Information Note on the Court’s case-law 39

February 2002

H.M. v. Switzerland - 39187/98

Judgment 26.2.2002 [Section II]

Article 5

Article 5-1

Deprivation of liberty

Placement of elderly person in a foster home on account of serious neglect: no violation

Facts : The applicant is a pensioner, born in 1912. In 1996 the Association for House and Sick Visits wrote to the Guardianship Office to express its concern ab out the increasing difficulties it was encountering in providing care and treatment for the applicant. It referred in particular to the conditions in the house in which she was living with her son. As there was no improvement, the association stopped visit ing the applicant. Subsequently, despite her objection, the District Government Office ordered that she be placed in a foster home for an unlimited period, on account of serious neglect. The applicant and her son appealed to the Cantonal Appeals Commission . Following a hearing at which the applicant stated that she had no reason to be unhappy with the foster home but that she wished to leave it, the Appeals Commission dismissed the appeals. It held that there were two grounds justifying withdrawal of the ap plicant’s liberty on grounds of welfare assistance: firstly, neglect, and secondly, mental weakness (senile dementia), which it held would justify placement in a foster home even if the neglect was not sufficiently serious. It noted that the applicant’s so n was unable to provide sufficient care and added that the applicant hardly felt the deprivation of liberty, which was minimal and mainly affected her son. The applicant and her son unsuccessfully lodged a public law appeal to the Federal Court. The applic ant later agreed to reside at the foster home and the placement order was duly lifted.

Law : Article 5 § 1 – The starting point in determining whether there has been a deprivation of liberty must be the specific situation of the individual and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measures in question. The distinction between a deprivation of and a restriction upon liberty is one of degree or intensity and not one of nature o r substance. In the present case, the decision to place the applicant in a foster home was taken on the basis of the unacceptable conditions in which she was living. She was not placed in the closed ward of the foster home but enjoyed freedom of movement a nd was able to have social contacts with the outside world. Indeed, according to the Appeals Commission she hardly felt the effects of being in the foster home at all and it was rather her son who was affected. Moreover, the applicant herself was undecided as to which solution she preferred, having indicated that she had no reason to be unhappy with the foster home. In fact, she subsequently agreed to stay there. In the light of these elements and the fact that the placement was in the applicant’s own inter ests, the placement did not amount to a deprivation of liberty within the meaning of Article 5 § 1 but was a responsible measure taken by the competent authorities in the applicant’s interests. Consequently, Article 5 was not applicable.

Conclusion : no vio lation (6 votes to 1).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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