Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27154/95

by D. N.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 April 1995 by

D. N. against Switzerland and registered on 28 April 1995 under file

No. 27154/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

18 February 1997 and the observations in reply submitted by the

applicant on 4 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1964, is a pensioner

residing in St. Gallen. Before the Commission she is represented by

Mr B. Eugster, a lawyer practising in St. Gallen.

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

summarised as follows.

A. Particular circumstances of the case

Since 1989, the applicant has frequently been remanded in

psychiatric detention. On 14 November 1994 she went to Dr. E., a

district doctor, who decided again to detain her in the Wil Cantonal

Psychiatric Clinic on account of chronic schizophrenia and of

constituting a danger to herself.

On 1 December 1994 the applicant applied for release from

detention. Her request was refused on the same day by the Dr. O., head

doctor of the Wil clinic, who referred, inter alia, to a psychotic

outbreak (Schub) of recurring schizophrenia and to her inability to

accept her illness (mangelnde Krankheitseinsicht).

On 12 December 1994 the applicant's lawyer filed an action with

the Administrative Appeals Commission (Verwaltungsrekurskommission) of

the Canton of St. Gallen, requesting her release from detention. She

also requested that the expert who would examine her should not act as

specialised judge (Fachrichter).

The Administrative Appeals Commission appointed Dr. R.W., a

doctor specialised in psychiatry and psychotherapy, to conduct the

judicial examination of the applicant and to provide, as expert, an

expert opinion. On 15 December 1994 Dr. R.W. heard the applicant at

the Wil clinic.

On 19 December 1994 the Administrative Appeals Commission invited

the parties to a hearing at the clinic. The letter referred to

Dr. R.W. as being one of the specialised judges on the bench and

Rapporteur.

On 23 December 1994 Dr. R.W. submitted his expert opinion. The

opinion diagnosed a schizophrenic mental illness and found that the

applicant could not be released in view of the required high doses of

medication. As a result, Dr. R.W. proposed to dismiss the action if

the applicant's state of health did not clearly improve until the

hearing.

The hearing took place on 28 December 1994 at the clinic. The

Administrative Appeals Commission heard two clinic doctors and the

applicant. Her lawyer remained absent.

On 28 December 1994 the Administrative Appeals Commission

dismissed the applicant's action. The bench consisted of five judges,

i.e. the President, Dr. R.S., who was a lawyer; Mr B.F., a lawyer;

Mr R.G., a district director of social services; Mr K.S., an

administrator of the caritative organisation Pro Infirmis; and

Dr. R.W., the medical expert and Rapporteur. In its decision, the

Administrative Appeals Commission concluded, also with reference to Dr.

R.W.'s expert opinion, that the applicant suffered from severe mental

disturbances warranting her detention in a psychiatric institution.

Insofar as the applicant had requested an expert who would not

be a member of the Administrative Appeals Commission, the decision

found that the applicant had not substantiated her request. Reference

was made to the case-law of the Federal Court, in particular ATF 119

Ia 260 (see below, Relevant domestic law and practice) where that Court

had not expressly prohibited the combination of expert and judicial

functions.

The applicant filed a public law appeal (staatsrechtliche

Beschwerde) with the Federal Court (Bundesgericht), complaining, inter

alia, of the position of the expert Dr. R.W. She relied on S. 58 of

the Federal Constitution (Bundesverfassung) which enshrines the right

to a judge established according to the Constitution (verfassungs-

mässiger Richter, see below, Relevant domestic law and practice). The

applicant submitted that Dr. R.W. could not deal with the case as he

had previously already dealt with it (Vorbefassung) by acting as an

expert.

On 3 April 1995 the Federal Court dismissed the public law

appeal, the decision being served on 12 April. In respect of the

position of the expert, the Court found, with reference to its own

case-law (see below, Relevant domestic law and practice):

"In the letter ... of 19 December 1994 the legal representative

of the applicant was informed of the person of the expert, and

also that he would act as specialised judge and rapporteur.

Already in her action to the Administrative Appeals Commission

the applicant had provisionally requested that the expert should

not act as specialised judge. However, she does not discuss the

contrary opinion of the Federal Court. Along the lines of the

Federal Council's Message to the Parliament concerning the part

of the Civil Code dealing with committal to a psychiatric

institution, ... it has not been called in question that experts

within the meaning of S. 397e para. 5 of the Civil Code also act

as members of the deciding body ..., to the extent that their

position can at all be compared with that of a regular expert who

is consulted in evidence proceedings ... It is true that the

Federal Court has recently described the combination of expert

and judicial functions as being 'not entirely unobjectionable'

... However, no change of case-law can be seen in that decision,

and the applicant has not shown today in what respect such a

change would be called for. Her submissions cannot therefore be

admitted ..."

"Im ... Schreiben vom 19. Dezember 1994 ist dem Rechtsvertreter

der Beschwerdeführerin nicht nur die Person des Gutachters

mitgeteilt worden, sondern auch, dass es sich dabei um den

referierenden Fachrichter handle. Bereits in ihrer Klage an die

Verwaltungsrekurskommission hat die Beschwerdeführerin

vorsorglich beantragt, der Gutachter dürfe nicht Fachrichter

sein. Mit der gegenteiligen Meinung des Bundesgerichts setzt sie

sich indes nicht auseinander. In Anlehnung an die bundesrätliche

Botschaft zur fürsorgerischen Freiheitsentziehung ... ist nämlich

nicht beanstandet worden, dass Sachverständige im Sinne von

Art. 397e Ziffer 5 ZGB der entscheidenden Instanz als Mitglieder

angehören ..., soweit deren Stellung überhaupt mit derjenigen

eines regelrechten Experten, der in einem Beweisverfahren

beigezogen wird, vergleichbar ist ... Es trifft zwar zu, dass

das Bundesgericht erst kürzlich die Verquickung sachverständiger

und richterlicher Funktionen als 'nicht ganz unbedenklich'

bezeichnet hat ..., doch ist in jenem Entscheid weder eine

Praxisänderung zu erblicken, noch zeigt die Beschwerdeführerin

heute auf, inwiefern eine solche geboten sein sollte. Darauf

kann deshalb nicht eingetreten werden ..."

B. Relevant domestic law and practice

a) Expert medical opinions in case of deprivation of liberty on

account of mental illness

S. 397a ff of the Swiss Civil Code (Zivilgesetzbuch) concern

deprivation of liberty, inter alia, on account of mental illness.

S. 397d provides that the person concerned may complain about detention

before a judge. S. 397f states that the procedure must be simple and

speedy.

S. 397e, relating to the procedure, states in para. 5:

"In the case of mentally ill persons a decision can only be taken

after having consulted an expert; if in judicial proceedings this

has already happened, higher courts need not do so."

"Bei psychisch Kranken darf nur unter Beizug von Sachverständigen

entschieden werden; ist dies in einem gerichtlichen Verfahren

bereits einmal erfolgt, so können obere Gerichte darauf

verzichten."

The Federal Court (Bundesgericht) has developed an extensive

case-law on this provision. In ATF (Arrêts du Tribunal Fédéral)

119 II 321 it referred, in respect of such experts, to "the particular

requirement of critical objectivity towards clinical doctors and

psychiatrists" ("die hier besonders geforderte kritische Objektivität

gegenüber den Klinikärzten und den Psychiatern").

In ATF 110 II 122 ff the Federal Court dealt with the issue

whether the expert required in S. 397e para. 5 could act as a judge in

the proceedings. The decision stated:

"(t)his provision is complied with, if experts belong as members

to the deciding body. ... The purpose of the statutory

provision is that in the case of mentally ill persons, no

decision should be taken without the advice and the specialised

knowledge of psychiatrically trained doctors. This will be the

case in an optimal manner, if such doctors participate as members

of the judicial body."

"(E)s genügt für die Einhaltung dieser Vorschrift, wenn

Sachverständige der entscheidenden Instanz als Mitglieder

angehören. ... Der Sinn der gesetzlichen Anordnung besteht

darin, dass bei psychisch Kranken nicht ohne den Rat und das

Fachwissen psychiatrisch geschulter Ärzte entschieden werden

soll. Das ist bei der Mitwirkung solcher Ärzte als Mitglieder

der gerichtlichen Instanz in optimaler Weise der Fall."

In ATF 118 II 249 ff the Federal Court again examined the issue.

It stated:

"Clinical doctors are mainly civil servants ... and as such

depend to some extent on the State imposing the detention ...

For, if such doctors would have to be excluded as experts, sheer

unsolvable problems would arise particularly for the smaller

Cantons. Furthermore, it could not be justified in any way to

regard clinical doctors as unsuitable within the meaning of

Section 397e para. 5 of the Civil Code, merely because they are

employees of the municipality. What must be required is solely

an objective opinion of a specialised, neutral doctor."

"Klinikärzte (sind) zumeist Beamte ... und (stehen) als solche

in einem gewissen Abhängigkeitsverhältnis zum einweisenden Staat

... Denn müssten solche Ärzte überhaupt als Gutachter

ausgeschlossen werden, entstünden vor allem für kleinere Kantone

beinahe unlösbare Probleme. Ausserdem liesse sich in keiner

Weise rechtfertigen, Klinikärzte, nur weil sie Angestellte des

Gemeinwesens sind, zum vornherein als ungeeignet im Sinne von

Art. 397e Ziff. 5 ZGB zu betrachten. Zu verlangen ist einzig

ein objektives Gutachten eines fachkundigen neutralen Arztes."

In ATF 119 Ia 263 the Federal Court referred to the "not entirely

unobjectionable combination of expert and judicial functions" ("nicht

ganz unbedenkliche Verquickung sachverständiger und richterlicher

Funktionen").

b) Administrative Appeals Commission of the Canton of St. Gallen

The Administrative Appeals Commission (Verwaltungsrekurskom-

mission) is the competent body to decide on matters of deprivation of

liberty where a person contests detention. The Commission has one

fulltime judge and 24 to 30 specialised judges (Fachrichter), among

them medical doctors (often psychiatrists) or social workers. The

professional judges are appointed by the cantonal parliament, the non-

professional judges and the specialised judges are appointed, upon

proposal of the Administrative Tribunal of the Canton of St. Gallen,

by the Government of the Canton of St. Gallen. A judge's term lasts

six years.

The Administrative Appeals Commission sits with five judges,

among them regular judges and specialised judges.

The Administrative Appeals Commission may refrain from choosing

an outside expert as it has its own specialised judges. According

to S. 71c para. 2 of the Act on Administrative Court Procedure (Gesetz

über die Verwaltungsrechtspflege) of the Canton of St. Gallen, in the

version then in force, after an action has been filed with the

Administrative Appeals Commission the President will immediately order

the questioning of the person concerned by a judge. The questioning

is undertaken by the judge Rapporteur who will then prepare an expert

opinion (S. 6 of the Ordonnance on the Procedure of the Administrative

Appeals Commission, Reglement über den Geschäftsgang der

Verwaltungsrekurskommission).

c) Available remedies

S. 58 of the Federal Constitution (Bundesverfassung) provides

that nobody shall be deprived of his or her judge established according

to the Constitution (verfassungsmässiger Richter).

The Federal Judiciary Act (Organisationsgesetz) envisages

different remedies in last resort to the Federal Court (Bundesgericht),

inter alia, a public law appeal (staatsrechtliche Beschwerde) and an

appeal (Berufung).

S. 84 subpara. 1 (a) of the Federal Judiciary Act provides that

a public law appeal serves to complain about breaches of constitutional

rights. This has been interpreted by the Federal Court as also

including Convention rights. S. 84 para. 2 provides that the public

law appeal remains subsidiary to other remedies which can be filed with

the Federal Court.

According to S. 43 para. 1 of the Federal Judiciary Act, an

appeal serves to complain about breaches of federal law; however, it

is stated that a breach of constitutional rights must be raised in a

public law appeal.

COMPLAINTS

1. The applicant complains that in these proceedings Dr. R.W.

participated as a judge although he had acted in the same proceedings

as an expert within the meaning of Section 397e para. 5 of the Swiss

Civil Code. Thus, Dr. R.W., who in his expert opinion proposed to

dismiss the applicant's action, had already formed an opinion on the

applicant's action. As a result, she did not have an impartial

tribunal within the meaning of Article 6 para. 1 of the Convention.

2. In her observations in reply before the Commission, filed on

18 February 1997, the applicant also complained that the Administrative

Appeals Commission was not, in fact, a "court" within the meaning of

Article 5 para. 4 of the Convention. She refers in particular to

specialised literature which refers to the strong position of the

Government (Regierungsrat) of the Canton of St. Gallen in the

appointment of judges of the Administrative Appeals Commission, and in

dealing with certain appeals. The applicant also complained under

Article 5 para. 4 of the Convention that the proceedings before the

Administrative Appeals Commission breached the principle of the

equality of arms, and that she was not properly heard when the expert

was appointed.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 April 1995 and registered

on 28 April 1995.

On 27 November 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

18 February 1997. The applicant replied on 4 April 1997.

THE LAW

1. The applicant complains that in these proceedings Dr. R.W.

participated as a judge although he had acted in the same proceedings

as an expert within the meaning of Section 397e para. 5 of the Swiss

Civil Code. Thus, Dr. R.W., who in his expert opinion proposed to

dismiss the applicant's action, had already formed an opinion on the

applicant's action. As a result, she did not have an impartial

tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission has examined this complaint under Article 5

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

a) The respondent Government contend that the applicant has not

complied with the requirement under Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies, as she did not

file the correct remedy with the Federal Court. Thus, she filed a

public law appeal. In fact, she was complaining of a breach of S. 397e

para. 5 of the Swiss Civil Code. However, an appeal would have been

the correct remedy to complain in last resort to the Federal Court

about a breach of Federal law, in particular S. 397e para. 5 of the

Swiss Civil Code. According to S. 84 para. 2 of the Federal Judiciary

Act, the public law appeal remains subsidiary to other remedies which

can be filed to the Federal Court.

The applicant submits that before the Federal Court she invoked

the correct remedy by filing a public law appeal, as she complained of

a breach of her constitutional rights. Thus she complained of a breach

of her right under S. 58 of the Federal Constitution which enshrines

the right to a judge established according to the Constitution. The

applicant notes that the Federal Court did not declare her public law

appeal inadmissible as she had filed the incorrect remedy.

Under Article 26 (Art. 26) of the Convention "the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law ...".

In the present case, the applicant wished to complain of a breach

of her constitutional rights under S. 58 of the Federal Constitution.

In the Commission's opinion, the public law appeal which she employed

was the correct remedy, since according to S. 84 subpara. 1 (a) of the

Federal Judiciary Act, it serves to complain of a breach of

constitutional rights. A confirmation herefor can be found in the

decision of the Federal Court of 3 April 1995 which did not declare the

applicant's public law inadmissible as it was the incorrect remedy.

The applicant's complaints cannot, therefore, be declared

inadmissible for non-exhaustion of domestic remedies.

b) The Government submit that the applicant was heard by a "court"

as required by Article 5 para. 4 (Art. 5-4) of the Convention. It is

submitted that no court of law of the classic kind is required which

is integrated within the standard judicial machinery of the country

(see Eur. Court HR, Weeks v. United Kingdom judgment of 2 March 1987,

Series A no. 114, p. 30, para. 61). Moreover, the particular

procedures must be adapted to the circumstances of the case, and States

are free to choose different methods of performing their obligations

under Article 5 para. 4 (Art. 5-4) of the Convention (see X. v. United

Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, para. 52).

The Government further contend that Dr. R.W., who heard the

applicant on 15 December 1994, complied with the requirements under

S. 397e of the Swiss Civil Code and S. 71c para. 2 of the Act on

Administrative Court Procedure of the Canton of St. Gallen. Dr. R.W.

was chosen in view of his specialised knowledge.

In the Government's opinion, it cannot be said that Dr. R.W.

acted first as expert psychiatrist and then as judge. In fact, when

he conducted the specialised examination of the applicant, he was

already acting within judiciary proceedings in his function as judge,

and it was as a judge that he established his report for the

Administrative Appeals Commission. Moreover, Dr. R.W. assumed these

functions within one and the same proceedings. He can thus be compared

with a judge, for instance, who is instructed by the court to undertake

a visit of the scene. Indeed, after Dr. R.W. had prepared the opinion,

the Administrative Appeals Commission conducted a hearing where all

judges were present and where the applicant could put forward her

grounds for contesting detention. This hearing "compensated" the

strong position which Dr. R.W. had as judge rapporteur. The

applicant's lawyer, on the other hand, was absent at the hearing as he

was on holidays.

The applicant submits that in view of the expert opinion which

Dr. R.W. had prepared, he had a preconceived opinion when he decided

as a judge on her case. This preconceived opinion played an even

bigger part in the present case as the other judges knew nothing about

the matter (völlig ahnungslos waren) and had to rely completely on

Dr. R.W. as the only psychiatrist on the bench.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission

concludes, therefore, that the application is not manifestly ill-

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

Convention. No other grounds for declaring it inadmissible have been

established.

2. The applicant also complains that the Administrative Appeals

Commission was not a "court" within the meaning of Article 5 para. 4

(Art. 5-4) of the Convention in view of the role of the Government of

the Canton of St. Gallen. Under this provision she also complains of

a breach of the equality or arms, and that she was not properly heard

when the expert was appointed.

Even assuming that the applicant had complied with the

requirements under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies, the Commission notes that the decision

of the Federal Court of 3 April 1995 was the final decision in the

applicant's case, whereas these complaints were submitted by the

applicant for the first time in her observations filed with the

Commission on 18 February 1997, that is, more than six months after the

date of that decision.

It follows that the remainder of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case, insofar as it relates to the applicant's

complaint that she did not have a "court" within the meaning of

Article 5 para. 4 of the Convention in view of the position of

Dr. R.W. as expert and as judge; and

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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D.N. v. SWITZERLAND

D.N. v. SWITZERLAND

LEXI