EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 27154/95
D. N.
against
Switzerland
REPORT OF THE COMMISSION
(adopted on 9 September 1999)
TABLE OF CONTENTSPage
I.INTRODUCTION
(paras. 1-16) ................................................. 1
A.The application
(paras. 2-4) .............................................. 1
B.The proceedings
(paras. 5-11) ............................................. 1
C.The present Report
(paras. 12-16) ............................................ 2
II.ESTABLISHMENT OF THE FACTS
(paras. 17-36) ................................................ 3
A.The particular circumstances of the case
(paras. 17-28) ............................................ 3
B.Relevant domestic law and practice
(paras. 29-36) ............................................ 4
III.OPINION OF THE COMMISSION
(paras. 37-56) ................................................ 7
A.Complaint declared admissible
(para. 37) ................................................ 7
B.Point at issue
(para. 38) ................................................ 7
C.As regards Article 5 para. 4 of the Convention
(paras. 39-55) ............................................ 7
CONCLUSION
(para. 56) ................................................9
DISSENTING OPINION OF MR S. TRECHSEL AND MRS J. LIDDY
JOINED BY MM E. BUSUTTIL, J.-C. GEUS, M.P. PELLONPÄÄ
AND R. NICOLINI ................................................ 10
APPENDIX:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION ................ 12
I.INTRODUCTION
1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.
A.The application
2. The applicant is a Swiss citizen, born in 1964 and resident in St Gall. She was represented before the Commission by Mr C. Bernhart and Mr B. Eugster, lawyers practising in St Gall.
3. The application is directed against Switzerland. The respondent Government were represented by their Agent, Mr P. Boillat, Head of the International Affairs Division of the Federal Office of Justice.
4. The case concerns the impartiality of the court having rejected the applicant’s request for release from a psychiatric clinic. It raises issues under Article 5 para. 4 of the Convention.
B.The proceedings
5. The application was introduced on 20 April 1995 and registered on 28 April 1995.
6. On 27 November 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 18 February 1997. The applicant replied on 4 April 1997. On 9 December 1997 the Commission granted the applicant legal aid for the representation of her case.
8. On 10 September 1997 the Commission declared admissible the applicant's complaint that her request for release from a psychiatric clinic had not been examined by an impartial court within the meaning of Article 5 para. 4 of the Convention. It declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent to the parties on 25 September 1997 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 9 October 1997.
10. After declaring the case admissible, the Commission, acting in accordance with former[1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.
11. Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.
C.The present Report
12. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:
MME. BUSUTTIL, Acting President
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H. DANELIUS
MrsG.H. THUNE
MMF. MARTINEZ
C.L. ROZAKIS
MrsJ. LIDDY
MML. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
SirNicolas BRATZA
MMI. BÉKÉS
D. ŠVÁBY
G. RESS
A. PERENIČ
K. HERNDL
E. BIELIŪNAS
E.A. ALKEMA
M. VILA AMIGÓ
MrsM. HION
MMR. NICOLINI
A. ARABADJIEV
13. The text of this Report was adopted on 9 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to former Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.
15. The Commission's decision on the admissibility of the application is annexed hereto.
16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.The particular circumstances of the case
17. On 14 November 1994 Dr E., a doctor in St Gall, decided in agreement with the applicant to send her to the Wil cantonal psychiatric clinic (hereafter the psychiatric clinic) on account of chronic schizophrenia and of constituting a danger to herself.
18. On 1 December 1994 the applicant applied for release from the psychiatric clinic. Her request was refused on the same day by Dr O., the chief medical officer of the psychiatric clinic, who referred, inter alia, to a psychotic outbreak (Schub) of recurring schizophrenia and to her inability to accept her illness (mangelnde Krankheitseinsicht).
19. On 12 December 1994 the applicant filed an action with the Administrative Appeals Commission (Verwaltungsrekurskommission) of the Canton of St Gall, requesting her release from the psychiatric clinic. She also requested that the expert who would examine her should not act as specialised judge (Fachrichter).
20. The Administrative Appeals Commission appointed Dr R.W., a doctor specialised in psychiatry and psychotherapy, to conduct the judicial examination of the applicant and to provide an expert opinion. On 15 December 1994 Dr R.W. interviewed the applicant at the psychiatric clinic.
21. On 19 December 1994 the Administrative Appeals Commission invited the parties to a hearing at the psychiatric clinic. The letter referred to Dr R.W. as being one of the specialised judges on the bench and rapporteur.
22. On 23 December 1994 Dr R.W. submitted his expert opinion. He diagnosed a schizophrenic mental illness and found that the applicant could not be released in view of the required high doses of medication. As a result, he proposed to dismiss the action if the applicant's state of health did not clearly improve until the hearing.
23. The hearing took place on 28 December 1994 at the psychiatric clinic. The Administrative Appeals Commission heard two doctors of the psychiatric clinic and the applicant. Her lawyer remained absent.
24. On 28 December 1994 the Administrative Appeals Commission dismissed the applicant's action. The bench consisted of five judges, i.e. the President, Dr R.S., a lawyer; Mr B.F., a lawyer; Mr R.G., a district director of social services; Mr K.S., an administrator of a charity; and Dr R.W., the medical expert and rapporteur.
25. In its decision, the Administrative Appeals Commission concluded, also with reference to Dr R.W.'s expert opinion, that the applicant suffered from severe mental disturbances warranting her detention in a psychiatric institution.
26. Insofar as the applicant had requested an expert who would not be a judge, the Administrative Appeals Commission found that the applicant had not substantiated her request. Reference was made to the case-law of the Federal Court (Bundesgericht), in particular to a decision published in 1993 (119 Ia 260) where that Court had not expressly prohibited the combination of expert and judicial functions.
27. The applicant lodged a public-law appeal (staatsrechtliche Beschwerde) with the Federal Court, complaining, inter alia, of the position of the expert Dr R.W. She submitted that Dr R.W. could not be a member of the Administrative Appeals Commission as he had previously already dealt with the case by acting as an expert (Vorbefassung).
28. On 3 April 1995 the Federal Court dismissed the public-law appeal. In respect of the position of the expert, the Court found, with reference to its own case-law:
“In the … letter of 19 December 1994 the legal representative of the applicant was informed of the person of the expert, and also that he would act as specialised judge and rapporteur. Already in her action to the Administrative Appeals Commission the applicant had provisionally requested that the expert should not act as specialised judge. However, she does not discuss the contrary opinion of the Federal Court. Along the lines of the Federal Council's Message to the Parliament concerning the part of the Civil Code dealing with committal to a psychiatric institution, ... it has not been called in question that experts within the meaning of Article 397e para. 5 also act as members of the deciding body ..., to the extent that their position can at all be compared with that of a regular expert who is consulted in evidence proceedings ... It is true that the Federal Court has recently described the combination of expert and judicial functions as being “not entirely unobjectionable” ... However, no change of case-law can be seen in that decision, and the applicant has not shown today in what respect such a change would be called for ...” “Im ... Schreiben vom 19. Dezember 1994 ist dem Rechtsvertreter der Beschwerdeführerin nicht nur die Person des Gutachters mitgeteilt worden, sondern auch, dass es sich dabei um den referierenden Fachrichter handle. Bereits in ihrer Klage an die Verwaltungsrekurskommission hat die Beschwerdeführerin vorsorglich beantragt, der Gutachter dürfe nicht Fachrichter sein. Mit der gegenteiligen Auffasung des Bundesgerichts setzt sie sich indes nicht auseinander. In Anlehnung an die bundesrätliche Botschaft zur fürsorgerischen Freiheitsentziehung ... ist nämlich nicht beanstandet worden, dass Sachverständige im Sinne von Art. 397e Ziffer 5 ZGB der entscheidenden Instanz als Mitglieder angehören ..., soweit deren Stellung überhaupt mit derjenigen eines regelrechten Experten, der in einem Beweisverfahren beigezogen wird, vergleichbar ist ... Es trifft zwar zu, dass das Bundesgericht erst kürzlich die Verquickung sachverständiger und richterlicher Funktionen als “nicht ganz unbedenklich” bezeichnet hat ..., doch ist in jenem Entscheid weder eine Praxisänderung zu erblicken, noch zeigt die Beschwerdeführerin heute auf, inwiefern eine solche geboten sein sollte ...” B.Relevant domestic law and practice a)Expert medical opinions in case of deprivation of liberty on account of mental illness 29. Articles 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) concern deprivation of liberty, inter alia, on account of mental illness. Article 397d provides that the person concerned may complain about detention before a judge. Article 397f states that the procedure must be simple and speedy. “In the case of mentally ill persons a decision can only be taken after having consulted an expert; if in judicial proceedings this has already happened, higher courts need not do so.” “Bei psychisch Kranken darf nur unter Beizug von Sachverständigen entschieden werden; ist dies in einem gerichtlichen Verfahren bereits einmal erfolgt, so können obere Gerichte darauf verzichten.” 31. The Federal Court has developed extensive case-law on this provision. In a judgment published in 1984 (110 II 122) it dealt with the issue whether the expert required in Article 397e para. 5 could act as a judge in the proceedings and stated: “this provision is complied with, if experts belong as members to the deciding body ... The purpose of the statutory provision is that in the case of mentally ill persons, no decision should be taken without the advice and the specialised knowledge of psychiatrically trained doctors. This will be the case in an optimal manner, if such doctors participate as members of the judicial body.” “es genügt für die Einhaltung dieser Vorschrift, wenn Sachverständige der entscheidenden Instanz als Mitglieder angehören ... Der Sinn der gesetzlichen Anordnung besteht darin, dass bei psychisch Kranken nicht ohne den Rat und das Fachwissen psychiatrisch geschulter Ärzte entschieden werden soll. Das ist bei der Mitwirkung solcher Ärzte als Mitglieder der gerichtlichen Instanz in optimaler Weise der Fall.” 32. In judgments published in 1993 (119 Ia 260 and 119 II 319) the Federal Court referred to the “not entirely unobjectionable combination of expert and judicial functions” (“nicht ganz unbedenkliche Verquickung sachverständiger und richterlicher Funktionen”) and, in respect of the expert mentioned in Article 397e para. 5 of the Civil Code, to “the particular requirement of critical objectivity towards clinical doctors and psychiatrists” (“die hier besonders geforderte kritische Objektivität gegenüber den Klinikärzten und den Psychiatern”). b)Administrative Appeals Commission of the Canton of St Gall 33. The Administrative Appeals Commission is the competent body to decide, inter alia, on matters of deprivation of liberty on account of mental illness where a person contests detention. It has one full-time judge and 24 to 30 specialised judges (Fachrichter), among them medical doctors (often psychiatrists) or social workers. The professional judges are appointed by the cantonal parliament, the non-professional judges and the specialised judges are appointed, upon proposal of the Administrative Tribunal of the Canton of St Gall, by the Government of the Canton of St Gall. A judge's term lasts six years. 34. The Administrative Appeals Commission sits with five judges, among them regular judges and specialised judges. 35. The Administrative Appeals Commission may refrain from choosing an outside expert as it has its own specialised judges. 36. According to Article 71c para. 2 of the Act on Administrative Procedure (Gesetz über die Verwaltungsrechtspflege) of the Canton of St Gall, in the version then in force, after an action has been filed with the Administrative Appeals Commission the President will immediately order the questioning of the person concerned by a judge. The questioning is undertaken by the judge rapporteur who will then prepare an expert opinion (Article 6 of the Rules on the Procedure of the Administrative Appeals Commission, Reglement über den Geschäftsgang der Verwaltungsrekurskommission). A.Complaint declared admissible 37. The Commission has declared admissible the applicant’s complaint that she did not have access to a “court” within the meaning of Article 5 para. 4 of the Convention in view of the position of Dr R.W. as expert and as judge of the Administrative Appeals Commission. B.Point at issue 38. Accordingly, the point at issue in the present case is to determine whether or not there has been a violation of Article 5 para. 4 of the Convention as regards the alleged lack of impartiality of the Administrative Appeals Commission when deciding on the applicant’s request for release from the psychiatric clinic. C.As regards Article 5 para. 4 of the Convention 39. Article 5 para. 4 of the Convention reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 40. The applicant submits that in view of the expert opinion which Dr R.W. had prepared, he had a preconceived opinion when he decided as a judge on her request for release from the psychiatric clinic. This preconceived opinion played an even bigger part in the present case as the other judges knew nothing about the matter (völlig ahnungslos waren) and had to rely completely on Dr R.W. as the only psychiatrist on the bench. 41. The Government submit that no court of law of the classic kind is required which is integrated within the standard judicial machinery of the country (Eur. Court HR, Weeks v. United Kingdom judgment of 2 March 1987, Series A no. 114, p. 30, para. 61). Moreover, 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 of the Convention (X. v. United Kingdom judgment of 5 November 1981, Series A no. 46, p. 22, para. 52). 42. The Government further contend that Dr R.W., who heard the applicant on 15 December 1994, complied with the requirements under Article 397e of the Swiss Civil Code and Article 71c para. 2 of the Act on Administrative Procedure of the Canton of St Gall. He was chosen in view of his specialised knowledge. 43. In the Government's opinion, it cannot be said that Dr R.W. acted first as expert psychiatrist and then as judge. In fact, when he conducted the specialised examination of the applicant, he was already acting within judiciary proceedings in his function as judge, and it was as a judge that he established his report for the Administrative Appeals Commission. Moreover, Dr R.W. assumed these functions within one and the same proceedings; he can thus be compared with a judge, for instance, who is instructed by the court to undertake a visit of the scene. Indeed, after Dr R.W. had prepared the opinion, the Administrative Appeals Commission conducted a hearing where all judges were present and where the applicant could put forward her grounds for contesting detention. This hearing “compensated” the strong position which Dr R.W. had as judge rapporteur. The applicant's lawyer, on the other hand, was absent at the hearing as he was on holidays. 45. In the present case, the applicant does not call into question the independence of the Administrative Appeals Commission but solely complains about the lack of impartiality of Dr R.W. in view of his position as expert and judge of that court. 46. The Commission recalls that impartiality must be determined by a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also by an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (mutatis mutandis Eur. Court HR, Castillo Algar v. Spain judgment of 28 October 1998, Reports 1998-VIII, no. 95, p. 3116, para. 43). 47. As regards the subjective test, the applicant has not alleged that Dr R.W. acted with personal bias. In any event, the personal impartiality of a judge must be presumed until there is proof to the contrary (Castillo Algar v. Spain judgment cited above, p. 3116, para. 44). There thus remain the application of the objective test. 48. Under the objective test, it must be determined whether there are ascertainable facts which may raise doubts as to the impartiality of the judge. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. Accordingly, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. In deciding whether in a given case there is a legitimate reason to fear a particular judge lacks impartiality, the standpoint of the parties to the proceedings is important but not decisive. What is decisive is whether this fear can be held objectively justified (Castillo Algar v. Spain judgment cited above, p. 3116, para. 45). 49. In the present case, the fear that the Administrative Appeals Commission was not impartial stemmed from the fact that one of the judges sitting in had previously heard the applicant and submitted an expert opinion. That kind of situation may give rise to misgivings on the part of the applicant as to the impartiality of the judge. However, whether such misgivings should be treated as objectively justified depends on the circumstances of each particular case (Castillo Algar v. Spain judgment cited above, p. 3116, para. 46). 50. According to the principles developed by the Court and the Commission, the mere fact that a judge takes part in different stages of the same proceedings cannot in itself be regarded as justifying fears as to his impartiality. What matters is the extent and nature of the successive functions of the judge in question (Eur. Court HR, Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, p. 15, para. 30 d) and Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 30; Eur. Comm. HR, no. 11831/85, Dec. 9.12.87, D.R. 54, p. 144). 51. The Commission finds it appropriate for a court dealing with matters of deprivation of liberty on account of mental illness to have one or more doctors specialising in psychiatry on the bench. It also considers that by ordering an expert opinion before deciding on a request for release from a psychiatric clinic, a court does meet the procedural guarantees of Article 5 para. 4 of the Convention. 52. However, in the present case, the Commission notes that the functions of expert and specialised judge were exercised by the same person, i.e. Dr R.W., who submitted his expert opinion on 23 December 1994, after having taken evidence from the applicant at the psychiatric clinic on 15 December 1994, and sat as a member of the Administrative Appeals Commission on 28 December 1994. The Commission further observes that Dr R.W. was the only doctor amongst five judges. The Commission considers that Dr R.W., by acting as expert and rapporteur and sitting as the sole specialised judge in a court having to decide on the applicant’s state of health, did play an extensive part in the case. 53. The Commission also notes that the applicant, when filing her action with the Administrative Appeals Commission, had requested that the expert who would examine her should not sit as specialised judge. 54. In the Commission’s view, if a judge, after submitting an expert opinion and a rapporteur’s report to the court, subsequently sits in the same proceedings as a judge and sole specialist, the public as well as the parties are entitled to fear that he does not offer sufficient guarantees of impartiality. 55. Accordingly, the Commission is of the opinion that in view of the position of Dr R.W., the Administrative Appeals Commission which dealt with the applicant’s request for release from the psychiatric clinic was not a “court” within the meaning of Article 5 para. 4 of the Convention. CONCLUSION 56. The Commission concludes, by 20 votes to 6, that in the present case there has been a violation of Article 5 para. 4 of the Convention. M.-T. SCHOEPFER E. BUSUTTIL SecretaryActing President to the Commissionof the Commission 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.
30. Article 397e, relating to the procedure, states in para. 5:
III.OPINION OF THE COMMISSION
44. The Commission recalls that if the “court” referred to in Article 5 para. 4 of the Convention does not necessarily have to be a court of law of the classic kind, it must however be a body which not only exhibits “common fundamental features” but also provides the appropriate “guarantees of procedure”. In particular the body in question has to be independent of the executive and its members impartial in the performance of their duties (Eur. Court HR, de Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 41, para. 78 and Weeks v. United Kingdom judgment cited above, p. 30, paras. 61 and 62).
(Or. English)
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