Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26900/95

by S. M.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 January 1998, the following members being present:

MM J.-C. GEUS, President

S. TRECHSEL

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 March 1995 by

S. M. against Switzerland and registered on 28 March 1995 under file

No. 26900/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1963, is a student

residing in Basel in Switzerland. Before the Commission she is

represented by Mr P. Joset, a lawyer practising in Basel.

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

summarised as follows.

Particular circumstances of the case

On Tuesday, 22 February 1994 the applicant was detained in the

psychiatric hospital clinic of the Canton of Basel-Stadt. She fled on

the same day, returning to the clinic on 25 February.

On Friday, 25 February 1994, the applicant filed a request with

the Basel-Stadt Psychiatric Commission for release from psychiatric

detention. The request was received by the Psychiatric Commission on

Monday, 28 February 1994. Still on Monday, 28 February, the

applicant's lawyer filed a further request for release. On 2 March

1994, a medical member of the Commission heard the applicant.

On Friday, 4 March 1994, the Psychiatric Commission dismissed the

request, referring, inter alia, to a report of the psychiatric hospital

clinic and to the opinion expressed by the medical member of the

Commission according to which the applicant was in need of psychiatric

treatment.

On 17 March 1994, the applicant filed an appeal against the

decision of 4 March, requesting, inter alia, her release from

detention.

The appeal reached the Court of Appeal of the Canton of Basel-

Stadt on 18 March which transferred it to the Psychiatric Commission

for observations. The latter were filed on 28 March 1994.

On 30 March 1994 the applicant was released from psychiatric

detention.

On the same day, 30 March, the Court of Appeal of the Canton of

Basel-Stadt acting as Administrative Court (hereinafter referred to as

Administrative Court) declared the applicant's appeal inadmissible (auf

den Rekurs wird nicht eingetreten). The Court referred to the

applicant's release from detention and found that she lacked a legal

interest in her appeal.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) and an appeal (Berufung) with the Federal Court

(Bundesgericht). In her public law appeal she complained that she had

not been duly heard. She relied on Articles 5 para. 4 and 13 of the

Convention. In her appeal she complained, inter alia, that her

detention had been unlawful.

On 6 June 1994 the Federal Court dismissed the applicant's

request for legal aid and imposed, in respect of her appeal, advance

court costs of 1,500 Swiss Francs (CHF). In its decision, the Court

noted in particular that an appeal only served to complain of decisions

withdrawing freedom, whereas in the present case the applicant was not

complaining of such a decision. As a result, the appeal appeared

inadmissible and, therefore, lacked prospects of success.

In respect of the decision of 6 June 1994 the applicant filed a

request for reconsideration (Wiedererwägung) which the Federal Court

dismissed on 26 September 1994. In its decision it explained, inter

alia, its case-law, namely that upon release from detention the person

concerned lacked legal interest. The Federal Court nevertheless noted

that aspects of the procedure of the Canton Basel-Stadt would not be

acceptable (nicht standhalten dürfte), for instance that the appeal had

first to be filed with the Psychiatric Commission which, in the opinion

of the Administrative Court, did not qualify as a judicial body.

Moreover, the person concerned had not been heard by the entire

Psychiatric Commission.

On 22 September 1994 the Federal Court dismissed the applicant's

public law appeal. In its decision it found that the Administrative

Court had given sufficient reasons for its decision of 30 March 1994.

It could also not be said that that Court had remained inactive. On

the other hand, an appeal, rather than the public law appeal, served

as the correct remedy to complain about the unlawfulness of detention.

Relevant domestic law

S. 3 of the Act on the Hospitalisation of Mentally Ill Persons

of the Canton of Basel-Stadt of 1961 (Gesetz über die Hospitalisierung

seelisch kranker Personen) concerns the Psychiatric Commission. The

members of the Commission, which decides on various matters of hospital

detention, are appointed by the Government (Regierungsrat) for a period

of four years. The Commission consists of two psychiatric medical

specialists, and one lawyer; the members may not be employed by the

services of psychiatric hospitals with closed wards.

COMPLAINTS

1. The applicant complains under Article 5 para. 4 of the Convention

that the Psychiatric Commission of the Canton of Basel-Stadt does not

qualify as a judicial body, as it is not democratically elected by the

people. Rather, there is a certain factual dependence on the

Government (Regierungsrat) which appoints the members.

2. The applicant further complains that the release proceedings in

her case were not conducted "speedily" within the meaning of Article

5 para. 4 of the Convention in that the Administrative Court only

decided after 32 days.

Moreover, by being obliged first to file an appeal with this

Commission, she did not have a simple and speedy procedure at her

disposal as required by Article 5 para. 4 of the Convention. Indeed,

it was unnecessary for the Administrative Court to transmit her appeal

to the Psychiatric Commission for further observations.

3. Under Article 6 para. 1 of the Convention the applicant complains

that on 6 June 1994 the Federal Court rejected her request for legal

aid as her appeal lacked prospects of success, although she was

indigent and although the Federal Court later found in its decision of

26 September 1994 that aspects of the procedure of the Canton Basel-

Stadt would not be acceptable.

4. The applicant complains under Article 13 of the Convention that

she did not have an effective remedy at her disposal to complain about

her detention in view of the fact that she had been released from

detention.

THE LAW

1. The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention that the Psychiatric Commission of the Canton of Basel-Stadt

does not qualify as a judicial body, as its members are appointed by

the Government.

Article 5 para. 4 (Art. 5-4) of the Convention states:

"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."

According to the Convention organs' case-law, Article 5 para. 4

(Art. 5-4) of the Convention does not exclude that a request for

release from detention must first be filed with an administrative body,

as long as thereafter a court meeting the requirements of Article 5

para. 4 (Art. 5-4) of the Convention is able to examine the request

(see mutatis mutandis, Eur. Court HR, Sanchez-Reisse v. Switzerland

judgment of 21 October 1986, Series A no. 107, p. 17, para. 45).

In the present case, therefore, it is unnecessary to examine

whether the Psychiatric Commission met the conditions for a court

within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention,

since the applicant was able thereafter to file an appeal with the

Administrative Court. The applicant has not called in question the

judicial character of this Court.

This part of the application is, therefore, manifestly ill-

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

Convention.

2. The applicant further complains that the release proceedings in

her case were not decided "speedily" within the meaning of Article 5

para. 4 (Art. 5-4) of the Convention in that the Administrative Court

only decided after 32 days.

According to the Convention organs' case-law, in guaranteeing to

persons arrested or detained a right to institute proceedings, Article

5 para. 4 (Art. 5-4) of the Convention also proclaims their right,

following the institution of such proceedings, to a speedy judicial

decision terminating their deprivation of liberty if it proves unlawful

(see Eur. Court HR, Van der Leer v. Netherlands judgment of 21 February

1990, Series A no. 170-A, p. 14, para. 35).

In the present case the applicant filed a request for release on

Friday, 25 February 1994 when she was placed in psychiatric detention.

The request was received by the Psychiatric Commission on Monday,

28 February 1994. The applicant was heard by a medical member of the

Commission on 2 March 1994. The request was dismissed on Friday,

4 March 1994.

Thereafter, the applicant waited for thirteen days until on

17 March 1994 she filed an appeal. The latter, after having been

transferred to the Psychiatric Commission for observations, was

rejected by the Administrative Court on 30 March 1994 as the applicant

had been released from detention on the same day.

Thus, the Psychiatric Commission decided within seven days of the

applicant's request for release. She was released thirteen days after

having filed her appeal. Moreover, it does not transpire that the

domestic authorities remained inactive during this period. The

Commission furthermore notes that the applicant waited twelve days

until she filed her appeal.

As a result, the Commission finds that these proceedings did not

exceed the notion of "speediness" within the meaning of Article 5

para. 4 (Art. 5-4) of the Convention.

This part of the application is, therefore, also manifestly ill-

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

Convention.

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that on 6 June 1994 the Federal Court rejected her request

for legal aid as her appeal lacked prospects of success, although she

was indigent and although the Federal Court later found in its decision

of 26 September 1994 that aspects of the procedure of the Canton Basel-

Stadt would not be acceptable.

The Commission notes that the proceedings before the Federal

Court were directed against the decision of the Administrative Court

of 30 March 1994 which declared inadmissible the applicant's appeal as

she lacked a legal interest therein.

Thus, the proceedings before the Federal Court concerned a

decision declaring the applicant's appeal inadmissible. The

proceedings therefore concerned neither "the determination of (the

applicant's) civil rights and obligations (nor) of any criminal charge

against (her)" within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention.

As a result, this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant complains under Article 13 (Art. 13) of the

Convention that she did not have an effective remedy at her disposal

to complain about her detention in view of the fact that she had been

released from detention.

In the present case, the Commission has just found that the

complaints under Article 5 para. 4 (Art. 5-4) of the Convention are

manifestly ill-founded. The Commission finds that the applicant's

submissions in this respect do not raise any prima facie issue under

the Convention. As a result, no arguable claim can be maintained in

respect of a violation of this provision.

It follows that the remainder of the application is manifestly

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

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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S.M. v. SWITZERLAND

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