AS TO THE ADMISSIBILITY OF

                      Application No. 12485/86
                      by J.M.
                      against the Federal Republic of Germany


        The European Commission of Human Rights sitting in private
on 6 October 1987 the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  E. BUSUTTIL
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
                  J. CAMPINOS
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 15 June 1986
by J.M. against the Federal Republic of Germany and registered
on 16 October 1986 under file N° 12485/86;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

&_THE FACTS&S

        The applicant is a stateless person of Hungarian origin, who
was born, according to the documents submitted by him, in 1925 and is
presently detained in a mental hospital at E.  He is
represented by Mrs.  Marianne Kunisch, a lawyer practising in Munich.

        The applicant complains that he is wrongly detained without
being insane.  This complaint was already the main object of a
previous application (No. 10272/82) which was declared inadmissible on
18 May 1984 (see D.R. 38, p. 104).

                                I

        In the context of the previous application it was submitted
that on 26 March 1980 the applicant was convicted by the Traunstein
Regional Court (Landgericht) of aggravated theft, fraud and of having,
under aggravating circumstances, offered resistance against state
officials.  He was sentenced to three years' imprisonment.  The Court
further ordered that, after having served sentence, the applicant
should be detained in a mental hospital.  The judgment became final as
the applicant did not appeal.

        The Regional Court found that the applicant had lived in an
empty house and had organised a bazar with goods stolen from the
neighbourhood.  When two policemen came to the house in order to
investigate the matter, he threatened them with an axe and only after
considerable efforts could he be calmed down.  A medical expert
stated at the trial that the applicant had acted in a state of violent
emotion when threatening the policemen, and that he had therefore been
unable to control himself and to realise the unlawfulness of his
action.  This was due to a latent tendency of the applicant to become
aggressive in situations where he was driven into a corner, a tendency
which could be considered pathological.  In such situations the
applicant was dangerous for the public and for himself.  It could not
be excluded that he would also act in the same way in the future.  His
criminal responsibility was by no means lacking, but it was
considerably reduced, and this justified the taking of a measure under
Section 63 of the Penal Code, i.e. the order for his preventive
detention in a psychiatric hospital.

        On completion of the sentence on 23 September 1982 the
applicant was transferred to a mental institution at Ansbach, the
Regional Court having ruled on 1 July 1982 that in view of the prison
doctor's advice such detention was necessary.

        On 6 June 1983 the Ansbach Regional Court ordered that the
applicant's detention in the mental hospital should continue.  The
Court had regard to two further psychiatric expert opinions denying
the existence of a genuine mental disorder based on a physical nervous
disease or psychosis finding, however, that the applicant was marked
by a pathological aggressive character which made him dangerous for
the public and himself.  The experts further stated that the applicant
needed psychiatric treatment to stabilise his emotional overreaction,
but that he refused to co-operate and was therefore inaccessible to
treatment.  The Court found this to be sufficient ground for the
applicant's continued detention in a mental hospital in order to
protect the general public, although it admitted that, from a medical
point of view, this might be unsatisfactory as the detention only
served security purposes but would not improve the applicant's mental
state of health.  The Regional Court's order of 6 June 1983 was
confirmed on appeal in August 1983 and as the applicant then failed to
lodge a constitutional complaint his previous application was to this
extent rejected for non-exhaustion of domestic remedies.

II

        Meanwhile the applicant's detention in the mental hospital was
again ordered to continue and the applicant's appeal was rejected by
the Munich Court of Appeal (Oberlandesgericht) on 16 April 1986.
This Court heard the applicant personally and a medical expert.
Subsequent to the hearing the Court had ordered this expert to submit
an expert report.  In view of all the expert opinions obtained or
previously submitted, the Court came to the result that the applicant
suffers from a character anomaly which amounted to a psychic
abnormality within the meaning of Section 20 of the Criminal Code
(StGB).  This followed from concording expert opinions obtained from
different medical experts in March 1980, February 1983, May 1983 and
July 1985.

        An additional expert opinion obtained in June 1984 from a
mental hospital in Munich did not contradict the previous results, as
the two examining doctors also concluded that the prevailing
characteristics of the applicant's paranoiac personality were mistrust,
querulous tendency and irritability.

        Two previous expert reports obtained in 1979 in the course of
the investigation proceedings and in October 1982 after short-term
observation only were considered to be no longer valid in view of the
results of the subsequent more extensive examinations and experience
with the applicant in the mental hospitals where he had so far been
detained.

        The ultimate expert opinion of Dr.  W, who was heard by the
appellate court on 18 December 1985 and who subsequently submitted a
report after having examined the applicant for nearly three hours,
likewise did, in the appellate court's opinion, only confirm the
results of previous expert examinations.  Dr.  W considered the
applicant to be a primitive hysterically structured psychopath marked
by egotism.  The Court also pointed out that the applicant's
irritability was noted by the judges who had heard him personally.

        Referring to Section 67 d (2) first sentence StGB, the
appellate court stated that continued detention was justified where
there was danger that the detainee would commit important offences
(erhebliche Taten) if he were released, such as coercion by physical
force, or even aggression causing bodily harm or death.

        The Court considered such danger to be given.  In this context
the Court first referred to the applicant's numerous previous
convictions based, inter alia, on the following facts:

        - In March 1969 the applicant had attacked a man with a
          chair and injured him and a woman standing aside;

        - In June 1971 he had given a man several punches in his
          face without any reason in a coffee-house;

        - In June 1972 he tried to avoid customs control by driving
          his car at customs police officers standing in his way;

        - In September 1979 he threatened to kill policemen with an
          axe (ultimate conviction).

        The appellate court also noted that while detained in mental
institutions the applicant repeatedly aggressed or tried to aggress
and threaten the personnel of these institutions.  He also once tried
to escape from a mental hospital and threatened to kill the policemen
who arrested him.

        The Court finally considered that the medical reports also
confirmed the existence of danger that the applicant might commit
further offences if he were released.  As the applicant so far had
opposed treatment and continued in this attitude, it was furthermore
unlikely that his conduct after release could be kept under control by
measures of surveillance and ambulant medical treatment.

        The applicant's constitutional complaint against the afore-
mentioned decision of the Munich Court of Appeal was rejected by a
group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 1 August 1986 as offering no prospects
of success.

        It is stated in the decision that, although the applicant
has already been detained in a mental hospital for nearly four
years, the appellate court rightly considered, in view of his
antecedents, his behaviour in prison and in mental hospitals and the
medical expert opinions, that the risk of releasing the applicant
could not yet be taken as there was danger that he would commit
serious offences.

        It is, however, also pointed out in the decision that the
applicant's release did not require a reliable expectancy as to his
future good behaviour.  Release could only be denied where there was
concrete danger of commission of offences.  The degree of such danger
would have to be ascertained.  Meanwhile, those responsible for the
applicant should try to convince him to adopt a more co-operative
attitude allowing an external examination and his accommodation at a
place other than a closed mental hospital.


&_COMPLAINTS&S

        The applicant points out that, after three years' detention
serving sentence, he has already spent more than four years in a
mental hospital, altogether more than seven years, while he never
committed any offence punishable with deprivation of liberty of such
length.  Referring to the expert opinion of Dr.  W, who stated in his
written report of 22 January 1986: "...  I found no symptoms allowing a
diagnosis under the terms of strict psychiatry that can be subsumed to
the legal term of mental illness" ("... keine Symptome, die geeignet
wären, eine Diagnose aus der grossen Psychiatrie anzunehmen, die man
unter den rechtlichen Begriff einer krankhaften seelischen Störung
subsumieren könnte"), the applicant considers that his detention in a
mental hospital is neither justified under Article 5 para. 1 (a) nor
(e) and therefore violates para. 1 of this provision.


&_THE LAW&S

        The applicant has complained that his detention in a mental
hospital is neither justified by subpara. (a) or (e) of Article 5 para. 1
(Art. 5-1-a, 5-1-e) of the Convention, because he could not be considered
as a person of unsound mind.  As the applicant is no longer serving sentence
but is detained in a mental hospital and as subparas. (a) and (e) are
not mutually exclusive it has, in the first place, to be examined whether
the requirements for detention under Article 5 para. 1 (e) (Art. 5-1-e) of
the Convention are fulfilled.

        The term "unsound mind" as employed in Article 5 para. 1 (e)
(Art. 5-1-e) does not only refer to mental illness in the strict sense of
psychiatric science, but also to any kind of mental disorder, the kind
or degree of which must be such as to warrant compulsory confinement
(judgment of the Eur.  Court HR of 5 April 1981, case of X v.  United
Kingdom, Series A, Vol. 46, p. 18, para. 40).  In the present case the
German courts have, on the basis of several consecutive and concordant
medical expert opinions and taking into account his numerous previous
convictions relating to violent offences and his aggressive and
violent behaviour in detention, concluded that there is concrete
danger that the applicant, who, up to now, has refused treatment and
also refuses to accept any kind of treatment or control after his
eventual release, might again commit serious offences.

        The Commission notes that the Munich Court of Appeal carefully
examined all evidence available and, in addition to various expert
opinions submitted previously, ordered Dr.  W to examine the applicant
again and to submit a further report.  The appellate court also heard
the applicant personally.  Although Dr.  W did not find the applicant
to be mentally ill in the strict psychiatric sense, he nevertheless
considered him to be a hysteric psychopath, who is completely
unwilling to co-operate.  As the applicant was repeatedly convicted of
violent acts and also showed, according to the findings of the German
courts, aggressive or violent behaviour in detention without being
willing to submit himself to any kind of treatment or control in the
case of his release, the Commission cannot find that the German courts
arbitrarily assumed that he is suffering from a mental disorder and
that this disorder necessitates compulsory confinement for the
protection of the public.

        As the decision of the Federal Constitutional Court makes it
clear, the applicant's release depends mainly on his own attitude.  The
Commission notes that he refuses to co-operate and to accept some kind
of therapeutic treatment.

        It follows that the applicant's detention is justified under Article 5
para 1 (e) (Art. 5-1-e) of the Convention and his complaint as it has been
submitted, does not therefore disclose any appearance of a violation of the
rights and freedoms set out in the Convention and in particular in the above
Article.

        The application is consequently manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.


        For these reasons, the Commission


        &_DECLARES THE APPLICATION INADMISSIBLE.&S


Secretary to the Commission               President of the Commission




   (H.C. KRÜGER)                               (C.A. NØRGAARD)