DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the majority that the applicant's placement in the nursing home did not amount to a deprivation of liberty within the meaning of Article 5 § 1. I also disagree with the concurring opinion of Judge Gaukur Jörundsson to the effect that the applicant's deprivation of liberty in this case through the compulsory placement in the nursing home fell within the ambit of Article 5 § 1 (e) as being the “lawful detention ... of [a person] of unsound mind” within the meaning of that provision.

I am of the opinion that the applicant's placement in the nursing home amounted to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention and that such deprivation of liberty did not fall within the ambit of Article 5 § 1 (e) or any other sub-paragraph of that Article. Therefore, I find that there has been a violation of Article 5 § 1 of the Convention in this case.

As regards my finding that there has been a deprivation of the applicant's liberty, I adopt the reasoning of Judge Gaukur Jörundsson. But I would like to add on this subject the following: The applicant's placement in the nursing home was against her will. It was implemented by the police under an order explicitly defined by the national law itself and referred to by the national authorities as a measure of deprivation of liberty (see paragraph 28 of the judgment), and she was not permitted to leave the nursing home. In these circumstances, I cannot see how her situation could be regarded as anything else than a deprivation of liberty.

In Ashingdane v. the United Kingdom , also referred to by the majority (see paragraph 42 of the judgment), it was found that a person kept compulsorily in a mental hospital was protected by Article 5 even though he was in an “open” (that is to say, unlocked) ward and was permitted to leave the hospital unaccompanied during the day and over the weekend (see paragraph 43 of the judgment). Therefore, the fact referred to by the majority that “the applicant was not placed in the secure ward of the nursing home ... Rather, she had freedom of movement and was able to maintain social contact with the outside world” does not in any way change the reality and severity of the restrictive regime in which the applicant was placed, as described above (see paragraph 45 of the judgment).

Detainees in prisons and other places of detention, which amount to typical cases of deprivation of liberty for the purposes of Article 5 of the Convention, may be allowed to move freely within defined areas and have social contact with the outside world through telephone calls, correspondence and visits, for example; some may also be allowed day release. Yet, so long as they (like the applicant) are not permitted to leave the place where they are detained and go anywhere they like and at any time they want they are certainly “deprived of their liberty”.

In De Wilde, Ooms and Versyp v. Belgium (judgment of 18 June 1971, Series A no. 12, p. 36, § 65), the Court went as far as to hold that the fact that a person has submitted voluntarily to a particular regime of detention does not exclude the operation of Article 5 when it came to challenging its lawfulness or seeking release. The Court stated:

“... the right to liberty is too important in a 'democratic society' within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it.”

In the same case the Court also stated:

“In so far as the wishes of the applicants were taken into account, they cannot in any event remove or disguise the mandatory, as opposed to contractual, character of the decisions complained of; this mandatory character comes out unambiguously in the legal texts ...” (ibid.)

Therefore, the view of the majority that “the applicant was hardly aware of the effects of her stay in the nursing home ... [T]he applicant herself was undecided as to which solution she in fact preferred. For example, at the hearing before the Appeals Commission, she stated that she had no reason to be unhappy with the nursing home” runs counter to the above approach in De Wilde, Ooms and Versyp .

I also find that the statement of the majority that “after moving to the nursing home, the applicant agreed to stay there. As a result, the ... order for the applicant's placement [ was lifted ]” (emphasis added) highlights rather than attenuates the mandatory restrictive nature of the applicant's placement in the nursing home.

The majority appear to have relied heavily on “the fact that the Cantonal Appeals Commission ordered the applicant's placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene” (emphasis added). Relying on that consideration and taking into account the “comparable circumstances in Nielsen ”, the majority concluded that “the applicant's placement in the nursing home 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 ” (emphasis added).

It is my opinion that the question whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned. This is illustrated by De Wilde, Ooms and Versyp (cited above) and the examples of minors and persons of unsound mind requiring educational supervision, whose detention is expressly justified under the provisions of Article 5 § 1 (d) and (e) on the premise that their case concerns “deprivation of liberty”, even though such detention may be exclusively in the detainees' interests.

I believe that physical freedom is of unique importance and that the exceptions to the prohibition of deprivation of liberty are exhaustively limited to those set out expressly in the sub-paragraphs of Article 5 § 1. If an individual's deprivation of liberty does not fall within any of these categories then it must be prohibited by Article 5. Indeed, if it were true that those responsible for the application or interpretation of the Convention were free to establish other categories of “deprivation of liberty” in respect of which the prohibition of Article 5 would be inapplicable, either because the compulsory restriction of a person's physical freedom is a “responsible measure” for his own good (as in the present case) or for any other “useful” purpose, this would render the prohibition in question meaningless and make a mockery of its objectives. Even worse, it would open the door to uncontrolled arbitrariness and real and unwarranted dangers to the freedom of the individual which the Convention aims to avert.

It is true that there are situations not specifically mentioned in Article 5 where deprivation of liberty may be necessary for good reasons. The present case may, possibly, be an example of this. However, these situations could comply with Article 5 in accordance with the safeguards provided thereunder if appropriate national legislation brought them within the exception of sub-paragraph 1 (b) of Article 5. In this way the safeguards of Article 5 § 1 (b) will serve to protect against, for example, the danger of elderly people being deprived of their liberty at the behest of scheming relatives seeking to make personal gain from their compulsory removal to institutions on the general, feeble grounds of “mental disability” or “senile dementia”.

On the other hand, the majority's reliance on the “comparable circumstances in Nielsen ” does not, I think, provide a solid ground for their conclusion that Article 5 § 1 is not applicable in the present case. Like Judge Gaukur Jörundsson, I find that the circumstances of the present case differ from those in Nielsen v. Denmark (judgment of 28 November 1988 , Series A no. 144). The factual basis of the latter case was the placement of a 12-year-old boy in the psychiatric ward of a hospital at the request of the mother, who had sole parental rights. Such a situation cannot be compared with the placement of an adult against her will in a nursing home, which was what happened in the present case. The Court considered that the facts in Nielsen amounted to an exercise of parental rights by the mother, not a restriction on freedom of movement by the State (loc. cit., pp. 23 et seq., §§ 63 et seq.). In so far as the Court went on to state that the restriction involved in the child's placement in a secure psychiatric ward did not amount to a deprivation of liberty, this statement (which has been subject to certain extra-judicial criticism [See Harris, O'Boyle and Warbrick , Law of the European Convention on Human Rights , p. 101, and Karen Reid, “Article 25 of the Convention: Applications by Children”, in The Birth of European Human Rights Law ]) is linked to the particular facts and circumstances of that case and, specifically, the fact that the decision to hospitalise the child was taken by the mother in the exercise of her parental rights (ibid., pp. 26-27, §§ 72-73) [“It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights, a case which clearly is not covered by paragraph 1 of Article 5” ( Nielsen , p. 26, § 72)]; Nielsen is again clearly distinguishable from the present case.

I must also place on record the reasons for my disagreeing with Judge Gaukur Jörundsson's view that the applicant's detention fell within the ambit of Article 5 § 1 (e) as being the “lawful detention ... of [a person] of unsound mind” within the meaning of that provision. These are as follows:

(a) The list of exceptions to the prohibition on deprivation of liberty under Article 5 § 1 is exhaustive. Given the importance of the right to liberty, the exceptions must be narrowly interpreted. Therefore, the concept of “unsound mind” must likewise be narrowly interpreted. It is not sufficient that a person's views or behaviour deviate from the established norms (see Winterwerp v. the Netherlands , judgment of 24 October 1979, Series A no. 33, p. 16, § 37).

(b) As rightly stated by the Court in Winterwerp (pp. 17-18, § 39): “except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority – that is, a true mental disorder – calls for objective medical expertise.”

(c) On the basis of the material before the Court, it appears that the applicant was never examined by a doctor qualified as a medical expert, that is to say, in this case, a psychiatrist. In fact, the applicant has never undergone a proper medical examination for the purpose of ascertaining her mental state, in particular, whether she was suffering from a mental illness and, if so, to what degree, in order to determine whether she was of “unsound mind”.

(d) It is true that the Appeals Commission which examined the appeals of the applicant and her son against the order for the placement of the applicant in the nursing home consisted of three judges, one of whom was a doctor, and that it held a hearing at which the applicant was to make representations in support of her appeal. In its decision, the Appeals Commission considered that “during the hearing it had come to the conclusion that the applicant had a mental disability (senile dementia)”. However, firstly, such a conclusion was not, as already pointed out above, the result of a diagnosis by a medical expert on completion of a proper medical examination of the applicant. Secondly, “mental disability” and “senile dementia” are general terms which may or may not coincide with a state of “unsound mind”, depending on the precise nature and gravity of their symptoms and effects. Moreover, no relevant information was given by the Appeals Commission in their decision, presumably because no such information was obtained by them in the absence of a proper medical examination of the applicant. Incidentally, a finding to the effect that the applicant was of “unsound mind” sits ill with the fact set out in paragraph 27 of the judgment that “On 14 January 1998 the Aarberg District Government Office lifted the applicant's placement order as she had agreed to reside in the nursing home of her own free will ” (emphasis added).

(e) Even more important, and in my view decisive, is the fact that the above finding of the Appeals Commission to the effect that the applicant “had a mental disability (senile dementia)” was disputed by the applicant, who argued that she had never had a right of reply to that accusation before the Appeals Commission, and had never been examined by a medical expert in that connection (see paragraph 33 of the judgment in this case). The applicant challenged this finding before the Federal Court which, however, declined to examine the issue on the ground that the applicant's detention was justified in any case on account of “serious neglect” (as defined by the Swiss Civil Code). The relevant passage of the judgment of the Federal Court reads as follows:

“Whether in the case of the first appellant there exists, apart from serious neglect, some mental disability which would also justify a deprivation of liberty in itself – a point which is challenged by the appellants – and whether procedural rules have allegedly been breached in connection with this ground of detention, are matters which do not need to be examined, particularly as the appellants have been unsuccessful in their appeal against the [applicant's] detention for serious neglect.”

Two significant points must be made here:

(i) The relevant finding of the Appeals Commission was not sustained throughout the judicial proceedings because it was not upheld by the Federal Court, which left the matter open. This is admitted by the Government in their reply to the following question of the Court: “Was the applicant declared to be of unsound mind in these proceedings?” The Government , after referring to the relevant finding of the Appeals Commission, state: “Il sied de relever que le Tribunal fédéral a laissé ouverte la question de savoir si la requérante souffrait également de faiblesse d'esprit ...” (emphasis added).

(ii) So long as the finding in question was disputed by the applicant before the competent higher court – the Federal Court – and considering that the Federal Court did not determine the question but left it open, I do not think that we can adopt such a finding as a basis for our judgment because, if we do so, we are in effect ourselves determining the dispute as a third-instance court in the place of the Federal Court.

For all the above reasons, I find that there has been a deprivation of the applicant's liberty in this case in breach of Article 5 of the Convention.