P. v. SWITZERLAND
Doc ref: 26955/95 • ECHR ID: 001-3679
Document date: May 20, 1997
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AS TO THE ADMISSIBILITY OF
Application No. 26955/95
by P.
against Switzerland
The European Commission of Human Rights sitting in private on
20 May 1997, 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.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 March 1995 by
P. against Switzerland and registered on 3 April 1995 under file
No. 26955/95;
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
14 February 1997 and the observations in reply submitted by the
applicant association on 22 February 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant association is an association under Swiss law
aiming at assisting persons affected by compulsory psychiatric
treatment (Zwangspsychiatrie). Before the Commission the applicant
association is represented by Mr E. Schönenberger, a lawyer practising
in Zürich.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
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.
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."
The brochure was entitled "Psychex v. Compulsory Psychiatry" 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. 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."
On 8 July 1992 the Rheinau Psychiatric Clinic refused
distribution of the letter and imposed costs of 200 Swiss Francs (CHF).
The applicant association's appeal was dismissed by the Health
Department (Gesundheitsdirektion) of the Canton of Zürich on 29 July
1992. 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.
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.
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.
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
(Werbesendungen), sent from outside to the institution, if it disturbed
the running of the institution and the patients' peace.
B. Relevant domestic law
S. 4 of the Federal Constitution (Bundesverfassung) enshrines the
principle of equality before the law.
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.
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).
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).
COMPLAINTS
1. The applicant association complains under Articles 8 and 10 of
the Convention that it was not allowed to send the letter and the
accompanying documents to the detainees of the Rheinau Psychiatric
Clinic. In the applicant association's view, if somebody is informed
of his human rights, the Swiss authorities apparently regard this as
a disturbance of the running of an institution and of the patients'
peace.
2. The applicant association further complains that it did not have
a "tribunal" within the meaning of Article 6 para. 1 of the Convention
at its disposal.
3. Furthermore, the applicant association complains under Article 13
of the Convention of the length of the proceedings. It is pointed out
that the proceedings lasted from 8 July 1992 until 22 February 1995.
The fact that the Federal Court refused to examine the complaint
breaches this provision.
4. Finally, the applicant association complains of a breach of
Article 14 of the Convention in that letters may not be sent to persons
detained in an institution.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 March 1995 and registered
on 3 April 1995.
On 25 November 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
14 February 1997. The applicant association replied on 22 February
1997.THE LAW
1. The applicant association complains under Articles 8 and 10
(Art. 8, 10) of the Convention that it was not allowed to send a letter
and accompanying documents to the detainees of the Rheinau Psychiatric
Clinic.
Article 8 (Art. 8) of the Convention 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."
Article 10 (Art. 10) of the Convention 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."
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.
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. 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. Thus, 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.
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.
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.
The applicant association sees a clear breach in this case of
Articles 8 and 10 (Art. 8, 10) of the Convention as the director of the
Rheinau Clinic refused to distribute the three 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.
The Commission considers, in the light of the parties'
submissions, that the complaint 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 this part of 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. Insofar as the applicant association complains that it did not
have a "tribunal" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention at its disposal, the Commission considers
that the proceedings at issue concerned neither "civil rights" nor any
"criminal charge" against the applicant association. This part of the
application is therefore incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant association complains of the length of the
proceedings. It relies on Article 13 (Art. 13) of the Convention which
states:
"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."
Even assuming that an issue arises under this provision, the
Commission observes that the proceedings were conducted before four
authorities, i.e. the Rheinau Psychiatric Clinic, the Health Department
of the Canton of Zürich, the Government of the Canton of Zürich, and
the Federal Court. It cannot therefore be said that, in view of the
length of the proceedings, the remedies at the applicant association's
disposal were not "effective" within the meaning of Article 13
(Art. 13) of the Convention.
4. Insofar as the applicant association complains of a breach of
Article 14 (Art. 14) of the Convention in that letters may not be sent
to persons detained in an institution, the Commission finds no separate
issue under this provision. The remainder of the application is
therefore manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case, insofar as it relates to 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; and
DECLARES INADMISSIBLE the remainder of the application.
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission