Zierd v. Germany

App. No. 75095/11
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Ms. Rosel Zierd filed an application claiming that the psychiatric medication administered against her late son’s will violated her own and her late son’s Convention rights.

On May 31, 2006, Ms. Zierd’s son, H, was found by the Meiningen Regional Court to have committed a number of traffic offenses, including involuntary manslaughter. The court determined that these offenses were committed while H was in a state of criminal incapacity and ordered H’s confinement in a psychiatric hospital for the purposes of correction and prevention of further crimes. Starting in February 2010, H refused to take any medication prescribed by the hospital doctors. In July of 2010 after finding H lying on his bed with a wet towel wrapped around his neck, the hospital staff administered antipsychotic medication against his will. On five subsequent occasions, further medication was administered to H. without his consent.

On July 30, 2010, counsel on behalf of H requested the Mühlhausen Regional Court to order the immediate discontinuation of any measures of forced medication. The hospital submitted a reply stating that H. had attacked hospital staff and that hospital staff feared that H would commit suicide. The Mühlhausen Regional Court rejected H’s requests concluding that all medication administered to H was justified under the relevant provisions of the Law on the Care and Hospitalisation of Mentally Ill Persons of the Land of Thuringia. The Thuringia Court of Appeal rejected H.’s appeal on points of law.

On January 19, 2011, counsel on behalf of H. filed a complaint with the Federal Constitutional Court. On February 3, 2011, the Federal Constitutional Court rejected H.’s request of an interim order. On February 27, 2011, H was found dead in his hospital room.   H’s counsel informed the Federal Constitutional Court of H’s death and requested that the court continue the proceedings due to there being a question of general interest. On May 26, 2011, the Federal Constitutional Court decided to discontinue the proceedings in view of H.’s death finding that there were no special reasons that would warrant the continuation of the complaint proceedings following the complainant’s death.

The following are the relevant provisions:

Article 37 § 1 (c): Enables the Court to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

After a failure to reach a friendly settlement, the Government informed the Court in a letter on December 16, 2013, that they proposed to make a unilateral declaration in an attempt to resolve the issue raised by the application but the applicant was unwilling to accept the settlement. The declaration would include that the applicant’s rights under Article 8(1) of the Convention had been violated and that applicant’s son’s rights under Article 8(1) and Article 3 (2nd alternative) had also been violated. The Government also submitted that the Land of Thuringia, following the leading decisions of the Federal Constitutional Court, “had undertaken a general reform of the pertinent legislation on forced medication of persons placed in psychiatric hospitals.” In the letter, the Government further requested the Court to strike out the application in accordance with Article 37 of the Convention. It further stated the 20000 €.

The Court, in determining whether to strike out the application, found that it may strike out an application under Article 37 § 1 (c) when a unilateral declaration by a respondent Government is made, even if the applicant wishes the examination of the case to be continued. In order to strike out an application under these circumstances, the Court must carefully examine the declaration in light of the principles emerging from its case law. The Court examined other cases involving forced administration of medication and found that the Government’s declaration and proposed compensation in this case was consistent with the relevant case law.

The Court held that it was not required to continue the examination of the application. The Court was satisfied that the respect for human rights, as defined in the Convention and the Protocols thereto, permitted the Court to strike out the application in this case. The Court noted that the Government’s submissions as to the general reform of the pertinent legislation regarding forced medication of persons in psychiatric hospitals positively weighed on their decision.

 

“The Federal Constitutional Court considered, at the outset, that medical treatment performed against the will of a person who, as a measure of correction and prevention, had been committed to an institution seriously interfered with that person’s right to physical integrity as guaranteed by the Basic Law. Accordingly, such measures were subject to a strict test of proportionality. Additionally, procedural safeguards had to be put in place in order to preserve the concerned person’s basic rights.” (Para 17)

“In light of the above considerations, and in particular the Government’s submissions as to the general reform of the pertinent legislation, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application.” (Para 26)

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