In the case of Herczegfalvy v. Austria,
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 R. Bernhardt,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr S.K. Martens,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 23 April and 31 August 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
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.
10533/83) against the Republic of Austria lodged with the Commission under
Article 25 (art. 25) by Mr Istvan Herczegfalvy, a Hungarian national, on 27 November 1978.
The Commission’s request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria 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 Articles 3, 5 (paras.
1, 3 and 4), 8, 10 and 13 (art. 3, art. 5-1, art. 5-3, art. 5-4, art. 8, art.
10, art. 13).
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 designated the lawyer who would represent him (Rule
30).
The Chamber to be constituted included ex officio Mr F.
Matscher, the elected judge of Austrian 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, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely Mr F. Gölcüklü, Mr
L.-E. Pettiti, Mr C. Russo, Mr R. Macdonald, Mr S.K. Martens, Mr R. Pekkanen
and Mr A.N. Loizou (Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43). Mr R. Bernhardt and Mr J.M. Morenilla, substitute judges,
subsequently replaced Mr Russo and Mr Macdonald, who were unable to take part
in the further consideration of the case (Rules 22 para. 1 and 24 para. 1).
Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of the
Austrian Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant on the organisation of the
procedure (Rule 37 para. 1 and Rule 38). Pursuant to the order made in
consequence, the Registrar received the applicant’s memorial, which
incorporated his claims for just satisfaction (Article 50 of the Convention)
(art. 50), on 16 October and 20 December. On 20 June the Government informed
him that they would not be submitting a memorial.
On 22 October 1991 Mr Ryssdal gave the applicant leave to
use the German language (Rule 27 para. 3).
In accordance with the President’s decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on 21 April 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
- for the Government
Mr H. Türk, Ambassador,
Legal Adviser, Ministry of Foreign
Affairs, Agent,
Mr W. Okresek, Federal
Chancellery,
Mrs E. Schindler, Federal
Ministry of Justice, Advisers;
- for the Commission
Mr J.-C. Soyer, Delegate;
- for the applicant
Mr H. Hoffman, Rechtsanwalt,
Counsel.
The Court heard addresses by them.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
Mr Istvan Herczegfalvy is a Hungarian citizen who has lived
in Austria since 1964. He currently resides in Vienna.
A. The proceedings
From 13 May 1972 to 13 May 1977 he served two prison
sentences in succession, following convictions pronounced by the Vienna Regional
Criminal Court (Landesgericht für Strafsachen) and confirmed in part by the
Supreme Court (Oberster Gerichtshof), inter alia for assaults on his wife,
clients of his television repair business and public officials.
The Inner Vienna District Court (Bezirksgericht Wien Innere
Stadt) on 23 December 1975 and the Vienna Regional Civil Court (Landesgericht
für Zivilrechtssachen), acting as guardianship court (Pflegschaftsgericht), on
3 November 1977 declared the applicant partly incapacitated (beschränkt
entmündigt) and appointed an adviser (Beistand) for him. They did so on the
basis of a psychiatrist’s report which had been drawn up following numerous
complaints by him about prison conditions.
On 9 August 1983 the District Court appointed a new adviser,
who has acted as such since then. According to a ruling of the guardianship
court of 19 July 1984, his position was equivalent as from 1 July 1984 to that of a curator (Sachwalter) within the meaning of Article 273 (3), sub-paragraph
3, of the Civil Code (see paragraph 54 below).
In the meantime, further prosecutions were brought against
Mr Herczegfalvy for assaults on warders and fellow prisoners and for serious
threats against judges.
On 10 May 1977 the Regional Court ordered that once he had
finished serving his sentence on 13 May (see paragraph 9 above) the applicant
should remain in detention under Article 180 (2), sub-paragraphs 1 and 3, of
the Code of Criminal Procedure (see paragraph 40 below), as there was reason to
fear that he might attempt to abscond and might commit other offences. The
applicant unsuccessfully appealed to the Review Chamber (Ratskammer) of the Regional Court and to the Vienna Court of Appeal (Oberlandesgericht), whose rulings were
given on 18 May and 21 June respectively. The pre-trial detention
(Untersuchungshaft) was confirmed by the presiding judge of the Regional Court on 2 November 1977.
In accordance with the opinions of several experts, the
presiding judge on 9 January 1978 ordered Mr Herczegfalvy’s provisional placement
(vorläufige Unterbringung) in an institution for mentally ill offenders
(Article 438 of the Code of Criminal Procedure; see paragraph 44 below). The
order was confirmed by the Review Chamber on 6 March and the Court of Appeal on
19 April 1978, and the applicant was transferred to the special prison at
Mittersteig, Vienna.
According to the psychiatrists who examined him, he was
suffering from paranoia querulans, which was equivalent to a mental illness and
meant that he was not responsible for his acts; he was extremely aggressive and
incapable of understanding that his behaviour was unlawful, and there was a
risk that attendance at the trial could harm his health.
Following these reports, the public prosecutor’s office amended
the indictment on 15 June 1978 and now sought Mr Herczegfalvy’s detention
rather than conviction. From that date the detention in issue was based on
Article 429 (4) of the Code of Criminal Procedure (see paragraph 44 below). The
applicant’s appeal against the amended indictment was dismissed by the Court of
Appeal on 30 August 1978.
The hearing before the Regional Court took place on 9 and 10 January 1979. It had previously been necessary to adjourn a hearing arranged for 14
December 1976 because the case-file had been lost, to adjourn a hearing of 3
May 1977 because of the applicant’s request for further witnesses to be called,
a hearing of 25 October 1977 because the presiding judge was absent, one of 2
November 1977 because fresh evidence had been produced, one of 6 March 1978
because of mistakes in sending out summonses, and one of 5 April 1978 because
the applicant had spat in the presiding judge’s face, which had led to the
indictment being amended (see paragraph 13 above).
On 10 January 1979 the court found that the charges against Mr
Herczegfalvy had been proved and ordered him to be detained under Article 21
(1) of the Criminal Code (see paragraph 45 below), on the grounds that he was
dangerous and not criminally responsible for his acts. The court relied on the
opinions of three psychiatrists who had each diagnosed paranoia querulans which
from 1975 at least had been equivalent to a mental illness.
The applicant brought an application for a declaration of
nullity (Nichtigkeitsbeschwerde) to the Supreme Court. The Regional Court
decided, however, that pending the decision he should remain provisionally
detained under Article 429 (4) of the Code of Criminal Procedure, but in
prison, on the psychiatrist’s recommendation.
On 28 June 1979 the Regional Court, relying on section 50
of the Hospitals Law, ordered that the detention should be continued and that
the applicant should be transferred as a matter of urgency to a psychiatric
hospital, so that the treatment he required could be carried out. Mr
Herczegfalvy stayed there from 29 June to 23 July 1979 and was then returned to the prison.
The Vienna Court of Appeal, to which the applicant had
appealed, held on 29 August 1979 that it had no jurisdiction: as Article 429
(4) of the Code of Criminal Procedure was the only provision which could apply,
it was for the Review Chamber of the Regional Court to hear the appeal.
On 5 September 1979 the Review Chamber upheld the detention
in issue. Applying Article 429 (4) of the Code of Criminal Procedure, it
ordered Mr Herczegfalvy to be sent to the Vienna psychiatric hospital so that
he could receive urgent medical and socio- and psycho-therapeutic treatment
there, which was essential inter alia because of the hunger strike he had
carried on since 2 August 1979. On 10 September 1979 he was admitted to ward 23 of that hospital, and stayed there until his release on 28 November 1984.
The applicant’s appeal against this decision was dismissed by
the Vienna Court of Appeal on 8 October 1979.
In the meantime the Supreme Court had on 3 October 1979 varied the judgment of 10 January 1979 in part (see paragraphs 14-15
above), quashed the detention order and remitted the case to the Regional Court.
On 4 December 1979 Mr Herczegfalvy requested his release.
On 14 December the investigating judge informed him that he continued to be
detained in accordance with Article 429 (4) of the Code of Criminal Procedure.
At that judge’s request, the psychiatric hospital submitted a
report dated 17 January 1980 expressing the opinion that it was not possible to
place the applicant in ordinary pre-trial detention, as his aggressive
behaviour was still causing danger to those around him.
Pursuant to Article 429 (4), the Review Chamber and the Court
of Appeal extended the detention in question in 1980.
After hearings on 20 March and 9 April 1980 the Regional
Court, to which the case had been remitted (see paragraph 18 above), found that
the charges against Mr Herczegfalvy - which included further serious threats
against a judge on 24 December 1979 - had been proved and ordered him to be
detained in an institution for mentally ill offenders under Article 21 (1) of
the Criminal Code. It based its decision on the judgment of 10 January 1979, the three psychiatric reports on which it had been based (see paragraph 14 above),
and the opinions of the authors of the reports, who had appeared at the hearing
and stated that despite certain improvements there had been no fundamental
change in the situation.
As the applicant had withdrawn his appeal and application for a
declaration of nullity in writing on 30 October 1980 and at a hearing on 6
November, the judgment was on the latter date declared binding by a final order
(Endverfügung), which set the date of 1 October 1981 for the next judicial
review of the detention (Article 25 (3) of the Criminal Code; see paragraph 46
below).
The applicant subsequently challenged the validity of his
declarations. He said that he had made them only with a view to his
repatriation to Hungary, which was discussed on 6 November 1980 but did not come about.
On 8 February 1982 the Regional Court, acting under Article
21 (1) of the Criminal Code, extended Mr Herczegfalvy’s detention, as a
psychiatric report produced at the request of that court stated that he was a
dangerous person. The court took its decision under Article 25 (3) of the
Criminal Code, after an official of the psychiatric hospital had stated to the
court that the annual review of the lawfulness of the detention should have
taken place on 1 October 1981 at the latest (see paragraph 20 above).
On 13 July, 19 September and a date in October 1983 the
applicant requested his release, pointing out that the period for carrying out
the annual review had expired on 8 February 1983. On receiving the first of
these applications, the court consulted a psychiatrist, who submitted a report
on 22 October recommending the applicant’s release subject to supervision (see
paragraph 33 below).
An application to exercise its supervisory jurisdiction
(Dienstaufsichtsbeschwerde) was made to the Court of Appeal, which ordered the Regional Court to reach a decision speedily; on 16 February 1984 the latter court ordered a further extension of the detention in issue. Taking into account the opinions
of the psychiatric expert and the director of the hospital, filed on 25 January 1984, it considered that there had been no fundamental change in Mr
Herczegfalvy’s mental state. He was still suffering from paranoia querulans,
and if released would undoubtedly refuse to follow the necessary course of
treatment; he would consequently be likely to bring numerous complaints or even
carry out the threats he had made, in particular those against the prison staff
(see paragraph 33 below).
On 4 April 1984 the Court of Appeal dismissed the applicant’s
appeal and confirmed that the requirements for his release under Article 47 (2)
of the Criminal Code were not satisfied.
Mr Herczegfalvy made further applications for release on 6
June and 23 September 1984. He was conditionally released on 28 November in
accordance with the court’s decision of 14 November, itself based on a
psychiatric report dated 14 September (see paragraph 34 below). The court found
that the applicant’s paranoia had admittedly worsened, but that it was
primarily due to his detention (Haftquerulanz); the vexatious complaints and
petitions (Rechtsquerulanz) did not constitute a danger within the meaning of
Article 21 of the Criminal Code; since being detained the applicant had behaved
with genuine aggressiveness on a few occasions only; although the possibility
could not be excluded of his becoming aggressive in the event of frustration,
his psychiatric history did not permit the conclusion that his abnormal
personality would induce him to commit criminal offences; moreover, continued
psychiatric treatment or treatment by drugs was not considered necessary by the
expert, although it was recommended.
B. The medical treatment
On being returned to prison after his stay in the Vienna
psychiatric hospital from 29 June to 23 July 1979 (see paragraph 16 above), Mr
Herczegfalvy had begun a hunger strike on 2 August 1979 as a protest against
his detention and the refusal to give him his files. He collapsed on 28 August
and was transferred to a clinic where he received intensive medical care. On 10 September 1979 he was transferred back to the Vienna psychiatric hospital, where he
remained until his release on 28 November 1984 (see paragraph 23 above).
As the applicant was in an extremely weak state when
returned there, the director of the hospital ordered him to be force fed,
pursuant to section 8 (3) of the Hospitals Law (see paragraph 51 below). The
applicant refused all contact and refused to have any medical examination or
treatment, and was also given sedatives against his will (three doses of 30mg
each of Taractan IM); on 14 and 15 September 1979 he was attached to a security
bed, the net and straps of which he succeeded in cutting through. On 17
September he was given a different neuroleptic (Sordinol IM), as infiltrations
had appeared. He stopped refusing food on 27 September 1979, after being allocated a single room and being given some of his files.
Mr Herczegfalvy again went on hunger strike from 26
November to 13 December 1979, on which date he allegedly eventually agreed to
be fed through a tube (Sondenernährung) once daily. However, he later denied
that his consent had been validly given.
In view of the deterioration of his physical and mental
state, he was injected by force with 90mg of Taractan on 15 January 1980, in order to bring about a state of somnolence (Dämmerschlaf) in which it would be
possible to treat him by means of perfusions. Since he had resisted this with
violence, the emergency team had had to overpower him. On 18 January he was
transferred to the intensive care unit, as he showed symptoms of pneumonia and
nephritis; he stayed there until 30 January 1980.
He had not made a complete recovery when he left, and he
still needed treatment with antibiotics and neuroleptics. On his return to the
closed unit he was handcuffed and a belt placed around his ankles because of
the danger of aggression and the death threats he was making; the restraints
were not removed until 14 February 1980. According to the Government, their
position was changed regularly, in order to avoid nervous paralysis, and on 12
February he had agreed to be fed by a woman doctor. The applicant stated,
however, that other belts had been put around his thighs and stomach and had
been untied for the first time only on 2 February; in order to obtain his files
and writing materials with which to write his complaints, he had continued his
hunger strike without interruption, and had been artificially fed throughout
this period.
From 19 February 1980 the applicant calmed down and behaved
in a more co-operative manner. Although he continued to insult the staff from
time to time, he agreed to communicate with those around him and consented to
being fed through a tube by a female doctor twice weekly. On 22 February he was
given paper and a ballpoint pen.
Following a dispute about his correspondence, Mr
Herczegfalvy was forbidden on 27 December 1980 to watch television. As his
physical resistance to the forced administration of neuroleptics had frequently
been in vain and had even led to injuries (loss of teeth, broken ribs and
bruises), he brought a complaint of assault on each occasion that he was given
medicaments. These letters, which he claimed had not been communicated to the
relevant authorities, filled six binders; they were given to him on his
discharge.
During this period he continued to refuse, at least in
part, to take nourishment other than through a tube, but on 12 November 1982 he stated that he no longer needed to be fed artificially, as a doctor had persuaded
him to end his hunger strike by explaining to him that it was endangering his
life. Hospital reports had, however, stated that he appeared to be adequately
nourished.
In an opinion of 5 March 1983 an expert considered that conditional release of the applicant would be possible if certain accompanying
psychiatric and social measures were taken. In his view, Mr Herczegfalvy’s
behaviour was much improved, so that there was now virtually no danger.
After a further series of complaints which were regarded as
vexatious, the Regional Court consulted the hospital on 28 July 1983 as to the applicant’s possible release.
On 22 October 1983 an expert noted the progress which the
applicant had made and expressed the opinion that troublesome behaviour did not
constitute a risk within the meaning of Article 21 of the Criminal Code.
However, in a letter of 25 January 1984, the director of the
hospital advised the court not to terminate Mr Herczegfalvy’s detention; as the
treatment carried out, based on medication, had only a sedative effect, the
possibility could not be excluded that if he were released, he would again
become aggressive and dangerous.
The Regional Court thereupon on 16 February 1984 refused to release the applicant (see paragraph 22 above).
He eventually recovered his liberty on 28 November 1984, after a further expert report dated 14 September 1984 (see paragraph 23 above).
C. The control of correspondence
While in detention Mr Herczegfalvy addressed an extremely large
number of petitions and complaints to various authorities, relating inter alia
to his medical treatment and the proceedings brought by him. As he considered
that he did not have the necessary money, he refused on several occasions to
put stamps on his letters, or sent them to the Ministry of Justice for that
purpose. In order to stem this flow of correspondence, he was deprived from
time to time of writing materials, and his unstamped letters were frequently
returned to him, with the exception of those addressed to the public
authorities, in particular the courts.
With respect to the letters written at the psychiatric
hospital, the hospital management had agreed with the applicant’s curator that
they would be transmitted to him regularly and it would be for him to decide
whether it was necessary to send them on; this system would apply to all
letters other than those to his lawyer, his adviser and the guardianship court.
Mr Herczegfalvy has complained that even those letters were not all sent on.
When he left the hospital the applicant was given six
binders containing the originals of these letters and also about fifty sealed
letters; the postal register showed that the latter had never been sent to
their addressees, namely the police, the public prosecutor’s office and the
courts.
D. The restrictions on access to information
Mr Herczegfalvy also claimed that he had been deprived of
reading matter, radio and television for long periods during his detention, in
particular from 15 January 1980 to the end of February of that year and from 27 December 1980; from 15 June 1981 there had been no television set in his cell or in the
ward. He alleged that these measures had been taken for disciplinary purposes
only.
According to the Government, these measures were based on
section 51 (1) of the Hospitals Law (see paragraph 51 below), had been
justified for therapeutic reasons, and had lasted for a short time only on each
occasion.
II. RELEVANT DOMESTIC LAW
A. Deprivation of liberty
1. Pre-trial detention
Article 180 (1) and (2) of the Code of Criminal Procedure,
in the version in force at the time, permits the pre-trial detention of a
person (where there are serious reasons for suspecting him of having committed
a criminal offence) if there is a danger of absconding, collusion or repetition
of offences.
The risk of absconding cannot be presumed if the accused is
liable to a penalty of not more than five years’ imprisonment, is living in
normal conditions and has a permanent address in Austria, unless he has already
attempted to abscond (Article 180 (3)).
The accused can bring an application for release at any
time (Article 194 (2)). Under Articles 194 and 195 the request is examined by
the Review Chamber of the Regional Court at a hearing in private, in the
presence of the accused or his lawyer. If the accused or the public prosecutor’s
office appeals to the Court of Appeal, the hearing also takes place in private,
in the presence of a member of the principal public prosecutor’s office, but in
the absence of the accused and his lawyer.
If no such application is made by the accused, the Review
Chamber of its own motion reviews the detention when it has lasted for two
months or where three months have passed since the last hearing and the accused
has no lawyer (Article 194 (3)).
After the definitive indictment or the fixing of the hearing
date for the trial, these review hearings cease. Decisions on the continuation
of the detention are now taken by the trial court during the hearing and by the
Review Chamber, sitting in private, at other times (Article 194 (4)).
Detention on remand is terminated at the latest at the time
when a person who has been convicted begins to serve his sentence; the time
spent in detention on remand is automatically deducted from the sentence
(Article 38 of the Criminal Code).
2. Provisional placement in an institution for mentally ill
offenders
In two cases specified in Articles 429 (4) and 438 of the
Code of Criminal Procedure, pre-trial detention may take the form of placement
in an institution for mentally ill offenders:
Article 429 (4)
"If one of the reasons for detention specified in Article
180 (2) or (7) exists, or if the person concerned cannot remain at liberty
without there being a danger for himself or other persons, or if medical
observation of him is necessary, an order shall be made for his provisional
detention in an institution for mentally ill offenders or for his admission to
a public hospital for mental illnesses ..."
Article 438
"If there are sufficient reasons for presuming that the
conditions in [Article] 21 (2) ... of the Criminal Code are fulfilled, and if
reasons for detention (Article 180 (2) and (7)) exist, but the accused cannot
without difficulty be detained in the prison of a court, an order shall be made
that detention on remand is to take the form of provisional placement in an
institution for mentally ill offenders ..."
3. Placement in an institution for mentally ill offenders
(preventive measures)
Under Article 21 of the Criminal Code:
"(1) If a person commits an offence punishable with a term
of imprisonment exceeding one year, and if he cannot be punished for the sole
reason that he committed the offence under the influence of a state of mind
excluding responsibility (Article 11) resulting from a serious mental or
emotional abnormality, the court shall order him to be placed in an institution
for mentally ill offenders, if in view of his person, his condition and the
nature of the offence it is to be feared that he will otherwise, under the
influence of his mental or emotional abnormality, commit a criminal offence
with serious consequences.
(2) If such a fear exists, an order for placement in an
institution for mentally ill offenders shall also be made in respect of a
person who, while not lacking responsibility, commits an offence punishable
with a term of imprisonment exceeding one year under the influence of his
severe mental or emotional abnormality. In such a case the placement is to be
ordered at the same time as the sentence is passed."
The duration of these preventive measures is governed by
Article 25 of the Criminal Code, which states that:
"(1) Preventive measures are to be ordered for an
indefinite period. They are to be implemented for as long as is required by their
purpose ...
(2) The termination of preventive measures shall be decided by
the court.
(3) The court must of its own motion examine at least once
yearly whether the placement in an institution for mentally ill offenders ...
is still necessary.
..."
B. Conditions of detention
1. Rules governing pre-trial detention
Article 184 of the Code of Criminal Procedure provides
that:
"Pre-trial detention is intended to counteract the dangers
specified in Article 180 (2). In accordance with the statutory provisions and
the regulations based thereon, persons in pre-trial detention may be subjected
to restrictions only if they serve the purposes of detention or the maintenance
of security or order in the institutions. Prisoners in pre-trial detention are
to be treated with calm, seriousness and firmness, in a just manner and with
respect for their sense of honour, human dignity and with as little as possible
interference with their personality."
Articles 187 and 188 of the Code of Criminal Procedure
govern the correspondence of prisoners in pre-trial detention:
Article 187
"(1) Prisoners in pre-trial detention may, without
prejudice to Article 45 of this Code and sections 85 and 88 of the Law on
Enforcement of Sentences, correspond in writing with all persons who are not
likely to prejudice the purpose of the pre-trial detention, and to receive
visits from such persons.
(2) Correspondence shall not be subject to any restrictions,
unless surveillance is prejudiced by the exceptional volume of the
correspondence of a prisoner in pre-trial detention. In such a case the
restrictions which are necessary for proper surveillance shall be ordered. Letters
which are likely to prejudice the purpose of the detention are to be withheld,
unless provided otherwise by sections 88 and 90 (4) of the Law on Enforcement
of Sentences, relating to written correspondence with official bodies and legal
advisers. Letters from prisoners in pre-trial detention which give rise to
suspicion that an offence, not being an offence which can be prosecuted only at
the request of a person concerned, is being committed by means of them, are
always to be stopped, unless they are addressed to a national general
representative body, a national court or another national authority, or to the
European Commission of Human Rights.
..."
Article 188 (1)
"Decisions as to which persons prisoners in pre-trial
detention may correspond in writing with and which visits they may receive,
surveillance of correspondence and visits, and all other orders and decisions
relating to contacts between prisoners in pre-trial detention and the outside
world (sections 86-100 of the Law on Enforcement of Sentences) are to be taken
by the investigating judge, with the exception of surveillance of parcels. Surveillance
of correspondence can be waived only in so far as no prejudice of the purpose
of detention is to be feared as a result thereof."
2. Rules relating to institutions for mentally ill offenders
Unless provided otherwise, the provisions of the Law on
Enforcement of Sentences (Strafvollzugsgesetz) applicable to persons in prison
also apply by analogy to persons placed in institutions for mentally ill
offenders (section 167 (1) of that law). They lay down detailed regulations,
for example, with respect to:
- the right to necessary medical treatment (sections 66 et
seq.), and compulsory medical treatment and force-feeding (section 69);
- the right of access to information by means of books,
magazines, newspapers, radio and television (sections 58 et seq.);
- the right of correspondence, in particular with close
relatives and other persons, lawyers, courts and other authorities,
representative bodies, the ombudsman, the European Commission of Human Rights
and, in the case of a foreign national, his consulate (sections 86 et seq.);
- the right to bring petitions and complaints (sections 119 et
seq.). Prisoners may submit petitions concerning their conditions of
imprisonment (section 119) and complain of actions of the prison staff which in
their opinion infringe their rights (section 120). Complaints are to be
addressed to the governor of the prison or, where the complaint is brought
against the governor, to the Federal Ministry of Justice (section 121); this
remains subject to review by the Administrative Court and the Constitutional
Court (Articles 130 and 144 of the Federal Constitution).
Prisoners may submit petitions and requests, other than those
relating to their medical treatment, by means of an application to a higher
official, but this does not give the right to an administrative decision
(section 120 (1), second sentence, and section 122).
Section 165 (1) authorises restrictions on the rights of
mentally ill offenders only to the extent necessary for the attainment of the
purpose of the detention, and prohibits all interferences with their human
dignity and with the rights guaranteed them by sections 119 to 122. It also
provides that complaints which have obviously been brought solely because of
the detainee’s mental or emotional disturbance and which are not based on an
infringement of his rights shall be rejected without any formal procedure.
3. Rules relating to the closed units of psychiatric hospitals
Before the establishment of special institutions for
mentally ill offenders, they were placed in closed units of public psychiatric
hospitals, regulated by the Hospitals Law (Krankenanstaltengesetz). That law
provides inter alia:
Section 8
"(1) The medical service must be organised in such a way
that medical assistance is always immediately available in the hospital.
(2) Hospital patients may be medically treated only in
accordance with the principles and recognised methods of medical science.
(3) Special curative treatments including surgical operations
may be carried out on a patient only with his consent, but if the patient has
not yet reached the age of eighteen or if because he lacks mental maturity or
health he cannot assess the necessity or usefulness of the treatment, only with
the consent of his legal representative. Consent is not required if the
treatment is so urgently necessary that the delay involved in obtaining the
consent of the patient or his legal representative or in appointing a legal
representative would endanger his life or would entail the danger of serious
harm to his health. The medical director of the hospital or the doctor
responsible for the management of the hospital department concerned shall
decide on the necessity and urgency of treatment."
Section 51 (1)
"Patients who are compulsorily detained ... may be
subjected to restrictions with respect to freedom of movement or contact with
the outside world."
C. Lack of legal capacity
The applicant’s partial legal incapacitation, which was
pronounced in 1975 (see paragraph 10 above), was based on sections 1 (2) and 4
of the Incapacitation Regulations (Entmündigungsordnung) of 1916:
Section 1 (2)
"Adults who are unable to look after their own affairs
and, because of a mental illness or a handicap, need the assistance of an
adviser (Beistand) to look after their affairs appropriately, may be declared
partially incapacitated."
Section 4
"(1) A person who is partially incapacitated shall be
treated as a minor over fourteen years (mündiger Minderjähriger) and shall be
given an adviser.
...
(3) The adviser shall have the rights and duties of a guardian
(Vormund), but the guardianship court may reserve to the adviser the right to
dispose over what the incapacitated person acquires by his work."
The functions of a guardian are defined in Article 188,
first sentence, of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), which
reads as follows:
"A guardian must primarily take care of the person of the
minor, but also administer his property."
Article 216 (1) states that if care for the person and
education of a minor is not the responsibility of a person having parental
authority, the guardian shall have responsibility therefor.
Under the Law of 1983 on the appointment of curators of
handicapped persons (Sachwaltergesetz), persons who have been declared totally
or partly legally incapacitated are to be regarded from 1 July 1984 as having
the assistance of a curator (Sachwalter), empowered under Article 273 (3),
sub-paragraph 3, of the Civil Code to look after all their affairs.
Under Article 282 of the Civil Code a curator has the same
rights and obligations as a guardian, but must also care for the person of a
handicapped person, in particular his medical and social treatment, unless a
court decides otherwise.
D. Applications to the Administrative Court and the Constitutional Court
Any administrative act, including the exercise of direct
administrative compulsion against a particular person, may in principle be
challenged as to its lawfulness before the Administrative Court
(Verwaltungsgerichtshof, Article 130 of the Federal Constitution) and as to its
constitutionality before the Constitutional Court (Verfassungsgerichtshof,
Article 144).
However, there does not appear to be any example in the
case-law of such an application against the acts of a psychiatric hospital of
the type of those in issue in the present case.
PROCEEDINGS BEFORE THE COMMISSION
In his application of 27 November 1978 to the Commission (no. 10533/83) Mr Herczegfalvy brought a series of complaints relating to
the lawfulness, length and conditions of his detention and the medical
treatment carried out during it.
On 10 March 1988 the Commission inter alia declared
inadmissible as out of time (Article 26 in fine of the Convention) (art. 26)
the complaints relating to facts prior to 27 May 1978. On 4 October 1989 it declared certain of the other complaints admissible and the remainder of the
application inadmissible. In its report of 1 March 1991 (made under Article 31) (art. 31) it expressed the opinion that there had been violations of
Article 3 (art. 3) (unanimously), Article 5 para. 1 (e) (art. 5-1-e) for the
periods from 11 December 1981 to 8 February 1982 and from 8 February 1983 to 16 February 1984 (unanimously), Article 5 para. 4 (art. 5-4) (unanimously),
Article 8 (art. 8) (unanimously), Article 10 (art. 10) (unanimously) and
Article 13 (art. 13) (eighteen votes to two), but not of Article 5 para. 1 (c)
(art. 5-1-c) (eleven votes to nine), Article 5 para. 1 (e) (art. 5-1-e) for the
other periods (eleven votes to nine) or Article 5 para. 3 (art. 5-3) (unanimously).
The full text of the Commission’s opinion is reproduced as an annex to this
judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1)
A. Introduction
The applicant claimed there had been a violation of Article
5 para. 1 (art. 5-1), according to which:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent
court;
...
(c) 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 or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having done so;
...
(e) the lawful detention of persons for the prevention of
the spreading of infectious diseases, of persons of unsound mind, alcoholics or
drug addicts or vagrants;
..."
In view of the Commission’s decisions on admissibility (see
paragraphs 56-57 above), the detention to be taken into consideration commenced
on 27 May 1978. As its legal basis changed over the years, it is necessary to
distinguish between various periods.
B. 27 May 1978 to 10 January 1979
From 27 May 1978 to 10 January 1979 the detention in issue, based in turn on Article 438 and Article 429 (4) of the Code of Criminal
Procedure (see paragraph 44 above), had as its purpose to ensure that Mr
Herczegfalvy would appear before the Regional Court (see paragraphs 11-12
above). It therefore came under paragraph 1 (c) of Article 5 (art. 5-1-c) of
the Convention, and this was indeed not disputed by any of those appearing
before the Court.
The case-file does not reveal any shortcomings at this
stage. Thus there is nothing to show that the judicial authorities failed to
observe the procedures of national law when ordering Mr Herczegfalvy’s
pre-trial detention and subsequent placement or when confirming these two
measures (see paragraphs 11-13 above). As for the reasons put forward in
support - the suspicion against him and the risks of repetition of offences and
absconding - the Court sees nothing to suggest that they were not well-founded,
especially in the light of the applicant’s aggressive behaviour and the nature
of the offences he was charged with.
C. 10 January to 3 October 1979
The second period consists of the time during which the
application for the declaration of nullity directed against the first detention
order was before the Supreme Court, namely from 10 January to 3 October 1979. Although under Austrian law the detention was still pre-trial detention
(see paragraph 15 above), it now came under paragraph 1 (e) alone of Article 5
(art. 5-1-e), as the Regional Court had not convicted or sentenced Mr
Herczegfalvy in view of his lack of criminal responsibility (see paragraph 14
above; and see inter alia the X v. the United Kingdom judgment of 5 November
1981, Series A no. 46, pp. 17-18, para. 39, and the B. v. Austria judgment of
28 March 1990, Series A no. 175, pp. 14-15, paras. 36 and 38).
In order to comply with paragraph 1 (e) (art. 5-1-e), the
detention in issue must first of all be "lawful", including the
observance of a procedure prescribed by law; in this respect the Convention
refers back essentially to national law and lays down the obligation to conform
to the substantive and procedural rules thereof. It requires in addition,
however, that any deprivation of liberty should be consistent with the purpose
of Article 5 (art. 5), namely to protect individuals from arbitrariness (see
inter alia the van der Leer v. the Netherlands judgment of 21 February 1990,
Series A no. 170-A, p. 12, para. 22, and the Wassink v. the Netherlands
judgment of 27 September 1990, Series A no. 185-A, p. 11, para. 24). Consequently,
in order to justify detention, the fact that a person is "of unsound
mind" must be established conclusively, except in case of emergency. To
this end an objective medical report must demonstrate to the competent national
authority the existence of genuine mental disturbance whose nature or extent is
such as to justify such deprivation of liberty, which cannot be extended unless
the mental disturbance continues.
It must, however, be acknowledged that the national authorities
have a certain discretion when deciding whether a person is to be detained as
"of unsound mind", as it is for them in the first place to evaluate
the evidence put before them in a particular case; the Court’s task is to
review their decisions from the point of view of the Convention (see the
Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p.
18, paras. 39-40, and the Wassink judgment cited above, Series A no. 185-A, p.
11, para. 25).
In the present case the Court does not consider that the
Austrian courts failed to comply with the relevant national law, in particular
Article 429 (4) of the Code of Criminal Procedure, which continued to serve as
a basis for the detention in question (see paragraphs 15-17 above). Nor does
the detention appear to have been tainted by arbitrariness, as when the
Regional Court took its decision on 10 January 1979 it had before it three
expert reports which concluded unanimously that the applicant was suffering
from paranoia querulans which was serious enough to be equivalent to a mental
illness and dangerous for those around him (see paragraphs 14-15 above), this
also being confirmed by the applicant’s previous convictions (see paragraph 9
above).
No violation of paragraph 1 (e) (art. 5-1-e) has thus been
shown to exist at this stage.
D. 3 October 1979 to 9 April 1980
On 3 October 1979, following the Supreme Court’s judgment
quashing the detention order (see paragraph 18 above), the impugned deprivation
of liberty once more came under paragraph 1 (c), until the Regional Court’s
decision of 9 April 1980 (see paragraph 20 above).
During this period the detention remained based on Article 429
(4) of the Code of Criminal Procedure, compliance with which is not in dispute.
The risk of repetition of offences was still capable of justifying Mr
Herczegfalvy’s detention, having regard in particular to the further verbal
attacks made by him (see paragraph 20 above). Accordingly, there was no
violation of paragraph 1 (c) (art. 5-1-c).
E. 9 April 1980 to 28 November 1984
The judgment of 9 April 1980 ordering the applicant to be
detained in hospital again (see paragraph 20 above) opened a new period of his
detention, which lasted until his release on 28 November 1984 (see paragraph 23
above). It came under Article 5 para. 1 (e) (art. 5-1-e) alone, as the court
had not found the applicant guilty (see paragraphs 20 and 62 above).
It was initially governed by Article 429 (4) of the Code of
Criminal Procedure, and then by Article 25 (1) of the Criminal Code (see
paragraph 46 above) once the final order of 6 November 1980 had been made (see paragraph 20 above). Mr Herczegfalvy’s subsequent repudiation of his
declarations which gave rise to the order makes no difference; the order in itself
gave final and binding effect to the said judgment of 9 April 1980; moreover, it was not challenged (see paragraph 20 above).
The applicant alleged that there had been various breaches
of Article 5 para. 1 (art. 5-1) during this period. Firstly, there had on two
occasions been a failure to carry out the annual review by the court of its own
motion, as required by Article 25 (3) of the Criminal Code (see paragraphs
21-22 and 46 above). Secondly, he claimed that his state of health had improved
to the extent that it no longer justified his detention; the last act of
physical aggression recorded was on 9 July 1981, and one of the psychiatrists
consulted by the court had recommended his release in March 1983.
The Court notes that before extending the detention in
issue on 8 February 1982 and 16 February 1984 the Regional Court had consulted
several experts. One of them had on 22 October 1983 recommended that the
applicant should be released under psychiatric supervision, but all the others
had been of the opinion that his aggressive tendencies still justified his
detention, especially as it was to be feared that if released he would refuse
to accept treatment even though it was necessary (see paragraphs 21-22 above).
Furthermore, there is nothing in the case-file to support Mr
Herczegfalvy’s claim that his querulous behaviour was the sole reason for the
measures complained of. Consequently, the Court cannot regard them as
arbitrary.
The complaints based on the failure to comply with Article 25
(3) of the Criminal Code will be examined by the Court from the point of view
of paragraph 4 of Article 5 (art. 5-4) of the Convention. There is therefore no
need to examine them from the point of view of paragraph 1 (art. 5-1) as well.
F. Conclusion
In conclusion, no violation of Article 5 para. 1 (art. 5-1)
has been established.
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
Mr Herczegfalvy also relied on Article 5 para. 3 (art.
5-3), according to which:
"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. Release
may be conditioned by guarantees to appear for trial."
He claimed that the length of his pre-trial detention had
exceeded the limits laid down in this paragraph.
The periods to be taken into consideration are those from 27 May 1978 to 10 January 1979 and from 3 October 1979 to 9 April 1980. The Court refers to its observations relating to Article 5 para. 1 (c) (art. 5-1-c) (see
paragraphs 59-61 and 65 above).
The Court has already stated that the reasons which the
Austrian courts regarded as justifying the detention in question were
"relevant" and "sufficient"; it therefore remains to be ascertained
whether the authorities displayed "special diligence" in the conduct
of the proceedings (see, as the most recent authority, the Tomasi v. France
judgment of 27 August 1992, Series A no. 241-A, p. 35, para. 84).
The first period lasted for seven months and fifteen days,
but at its commencement on 27 May 1978 the applicant had already been deprived
of his liberty from 13 May 1977, in other words for over one year (see
paragraph 11 above).
He did not dispute the Commission’s findings relating to this
period of detention (see paragraphs 33-50 of the report). Nor does the Court
find any negligence on the part of the authorities between 27 May 1978 and 10 January 1979 such as to delay the proceedings to the point of violating the
Convention. Moreover, the applicant himself contributed to the prolongation of
the proceedings, in particular by the incident caused by him and involving the
President of the Regional Court (see paragraphs 13-14 above).
As for the period from 3 October 1979 to 9 April 1980, this does not appear excessive, bearing in mind inter alia the different
composition of the court to which the case had been remitted by the Supreme
Court (see paragraphs 18 and 20 above).
In short, there was no violation of Article 5 para. 3 (art.
5-3).
III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
The applicant further complained of a violation of Article
5 para. 4 (art. 5-4), which provides that:
"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."
He claimed that the decisions of the Austrian courts under
Article 25 (3) of the Criminal Code (see paragraph 46 above) had not been given
"speedily".
The Government disputed this argument; the Commission agreed
with it in essence.
The procedure provided for in Article 25 (3) of the
Criminal Code amounts to an automatic periodic review of a judicial character
(see inter alia the X v. the United Kingdom judgment cited above, Series A no.
46, p. 23, para. 52).
According to the Court’s case-law on the scope of paragraphs 1
and 4 of Article 5 (art. 5-1, art. 5-4) of the Convention, in order to satisfy
the requirements of the Convention such a review must comply with both the
substantive and procedural rules of the national legislation and moreover be
conducted in conformity with the aim of Article 5 (art. 5), namely to protect
the individual against arbitrariness. The latter condition implies not only
that the competent courts must decide "speedily" (see the
Koendjbiharie v. the Netherlands judgment of 25 October 1990, Series A no.
185-B, p. 40, para. 27), but also that their decisions must follow at reasonable
intervals. The latter point should be considered first, bearing in mind that
the intention of the Austrian legislature was that the interval should not
exceed one year.
The only complaints under Article 5 para. 4 (art. 5-4)
which are admissible are those relating to the period after 9 April 1980, as
the Commission on 4 October 1989 declared the other complaints manifestly
ill-founded within the meaning of Article 27 para. 2 (art. 27-2).
In this case the three decisions taken under Article 25 (3)
of the Criminal Code were taken at intervals of fifteen months (6 November 1980
- 8 February 1982), two years (8 February 1982 - 16 February 1984) and nine
months (16 February 1984 - 14 November 1984) respectively. The first two
decisions cannot be regarded as having been taken at reasonable intervals,
especially as the numerous requests for release submitted at that time by Mr
Herczegfalvy brought no response (see paragraphs 20-23 above).
These conclusions mean that there is no need for the Court to
examine whether the decisions in issue complied with national law.
In short, there was a violation of Article 5 para. 4 (art.
5-4).
IV. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)
Mr Herczegfalvy also complained of his medical treatment.
In that he had been forcibly administered food and neuroleptics, isolated and
attached with handcuffs to a security bed during the weeks following the
incident of 15 January 1980 (see paragraphs 24-28 above), he had been subjected
to brutal treatment incompatible with Article 3 (art. 3), according to which:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission considered that the manner in which the
treatment was administered had not complied with the requirements of Article 3
(art. 3): the various measures complained of had been violent and excessively
prolonged, and taken together had amounted to inhuman and degrading treatment,
and even contributed to the worsening of the patient’s condition.
In the Government’s opinion, on the other hand, the
measures were essentially the consequence of the applicant’s behaviour, as he
had refused medical treatment which was urgent in view of the deterioration in
his physical and mental health.
Thus when Mr Herczegfalvy returned to the hospital on 10 September 1979 it proved to be necessary to feed him artificially, in view of his
extremely weak state caused by his refusal to take any food (see paragraphs
24-25 above). Later on, it was partly at his own request that he was fed
through a tube, while continuing - at least ostensibly - with his hunger
strike.
Similarly, it was only his resistance to all treatment, his
extreme aggressiveness and the threats and acts of violence on his part against
the hospital staff which explained why the staff had used coercive measures
including the intramuscular injection of sedatives and the use of handcuffs and
the security bed. These measures had been agreed to by Mr Herczegfalvy’s
curator, their sole aim had always been therapeutic, and they had been terminated
as soon as the state of the patient permitted this.
Finally, the Government claimed that the isolation complained
of had in fact consisted of being placed in an individual cell, in accordance
with Mr Herczegfalvy’s wishes. He had had contact with doctors and nurses, and
had been able to receive visits and even walk in the garden.
The Court considers that the position of inferiority and
powerlessness which is typical of patients confined in psychiatric hospitals
calls for increased vigilance in reviewing whether the Convention has been
complied with. While it is for the medical authorities to decide, on the basis
of the recognised rules of medical science, on the therapeutic methods to be
used, if necessary by force, to preserve the physical and mental health of
patients who are entirely incapable of deciding for themselves and for whom
they are therefore responsible, such patients nevertheless remain under the
protection of Article 3 (art. 3), whose requirements permit of no derogation.
The established principles of medicine are admittedly in
principle decisive in such cases; as a general rule, a measure which is a
therapeutic necessity cannot be regarded as inhuman or degrading. The Court
must nevertheless satisfy itself that the medical necessity has been
convincingly shown to exist.
In this case it is above all the length of time during
which the handcuffs and security bed were used (see paragraphs 27-28 above)
which appears worrying. However, the evidence before the Court is not
sufficient to disprove the Government’s argument that, according to the
psychiatric principles generally accepted at the time, medical necessity
justified the treatment in issue. Moreover, certain of the applicant’s
allegations are not supported by the evidence. This is the case in particular
with those relating to what happened on 15 January 1980 (see paragraph 27 above) and the extent of the isolation.
No violation of Article 3 (art. 3) has thus been shown.
V. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
Mr Herczegfalvy further alleged that by administering food
to him by force, imposing on him the treatment complained of and refusing to
send on his correspondence, the hospital authorities had also violated Article
8 (art. 8), which reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
The first two complaints relate to facts already complained
of from the point of view of Article 3 (art. 3). Reference should therefore
first be made to paragraph 83 above. In addition, the Court attaches decisive
weight here to the lack of specific information capable of disproving the
Government’s opinion that the hospital authorities were entitled to regard the
applicant’s psychiatric illness as rendering him entirely incapable of taking
decisions for himself. Consequently, no violation of Article 8 (art. 8) has
been shown in this respect.
The third and last complaint is directed in particular
against the psychiatric hospital’s practice of sending all the applicant’s
letters to the curator for him to select which ones to pass on (see paragraph
36 above).
The Government conceded that this was an interference with the
exercise of Mr Herczegfalvy’s right to respect for his correspondence, but
maintained that it had been justified under paragraph 2 of Article 8 (art.
8-2), as its essential purpose had been to protect his health.
This interference constituted a breach of Article 8 (art.
8), unless it was "in accordance with the law", pursued a legitimate
aim or aims under paragraph 2 (art. 8-2), and was moreover "necessary in a
democratic society" for achieving those aims.
The Court recalls that the expression "in accordance with
the law" requires firstly that the impugned measure should have some basis
in national law; it also refers to the quality of the law in question,
requiring that it should be accessible to the person concerned, who must
moreover be able to foresee its consequences for him, and compatible with the
rule of law (see, inter alia, the Kruslin and Huvig v. France judgments of 24
April 1990, Series A no. 176-A, p. 20, paras. 26-27, and no. 176-B, p. 52,
paras. 25-26).
While there can be no doubt as to the existence of a legal
basis and the accessibility of the law in this case, this is not true of the
requirement of foreseeability of the law as to the meaning and nature of the
applicable measures.
Compatibility with the rule of law implies that there must be a
measure of protection in national law against arbitrary interferences with the
rights safeguarded by paragraph 1 (art. 8-1). If a law confers a discretion on
a public authority, it must indicate the scope of that discretion, although the
degree of precision required will depend upon the particular subject matter
(see, inter alia, the Silver and Others v. the United Kingdom judgment of 25
March 1983, Series A no. 61, p. 33, para. 88; the Malone v. the United Kingdom
judgment of 2 August 1984, Series A no. 82, pp. 32-33, paras. 67-68; and the
Kruslin and Huvig judgments cited above, Series A no. 176-A, pp. 22-23, para.
30, and no. 176-B, pp. 54-55, para. 29).
The Government argued that the impugned decisions were
based directly on section 51 (1) of the Hospitals Law and Articles 216 and 282
of the Civil Code, to which should be added section 8 (2) of the Hospitals Law
and sections 3 and 4 of the Incapacitation Regulations (see paragraphs 51-54
above).
These very vaguely worded provisions do not specify the
scope or conditions of exercise of the discretionary power which was at the
origin of the measures complained of. But such specifications appear all the
more necessary in the field of detention in psychiatric institutions in that
the persons concerned are frequently at the mercy of the medical authorities,
so that their correspondence is their only contact with the outside world.
Admittedly, as the Court has previously stated, it would
scarcely be possible to formulate a law to cover every eventuality (see, inter
alia, the Silver and Others judgment cited above, Series A no. 61, p. 33, para.
88). For all that, in the absence of any detail at all as to the kind of
restrictions permitted or their purpose, duration and extent or the
arrangements for their review, the above provisions do not offer the minimum
degree of protection against arbitrariness required by the rule of law in a
democratic society. According to the information provided to the Court, there
has been no case-law to remedy this state of affairs. There has therefore been
a violation of Article 8 (art. 8) of the Convention.
This being so, the Court does not consider it necessary to
examine in this case whether the other requirements of paragraph 2 of Article 8
(art. 8-2) were complied with.
VI. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
The applicant maintained that the restrictions on his
access to information (see paragraph 38 above) had breached Article 10 (art.
10).
The Government conceded that there had been interferences, but
argued that they had been based on section 51 (1) of the Hospitals Law and had
come under paragraph 2 of Article 10 (art. 10-2) of the Convention.
The Court has already stated the reasons for which it is
unable to regard section 51 (1) of that law as "law" within the
meaning of paragraph 2 of Article 8 (art. 8-2) (see paragraph 91 above). As
there are no grounds for a different conclusion here, there has also been a
violation of Article 10 (art. 10). Consequently, it is not necessary to examine
the other requirements of paragraph 2 of that Article (art. 10-2).
VII. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
Mr Herczegfalvy complained, finally, that there had been a
breach of Article 13 (art. 13), in that he had not had an effective national
remedy in respect of the violations of the Convention complained of.
The Court does not consider it necessary to rule on this
point, in view of its decision with respect to Articles 8 and 10 (art. 8, art.
10) (see paragraphs 91 and 94 above).
VIII. APPLICATION OF ARTICLE 50 (art. 50)
Under Article 50 (art. 50) of the Convention,
"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."
The applicant put forward claims under this Article (art. 50)
for the award of pecuniary compensation and reimbursement of costs and
expenses.
Mr Herczegfalvy left it to the Court to assess the
non-pecuniary damage suffered. As a guide, he estimated it at 2,737,753,802
Austrian schillings and 45 groschen for the period from 15 May 1972 to 1 December 1979, and produced a calculation in support of this.
In respect of his costs of representation before the Convention
institutions, he sought DEM 8,000 and ATS 12,000, for lawyer’s fees and
travelling expenses respectively.
The Government described the amounts claimed in respect of
damage as exorbitant and unrealistic; the Commission expressed no opinion.
Taking a decision on an equitable basis, the Court
assesses the damage resulting from the violations found at ATS 100,000. It
orders the costs to be reimbursed in full, less FRF 22,971 already paid by the
Council of Europe as legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has not been a violation of Article 5
paras. 1 and 3 (art. 5-1, art. 5-3);
2. Holds that there has been a violation of Article 5 para. 4
(art. 5-4);
3. Holds that there has not been a violation of Article 3 (art.
3);
4. Holds that there has been a violation of Article 8 (art. 8)
with respect to the applicant’s correspondence, but not with respect to the
medical treatment undergone by him;
5. Holds that there has been a violation of Article 10 (art.
10);
6. Holds that it is not necessary also to examine the case from
the point of view of Article 13 (art. 13);
7. Holds that the respondent State is to pay the applicant,
within the next three months, ATS 112,000 (one hundred and twelve thousand
Austrian schillings) and DEM 8,000 (eight thousand German marks), less FRF
22,971 (twenty-two thousand nine hundred and seventy-one French francs);
8. 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 24 September 1992.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
