Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22504/93

by Asbjörn SKJOLDAGER

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

Mrs. G.H. THUNE, Acting President

Mr. H. DANELIUS

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

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 24 May 1993 by

Asbjörn Skjoldager against Sweden and registered on 23 August 1993

under file No. 22504/93;

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 Swedish citizen, is a psychologist born in 1948

and resident at Karlshamn. He states that he represents three disabled

patients, Tommy Varenhed as well as two persons named Lars and

Ann-Kristin, who were staying at the Lindemo nursing home at Asarum

until the end of 1994.

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

summarised as follows.

In November 1991 the applicant, working as a psychologist of the

Authority for the Care of Disabled Persons (handikappomsorgen) of the

County Council (landstinget) of Blekinge, carried out an inspection of

the Lindemo nursing home. He concluded that a number of patients were

being locked up in their rooms without permission. In certain sections

of the nursing home the front doors of the buildings were also locked.

The applicant brought his findings to the attention of the manager of

the nursing home.

On 10 February 1992 the applicant was temporarily suspended from

his post.

On 31 March 1992 the National Board of Health and Welfare

(socialstyrelsen) carried out an inspection of the Lindemo nursing

home. It found that in one section ("Boken 2") patients could only open

the front door of the building with assistance from staff members in

possession of the necessary key.

On 1 April 1992 the County Council ordered the applicant to

undergo a psychiatric examination prior to considering whether to

reinstate him in office.

The applicant refused to undergo the examination.

At the request of the County Council the National Board of Health

and Welfare then instituted proceedings against the applicant before

the Disciplinary Board of Health Care (hälso- och sjukvårdens

ansvarsnämnd). The National Board of Health and Welfare requested that

his certification as a psychologist be temporarily withdrawn due to,

among other things, alleged cooperation difficulties.

On 10 April 1992 the National Board of Health and Welfare

requested the County Council to indicate when the locking-up of

patients at the Lindemo nursing home would end.

On 4 June 1992 the County Council replied that patients were no

longer locked up, as new locks had been installed. These locks had a

protective cap, thus enabling everyone to open them.

In a letter to the applicant of 11 June 1992 the National Board

of Health and Welfare stated that it had concluded its investigation

at the Lindemo nursing home. It had found that patients were no longer

being locked up and, accordingly, refrained from taking any further

action. In October 1992 the applicant complained about the locking-up

to the Disciplinary Board of Health Care. No action was allegedly taken

by the Board.

In response to a further petition by the applicant relating to

the manner in which patients in the Lindemo nursing home were allegedly

being locked up, the Government (Ministry of Social Welfare) on

18 January 1993 referred to the advice issued by the National Board on

protective measures to be taken in the treatment of patients suffering

from dementia (socialstyrelsens allmänna råd, socialstyrelsens

författningssamling 1992:17). The Government pointed out that according

to the advice the locks shall be such that the patients themselves can

unlock a door.

On 22 January 1993 the Disciplinary Board of Health Care rejected

the request of the National Board of Health and Welfare that the

applicant's certification as a psychologist be revoked.

On 17 January 1994 the National Board of Health and Welfare

refused to disclose to the applicant the names of the patients staying

at the Lindemo nursing home.

The Lindemo nursing home was closed at the end of 1994.

COMPLAINTS

The applicant complains that the locks which were installed on

the doors of the patients' rooms in the Lindemo nursing home in 1992

could not be opened by a disabled person due to their protective caps.

Given that no compulsory care orders had been issued in regard to the

patients, at least the three patients referred to by the applicant were

de facto detained in violation of Article 5 para. 1 of the Convention.

The detention allegedly also endangered the patients' health. The

applicant also invokes Article 14 of the Convention and Article 2 of

Protocol No. 4.

The applicant submits that the three patients referred to by him

are unable to lodge an application on their own and that the

authorities have refused to disclose information enabling him fully

to identify all of them and to procure powers of attorney either from

the patients themselves or from their possible guardians, showing that

he is entitled to represent them before the Commission. He nevertheless

considers that, although he is temporarily suspended from his post as

a psychologist of the County Council of Blekinge, he remains ethically

and professionally responsible for the care of his patients. He

therefore considers himself competent to bring an application on their

behalf.

THE LAW

The applicant complains that the nature of the locks which were

installed on the doors of the patients' rooms in the Lindemo nursing

home in 1992 resulted in the de facto detention of at least the three

patients referred to by him. Their detention was allegedly in violation

of Article 5 para. 1 (Art. 5-1) of the Convention and also endangered

their health. The applicant also invokes Article 14 (Art. 14) of the

Convention and Article 2 of Protocol No. 4 (P4-2).The applicant

submits that the three patients referred to by him are unable to lodge

an application on their own. He therefore considers himself competent

to bring an application on their behalf.

The Commission recalls that under Article 25 para. 1

(Art. 25-1) of the Convention it may receive petitions from any person,

non-governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties of the

rights set forth in this Convention, provided that the High Contracting

Party against which the complaint has been lodged has declared that it

recognises the competence of the Commission to receive such petitions.

Under Article 27 para. 1 (a) (Art. 27-1-a) of the Convention the

Commission shall furthermore not deal with any petition submitted under

Article 25 (Art. 25) which is anonymous.

The Commission observes that the applicant does not claim that

he himself is the direct victim of a violation of his Convention

rights. He has lodged the application on behalf of patients in a

nursing home which he inspected in 1991 in his capacity as a

psychologist of the Authority for the Care of Disabled Persons of the

competent County Council. He submits that none of the patients are able

to lodge an application on their own and has fully named one of them.

He has been unable, however, to procure powers of attorney either from

any of the patients themselves or from any of their possible guardians,

showing that he is entitled to represent the patients before the

Commission.

The Commission recalls that, in principle, a person who does not

have the right to represent a person under domestic law may

nevertheless, in certain circumstances, represent this person before

the Commission (cf., e.g., Eur. Court H.R., Nielsen judgment of

28 November 1988, Series A no. 144). However, the representative should

normally submit evidence showing that he is empowered to appear before

the Convention organs on an applicant's behalf. If this condition is

not met, the Commission can only consider the application in so far as

the representative himself claims to be a victim, either in his direct

or indirect capacity (cf. No. 8612/79, Dec. 10.5.79, D.R. 15 pp. 259,

263).

The Commission furthermore recalls that in exceptional

circumstances it has accepted that a third party can be accepted as an

"indirect victim" at least in the initial stage of the Commission

proceedings, for instance if he has a valid personal interest in the

welfare of the person on whose behalf he has lodged the application

(No. 7011/75, Dec. 3.10.75, D.R. 4 pp. 215, 232). A close connection

is required, however, between the indirect and the direct victim as

well as between them and the act complained of (cf. No. 8416/79,

Dec. 13.5.80, D.R. 19 pp. 244, 248).

The Commission assumes that the patients named by the applicant

could themselves claim status as direct victims under Article 25 para.

1 (Art. 25-1) of the Convention. It notes that at least one of them has

been identified by the applicant. It finds no evidence, however,

showing that the applicant has been authorised by any of the patients

or their possible guardians to act on the patients' behalf in the

Convention proceedings. Nor has it been shown that the patients were

unable to lodge an application in their own names, for instance by

authorising the applicant to act as their representative. The

Commission can therefore only consider the application in so far as the

applicant claims to be an indirect victim of the situation complained

of.

The Commission notes that as a psychologist for the Authority for

the Care of Disabled Persons the applicant carried out an inspection

of the nursing home in 1991, that is prior to the installation of the

new locks which he complains about. There is no indication that he was

at any time entrusted with the everyday care of the patients whom he

has referred to in his application. In these circumstances the

Commission cannot find a sufficiently close connection between him and

those patients. The present case can therefore be distinguished from

Application No. 7011/75 referred to above. Accordingly, the applicant

cannot be accepted as an indirect victim of the situation complained

of.

The Commission concludes that the applicant has failed to meet

the requirements under Article 25 para. 1 (Art. 25-1) of the

Convention. It follows that the application is incompatible ratione

personae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to Acting President

the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G. H. THUNE)

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SKJOLDAGER v. SWEDEN

SKJOLDAGER v. SWEDEN