Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12778/87

by W.

against Sweden

The European Commission of Human Rights sitting in private

on 9 December 1988, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

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 12 February

1987 by W. against Sweden and registered on 2 March 1987 under file

No. 12778/87;

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 1955 and residing

at Malmö.

On 29 October 1986 the applicant was involuntarily admitted to

the psychiatric ward of a hospital (Malmö östra sjukhus) by a decision

of a chief doctor at the hospital under the Act on Institutional

Psychiatric Care (lagen om beredande av sluten psykiatrisk vård).

On 30 October 1986 the chief doctor found that the applicant

could be provided care pursuant to the Act on Institutional

Psychiatric Care.

The applicant appealed against the above decisions to the

Discharge Council (utskrivningsnämnden) of Lund requesting that the

decisions be quashed and that she be discharged.

On 17 November 1986 the Discharge Council, stating that the

mental illness of the applicant had required her admission to hospital,

upheld the decision of 29 October and declined to discharge her. On

the other hand the Council found that there could be no objection to

discharging the applicant on a provisional basis. The Discharge

Council consequently ordered that the applicant be discharged on a

provisional basis until the end of April 1987. It further ordered

that, during the provisional discharge, the applicant should take

medicine (neuroleptika) and present herself for medical control at the

hospital every second week.

The applicant appealed against this decision to the Psychiatric

Council (psykiatriska nämnden). On 10 February 1987 the Psychiatric

Council, agreeing with the Discharge Council that treatment was

required, rejected the appeal.

The Psychiatric Council gave the following reasons:

"From the documents in the case it is established that you

suffer from such mental disease as referred to in Section 1

of the Act on Institutional Psychiatric Care. From the

documents it is also established 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 can

significantly deteriorate if you do not receive care -

Section 1 para. 1 (a) of the Act on Institutional

Psychiatric Care.

The conditions for providing care under Section 1 of the Act

on Institutional Psychiatric Care are satisfied. Moreover,

for your treatment it is necessary that you comply with the

prescription given for your provisional discharge."

COMPLAINTS

1. The applicant maintains that, having been deprived of her

liberty, she did not have the right to take proceedings by which the

lawfulness of her detention could be examined by a court. She alleges

a violation of Article 5 para. 4 of the Convention arguing that the

Discharge Council and the Psychiatric Council do not satisfy the

requirements of a court as required by that provision.

2. The applicant also requests compensation under Article 5 para. 5.

THE LAW

1. The applicant complains that she did not have access to a

court satisfying the conditions of Article 5 para. 4 (Art. 5-4) of the

Convention for the purpose of challenging the decision of 30 October

1986 to commit her for treatment pursuant to the Act on Institutional

Psychiatric Care. Article 5 para. 4 (Art. 5-4) of the Convention

reads:

"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."

The Commission observes that the applicant could take, and did

take, proceedings before the Discharge Council in order to have

examined the lawfulness of her detention. The result of those

proceedings was that the applicant was discharged provisionally. The

provisional discharge was accompanied by an order that the applicant

should take medicine and present herself for medical control at the

hospital once every second week. The Commission considers that these

conditions attached to the provisional discharge were not so severe

that the applicant's situation after her provisional discharge could

be characterised as a deprivation of liberty (cf. Eur. Court H.R.,

Guzzardi judgment of 6 November 1980, Series A no. 39, p. 33, para. 92

and Commission's decision on admissibility, No. 9990/82, Dec. 15.5.84,

D.R. 39 p. 119).

Consequently, the Commission's examination must be based on

the finding that the applicant's deprivation of liberty terminated as

a result of the provisional discharge ordered by the Discharge

Council.

The question therefore arises whether the applicant can still

claim to be a victim of a violation of the procedural guarantees of

Article 5 para. 4 (Art. 5-4) of the Convention. In this context the

Commission recalls that it has on several occasions held that an

applicant who has complained of violations of the procedural

guarantees in Article 6 (Art. 6) of the Convention in criminal

proceedings against him can no longer claim to be a victim if, at the

end of the proceedings, he is acquitted. In such cases the Commission

has considered that the alleged violations of Article 6 (Art. 6) had

been rectified by the acquittal and that the applicant could not

legitimately pursue a complaint before the Commission (see e.g. No.

8083/77, Dec. 13.3.80, D.R. 19 p. 223).

The Commission considers that similar considerations apply in

the present case. The purpose of Article 5 para. 4 (Art. 5-4) of the

Convention is to provide a safeguard against arbitrary detention by

enabling persons actually deprived of their liberty to take

proceedings before a "court" to have the legality of the detention

examined. Since the applicant was released as a result of the

procedure before the Discharge Council there is no purpose in

examining whether the procedure before that Council satisfied Article

5 para. 4 (Art. 5-4) as any procedural inadequacy must be considered

to have been rectified by the applicant's release.

Consequently, the applicant can no longer claim to be a victim

of a violation of Article 5 para. 4 (Art. 5-4) in respect of the

procedure before the Discharge Council.

Moreover, insofar as the applicant's complaint is directed

against the procedure before the Psychiatric Council, the Commission

considers that, since the applicant was discharged when she appealed

to the Psychiatric Council, Article 5 para. 4 (Art. 5-4) of the

Convention did not apply to the applicant's situation.

It follows that this part of the application is manifestly

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

the Convention.

2. The applicant complains further that she has no right to

compensation for the alleged deprivation of her liberty, contrary to

Article 5 para. 5 (Art. 5-5) of the Convention, which reads:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

The right to compensation under this provision presupposes

that a violation of one of the other paragraphs of Article 5 (Art. 5)

of the Convention has been established either by a domestic organ or

by the Convention organs (cf. No. 7950/77, Dec. 4.3.80, D.R. 10 p.

213).

In the present case, the Commission has found the applicant's

complaint under Article 5 para. 4 (Art. 5-4) of the Convention

manifestly ill- founded. Nor is there any indication of a violation

of any of the other paragraphs of Article 5 (Art. 5-4) of the

Convention.

It follows that this part of the application is 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 APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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WEIJDEN v. SWEDEN

WEIJDEN v. SWEDEN