Application No. 13770/88
M.
against
the FEDERAL REPUBLIC OF GERMANY
REPORT OF THE COMMISSION
(adopted on 26 February 1991)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 18) ....................................... 1
A. The application
(paras. 2 - 4) ............................... 1
B. The proceedings
(paras. 5 - 14) .............................. 1 - 2
C. The present Report
(paras. 15 - 19) ............................. 2 - 3
II. ESTABLISHMENT OF THE FACTS
(paras. 20 - 33) ..................................... 4 - 7
A. The particular circumstances of the case
(paras. 20 - 30) ............................. 4 - 5
B. Relevant domestic law
(para. 31 - 34) .............................. 5 - 7
III. OPINION OF THE COMMISSION
(paras. 35 - 47) .................................... 8 - 10
A. Complaint declared admissible (para. 35) ..... 8
B. Point at issue (para. 36)..................... 8
C. Article 5 para. 4 of the Convention
(paras. 37 - 46) ............................. 8 - 10
D. Conclusion
(para. 47) ................................... 10
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 9
APPENDIX II : PARTIAL DECISION OF 12 OCTOBER 1988 ....... 10
APPENDIX III : DECISION TO STRIKE THE APPLICATION
OFF THE LIST OF CASES ..................... 15
APPENDIX IV : FINAL DECISION ON THE ADMISSIBILITY ....... 18
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Hungarian citizen born in 1955. He is at
present at a mental hospital in Cologne. Since November 1990 the
applicant has been represented by Mr. K. Bernsmann, a law professor at
Cologne University.
3. The application is directed against the Federal Republic of Germany.
The Government are represented by their Agent, Mr. J. Meyer-Ladewig,
Ministerialdirigent, of the Federal Ministry of Justice, Bonn.
4. The case relates to German court proceedings to determine
whether the applicant's detention in a psychiatric hospital should be
terminated. In these proceedings the applicant was not assisted by a
lawyer. He invokes Article 5 para. 4 of the Convention.
B. The proceedings
5. The application was introduced on 22 October 1986 and
registered on 15 April 1988.
6. On 12 October 1988, the Commission decided to give notice of the
application, insofar as it concerned the court proceedings in 1986
concerning the applicant's request to be released, to the respondent
Government in accordance with Rule 42 para. 2 (b) of its Rules of
Procedure (former version) and to invite them to present, by
13 January 1989, written observations on the admissibility and merits
of the complaint under Article 5 para. 4 of the Convention. The
Commission also declared inadmissible the remainder of the application,
in which the applicant invoked Articles 2 - 14, 17 and 18 of the
Convention, Articles 1 and 2 of Protocol No. 1 and Article 2 of
Protocol No. 4 to the Convention.
7. The respondent Government submitted their observations on
10 January 1989.
8. The applicant, who had been requested to submit observations
in reply before 10 March 1989, failed to respond to repeated requests
from the Commission and, on 10 July 1989, the Commission decided to
strike the application off its list of cases in accordance with
Rule 44 para. 1 of its Rules of Procedure (former version).
9. On 13 November 1989 the applicant informed the Commission that,
for health reasons, he had been prevented from replying to the Commission's
letters. He made further submissions on 24 and 27 November 1989.
10. On 13 Febuary 1990, the Commission restored to its list of
cases and declared admissible the applicant's complaint relating to
the court proceedings in 1986 concerning his request to be released
from detention in a mental hospital.
11. The parties were then invited to submit any additional
observations on the merits which they wished to make. On 24 April 1990
the respondent Government informed the Commission that they did not find
it necessary to submit any further observations on the merits of the
case. The applicant did not submit any substantial observations on
the merits of the case.
12. On 3 October 1990 the Commission decided to invite the parties
to a hearing on the merits of the application. The Commission also
decided to grant the applicant legal aid.
13. At the hearing which was held on 10 January 1991 the applicant
was represented by Professor Bernsmann; the applicant was also
present. The Government were represented by their Agent, Ministerial-
dirigent Meyer-Ladewig.
14. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. Consultations with the parties took
place between 15 February and 8 May 1990 as well as in January and
February 1991. The Commission now finds that there is no basis on
which such a settlement can be effected.
C. The present Report
15. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J. C. SOYER
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
J. C. GEUS
M. PELLONPÄÄ
16. The text of this Report was adopted on 26 February 1991
and is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
17. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
18. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decisions on the application as Appendices II-IV.
19. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
20. In November 1981 proceedings were instituted against the
applicant with a view to confining him to a psychiatric hospital
(Sicherungsverfahren), and he was provisionally detained in a
psychiatric hospital.
21. On 14 March 1983 the Cologne Regional Court (Landgericht)
took a final decision under S. 63 of the German Criminal Code
(Strafgesetzbuch) that the applicant be detained in a psychiatric
hospital (Unterbringung in einem psychiatrischen Krankenhaus). The
Regional Court found that the applicant had performed acts which
constituted the offences of insult (Beleidigung) contrary to S. 185 of
the Criminal Code, injury (Körperverletzung) contrary to S. 223
para. 1 (1) of the Criminal Code applicable at the time, resisting law
enforcement authorities (Widerstandsleistung) contrary to S. 113
para. 1 of the Criminal Code and various traffic offences. However,
he could not be held responsible for the offences on the ground that
he suffered from a schizophrenic psychosis with signs of paranoia.
22. On 7 September 1984 the Cologne Administrative Court
(Verwaltungsgericht), in one of numerous proceedings instituted by the
applicant in connection with his detention, declared inadmissible the
applicant's request for legal aid on the ground that he was incapable
of taking part in such proceedings. The Administrative Court
considered that it was not necessary to order an expert opinion on
that question, as the applicant's mental illness was so obvious that
the relevant facts could be assessed without expert knowledge.
23. On 3 September 1984 and on 5 August 1985, the Aachen
Regional Court, referring to S. 67 e para. 2 of the Criminal Code,
ordered that the applicant's detention in a psychiatric hospital
should continue. In its decision of 5 August 1985, the Regional Court
found inter alia that the applicant's delusions had become more
severe in the meantime, his thinking had lost any link with reality.
The Court suggested that guardianship proceedings (Entmündigungs-
verfahren) be instituted against the applicant.
24. On 3 March 1986 the applicant complained to the Aachen
Regional Court that, inter alia, he had not been represented by a
lawyer in the above proceedings. On 12 March 1986 the applicant was
told by the Regional Court that there was no legal basis in such cases
for detainees to be represented by official lawyers.
25. On 7 July 1986 the Aachen Regional Court dismissed the
applicant's request for release on probation (S. 67 e para. 2 of the
Criminal Code). The Regional Court, referring also to its previous
decision of 5 August 1985, found that it was too early to put to the
test whether the applicant would no longer commit criminal offences
outside a psychiatric hospital.
The Court relied in particular on a written opinion of 20 June
1986, by three members of the hospital staff, according to which the
applicant's state of mental health had further deteriorated, and on
its own personal impression of the applicant who had been heard at the
hospital on 7 July 1986. The Regional Court stated that, on this
occasion, the applicant had lodged numerous complaints and contended
that he was not identical with the person named M., that he had three
doctor's degrees and was Presiding Judge at the Supreme Military Court
of the United States of America. The Regional Court, referring to
recent case-law of the Federal Constitutional Court (Bundes-
verfassungsgericht), considered that the applicant's continued
detention was proportionate to the aim pursued, i.e. the protection of
the general public. Finally, the Court noted that proceedings with a
view to placing the applicant under guardianship were pending.
26. The applicant was not represented by counsel in these
proceedings or in the appeal proceedings which followed.
27. On 2 September 1986 the Cologne Court of Appeal
(Oberlandesgericht) dismissed the applicant's appeal (Beschwerde).
28. On 10 February 1987 the Federal Constitutional Court refused
to admit the applicant's constitutional complaint (Verfassungs-
beschwerde) on the ground that it offered no prospect of success. The
Court found in particular that it had so far not been obvious, having
regard to his illness, that the applicant could not properly defend
himself. The fact that he had not been represented by official
lawyers in the preceding proceedings could not, therefore, be objected
to under constitutional law. However, having regard to the increasing
symptoms of his illness and the length of his detention, the
appointment of an official lawyer should, in future, be considered.
29. On 19 March 1987 the Cologne District Court (Amtsgericht)
decided to place the applicant under guardianship. Having regard to
an expert opinion of June 1986, the District Court found that the
applicant suffered from a serious mental illness preventing him from
dealing with his private affairs.
30. On 4 January 1989 the Aachen Regional Court ordered that the
applicant be released on probation as from 8 May 1989. The
supervisory conditions attached to this decision included that he
remain on the premises of the hospital where he had been detained
provided suitable accommodation was available. The Court considered
the fact that the applicant was now under guardianship as particularly
relevant.
B. Relevant domestic law
31. S. 20 of the German Criminal Code (Strafgesetzbuch) determines
the exemption from criminal liability by reason of mental or emotional
disturbance as follows:
(German)
"Ohne Schuld handelt, wer bei Begehung der Tat wegen einer
krankhaften seelischen Störung, wegen einer tiefgreifenden
Bewußtseinsstörung oder wegen Schwachsinns oder einer
schweren anderen seelischen Abartigkeit unfähig ist, das
Unrecht der Tat einzusehen oder nach dieser Einsicht zu
handeln."
(Translation)
"Any person who, at the time of commission of the offence, is
incapable of appreciating the unlawfulness of the offence or
of acting in accordance with such appreciation by reason of
a morbid mental or emotional disturbance, by reason of a
profound disturbance of consciousness or by reason of mental
deficiency or some other serious mental or emotional
abnormality, acts without culpability."
32. SS. 63 to 67 g of the Criminal Code concern non-punitive
measures involving deprivation of liberty. S. 63 concerning the
detention in a psychiatric hospital reads as follows:
(German)
"Hat jemand eine rechtswidrige Tat im Zustand der
Schuldunfähigkeit (S. 20) oder der verminderten
Schuldfähigkeit (S. 21) begangen, so ordnet das Gericht die
Unterbringung in einem psychiatrischen Krankenhaus an, wenn
die Gesamtwürdigung des Täters und seiner Taten ergibt, daß
von ihm infolge seines Zustandes erhebliche rechtswidrige
Taten zu erwarten sind und er deshalb für die Allgemeinheit
gefährlich ist."
(Translation)
"Where a person has committed an unlawful act in a state
exempting him from criminal liability (S. 20) or in a
state of diminished responsibility (S. 21), the court
shall order his detention in a psychiatric hospital if the
overall assessment of the offender and of his offence reveals
that, in consequence of his state, he must be expected to
commit serious unlawful acts and therefore poses a danger to
the general public."
As regards the review of such detention, S. 67 d para. 2 and
S.67 e provide:
S. 67 d para. 2
(German)
"Ist keine Höchstfrist vorgesehen ..., so setzt das
Gericht die weitere Vollstreckung der Unterbringung zur
Bewährung aus, sobald verantwortet werden kann zu erproben,
ob der Untergebrachte außerhalb des Maßregelvollzugs keine
rechtswidrigen Taten mehr begehen wird. Mit der Aussetzung
tritt Führungsaufsicht ein."
(Translation)
"Where there is no provision for a maximum period ...,
the court shall suspend the further execution of the
detention on probation as soon as the detainee can
responsibly be allowed out of the psychiatric hospital to
see whether he will desist from further unlawful acts.
Suspension shall be followed by supervision of conduct."
S. 67 e
(German)
"(1) Das Gericht kann jederzeit prüfen, ob die weitere
Vollstreckung der Unterbringung zur Bewährung
auszusetzen ist. Es muß dies vor Ablauf bestimmter
Fristen prüfen.
(2) Die Fristen betragen bei der Unterbringung in einer
Erziehungsanstalt sechs Monate, in einem psychiatrischen
Krankenhaus ein Jahr, in der Sicherungsverwahrung zwei
Jahre."
(Translation)
"(1) The court may at any time review the question of
whether the further execution of the detention should
be suspended on probation. It shall review this before the
expiry of certain periods.
(2) The periods shall be for detention in an alcohol or drug
dependency unit, six months; for detention in a psychiatric
hospital, one year; for detention in preventive detention,
two years."
33. S. 140 of the German Code of Criminal Procedure (Strafprozeß-
ordnung) regulates the cases in which an accused must be defended by
counsel. S. 140 para. 1 lists particular cases; with regard to other
cases, paragraph 2, insofar as relevant, provides:
(German)
"In anderen Fällen bestellt der Vorsitzende auf Antrag oder von
Amts wegen einen Verteidiger, wenn wegen der Schwere der Tat oder
wegen der Schwierigkeit der Sach- oder Rechtslage die Mitwirkung
eines Verteidigers geboten erscheint oder wenn ersichtlich ist,
daß sich der Beschuldigte nicht selbst verteidigen kann ..."
(Translation)
"In other cases, the Presiding Judge, upon request or ex officio,
shall appoint a defence counsel, if, having regard to the
seriousness of the crime or the difficulty of the factual or
legal issues involved, the assistance of a defence counsel
appears to be necessary, or if it is obvious that the accused
cannot defend himself ..."
34. According to case-law of the Federal Constitutional Court
(decision of 8 October 1985 - 2 BvR 1150/80, 2 BvR 1504/82 -
Entscheidungssammlung des Bundesverfassungsgerichts Vol. 70, pp. 297
et seq.) the principle of proportionality governs the detention of a
person in a psychiatric hospital and its continuance. The judge
deciding whether to suspend on probation the further execution of the
detention in a psychiatric hospital has to consider in particular the
risk of considerable criminal offences, the detainee's previous
conduct and criminal behaviour, relevant changes in the circumstances
since his detention was ordered and the detainee's future living
conditions. The longer the detention in a psychiatric hospital lasts,
the stricter the test of proportionality becomes.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
35. The Commisison has declared admissible the applicant's
complaint that the proceedings before the Aachen Regional Court and
the Cologne Court of Appeal in 1986, in which his detention in a
psychiatric hospital was reviewed under S. 67 e of the Criminal Code,
were not in accordance with Article 5 para. 4 (Art. 5-4) of the Convention.
B. Point at issue
36. Accordingly, the issue to be determined is whether there has
been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.
C. Article 5 para. 4 (Art. 5-4) of the Convention
37. Article 5 para. 4 (Art. 5-4) of the Convention provides:
"Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not
lawful."
38. The applicant submits that the court proceedings in 1986,
concerning the review of his detention in a psychiatric hospital, did
not satisfy the requirements under Article 5 para. 4 (Art. 5-4) of the
Convention on the ground that he was not assisted by an official
lawyer.
He considers that these proceedings involved difficult legal
problems, i.e., the proportionality of his continued detention in a
psychiatric hospital and a prognosis as to his dangerousness, and
factual issues which could only be determined after consultation of
the file, in particular the expert opinions. Both aspects required
assistance by a lawyer.
39. The Government submit that the right to an officially
appointed lawyer is only included in the procedural guarantees
afforded by Article 5 para. 4 (Art. 5-4) of the Convention where the
interests of justice so require. They consider that the court, in
review proceedings concerning detention in a psychiatric hospital,
shall appoint an official lawyer in all cases where, in the light of
the particular circumstances, it is obvious that, due to his illness,
the detainee is unable to defend himself.
The Government admit that, in the present case, there are
various reasons to conclude, with hindsight, that assistance by a
lawyer was necessary. They argue, however, that the Aachen Regional
Court heard the applicant and was able to gain its own impression of
his ability to defend himself. It cannot be established that in the
court proceedings in 1986 the necessity of legal assistance was
obvious. Moreover, the applicant did not request an official lawyer.
40. The Commission recalls that in matters of deprivation of
liberty Article 5 para. 4 (Art. 5-4) of the Convention requires a control
procedure which has "a judicial character and gives to the individual
concerned guarantees appropriate to the kind of deprivation of liberty
in question; in order to determine whether a proceeding provides
adequate guarantees, regard must be had to the particular nature of
the circumstances in which such proceedings take place" (cf. Eur.
Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33,
p. 23, para. 57 with reference to the De Wilde, Ooms and Versyp
judgment of 18 June 1971, Series A no. 14, pp. 41, 42, paras. 76 in
fine and 78; Wassink judgment of 7 September 1990, Series A no. 185A,
para. 30 with further reference).
It is one of the principal guarantees of a judicial procedure
for the purposes of the Convention that it is really adversarial and
allows proper participation of the individual concerned (cf. Eur.
Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, p. 32,
para. 66 with further reference). In particular circumstances, it is
essential not only that the individual concerned should have the
opportunity to be heard in person but also that he has the effective
assistance of a lawyer (cf. Eur. Court H.R., Bouamar judgment of 29
February 1988, Series A no. 129, p. 24, para. 60 concerning the
placement of juveniles in a remand prison).
41. With regard to the judicial procedure under Article 5
para. 4 (Art. 5-4), the detention of persons of unsound mind within
the meaning of Article 5 para. 1 (e) constitutes a special category.
Mental illness may entail restricting or modifying the right of access
to a court and the opportunity to be heard, but it cannot justify
impairing the very essence of the right. Indeed, special procedural
safeguards may be called for in order to protect the interests of
persons who, on account of their mental disabilities, are not fully
capable of acting for themselves (cf. Winterwerp judgment, op. cit.,
p. 23, para. 58 and p. 24, para. 60).
42. In the present case the Aachen Regional Court and, upon
appeal, the Cologne Court of Appeal, had to review the applicant's
detention in a psychiatric hospital under S. 67 e of the Criminal
Code. The decisive issue under criminal law was whether the
applicant, having regard to his state of mental health and in
particular the probability of further acts of aggression, would commit
unlawful acts outside a psychiatric hospital. The Courts thereby
had to consider difficult factual questions. In this respect, the
Aachen Regional Court had recourse to a psychiatric expert opinion and
heard the applicant personally. Furthermore, the applicant's case
involved legal issues under constitutional law, namely the question of
proportionality of his continued detention, which had, the provisional
detention in 1981 taken into account, lasted almost five years.
43. As regards the applicant's state of mental health, the
Commission notes that, according to the judgment of the Cologne
Regional Court of 1983, the applicant suffered from a schizophrenic
psychosis with signs of paranoia. The Cologne Administrative Court,
in a decision in 1984, found that the applicant, having regard to his
obvious mental illness, was incapable of instituting administrative
court proceedings related to his detention. In 1985 the Aachen
Regional Court considered that the applicant's delusions had become
more severe and that he had lost any link with reality, and suggested
guardianship proceedings. In 1986, the applicant's state of health
had further deteriorated. At the hearing before the Aachen Regional
Court, as summarised in the Regional Court's decision of 7 July 1986,
the applicant's submissions reflected his grave mental disorder. In
1987 he was placed under guardianship.
44. The Commission, having regard to the course of the German court
proceedings and in particular the Regional Court's reasoning in its
decision of 7 July 1986, finds that the applicant himself could not
effectively argue his case. At the hearing of 7 July 1986 the Aachen
Regional Court only obtained a personal impression of the applicant's
state of health. A lawyer would have had to deal not only with the
important legal aspects of the applicant's case, which necessitated
knowledge of the recent case-law of the Federal Constitutional
Court in these matters. He would also have had properly to present the
relevant facts, in particular with regard to the psychiatric expert
opinion, and to support the applicant in general.
45. In the Commission's opinion it is not for the person detained
as a "person of unsound mind" to request that a lawyer be officially
appointed (cf. mutatis mutandis, Winterwerp judgment, op. cit., p. 26,
para. 66). Moreover, it appears from a letter of the Aachen Regional
Court of 12 March 1986 which was addressed to the applicant in reply
to his earlier submissions that the Court did not further consider the
appointment of an official lawyer to assist the applicant in the
review proceedings before it.
46. In these circumstances, the proceedings before the Aachen
Regional Court and the Cologne Court of Appeal in 1986 did not
offer the fundamental procedural guarantees required under Article 5
para. 4 (Art. 5-4).
D. Conclusion
47. The Commission unanimously concludes that there has been a
violation of Article 5 para. 4 (Art. 5-4)of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
22 October 1986 Introduction of the application
15 April 1988 Registration of the application
Examination of Admissibility
12 October 1988 Commission's decisions (i) to invite
the Government to submit observations
on the admissibility and merits of
part of the application and
(ii) to declare the remainder of
the application inadmissible
10 January 1989 Government's observations
10 July 1989 Commission's decision to strike the
the application off its list of cases
13 February 1990 Commission's decisions (i) to restore
to its list of cases the complaint
relating to Article 5 para. 4 and
(ii) to declare this complaint admissible
Examination of the merits
7 July 1990 Commission's consideration of the
state of proceedings
3 October 1990 Commission's decision to invite
the parties to an oral hearing
10 January 1991 Oral hearing; Commission's
deliberations on the merits
26 February 1991 Final vote and adoption of the Report
Full & Egal Universal Law Academy