EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26955/95

PSYCHEX

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 2 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-29)              4

A. The particular circumstances of the case

(paras. 16-25)              4

B. Relevant domestic law

(paras. 26-29)              6

III. OPINION OF THE COMMISSION

(paras. 30-53)              7

A. Complaint declared admissible

(para. 30) 7

B. Points at issue

(para. 31) 7

C. As regards Article 10 of the Convention

(paras. 32-47)              7

CONCLUSION

(para. 48) 10

D. As regards Article 8 of the Convention

(paras. 49-50)              10

CONCLUSION

(para. 51) 10

E. Recapitulation

(paras. 52-53)              11

DISSENTING OPINION OF MR F. MARTINEZ 12

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              13

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 association is an association under Swiss law aiming at assisting persons affected by compulsory psychiatric treatment.  Before the Commission the applicant association is represented by Mr E. Schönenberger , a lawyer practising in Zürich .

3. The application is directed against Switzerland.  The respondent Government are represented by Mr Ph . Boillat , Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.

4. The case concerns the applicant association's complaint that it was not allowed to send a letter and accompanying documents to the detainees of a psychiatric clinic.  The applicant association invokes Articles 8 and 10 of the Convention.

B. The proceedings

5. The application was introduced on 17 March 1995 and registered on 3 April 1995.

6. On 25 November 1996 the Commission 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 association's complaint under Article 10 of the Convention concerning the distribution of a circular.

7. The Government's observations were submitted on 14 February 1997.  The applicant association replied on 22 February 1997.

8. On 20 May 1997 the Commission declared admissible the applicant association's complaint under Articles 8 and 10 of the Convention that it was not allowed to send a letter and other documents.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 3 June 1997 and they were invited to submit such further information or observations on the merits as they wished.  However, no such submissions were filed.

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

C. The present Report

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

Mrs G.H. THUNE, Acting President

Mr S. TRECHSEL

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 2 December 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to 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.

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

15. 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

16. On 25 May 1992 the applicant association filed a request with the director of the Rheinau Psychiatric Clinic for distribution of a set of documents to all detainees of the clinic, namely a letter accompanied by a power of attorney, a brochure on the applicant association, a copy of the Schönenberger and Durmaz v. Switzerland case (Eur. Court HR, judgment of 20 June 1988, Series A no. 137) and a model letter to the Psychiatric Court Commission at the Court of Appeal of the Canton of Zürich .

17. The letter to all detainees of the clinic, written on the association's letter paper, was signed by Mr Schönenberger and mentioned his title "lawyer".  It stated:

"This letter is only of relevance to you if you are involuntarily in the Rheinau Clinic and if you want to be released.

The (applicant association) is willing to help you obtain your liberty.  You can read in the enclosed brochure what the association is and what it does.

At this point we draw your attention to Article 5 para. 4 of the European Convention on Human Rights:

'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.'

So, if you do not want to live in the clinic, you can send the enclosed letter to the Psychiatric Court Commission, Court of Appeal, 8023 Zürich .  This Commission will then have to examine whether you are rightly or wrongly in the institution.  At the same time you may give the power of attorney to the (applicant association) with the enclosed letter.  We will then support you with the organisation of your life outside the clinic and also represent you before the competent administrative and judicial authorities."

18. The brochure was of a smaller format, entitled " Psychex v. Compulsory Psychiatry", printed recto/verso, and numbered 8 pages.  It contained three sections: one section was entitled "Criticism of compulsory psychiatry from a medical point of view" and was written by a doctor; a second section, written by Mr Schönenberger , was entitled "Criticism of compulsory psychiatry from a legal point of view"; a third section, entitled " Psychex ", referred, inter alia , to the allegedly catastrophic situation in psychiatric institutions which disclosed the unlawfulness of detention and compulsory treatment.  The brochure regarded as well-founded the reproaches that the persons concerned were also tortured; it stated that Psychex acted as representative of persons persecuted by psychiatry.

19. The model letter to the Psychiatric Court Commission at the Court of Appeal of the Canton of Zürich stated:

"Based on Article 5 para. 4 of the Convention, I request examination of my detention, my immediate release and legal representation based on S. 397f para. 2 of the Civil Code, possibly on S. 4 of the Federal Constitution.  The conditions herefor transpire from the case-file."

20. On 8 July 1992 the Rheinau Psychiatric Clinic refused distribution of the letter and imposed costs of 200 Swiss Francs (CHF).

21. The applicant association's appeal was dismissed by the Health Department ( Gesundheitsdirektion ) of the Canton of Zürich on 29 July 1992.

22. On 4 February 1993 the Bar Supervisory Commission ( Aufsichts-kommission über die Rechtsanwälte ) of the Canton of Zürich fined the applicant association's representative 1,000 CHF for breaching the prohibition of obtrusive publicity ( Verbot aufdringlicher Werbung ) stated in S. 7 para. 2 of the Lawyers' Act ( Anwaltsgesetz ; see below, Relevant domestic law) of the Canton of Zürich .

23. Meanwhile the applicant association filed a further appeal against the decision of 29 July 1992 which was dismissed by the Government ( Regierungsrat ) of the Canton of Zürich on 21 September 1994.  The Government found that the applicant association's circular severely breached the statutory prohibition of obtrusive publicity for lawyers' activities.  The Government also noted that the patients in the clinic were comprehensively informed of their rights.  Thus, when entering the clinic the duty doctor gave them a leaflet which mentioned, inter alia , the possibility of applying to the Psychiatric Court Commission in the event of compulsory hospitalisation .

24. The applicant association's public law appeal ( staatsrechtliche Beschwerde ), in which it also complained about the length of the proceedings, was dismissed by the Federal Court ( Bundesgericht ) on 22 February 1995.  In its decision the Court found that it did not necessarily transpire from S. 7 para. 2 of the Lawyers' Act that it authorised or obliged the competent authorities to refuse mail which contained obtrusive publicity.  This provision did not therefore provide a sufficient legal basis for the interference in the applicant association's rights under Articles 8 and 10 of the Convention, as mentioned by the Government of the Canton of Zürich .

25. Rather, in the Court's opinion the legal basis for the interference at issue lay in S. 4 subpara . 1 (b) of the General House Rules for Cantonal Hospitals ( Allgemeine Hausordnung für die kantonalen Krankenhäuser ; see below, Relevant domestic law).  Moreover, the prohibition was in the public interest and proportionate.  With reference to the case of Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria (Eur. Court HR, judgment of 19 December 1994, Series A no. 302), the Federal Court further found that hospitals could in principle refuse to distribute unaddressed publicity material ( unadressierte Werbesendungen ), sent from outside to the institution, if it disturbed the running of the institution and the patients' peace.

B. Relevant domestic law

26. S. 4 of the Federal Constitution ( Bundesverfassung ) enshrines the principle of equality before the law.

27. According to S. 397f para. 2 of the Civil Code ( Zivilgesetzbuch ), where it is decided in court proceedings to detain a person on account, inter alia , of mental illness, the judge may if necessary appoint a legal representative.

28. According to S. 7 para. 2 of the Lawyers' Act ( Anwaltsgesetz ) of the Canton of Zürich , a lawyer shall refrain from obtrusive recommendation ( aufdringliche Empfehlung ).

29. S. 4 subpara . 1 (b) of the General House Rules for Cantonal Hospitals ( Allgemeine Hausordnung für die kantonalen Krankenhäuser ) of the Canton of Zürich prohibits unauthorised publicity in hospitals for political, commercial and idealistic purposes, for instance by means of leaflets and notices ( Anschläge ).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

30. The Commission declared admissible the applicant association's complaint under Articles 8 and 10 (Art. 8, 10) of the Convention that it was not allowed to send the letter and other documents to the detainees of the psychiatric institution.

B. Points at issue

31. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 8 (Art. 8) of the Convention; and

- whether there has been a violation of Article 10 (Art. 10) of the Convention.

C. As regards Article 10 (Art. 10) of the Convention

32. The Commission notes that the applicant association intended to distribute a letter and accompanying documents to all detainees of the Rheinau Psychiatric clinic.  These documents contained information about release procedures and about the applicant association.  In the Commission's opinion, the complaint falls to be examined primarily under Article 10 (Art. 10) of the Convention which states:

"1. Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

33. The applicant association complains of a breach of Article 10 (Art. 10) of the Convention as the director of the Rheinau Clinic refused to distribute the documents at issue.  Had the director merely disagreed with the content of the brochure, he could have prohibited its distribution, though not that of the other documents.  In fact, the documents were intended to help the detainees.  The association points out that it has defended over 1,400 psychiatric patients so far, and most persons who have been defended by the association have been released.  In the applicant association's opinion, the Government do not wish that the detainees should receive an opinion which digresses from the official one.

34. The Government contend that the interference with the applicant association's rights under Article 10 (Art. 10) of the Convention was "prescribed by law", as it was based on S. 4 of the General House Rules for Cantonal Hospitals of the Canton of Zürich , and that it served the purpose of "the protection of health (and) of the ... rights of others" within the meaning of this provision.

35. As regards the necessity of the measure the Government consider that the circular letter addressed to the detainees of the clinic reflected a certain objectivity, whereas the enclosed brochure bluntly told all the addressees that their stay in the clinic was unlawful and that they were systematically subjected to torture.  Moreover, the applicant association's right to distribute documents was limited by practical considerations.  Such distribution cannot become the main duty of a hospital.  Clearly the patients in the clinic, who at times felt abandoned and had particular needs, were interested in knowing their rights and possessing the address of an association which would defend them.  Exhaustive information was therefore necessary.  Thus, in the Rheinau Clinic every new patient received a leaflet explaining his or her rights as well as the possibilities of requesting release, the procedure being extremely simple and no lawyer being required.  In 1996, 76 requests for a judicial review of detention were filed; half were withdrawn during the proceedings; a quarter were refused, and a final quarter were successful.  Every patient may request the assistance of the social services of the Canton of Zürich .

36. The Government further point out that the addressees of the letter are often in a state of considerable confusion and not in a position sufficiently to appreciate their situation and their acts.  It could thus be very damaging to their medical treatment and also to their well-being in general if it was suggested that their detention was unlawful.  Indeed, it could even be extremely harmful if they were told that their medical treatment amounted to torture, since any relationship of confidence between the clinic staff and the patient would be destroyed.

37. The Government consider that the decision of the Bar Supervisory Commission of 4 February 1993 is not the object of the present application, though it cannot be completely disregarded either. Subsidiarily , it is contended that in the documents concerned the lawyer employed a completely inappropriate style in a particularly sensitive area.

38. The applicant association was not permitted to distribute a letter and the accompanying documents.  It is not disputed by the Government that there has been an interference by a public authority with the exercise of the applicant association's right under Article 10 para. 1 (Art. 10-1) of the Convention to impart information.  The Commission must therefore examine whether this interference satisfied the conditions laid down in Article 10 para. 2 (Art. 10-2) of the Convention.

39. In its decision of 22 February 1995 the Federal Court relied for the justification of the interference on S. 4 subpara . 1 (b) of the General House Rules for Cantonal Hospitals of the Canton of Zürich which prohibits unauthorised publicity in hospitals for political, commercial and idealistic purposes.  The measure was, therefore, "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

40. Furthermore, the measure at issue, aiming at ensuring the running of a hospital, served "the prevention of disorder (and) the protection of health" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

41. Finally, the Commission must examine whether the interference was "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.  According to the Convention organs' case-law, the interference at issue must correspond to a "pressing social need" and be proportionate to the legitimate aim pursued.  In determining whether an interference is "necessary in a democratic society" the Convention organs must also take into account that a margin of appreciation is left to the Contracting States (see Eur. Court HR, Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 24 et seq., para. 55).

42. The Commission notes that the present case differs from the Schönenberger and Durmaz v. Switzerland case  which raised issues under Article 8 (Art. 8) of the Convention.  In that case, the letter intercepted was addressed to an individual person remanded in custody, at the request of his wife, and offering him legal representation in pending criminal proceedings (see Eur. Court HR, judgment of 20 June 1988, Series A no. 137).  The present case also differs from the case of Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria concerning the refusal to distribute a periodical publication to all military premises in the country (Eur. Court HR, judgment of 19 December 1994, Series A no. 302).  In that case, other publications, including those of a private association of soldiers, were distributed free of charge by the army.

43. In the present case, the letter envisaged by the applicant association was a circular intended for distribution to all detained in one particular psychiatric institution, and generally offering legal assistance by the applicant association.  The letter was accompanied by a power of attorney, a brochure on the applicant association, a copy of the Schönenberger and Durmaz v. Switzerland case (Eur. Court HR, ibid.) and a model letter to the Psychiatric Court Commission at the Court of Appeal of the Canton of Zürich .

44. The Commission finds that the refusal to distribute documents from associations like the applicant to detainees in a psychiatric institution normally cannot be considered necessary in a democratic society, if the documents only contain unobjectionable information concerning, for instance, their right to release proceedings under Article 5 para. 4 (Art. 5-4) of the Convention.

45. The Commission notes, however, that the formulations employed in the present case, in particular in the brochure accompanying the letter, implied that patients in the clinic were unlawfully detained and exposed to torture.  In the Commission's opinion, such a document only inadequately meets the often complex issues of psychiatric detention.  Indeed, the brochure could have served to raise unrealistic hopes among the patients as to the possibility of premature release from hospital.  Given its widespread distribution among all the detainees, the document could have created uncertainty and stirred unrest among the patients.  It could, therefore, not be excluded that the document would have a detrimental effect on the treatment of some of the patients and thus caused damage to their health.

46. Given the close link between the various documents submitted, the authorities could furthermore not be expected to examine each of them as to whether they contained a possible detrimental effect, and to separate them accordingly from others.  Neither could the authorities be expected to ask the applicant association to redraft the documents.

47. Given the State's margin of appreciation in such matters, the Commission does not consider the Government's opinion unfounded that the interference with the applicant association's right to impart information corresponded to a "pressing social need" and was not disproportionate to the aim pursued.  The interference could, therefore, reasonably be considered "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

CONCLUSION

48. The Commission concludes, by 31 votes to 1, that in the present case there has been no violation of Article 10 (Art. 10) of the Convention.

D. As regards Article 8 (Art. 8) of the Convention

49. The Commission has also examined the applicant association's complaint under Article 8 (Art. 8) of the Convention which states:

"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."

50. However, in view of its conclusion under Article 10 (Art. 10) of the Convention (see above, para. 48), the Commission finds that no separate issue arises under Article 8 (Art. 8) of the Convention.

CONCLUSION

51. The Commission concludes, unanimously, that in the present case no separate issue arises under Article 8 (Art. 8) of the Convention.

E. Recapitulation

52. The Commission concludes, by 31 votes to 1, that in the present case there has been no violation of Article 10 (Art. 10) of the Convention (see above, para. 48).

53. The Commission concludes, unanimously, that in the present case no separate issue arises under Article 8 (Art. 8) of the Convention (see above, para. 51).

        M. de SALVIA                        G.H. THUNE

         Secretary                            Acting President

     to the Commission                   of the Commission

(Or. French)

OPINION DISSIDENTE DE M. F. MARTINEZ

J'ai voté pour la violation de l'article 10 de la Convention car il me semble que la solution proposée par la Commission est contraire à l'arrêt de la Cour dans le cas Vereinigung Demokratischer Soldaten Österreichs et Gubi c. Autriche ( Série A no. 302), rendu le 19 décembre 1994.