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You are here: BAILII >> Databases >> European Court of Human Rights >> MEGYERI v. GERMANY - 13770/88 [1992] ECHR 49 (12 May 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/49.html
Cite as: 15 EHRR 584, [1992] ECHR 49, (1993) 15 EHRR 584
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In the case of Megyeri v. Germany*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 February and
25 April 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 63/1991/315/386. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 19 April 1991,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
an application (no. 13770/88) against the Federal Republic of
Germany lodged with the Commission under Article 25 (art. 25) on
22 October 1986 by a Hungarian citizen, Mr Zoltan Istvan Megyeri.
In the proceedings before the Commission the applicant was
designated by the initial "M."; however, he subsequently consented
to the disclosure of his identity.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Germany recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 5 para. 4 (art. 5-4) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and sought leave, which
was granted by the President of the Court, to be represented by
Prof. K. Bernsmann, a law professor at a German university
(Rule 30). He subsequently indicated that he no longer wished that
lawyer to act for him and sought leave to present his own case; the
President refused, but gave him the possibility of nominating a new
representative within a specified time-limit. As he had not done
so, the President decided that the proceedings should continue on
the basis that the applicant was not taking part therein.
3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)). On 23 April 1991 the President
drew by lot, in the presence of the Registrar, the names of the
other seven members, namely Mrs D. Bindschedler-Robert,
Sir Vincent Evans, Mr C. Russo, Mr N. Valticos, Mrs E. Palm,
Mr I. Foighel and Mr F. Bigi (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43). Subsequently, Mr L.-E. Pettiti and
Mr J. De Meyer, substitute judges, replaced Mrs Bindschedler-Robert
and Sir Vincent Evans, who had resigned and whose successors at the
Court had taken up their duties before the hearing (Rules 2 para. 3
and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Deputy Registrar, consulted the
Agent of the German Government ("the Government") and the Delegate
of the Commission on the organisation of the procedure (Rules 37
para. 1 and 38).
In accordance with the order made in consequence, the
Registrar received, on 9 September 1991, the Government's memorial.
On 10 December, in accordance with Rule 50 read in conjunction with
Rule 1 (k), certain claims under Article 50 (art. 50) of the
Convention were filed on the applicant's behalf by his guardian
(Vormund; see paragraph 12 below); they were supplemented by
additional particulars lodged on 14 February 1992.
By letter of 20 December 1991, the Secretary to the
Commission informed the Registrar that the Delegate would submit his
observations at the hearing.
On 12 February 1992 the Commission filed a number of
documents which the Registrar had sought from it on the President's
instructions.
5. As directed by the President, the hearing took place in
public in the Human Rights Building, Strasbourg, on
26 February 1992. The Court had held a preparatory meeting
beforehand and the President had, on 28 January 1992, granted the
members of the Government's delegation leave to use the German
language (Rule 27 para. 2).
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr H.A. Stöcker, Ministerialrat,
Federal Ministry of Justice, Adviser;
(b) for the Commission
Mr A. Weitzel, Delegate.
The Court heard addresses by Mr Meyer-Ladewig for the
Government and Mr Weitzel for the Commission, as well as replies to
its questions.
AS TO THE FACTS
I. The particular circumstances of the case
6. Mr Megyeri is a Hungarian citizen who has been living in
Germany since 1975.
7. In November 1981, after proceedings had been instituted
against the applicant with a view to his confinement in a
psychiatric hospital, he was provisionally detained in such an
institution.
On 14 March 1983 the Cologne Regional Court (Landgericht),
before which the applicant was represented by officially-appointed
counsel, ordered that he be detained in a psychiatric hospital,
pursuant to Article 63 of the Criminal Code. The court found that
he had performed acts which constituted criminal offences (insulting
behaviour, assault occasioning bodily harm, resisting the police,
causing a traffic hazard and unauthorised departure from the scene
of an accident) but that he could not be held responsible because he
was suffering from a schizophrenic psychosis with signs of paranoia.
Relying in particular on a medical expert's opinion, the court
stated that Mr Megyeri posed a danger to the general public because
it had to be expected that he would commit further serious unlawful
acts.
8. On 7 September 1984 the Cologne Administrative Court
(Verwaltungsgericht), in one of numerous proceedings instituted by
the applicant concerning his detention, declared that he was
incapable of conducting (betreiben) court proceedings himself. The
court considered that his mental illness was so obvious that it was
not necessary to order an expert opinion on the point.
9. On 3 September 1984 and again on 5 August 1985 the Aachen
Regional Court, referring to Article 67 e para. 2 of the Criminal
Code (see paragraph 16 below), directed that the detention should
continue. In the latter decision the court found that Mr Megyeri's
delusions had become more severe and suggested that guardianship
proceedings (Entmündigungsverfahren) be instituted against him.
On 3 March 1986 Mr Megyeri, who had tried to have the
criminal proceedings against him (see paragraph 7 above) reopened,
asked the Aachen Regional Court to replace the lawyer who had acted
for him in those proceedings; he also asked why that lawyer had not
been present when his detention had subsequently been reviewed. The
court informed him in writing, on 12 March, that there was no legal
provision to the effect that counsel had to be officially assigned
to detainees in review proceedings.
10. On 7 July 1986 the Aachen Regional Court again considered
the applicant's possible release on probation under Article 67 e
para. 2 of the Criminal Code and decided against it. Referring to
its decision of 5 August 1985, it found that it was too early to put
to the test whether he would no longer commit offences if he were
not in hospital. It relied in particular on a written report by
three experts, including two doctors from the hospital, according to
which Mr Megyeri's state of mental health had further deteriorated,
he was not willing to undergo treatment and he showed a distinct
propensity towards aggressive behaviour and violence. It also
relied on its own impression of the applicant, formed when it heard
him on 7 July, on which occasion he had made numerous complaints and
claimed to be someone else. Referring to recent case-law of the
Federal Constitutional Court (Bundesverfassungsgericht - see
paragraph 17 below), the Regional Court considered that the
applicant's continued detention was proportionate to the aim
pursued, that is the protection of the public. It also noted that
proceedings with a view to placing him under guardianship were
pending.
On 2 September 1986 the Cologne Court of Appeal
(Oberlandesgericht) dismissed Mr Megyeri's immediate appeal
(sofortige Beschwerde) against the Regional Court's decision.
The applicant was not represented by counsel in the 1986
proceedings concerning his possible release. Whilst he had
previously raised the question of legal assistance (see paragraph 9
above), he apparently did not specifically ask the Regional Court or
the Court of Appeal to assign counsel to him and this point was not
mentioned in their decisions. According to the Agent of the
Government, it was to be assumed, since German law required the
appointment of counsel in certain circumstances, that those courts
had considered the matter of their own motion.
11. On 10 February 1987 a panel of three judges of the Federal
Constitutional Court (which, in accordance with its usual practice
in such cases, had not held a hearing) declined to accept for
adjudication the applicant's constitutional complaint
(Verfassungsbeschwerde) against the decisions of the Regional Court
and the Court of Appeal, on the ground that it did not offer
sufficient prospects of success. The Federal Constitutional Court
considered that there could be no objection under constitutional law
to the fact that the courts had not assigned defence counsel in the
1986 proceedings, since it had not until then been obvious that the
applicant could not defend himself due to his illness (see paragraph
18 below). It added, however, that having regard to the stabilising
clinical situation and the fact that the end of his detention was
not foreseeable, the appointment of an official lawyer would in
future come into the picture (in Betracht kommen wird).
12. On 19 March 1987 the Cologne District Court (Amtsgericht)
decided to place Mr Megyeri under guardianship. After hearing the
applicant and having regard to an expert opinion of July 1986, it
found that he was suffering from a serious mental illness that
prevented him from dealing with his private affairs.
13. In subsequent review proceedings after May 1987 the
applicant was represented by court-appointed counsel. Continuation
of his detention was ordered by the Regional Court on 4 July 1988,
but it reduced to six months the period for a further review as it
was expected that medical treatment would lead to an improvement in
his state of health.
14. On 4 January 1989 the Regional Court, which regarded as
particularly relevant the fact that Mr Megyeri was now under
guardianship, directed that he be released on probation as from
8 May 1989. It fixed a period of three years for supervision of his
conduct and instructed him not to leave specified accommodation
without the supervisory agency's approval.
15. Since then, the applicant has been living in an open ward of
a psychiatric hospital in Cologne. His requests for restoration of
his legal capacity have, to date, been rejected, on the ground that
his condition has not improved.
II. Relevant domestic law
A. Detention in a psychiatric hospital
16. The following provisions of the Criminal Code
(Strafgesetzbuch) are relevant in the present case.
Article 67 d para. 2
(Suspension of detention on probation)
"Where there is no provision for a maximum period ..., the
court shall suspend on probation the further execution of
the detention 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."
Article 67 e
(Review of detention)
"(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 a psychiatric hospital, one year;
- ..."
17. 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.
When deciding whether to suspend on probation the further execution
of such detention, the court has to consider in particular the risk
of significant (erhebliche) 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.
B. Appointment of defence counsel
18. The question of the defence of an accused by counsel is
governed by Article 140 of the Code of Criminal Procedure
(Strafprozessordnung). Paragraph 1 lists a number of specific cases
in which the participation of counsel is obligatory; paragraph 2
provides:
"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 ..."
Paragraph 2 is applied by analogy to review proceedings
under Article 67 e of the Criminal Code.
PROCEEDINGS BEFORE THE COMMISSION
19. In his application (no. 13770/88) lodged with the Commission
on 22 October 1986, Mr Megyeri raised complaints concerning a number
of different sets of proceedings relating to his detention in a
mental institution; he invoked Articles 2 to 14, 17 and 18 of the
Convention (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8,
art. 9, art. 10, art. 11, art. 12, art. 13, art. 14), Articles 1 and
2 of Protocol No. 1 (P1-1, P1-2) and Article 2 of Protocol No. 4
(P4-2).
20. By partial decision of 12 October 1988, the Commission
adjourned its examination of his complaint about the 1986
proceedings before the Aachen Regional Court and the Cologne Court
of Appeal concerning his possible release from detention and
declared the remainder of the application inadmissible. On
10 July 1989 the Commission, having concluded that Mr Megyeri did
not intend to pursue his application, decided to strike it off its
list. However, on 13 February 1990 it restored the aforesaid
complaint to the list and declared it admissible.
In its report of 26 February 1991 (Article 31) (art. 31),
the Commission expressed the unanimous opinion that there had been a
violation of Article 5 para. 4 (art. 5-4) of the Convention, in that
no official lawyer had been appointed to assist the applicant in the
above proceedings.
The full text of the Commission's opinion is reproduced as
an annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 237-A
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
OF THE CONVENTION
21. Before the Commission, Mr Megyeri submitted that the failure
to appoint a lawyer to assist him in the 1986 proceedings before the
Aachen Regional Court and the Cologne Court of Appeal concerning his
possible release had given rise to a violation of Article 5 para. 4
(art. 5-4) of the Convention, which reads:
"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."
The Commission concluded that there had been a breach of
this provision. The Government stated that they understood the
applicant's concern but doubted whether a finding of violation could
be based on reasons such as those given by the Commission. They
recognised, however, that the same result might follow from the
adoption of the "more generalised approach" which they suggested
might be called for, namely that counsel must be appointed in cases
of this kind unless there were special circumstances.
22. The principles which emerge from the Court's case-law on
Article 5 para. 4 (art. 5-4) include the following.
(a) A person of unsound mind who is compulsorily confined in a
psychiatric institution for an indefinite or lengthy period is in
principle entitled, at any rate where there is no automatic periodic
review of a judicial character, to take proceedings "at reasonable
intervals" before a court to put in issue the "lawfulness" - within
the meaning of the Convention - of his detention (see, inter alia,
the X v. the United Kingdom judgment of 5 November 1981, Series A
no. 46, p. 23, para. 52).
(b) Article 5 para. 4 (art. 5-4) requires that the procedure
followed have a judicial character and give 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 proceeding takes place
(see, as the most recent authority, the Wassink v. the Netherlands
judgment of 27 September 1990, Series A no. 185-A, p. 13, para. 30).
(c) The judicial proceedings referred to in Article 5 para. 4
(art. 5-4) need not always be attended by the same guarantees as
those required under Article 6 para. 1 (art. 6-1) for civil or
criminal litigation. None the less, it is essential that the person
concerned should have access to a court and the opportunity to be
heard either in person or, where necessary, through some form of
representation. Special procedural safeguards may prove 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 (see the Winterwerp v. the Netherlands judgment
of 24 October 1979, Series A no. 33, p. 24, para. 60).
(d) Article 5 para. 4 (art. 5-4) does not require that persons
committed to care under the head of "unsound mind" should themselves
take the initiative in obtaining legal representation before having
recourse to a court (see the same judgment, p. 26, para. 66).
23. It follows from the foregoing that where a person is
confined in a psychiatric institution on the ground of the
commission of acts which constituted criminal offences but for which
he could not be held responsible on account of mental illness, he
should - unless there are special circumstances - receive legal
assistance in subsequent proceedings relating to the continuation,
suspension or termination of his detention. The importance of what
is at stake for him - personal liberty - taken together with the
very nature of his affliction - diminished mental capacity - compel
this conclusion.
24. As regards Mr Megyeri's state of mental health, the Court
recalls that the origin of his confinement was the finding by the
Cologne Regional Court on 14 March 1983 - in criminal proceedings in
which he had been represented by officially-appointed counsel - that
he could not be held responsible for his acts because he was
suffering from a schizophrenic psychosis with signs of paranoia
(see paragraph 7 above).
In July 1986 the Aachen Regional Court had before it expert
evidence to the effect that there had been a further deterioration
in his condition, that he was not willing to undergo treatment and
that he showed a distinct propensity towards aggressive behaviour
and violence (see paragraph 10 above). There had, in addition, been
previous court decisions which pointed in the same direction: the
applicant was incapable of conducting court proceedings and his
mental illness was so obvious that no expert opinion on the point
was necessary (Cologne Administrative Court, 7 September 1984; see
paragraph 8 above); his delusions had become more severe and
guardianship proceedings should be instituted (Aachen Regional
Court, 5 August 1985; see paragraph 9 above).
25. One of the issues falling to be determined in the 1986
review was whether, if Mr Megyeri were released on probation, he
would be likely to commit illegal acts similar to those that had
occasioned the original confinement order. In this connection, the
Aachen Regional Court not only considered a report by three experts
but also heard the applicant in person, in order to form its own
impression of him (see paragraph 10 above). It is doubtful, to say
the least, whether Mr Megyeri, acting on his own, was able to
marshal and present adequately points in his favour on this issue,
involving as it did matters of medical knowledge and expertise.
Again, it is even more doubtful whether, on his own, he was
in a position to address adequately the legal issue arising: would
his continued confinement be proportionate to the aim pursued (the
protection of the public), in the sense contemplated in the Federal
Constitutional Court's leading judgment of 8 October 1985 (see
paragraph 17 above)?
26. Finally, the Court notes that by July 1986 the applicant had
already spent more than four years in a psychiatric hospital. As
required by German law (see paragraph 16 above), his confinement was
reviewed by the courts at yearly intervals and the 1986 proceedings
before the Aachen Regional Court formed part of this series (see
paragraphs 9-10 above). Accordingly, whilst different
considerations may apply, as regards the need to appoint counsel,
where a detainee applies for release more frequently than "at
reasonable intervals" (see paragraph 22 (a) above), that was not the
situation here.
27. Nothing in the foregoing analysis reveals that this was a
case in which legal assistance was unnecessary, even if it is
correct that Mr Megyeri did not specifically ask the Aachen Regional
Court or the Cologne Court of Appeal to assign counsel to him in the
proceedings in question (see paragraphs 10 and 22 (d) above).
Nor does the Court perceive any other special circumstances which
would lead it to a different conclusion.
There has therefore been a breach of Article 5 para. 4
(art. 5-4).
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
28. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial
reparation to be made for the consequences of this decision
or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Pecuniary damage
29. On behalf of the applicant his guardian first claimed
compensation, in an amount to be assessed by the Court, for
pecuniary damage in the shape of loss of earnings, since Mr Megyeri
might have been released earlier and then found employment if he had
received legal assistance in the proceedings in question.
30. Bearing in mind that subsequent reviews of the applicant's
detention, in which he was represented by counsel, did not lead to
his release (see paragraph 13 above), the Court cannot assume that
the outcome of the July 1986 review would have been more favourable
to him if a lawyer had been assigned to him on that occasion. It
thus agrees with the Government that no causal link has been
established between the violation of Article 5 para. 4 (art. 5-4)
and the alleged pecuniary damage. By the same token, the Court does
not consider that Mr Megyeri can be regarded as having suffered a
real loss of opportunities on account of the breach.
The claim under this head must therefore be dismissed.
B. Non-pecuniary damage
31. The guardian also sought compensation for non-pecuniary
damage quantified at 25,000 German marks, which figure also took
account of the length of the proceedings.
Whilst recognising that the applicant might have found
himself in an unpleasant situation because of the absence of a
lawyer, the Agent of the Government doubted whether the applicant
would be satisfied with any decision which the Court might take in
accordance with its case-law in the matter of non-pecuniary damage.
The Delegate of the Commission, for his part, considered
that compensation for such damage should be awarded, in an amount to
be assessed by the Court.
32. The applicant must have been left with a certain feeling of
isolation and helplessness by reason of the fact that he was not
assisted by counsel in the 1986 review of his detention. Making an
assessment on an equitable basis, as is required by Article 50
(art. 50), the Court awards him 5,000 German marks under this head.
C. Costs and expenses
33. Finally, the guardian claimed reimbursement of 23,940 German
marks, being the fees of Prof. Bernsmann (21,000 marks) for
representing the applicant before the Commission and in the initial
stage of the proceedings before the Court (see paragraph 2 above)
and value-added tax thereon (2,940 marks).
The Agent of the Government expressed the view that
Prof. Bernsmann had no enforceable claim against the applicant in
respect of his fees, in view of the latter's inability to enter into
contracts. In any event, the amount sought under this head was much
more than could be claimed in comparable domestic proceedings.
The Delegate of the Commission considered that the claim
should be accepted, subject to deduction of any sums received by way
of legal aid; although the figure put forward was rather high, it
was not clearly disproportionate.
34. The Court has examined this issue in the light of the
principles that emerge from its case-law in this area. In its view,
the costs in question must be regarded as having been "actually
incurred" by the applicant: not only did the Government raise no
objection to his representation by Prof. Bernsmann in the Strasbourg
proceedings, but also the inclusion of this item in the claim put
forward by the applicant's guardian indicates that such
representation had the latter's approval. Nor was it suggested by
the Government that those costs had not been "necessarily incurred".
Finally, the Court, which is not bound in this context by domestic
scales or standards, does not consider that the quantum of the fees
can be regarded as unreasonable, having regard to the circumstances
of the case.
The applicant is accordingly entitled to be reimbursed under
this head 21,000 German marks less 6,900 French francs, being the
amount of the legal aid payments made by the Council of Europe in
respect of Prof. Bernsmann's fees; the resulting figure is to be
increased by any value-added tax that may be due.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 para. 4
(art. 5-4) of the Convention;
2. Holds that Germany is to pay to the applicant, within three
months, 5,000 (five thousand) German marks in respect of
non-pecuniary damage and the sum of 21,000 (twenty-one
thousand) German marks less 6,900 (six thousand nine
hundred) French francs, together with any value-added tax
that may be due, in respect of costs and expenses;
3. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 12 May 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar