X. v. THE GERMANY - 2279/64 [1967] ECHR 6 (31 May 1967)

[هيثم الفقى]

X. v. THE GERMANY - 2279/64 [1967] ECHR 6 (31 May 1967)
THE FACTSWhereas the facts as presented by the Applicant and appearing from thedocuments submitted by him and his lawyers may be summarised asfollows:The Applicant is a German citizen, born in 1924 and living at Münster.He has degrees in political economy and styles himself "socialattorney" (Sozialanwalt). When lodging his application he was detainedin prison at Berlin.In 1962 the Applicant has been charged with numerous acts of libel andslander, false accusation and similar offenses, amounting in all toabout 30 separate charges. Most of his offenses relate, directly orindirectly, to the death of Dr. B, a lawyer of Münster, who was foundshot dead in his home on .. August, 1961. The death certificatedescribed his death as a "private accident" and later the authoritiesdeclared it to be a case of suicide. But certain circumstances arousedthe suspicion of the father and brother of the deceased as well as thatof the Applicant, who had been consulted by them.After unsuccessfully attempting to have charges of murder broughtagainst unknown persons, the Applicant expressed his suspicion in aseries of pamphlets distributed since November, 1962. He alleged thatDr. B had been killed because he knew facts which, if revealed, wouldbe damaging to his partner Dr. P who was Mayor (Oberbürgermeister) ofMünster and also because of the relationships of Mrs. B with other men.He suggested that the authorities had been party to a conspiracy andhad deliberately, and almost completely, veiled the truth, namely thatB was murdered.On .. December, 1962, the body of Dr. B was exhumed and a post-mortemcarried out. On .. and .. January, 1963, the competent judge of theDistrict Court (Amtsgericht) ordered the arrest of B's widow and ofthree other persons on suspicion of murder. This order was, however,set aside on the next day by the Regional Court (Landgericht) ofMünster. In the meanwhile, the Public Prosecutor (Staatsanwaltschaft)of Münster had instituted criminal proceedings against the Applicantas a result of his allegations and the insulting expressions used byhim. On the basis of an expert opinion given by an officialpsychiatrist (Landesmedizinalrat), Dr. A, after a conversation with theApplicant on .. and .. December, 1962, the Public Prosecutor obtainedfrom the District Court an order for the Applicant's committal to amental hospital. However, this order and four subsequent orders, whichwere based partly on Article 126a of the Code of Criminal Procedure(provisional detention of an insane person for reasons of publicsecurity), and partly on Article 81 of that Code (detention for thepurpose of a psychiatric examination), were all set aside by theRegional Court of Münster on appeal (Beschwerde). On .. October, 1963,a sixth order was issued by the District Court providing for apsychiatric examination of the Applicant in a mental hospital over aperiod of 6 weeks. In addition, a warrant for arrest as issued on ..October, 1963, based on the assumption that the Applicant was found tobe sane.The warrant for arrest issued by the District Court of Münstermentioned 16 separate offenses, mainly libel and slander, of which theApplicant was said to be strongly suspected. The warrant then set outthat the Applicant was likely to flee from justice since, up to thattime, he had successfully evaded his psychiatric examination in amental hospital. The Court, however, suspended the execution of thewarrant on certain conditions which were intended to guarantee that theApplicant would be at the disposal of the Court at any time required.On .. October, 1963, the District Court ordered in addition that theApplicant should be brought before the judge in order to make thedeclarations which were the necessary conditions of the suspension ofthe execution of the warrant.On .. October, 1963, however, the Court revoked the conditionalsuspension of execution on the ground that the Applicant had fled. TheApplicant submits that neither he nor his mother nor his lawyer hadeven been informed of the conditional suspension of execution. On ..October, 1963, the Regional Court of Münster rejected an appeal lodgedby the Applicant's lawyer "against the warrant read in conjunction withthe decision of .. October, 1963 (revocation of the conditionalsuspension of the execution of the warrant)".In this decision the Regional Court stated that the Applicant wouldprobably be sentenced to a considerable term of imprisonment or wouldbe committed to a mental hospital if he should prove to be criminallyirresponsible; furthermore on the general presumption that an adultperson is criminally responsible, a warrant for arrest was necessaryas the Applicant had fled from justice and was likely to do so again.A further appeal (weitere Beschwerde) was rejected by the Court ofAppeal (Oberlandesgericht) of Hamm on .. December, 1963, in spite ofcertificates of 7 psychiatrists submitted by the Applicant on .. Mayand .. November, 1963 attesting to his sanity. These included, interalia, an opinion of Prof. Dr. C of Cologne.The Court held that the combination of a warrant for arrest and anorder for an examination in a mental hospital was legally possible as,on the one hand, the circumstances and the preliminary expert opinionof the university lecturer (Dr. habil.) A pointed towards theconclusion that the Applicant had acted in a state of irresponsibilityor reduced responsibility and, on the other hand, the medicalcertificates submitted by the Applicant together with the generalpresumption of the responsibility of adults supported by the hypothesisthat he was of sound mind.The Court also dismissed as being ill-founded the further grounds ofappeal raised by the Applicant's lawyer.

[هيثم الفقى]

The order for the Applicant's psychiatric examination in a mental
hospital under Article 81 of the Code of Criminal Procedure had been
issued by the District Court of Münster one day after the warrant for
arrest, i.e. on .. October, 1963. It provided for an examination in the
mental hospital of the University of Hamburg in view of the doubt
expressed by the Applicant as to the objectivity of medical experts in
North-Rhine Westfalia. This examination was not tot exceed 6 weeks.
The appeal lodged by the Applicant's lawyer against this order was
equally rejected by the Regional Court on .. October, 1963.

The Court stated, as the grounds of its decision, that the great number
of offenses suggested, in view of the Applicant's development, that he
might have committed them in a state of irresponsibility or reduced
responsibility and that, according to the opinion of the medical
expert, the necessary examination could be carried out only during a
period of detention in a mental hospital. It also found that, for this
reason, the medical certificates submitted by the Applicant and
attesting his soundness of mind made no difference.

A constitutional appeal (Verfassungsbeschwerde) lodged by the Applicant
on .. November, 1963, was rejected by the Federal Constitutional Court
on .. December, 1963 (file no. ...) as being manifestly ill-founded.
In addition to the proceedings at Münster, a separate warrant for
arrest against the Applicant was issued by the District Court of Trier.
This warrant was, however, set aside on appeal but it is not clear
whether this was before or after the actual arrest.

The Applicant, who had left Münster in order to prevent his committal
to a mental hospital, was arrested in Berlin on .. April, 1964, and
remanded in custody (Untersuchungshaft). Two applications for release
(Haftbeschwerden) lodged by his lawyers were rejected by the Regional
Court of Münster on .. April, 1964, and on .. June, 1964. A further
appeal (weitere Beschwerde) against the latter decision was dismissed
by the Court of Appeal of Hamm on .. July, 1964. On .. August, 1964,
the District Court of Münster re-examined and confirmed the warrant for
arrest (Haftprüfung) and an appeal (Beschwerde) from this decision, and
from several orders for the seizure of letters, was rejected by the
Regional Court on .. September, 1964.

After his arrest in Berlin the Applicant himself lodged on .. July,
1964 his second constitutional appeal (file no. ...) which, according
to him, was supplemented on .. and .. July, 1964 by written pleadings
from his lawyers (not submitted by him).

In his appeal the Applicant referred to the first constitutional appeal
and complained, in particular, that his arrest had been ordered under
the false and defamatory pretext that he had the intention to flee from
justice. He also complained that in this respect he had not been duly
heard (kein rechtliches Gehör gewährt) either by the Regional Court or
by the Court of Appeal before they had again confirmed, on .. June and
.. July, 1964 respectively, the warrant for his arrest. The ground of
these decisions was that the Applicant was still likely to flee, as he
had previously done, in order to evade his medical examination in a
mental hospital, whereas, in fact, after his examination in a mental
hospital, this could no longer be an excuse.

The Applicant states that his second constitutional appeal has been
declared admissible (zur Entscheidung angenommen) by the Federal
Constitutional Court on .. March, 1966, but that, in spite of
reiterated enquiries on his part, no date for the examination of the
case has yet been fixed.

In the meanwhile, the Applicant had been examined over a period of six
weeks in the Clinic of Psychiatry and Neurology of the Free University
of Berlin. On the basis of this examination the Director of the Clinic,
Professor Dr. S, concluded in an opinion of .. September, 1964,
modified some days later, that the Applicant was criminally
irresponsible (Article 51, paragraph 1, of the Penal Code) and that in
his state of mind, he was liable to commit new offenses.

On the basis of this expert opinion, the District Court of Münster
issued a new order on .. September, 1964, committing the Applicant,
under Article 126a of the Code of Criminal Procedure, to a mental
hospital for the period pending his trial and setting aside the warrant
for arrest.

Under this order the Applicant, who had been taken from Berlin to
Münster on .. September, 1964, was committed on .. October to the
mental hospital of Eickelborn where he was kept until .. January, 1965.

The Applicant appealed against the order of the District Court of
Münster of .. September, 1964 which committed him as a dangerous
offender of unsound mind, to a mental hospital pending his trial
(Article 126a of the Code of Criminal Procedure). The decision was
confirmed by the Regional Court of Münster on .. October, 1964, and a
further appeal was rejected on .. October, 1964 by the Court of Appeal
of Hamm.

The Court referred in its decision to the expert opinion of Professor
S of .. July, 1964 which it considered as being particularly thorough
in spite of a "partly misleading legal qualification of the results of
the examination".

The Applicant states that the expert had recommended in his case an
order of preventive detention (Sicherungsverwahrung) but that this was
a measure which can only be applied to dangerous habitual criminals
after several convictions. He further alleges that the expert had first
concluded that he had acted in a state of reduced responsibility but
that upon a demand of the competent judge made on .. September, 1964,
by telephone, he changed his conclusion to criminal irresponsibility.
Furthermore, this change, which enabled the Court to order the
Applicant's provisional committal to a mental hospital had been
explained by the expert on the ground that he had always misread during
his 30 years of expert activity the text of the relevant provision,
i.e. Article 51, paragraph 1, of the Penal Code. These allegations by
the Applicant are, in part, corroborated by press reports submitted by
him ("Der Spiegel", No. .., and No. ..).

The order of .. September, 1964, for the Applicant's committal to a
mental hospital was again upheld by the Regional Court of Münster on
.. January, 1965, although, according to the Applicant, the expert
Prof. Dr. S had, in the meanwhile, abandoned his point of view.
The Applicant was then examined by two new experts, Prof. Dr. R and
Prof. Dr. N of the University of Heidelberg. In a preliminary opinion
these experts stated on .. February, 1965, that the Applicant was fully
responsible for his acts. Having regard to this opinion, the Regional
Court decided, on .. February, 1965, to set aside the order for his
committal to a mental hospital but to order his detention on remand
granting, however, at the same time his release on bail subject to
certain conditions. After friends had paid the bail the Applicant was,
in fact, released on .. February, 1965, after a total period of 324
days in detention.

On .. April, 1965, the Regional Court, having regard to a further
written opinion by the experts Prof. Dr. R and Prof. Dr. N, informed
the Applicant that he would be tried as being criminally responsible
and not with a view to his committal to a mental hospital.

The trial took place before the Regional Court of Münster from .. May,
1965, to .. April, 1966 and almost 200 witnesses were heard. By a
judgment of .. April, 1966, the Applicant was convicted and sentenced
to two years' imprisonment. On .. April, 1966, he lodged an appeal
(Revision) from this decision but this is still pending before the
Federal Court of Justice (Bundesgerichtshof).

The judgment pronounced against the Applicant by the Regional Court of
Münster on .. April, 1966, sentencing him to two years' imprisonment
was given in writing on .. October, 1966. - The Applicant states,
however, that in view of its length - 950 pages - he is unable to copy
it for the Commission.

Complaints

The Applicant alleges that the judicial authorities of Münster, whom
he had attacked on the ground of their hasty and negligent
investigations in the B case, had tried to silence him by his arbitrary
committal to a mental hospital in spite of the abundant evidence
presented by him proving his full responsibility.

He complains of his detention on remand which he considers unjustified
as, in his submission, he had always been prepared to stand trial in
an ordinary procedure and, on going to Berlin, had only tried to
prevent his committal to a mental hospital.

The Applicant further complains of the unreasonable length of the
proceedings against him (four and a half years up to date) and, in
particular, of the fact that his trial at Münster lasted almost a year.
He submits that, by reason of these extensive proceedings and of his
long detention, he has not been able to earn his living and is left
without any means and is dependent on the financial assistance of
friends. He considers the length of the proceedings as a deliberate
attempt to break his resistance.
He submits that the authorities for this reason are now estopped from
punishing him further (Bestrafungsrecht verwirkt).


The Applicant alleges violations of Articles 1, 5, 6, 8 and 10 of the
Convention. When lodging his Application, he demanded his immediate
release and an immediate trial as well as a compensation for the
damages suffered.

THE LAW

Whereas, in regard to those parts of the Application, in which the
Applicant complains both of the length of the criminal proceedings,
instituted against him [issue under Article 6, paragraph (1)
(Art. 6-1), of the Convention] and of his committal to, and his
detention in a mental hospital [issue under Article 5, paragraph (1)
(e) (Art. 5-1-e), of the Convention], the Commission finds that an
examination of the file in its present state does not give the
information required for determining the question of admissibility;
whereas the Commission, in respect of the issue under Article 5,
paragraph (1) (e) (Art. 5-1-e) had particular regard to the possible
application of the rule regarding the exhaustion of domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention;

Whereas, therefore, the Commission decides, in accordance with Rule 45,
paragraph (3) (b), of its Rules of Procedure, to give notice thereof
to the Federal Government and to invite it to submit its observations
on the question of admissibility; whereas, in the meanwhile, the
Commission decides to adjourn its examination of these parts of the
Application;

Whereas the Applicant further complains of his arrest and detention on
remand; whereas Article 5, paragraph (1) (c) (Art. 5-1-c) of the
Convention permits "the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence";

Whereas, in the present case, it appears that the competent German
Courts, having found that the Applicant was strongly suspected of the
offenses with which he had been charged and was likely to flee from
justice, ordered the Applicant's arrest and detention on remand in
accordance with the provisions of the German Code of Criminal
Procedure;

Whereas the Applicant contests these findings of the German Courts and,
in particular, the statement that he was likely to flee;

Whereas it must be observed that the Commission has no general
competence to examine the question whether, in the proceedings before
the domestic courts, the relevant provisions of the national law have
been interpreted and applied correctly; whereas such an examination can
only be made in an exceptional case where it appears that the domestic
authorities, in interpreting and applying the provisions of the
national law, have acted in bad faith since, in that case, the
detention would not be "lawful" within the meaning of Article 5,
paragraph (1) (c) (Art. 5-1-c), of the Convention (see the Commission's
decision concerning Application No. 2621/65 X, against Netherlands,
Collection of Decisions, Volume 19, page 102); whereas, in the present
case, the Applicant has not furnished any evidence of the existence of
such a situation;

Whereas it follows that his arrest and detention on remand were
"lawful" within the meaning of Article 5, paragraph (1) (c)
(Art. 5-1-c) of the Convention;

Whereas, therefore, his Application, in this respect, is manifestly
ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2)
of the Convention;

Whereas the Applicant also appears to complain of the length of his
detention on remand; whereas Article 5, paragraph (3) (Art. 5-3)
of the Convention provides that "everyone arrested or detained in
accordance with the provisions of paragraph (1) (c) of this Article
(Art. 5-1-c).. shall be entitled to trial within a reasonable time or
to release pending trial";

Whereas the Applicant was arrested and remanded in custody on .. April,
1964; whereas his detention on remand was interrupted by the Court
order of .. September, 1964, committing him provisionally to a mental
hospital on the basis of Article 126a of the Code of Criminal
Procedure; whereas this order was set aside and the Applicant again
remanded in custody on .. February, 1965; whereas the Applicant was,
however, released on bail on the next day;

Whereas during the period from .. September, 1964, to .. February,
1965, he was not kept in detention on remand but detained for
psychiatric reasons under a different court order on the basis of a
different legal provision; whereas the detention forms the subject of
a separate complaint that will be examined under Article 5, paragraph
(1) (e) (Art. 5-1-e), of the Convention and is at present communicated
to the Federal Government for its observations on admissibility;

[هيثم الفقى]

Whereas Article 5, paragraph (3) (Art. 5-3), expressly relates solely
to the rights of persons deprived of their liberty in the circumstances
described in Article 5, paragraph (1) (c) (Art. 5-1-c); whereas it
follows that the period of detention for psychiatric reasons beginning
on .. September, 1964, cannot be taken into consideration for the
purpose of deciding whether or not the Applicant's detention on remand
exceeded a reasonable time within the meaning of Article 5, paragraph
(3) (Art. 5-3);

Whereas the Commission refers in this respect to its decision
concerning Application No. 2219/64, X against the Federal Republic of
Germany (Collection of Decisions, Volume 16, page 56);

Whereas it follows that the only period which is to be considered under
Article 5, paragraph (3) (Art. 5-3), is the period of the Applicant's
detention on remand from .. April until .. September, 1964, i.e.less
than six months;

Whereas, according to the constant jurisprudence of the Commission, the
question whether a period of detention pending trial is "reasonable"
or not cannot be decided in abstracto but must be considered in the
light of the particular circumstances of each case (see Application No.
2077/63, Yearbook VII, page 276; Application No. 2516/65, Collection
of Decisions, Volume 20, page 35);

Whereas in the present case allowance must be made for the large number
of offenses imputed to the Applicant as this could not fail to affect
the time required to conduct the investigation; whereas, furthermore,
the fact that the charges against the Applicant were closely connected
with, and necessitated a new investigation of the cause of the death
of Dr. B that had occurred in 1961, created additional difficulties in
the investigation of the case and added to its complexity;

Whereas the Commission has also taken into account that the period of
the Applicant's detention on remand includes six weeks during which the
Applicant was examined in Berlin as to his criminal responsibility and
that a further delay was created by his transfer from Berlin to
Münster;

Whereas, in view of all these circumstances, the examination of the
case does not disclose, in respect of this complaint, any appearance
of a violation of Article 5, paragraph (3) (Art. 5-3); whereas it
follows that this part of the Application is also manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas the Applicant further complains of a violation of Article 8
(Art. 8) of the Convention; whereas, in this respect, it appears from
the decision of the Regional Court in Münster of .. September, 1964,
which he has submitted, that in July and August, 1964, at least six
letters were confiscated by the District Court; whereas the Applicant
has failed to supply any details as to the addressees or the contents
of these letters and as to the reasons why they had been confiscated;

Whereas the Commission observes that the ordinary control of a
prisoner's correspondence is to be considered as an inherent feature
of imprisonment (see decision on the admissibility of Application No.
2375/64); whereas this control by the prison authorities or by the
competent court may also include the right under certain conditions to
stop letters, for instance, if they tend to influence witnesses in a
case still pending; whereas, in the present case, an examination of the
file as it has been presented by the Applicant including an examination
made ex officio does not disclose any appearance of a violation of the
rights and freedoms set forth in the Convention and in particular in
Article 8, paragraph (1) (Art. 8-1); whereas it follows that this part
of the Application is likewise manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the Applicant finally complains of a violation of Article 10
(Art. 10);

Whereas the Applicant has failed to substantiate this complaint in any
way; whereas an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose any
appearance of a violation of the rights and freedoms set forth in
Article 10 (Art. 10);

Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Now therefore the Commission

1. Adjourns the examination of the Applicant's complaints concerning
both his committal to, and his detention in, a mental hospital [issue
under Article 5, paragraph (1) (e) (Art. 5-1-e)] and the length of the
criminal proceedings against him [issue under Article 6, paragraph (1)
(Art. 6-1).

2. Declares the remainder of the Application to be INADMISSIBLE.