SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39187/98 by H. M. against Switzerland

The European Court of Human Rights (Second Section) , sitting on 7 December 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr L. Wildhaber , Mr G. Bonello , Mrs V. Strážnická , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 December 1997 and registered on 6 January 1998,

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, a Swiss citizen born in 1912, is a pensioner residing in Worben in Switzerland. Before the Court she is represented by Mr W. Krähenmann , a lawyer practising in Bern in Switzerland.

A. Particular circumstances of the case

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

Until 1994, the applicant lived together with her husband in the flat of a house belonging to H.M., one of her two sons, in Lyss in the Canton of Bern. In view of her leg sores, she was tended by an Association for House and Sick Visits as from 1987. In 1989 H.M. moved in.

In 1994, upon their request, the applicant and her husband were placed under curatorship ( Beistandschaft ) of her other son, A.M. However, H.M. objected thereto. At the end of 1994, the applicant's husband moved into the S. old persons and foster home at Worben in the Canton of Bern. It was agreed that the applicant would also move in within a week, though she did not do so.

On 29 March 1995 a new curator, Mrs B.F. was appointed. Upon the applicant's request and in view of H.M.'s resistance towards the new curator, the curatorship was terminated in respect of the applicant on 28 June 1995, though not in respect of her husband.

Early in 1996 the applicant's husband died. As from 29 February 1996 the Association for House and Sick Visits stopped visiting the applicant. Thereafter, and following an eye-operation, the applicant's eye-sight deteriorated. As from March 1996 the house doctor ceased to visit the applicant who continued to live with H.M. in his house.

On 13 December 1996 the Lyss Guardianship Commission ( Vormundschaftskommission ) requested the Aarberg District Government Office ( Regierungsstatthalteramt ) to place the applicant into an old persons and foster home.

On 16 December 1996, the Aarberg District Governor visited the applicant at her home. The latter explained that, as a rule, her son cooked, and that she had enough to eat. She could go alone to the toilet, and she washed herself in the kitchen. Her leg sores were washed and treated by a woman who helped her. The applicant also stated that she did not wish to go to the S. foster home.

On 17 December 1996, the Aarberg District Government Office ordered for an unlimited period of time the applicant’s placement in the S. foster home Worben on account of serious neglect ( schwere Verwahrlosung ). The Office relied on S. 397a et seq. of the Swiss Civil Code ( Zivilgesetzbuch ) and S. 9 of the Act on Deprivation of Liberty on Grounds of Welfare Assistance ( Gesetz über die fürsorgerische Freiheitsentziehung ) of the Canton of Bern. The order requested the municipal police, together with the health police, to undertake the placement on 20 December. The order noted that the applicant required permanent treatment in view of her leg sores and her eye cataract, that she no longer received care from a doctor or an association, and that it was not certain that she had enough to eat. The order, referring to untenable hygienic conditions in the unheated flat, stated that this situation, lasting already for many years, would not change in the foreseeable future.

On 20 December 1996 the applicant was placed in the S. foster home in Worb.

The applicant and H.M. each filed an appeal ( Rekurs ) with the Cantonal Appeals Commission ( Rekurskommission ) of the Canton of Bern for Deprivation of Liberty on Grounds of Welfare Assistance. The Commission consisted of three judges on the bench, of which one, the president, was a lawyer. The other two persons were specialised judges, one of whom, the Rapporteur, was a medical doctor.

On 16 January 1997 the Commission conducted a hearing at which the applicant, H.M., their lawyer as well as a member of the Guardianship Commission and of the S. home were present. According to the minutes of the hearing, the applicant explained, on the one hand, that she had no reason to be unhappy with the foster home; that, as she could no longer walk, it would be better for her to stay there; and that she did not see how matters would get better for her. On the other hand, she stated that “(she) wanted to get out of the S.”.

On the same day, 16 January 1997, the Cantonal Appeal Commission dismissed the appeals. In its decision, the Commission stated as to the facts:

“The situation at [the applicant's residence] was apparently catastrophic, as even third persons found it necessary to file reports or make statements. It is noted in the file that lately [the applicant] had only been lying in bed, that her eyesight was very bad, and that she could not walk or stand properly. According to her own submissions she has to hold herself everywhere. She needs a wheel-chair which she did not have at home. The flat was not heated, there was refuse everywhere, and her nourishment was not taken care of. The health nurse responsible for [the applicant's] care had already previously stated that her leg sores had not healed in view of the circumstances of her life. The nurse now stated that in the last weeks of care she had noticed a serious reduction of body weight which she considered had to do with the fact that [the applicant's son] was not taking sufficient care of the mother's nourishment. A certain Mr Hi., who had brought [the applicant] home after her stay in hospital had been disgusted about the situation there and also stated that the flat was not heated. Also the fruit vendor reported that the situation was untenable. When Mrs B., head of the Social Department of the W. S., had been asked how [the applicant] liked it there, she had herself declared that she had been present when [the applicant] had arrived at the foster home. At that time [the applicant] had not been able to walk, she was not properly dressed (nylon stockings and a torn woollen jacket) and she had stunk terribly. Mrs B. was shocked and declared that never had she seen a person in such a state, although she had a long experience in guardianship matters.”

In its decision the Appeals Commission considered, with reference to S. 397a of the Swiss Civil Code that two grounds were met which justified depriving the applicant of her liberty against her will. First, the applicant was neglected, as she was no longer in a position to comply with the minimal requirements of nourishment and hygiene. She could not even dress herself any longer. Without the help of third persons she would have to stay in bed. In respect of the second ground the Appeals Commission considered that “during the hearing it had come to the conclusion that the applicant had a mental weakness (senile dementia)” ( Geistesschwäche [altersbedingte Demenz ]). Since the Association for House and Sick Visits had stopped its care, the problem was unresolved, particularly as the applicant refused to enter the S. foster home on her own free will. The decision continued:

“In this context, the argument also does not help that [the applicant] has accepted the necessity of her stay in a foster home, as she explained during the appeal hearing. It is true that the necessity of a deprivation of liberty on grounds of welfare assistance would become superfluous, if [the applicant] would on her own free will reside in the S.. However, it transpires from the case-file that she has already frequently stated that she would now wish to enter voluntarily in the S., though finally it did not happen.”

In the Appeals Commission's view, if the applicant was released, she would return to her son who was unable to provide sufficient care for her, as he himself was an invalid and had bad eyesight. On the other hand, the S. foster home, which could provide the necessary care, was ideal for the applicant as it was in an area which she knew. Indeed, the applicant hardly felt the deprivation of liberty which was minimal, and in fact it affected mainly her son who did not want to lose his mother. The Appeals Commission further found that the deprivation of liberty on grounds of welfare assistance complied with Article 5 § 1 (e) of the Convention, since this provision also permitted deprivation of liberty in case of vagrancy, which term was to be understood in a wider sense than neglect.

The applicant and her son filed a public law appeal ( staatsrechtliche Beschwerde ) which the Federal Court ( Bundesgericht ) dismissed on 15 May 1997, the decision being served on 17 June 1997.

Insofar as the applicant and her son complained that serious neglect, as stated in S. 397a of the Civil Code, was incompatible with Article 5 § 1 (e) of the Convention, the Federal Court found that, in view of S. 113 § 3 of the Swiss Federal Constitution, in the version in force at the time, it was not in a position to examine whether or not provisions of the Civil Code complied with Article 5 § 1 (e) of the Convention.

Insofar as the applicant and her son complained that the Appeals Commission had not examined whether less stringent measures were possible, the Federal Court found:

“The Commission concludes on a factual level that the first appellant [the applicant] is no longer capable to look after and care for herself, to nourish herself and even to dress herself; without the help of third persons she would only be able to lie in bed; the second appellant [the applicant’s son] who is an invalid and in fact can no longer see is unable to look after her, and there is nobody else who is in a position to care; other attempts which have been made to solve this open problem of care have failed; only at the end has the placement in the S. Worben foster home been considered as the only means to remove neglect. The Appeals Commission has therefore duly considered the proportionality of the deprivation of liberty ...

Whether in the case of the first appellant there exists, apart from serious neglect, also mental weakness, which would also justify deprivation of liberty on its own - a point which is called in question by the appellants - and whether procedural rules have allegedly been breached in connection with this ground of detention, need not be examined, particularly since the appellants have without success contested detention on account of serious neglect.”

On 14 January 1998, the Aarberg District Government Office lifted the applicant’s deprivation of liberty on grounds of welfare assistance as she was residing in the foster home on her own free will.

B. Relevant domestic law and practice

S. 397a et seq . of the Swiss Civil Code concern withdrawal of liberty on grounds of welfare assistance ( fürsorgerische Freiheitsentziehung ). S. 397a concerns the conditions herefor and states as follows:

“A person of age or an incapacitated person may be placed or kept back in a suitable institution on account of mental illness, mental weakness, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care.

In this context the burden must be considered to which the person causes to the environment.

The person concerned must be released as soon as the situation permits.”

S. 397e, concerning the procedure in such cases, provides that “in the case of mentally ill persons a decision can only be taken on the basis of an expert opinion”.

The Act on Deprivation of Liberty on Grounds of Welfare Assistance of the Canton of Bern implements S. 397a et seq . of the Civil Code. S. 3 et seq . of the Act concern “measures without deprivation of liberty”. S. 3 provides that the Guardianship Office ( Vormundschaftsbehörde ) shall ensure for the necessary personal assistance for persons who endanger themselves or others on account of mental illness, mental weakness, alcoholism, other addictions or serious neglect. Pursuant to S. 4 the Guardianship office can order measures of care if guardianship measures do not suffice; such measures may be renewed after two years and shall follow acknowledged principles of social work. S. 8 et seq . concern “deprivation of liberty on grounds of welfare assistance”. S. 8 mentions, inter alia , the institutions for the placement of such persons, namely a psychiatric clinic, a home for therapy, or a foster home. S. 9 mentions the competent bodies, in particular the District Government Office.

S. 113 § 3 of the Swiss Federal Constitution ( Bundesverfassung ), in force at the relevant time, provided , inter alia , that Federal Statutes, enacted by Parliament, are binding upon the Federal Court. S. 113 § 3 has meanwhile been taken over by S. 191 of the Federal Constitution currently in force.

COMPLAINTS

1. The applicant complains of the unlawfulness of her deprivation of liberty in that Article 5 § 1 (e) of the Convention lists only “vagrancy” and not “neglect” as a ground of detention, and in that the one cannot be compared with the other. Neglect implies that the usual conventions in respect of cleanliness, nourishment and health care are not met. Vagrancy, on the other hand, implies lack of residence and of financial means, and being a burden to the public. The applicant points out that she had a fixed domicile together with her son and, as an old age pensioner, draws a regular pension. Thus, none of the grounds of detention under Article 5 § 1 were met in her case.

The applicant concludes that S. 397a of the Civil Code contradicts the Convention.

2. Under Article 13 of the Convention the applicant complains that S. 113 § 3 of the Swiss Federal Constitution prevents the Swiss authorities from examining whether S. 397a of the Civil Code complies with the Convention. In view thereof, a breach of the rights of the Convention can be raised for the first time only before the Strasbourg organs.

THE LAW

1. The applicant complains of the unlawfulness of her deprivation of liberty in that Article 5 § 1 (e) of the Convention lists only vagrancy and not neglect as a ground of detention. This provision states:

“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 submit that in principle the grounds listed in S. 397a et seq. of the Civil Code qualify as deprivation of liberty within the meaning of Article 5 of the Convention. However, the applicant was not deprived of her liberty within the meaning of Article 5 of the Convention. All the circumstances of a case must be considered, in particular the nature and duration of the deprivation, its intensity, and the manner in which it was executed. In the present case, the S. foster home was an open institution with complete freedom of movement, to the extent that the applicant was able to occupy herself. The applicant, who was never in the closed ward, was free to have personal contacts, write letters or make telephone calls. The only limitation was that the applicant had to respect certain time-limits in order to obtain the required medical treatment. From the outset, the applicant herself did not regard the placement in the foster home as a deprivation of liberty, and before the Appeals Commission she even welcomed the assistance given to her. In the meantime, she had agreed to stay in the foster home on her own free will. As a result, the applicant’s freedom of movement was, in fact, enhanced thanks to the care which she obtained in the home.

Assuming that there has been a deprivation of liberty, the Government consider that the notion of “neglect” does not entirely tally with that of “vagrancy” in Article 5 § 1 (e) of the Convention, since it involves insufficient care, nourishment, medical assistance and clothing. The Government consider that the criteria established in the Court’s judgment in the Vagrancy Cases (see judgment of 18 June 1971, Series A no. 12) related to a danger created for public security. However, as the Court found in the case of Guzzardi v. Italy, a person’s own interests may also warrant his or her deprivation of liberty (judgment of 6 November 1980, Series A no. 39, p. 37, § 98).

The Government point out that in the present case other means were employed before the applicant was placed in the foster home. Thus, she was placed under curatorship , though this was terminated on 28 June 1995 on account of the applicant’s son. Until 1996 the Association for House and Sick Visits assisted the applicant at her home. Also until 1996 the applicant was treated by a house doctor.

In the Government’s view, the notion of “vagrancy” cannot be clearly circumscribed by a precise catalogue of external conditions, such as a fixed domicile or the financial means of existence. Rather, it must be considered that the person concerned can no longer lead a normal life, and the negative consequences which this will have for the person concerned as well as others. The question is not whether the person concerned is of fixed abode, but whether the lodgings prevent caring. Similarly, in addition to the financial means account must be taken of the person’s needs to lead a dignified life; the person’s integration into a social network; and the state of health. As a result, the applicant’s placement in a foster home complied with the requirements of Article 5 § 1 (e) of the Convention. In addition, the Appeals Commission found that the applicant suffered from a mental illness which was confirmed, as required by law, by a medical expert.

The applicant replies that she was placed in the foster home against her express will, pointing out that she could wash and dress herself, that her son would cook for her, and that she did not wish to leave him alone. In the foster home she could no longer freely decide about her place of residence or her daily life. She was not able to go home, as she would have been brought back again. It is irrelevant that she later agreed to stay in the foster home, since she disagreed with the original contested decision which deprived her of her liberty.

The applicant further points out that she did not meet the conditions of vagrancy, as defined in the Vagrancy cases (see the judgment cited above). At the time when she was placed in the foster home, she had a home and a regular financial income. The applicant cannot understand why the Association for House and Sick Visits stopped visiting her at her home, as she was very happy with the concomitant assistance. When the assistance stopped, her health deteriorated, thus providing the authorities with the opportunity to place her in a foster home. Insofar as the respondent Government refer to the decision of the Appeals Commission according to which the applicant also suffered from a mental illness, she points out that she never had the right to reply to this accusation before the Commission, and that she was never examined by a medical expert in this respect.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. Under Article 13 of the Convention the applicant complains that S. 113 § 3 of the Swiss Federal Constitution prevents the Swiss authorities from examining whether S. 397a of the Civil Code complies with the Convention. Article 13 of the Convention states:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Government submit that the Cantonal Appeals Commission called upon to examine the applicant’s case was free to examine breaches of written and unwritten law, including directly applicable international treaties. In the present case, the Commission examined the compatibility of the measure in the light of both the Civil Code and Article 5 § 1 of the Convention. Before the Federal Court the applicant would also have had the possibility of filing an appeal as well as an action for compensation to raise the complaints she is now raising before the Court.

In the applicant’s view, the system established by S. 113 § 3 of the Federal Constitution, in force at the time, clearly contradicts Article 13 of the Convention. In the present case, S. 397a of the Civil Code is in itself in breach of the Convention.

The Court recalls its case-law according to which Article 13 of the Convention does not guarantee a right to have legislation examined in abstracto , and that, if the application of legislation is at issue, Article 13 will be complied with where domestic machinery provides for remedies which enable "to a sufficient degree, to secure compliance with the relevant legislation (see Eur. Court HR, Lithgow and others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, pp. 74-75, §§ 205 ‑ 207).

In the present case, both the Cantonal Appeals Commission in its decision of 16 January 1997 and the Federal Court in its decision of 15 May 1997 carefully examined the various aspects of the proportionality as well as of the lawfulness of the applicant’s placement in the foster home concerned. In addition and upon the applicant’s complaint, the Cantonal Appeals Commission also examined in substance the compatibility of the measure imposed on the applicant with the conditions of Article 5 § 1 (e) of the Convention.

It follows that the applicant had an effective remedy at her disposal within the meaning of Article 13 of the Convention. The remainder of the application is, therefore, also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the alleged deprivation of her liberty under Article 5 § 1 of the Convention ;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President