F I N A L
AS TO THE ADMISSIBILITY OF
Application No. 13770/88
by Z.M.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 13 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, 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 22 October 1986
by Z.M. against the Federal Republic of Germany and registered on 15
April 1988 under file No. 13770/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to :
- the Commission's partial decision of 12 October 1988 to
declare the remainder of the application inadmissible insofar
as it related to the court proceedings in 1986 concerning the
applicant's request to be released from detention in a mental
hospital;
- the observations submitted by the respondent Government on
10 January 1989;
- the applicant's failure to reply;
- the Commission's decision of 10 July 1989 to strike the
application off its list of cases;
- the applicant's request of 13 November 1989 to restore his
application to the list of cases and his further submissions
of 24 and 27 November 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, submitted by the parties with regard
to the remaining part of the application, may be summarised as follows:
The applicant, born in 1955, is a Hungarian national. Since
he entered the Federal Republic of Germany in 1975 he was repeatedly
in psychiatric treatment. When lodging his application he was
detained in a mental hospital in Düren after a decision by the Cologne
Regional Court (Landgericht) in 1983. In June 1989 he was admitted
for in-patient treatment at a mental hospital in Cologne.
In November 1981 proceedings were instituted against the
applicant with a view to confining him to a mental hospital
(Sicherungsverfahren), and he was provisionally detained in a mental
hospital. On 14 March 1983 the Cologne Regional Court took a final
decision that the applicant be detained in a mental hospital
(Unterbringung in einem psychiatrischen Krankenhaus). The Regional
Court found that the applicant had committed various criminal
offences. However, he could not be held responsible for these
offences on the ground that he suffered from a schizophrenic psychosis
with signs of paranoia.
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.
In September 1984 and August 1985 respectively, the Aachen
Regional Court ordered the applicant's further detention in a mental
hospital. In its decision of 5 August 1985, the Regional Court
suggested that tutelage proceedings be instituted against the
applicant.
On 3 March 1986 the applicant complained to the Aachen
Regional Court that, inter alia, in the above proceedings he had not
been represented by counsel. By letter of 12 March 1986 the Aachen
Regional Court informed the applicant that there was no legal basis
in such cases for detainees to be represented by official defence
counsel.
On 7 July 1986 the Aachen Regional Court dismissed the
applicant's request to be released on probation. The 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 mental hospital. Having heard the
applicant, the Court relied in particular on the expert opinion of two
psychiatrists and a teacher dated 20 June 1986, according to which the
applicant's state of mental health had further deteriorated.
Furthermore the Court considered that the applicant's continued
detention was proportionate to the aim pursued, i.e. the protection of
the general public. Moreover, the Court noted that proceedings with a
view to removing the applicant's legal capacity were pending.
In these and the following appeal proceedings the applicant
was not represented by counsel.
On 2 September 1986 the Cologne Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal (Beschwerde).
On 10 February 1987 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) in this respect on the ground that
it offered no prospect of success. The Court found in particular that
it had so far not been obvious that the applicant could not properly
defend himself - for instance having regard to his illness. The fact
that he had not been represented by official defence counsel 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 defence counsel should, in future, be considered.
On 19 March 1987 the Cologne District Court (Amtsgericht)
decided to place the applicant under guardianship. Having regard to
the 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.
COMPLAINTS
The applicant's remaining complaint concerns the court
proceedings in 1986 relating to his request to be released from
detention in a mental hospital. He invokes Articles 2 to 14, 17 and
18 of the Convention, Articles 1 and 2 of Procotol No. 1 and Article 2
of Protocol No. 4 to the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 October 1986 and
registered on 15 April 1988.
On 12 October 1988 the Commission decided that, in accordance
with Rule 42 para. 2 (b) of its Rules of Procedure, the complaint
relating to the proceedings before the Aachen Regional Court and the
Cologne Court of Appeal in 1986 be brought to the notice of the
respondent Government and that they be invited to submit, within a
time limit of 10 weeks, written observations on the admissibility and
merits of this complaint under Article 5 para. 4 of the Convention.
The Commission declared the remainder of the application inadmissible.
The observations of the respondent Government were submitted
on 10 January 1989.
On 24 January 1989 the applicant was requested to submit
observations in reply before 10 March 1989. In a further letter of
the Secretariat of 29 March 1989, it was noted that he had not
submitted his observations in time, and recalled that he might request
legal aid. Furthermore, the applicant was warned about the
consequences under Rule 44 para. 1 of the Commission's Rules of
Procedure. He was sent a second reminder by registered mail on
26 April 1989. The applicant, whose last letter to the Commission was
dated 1 May 1988, did not react to the above letters from the
Secretariat.
On 10 July 1989 the Commission, in accordance with Rule 44
para. 1 of its Rules of Procedure, decided to strike the application
off its list of cases.
On 13 November 1989 the applicant requested that his
application be restored to the list of cases. He submitted that his
strong medical treatment at hospital and his therapist had prevented
him from replying to the Secretariat's letters. On 27 November 1989
he filed a medical certificate issued by a mental hospital in Cologne
according to which he had been admitted in May 1989 for in-patient
treatment of an indefinite duration. The certificate also stated that
he was for the time being receiving drug therapy (psychopharmakolo-
gische Behandlung) and that since March 1988 he had been treated with
neuroleptic drugs.
THE LAW
I. The Commission is satisfied that, for reasons of health, the
applicant was prevented from duly pursuing his application. It
therefore finds that the circumstances of the present case justify
restoration of his application, insofar as it is related to the court
proceedings in 1986 concerning his request to be released from
detention in a mental hospital, to its list of cases in accordance
with Article 30 para. 3 (Art. 30-3) of the Convention.
II. 1. The applicant complains about the proceedings in 1986
before the Aachen Regional Court and the Cologne Court of Appeal
concerning his further detention in a mental hospital. He submits,
inter alia, that in these proceedings he was not assisted by counsel.
The applicant's complaint falls within the scope of Article 5
para. 4 (Art. 5-4) of the Convention which 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."
2. The respondent Government consider the applicant's
complaint as inadmissible under Article 26 (Art. 26) of the Convention for
non-exhaustion of domestic remedies. They submit that the applicant
failed to request assistance by an official defence counsel in the
proceedings concerned.
It is true that under Article 26 (Art. 26) of the Convention the
Commission may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
The Commission notes that on 12 March 1986, the Aachen
Regional Court, upon a petition by the applicant, informed him that
there was no legal basis for detainees to be assisted by official
counsel in proceedings of the kind in question. Furthermore, the
Federal Constitutional Court, in its decision of 10 February 1987
refusing to accept his constitutional appeal, dealt with the merits of
the applicant's complaint.
In these circumstances the Commission finds that the applicant
has properly exhausted the remedies available to him under German law.
3. The Government further submit that the proceedings in 1986
were in accordance with Article 5 para. 4 (Art. 5-4) of the Convention.
They contend that this provision does not in general guarantee the
right to have free legal assistance. In the present case, an
official counsel was not required by the interests of justice or of
the applicant, who represented himself and had not requested legal
assistance. In particular, the applicant was not obviously unfit to
plead his case due to his mental illness.
The Commission considers that, in the particular circumstances
of the present case, the applicant's complaint about the proceedings
before the Aachen Regional Court and the Cologne Court of Appeal in
1986 raises questions of fact and of law which are of such a complex
nature that their determination requires an examination of the merits.
The application cannot, therefore, be declared manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons, the Commission
1. RESTORES THE APPLICATION, insofar as it is related to
the court proceedings in 1986 concerning the applicant's
request to be released from detention in a mental hospital,
to its list of cases
2. DECLARES THIS PART OF THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy