DISSENTING OPINION OF JUDGES WILDHABER, TÃœRMEN, BUTKEVYCH, BAKA AND BOTOUCHAROVA

To our regret, we cannot share the Court’s conclusion that there has been a violation of Article 5 § 4 of the Convention.

The issue in the present case is whether R.W.’s impartiality was objectively questionable, given the fact that he had made known in advance the conclusions of his medical examination of the applicant, that is, before the Administrative Appeals Commission decided on the applicant’s action and in particular before the hearing took place on 28 December 1994.

By way of background to the case, we note that, when R.W. interviewed and examined the applicant, she had already been examined by two other medical experts. That such a further medical examination took place in the context of the judicial proceedings was highly desirable and in fact the result of an amendment in 1978 of the Swiss Civil Code, in particular of Article 397e § 5, which aimed at complying with the requirements under the Convention.

Turning to the legal analysis of the facts, it is established case-law that, under Article 5 § 4 of the Convention, States are granted a certain freedom to choose the most appropriate system for judicial review, and it is not within the province of the Court to inquire what would be the best or most appropriate system in such matters (see X v. the United Kingdom , judgment of 5 November 1981, Series A no. 46, p. 23, § 53).

This freedom left to States under Article 5 § 4 of the Convention is decisive for the present case, which concerns psychiatric detention, a highly sensitive issue calling for fair, transparent and speedy proceedings. It is striking how Article 5 § 4 of the Convention differs from Article 6 § 1 of the Convention in that it does not expressly list the impartiality and independence of the “court” as a requirement. Clearly, Article 5 § 4 expects States to adapt the proceedings to the circumstances and necessities of the particular form of detention at issue.

In respect of the requirement of impartiality, the mere fact that a judge has previously taken part in the proceedings does not in itself raise an issue as to the judge’s impartiality. What matters are the extent and nature of the functions (see, mutatis mutandis , Hauschildt v. Denmark , judgment of 24 May 1989, Series A no. 154, p. 22, § 50).

In the present case, R.W.’s medical expert opinion indubitably played an important part in the proceedings. However, it should not be overlooked that the Administrative Appeals Commission , in addition to its President and R.W., also comprised three other judges, namely a youth attorney, a curator and an administrator of Pro Infirmis, a charitable association assisting the ill. Together, they ensured that all aspects of the applicant’s situation were duly considered when deciding on her psychiatric detention.

Above all, the present case does not concern R.W.’s personal view as to the applicant’s continuing detention. He was appointed by the Administrative Appeals Commission as an expert to hear the applicant. We are then confronted with his conclusion, following the medical examination, as to the applicant’s state of mental health. As one would expect from any medical report, and this has not been contested by the applicant, R.W. drew objective conclusions as to the particular illness befalling her. A confirmation for this strictly medical and objective character of the report can be found in R.W.’s statement of 23 December 1994 in which he specifically left open the possibility of an improvement, a circumstance which would have changed his view.

No issue arises, therefore, in the present case as to a preconceived opinion of R.W. All he did was present the objective medical conclusions of his examination of the applicant. Indeed, it would have been objectionable if R.W.’s report had not been made public. The procedure of the Canton of St Gall as it stands today enables complete transparency. It enabled in particular the applicant fully to contest, at the hearing, the medical conclusions reached by R.W.

On the whole, in our opinion the review procedures envisaged by the Canton of St Gall for such cases of detention therefore fell within the freedom left to States under Article 5 § 4 of the Convention.