EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 27613/95

P. B.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 25 October 1999)

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1-16)              1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11)              1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17- 50) 3

A. The particular circumstances of the case

(paras. 17-48)              3

B. Relevant domestic law

(paras. 49-50)              5

III. OPINION OF THE COMMISSION

(paras. 51-66)              6

A. Complaint declared admissible

(para. 51) 6

B. Point at issue

(para. 52) 6

C. As regards Article 5 para. 4 of the Convention

(paras. 53-65)              6

CONCLUSION

(para. 66) 8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 9

I. INTRODUCTION

1.  The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2.  The applicant is a Swiss citizen, born in 1955 and resident in Amriswil in Switzerland.  He was represented before the Commission by Mr Markus Hug, a lawyer practising in the Canton of Zürich .

3.  The application is directed against Switzerland.  The respondent Government were represented by Mr F. Schürmann , Deputy Agent, Human Rights and Council of Europe Division of the Federal Office of Justice.

4.  The case concerns the applicant’s complaint that the lawfulness of his psychiatric detention was not decided “speedily”. The applicant invokes Article 5 para. 4 of the Convention.

B. The proceedings

5.  The application was introduced on 29 May 1995 and registered on 14 June 1995.

6.  On 17 January 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 5 para. 4 and Article 6 para. 2 of the Convention.

7.  The Government's observations were submitted on 8 April 1997.  The applicant replied on 20 May 1997.

8.  On 3 December 1997 the Commission declared admissible the applicant's complaint that the lawfulness of his psychiatric detention was not “decided speedily” within the meaning of Article 5 para. 4 of the Convention.  It declared inadmissible the remainder of the application.

9.  The text of the Commission's decision on admissibility was sent to the parties on 17 December 1997.  The Government were invited to submit further information; the applicant was invited to submit such further information and observations on the merits as he wished.  The Government submitted observations on 28 January 1998.

10.  After declaring the case admissible, the Commission, acting in accordance with former (1)   Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of

----------------------------

(1)The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.

-----------------------------

11.  Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

C. The present Report

the parties with a view to securing a friendly settlement.  In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

12.  The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM E. BUSUTTIL, Acting President

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

M F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13.  The text of this Report was adopted on 25 October 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14.  The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15.  The Commission's decision on the admissibility of the application is annexed hereto.

16.  The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17.  In 1977 criminal proceedings were instituted against the applicant in the Canton of Thurgau , inter alia , on a charge of attempted fraud.  Following the applicant's psychiatric examination, the proceedings were terminated ( eingestellt ) on 15 February 1977 as he was found to lack full responsibility for criminal acts ( zurechnungsunfähig ).

18.  In view of the applicant’s mental illness, the Weinfelden Council ( Bezirksrat Weinfelden ) placed him under guardianship ( Vormundschaft ) on 6 April 1977.  In its decision, the Weinfelden Council held that the applicant was unable to have an overview of his situation and was not aware of the unlawfulness of his actions (“[P. B.] sei nicht in der Lage , seine Situation zu überblicken und es fehle ihm die Fähigkeit , das Unrecht seiner Handlungen einzusehen ”).

19.  The applicant was then ordered to follow psychiatric treatment as an out-patient.  As he failed to do so, the Weinfelden District Court ( Bezirksgericht Weinfelden ) placed the applicant in psychiatric detention in a clinic on 4 September 1979.

20.  In 1981 the applicant absconded from the psychiatric clinic and settled in Germany.

21.  In 1984 the applicant was transferred to Switzerland and placed in psychiatric detention in a clinic in Münsterlingen .

22.  On 9 and 23 August 1993 the applicant filed requests for his immediate release.

23.  On 7 September 1993 the authorities of the Canton of Thurgau asked the applicant’s guardian to submit his views on these requests.

24.  By letter of 20 October 1993, the applicant’s guardian objected to the release.

25.  On 28 October 1993 the applicant’s lawyer requested his client's release.

26.  On 1 November 1993 the Sanctions’ Enforcement Section of the Department for Justice and Security of the Canton of Thurgau ( Straf - und Massnahmevollzug des Departementes für Justiz und Sicherheit ) gave its decision on the applicant's request for release on probation (“ Gesuch um bedingte Entlassung ”).  Referring to the applicant's requests filed on 9, 23 August and 28 October 1993, the Section ordered the applicant's detention to be continued based on Article 43 of the Swiss Penal Code.

27.  The decision referred in particular to the clear statements of the doctor treating the applicant and of the Guardianship Office ( Amtsvormundschaft ).  It further noted that the applicant suffered from a mental illness and had “an urge to write” ( Schreibsucht ), hardly a day passing without the applicant sending at least one letter.

28.  The applicant's appeal of 7 November 1993 against this decision was dismissed by the Department for Justice and Security of the Canton of Thurgau (hereafter the Department) on 15 November 1993.

29.  The Department, referring to the request for release of 28 October 1993, noted the necessity under Article 43 of the Swiss Penal Code to detain the applicant on account of his mental illness and the “offences committed” ( begangene Delikte ).  In this respect the Department pointed out that the criminal proceedings had been terminated in view of the applicant's condition, not for lack of evidence.

30.  The Department furthermore found that the proceedings had so far been conducted speedily and without any delay.

31.  On 21 November 1993 the applicant lodged an appeal with the Administrative Court ( Verwaltungsgericht ) of the Canton of Thurgau .

32.  On 26 and 29 November 1993 the Department submitted its observations.

33.  On 29 November 1993 the Administrative Court fixed a hearing for 8 December 1993. On this date, the applicant, a doctor from the psychiatric clinic and two witnesses were heard.

34.  The hearing continued on 15 December 1993.  The applicant's guardian and a representative of the Guardianship Office were heard.

35.  On 15 December 1993 the Administrative Court dismissed the applicant's request for immediate release and ordered his medical examination.

36.  On 22 December 1993 the Administrative Court's decision ordering the applicant's medical examination was transmitted to the expert.

37.  On 24 December 1993 the applicant requested a second expert opinion.  The Administrative Court dismissed this request on 12 January 1994; however, it decided to add further questions to those transmitted on 22 December 1993.

38.  The expert submitted his report on 12 February 1994.

39.  On 16 February 1994 the Administrative Court requested the parties to submit their observations on the expert’s opinion within ten days.

40.  These observations were filed on 24 February 1994 by the applicant and the psychiatric clinic; on 28 February 1994 by the Department; and on 28 February and 1 March 1994 by the expert proposed by the applicant.

41.  On 2 March 1994 the Administrative Court ordered the applicant's release on probation, while placing him under supervision ( Schutzaufsicht ).

42.  The Administrative Court found that according to the expert’s opinion, the applicant suffered from a psychological abnormality, in particular from a mental weakness ( Geistesschwäche ) rather than a mental illness, and that his detention was no longer a justified measure.

43.  The Administrative Court further held that the decision on “the applicant's request of 9 August/28 October 1993” for release had been given speedily, and that delays could be explained by the need to prepare the medical expert opinions.

44.  The decision was served on 18 March 1994.  The applicant was released on the same day.

45.  Against the decision of the Administrative Court the applicant lodged an administrative-law appeal ( Verwaltungsgerichtsbeschwerde ) with the Federal Court ( Bundesgericht ), raising various complaints under Articles 5 and 6 of the Convention.  In relation to Article 6 para. 2 of the Convention he pointed out that it had never been determined whether or not he had committed a criminal offence in 1977.

46.  On 9 September 1994 the Federal Court dismissed the applicant's administrative-law appeal.

47.  Concerning the applicant's complaint that the proceedings at issue had not been conducted speedily within the meaning of Article 5 para. 4 of the Convention, the Federal Court considered that the applicant's submissions of 9 and 23 August 1993 could be regarded as having been included in the separate annual proceedings which the authorities were obliged to conduct in respect of the applicant's release (Article 45 of the Swiss Penal Code) and, therefore, that the period to be taken into consideration commenced on 28 October 1993.  The Federal Court further held that the proceedings before the Administrative Court were time-consuming ( zeitaufwendig ) and complicated, involving over 200 documents, in particular the numerous statements of the applicant.

48.  The Federal Court’s judgment was served on the applicant on 30 November 1994.

B. Relevant domestic law

49.  Article 43 of the Swiss Penal Code provides that the perpetrator of an offence punishable by law with imprisonment may be detained in a psychiatric hospital if his mental state requires it and, inter alia , if it can be expected that this would prevent further offences.

50.  Article 45 para.1 states, insofar as relevant:

“The competent authority examines ex officio if and when release shall be ordered conditionally or on probation.

As regards conditional or probationary release from an institution according to Article … 43, the competent authority must take a decision at least once a year ...”

“Die zuständige Behörde prüft von Amtes wegen , ob und wann die bedingte oder probeweise Entlassung anzuordnen ist .

In Bezug auf die bedingte oder probeweise Entlassung aus einer Anstalt nach Artikel … 43 hat die zuständige Behörde mindestens einmal jährlich Beschluss zu fassen ...”

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

51.  The Commission has declared admissible the applicant’s complaint that the lawfulness of his psychiatric detention was not decided speedily within the meaning of Article 5 para. 4 of the Convention.

B. Point at issue

52.  Accordingly, the only point at issue in the present case is to determine whether or not there has been a violation of Article 5 para. 4 of the Convention regarding the speediness of the proceedings instituted by the applicant.

C. As regards Article 5 para. 4 of the Convention

53.  Article 5 para. 4 of the Convention reads as follows:

“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.”

A. Period to be taken into consideration

54.  In the Government's opinion, it is not easy to determine when the period to be taken into consideration under Article 5 para. 4 of the Convention started as the applicant constantly filed submissions with the authorities.  Reference is made to 28 October 1993 when the applicant, with the help of a lawyer, filed a request for release. The period ended on 18 March 1994 when the decision of the Administrative Court of the Canton of Thurgau was served on the applicant and he was released. The proceedings to be examined thus lasted four months and twenty-one days.

55.  The applicant submits that the period to be examined began on 9 August 1993 when he filed a request for release. It is irrelevant that the request of 28 October 1993 was prepared by a lawyer.  Consequently, more than seven months elapsed until he was released on 18 March 1994.

56.  The Commission considers that the relevant period runs from 9 August 1993 when the applicant explicitly requested his release to 18 March 1994 when the decision of the Administrative Court of the Canton of Thurgau was served and the applicant released.

57.  The period in question therefore lasted seven months and nine days.

B. Compliance with the requirements of Article 5 para. 4 of the Convention

58.  The Government submit that the proceedings do not disclose any inactivity on the part of the authorities.  On the other hand, the matter can be regarded as complex.  Thus, the Administrative Court of the Canton of Thurgau was called upon to examine whether the applicant represented a danger to others and how he would lead his daily life.  The Court consulted different persons and authorities; the views expressed were exchanged among the parties, which also prolonged the proceedings.

59.  The Government recall that the notion of a “speedy” decision within the meaning of Article 5 para. 4 of the Convention must be determined in the circumstances of the concrete case, rather than in the abstract.  Indeed, the Convention organs have been more lenient where the proceedings concerned psychiatric detention as the domestic authorities necessarily require time to examine the case carefully.

60.  The applicant contends that such a long period cannot be justified by the fact that two administrative bodies are called upon to examine a request for release.  He is of he opinion that in his case, the period required to prepare the medical opinion (15/22 December 1993 - 12 February 1994) was too long.  Furthermore, nothing happened from August until October 1993.  He also emphasises that two weeks elapsed after 2 March 1994 until he was released on 18 March 1994 simply because his release was not mentioned in the operative part of the Administrative Court’s decision.

61.  The Commission recalls that Article 5 para. 4 of the Convention, in guaranteeing to persons arrested or detained a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision terminating their deprivation of liberty if it proves unlawful (Eur. Court HR, Van der Leer v. the Netherlands judgment of 21 February 1990, Series A no. 170-A, p. 14, § 35).

62.  In proceedings concerning the lawfulness of a psychiatric detention, the complexity of the medical issues involved is a factor which may be taken into account when assessing compliance with the requirement of “speediness” of Article 5 para. 4 of the Convention.  Nevertheless, the complexity of a medical file, however exceptional, cannot absolve national authorities from their essential obligations under this provision (Eur. Court HR, Musial v. Poland judgment of 25 March 1999, para. 47).  In cases of psychiatric confinement - and in the absence of any particular circumstances -, the Court considered that proceedings lasting approximately five months were not “speedy” within the meaning of Article 5 para. 4 of the Convention (Eur. Court HR, Koendjbiharie v. the Netherlands judgment of 25 October 1990, Series A no. 185-B, pp. 40 and 41, §§ 29 and 30; Van der Leer v. the Netherlands judgment cited above, p. 15, § 36).

63.  In the present case, the Commission finds that the proceedings were not particularly complex.

64.  As regards the conduct of the authorities, the Commission notes that nearly one month elapsed between 9 August 1993 when the applicant requested his release and 7 September 1993 when the authorities of the Canton of Thurgau asked the applicant’s guardian to submit his views.  The Commission further points out that the authorities of the Canton of Thurgau waited six weeks until the latter sent his views on 20 October 1993, without reacting and in the absence of any grounds justifying this delay.  Moreover, the applicant’s medical examination by an expert was ordered on 15 December 1993, approximately four months after the request for release had been filed, and it took then nearly two months for the expert to submit his report on 12 February 1994.  Finally, sixteen days elapsed between 2 March 1994 when the Administrative Court ordered the applicant’s release and 18 March 1994 when the decision was served and the applicant discharged.

65.  In these circumstances, the Commission is of the opinion that the lawfulness of the applicant’s psychiatric detention was not decided speedily within the meaning of Article 5 para. 4 of the Convention.

CONCLUSION

66.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

M.-T. SCHOEPFER      E. BUSUTTIL

Secretary      Acting President

to the Commission of the Commission