bavarian Diet to which the applicant
had submitted a new petition. However, there was apparently no
further judicial decision concerning this matter.
After his release the applicant moved to Bonn and concentrated
on steps to obtain the definitive revocation of his preventive
detention ordered in 1980 which was only suspended by the above
decision of the Regional Court of Kempten of 21 May 1984. He claimed
that the expert opinion of Dr. K of Kaufbeuren and the subsequent
court judgments showed that this measure had been unlawful from the
beginning as it had been based on a wrongful pschyiatric expert opinion.
Two lawyers in Bonn advised him in May and July 1986
respectively that there might be a base for claiming compensation
under the Criminal Prosecution (Compensation) Act (Gesetz über die
Entschädigung für Strafverfolgungsmassnahmen), while an official
liability action against the State of Bavaria seemed to be excluded.
On 21 July 1986 the applicant applied to declare the measure
of preventive detention to be without object (erledigt) under
Section 67c of the Penal Code. The matter was referred to the
Regional Court of Augsburg (Chamber for the supervision of sentences)
which, on 7 August 1986, rejected the application as inadmissible on
the ground of res judicata. In the Court's opinion there were no new
relevant facts since the decision of the Regional Court of Kempten of
21 May 1984 which had already had before it the psychiatric opinion
which the applicant now invoked.
The applicant's appeal against this decision was successful.
On 24 October 1986 the Munich Court of Appeal (Oberlandesgericht)
declared the preventive detention and the probationary supervision of
the applicant resulting therefrom as being without object. It found
that there was no res judicata because the Regional Court of Kempten
had only examined the question of whether the measure could be
terminated because the conditions for a successful treatment no longer
existed. It had not examined whether the conditions for imposing the
measure had been lacking from the outset. However, these conditions
in fact had never existed. The diagnosis of schizophrenia by Dr. A
had not been confirmed by later examinations, and it was also in
conflict with earlier statements, e.g. of the psychiatric university
clinic of Munich. The remaining statements of Dr. A were not
sufficient to support a finding that, at the relevant time, the
applicant's responsibility for his actions was reduced (Section 21)
or lacking (Section 20). That a reduced responsibility could not be
excluded was not sufficient to justify a measure of preventive
detention.
In view of this decision, the applicant filed a request on
22 December 1986 with the Regional Court of Munich II to re-open the
proceedings by which his detention in a psychiatric hospital had been
ordered in 1980.
His lawyer submits that only after the re-opening of those
proceedings would there be a chance of obtaining compensation under
the Criminal Prosecution (Compensation) Act. A formal request under
this Act has apparently not yet been made, although the applicant
states that already in March 1986 he applied to be compensated for
wrongful detention. No documents have been submitted in this respect
except for two letters to the Federal Chancellor in which a claim for
compensation is mentioned. In any event no decision has so far been
taken on the compensation issue.
The applicant has in the meantime invited the court expert Dr.
A to recognise his duty to compensate the material and moral damage
caused to the applicant by the wrongful expert opinion. The expert
denied any liability, but informed the applicant that he had forwarded
the claims to his insurance company. Civil court proceedings have not
so far been instituted against the expert in question. The applicant
observes in this context that, according to the case-law of the
Federal Court of Justice, a court-appointed expert cannot be held
liable for damages resulting from an incorrect opinion while,
according to the case-law of the Federal Constitutional Court
(NJW 1979, 305), he is liable to pay compensation in case of gross
negligence. The applicant submits that gross negligence is almost
impossible to prove in the circumstances.
The applicant had laid a criminal information (Strafanzeige)
against the expert in question already on 12 June 1985. However, by a
decision of the Public Prosecutor's Office (Staatsanwaltschaft) at the
Regional Court of Munich I the proceedings were discontinued on
19 July 1985 on the ground that there was no criminally relevant
behaviour. The applicant apparently did not appeal from this decision
under Section 172 of the Code of Criminal Procedure. However, on
31 August 1986 he laid a new criminal information against the
psychiatrists of the Haar District Hospital, Drs. A, W and G, for
issuing incorrect public documents and causing bodily harm. He has not
informed the Commission whether criminal proceedings were actually
instituted.
COMPLAINTS
1. The applicant now complains that his detention in mental
hospitals during almost five years which was ordered by the Munich
Regional Court's judgment of 1 October 1980 lacked justification
because it was based on wrongful medical evidence. This has
subsequently been confirmed by several court decisions. It is further
submitted that this measure was the consequence of relatively minor
offences committed by the applicant in a situation of acute distress
and that it was therefore disproportionate and discriminatory.
The applicant considers that he can still claim to be a victim
of the above measure. Although it was declared to be without object
by the decision of the Munich Court of Appeal of 24 October 1986 this
decision produced effect only ex nunc and did not quash the original
wrong decision. Nor was the important moral and material damage which
the applicant suffered as a result of this measure removed. The
applicant submits in this context that probably no more than a
conditional prison sentence would have been pronounced if the Court
had denied the existence of conditions for imposing preventive
detention under Section 63. The further offences which he committed
were a direct consequence of the unlawful detention which led to an
aggravation of his borderline syndrome. The applicant finally submits
that because of his detention in psychiatric hospitals for almost five
years he now has great difficulty in finding an appropriate job. The
employers only consider the fact of this detention and are not
impressed by the fact that it might have been unlawful. His present
job with a publishing company, which he got through the good services
of the Social Office of the City of Bonn in February 1987, is
limited to a term of two years.
The applicant submits that according to the case-law of the
German courts a claim for compensation under the Criminal Prosecution
(Compensation) Act is excluded in cases where a measure of preventive
detention under Section 63 of the Penal Code has been declared to be
without object. In this respect he refers to a decision of the Hamm
Court of Appeal of 9 July 1986 (EuGRZ 1986, 546). He also considers
that in principle financial compensation is insufficient to provide
just satisfaction for the consequences of his unlawful detention. He
observes that the decision to declare the detention without object
does not lead to erasion (Tilgung) of the measure from the criminal
register under Section 43 para. 3 of the Federal Criminal Register Act
(Bundeszentralregistergesetz). He claims a right to measures for his
full rehabilitation.
The applicant invokes Article 5 paras. 1, 4 and 5 of the
Convention in this respect.
2. The applicant also complains of the revocation of the
conditional suspension of the prison sentence imposed on him by the
Augsburg District Court. He claims that the conditions for revocation
were not met and that his detention was therefore unlawful. The
applicant does not invoke any particular provision of the Convention
in this respect.
THE LAW
1. The applicant first complains that his detention in various
mental hospitals between 1980 and 1984 was unjustified because the
relevant committal orders were based on wrongful psychiatric evidence
stating that he suffered from schizophrenia. New psychiatric reports
of 1984 in fact confirmed that the applicant had never suffered from
schizophrenia and these reports were relied upon in several subsequent
court decisions, including in particular a decision by the Munich
Court of Appeal of 24 October 1986 by which the original committal
order of 1 October 1980 was declared to be without object in view of
the new psychiatric reports.
The Commission considers that despite this latter decision the
applicant can still claim to be a victim, within the meaning of
Article 25 (Art. 25) of the Convention, of a violation of his
Convention rights in connection with his above detention. The effect
of this decision, which operated ex nunc, was limited to terminating
the probationary supervision which still was applicable to the
applicant as a consequence of the committal order. The original
committal order was not revoked or annulled and the applicant did not
obtain any compensation or other redress regarding his claim that the
detention had been unjustified from the outset. He therefore can
still complain of that order.
2. The applicant first refers to Article 5 para. 1 (Art. 5-1) of the
Convention. Insofar as relevant, this provision reads as follows:
1. "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:
...
(e) the lawful detention ... of persons of unsound mind, ..."
In the present case the question might arise whether the
applicant's detention, although ordered "in accordance with a
procedure prescribed by law", was unjustified, in that he was not a
"person of unsound mind" at the relevant time.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of Article 5 (Art. 5) as, under Article 26 (Art. 26) of the Convention, it may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the applicant failed to appeal against the
relevant court decisions. In particular he did not appeal against the
provisional committal order issued by the District Court of Weilheim
on 17 March 1980 under Section 126a of the Code of Criminal Procedure,
or against the final committal order under Section 63 of the Penal
Code made in the judgment of the Regional Court of Munich II of
1 October 1980. It is true that the applicant challenged the
subsequent decisions of the Regional Court of Munich I (Chamber for
the execution of sentences) of 26 January and 9 November 1983
by which the provisional suspension of the committal order was
revoked. However, on no occasion did the applicant appeal to the
Federal Constitutional Court (Bundesverfassungsgericht) as he could
have done in last instance against all of the above decisions,
invoking Article 2 para. 2 and Article 104 of the Basic Law
(Grundgesetz).
The applicant has, therefore, not exhausted the remedies
available to him under German law. Moreover, an examination of the
case does not disclose the existence of any special circumstances
which might have absolved the applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at his disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and this part of
the application must accordingly be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant also invokes Article 5 para. 4 (Art. 5-4) of the
Convention without, however, specifying in any way how he considers that this
provision has been breached. The Commission observes in this respect that the
applicant could and did in fact use certain judicial remedies to challenge his
detention. He has not substantiated that these remedies did not comply with
the requirements of Article 5 para. 4 (Art. 5-4) of the Convention. This part
of the application must accordingly be rejected as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant further invokes Article 5 para. 5 (Art. 5-5) of the
Convention which reads as follows:
"Everyone who has been the victim of arrest or
detention in contravention of the provisions of
this Article shall have an enforceable right to
compensation."
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 (Art. 5-5) of the
Convention (cf. 9920/82, Naldi v. Italy, Dec. 13.3.1984, DR 37, 75).
The applicant submits in this respect that he did not have an
effective domestic remedy at his disposal because the case-law of the
German courts excludes a compensation claim under the Criminal
Proceedings (Compensation) Act in cases where a measure under Section
63 of the Penal Code has been declared to be without object. The
applicant invokes in particular a decision of the Hamm Court of Appeal
of 9 July 1986. However, that case concerned a measure under Section
63 which as such was apparently based on sufficient medical evidence.
The measure was declared to be without object only because it had
become disproportionate due to its length. The applicant's case can be
distinguished from that case. Here the measure under Section 63 was
declared to be without object for an entirely different reason, namely
that there had never been sufficient medical evidence to justify
detention in a mental hospital. The decision of the Hamm Court of
Appeal expressly mentions that in such circumstances a compensation
claim under the above Act might not be excluded. The Commission
further observes that the Convention is part of the domestic law of
the Federal Republic of Germany and that Article 5 para. 5 (Art. 5-5) can
therefore be invoked before the competent domestic courts.
The applicant states that he filed an application for
compensation in March 1986, but he has not submitted a copy of this
remedy and thus has not substantiated that he actually used this
remedy in the form prescribed by the domestic law. It rather appears
from the submissions of the applicant's lawyer that this is not the
case and that the lawyer intends to submit a claim only after the
re-opening of the original committal proceedings. In any event no
decision has as yet been taken by the competent German courts
concerning the compensation issue. The applicant's complaint to the
Commission under Article 5 para. 5 (Art. 5-5) of the Convention is therefore
premature: The applicant has not complied with the conditions of
Article 26 (Art. 26) of the Convention in this respect, and this part of the
application must again be rejected under Article 27 para. 3 (Art. 27-3).
5. The applicant finally complains of the revocation of the
conditional suspension of the seven-month prison sentence imposed on
him by the District Court of Augsburg. He submits that this
revocation was unjustified because the legal conditions were not met.
The Commission considers that it is not required to examine whether
any issue under the Convention, in particular under Article 5 (Art.
5), could arise in this respect. In any event the applicant has again
failed to comply with the conditions of Article 26 (Art. 26) of the
Convention as he apparently did not take any legal remedies before the
competent courts. The fact that he filed a petition to the Bavarian
Diet which was favourably received is irrelevant for the purposes of
Article 26 (Art. 26). This last part of the application must therefore
also be rejected under Article 27 para. 3 (Art. 27-3).
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)