Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14423/88

by L.J.

against Sweden

The European Commission of Human Rights sitting in private on

7 May 1990, the following members being present :

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 15 January 1988

by L.J. against Sweden and registered on 1 December 1988 under file

No. 14423/88 ;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission ;

Having deliberated ;

Decides as follows :

THE FACTS

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

summarised as follows.

The applicant is a Swedish citizen born in 1956 and resident

at Flyinge. Before the Commission, the applicant is represented by

Mr. Evald Lindqvist, an engineer.

On 20 December 1985 the applicant was convicted of unlawful

deprivation of liberty, assault and child abuse by the District Court

of Gothenburg (Göteborgs tinsrätt). He was sentenced to undergo

treatment in a closed psychiatric ward.

The applicant appealed to the Court of Appeal for Western

Sweden (Hovrätten för Västra Sverige) which rejected the appeal on 5

February 1986. On 19 March 1986 the Supreme Court (Högsta domstolen)

refused leave to appeal.

Subsequently, the applicant asked to be discharged from the

hospital. The Discharge Council (utskrivningsnämnden) of Katrineholm

refused the request on 16 September 1987. The applicant appealed to

the Psychiatric Council (psykiatriska nämnden) which rejected the

appeal on 29 December 1987. It stated inter alia the following :

"From the medical case-file and other documents in the case

it appears that you suffer from such mental disease as referred

to in Section 1 of the Act on Institutional Psychiatric Care

(lagen om beredande av sluten psykiatrisk vård). From the

documents it further appears that psychiatric care under the

provisions of the said Act is absolutely necessary in view of

the degree and character of the disease and in view of the

fact that you, as a result of the disease, obviously lack

understanding of the disease and since your state of health

can be significantly improved by care and significantly

deteriorate if you do not receive care - Section 1 para. 1 (a)

of the Act on Institutional Psychiatric care - and since, as a

result of the disease, you present a danger to the personal

safety of others - Section 1 para. 1 (b) of the Act on

Institutional Psychiatric Care.

The conditions for providing care under Section 1 para. 1 of

the Act on Institutional Psychiatric Care are therefore

satisfied."

On 7 january 1988 the Discharge Council rejected a request

from the applicant that he should be provisionally discharged.

The applicant appealed to the Psychiatric Council which in a

decision of 22 March 1988 noted that the applicant had been

provisionally discharged on 18 February 1988 and, consequently, struck

the case off its list of cases.

On 31 March 1988 the applicant requested a permanent

discharge. This petition was rejected by the Discharge Council on 13

April 1988 with reference to Section 1 (a) and (b) of the Act on

Institutional Psychiatric Care.

On 20 April 1988 the Discharge Council decided that the

provisional discharge should continue until 30 June 1988.

The applicant appealed to the Psychiatric Council which on 5

July 1988, for the same reasons as in the decision of 29 December

1987, rejected the appeal after having obtained written observations

from the Chief Doctor of the Karsudden hospital and the Discharge

Council.

COMPLAINTS

The applicant complains that he has been wrongly convicted and

sentenced, because he had committed the alleged offences, and that he

was wrongly deprived of his liberty, because he was not "of unsound

mind". He claims a permanent discharge and requests that his

conviction be quashed.

The applicant alleges violations of Articles 3, 4, 5 and 6 of

the Convention.

THE LAW

1. The applicant complains about his conviction and detention in

a psychiatric hospital. He alleges violations of Articles 3 (Art. 3),

4 (Art. 4), 5 (Art. 5) and 6 (Art. 6) of the Convention.

2. The Commission recalls that the applicant's conviction and

sentence acquired legal force when the Supreme Court refused leave to

appeal on 19 March 1986. The present application was introduced on 15

January 1988, which is more than six months after the Supreme Court's

decision. Consequently, insofar as the applicant complains about his

conviction and sentence, the application has been introduced out of

time and must be rejected pursuant to Article 27 para. 3 of the

Convention in conjunction with Article 26 (Art. 27-3+26).

3. As regards the applicant's detention in a psychiatric

hospital, the Commission notes that, in deciding whether a person

should be detained as a "person of unsound mind" within the meaning of

Article 5 para. 1 (e) (Art. 5-1-e) of the Convention, the national

authorities have a certain discretion, since it is in the first place

for them to evaluate the evidence placed before tham in a particular

case. Nevertheless, the Convention organs are competent to verify

under the Convention that a measure of detention ordered by the

national authorities is "lawful" (Eur. Court H.R., Winterwerp judgment

of 24 October 1979, Series A no. 33, p. 18, para. 40).

The Commission notes that the applicant's detention in a

psychiatric hospital was first based on a judgment in which the

applicant had been found guilty of serious offences. The detention

was subsequently reviewed on several occasions by the Discharge

Council and the Psychiatric Council. It appears from the documents

submitted in the case that these bodies based their decisions on the

applicant's medical case-file and on other medical documents. One

medical certificate, issued by the Chief Doctor of the institution

where the applicant was kept, has also been made available to the

Commission.

On the basis of the material presented, the Commission, which

notes that the applicant was provisionally discharged on 18 February

1988, is satisfied that the applicant's detention up to that date was

in conformity with Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.

This part of the application is therefore manifestly ill-founded

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

Convention.

4. As regards the remainder of the applicant's complaints, the

Commission finds no issue under 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.

For these reasons, the Commission

DECLARES THE APPLICAITON INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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J. v. SWEDEN

J. v. SWEDEN

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