FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41403/98 by Olle WALL against Sweden

The European Court of Human Rights ( Fourth Section) , sitting on 10 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Swedish national, born in 1944 and living in Stockholm . The respondent Government are represented by their Agent Mrs Eva Jagander, the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 14 June 1996 a social welfare district committee ( sociala distriktsnämnden ) in Stockholm applied for a compulsory care order regarding the applicant pursuant to the provisions of the Care of Abusers Act ( lagen om vård av missbrukare i vissa fall, 1988:870, hereinafter called the 1988 Act). The committee produced and submitted an investigation report of 3 June 1996 from which it appeared inter alia that the applicant had been sober for several years but that during the last two or three years he had often relapsed into serious periodic abuse of alcohol, drinking up to two or three bottles of strong spirits a day. The last period of abuse commenced in October 1995 with intervals of only a few days. During 1995 and the first part of 1996 the applicant had terminated ongoing treatment for his abuse on several occasions and he had been detoxified ten times.

The committee invoked three medical certificates dated 22, 28 and 31 May 1996 respectively, stating, amongst other things, that the applicant declined treatment for his abuse, that there was a risk of psychosis, that his blood pressure had substantially increased due to the abuse causing a risk of acute cerebral bleeding, and that he was in great need of compulsory care under the 1988 Act.

In the medical report of 31 May  1996 it was inter alia stated:

“[The applicant] had been known at the clinic since 1962. He had been admitted to the clinic 14 times since 1979. In addition, he had come to the emergency ward several times but had refused to stay. [The applicant] was in contact with Dr. Malm at the psychiatric ward of the Danderyd Hospital due to his misuse. [The applicant] refused treatment and help. He suffered from high blood pressure, which was substantially increased due to the misuse and caused a risk of acute cerebral bleeding. A test showed signs of liver damage. [The applicant] was in a very destructive phase of misuse, he was very aggressive and there was a risk of psychosis. He was in great need of compulsory care under the 1988 Act.”

The applicant submitted a medical certificate of 16 April 1996 stating notably that compulsory care had had no positive effect on him and that it could rather result in a deterioration of his situation.

On 28 June 1996 the County Administrative Court ( länsrätten ) of the County of Stockholm held an oral hearing in the presence of the applicant, who opposed the application. He stated that substantial personal setbacks had caused him to resume his abuse. However, his personal situation was stable at the time of the application and he had been sober for ten days at the time of the hearing. He wanted to go to a recreation home in order to eat and do physical exercises.

On 2 July 1996 the County Administrative Court ordered his compulsory care for the following reasons:

“Even considering [the applicant’s] statement that there has been a break in his abuse prior to the oral hearing, the [court] finds that it has been shown that he continuously abuses alcohol and that he is in need of care in order to give up the abuse. It has been ascertained that as a result of the abuse [the applicant] exposes his physical and mental health to serious danger. [The court] also finds that by the abuse [the applicant] imperils his living conditions in other respects; there is particularly a risk that he will be forced out of the labour market. Consequently, he obviously risks having his life destroyed.

As regards the question whether the need for care can be met according to the [1980 Social Services Act] or in any other way, the following is noted.  [The court] finds that the measure proposed by [the applicant] himself, a stay at the recreation home [ Masersgården ], obviously cannot be considered as the care needed in his circumstances. The facts of the case show that attempted voluntary care has failed because [the applicant] has lacked the capacity, and periodically the determination, to undergo care. In view of the history of [the applicant’s] abuse and the very serious abuse he has been addicted to since October 1995, a shorter period of sobriety cannot be considered as having altered the prospects for voluntary care. Nor does [the court] find any other reason to believe there are such prospects. In conclusion, [the court] finds that even if [the applicant] now wants to give up his abuse, the necessary care cannot be ensured voluntarily.

For these reasons [the court] finds that there are grounds for providing [the applicant] with care pursuant to [the 1988 Act].  The application is therefore granted. The care order shall be immediately enforceable.”

On 6 July 1996 at 09.20 the applicant was taken from his home by two police officers. It is in dispute whether he was notified that this would occur beforehand. According to the police records it took forty minutes to bring him to a police custody centre in Stockholm. Shortly thereafter the National Prison and Probation Administration ( Kriminalvårdsstyrelsen ) brought him to a so-called LVM institution. On arrival at the LVM institution he was placed in a closed ward for the first five days as this was deemed necessary in order for the treatment to commence.

On 11 July 1996 the social welfare committee proposed in accordance with section 27 of the 1988 Act that the applicant be transferred to a care programme at another institution. However, the applicant chose to stay at the LVM institution to begin a programme of the Minnesota model. He lost interest in the programme after a couple of weeks. Thereafter he agreed to a treatment at a care facility centre for alcoholics in the Stockholm area and he was granted leave for two days in order to visit the centre. Subsequently, on 18 August 1996 he absconded.

Having relapsed into drinking, on 4 September 1996 he returned voluntarily to the LVM institution where he was placed in a closed ward until 9 September 1996. He re-absconded three days latter.

In the meantime the applicant had appealed against the care order. He argued that he would be forced out of the labour market if he was not released from the LVM institution. He further maintained that it was unreasonable that, being a socially stable person, he should undergo expensive and unnecessary care. He was not motivated by the intended care and he considered it degrading. He was shocked to be transferred, allegedly handcuffed, by the police on 6 July 1996 to the LVM Institution.

On 17 September 1996 the Administrative Court of Appeal ( kammarrätten ) in Stockholm held an oral hearing in the absence of the applicant, who at that time twice had failed to attend as summoned. By judgment of 9 October 1996 the appellate court upheld the care order, making the same assessment as the lower court.

Subsequently, the applicant several times returned to and was discharged from the LVM institution in order to participate in treatment, which allowed him to stay in his own home at night. Thus, he was subject to compulsory care during the periods between 18 September and 21 October 1996, between 30 October and 2 December 1996, and finally between 2 and 10 January 1997. Thereafter, he was formally and permanently discharged from the LVM institution.

On 19 March 1997 the applicant appealed against the judgment of 17 September 1996. He invoked the medical certificate dated 16 April 1996. On 12 June 1997 the Supreme Administrative Court ( Regeringsrätten ) refused leave to appeal.

B. Relevant domestic law

The relevant provisions of the 1988 Act read as follows:

Section 1

“All care intended to help individual persons to discontinue their abuse of alcohol, narcotics or volatile solvents must be guided by the goals of the public services as defined in section 1 of the Social Service Act ( S ocialtjänstlagen, 1980 :620 ). Care must be based on respect for the self-determination and privacy of the individual and must as far as possible be designed and conducted in partnership with the individual.”

Section 2

“Care within the social services is supplied to an abuser on a basis of consensus with him, in accordance with the provisions of the Social Service Act. An abuser shall, however, be provided with care regardless of his own consent, subject to conditions defined in this Act (compulsory care).

The content and design of compulsory care are subject to the provisions of the Social Services Act, except where otherwise indicated in this Act.”

Section 3

“Compulsory care shall be aimed at motivating the abuser in such a way that he may be presumed capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse.”

Section 4

“A compulsory care order shall be made if any person, as a result of ongoing abuse of alcohol, narcotics or volatile solvents, is in need of care in order to discontinue his abuse and the necessary care cannot be provided under the Social Services Act or in any other way and, as a result of the abuse, he

1. is seriously endangering his physical or mental health.

2. runs an obvious risk of ruining his life, or

3. is liable to inflict serious injury on himself or some person closely related to him...”  

Section 5

“Compulsory care orders are made by the County Administrative Court.”

Section 11

“If, following investigation, the social welfare committee finds that there is cause for providing any person with compulsory care, the committee shall apply for such care to the County Administrative Court.

The application shall be accompanied by the investigation report prepared by the committee, and failing some special impediment, a medical certificate regarding the abuser’s current health status.

The court may order a medical examination if the application does not contain a medical certificate or if an examination is needed for some other reason.”

Section 20

“Compulsory care is to be terminated as soon as the purpose of the care has been achieved and, at the latest, when it has been in progress for six months. Care shall be deemed to have commenced when, on account of an immediate care order or compulsory care, the abuser has presented himself at or been taken to an institution as referred to in section 22 or a hospital. Care is terminated by a discharge order under section 25. “

Section 22

“Compulsory care is provided through residential institutions specially intended for the provisions of care under this Act (LVM institutions). An institution of this kind shall be directed by a board of governors appointed by the National Board of Institutional Care ( Statens institutionsstyrelse )...

Section 25

“...Decisions concerning admission to and discharge from an LVM institution are made by the person or body in charge of care at the institution...”

Section 26

“The person or body in charge of the care at an LVM institution shall keep the social welfare committee continuously informed of the progress of care and shall consult the committee on all matters of importance...”

Section 27

“The person or body in charge of care at an LVM institution shall, as soon as the care schedule permits, make an order for the inmate to be given the opportunity of leaving the LVM institution for some other form of care.”

Section 29

“If an inmate has resided in an LVM institution for three months without any other form of care materialising, the person in charge of care shall report this fact to the governing body of the institution and indicate the cause.”

Section 30

“The social welfare committee shall make effective efforts to ensure that, after the period of care, the individual obtains housing and employment or education, and also to ensure that he receives personal support or treatment for the permanent discontinuation of his abuse.”

Section 44

“A decision by the person or body in charge of an LVM institution may be contested by the individual person by appeal to the County Administrative Court if the decision refers to ...rejection of a request for discharge...”

Section 45

“The police authority shall render assistance ... at the request of the social committee, to convey a person who is to be provided with care ... to an LVM institution or hospital...”

The relevant provisions of the Social Services Act read as follows:

Section 1

“Public social services shall, on the basis of democracy and solidarity, promote people’s economic and social security, equality of living conditions and active participation in the life of the community.

With due consideration for the responsibility of the individual for his own social situation and that of others, social services shall be aimed at liberating and developing the innate resources of individuals and groups.

Activities shall be based on respect for people’s self-determination and privacy ...”

Section 11

“The social welfare committee shall work for the prevention and counteraction of abuse of alcohol and other addictive substances.

The social welfare committee shall, by means of information supplied to authorities, groups and individual persons and through activation measures, disseminate knowledge concerning the harmful effects of abuse and concerning the help available.

The social welfare committee shall actively ensure that the individual substance abuser receives the assistance and care which he needs in order to overcome his abuse. The committee, acting on the basis of consensus with the individual, shall plan the assistance and care and closely monitor compliance with the plan.”

Section 26 of the Social Services Ordinance ( S ocialtjänstförordningen ) provides that an inmate at an LVM institution may be subjected to care in a closed ward if this is deemed necessary considering the safety of the inmate himself, other inmates or the staff, or if it is found necessary in order to prevent the inmate from absconding or in order to carry out the treatment. Such detention may last for a maximum of two consecutive months.

COMPLAINTS

1. The applicant complains, under Article 3 of the Convention, that he has been subjected to inhuman or degrading treatment since he was allegedly handcuffed when transferred by the police to the LVM institution, which was witnessed by children at a day care centre close to his home.

2. Furthermore, he complains that as a result of the care order he was illegally deprived of his liberty in breach of Article 5 of the Convention.

THE LAW

1. The applicant complains that he was subjected to inhuman or degrading treatment amounting to a violation of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government contest that the applicant was handcuffed when brought from his home to the LVM institution on 6 July 1996. In any event, they maintain that the applicant did not exhaust domestic remedies in relation to this complaint since he failed to institute an action for damages against the police officer in charge of the alleged handcuffing. Should the Court however consider that the applicant has exhausted domestic remedies, the Government submit that the complaint should be declared inadmissible for failure to comply with the six-months’ rule. Finally, the Government argue, if handcuffing had taken place such a measure was in compliance with domestic law, well-founded and did not amount to suffering of the level inherent in the notions “inhuman” or “degrading” treatment.

The applicant maintains that it was humiliating and devastating to be handcuffed like a criminal and to be seen in such a state by the children outside his home. As a consequence, he claims, he would like to move but cannot afford to.

The Court notes that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 3 of the Convention, as Article 35 § 1 of the Convention provides that the Court “may only deal with the matter after all domestic remedies have been exhausted, according to the general recognised rules of international law, and within a period of six months from the date on which the final decision was taken”.

The Court does not find it necessary to determine whether or not an action for damages would, in the circumstances of the present case, have constituted such a sufficient and effective remedy for the purposes of Article 35 § 1, since the Court finds that this complaint is, in any event, inadmissible on other grounds.

Thus, the Court recalls that according to the established case-law, assuming that an act of an authority is not open to any effective remedy, the six-month period runs from the date on which the act took place (see, among other authorities, Aydin , Aydin and Aydin v. Turkey (dec.), no. 28293/95, no. 29494/95 and no. 30219/96, 1 February 2000).

In the present case the Court notes that the applicant was transferred to the LVM institution on 6 July 1996, whereas his complaint made under Article 3 of the Convention was lodged with the Commission on 28 October 1997, that is more than six months after the alleged handcuffing of which complaint is made.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

2. The applicant also complains that his compulsory care runs counter of Article 5 § 1 (e) of the Convention, which reads as follows:

“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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants...”

The Government maintain that the applicant’s detention was ordered in accordance with a procedure prescribed by law and that it was covered by Article 5 § 1 (e).

However, they note that the applicant was placed in a closed ward for only a minor part of the time he spent at the LVM institution. Furthermore, he spent several periods as an absconder or taking part in treatment allowing him to stay in his own home at nights. As to the latter periods the Government contend that these can hardly be considered as giving rise to a deprivation of liberty.

The Government submit that when adopting the 1988 Act Parliament took the position that it was the obligation of society to intervene with compulsory measures when abuse had reached a level where serious medical or social damage was imminent and the need for care could not be satisfied in any other way. Thus, despite the rule of the priority of voluntary care and despite an abuser’s consent to such, special circumstances may nevertheless lead to the employment of compulsory care e.g. if there are reasons to believe that the abuser’s consent is not serious or the abuser’s state of health demands immediate care. Accordingly, in the Government’s view, the law satisfies not only the test of being precise but also that of foreseeability .

In the present case it follows from the medical certificates invoked before the domestic courts that the applicant’s health was in acute danger due to his heavy abuse. The care that he was badly in need of could not be secured on a voluntary basis. Accordingly, the Government maintain, the order in dispute was lawful within the meaning of Article 5 of the Convention.

The applicant maintains that he was not in need of compulsory care. He contests that his health was in any acute danger and he draws attention to the fact that he was willing to be treated on a voluntary basis, as he had been all along since 1995. As stated in the medical certificate of 16 April 1996, invoked by him before the domestic courts, punishment and coercion would only have negative effects on his kind of personality. Accordingly, he alleges, he had never consumed so much alcohol as during the period when he was enrolled at the LVM institution.

He contends that his future prospects have been spoiled by the authorities’ preference of care and treatment. Moreover, he alleges that it is well established that alcohol abusers who have been subjected to compulsory care hardly ever make it back into the labour market, that after the first order for compulsory care more follow, and that abusers are interned and registered without having committed any crime.

The Court notes that it is not in dispute that the time the applicant spent in compulsory care at the LVM institution amounted to a “deprivation of liberty”. The Court agrees and recalls its finding in the Witold Litwa v. Poland , no. 26629/95, § 46, ECHR 2000-III, that six and a half hour’s of confinement in a sobering up centre amounted to “deprivation of liberty” within the meaning of Article 5 of the Convention.

The Court also notes that it is not in dispute that Article 5 § 1 (e) of the Convention is applicable to the present case. In this respect it recalls that the expression “alcoholics” should be understood in the light of the object and purpose of Article 5 § 1 (e) of the Convention. It indicates that the object and purpose of this provision cannot be interpreted as only allowing the detention of “alcoholics” in the limited sense of persons in a clinical state of “alcoholism”. The Court considers that, under Article 5 § 1 (e) of the Convention, persons who are not medically diagnosed as “alcoholics”, but whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves, can be taken into custody for the protection of the public or their own interests, such as their health or personal safety (cf. Litwa v. Poland cited above, § 61)

It falls to the Court to examine whether the applicant’s detention was “lawful” for the purpose of Article 5 § 1 (e) of the Convention. In this respect the Court reiterates that under Article 5 of the Convention any deprivation of liberty must be “lawful”, which includes a requirement that it must be effected “in accordance with a procedure prescribed by law”. On this point, the Convention essentially refers to national law and lays down an obligation to comply with its substantive and procedural provisions.

It also requires that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness. The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is executed in conformity with national law but it must also be necessary in the circumstances (see inter alia Litwa v. Poland cited above, §§ 72, 73 and 78).

The Court also reiterates that Article 5 § 1, sub-paragraph (e) besides persons carrying infectious diseases refers to persons of unsound mind, alcoholics, drug addicts and vagrants. The reason why the Convention allows the latter individuals, all of whom are socially maladjusted, to be deprived of their liberty is not only that they have to be considered as occasionally dangerous for public safety but also that their own interests may necessitate their detention (see e.g. the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 36, § 98).

In the instant case the Court notes that the applicant was detained in accordance with section 4 of the Care of Abusers Act as interpreted by the County Administrative Court and the Administrative Court of Appeal.

The Court finds that the wording of this provision could reasonably justify the way it was applied in the applicant’s case. Accordingly, the Court accepts that the applicant’s detention was lawful under domestic law.

As to the requirement of non-arbitrariness, the Court notes that at the time of the compulsory care order three independent medical certificates stated that the applicant’s physical and mental health was exposed to serious danger as a result of his abuse of alcohol. Also, the facts of the case show that during 1995 and the first part of 1996 attempted voluntary care had failed since the applicant apparently lacked the capacity and periodically the determination to undergo care.

After five days of detention, on 11 July 1996 the social welfare committee proposed in accordance with section 27 of the 1988 Act that the applicant be given the opportunity of leaving the LVM institution for some other form of care. However, the applicant chose to remain at the LVM institution in order to commence a programme of the Minnesota model.

Shortly before the applicant absconded on 18 August 1996 yet another attempt was made to transfer the applicant to another form of care, namely to a care facility centre for alcoholics in the Stockholm area.

Two more attempts in this respect were made in the period between 21 October 1996 and 10 January 1997.

Thus, the applicant was detained in the periods between 6 July and 18 August, 4 and 12 September, 18 September and 21 October, 30 October and 2 December 1996 and finally between 2 January and 10 January 1997, i.e. altogether eighteen weeks and one day.

Thereafter, the applicant was formally and permanently discharged from the LVM institution.

In these circumstances the Court is satisfied that the authorities continuously considered less severe measures, that they strictly scrutinised the necessity for subjecting the applicant to compulsory care, and that the total length of the applicant’s detention was not extended beyond a period reasonable to the aim pursued, namely as provided by section 3 of the 1988 Act to motivate the applicant in such a way that he become capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse.

As a consequence the Court finds that the facts of the case do not disclose any appearance of a violation of Article 5 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza              Deputy Registrar President