AS TO THE ADMISSIBILITY OF

                     Application No. 10801/84

                     by L.L.

                     against Sweden

        The European Commission of Human Rights sitting in private on

20 January 1986, the following members being present:

                     MM.  C. A. NØRGAARD, President

                          G. SPERDUTI

                          F. ERMACORA

                          E. BUSUTTIL

                         G. JÖRUNDSSON

                          G. TENEKIDES

                          S. TRECHSEL

                          B. KIERNAN

                          A. S. GÖZÜBÜYÜK

                         A. WEITZEL

                          J. C. SOYER

                          H. G. SCHERMERS

                          H. DANELIUS

                          G. BATLINER

                          J. CAMPINOS

                          H. VANDENBERGHE

                      Mrs G. H. THUNE

                      Mr. H. C. KRÜGER, Secretary to the Commission

        Having regard to Art. 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 5 August 1983

by L.L. against Sweden and registered on 7 February 1984 under file No.

10801/84;

        Having regard to

-       the report provided for by Rule 40 of the Rules of Procedure

        of the Commission;

-       the Government's observations of 23 May 1984;

-       the applicant's observations of 14 September 1984;

-       the report provided for by Rule 40 of the Rules of Procedure;

-       the Commission's decision of 6 March 1985 to adjourn the

        examination of the case;

-       the report provided for by Rule 40 of the Rules of Procedure;

-       the Government's letter of 7 June 1985;

-       the Government's supplementary observations of 23 August 1985;

-       the Government's information by letter of 25 November 1985;

-       the submissions of the parties at the hearing on 20 January

        1986;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be

summarised as follows:

        The applicant is a Swedish citizen, born in 1949 and resident

at Lund.  She is represented before the Commission by Mr. Göran

Melander, an associate professor of law at the University of Lund.

        The particular facts of the case

        On 19 July 1977 the applicant was involuntarily admitted to the

St. Lars Hospital at Lund under Section 1 (b) of the 1966 Act on

Institutional Psychiatric Care (lagen om beredande av sluten

psykiatrisk vård i vissa fall).  The next day, the forced admission

into the hospital was examined by the Chief Medical Officer, who

concluded that the provisions of Section 1 (a) as well as (b) were

applicable.  The applicant was thus detained at the hospital.

        Five months later on 7 December 1977, the applicant was

provisionally discharged. The diagnosis was then "parafrenia

fantastica" and she was prescribed continued medication with a

neurolepticum.  Until January 1984, the applicant was discharged on a

trial basis, except for two short periods at the end of 1978.  She was

admitted to the hospital on 2 October and discharged on 16 October,

admitted again on 26 October and provisionally discharged on 1 December

1978.  While on provisional discharge, the applicant has received

treatment as an out-patient (polyclinical treatment).  Her provisional

discharge was extended continually, on the ground that she was still

in need of treatment, that her health would deteriorate substantially,

were the treatment to stop, and that she was unable to realise the

nature of her disease.

        On 26 May 1983 the Psychiatric Council (psykiatriska nämnden)

received a petition from the applicant to have her "provisional

discharge discontinued".  Her petition was interpreted as a petition

for permanent discharge.  On 8 June 1983 her letter was sent to the

Discharge Council (utskrivningsnämnden) of Lund, the competent body for

this matter.  The Discharge Council had to adjourn the examination of

her petition on 23 June 1983, since she was not present in person and

had no legal counsel to represent her before the Council.

        On 1 July 1983 the Council decided the matter.  The applicant,

having announced that she did not wish to appear in person, was

represented by a lawyer and member of the Swedish Bar Association. The

applicant's petition was rejected with reference to the provisions of

Section 1 (a) of the Act on Institutional Psychiatric Care.  The

Council stated inter alia that there were reasons to believe that the

applicant would stop taking her medication if discharged and that that

would lead to her health deteriorating.

        The applicant appealed against this decision on 2 August 1983

to the Psychiatric Council.

        On 26 September the Psychiatric Council received observations

from the Chief Medical Officer of St. Lars and from the Discharge

Council and on 11 October 1983 the Psychiatric Council rejected the

appeal, stating that there were no reasons to amend the decision of the

Discharge Council.

        On 17 January 1984, the applicant was permanently discharged

from the hospital.

        The Swedish legislation

        The rules on detention of persons with mental illnesses are

laid down in the 1966 Act on Institutional Psychiatric Care.  Section

1 (a) and (b) of the said Act read:

        "A person suffering from mental disease may, regardless

of consent, be given compulsory institutional psychiatric care

by virtue of this Act, if such care is indispensable in view of

the nature and severity of the disease, provided that the said

person

(a)  as a result of his disease is manifestly unable to

understand his disease or as a result of his addiction to drugs

is manifestly unable to understand his need of treatment, and

where his health would substantially improve by the treatment or

substantially deteriorate if the treatment was not given, or

(b)  as a result of his disease presents a danger to the personal

safety or physical or mental health of others, or to his own life

..." (subsequent alternatives omitted here).

        In addition, admission to a psychiatric hospital can only be

decided if there is a certificate on the need for treatment, issued by

an authorised medical officer, who must not be affiliated with the

hospital to which the patient is supposed to be admitted, and who must

have examined the patient personally and issued the certificate

immediately after his examination (Sections 3, 4 and 6).  The decision

to admit a person has in principle to be made by the Chief Medical

Officer of the hospital or clinic.  A certificate must not be accepted

as a basis for such a decision, if it is issued more than a fortnight

prior to the decision (Section 8).

        If the patient is admitted in accordance with Section 8, the

Chief Medical Officer shall examine the patient as soon as possible and,

no later than on the eighth day after the admission, consider whether

the patient can be subject to treatment under the Act.  If the medical

officer considers that this is the case, he shall decide that the

patient shall be detained at the hospital.  The patient shall otherwise

be discharged (Section 9).

        A person who has been admitted for treatment under the Act, must

be discharged as soon as the conditions, as laid down in Section 1, are

no longer present.  The question whether the patient qualifies for

discharge must be examined continuously (Section 16).  A person may

also be discharged provisionally on a trial basis.  Such a discharge may

only be effected if there are special reasons and if the patient

presents no danger to others or to himself.  The discharge must be

limited in time, and may last no longer than six months.  The time limit

can be extended by not more than six months at a time (Section 19).  It

is also possible to issue regulations for the patient and to subject him

to supervision by a suitable person.

        Questions of discharge or provisional discharge are decided by

the Chief Medical Officer.  His decisions can be appealed to the

Discharge Council.  The Chief Medical Officer may also refer such issues

to the Discharge Council.  The decisions of the Council may be appealed

to the Psychiatric Council (Sections 21 and 22).  The Discharge Council

is also authorised to act in these matters ex officio or on petitions by

the patient or his relatives etc (Sections 17 and 18).

        There are at present 33 Discharge Councils in Sweden.  Each

Council consists of five members: the chairman, who shall be or shall

have been a permanent judge (ordinarie domare), one medical officer, who

should have special qualifications in the matter of mental diseases, one

person with special knowledge of social issues, and two additional

members.

        The Psychiatric Council, which has its office in Stockholm, has

six members: the chairman, who shall be or shall have been a permanent

judge, two medical officers, both of whom must have special

qualifications in the matter of mental diseases, one person who is

acquainted with social issues, and two additional members.

        The members of all the Councils are appointed by the Government

for periods not exceeding four years.  All members have to take the oath

of a judicial office, ie the oath that the judges in Sweden must take

(domared), before they serve on the Council.  The Act also contains

rules on disqualification.  The Instrument of Government

(regeringsformen) further provides guarantees that such Councils will be

free to act independently without any governmental interference (Chapter

11, Sections 2 and 7).

        The patient and the Chief Medical Officer of the hospital

concerned should be present at the Discharge Council's meetings, unless

there are particular reasons preventing their presence (Section 30).

The Discharge Councils meet regularly each week at the hospital, whereas

the Psychiatric Council meets every fortnight.

        Chapter 2, Section 9 of the Instrument of Government reads:

        "Where a public authority other than a court has deprived

a citizen of his liberty on account of a criminal act or

suspicion of such act, such person shall have the right to have

the matter examined by a court without undue delay.  This shall

not, however, apply where the issue is one of transferring to the

Realm the execution of a penal sanction involving deprivation of

liberty which has been imposed in another State.

If a citizen, for reasons other than those referred to in the

first paragraph, has been coercively taken into custody, he shall

likewise be entitled to have the matter examined by a court

without undue delay.  In such a case an examination by a board

shall be deemed to rank equally with the examination by a court,

provided that the composition of the board is governed by rules

of law and the chairman of the board shall be or shall have been

a permanent judge.

If such examination as referred to in the first or second

paragraph has not been entrusted to an authority, competent

according to the provisions laid down therein, the examination

shall be carried out by a court of general jurisdiction."

        The question whether the Discharge Councils fulfil the

requirement of a "court" as laid down in Art. 5, para. 4 of the

Convention was addressed in particular in the "travaux préparatoires" of

the legislation, both in 1966, when the proposal for the Act on

Institutional Psychiatric Care was made, and in 1973, when the proposal

for a new Constitution was presented to Parliament.

        In 1966 the competent Minister noted inter alia (Government Bill

1966:53 p. 207):

        "The Committee points out that the Chief Medical Officer

should not be a member of the local board, when the board is

reviewing decisions by him or any other physician at the hospital

in question.  Neither is it satisfactory in the Committee's view

to have the chief medical officer take part in the board's

examination of a release case as the first instance.  The

Committee therefore proposes that the Chief Medical Officer must

not be a member of the board.  In this context, the Committee

points to the requirement of independence which, having regard

to the European Convention on Human Rights, must be met by bodies

that are authorised to decide matters of admission to and release

from mental hospitals."

        In 1973 the Minister of Justice stated as follows (Government

Bill 1973:90 p. 386):

        "Concerning compulsory custody for other reasons than

criminal offences or suspicion of criminal offences, an

examination by a board should be considered equal to that of a

court, if the composition of the board is prescribed by law and

its chairman is, or has been, a permanent judge.  A rule to this

effect should be included in the section now under discussion.

The result will be that the Instrument of Government will not

prevent the continued practice of examinations by a board, which

is at present prescribed in the Act (1966:293) on Institutional

Psychiatric Care ...  But for the Discharge Councils ... it

should be prescribed that the chairman not only should, but must

fulfil the requirements just mentioned.  With such a wording of

the proposed provision in the Instrument of Government, a wording

which by the way our special legislation in this field already

contains to a large extent, there are satisfactory guarantees

that the examination by boards will be as secure as an

examination by the courts.

In this context, I would like to point out that, even if a board

of the nature now proposed is not a court according to Swedish

conceptions, the nature of the matters to be dealt with by the

board, the composition of the board, the nature of its functions,

its competence to conduct investigations, and its totally

independent status vis à vis the Government and other authorities

(cf. Section 7) speak in favour of the conclusion that the board

should be considered to meet the standards set by international

law for courts, as defined by the European Convention for the

Protection of Human Rights and Fundamental Freedoms."

COMPLAINTS

1.      The applicant complains that neither the Discharge Councils nor

the Psychiatric Council satisfy the requirements of a "court" as

prescribed in Art. 5, para. 4 of the Convention.  She therefore alleges

a violation of Art. 5, para. 4.

        She also requests compensation under Art. 5, para. 5.

2.      The applicant also states that according to Art. 6, para. 1 of

the Convention she is entitled to a court determination, but that she

has not had that benefit in the present case.

3.      She further complains that the provisional discharge constituted

an unjustified interference with her right to respect for private life

and that there has accordingly been a breach of Art. 8 of the

Convention.

4.      Finally, the applicant complains that she has not been accorded

the right to an effective remedy for the violations of the Convention

which she alleges is in violation of Art. 13.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 5 August 1983 and registered

on 7 February 1984.

        On 14 March 1984 the Commission examined the admissibility of

the application, and decided pursuant to Rule 42, para. 2, sub-para. b

of its Rules of Procedure to invite the Government to submit written

observations on the admissibility and merits of the application (Art. 5

of the Convention).

        The Government's observations were dated 23 May 1984 and the

applicant's observations in reply were dated 14 September 1984.

        On 5 June 1984 the President of the Commission decided to grant

the applicant legal aid.

        On 6 March 1985 the Commission examined the admissibility of the

application and decided to adjourn its examination.

       On 7 May 1985, the Commission decided to invite the parties to a

hearing on the admissibility and merits of the applicaton at which the

parties were invited to make submissions under Arts. 5, para. 4, 6, 8

and 13 of the Convention.  Since the hearing could not be held until

later, the Government were invited to submit in the meantime any such

written observations as they might wish to make under Arts. 6, 8 and 13

of the Convention.

        By letter of 7 June 1985, the Government requested the

Commission to invite the applicant to submit information and

documentation as regards Art. 8 of the Convention.

        On 8 July 1985, the Commission examined the Government's request

and decided to maintain its decision of 7 May 1985.  It further extended

the time-limit for the written observations.

        The Government submitted further observations by letters dated

23 August and 25 November 1985.  The applicant did not submit any

further written observations.

        At the hearing, which was held on 20 January 1986, the parties

were represented as follows:

The Government

Mr. Hans Corell              Ambassador, Under-Secretary for Legal and

                             Consular Affairs, Ministry for Foreign

                             Affairs, Agent

Mr. Karl-Ingvar Rundquist    Under-Secretary for Legal Affairs,

                             Ministry of Health and Social

                             Affairs, Adviser

Mr. Håkan Berglin            Legal Adviser, Ministry for Foreign

                             Affairs, Adviser

The applicant

Mr. Göran Melander          Associate Professor of law, Institute of

                            International Law, University of Lund

SUBMISSIONS OF THE PARTIES

A.      The Government

1.      The Facts

        The possibility of provisional discharge has been an important

means of preparing patients for a final discharge.  This possibility

often functions as an alternative to treatment in an institution.  It

is, of course, important that provisional discharges are not extended

over long periods.  But in certain cases a long period of provisional

discharge could be an appropriate means if the patient needs to take

medicine but lacks ability to understand his illness.  In such cases

provisional discharge means that relapses with subsequent hospital

treatment could be avoided.

        The reason why a patient is provisionally discharged is that

such a patient is under the obligation to observe a certain prescription

which the Discharge Council may decide.  Reference is made to Section 19

of the 1966 Act where it is laid down that the patient may be subjected

to rules and could also be put under the supervision of a certain

person.  As an example the patient could be ordered to visit the

hospital once a week or to have an injection once a month or something

like that.  He could be ordered not to drink alcoholic beverages or be

subjected to other rules of this kind.

2.      The Admissibility

        2.1     Art. 5, para. 4 of the Convention

        The Government submit that Art. 5, para. 4 deals with persons

who are deprived of their liberty.  The Government also submit that the

applicant has been discharged from the hospital since the end of 1977 on

a trial basis.  She has not been deprived of her liberty by detention

since the end of 1978.  It is, therefore, the opinion of the Government

that her complaint falls outside the scope of Art. 5, para. 4.

Consequently, the application should be rejected as being incompatible

ratione materiae with the provisions of the Convention.

          It is admitted that the applicant has been deprived of her

liberty earlier and that she may have had a case under the Convention,

had she brought her application at an earlier stage.  At the present

state of the file however it is submitted that the applicant has not met

the conditions of Art. 26 of the Convention.

        2.2     Art. 6 of the Convention

        Since there is no question of a criminal charge against the

applicant, the only situation in which Art. 6 could be applicable in

this case is that the matter before the Swedish authorities concerns the

determination of her "civil rights and obligations".  The Government

contest that this is the case.  It is stressed that a decision to

subject a patient to treatment under the 1966 Act on Institutional

Psychiatric Care does not automatically entail the loss of a patient's

right to exercise his private rights, eg the capacity to administer his

property.  Consequently there is no similarity in this respect between

the applicant's case and the Winterwerp case (Eur. Court H.R., judgment

of 24 October 1979, Series A no. 33 paras. 73 and 75).  Nor did the

decision on institutional care prevent the applicant from entering into

marriage.  Consequently the Government submit that this aspect of the

application is incompatible ratione materiae with the provisions of the

Convention.

3.      The Merits

        3.1     Art. 5, para. 4 of the Convention

        Should the Commission find that Art. 5, para. 4 was applicable

to the provisional discharge, the Government submit that under the

Swedish legal system it should be evident that the proceedings before

the Discharge Councils are meant to satisfy the requirements of court

proceedings.  Thus the patient is represented by legal counsel and an

oral hearing is held during which the patient's arguments may be

presented etc.  Reference is made to Sections 28-34 of the Act on

Institutional Psychiatric Care.

        The Discharge Councils are composed so as to ensure a maximum of

professional knowledge as well as layman influence.  The fact that the

chairman is a judge or a former judge is a further guarantee of an

impartial and legally correct procedure.  For all intents and purposes,

therefore, these councils should be considered equal to courts as

prescribed by Art. 5, para. 4.

        The Government refer to a list which they have compiled of the

33 Discharge Councils and their chairmen.  They point out that 26 of the

chairmen were permanent judges of the general courts of first instance,

one was a permanent judge of the administrative court of first instance,

two were permanent judges of courts of appeal, one was a permanent judge

of a Social Insurance Court (försäkringsrätt) and three were retired

judges.  Moreover, the present chairman of the Psychiatric Council is a

judge of the Supreme Administrative Court (regeringsrätten).

        Additional provisions regarding the procedure are laid down in

the 1966 Act.  Further instructions are given in the Instruction for the

Discharge Councils (instruktion för utskrivningsnämnderna) and the

Instruction for the Psychiatric Council (instruktion för psykiatriska

nämnden).

        The applicant's petition was examined by the Discharge Council

as soon as circumstances permitted after her petition.  A considerable

delay was caused by the applicant herself, since she sent her petition

to the Psychiatric Council in Stockholm instead of the Discharge Council

at Lund.  As far as the Government have been able to establish the

Discharge Council received the petition on 8 June and discussed the

matter at its meeting on 23 June 1983, when the examination of the

petition had to be adjourned due to the fact that the applicant did not

appear in person and had no legal counsel to represent her.  But even if

the whole period between 26 May and 1 July 1983 is considered, the

Government contend that the requirements of a speedy process of Art. 5,

para. 4 were met.

        Referring to the Vagrancy cases (Eur. Court H.R., judgment of 18

June 1971, Series A no. 12), the Luberti case (judgment of 28 February

1984, Series A no. 75) and to the Swedish law which provides firm rules

for the proceedings on discharge matters under the Act on Institutional

Psychiatric Care, as well as the establishment by law of independent and

impartial bodies to decide on these matters, the Government conclude

that the Swedish system satisfies the requirements of the Convention.

        3.2     Art. 6 of the Convention

        In consequence, with their stand on the issue under Art. 5,

para. 4, the Government maintain that the Discharge Councils and the

Psychiatric Council meet the requirements of a tribuanl within the

meaning of Art. 6.  The question arises whether there is a difference

between the two Articles of the Convention.  In the English text the

word "court" is used in Art. 5, para. 4, whereas the word "tribunal" is

used in Art. 6, para. 1.  It is noted, however, that in the French

version of the Convention the word "tribunal" is used in both Articles.

The Government refer to the Winterwerp judgment (op. cit., para. 60).

        The Government submit that it seems as if the Court is of the

opinion that the standards for the "tribunal" in Art. 6, para. 1 are set

at a higher level than that for the "court" in Art. 5, para. 4. The

Government maintain however that the two Swedish authorities now in

question, the Discharge Council and the Psychiatric Council, also meet

the requirements of Art. 6, para. 1.

        There are three prerequisites which must be fulfilled as far as

the tribunal is concerned.  It must be independent.  It must be

impartial.  It must be established by law.

        As to the independence, there can be no doubt that this

requirement is fulfilled.  From Chapter 11, Section 7 of the Swedish

Instrument of Government it follows that a similar independence to that

of the ordinary courts in Sweden is attributed to administrative bodies

when they exercise official power.  The provision expressly mentions the

independence of bodies that exercise official power in particular cases

in regard to private subjects or apply provisions of law enacted by the

Parliament.  It is stressed that, even if the Discharge Council is

considered as an administrative body in Sweden, such a council is

nevertheless independent under the Constitution.

        Where the Councils have their premises - a question which has

been raised by the applicant - is of no relevance in this context. From

a psychological point of view it may be important to the patients

whether they go to the same premises as the hospitals, or if they go

outside the hospital premises.  That may be of a psychological

significance, but in the legal context this feature in the Swedish

system is of no relevance.

        With respect to the two remaining prerequisites, it is obvious

that the Discharge Councils are established by law and that they are

impartial.  The applicant has not even alleged that the Discharge

Council has not acted in an impartial way.  With regard to impartiality,

the Government refer to the Campbell and Fell Case (Eur. Court H.R.,

judgment of 28 June 1984, Series A no. 80 para. 78) and the Sramek case

(Eur. Court H.R., judgment of 22 October 1984, Series A no. 84 para.

38).

        It is admitted that the hearing in the applicant's case was not

public in so far as there was no general public admitted to the hearing.

In the Government's opinion a public hearing was, however, not required

with respect to the subject matter, since Art. 6 permits that the public

may be excluded from all or part of the trial where the interests of

inter alia the private life of the parties so require, or to the extent

strictly necessary in the opinion of the court in special circumstances

where publicity would prejudice the interests of justice.

        The question remains whether the decisions by the two

authorities have been pronounced publicly.  The Government admit that no

positive actions have been taken in order to make the decisions public.

The Government refer to Chapter 7, Section 2 of the Secrecy Act

(sekretesslagen).  According to this provision secrecy does not apply to

decisions by the Discharge Councils or the Psychiatric Council.  Under

the circumstances, this fact in connection with the general Swedish

rules on free access to official documents have as a result that anybody

has the right to examine on request the decisions by the two

authorities.  This publicity must satisfy the basic aim of Art. 6,

namely to guarantee that justice is not administered in camera.

Reference is in this context made to the Sutter case (Eur. Court H.R.

judgment of 22 February 1984, Series A no. 74 paras. 33 and 34).

        3.3     Art. 8 of the Convention

        The Commission has asked whether the facts of the case

constitute an interference with the applicant's right to respect for her

private life as guaranteed by Art. 8, para. 1 and if any such

interference with the applicant's right to respect for private life is

justified under the terms of Art. 8, para. 2.

        The Government admit, in principle, that decisions taken under

the 1966 Act may affect a person's right to respect for his private and

family life, his home and his correspondence.  The Government maintain,

however, that the actions taken in the present case were permitted in

accordance with Art. 8, para. 2.  The measures were taken in accordance

with the law and necessary in a democratic society for the protection of

health and morals, and for the protection of the rights and freedoms of

others.

        3.4     Art. 13 of the Convention

        The Government maintain that the possibility for the applicant

to have her case reviewed by the Discharge Council and the Pyschiatric

Council constitutes effective remedies within the meaning of Art. 13.

        In the Government's opinion the applicant had several further

effective remedies before national authorities in the present case. The

following are mentioned:

-       doctors are subject to supervision by the National Board

        of Social Welfare (socialstyrelsen) and are subject to

        disciplinary responsibility in accordance with the Act

        on the Supervision over Health and Medical Staff (lagen

        om tillsyn över hälso- och sjukvårdspersonalen).  Such

        disciplinary matters are dealt with by a special board under

        the chairmanship of a judge.

-       the Discharge Councils and the Psychiatric Council are

        also subject to the supervision of the Parliamentary

        Ombudsman (JO).  The Ombudsman has made several inspections

        of the Discharge Councils over the years.

-       both the Chief Medical Officer and the members of the Councils

        are subject to the rules on misuse of office of the Penal

        Code.

-       compensation is also possible in accordance with Section 3

        of the Act on Compensation for Deprivation of Liberty

        (lagen om ersättning vid frihetsinskränkning).

4.      Conclusions

        The Government conclude that

-       the complaints under Arts. 5 and 6 are inadmissible as being

        incompatible ratione materiae with the provisions of the

        Convention, alternatively as being manifestly ill-founded.

-       the complaints under Arts. 8 and 13 are inadmissible as being

        manifestly ill-founded.

-       there has in all circumstances been no violation of the

        Convention.

B.      The Applicant

        The applicant submits that, in the present case, the relevant

Swedish legislation, the 1966 Act, has been correctly applied. However,

it is argued that the treatment of the applicant has in several respects

violated her rights under the Convention.

1.      The Facts

        Slightly more than one year ago a governmental committee

published a report in order to reform the present system.

        In the report it is suggested that the Discharge Councils and

the Psychiatric Council should disappear.  It is proposed that any

person who has been detained in order to undergo psychiatric treatment

should have access to the already existing Administrative Courts.  It is

important to note that the motive for this proposal is to increase the

legal safeguards in favour of the individual.  Should this reform become

a reality that would certainly satisfy Arts. 5, para. 4, and 6 of the

Convention.

        Another proposal made by this committee is to abandon the system

of provisional discharge.  Should the various proposals become reality

it is considered unnecessary to continue the system of provisional

discharge in the future.

        So far, the Government have not introduced any Bill to

Parliament.  It is an open question what the final result will be,

because the opinions with regard to the Discharge Councils or

the Administrative Courts, as well as with regard to provisional

discharge, are completely divided.  In this context it is noted that

various patients' associations are strongly in favour of the court

system, and they are also in favour of abandoning the Discharge

Councils.

2.      Merits

        2.1     Art. 5, para. 4 of the Convention

        The main question is whether the Discharge Councils and the

Psychiatric Council can be considered equal to a "court" in the meaning

of Art. 5, para. 4 of the Convention.

        The Discharge Council consists of five members, inter alia a

chairman who shall be or shall have been a permanent judge, and a

medical officer.  In order to create independence it is provided that

the medical officer must not be working at the hospital, in which the

person in question is a patient.

        It is true that in the travaux préparatoires of the present Act

it is stated that the Discharge Council meets with the requirements of

a "court" as laid down in Art. 5, para. 4.  However, from such a

statement it cannot be concluded that the present legislation meets the

requirements, only that the Government have been aware of the fact that

provisions in the Convention could have an influence on the content of

the legislation.

        The Government argue that the mere fact that a judge is a member

of the Councils satisfies the prerequisites of the Convention and

accordingly, that the Councils are to be considered as courts. The

Government have also demonstrated that all Discharge Councils have

chairmen of high judicial standard and that they are all active or

former judges.  However, the mere fact that a judge is a member of an

organ does not transform that organ into a court.  For instance, as has

been submitted by the Government in another context, medical officers

are subject to supervision by the National Board of Social Welfare and

are subject to disciplinary responsibility in accordance with the Act on

the Supervision over Health and Medical Staff.  Such disciplinary

matters are dealt with by a special board under the chairmanship of a

judge.  Although this organ has a legal function it can obviously not be

considered a court.  Several examples of similar boards can be found in

Swedish law, where it is clear to everyone that the term "court" is not

applicable.  It is obvious that other criteria must also be fulfilled

before the term "court" can be used.

        Another important factor is the composition of the organ.  A

reason why it is questionable whether the Discharge Councils and the

Psychiatric Council can be considered as courts is the fact that medical

officers who represent the medical expertise are full members of the

respective organ.  It is likely that the medical officer will have the

greatest influence on the case.  It may be practical, and for other

motives reasonable, that a medical officer is a member of the respective

organ.  However, the impartiality of the Council will be lost.  It is

true that the medical officer of a Discharge Council must not be

affiliated with the hospital to which the patient in question

is admitted.  As long as he is a full member of the Discharge Council

his impartiality can, however, be questioned, not only because of

collegiality but also because it is common that a medical officer

changes his employment from one hospital to another.

        It is important to remember that medical officers who are

specialised in psychiatry are very few.  It is a very narrow science and

the actual number of psychiatrists is low.  As regards the composition

of the Discharge Council at Lund, the medical officer who sits on the

Discharge Council actually works, or did in those days, at another

hospital in Lund.  There are two hospitals at Lund for psychiatric care

and this member of the Discharge Council actually works at the other

psychiatric hospital in Lund.  Certainly, they do not work at the same

hospital but still there are rather close relations between the two

hospitals, not only because both medical officers have the same

employer, the County Council (landstinget). There are thus not direct

but nevertheless certain relations between the medical officers.

        The travaux préparatoires of the Act also deal with the

procedure to be followed before a Discharge Council.  In this respect it

is explicitly stated "that the informal procedure which has developed

within the local Discharge Councils mainly ought to be upheld and that

by all means a procedure should be avoided which is similar to a court

procedure" (Government Bill 1966:53 p. 209).

        From an organisational point of view a Discharge Council is a

separate authority, but it is a general impression that it forms part of

the hospital's administration.  For instance, it is the County Council

which is responsible for the remuneration of the members of the

Discharge Council.  The administrative structure is extremely vague and

a Discharge Council has not always office premises of its own.  It must

also be noted that membership of a Discharge Council is a sparetime

occupation.  There is no co-operation between the various Discharge

Councils and in spite of the Psychiatric Council, which serves as an

appeal board, there is no possibility of establishing precedents. From

an administrative point of view the Discharge Councils and the

Psychiatric Council are completely separated from the ordinary judicial

system.

        The Psychiatric Council consists of six members, inter alia a

chairman who shall be a judge and two medical officers nominated by the

National Board of Social Welfare.  According to Section 31 of the Act

oral proceedings should be held if it is considered necessary in view of

the circumstances of the case.  It is to be noted that the applicant has

no right to oral proceedings.  Such a decision lies in the discretion of

the Psychiatric Council.  In practice, it is rare that the Council meets

in oral proceedings.

        The office of the Psychiatric Council is situated on the

premises of the National Board of Social Welfare and its affiliation

with the medical administration is firm.  Also the other objections

raised against the Discharge Councils are of relevance as regards the

Psychiatric Council.

        It is also interesting to note that it has not been considered

appropriate to use the term "court" in connection with the Discharge

Councils.  This is reflected in the Instrument of Government which

contains a chapter on basic human rights and freedoms.  In Chapter 2,

Section 9 it is prescribed as a main rule that a decision on deprivation

of liberty must be taken by a court.  In order to make the Discharge

Councils and the Psychiatric Council lawful it was necessary to permit

exceptions from court decisions.  Accordingly, it is prescribed that a

decision by a Council (nämnd) should be considered equal with a court

decision provided the composition of the Council is determined by law

and the chairman is or has been a judge.  In the travaux préparatoires

it is stated that "through this provision the Instrument of Government

will not be an obstacle to preserving the decision by Councils, at

present provided for in the Act on Institutional Psychiatric Care".

Accordingly, not even the Government considered, at that time, the

Councils to be courts.

        Taking all these aspects into account it is hardly possible to

state that the Discharge Councils and the Psychiatric Council constitute

a "court" in the meaning of Art. 5, para. 4 of the Convention.

Accordingly, there has been a violation of the Convention.

        3.2     Art. 6 of the Convention

        Art. 6, para. 1 is also applicable in the present case.  Any

person deprived of his liberty should be entitled to a hearing before a

tribunal.  The minimum safeguards as provided for in Art. 6, para. 1

should be applicable in this case.

        The applicability of Art. 6, para. 1 is certainly a question

which has been debated during the past few years.  There are cases

showing and proving that the applicability of Art. 6, para. 1 should be

interpreted in the broadest possible sense.  It would be a rather

confusing situation if a person were entitled to a hearing before a

tribunal in a small trifling case, whereas when it comes to such severe

measures as the deprivation of liberty based on administrative

provisions such proceedings should not be applied.

        The applicant admits that as long as the person is actually

being detained it would be very easy to argue only under Art. 5, para.

4, but in this case Art. 6 is also applicable because of the decision on

provisional discharge.  As the Government have pointed out, that means,

among other things, that the person in question is forced to follow

certain directives without having any real access to a court where this

decision could be changed or amended.  There exist quite a number of

directives under a provisional discharge.  A prerequisite for making use

of these prescriptions is that the person is questioned first, has been

detained and it has been found that the legal prerequisites for

detention no longer apply.  Only in such a situation is provisional

discharge possible and these forcible prescriptions are possible.  But

it is not, according to the law, possible to issue some kind of

prescriptions without the person in question having been detained.

        In the applicant's view, this means clearly that there is a

civil right and it is necessary to have some kind of court proceedings

in order to clear all these things up.

        It is clearly stated in the travaux préparatoires that

provisional discharge should not be considered as any kind of sanction.

On the other hand, from the point of view of the person in question, it

is obviously some kind of sanction.

        Art. 6, para. 1 prescribes that the hearing must be public. This

prerequisite is not fulfilled with regard to the procedure before the

Discharge Councils and the Psychiatric Council as the hearings are held

in private.  The Government have argued that under the Convention public

hearings may be excluded where the interests of the private life of the

parties so require.  The application of this principle is, however, the

prerogative of the person in question who may or may not ask for a

hearing in private.  In a case where a person has been detained under

the 1966 Act it is important that there is a possibility of hearings in

private.  However, the main rule should be that hearings are public and

that they will be in private only upon the request of the person in

question.  In this respect also, there is a violation of the Convention.

        3.3     Art. 8 of the Convention

        With regard to Art. 8, the Government admit, in principle that

decisions taken under the 1966 Act may affect a person's right to

respect for his private and family life, his home and correspondence.

They maintain however, that the actions taken are permitted under Art.

8, para. 2 and are necessary in a democratic society for the protection

of health and morals, and for the protection of the rights and freedoms

of others.

        The only applicable criterion in the present case may be the

reference to the applicant's health.  Her mental illness was also the

reason for her detention.  In view of the provision in Art. 8, para. 2

it can be accepted that the decision to detain her originally did not

constitute a violation of Art. 8 of the Convention.

        However, in accordance with the 1966 Act the applicant was given

a so-called provisional discharge.  That means that the person in

question is allowed to leave the hospital, but that he or she can be

brought back without the normal procedure being followed.  A decision

will be taken by the Chief Medical Officer or by another medical

officer, should "special reasons" be at stake.

        Any person faced with a decision on provisional discharge has to

live in a constant fear of being returned to the hospital.  In practice,

the threat of being returned functions as a kind of sanction should the

person not follow directives given to him or her.  Although the original

idea of provisional discharge has nothing to do with sanctions, in

practice it works as a kind of threat to the applicant.

        It cannot be argued that any of the reasons provided for in Art.

8, para. 2 are applicable.  A reference, for instance, to the

applicant's health is inappropriate.  The provisional discharge of the

applicant constitutes a violation of Art. 8 of the Convention.

        3.4     Art. 13 of the Convention

        It can be argued that the applicant has not enjoyed the

guarantees of an effective remedy for the alleged violations of the

Convention.  In this respect the Government seem to be of the opinion

that a number of remedies are available in the present case.  However,

none of them is of relevance in this connection, because all of them -

the supervision by the National Board of Social Welfare, the rules on

misuse of office in the Penal Code, the Act on Compensation for

Deprivation of Liberty, etc - presuppose that the applicant has been

treated in a way which is contradictory to domestic Swedish law.  The

applicant has been granted the rights provided for in Swedish law, but

it is the legislation as such which has indirectly created the

violations of the Convention.  Accordingly, no effective remedy for the

alleged violations was available, and Art. 13 of the Convention has also

been violated in the present case.

THE LAW

1.      The applicant has complained that her provisional discharge from

the psychiatric hospital was in breach of Art. 8 (Art. 8) of the

Convention.

        Art. 8 (Art. 8) reads:

"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 Government have submitted that the facts of the case do not

disclose any interference with the applicant's rights under Art. 8

para. 1 (Art. 8-1) of the Convention, and that, even if they did, any

such interference would be justified under the terms of Art. 8, para. 2

(Art. 8-2) of the Convention as being in accordance with the law and

necessary in a democratic society for the protection of health and

morals and for the protection of the rights and freedoms of others.

        The Commission is of the opinion that the fact that the

applicant has been legally under a detention order and only discharged

on a provisional basis from December 1977 to January 1984 except for a

period at the end of 1978 constitutes an interference with her right to

respect for her "private life" within the meaning of Art. 8, para. 1

(Art. 8-1).  In order to be justified under Art. 8, para. 2 (Art. 8-2)

that interference must be "in accordance with the law" and "necessary in

a democratic society" for one of the purposes enumerated in Art. 8,

para. 2 (Art. 8-2) of the Convention.

        The Commission finds no reason to conclude that the decision

arrived at was other than "in accordance with the law", namely the Act

on Institutional Psychiatric Care.  It is clear from the decision of the

Discharge Council that the reason for not discharging the applicant

permanently was that there were reasons to believe that the applicant

would stop taking her medication if permanently discharged and that that

would lead to a deterioration of her health.  The decision thus pursued

the aim of protecting the applicant's "health", which is an aim

permissible under Art. 8, para. 2 (Art. 8-2).  Having examined the case

file and the parties' submissions, the Commission finds that the

decision not to discharge the applicant permanently was "necessary in a

democratic society" for the protection of her health.

        It follows that this aspect of the application is manifestly

ill-founded within the meaning of Art. 27, para. 2 (Art. 27-2) of the

Convention.

2.      The applicant has complained that she has not enjoyed the

guarantees of Art. 5, para. 4 and Art. 6 (Art. 5-4, 6) of the Convention

with respect to her application for release from the hospital.  She also

submits that she has not had an effective remedy for the alleged

violations of the Convention as guaranteed by Art. 13 (Art. 13).

        Art. 5, para. 4 (Art. 5-4) reads:

        "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."

        Art. 6, para. 1 (Art. 6-1) reads:

"In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law. Judgment shall be pronounced publicly but

the press and public may be excluded from all or part of the trial in

the interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the protection

of the private life of the parties so require, or to the extent strictly

necessary in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice.

        Art. 13 (Art. 13) reads:

"Everyone whose rights and freedoms as set forth in this Convention are

violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons acting

in an official capacity."

        The Government have contended that since the applicant has been

released on a trial basis her complaint under Art. 5, para. 4

(Art. 5-4) is incompatible ratione materiae with the provisions of the

Convention. In the alternative the Government submit that the applicant

has not complied with the conditions in Art. 26 (Art. 26) of the

Convention.

        As regards Art. 6, para. 1 (Art. 6-1), the Government also

maintain that the application is incompatible ratione materiae with the

Convention since the "determination" before the Discharge and

Psychiatric Council concerned neither the applicant's "civil rights and

obligations" nor a "criminal charge" against her.

        If Art. 5, para. 4 or Art. 6, para. 1 (Art. 5-4, 6-1) of the

Convention is considered applicable, the Government submit that the

Discharge Council and the Psychiatric Council fulfil the conditions of

"court" in Art. 5, para. 1 (Art. 5-1) and "tribunal" in Art. 6, para. 1

(Art. 6-1) and that the application is in any event manifestly

ill-founded.

        As regards Art. 13 (Art. 13) of the Convention, the Government

contend that the application is manifestly ill-founded since the

procedure before the Discharge Council and the Psychiatric Council

constitute "effective" remedies as required by Art. 13 (Art. 13).

        The Commission observes that the present application relates to

the procedural guarantees in respect of a determination as to whether

the applicant should be permanently released or remain on provisional

discharge from a psychiatric hospital.  The question of the

applicability of Art. 5, para. 4 (Art. 5-4) to an individual who is

actually deprived of her liberty does not arise in this case, since the

applicant had already been provisionally released a long time when she

brought the present application.

        The issue to be decided in respect of Art. 5, para. 4

(Art. 5-4) is whether that provision applies to the applicant's petition

for permanent discharge having regard to the fact that she was no longer

deprived of her liberty, but was on provisional discharge.  If that

question is answered in the affirmative it would have to be determined

whether the procedures before the Discharge Council and the Psychiatric

Council meet the requirements of Art. 5, para. 4 (Art. 5-4).

        The issue under Art. 6, para. 1 (Art. 6-1) of the Convention is

mainly whether the "determination" of whether the applicant should be

permanently released or remain on provisional discharge concerned her

"civil rights and obligations".  In the affirmative it would have to be

determined whether the procedures before the Discharge Council and the

Psychiatric Council fulfil the conditions of Art. 6 (Art. 6) of the

Convention.

        Finally, the issue arises whether the applicant had at her

disposal an "effective remedy" for the alleged violations of the

Convention as required by Art. 13 (Art. 13).

        Having made a preliminary examination of the above issues the

Commission considers that in these respects the application raises

issues of fact and law which are of such importance that their

determination should depend upon an examination of the merits.  These

aspects of the application are therefore admissible.

3.      The applicant has also requested compensation referring to Art.

5, para. 5 (Art. 5-5) of the Convention.  Art. 5, para. 5 (Art. 5-5)

provides for a right to compensation for everyone who has been the

victim of arrest or detention in breach of the other provisions of Art.

5 (Art. 5).

        The Commission considers that this complaint is closely linked

to the determination of the complaint under Art. 5, para. 4 (Art. 5-4)

of the Convention and it should therefore be retained for the

examination of the merits of the application.

        For these reasons, the Commission

        DECLARES INADMISSIBLE

        the complaint of an unjustified interference with the

        right to respect for private life (Art. 8 (Art. 8) of the

        Convention)

        DECLARES ADMISSIBLE, without prejudging the merits,

        the remainder of the application.

Secretary to the Commission             President of the Commission

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