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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



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