CASE OF STORCK v. GERMANY
Preliminary objection rejected (res iudicata);Violation of Art. 5-1 (placement in private clinic from 1977 to 1979);No separate issue under Art. 5-4 and 5-5;No violation of Art. 5 (stay in private clinic in 1981);Violation of Art. 8 (placement in private clinic from 1977 to 1979);No violation of Art. 8 (stay in private clinic in 1981 and treatment in university clinic);No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Ireneu Cabral Barreto
10. The applicant was born on 30 August 1958 and lives in Niederselters (Germany). 11. The case concerns the applicant’s repeated placement in a psychiatric institution, her stay in a hospital, her medical treatment and her various compensation claims. 12. The applicant is currently 100% disabled and receives an invalidity pension. She claims to be constantly suffering from significant pain, especially in her arms and legs and her vertebral column. She has spent almost twenty years of her life in different psychiatric institutions and other hospitals. 13. From January 1974 to May 1974 (at which time the applicant was 15 years old), and from October 1974 to January 1975 (when she was 16 years old), the applicant was placed in the children and young people’s psychiatric department at Frankfurt am Main University Clinic for seven months at her father’s request. 14. From 29 July 1977 (when she was 18 years old) to 5 April 1979, she was placed in a locked ward (geschlossene Station) at a private psychiatric institution, the clinic of Dr Heines in Bremen, at her father’s request. There had been serious conflicts between the applicant and her parents, following which her father believed her to be suffering from a psychosis. The applicant’s mother had suffered from a paranoid-hallucinatory psychosis. 15. The applicant – who by that time had attained the age of majority – had not been placed under guardianship, had never signed a declaration that she had consented to her placement in the institution, and there had been no judicial decision authorising her detention in a psychiatric hospital. The private clinic of Dr Heines was not entitled to detain patients who were to be kept in accordance with the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below). On 4 March 1979 the police brought the applicant back to the clinic by force after she had attempted to escape. 16. During her forced stay at that clinic, the applicant was unable to maintain regular social contact with persons outside the clinic. When she was three years old, she had fallen ill with poliomyelitis, and following her medical treatment at the clinic she developed post-poliomyelitis syndrome. 17. From 5 April 1979 to 21 May 1980, the applicant was placed in a psychiatric hospital in Gießen. She claimed that she had by chance been saved from having to stay there any longer by a patient in the hospital who had given her accommodation. 18. From 21 January to 20 April 1981, she again received medical treatment at Dr Heines’s clinic, having at that time lost her ability to speak and, according to the doctors, showing signs of autism. 19. On 7 May 1991 the applicant received medical treatment at Dr Horst Schmidt’s clinic for neurology and psychiatry. 20. From 3 September 1991 to 28 July 1992, the applicant received medical treatment (stationäre Behandlung) at Mainz University Clinic for Psychosomatic Medicine and Psychotherapy, a public-law institution, where she regained her ability to speak. 21. From 22 October to 21 December 1992, the applicant was treated in the orthopaedic department of a clinic in Frankfurt am Main and, from 4 February to 18 March 1993, she was treated in the orthopaedic department of a clinic in Isny. 22. On 18 April 1994 Dr Lempp, a professor of paedopsychiatry at Tübingen University and a member of the federal government’s investigating committee, prepared an expert report at the applicant’s request. He indicated that the applicant had “at no point in time suffered from a schizophrenia-type psychosis” (“zu keinem Zeitpunkt lag eine Psychose aus dem schizophrenen Formenkreis vor”) and that her intemperate behaviour had resulted from conflicts with her family. 23. On 6 October 1999 Dr Köttgen, a psychiatrist, submitted a second expert opinion, again at the applicant’s request. Confirming the findings of Dr Lempp, she considered that the applicant had never suffered from an early onset of schizophrenia, but that she had been in the midst of a puberty-related identity crisis (Pubertätskrise) at the relevant time. Because of the wrong diagnosis given at that time, she had for many years received medication already known to have adverse side effects. As the applicant had had poliomyelitis, she would have had to be treated with the utmost caution. In that connection, the situation at Dr Heines’s clinic seemed to have been particularly serious: deprivation of liberty without a judicial decision, absence of a legal basis for the detention, excessive dosage of medication in order to question the applicant, and methods belonging to “black pedagogy” (schwarze Pädagogik). 24. On 12 February 1997 the applicant, on the basis of the expert report by Dr Lempp, lodged an application for legal aid and an action for damages against Dr Heines’s clinic in the Bremen Regional Court. She claimed, firstly, that her detention from 29 July 1977 to 5 April 1979 and from 21 January 1981 to 20 April 1981 had been illegal under German law. Furthermore, the medical treatment she had received had been contraindicated because of her poliomyelitis. She argued that her forcible detention and the medical treatment she had received had ruined both her physical and mental health. 25. It was only at that time, on 24 February 1997, that the applicant was given access to her medical file from Dr Heines’s clinic, despite her previous and repeated requests. 26. On 9 July 1998 the Bremen Regional Court, after a hearing, allowed the applicant’s action for damages, as her detention had been illegal under German law. 27. The Regional Court found that the applicant, who had attained the age of majority, had not been placed under guardianship, and her detention had not been ordered by a district court as provided by the Act of 16 October 1962 of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below). 28. According to the Regional Court, such a detention would only have been legal if the applicant had given her consent, which had not been the case. Firstly, she had not signed the admission form filled in on the day of her initial admission to the clinic. Secondly, she had not given her implicit consent (konkludente Einwilligung) to her placement and treatment at the clinic. The mere fact that on the day of her initial admission she had come to the clinic, accompanied by her father, did not suffice to establish valid consent (wirksame Einwilligung). According to the private clinic’s submissions, it could not be ruled out that, at that time, the applicant had not been in a position to realise the importance and the consequences of her detention (“es ist ... vielmehr nicht auszuschließen, daß die Klägerin zum damaligen Zeitpunkt die Bedeutung und Tragweite der Unterbringung nicht erkennen konnte”). This was due, in particular, to the fact that the applicant had been given very strong medication from the time of her arrival. 29. On that point, the Regional Court concluded as follows: “Even assuming the claimant’s initial consent, it would have lapsed as a result of her undisputed attempts to escape and the need to shackle her. From these times at the latest, which have not been specified any further by the defendant, it would have been necessary to obtain a court order.” (“selbst wenn man doch von einer anfänglichen Einwilligung der Klägerin ausgehen wollte, wäre diese durch die unstreitig erfolgten Ausbruchsversuche der Klägerin und die erforderlich gewordenen Fesselungen hinfällig geworden. Spätestens zu diesen, von der Beklagten nicht näher vorgetragenen Zeitpunkten, wäre die Einholung einer gerichtlichen Anordnung erforderlich gewesen.”) 30. The Regional Court found that, for the second period in which the applicant was placed in the psychiatric hospital (from 21 January to 20 April 1981), she had likewise not consented to her confinement, as she had shown signs of autism and had suffered from temporary loss of speech. Therefore, a court order would also have been necessary for this period. 31. As the applicant was therefore entitled to damages in any event, the Regional Court did not examine the question whether her medical treatment had been adequate or not. 32. The Regional Court also found that the applicant’s compensation claim was not time-barred. Under Article 852 § 1 of the Civil Code (see paragraph 63 below), the limitation period of three years for tort claims (unerlaubte Handlung) started running only when the victim had knowledge of the damage and of the person responsible for it. The court observed that a victim could only be perceived to have that knowledge when he was in a position to bring an action for damages that had sufficient prospects of success. Only from then on could he reasonably be expected to bring that action (“daß ihm die Klage zuzumuten ist”), regard being had in addition to his state of health. The court referred to the case-law of the Federal Court of Justice (Bundesgerichtshof) on the subject. 33. Even if the applicant might already have been conscious of the fact that she had been placed in the clinic against her will, it was established that during her long stays in the psychiatric hospital she had been forced to take very strong medication. When she had been released from the clinic, she had still received medical treatment, and she had always been regarded as mentally ill. The applicant had also suffered from serious physical disorders (schwere körperliche Ausfallerscheinungen) and had, in particular, subsequently lost the ability to speak for more than eleven years (from 1980 to 1991/92). It was not until the end of this medical treatment and after the submission of Dr Lempp’s expert report on 18 April 1994 – in which it had been concluded for the first time that she had never suffered from schizophrenia – that she had become sufficiently aware of her situation, of her possible right to damages, and of the possibility of bringing an action in court. Her application for legal aid, lodged on 12 February 1997, had interrupted the three-year limitation period. Her claim was therefore not time-barred. 34. On 22 December 2000 the Bremen Court of Appeal, following an appeal by the clinic, quashed the judgment of the Bremen Regional Court and dismissed the applicant’s action. 35. The Court of Appeal disagreed with the Bremen Regional Court’s finding that the applicant had illegally been deprived of her liberty during her stay and treatment at the clinic. It noted that the Regional Court had not taken evidence on the issue in dispute. It found that the applicant had conceded in the appeal proceedings that she had to a certain extent voluntarily (“bedingt freiwillig”) consented to her stay in the clinic in 1981. 36. The Court of Appeal left open the question whether the applicant had a compensation claim in tort (Schadensersatzanspruch aus unerlaubter Handlung) on account of her unlawful deprivation of liberty or the damage caused to her body by her medical treatment. In any event, such a claim would be time-barred under Article 852 § 1 of the Civil Code, which provided for a three-year time-limit. The Court of Appeal considered that the applicant had always been conscious of the fact that she had purportedly been detained against her will, independently of the expert opinion submitted by Dr Lempp. She had also been aware that she had allegedly been forced to take antipsychotic medication. Therefore, she had also been in a position to bring an action in court, despite her physical problems. According to the case-law of the Federal Court of Justice, it sufficed to be aware of having suffered damage, without knowledge of the entirety of the damage being necessary. 37. Furthermore, the Court of Appeal found that the applicant was likewise not entitled to bring a compensation claim on a contractual basis (Schadensersatzansprüche aus Vertrag) following her medical treatment. According to the Court of Appeal, the applicant had not sufficiently proved that she had expressly objected to her stay in the psychiatric hospital. Moreover, a contract between the applicant and the clinic concerning the applicant’s medical treatment could also have been concluded implicitly (konkludenter Vertrag). It could not be assumed that this contract had been terminated by each of the applicant’s attempts to escape, which were attributable to her illness (“Es kann nicht angenommen werden, daß dieser konkludent geschlossene Vertrag durch jeden krankheitsbedingten Fluchtversuch beendet worden ist”). In fact, when the clinic prevented the applicant from escaping, it had complied with its duty of care (Fürsorgepflicht). According to the expert opinion of Dr Rudolf, a psychiatrist appointed by the Court of Appeal, the applicant had been seriously ill at that time and in need of medical treatment. 38. Irrespective of this, the Court of Appeal pointed out that the clinic had disputed the applicant’s assertion that she had been detained against her will, so that it remained uncertain whether this assertion was true (“so daß offenbleibt, ob dieser Vortrag überhaupt zutrifft”). 39. Even if a contract concluded between the clinic and the applicant, who had at that time attained the age of majority, could not be presumed, there was in any event a contract between the clinic and the applicant’s father, concluded implicitly for the applicant’s benefit. This contract had run at least from 29 July 1977 to January 1978, when attempts had been made to place her in a different psychiatric institution. 40. Furthermore, the Court of Appeal did not consider that the applicant’s treatment had been erroneous, or that the dosage of her medication had been too high. It relied in this connection on the conclusive expert report by Dr Rudolf. In assessing the opinion expressed by the expert, who had submitted his report both in writing and orally during the hearing, the court thoroughly considered the partly different conclusions reached in the expert reports by Dr Lempp and Dr Köttgen, which had been prepared at the applicant’s request. 41. The applicant also brought an action for damages in the Mainz Regional Court against the doctors who had treated her at Mainz University Clinic and against the clinic itself. She claimed that she had been treated for psychosomatic symptoms, although she had in fact been suffering from post-poliomyelitis syndrome. As the applicant’s medical file concerning her treatment at the clinic had temporarily disappeared, the clinic compiled a substitute file (Notakte) of some 100 pages, to which the applicant’s lawyer was subsequently granted access. 42. In a judgment delivered on 5 May 2000, the Mainz Regional Court dismissed the applicant’s claim. It found that, according to the expert report by Dr Ludolph, chief physician of the neurology clinic at Ulm University, there had not been sufficient evidence that her post-poliomyelitis syndrome and her contemporaneous mental ailments had not been treated correctly. 43. During the appeal proceedings subsequently brought by the applicant in the Koblenz Court of Appeal, the original of the applicant’s medical file was found, and the applicant’s lawyer was granted access to it. 44. In a judgment delivered on 30 October 2001, the Koblenz Court of Appeal confirmed its own judgment by default of 15 May 2001, given on account of the applicant’s failure to attend the hearing (Versäumnisurteil). It upheld the judgment of the Mainz Regional Court. Relying on the expert report by Dr Ludolph and another two reports submitted by orthopaedic experts, the court found in particular that the applicant had neither intentionally nor negligently been given the wrong medical treatment. It stated that the fact that one of the expert reports had been drawn up with the aid of doctors assisting the court-appointed expert did not preclude its use in court. The court-appointed expert had taken full responsibility for the report and had been examined in person in court. Moreover, even assuming that there had been an error in treatment, the applicant, on whom the burden of proof fell in the matter, had not shown that there was a causal link between the error in treatment and the damage to her health. In particular, as there had not in any event been a serious error in treatment, it was not necessary, in accordance with the settled case-law of the Federal Court of Justice, to apply a less strict rule on the burden of proof (Beweiserleichterungen). 45. The applicant lodged an appeal on points of law with the Federal Court of Justice against the Bremen Court of Appeal’s judgment of 22 December 2000 and against the judgments delivered by the Mainz Regional Court on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001. 46. On 15 January 2002 the Federal Court of Justice refused to admit the applicant’s appeal against the judgment of the Bremen Court of Appeal. 47. On 5 February 2002 the five judges of the Federal Court of Justice with jurisdiction to adjudicate on the applicant’s case refused to grant her legal aid for her appeal on points of law against the judgments of the Mainz and Koblenz courts. They argued that her appeal did not have sufficient prospects of success. On 25 March 2002 the same five judges of the Federal Court of Justice dismissed the applicant’s appeal against the judgments of the Mainz and Koblenz courts as inadmissible, the applicant not having submitted grounds for her appeal within the statutory time-limit. 48. On 2 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Bremen Court of Appeal on 22 December 2000 and the Federal Court of Justice on 15 January 2002. Quoting the relevant provisions of the Basic Law, she claimed that her rights to liberty and human dignity and to a fair trial had been violated. She argued that her physical integrity had been infringed. She set out in detail the conditions of her stay in the various psychiatric institutions, the hearings in and the judgments delivered by the Bremen courts and explained why she considered that her rights had not been respected. 49. On 19 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Mainz Regional Court on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001, and against the Federal Court of Justice’s decision of 5 February 2002 not to grant her legal aid. She claimed that her right to a fair trial had been violated and argued that she had been given the wrong medical treatment. She set out in detail how she had been treated at Mainz University Clinic, how the proceedings in the Mainz and Koblenz courts had progressed and why she considered that her constitutional rights had thereby been violated. 50. On 6 March 2002 the Federal Constitutional Court refused to allow the applicant’s constitutional complaints. The court argued that the complaints were not of fundamental importance (“keine grundsätzliche Bedeutung”), as the questions raised by them had already been resolved in its case-law. Furthermore, it was not the function of the Constitutional Court to deal with errors of law allegedly committed by the competent civil courts. The applicant’s complaints did not disclose a violation of her constitutional rights. 51. At the time of the applicant’s first placement in the clinic in Bremen, the rules governing the detention of individuals in a psychiatric hospital were notably laid down in the Act of the Land of Bremen of 16 October 1962 on the detention of mentally insane persons, mentally deficient persons and drug addicts (Gesetz über die Unterbringung von Geisteskranken, Geistesschwachen und Süchtigen). 52. Section 1(2) of the Act provided that it covered cases where confinement took place against the will or without the consent of the person concerned. 53. By section 2 of the Act, a detention was legal if the person concerned, by his conduct towards himself or others, posed a serious threat to public safety or order that could not be otherwise averted. 54. Under the terms of section 3 of the Act, the detention had to be ordered by the district court (Amtsgericht) on a written application by the competent administrative authority. 55. Section 7 of the Act provided that an application for the detention of an individual had to be accompanied by an expert report on the mental illness of the person concerned, submitted by the competent public health officer (Amtsarzt) or a specialist in mental illnesses. This report had to set out whether and to what extent the individual, by his conduct towards himself or others, posed a serious threat to public safety or order. 56. By section 8 of the Act, the district court was obliged to assign counsel to the person concerned if this was necessary for the protection of his interests. 57. Under section 9 of the Act, the court, in principle, had to question the person concerned before reaching its decision. A hearing in person was exceptionally considered unnecessary if it was likely to have negative effects on the state of health of the person concerned or if communication with him was not possible. In such cases, the court had to assign him a guardian ad litem (Verfahrenspfleger), if he had not already been placed under guardianship. 58. An appeal (sofortige Beschwerde) lay against the district court’s decision ordering the detention (section 10 of the Act). After a period of in principle one year, the district court had to decide whether the detention was to be continued. The continuation of the detention could only be ordered on the basis of a new medical expert report (sections 15 and 16 of the Act). 59. On 9 July 1979 a new Act of the Land of Bremen on measures of aid and protection in cases of mental disorders (Gesetz über Hilfen und Schutzmaßnahmen bei psychischen Krankheiten) came into force. It replaced the provisions of the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts of 1962 with a view to securing patients’ rights. 60. Section 34 of the Act, among other things, established a Board of Visitors for Psychiatric Hospitals. Without prior notice and at least once a year, it visits psychiatric hospitals in which persons are detained following a court order in accordance with section 17 of the Act. The task of the Board of Visitors is, in particular, to check whether the rights of the persons so detained are respected, and to give patients the opportunity to raise complaints. Several years after the Act came into force, the Board of Visitors extended its visits to all psychiatric hospitals, whether or not the hospitals detained patients pursuant to a court order. These visits, which went beyond the strict wording of section 34 of the said Act, were carried out with the consent of the institutions concerned. 61. Under the terms of section 30 of the Conduct of Trade Act (Gewerbeordnung), in its version in force since 16 February 1979, private hospitals and private psychiatric institutions needed a licence issued by the competent State authority. The licence could notably be refused if there were facts raising doubts as to the reliability of the institution’s management. 62. By Article 239 § 1 of the Criminal Code, a person who deprives another person of his liberty is to be punished by up to five years’ imprisonment or a fine. Paragraph 3 of the same Article provides that a person who deprives another person of his liberty for more than one week or causes serious damage to the health of the victim by the detention itself or by an act committed during that detention is to be punished with a prison sentence of between one and ten years. Under Articles 223 to 226 of the Criminal Code, assault is punishable by up to ten years’ imprisonment or a fine. A person who unlawfully compels another through force to commit, acquiesce in or omit to carry out an act is punishable by up to three years’ imprisonment or a fine (Article 240 § 1 of the Criminal Code). 63. Compensation claims in tort are governed by Article 823 of the Civil Code, paragraph 1 of which provides that a person who intentionally or negligently causes bodily injury to, or damage to the health of, another person or deprives that person of his liberty, is liable to compensate the victim for the damage so caused. By Article 823 § 2 of the Civil Code, the same obligation to compensate the victim rests with a person who intentionally or negligently violates a legal provision designed for the protection of others, such as Articles 223 to 226, 239 and 240 of the Criminal Code. Under Article 847 § 1 of the Civil Code (in the version in force until 31 July 2002 and applicable to damage caused before that date), damages for pain and suffering can be claimed in the event of injury to the body or damage to health, or in the event of deprivation of liberty. According to Article 852 of the Civil Code, in the version in force at the relevant time, compensation claims in tort are time-barred three years after the date on which the victim learned of the damage and of the person liable to compensate him. 64. At the relevant time, there were no explicit provisions on contractual compensation claims in the Civil Code in cases involving the defective performance of a contract (positive Vertragsverletzung) concluded by a doctor and his patient. However, in accordance with the well-established case-law of the civil courts, a person could claim damages if his contract with another person had deliberately or negligently been performed defectively by that other person and if this had caused damage to him.