Information Note on the Court’s case-law No. 71
January 2005
Enhorn v. Sweden - 56529/00
Judgment 25.1.2005 [Section II]
Article 5
Article 5-1
Deprivation of liberty
Compulsory isolation orders in hospital of an HIV positive person: violation
Facts: In 1994, the applicant, who is homosexual, discovered that he was infected with the HIV virus and that he had transmitted it to a 19-year old man with whom he had had first sexual contact in 1990. On these grounds, a county medical officer issued a number of instructions to the applicant to avoid the spreading of the disease, including the prohibition for him to have sexual intercourse without first informing his partners about his HIV infection, as well as the obligation to keep to several appointments with the county medical officer. As the applicant failed to comply with some of the visits, the county medical officer petitioned the courts for an order that the applicant be kept in compulsory isolation. In a judgment of February 1995, the County Administrative Court, under the 1988 Infectious Diseases Act, ordered that the applicant be kept in compulsory isolation for up to three months. The order took effect immediately, but as the applicant failed to report to the hospital, he was taken there by the police in March 1995. Prolongations of the confinement order were repeatedly prolonged by periods of six months at a time The order to deprive the applicant of his liberty was in force until 2001, for almost seven years. However, as the applicant absconded from the hospital several times, his actual deprivation of liberty lasted around one and a half years in total. The applicant’s successive appeals were dismissed by the Administrative Court of Appeal. Leave to appeal to the Supreme Administrative Court was also refused. In 2001, the County Administrative Court turned down a petition for a further prolongation of the compulsory isolation order. It argued that the applicant’s whereabouts were unknown and that therefore no information was available regarding his behaviour, state of health and so on. It appears that since 2002 the applicant’s whereabouts have been known, but that the competent county medical officer has made the assessment that there are no grounds for the applicant’s further involuntary placement in isolation.
Law: Article 5 § 1 – It was common ground between the parties that the applicant had been deprived of his liberty, and that his detention could be examined under Article 5 § 1 (e) of the Convention, as the purpose of this provision was to prevent the spreading of the HIV virus. The Court was satisfied that the detention had a basis in national law, the 1988 Infectious Diseases Act, which entrusted the consulting physician with a wide discretion when issuing the practical instructions needed to prevent the spread of infection. The two essential criteria to assess the “lawfulness” of the detention were whether the spreading of the infectious disease had been dangerous for public health or safety, and whether detention had been the last resort to prevent the spreading of the disease, because less severe measures had been found insufficient. It was undisputed that the first criteria had been fulfilled. As to the second one, despite the fact that the applicant had absconded several times during the compulsory orders, he had in total remained one and a half years deprived of his liberty. The Government have not provided any examples of less severe measures which might have been considered. Among the several instructions which were issued to the applicant, the one of 1 September 1994 prohibited him from having sexual intercourse without first having informed his partner about his HIV infection. The Court notes that between February 1995 and December 2001, there was no evidence or indication that the applicant had transmitted the virus to anybody during that period, or that he had engaged in sexual intercourse without informing his partner of his disease. As to the infection of a 19-year old man in 1990, there was no indication that the applicant had transmitted the virus to the young man as a result of intent or gross neglect. He had himself become aware of his infection in 1994. In these circumstances, the compulsory isolation was not a last resort to prevent the spreading of the disease because less severe measures had been considered and found insufficient to safeguard the public interest. By extending the orders for a period of almost seven years, which resulted in the applicant’s involuntary hospitalisation for almost a year and a half, the authorities had failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant’s right to liberty.
Conclusion: violation (unanimously).
Article 41 – The Court awarded the applicant 12,000 euros for non-pecuniary damage. It also made an award for costs and expenses.
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This summary by the Registry does not bind the Court.
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