DISSENTING OPINION OF MR S. TRECHSEL AND MRS J. LIDDY

JOINED BY MM E. BUSUTTIL, J.-C. GEUS, M.P. PELLONPÄÄ AND R. NICOLINI

We regret that we cannot agree with the opinion of the majority according to which there has been a violation of Article 5 para. 4 of the Convention in the present case. We cannot find any reason to say that due to the fact that Dr W., a psychiatrist in private practice and a member of the Administrative Appeals Commission (hereafter: AAC) functioned as an expert the effect was that the AAC ceased to be a “court” within the meaning of Article 5 para. 4. We would like to make it clear, however, that we do not intend to take a general stand on the question whether the functions of expert and judge are incompatible. Just in passing, however we would like to point to a rule in several legal systems according to which, while a judge must step down if he has himself been a witness of the facts to be adjudicated, there is no objection to his making use of special knowledge in a relevant area of specialisation.

We find it important to stress the facts of the case. Dr W. was not successively appointed expert and member of the AAC. He was a member of the AAC and as such had been asked to interview the applicant and to give an expert opinion at the same time.

The facts are, therefore, that a member of the five member Commission with special knowledge in psychiatry was acting as a Rapporteur and assessing the state of health of the applicant as an expert judge. In fact, it can hardly be contrary to Article 5 para. 4 if, when the court is to decide on the internment of a person of unsound mind, that court is composed, among others, of persons with specialised knowledge in the field of mental illness. It is also difficult to see why such a specialised member ought to be banned from examining the facts directly by talking to the applicant and reporting his findings to the full AAC. Due to the role he played in the present case, his opinion was known to the applicant and she had the possibility of commenting upon it - she could also have called an additional expert of her own. In addition, there was the possibility to challenge the participation of Dr W. as a judge. As the Federal Court points out, this could also have been done after the decision of the AAC had been taken.

Furthermore, we note that the applicant fails to put forward the slightest criticism of Dr W. She had expressly asked for the expert to be specialised in psychiatry while on an earlier occasion before the AAC her state of health with a view to internment had been assessed by a general practitioner (we note in passing that she had complained of that fact in vain to the Federal Court, cf. 119 Ia 260). This time in Dr W. there was an expert in the AAC with this particular qualification. Moreover, she had already been assessed by Dr E. and by Dr O., the chief medical officer of the psychiatric clinic.

It is true that her lawyer had, before the name of the expert was known, requested that it be a person who was not a member of the AAC. However, he failed to give the slightest reason for this request. This neglect had already been criticised by the AAC and the Federal Court on an earlier occasion when rejecting a similar appeal of the same applicant (119 Ia 263). Furthermore, the applicant’s lawyer made no attempt to cast doubts on Dr W.’s impartiality in any of his appeals to the Federal Court including his present application.

The applicant seems to regard it as particularly objectionable that Dr W., in addition to presenting his expert opinion, also made the proposal that her appeal be rejected. We fail to find any fault with that aspect of the case. In our view, Dr W. was the juge rapporteur of the AAC. It was logical to appoint him because he was the member with the best knowledge of the science, which was crucial for the decision to be taken. The competent body is not a normal court for the very reason that it was deemed essential that persons with specialised knowledge decide on whether deprivation of liberty with regard to persons of unsound mind was necessary. It is hard to understand why such a particularly knowledgeable member ought not be the one to hear the evidence - i.e. the applicant. It is only natural that he would also make a proposal - the same applies, e.g., with Delegates of the Commission after they take evidence in application of former Article 28 a) of the Convention.

Above all, as noted by the Government, Convention case-law establishes that no court of law of the classic kind is required by Article 5 para. 4 for the review of the detention of persons of unsound mind: the particular procedures must be adapted to the circumstances of the case and States are free to choose different methods of performing their obligations under Article 5 para. 4 (Eur. Court HR, Weeks v. United Kingdom judgment of 2 March 1987, Series A No. 114; X v. United Kingdom, judgment of 5 November 1981, Series A No. 46). We consider that the particular procedures at issue here were adapted to the circumstances of the case in an appropriate manner.

While we do not disagree that the cumulation of functions as found in the present case might, under different circumstances, be particularly delicate, we also note that it served the economy of the proceeding; it would hardly have been possible to come to a decision so speedily if an external expert would have been involved.

For all these reasons we come to the conclusion that there has been no violation of Article 5 para. 4 of the Convention in the present case.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.