AS TO THE ADMISSIBILITY OF

                      Application No. 19076/91

                      by Ann-Margret NORDBLAD

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 13 October 1993 the following members being present:

Present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 Mr.  K. ROGGE, 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 26 June 1991 by

Ann-Margret Nordblad against Sweden and registered on 14 November 1991

under file No. 19076/91;

      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 is a Swedish citizen born in 1967.  In the

proceedings before the Commission she is represented by her father,

Mr. Leif Nordblad, at the time of the events described below residing

at Oxie, near Malmö.

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

summarised as follows.

      Since 18 September 1989 she is subject to compulsory psychiatric

care pursuant to section 1 (a) and (c) of the 1966 Act on Institutional

Psychiatric Care (lagen om beredande av sluten psykiatrisk vård i vissa

fall - the "1966 Act" below) and placed at the Malmö General Hospital

(Allmänna sjukhus).  The above-mentioned provisions read :

      "1. A person suffering from mental disease may, regardless of

      consent, be given compulsory institutional psychiatric care

      pursuant to 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

      ...

      (c)  as a result of his disease is incapable of taking care of

      himself ...".

      On 25 July 1990 the applicant disappeared from the mental

hospital were she was detained.  The police were informed and a

detention warrant issued.  On 28 August 1990, after contact had been

established with the applicant, the Chief Physician at the hospital,

Dr. G.J., decided that she should be provisionally discharged until

30 November 1990.  On 5 September 1990 the Chief Physician added the

condition that the applicant should allow  doctor L. to examine her

state of health at least once a week.  The decision indicated that any

complaints regarding the condition imposed should be lodged with the

Discharge Council (utskrivningsnämnden) in Lund.

      On 6 September 1990 the Police Authority in Malmö received a

telephone request from Sheriff K. in Iowa, USA, for information

regarding the applicant.  Sheriff K. stated that he had been contacted

by relatives of the applicant who had presented letters from the

applicant's father indicating that he intended to come to them in the

USA with the applicant as she was wanted by the Swedish police and was

being detained in a psychiatric hospital against her will.  Sheriff K.

wished to know whether the information contained in the letters was

correct as, if that was so, the relatives in Iowa did not wish to

receive the applicant and her father.  In response to this request the

Police Authority in Malmö contacted the Chief Physician of the mental

hospital who decided to revoke the conditional discharge and to request

the assistance of the police in bringing the applicant back to the

hospital.  The applicant was found by the police the same afternoon and

brought to the hospital.  Sheriff K. was informed of the developments

the same day.

      The applicant's father first challenged the redetention decision

by requesting compensation from the State for two unused airline

tickets and for the damages caused on his property when the police

fetched his daughter.  By decisions of 3 and 14 December 1990 the

Chancellor of Justice (justitiekanslern), as representative of the

Government, refused compensation finding no liability for the damages

claimed.  No proceedings for damages were brought before the courts.

      The father also complained to the Parliamentary Ombudsman

(justitieombudsmannen).  However, after having heard the explanations

given by the local health care director (Sjukvårdsdirektören) and

considered the applicant's medical records, the Ombudsman found, by

decision of 29 January 1991, no cause for any action on his part.

      The father also wrote to the Government requesting permission for

his daughter to leave Sweden.  In her reply of 7 February 1991, the

competent Minister informed the applicant that no such permission was

required for persons wishing to leave Sweden but that limitations on

the freedom of movement might nevertheless be imposed by parliamentary

legislation, inter alia, in the case of mentally ill persons.  The

Minister also drew the father's attention to the provisions of the 1978

Passport Act (passlag) according to which passports could be refused

or recalled in respect of persons detained in a mental hospital. The

Minister also advised the applicant that the task of implementing the

legislation in his daughter's case fell on the mental hospital where

she was detained and that the law had provided for possibilities of

review of detention decisions to the Discharge Council and thereafter

to the Psychiatric Board (psykiatriska nämnden); the Government,

however, had no power of review in these kinds of cases.

      A medical certificate dated 5 June 1991 by Dr. E.D. states the

following in respect of the applicant's mental state after 13 November

1990:

      "[The applicant] was transferred to department 86 on 13 November

      1991 (sic!).  [She] was at the time taken into compulsory care

      pursuant to the 1966 Act.  [She] exhibited a split mind and was

      unstructured.  Now and then she became psychotic and emotionally

      isolated.  No insight into her condition.  The undersigned found

      her to be in need of continued care pursuant to section 1 (a) and

      (c) of the 1966 Act.  When [the applicant] was anew examined on

      29 November 1990, she presented paranoid tendencies and symptoms

      on the border of psychosis.  On this occasion she was also

      strongly minimising her problems and was giving free reins to her

      imagination."

      On 27 June 1991 the father wrote to the Discharge Council

requesting information as to whether or not his daughter's provisional

discharge had been revoked on 6 September 1990.  The Council replied

on 8 July 1991 that this was so.

      A document dated 3 July 1991 and signed by the father indicates

that the passport authority decided to recall the applicant's passport

on the same day at the father's request.  There is no indication of the

applicant having availed herself of her right, provided for in section

27 of the 1978 Passport Act, to appeal against this decision.

      On 10 July 1991 the local tax authority (lokala skatte-

myndigheten), which is responsible for the register of persons

domiciled in Sweden, refused a request from the applicant to be struck

from this register.  The authority stated that, as the applicant's

parents had informed it that the applicant did not have any valid

passport, it was not likely that she would be leaving Sweden.

      On 19 July 1991 the applicant reiterated her request to be struck

from the register of persons domiciled in Sweden.  The local tax

authority again refused to accede to the request and indicated that it

had sent the matter to the County Administrative Court (länsrätten).

There is no indication that the matter was pursued before the County

Administrative Court.

      On 27 September 1991 the applicant's father appealed to the

Discharge Council against the redetention decision of 6 September 1990

and requested that his daughter be set free.  The father did not

specify any reasons for his appeal.  On 13 November 1991 the Discharge

Council rejected the appeal as it found, on the basis of, inter alia,

a medical certificate produced by Chief Physician G.J., that there were

no reasons to question the redetention decision.  The Discharge Council

furthermore found established, on the basis of another medical

certificate produced by Dr. E.D., at the time Assistant Chief

Physician, that the applicant was mentally ill without being aware of

her illness and in need of compulsory care as she needed treatment and

could not take care of herself.

      The father appealed to the Psychiatric Council invoking summarily

his "legal rights in Sweden".  As a result of a change in the law on

1 January 1992, appeals against the Discharge Council's decisions were

henceforth to be examined by the administrative courts of appeal

(kammarrätterna).  The father's appeal was, accordingly, transferred

to the Administrative Court of Appeal in Stockholm which rejected the

appeal on 16 January 1992.  The judgment stated inter alia:

      "The case-file shows that [the applicant] suffers from a serious

      mental disorder and that this disorder and her other personal

      conditions make is necessary for her to receive psychiatric care.

      Her need of care must be considered such as not to leave any

      alternative but full time care in a hospital.  The medical

      certificate submitted by Dr. E.D. to the Psychiatric Council

      shows that [the applicant] experiences her illness but that she

      does not have any real insight into her condition.  It must

      therefore be considered obvious that she does not have the

      necessary capacity to express a well-founded opinion on her need

      of care.  In view of the above the requirements for continued

      compulsory care continue to be met.  In these circumstances, the

      appeal shall be dismissed."

      The applicant's father's request for leave to appeal to the

Supreme Administrative Court (Regeringsrätten) was refused by the Court

on 7 February 1992.

      In the meantime, on 7 November 1991 the applicant was, in

accordance with her request, struck from the list of members of the

Church of Sweden.

      On 25 November 1991 the applicant's parents applied to the County

Administrative Court in Malmö in order to obtain what they referred to

as an "emigration certificate".  Such a document being unknown in

Swedish law, the court informed them that it could not help them in

this respect.  On 25 November 1991, the applicant's father applied to

the Embassy of the USA in Sweden for political asylum on behalf of the

applicant stating that she was not allowed to decide herself about her

personal belongings.  No reply appears to have been given to this

application.

      On 14 and 15 May 1992, respectively, the applicant's father and

mother were struck from the register of persons domiciled in Sweden

(folkbokföringen) as they had informed the local tax authority that

they had emigrated, together with the applicant, to the USA for

humanitarian and religious reasons.  The local tax authority did not,

however, strike the applicant from the register.

      On 28 September 1992 the father applied to the National

Immigration Board (Statens Invandrarverk) to have his family relieved

of Swedish citizenship.  By letter of 1 October 1992, the Board

informed the father that it was not possible to be relieved of one's

Swedish citizenship in order to become stateless; the only way to lose

one's Swedish citizenship was to become citizen of another country.

      On 23 December 1992, the applicant's father applied on behalf of

his family to the Aliens Board (utlänningsnämnden - one of the

authorities deciding about the right of aliens to stay in Sweden under

the 1989 Aliens Act (utlänningslagen)), for refugee status in Sweden

awaiting their emigration to the USA.

      An extract from the passport register issued on 19 March 1993

indicates that the applicant possesses a passport valid until

20 August 1997.

COMPLAINTS

      1. The applicant alleges that her redetention on 6 September 1990

violated Article 5 para. 1 of the Convention in that her intended trip

to the USA could not be a lawful ground for revoking her provisional

discharge.  She also alleges a violation of Article 5 para. 2 of the

Convention.

      2. She also maintains that the refusal to allow her to go to the

USA violates Article 2 para. 2 of Protocol No. 4.

      3. The applicant also alleges violations of Articles 3, 9 and 14

of the Convention and of Article 3 of Protocol No. 4.

THE LAW

      1. The applicant alleges that her redetention on 6 September 1990

violated Article 5 para. 1 (Art. 5-1) of the Convention in that her

intended trip to the USA could not be a lawful ground for revoking her

provisional discharge.  She also alleges a violation of Article 5 para.

2 (Art. 5-2).  These provisions read in relevant parts:

      "1.  Everyone has the right to liberty and security of

      person.  No one shall be deprived of his liberty save in

      the following cases and in accordance with a procedure

      prescribed by law:

      ...

      e.   the lawful detention ... of persons of unsound mind

      ... ;

      ...

      2.   Everyone who is arrested shall be informed promptly,

      in a language which he understands, of the reasons for his

      arrest and of any charge against him."

      The Commission recalls at the outset that whether a person who

is provisionally discharged from mental hospital is still deprived of

his liberty or not will depend on the scope and nature of the

conditions imposed (see No. 12778/87, Dec. 9.12.88, D.R. 59, p. 158).

An examination of the conditions imposed in the present case does not

disclose that these were so severe as to amount to a deprivation of

liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the

Convention (cf. ibid.).  The applicant's redetention on 6 September

1990 did, however, clearly amount to a deprivation of liberty which,

accordingly, had to meet the requirements of Article 5 para. 1

(Art. 5-1-e), in particular those of sub-para. (e).

      In order for this redetention to be justified under sub-para. (e)

it had to constitute the "lawful" detention of a person of "unsound

mind" within the meaning of this provision.  A mere breach of the

conditions attaching to the provisional release would not, under the

Convention, justify renewed detention under this provision.  The

Commission first observes that there is nothing to suggest that the

redetention decision was not lawful under domestic law.  On the basis

of the material submitted, the Commission, furthermore, finds no

indication of arbitrariness in the domestic authorities' assessment

that the applicant was a person of "unsound mind" at the time this

decision was taken (see, Eur. Court H.R., Winterwerp judgment of

24 October 1979, Series A No. 33, p. 17-18, para. 39).  The Discharge

Council based its conclusion to this effect on, inter alia, a medical

certificate issued by the Chief Physician responsible for the

redetention decision and the Administrative Court of Appeal upheld,

after a renewed examination of the merits of the case, this conclusion;

the redetention decision was also examined by the Parliamentary

Ombudsman who did not, after having conducted an examination of his

own, find any reason for criticism.  The Commission observes, in

addition, that the applicant had been subject to compulsory care on

account of her mental state without interruption since September 1989

and both the Discharge Council and the Administrative Court of Appeal

found, on the basis of a further medical certificate issued by another

doctor, that she was still at the time of the proceedings in need of

such care on account of her mental illness.

      The applicant complains that her redetention was nevertheless

unjustified because it was based on her intention to leave Sweden to

go to the USA.  The Commission finds, however, that this complaint

relates mainly to her rights under Article 2 of Protocol No. 4 (P4-2),

which appears as the lex specialis in this context, and will examine

it in the light of the requirements of that provision.

      In view of the above, the Commission concludes that the

redetention of the applicant on 6 September 1990 does not disclose any

appearance of a violation of Article 5 para. 1 (Art. 5-1) of the

Convention.

      As regards the applicant's complaint of a violation of Article 5

para. 2 (Art. 5-2), the Commission has found no indication to the

effect that the applicant was not adequately informed of the reasons

for her redetention.  Accordingly, it finds no appearance of a

violation of this provision (cf Eur. Court H.R., Van der Leer judgment

of 21 February 1990, Series A No. 170, paras. 27-30).

      It follows that this part of the application is inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

      2. The applicant maintains, however, that the refusal to allow

her to go to the USA violates Article 2 of Protocol No. 4 (P4-2). This

provision reads :

      "1.  Everyone lawfully within the territory of a State

      shall, within that territory, have the right to liberty of

      movement and freedom to choose his residence.

      2.   Everyone shall be free to leave any country, including

      his own.

      3.   No restrictions shall be placed on the exercise of

      these rights other than such as are in accordance with law

      and are necessary in a democratic society in the interests

      of national security or public safety, for the maintenance

      of ordre public, for the prevention of crime, for the

      protection of health or morals, or for the protection of

      the rights and freedoms of others.

      4.   The rights set forth in paragraph 1 may also be

      subject, in particular areas, to restrictions imposed in

      accordance with law and justified by the public interest in

      a democratic society."

      The Commission recalls that pursuant to Article 26 (Art. 26) of

the Convention it is only competent to examine complaints after

domestic remedies have been exhausted. The present case raises a number

of issues in respect of this requirement.

      The Commission notes first that the applicant's different

requests in this matter to the Chancellor of Justice, the Parliamentary

Ombudsman, the Swedish Government, the local tax authority, the County

Administrative Court and the Aliens Board cannot be considered as

relevant for the purpose of exhausting domestic remedies as none of

these authorities had the power to intervene and take any decision in

the case relating to her compulsory treatment in a mental hospital or

otherwise any powers of relevance for her right to leave the country

(see, as regards the Chancellor of Justice, No. 10371/83, dec. 6.3.85,

D.R. 42, p. 127 and, as regards the Parliamentary Ombudsman, No.

3893/68, dec. 16.3.70, Collection 33 p. 8).  The Commission also notes

that there are certain uncertainties as regards the applicant's

possession of a valid passport.  However, even if her passport would

have been cancelled at some stage, she has in any event not availed

herself of her right to appeal against any such decision.

      Finally, the Commission notes that the applicant's father

challenged the lawfulness of the redetention decision of

6 September 1990 before the Discharge Council and the administrative

courts.  However, he has not provided any material to show that he

brought the present complaint to the attention of the domestic

authorities. Instead, his appeal was worded in general terms.  It is,

accordingly, doubtful whether it could be seen as encompassing the

applicant's complaint regarding her right to be free to leave her

country.  The wording of the appeal also raises the question whether

it was really an appeal on behalf of the applicant.  The Commission

does not, however, find it necessary to determine these questions as

it has in any event reached the conclusion that the applicant's

complaint on this point is manifestly ill-founded.

      The Commission recalls that it has held that detention in

conformity with the requirements of Article 5 para. 1 (Art. 5-1) of a

convicted prisoner will imply a justified limitation of the prisoner's

right to leave the country where he is detained (see No. 10893/84, Dec.

2.12.85, D.R. 45 p. 198).  Similar considerations may apply in the case

of a person who is detained on the ground of mental illness mainly on

account of his need to receive treatment and his inability to take care

of himself.  The Commission does not, however, find it necessary to

resolve this question in the present case as it has in any event found

the applicant's redetention to be justified under para. 3 of Article 2

of Protocol No. 4 (P4-2-3).

      The Commission has found above that this measure met the

requirements of Article 5 para. 1 (e) (Art. 5-1-e).  In particular, it

has found that the redetention was "lawful" for the purposes of this

provision. Accordingly, it also finds that the measure was "in

accordance with law" for the purposes of Article 2 of Protocol

No. 4 (P4-2).

      Furthermore, the Commission finds no reason to doubt that

redetention was necessary in a democratic society for the purpose of

protecting the applicant's health: the measure was decided in response

to information from the USA to the effect that the applicant intended

to go to that country for an unspecified period of time although no

form of adequate care or supervision had been organised there, either

by her, her father, her relatives there or someone else.

      It follows that this part of the application is also manifestly

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

      3. The applicant also alleges violations of Articles 3, 9 and 14

of the Convention and of Article 3 of Protocol No. 4 (Art. 3, 9, 14,

P4-3).

      The Commission notes that these complaints have been worded in

very general terms.  After examining the material submitted it has

found nothing to substantiate them.  As regards in particular the

applicant's right to religious freedom, the Commission notes that she

was allowed to leave the Church of Sweden upon simple notification of

her wish to do so (cf. Darby v. Sweden, Comm. Report 9.5.89, para. 45,

Eur. Court H.R., Series A No. 187, pp. 17-18).

      It follows that the remaining complaints are also 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 INADMISSIBLE.

Secretary to the Second Chamber        President of the Second Chamber

          (K. ROGGE)                           (S. TRECHSEL)