CASE OF MEGYERI v. GERMANY
Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
C. Russo;N. Valticos
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. 16. The following provisions of the Criminal Code (Strafgesetzbuch) are relevant in the present case. "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." "(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. 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.