FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32526/96
by J.L.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 16 November 2000 as a Chamber composed of
MrG. Ress, President,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
MrI. Cabral Barreto,
MrsN. Vajić,
MrM. Pellonpää, judges,
andMrV. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 28 February 1996 and registered on 6 August 1996,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Finnish citizen, born in 1954. He is detained in a mental hospital in Kuopio.
A.Circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
I.
In 1981 the applicant was charged with murder (committed in 1981), sexual intercourse with a minor (committed in 1979) and assault, and reckless driving and driving while intoxicated (committed in 1980). The examination concluded that the applicant had not been in possession of his senses at the time of the crimes of which he was accused. As long as he remained ill he had to be considered very dangerous to others. Agreeing with this finding, the National Medical Board (lääkintöhallitus, medicinalstyrelsen) in 1982 ordered the applicant to undergo compulsory psychiatric treatment in pursuance of Section 16a, subsection 1, and Section 34 of the 1952 Act on the Mentally Ill (mielisairaslaki, sinnessjuklag 187/1952). In 1983 the applicant was found guilty of the aforementioned offences but was not sentenced, given his mental state at the time of committing them. In 1984 he was placed under guardianship.
Following the entry into force of the 1990 Mental Health Act (mielenterveyslaki, mentalvårdslag 1116/1990) in 1991, compulsory care shall be reviewed at maximum interval of six months. Any prolongation order must be confirmed by the competent county administrative court (lääninoikeus, länsrätt). In so far as this is immediately relevant to the present application, the applicant’s care has been extended as follows.
On 4 April 1996 the Senior Physician responsible for the applicant’s treatment considered that he was still in need of compulsory psychiatric care and ordered its prolongation. The Deputy to the Senior Physician had found that the applicant continued to suffer from a psychosis (schizo-affectiva) and a personality disturbance. In 1974 and 1978 he had been convicted of deprivation of liberty and rape. In 1977 he had been convicted of a continued offence comprising deprivation of liberty, rape and assault. In addition, he had, in 1979, raped his then 14-year-old sister-in-law who had become pregnant. On 11 May 1981 he had murdered his wife by stabbing her 40 times while she had been holding their four-year-old son in her arms.
The applicant objected to the prolongation order and requested, inter alia, that his mental state be examined “impartially” in a “civil hospital”. On 21 May 1996 the County Administrative Court of Kuopio dismissed the applicant’s request for a further examination of his mental state and confirmed the prolongation order, having regard to the reasons stated by the Senior Physician and his deputy. The applicant appealed further, considering that his compulsory care was not justified and seeking damages from the State. On 21 October 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the applicant’s claims for damages and upheld the County Administrative Court’s decision. No oral hearing was held at either court level.
On 4 October 1996 the applicant’s compulsory care was again prolonged by the Senior Physician. His order was confirmed by the County Administrative Court on 19 November 1996. The applicant did not appeal.
On 2 April 1997 the Senior Physician prolonged the applicant’s compulsory care in the light of the Deputy’s opinion of 1 April 1997 which was very similar to the one issued in April 1996. On 6 May 1997 the County Administrative Court confirmed this prolongation order. It noted, inter alia, the opinion of the Senior Physician, the terms of his decision, the information in the applicant’s patient records regarding his state of health. The court concluded that the applicant remained mentally ill. His discharge would significantly aggravate that illness and seriously jeopardise the health and safety of himself and others. The other means of treating his illness had remained inapplicable or insufficient.
The applicant appealed and also requested that he be transferred to another mental hospital. The Supreme Administrative Court obtained opinions from the Chief Physician of the hospital and the Senior Physician responsible for the applicant’s treatment. In his rejoinder to those opinions the applicant requested a new and complete examination of his mental state. On 25 September 1997 the Supreme Administrative Court declined to examine the applicant’s requests and dismissed his appeal, thus confirming the County Administrative Court’s decision. No oral hearing was held at either court level.
On 19 September 1997 the Senior Physician again prolonged the applicant’s compulsory care. In her opinion the Deputy to the Senior Physician had found that the applicant continued to suffer from the aforementioned psychosis and personality disturbance. Should he be discharged, there would exist a very high risk that he would commit heinous violent offences. The Deputy again made reference to various crimes which the applicant had committed. On 21 October 1997 the County Administrative Court confirmed the above prolongation order. Similar prolongation orders were issued on 18 March and 11 September 1998 as well as on 9 March 1999, and subsequently confirmed by the County Administrative Court.
During a certain period starting in January 1997 the applicant was apparently placed in a closed ward.
According to an official extract from the National Criminal Record (rikosrekisteri, straffregistret), the applicant has been found guilty of the crimes mentioned below.
Judgment of 1974:
Deliberate refusal to perform military service, committed in 1974.
(The applicant was sentenced to conditional imprisonment.)
Judgment of 1978 (upheld on appeal in 1978):
1.Deprivation of liberty and rape, committed in 1977
2.Deprivation of liberty and rape, committed in 1977
3.Deprivation of liberty and rape, committed in 1978
4.Deprivation of liberty and rape, committed in 1978
5.Assault committed in 1978
(The applicant was sentenced to various prison terms.)
Judgment of 1982 (upheld on appeal in 1983):
1.Sexual intercourse with a minor, committed in 1979
2.Assault and reckless driving, committed in 1980
3.Murder and possession of edged weapon, committed on 11 May 1981
(The applicant was not sentenced for the above-mentioned offences after being deemed to have lacked criminal responsibility in view of his mental state.)
II.
In 1993 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal against a decision of the Insurance Court (vakuutusoikeus, försäkringsdomstolen) whereby his request for compensation for an occupational injury had been dismissed.
B.Relevant domestic law and practice
Under section 8 of the Mental Health Act a person can be ordered to undergo compulsory care in a psychiatric hospital if he or she is diagnosed as mentally ill; if he or she needs treatment for a mental illness which, if not treated, would become considerably aggravated or severely endanger his or her health or safety or the health or safety of others; and if all other mental health services are inapplicable or inadequate.
According to section 28, subsection 1, a patient’s right to self-determination may be limited and coercive means may be used only to the extent necessary for the treatment of his or her illness, for his or her safety or for the safety of others. In a decision of 3 May 1996 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, statsrådets justitiekanslersadjoint) ad interim found that the restriction of telephone calls to a patient in a mental hospital could not be held to have been in clear violation of section 28, subsection 1. The Deputy Chancellor nevertheless drew the competent Ministry’s attention to the requirement that restrictions of fundamental rights should be sufficiently detailed. On this point the legislation should therefore be amended. An application lodged under the Convention in respect of the restriction in question was eventually settled (no. 30271/96; see “The Law” below).
According to the 1992 Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter 785/1992), patient records shall be kept confidential. They may only be released to courts and other authorities entitled to such access and, on certain conditions, to institutions providing treatment to the patient, to a close relative or to researchers (section 13).
In her decision of 4 January 1994 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) considered that the Niuvanniemi hospital’s practice of photographing all patients was in violation of section 3 and section 5, subsection 2, of the 1987 Personal Files Act (henkilörekisterilaki, personregisterlag 471/1987). The Deputy Ombudsman noted that the hospital had not abolished this practice despite her earlier decision of 5 March 1992 in which she had reached the same conclusion. Prior to that decision she had heard the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), who had reached the same conclusion.
Section 3 of the Personal Files Act stipulates, inter alia, that the keeper of personal data files shall ensure that the personal integrity, interests and rights of anyone registered in such a file are not unduly encroached upon. Section 5, subsection 2, requires that only information of relevance to the purpose of the file shall be included. In her two decisions the Deputy Ombudsman underlined that an assessment should be made in respect of each patient as to the necessity of including and retaining photographs. Photographs should only appear in his or her records if the specific care needs of the patient so warranted. The Personal Files Act did not allow for the inclusion of photographs in patient records in the interests of the security of other patients, staff or society as a whole.
The keeper of a personal file shall speedily correct, delete or supplement information on file which is incorrect, unnecessary, incomplete or outdated and provided such information evidently jeopardises the protection of the integrity or the interests or rights of the person in question. If the file-keeper refuses a request to the above effect it shall provide a reasoned certificate thereof (section 15). At the request of the registered person the Data Ombudsman may order the file-keeper to take the requested action (section 35). If this order is not complied with or if the Data Ombudsman decides not to take action, the registered person may bring the matter before the Data Protection Board (tietosuojalautakunta, datasekretessnämnden), whose decision may be appealed to the Supreme Administrative Court (sections 35 and 38).
According to the Constitution of 1919 (Suomen hallitusmuoto, Regeringsform för Finland 94/1919), as in force up to 1 March 2000, anyone who has suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant, is entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought against him (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new chapter 2 includes, inter alia, the right to privacy (section 8; as from 1 March 2000 section 10) and has been incorporated as such into the Constitution of 2000.
Under the 1974 Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State in view of its vicarious liability for actions taken by civil servants (chapters 3 and 4). In its decision no. 1992:144 the Supreme Court found a health centre physician guilty of negligent misconduct as he had failed to ensure that a patient was transported to the centre in accordance with the Act on the Mentally Ill. In the private prosecution proceedings in question the patient had been granted cost-free proceedings.
According to the 1992 Act on Social Welfare and Health Care Fees (laki sosiaali- ja terveydenhuollon asiakasmaksuista, lag om klientavgifter inom social- och hälsovården 734/1992) and the related Decree (912/1992), the fee collected from a psychiatric patient in long-term hospital treatment shall be based on his or her solvency and not exceed 80 per cent of the monthly income (section 15 of the Decree).
COMPLAINTS
1.The applicant complains about his compulsory care, which he considers unjustified. He should no longer be considered dangerous to himself or others, as he has allegedly been on leave over 100 times successfully. The opinions proposing his continued compulsory care have been based on prejudice and not on a thorough examination of his mental state. Sometimes the opinions have been written without any fresh examination whatsoever and the courts have denied him a new and complete examination of his mental state.
2.The applicant also complains about the implementation of his care. When placed on a closed ward he did not receive adequate treatment. He refers to the forced injection of certain drugs and submits that he is not allowed rehabilitation and sufficient exercise outdoors. In spite of his membership of the Jehovah’s Witnesses, he is not allowed to receive visits by them. He is also being served meals with blood without any option being open to him. Nude photographs have allegedly been taken of him for inclusion in his patient records. His correspondence and telephone calls have allegedly been monitored. Finally, he is obliged to pay for his compulsory care.
3.The applicant furthermore complains that in the medical opinions proposing his continued compulsory care he has been considered guilty of offences which he has not committed and of which he has not been convicted. Referring to the extract from the Criminal Record, he refutes, in particular, the statements according to which he committed rapes in 1974 and 1979. Neither does the doctor’s statements regarding the circumstances of the murder in 1981 correspond to the truth.
4.The applicant finally complains that he has been refused a pension for an employment-related injury. The refusal was allegedly based on only one out of the three or four medical opinions submitted by him.
PROCEDURE
The application was introduced on 20 September 1995 before the European Commission of Human Rights and registered on 6 August 1996.
On 15 January 1998 the Commission decided to communicate the application to the respondent Government except for the fourth complaint.
The Government’s written observations were submitted on 23 April 1998 after an extension of the time-limit fixed for that purpose. The applicant submitted observations in reply on 4 and 27 May 1998. Additional observations were submitted by the Government on 3 July 1998.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
(i)Concerning the requirement to exhaust domestic remedies
The Government submit that the applicant has failed to exhaust domestic remedies. He did not appeal against all of the compulsory care orders and the County Administrative Court’s decisions upholding those orders. He had a constitutional right to institute proceedings against the public officials allegedly responsible for his treatment. Under the Tort Liability Act he could also have sued the State for damages arising from actions taken by civil servants. A patient who is dissatisfied with the care provided to him may furthermore petition the director of the health care unit concerned as well as the Medicolegal Board.
For the reasons below and unless otherwise stated in the contexts of certain specific grievances, the Court need not determine whether the requirement under Article 35 § 1 has been complied with.
(ii)Justification for the applicant’s compulsory care
The applicant complains about his ongoing compulsory care which he considers is no longer justified. The Court has examined this grievance under Article 5 § 1 (e) of the Convention which reads, in so far as relevant, as follows:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention ... of persons of unsound mind ... ;”
The Government submits that this complaint is at any rate manifestly ill-founded. The applicant must still be considered dangerous to himself and others and his illness is likely to deteriorate failing appropriate treatment including various injections. In 1982, 1983, 1989 and 1993 he left the hospital without permission. He has been granted leave to visit his home municipality, where several problems reportedly occurred: he has caused disturbance in a children’s home and has been sighted in the vicinity of the homes of his late wife’s relatives. In addition, he has not always returned to the hospital voluntarily. When his medication was reduced he became restless and behaved inappropriately towards staff.
The applicant maintains his complaint and asserts that the Government has not provided the Court with certain parts of his patient records for the years 1985-87 and 1990.
The Court recalls that in order to comply with Article 5 § 1 (e), the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. An individual cannot be considered to be of “unsound mind” and deprived of his liberty unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder. A necessary element of the “lawfulness” of the detention within the meaning of Article 5 § 1 (e) is the absence of arbitrariness. The detention of an individual is such a serious measure that it is only justified where other, less severe measures, have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances. No deprivation of liberty of a person considered as being of unsound mind may be deemed to be in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention. Furthermore, the medical assessment must be based on the actual state of mental health of the person concerned and not solely on past events. A medical opinion cannot be seen as sufficient to justify deprivation of liberty if a significant period of time has elapsed. The national authorities nevertheless have a certain discretion when deciding whether a person is to be detained as “of unsound mind”, as it is for them in the first place to evaluate the evidence put before them in a particular case; the Court’s task is to review their decisions from the point of view of the Convention (see, e.g., the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 21, § 63, and Varbanov v. Bulgaria, no. 31365/96, §§ 45-46, unreported).
In the present case it has not been argued that the applicant’s detention has been maintained in breach of the procedure prescribed by domestic law. As for the justification for his detention as being “of unsound mind”, the Court further notes that he has been found guilty of various heinous crimes. On several occasions he has either escaped from the hospital or failed to return there after a leave. The decisions to prolong his compulsory care have been based on medical expertise attesting to the continuing need for such treatment. The decisions have been made at regular intervals and under the control of the administrative courts. The Court sees no reason to doubt the objectivity and reliability of the medical judgment of the domestic authorities. It notes the apparent disagreement between the parties as to what material should be deemed to be included in the patient records for the years 1985-87 and 1990. However, the Court is not directly concerned with the grounds for the applicant’s detention at those points in time, given that his complaint was lodged in 1996. In sum, the applicant’s detention does not appear to have been tainted by arbitrariness, given the detailed reasons given in support of the various orders prolonging the applicant’s compulsory care. Accordingly, there is no indication of a violation of Article 5 § 1 (e) of the Convention.
The Court concludes that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(iii)Adequacy of the compulsory care
The applicant also complains about the implementation of his care. When placed on a closed ward he did not receive adequate treatment. He refers to the forced injection of certain drugs and submits that he was not allowed rehabilitation and sufficient exercise outdoors.
The Court has examined this complaint under Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In the Government’s opinion the applicant’s conditions and treatment do not raise any issue under Article 3 of the Convention. The injections forcibly administered to him have been necessary for medical reasons. He has been allowed rehabilitation and sufficient exercise outdoors. He has not been completely isolated and has also been granted occasional leave. Attempts to reduce his medication have been unsuccessful, as he became more restless and showed an inappropriate interest in staff.
The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3. Although it may prove difficult for detainees to obtain evidence of ill-treatment by their warders, allegations of ill-treatment must as far as possible be supported by appropriate evidence (cf. Labita v. Italy [GC], no. 26772/95, 6.4.2000, §§ 120-125).
The Court notes that the applicant has not produced any conclusive evidence in support of his allegations of ill-treatment. The evidence before the Court does not therefore enable it to find beyond all reasonable doubt that he was subjected to treatment that attained a sufficient level of severity to come within the scope of Article 3. Accordingly, there is no indication of a violation of this provision.
The Court concludes that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(iv)Inclusion of photographs in patient records
The applicant has further alleged that nude photographs were taken of him for inclusion in his patient records. The Court will examine this complaint under Article 8 of the Convention which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Should the Court find the conditions under Article 35 § 1 of the Convention to have been met, the Government refers to the Deputy Ombudsman’s finding of 1994 that the photographing of patients in the applicant’s hospital was in violation of the Act on Personal Data Files when such a measure could not be considered necessary for diagnosing the patient or for his or her treatment. Although the hospital has since changed its general practice, a photograph of the applicant in his underwear still remains part of his patient records.
Under Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. Normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. The exhaustion rule must be applied with some degree of flexibility and without excessive formalism. It is neither absolute nor capable of being applied automatically, since in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant (see, e.g., the Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210-1211, §§ 65-68).
As a general rule, a petition to the Finnish Ombudsman cannot be regarded as a remedy to be exhausted within the meaning of Article 35 § 1 of the Convention, at least if the applicant may avail himself of a specific court remedy (see application no. 39076/97, 14.10.1999, unreported). In one case where the applicant had only petitioned the Ombudsman the Court dismissed the Government’s preliminary objection, finding that it had not demonstrated that either a criminal prosecution or an action for damages would have offered reasonable prospects of success in the particular circumstances. Neither had any specific court remedy been available to the applicant (see the Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, p. 2816-2818, §§ 38-42, and the final decision on admissibility, 7.3.1996, unreported).
In the present case it is not in dispute that a photograph of the applicant in his underwear remains part of his patient records. The Court does not find it established that any other photographs of the applicant have been included, and remain, in those records.
The Court notes that under section 15 of the Personal Files Act the applicant could have requested the hospital to destroy his photograph as not being warranted by his care needs. He could have relied on the Deputy Ombudsman’s decisions of 1992 and 1994 finding the Niuvanniemi hospital’s wholesale practice of photographing its patients to be in violation of the said Act. The applicant could, if necessary, have brought the matter before the Supreme Administrative Court.
Where remedies are provided by lex specialis such as the Personal Files Act the applicant could be deemed to have met the requirements of Article 35 § 1 of the Convention, if he has resorted to that set of remedies rather than to any of the general remedies referred to by the Government. In the instant case, however, the Court need not determine whether the applicant, as a ward, can be absolved of his obligation to make use of the specific remedies provided by the Personal Files Act. The Government has confirmed that in 1998 the applicant’s photograph still remained in his patient records despite the two decisions of the Deputy Ombudsman finding the hospital’s wholesale practice of photographing its patients to be in violation of domestic law. The Government has argued, however, that the applicant failed to exercise his constitutional right to initiate private prosecution proceedings, or proceedings for damages, against the relevant public officials. The Court notes that this right appeared already in the 1919 Constitution, as amended by the fundamental rights reform in 1995, one of the main purposes of which was to extend the direct applicability of constitutionally guaranteed rights. In the specific circumstances of the case, where the Government has conceded that the applicant’s photograph still appears in his patient records despite the Deputy Ombudsman’s aforementioned findings, there is no indication that the applicant would be refused free legal assistance for the purposes of bringing such proceedings. In conclusion, the Court cannot discern any specific circumstances absolving the applicant from exhausting one of the remedies currently deriving from section 118 of the Constitution. It follows that the Government’s objection must be accepted.
The Court concludes that this part of the application is inadmissible for non-exhaustion of domestic remedies, within the meaning of Article 35 § 4 of the Convention.
(v)Limitation of telephone calls
The applicant has further alleged that his telephone calls have been monitored. The Court has examined this complaint under the above-cited Article 8 of the Convention.
The Government submit that the applicant’s telephone conversations have not been monitored but the number of daily calls has been limited. At least in 1983 his telephone calls to his son in a children’s home were not forwarded by the hospital. According to later notes, his calls have usually been permitted. Even if the restriction on the number of daily calls interfered with the applicant’s right under Article 8 of the Convention to respect for his private and family life, this measure has been justified under Article 8 § 2. The limitation has been based on section 28, subsection 1 of the Mental Health Act which has been accessible to the applicant. Although somewhat generally worded, this provision specifies the scope and conditions of exercise of discretionary power sufficiently accurately and has thus been foreseeable to the applicant. The interference has been aimed at protecting the health and safety of the applicant himself and others, in particular his son, and thus pursued a legitimate aim within the meaning of Article 8 § 2 of the Convention. On the basis of the applicant’s patient records the Government also consider the interference necessary and proportionate to the aim sought to be achieved.
The applicant confirmed in his observations of 4 May 1998 that he was again able to make telephone calls freely.
The Court finds no evidence in support of the applicant’s allegation that his telephone calls have been monitored. While the Government have acknowledged that the number of daily calls has been limited, the applicant has not explicitly complained to the Court about this limitation which, moreover, seems to have been revoked in April 1998. Hence there is no appearance of a violation of Article 8 of the Convention as far as concerns the applicant’s telephone calls.
The Court concludes that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(vi)Alleged interference with correspondence
The applicant has further alleged that his correspondence has been restricted and monitored.
The Government consider this complaint manifestly ill-founded, as the applicant’s correspondence has been neither restricted nor screened.
The Court, finding no evidence in support of the applicant’s allegation, concludes that there is no appearance of a violation of Article 8 of the Convention in this respect.
The Court concludes that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(vii)Alleged limitation of religious freedom
The applicant has further alleged that he has not been allowed to receive visits by Jehovah’s Witnesses despite being a member of that organisation. He has also been served meals containing blood without any alternative meal being proposed.
The Court has examined these grievances under Article 9 of the Convention which reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The Government submits that no issue arises under Article 9 of the Convention in respect of the applicant’s freedom of religion. The applicant would occasionally assert his membership of the Jehovah’s Witnesses and occasionally deny it. After eventually confirming his membership he was able to keep in touch with members of the Jehovah’s Witnesses, for instance by attending their meetings even outside the hospital area. Having been moving around on his ward without authorisation in April 1998, he was allowed to leave the ward only in the company of a nurse. As he was no longer allowed to move freely he was unable to attend meetings of the Jehovah’s Witnesses. In addition, the Government stated in July 1998 that the applicant had been admonished for preaching and distributing leaflets to other patients and staff, as he was not allowed to disturb others in the exercise of his freedom under Article 9. The Government finally submits that the applicant’s religious belief has been taken into account in his diet.
The applicant stated in his observations of 4 May 1998 that, although able to receive visits by members of the Jehovah’s Witnesses, he wished to obtain permission for five such visits a week as well as permission to preach within the hospital. In his observations of 27 May 1998 he alleged that he was no longer allowed to read the Bible or even newspapers.
For the reasons below, the Court need not examine the Government’s non-exhaustion plea in respect of this grievance. It recalls that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion not only in community with others, in public and within the circle of those whose faith one shares, but also alone and in private. Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account (see, e.g., the Kalaç v. Turkey judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27).
The Court finds no evidence to support the grievance that the applicant’s religious conviction has not been respected in his diet. His further grievances of 27 May 1998 have also remained unsubstantiated. Neither does the Court find it established that he was prevented, prior to May 1998, from keeping in touch with members of the Jehovah’s Witnesses, for instance by attending their meetings even outside the hospital area. Whereas, according to the Government, he was no longer allowed to attend such meetings as from April 1998, the applicant himself stated, in May 1998, that he was at least able to receive visits by members of the Jehovah’s Witnesses. At any rate, the Court discerns no absolute right under Article 9 § 1 which would entitle a detainee to manifest his religious beliefs outside the institution where he or she is placed.
It is true that the applicant was censured for preaching and distributing leaflets to other patients and staff. This measure apparently sought to prevent the applicant from disturbing fellow patients and the ward as a whole. At any rate there is no appearance that any of the measures taken were motivated strictly by the applicant’s specific religious belief, in which case they could no longer be considered an inherent part of the implementation of his compulsory care. Neither has the applicant shown that he was pressured to change his religious views or prevented from manifesting his belief at least up to an extent necessarily limited by his specific situation. The applicant rather appears to argue that he as well as the hospital as a whole should benefit from a higher degree of exposure to the beliefs of the Jehovah’s Witnesses, comprising daily visits by representatives of theirs and permission for himself to proselytise within the hospital. No such right can be considered protected by Article 9 § 1, regard being had to the need to maintain order within the institution and not least to the protection which this provision also affords to atheists, agnostics, sceptics and the unconcerned (see the Kokkinakis v. Greece judgment of 25 May 1993, Series A 260-A, p. 17, § 31).
In conclusion, the Court cannot find it established that the applicant’s freedom to manifest his religion has been so limited as to raise an issue under Article 9 of the Convention.
The Court concludes that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(viii)The obligation to pay a care fee
The Government further submits that the collection of a monthly care fee from the applicant is based on the 1992 Act on Social Welfare and Health Care Fees and the related Decree, and does not raise any issue under Article 8 or any other provision of the Convention.
Even assuming that an issue could arise under Article 8, the Court finds no indication that the monthly care fee collected from the applicant was not based on domestic law or was otherwise not justified under paragraph 2 of that provision. Neither is there any appearance of a violation of any other provision.
The Court concludes that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
(ix)Factual inaccuracies in medical opinions
The applicant has furthermore complained that in the medical opinions proposing his continued compulsory care he has been considered guilty of offences of which he has not been convicted. Referring to the extract from the National Criminal Record, he refutes, in particular, the statements according to which he committed rapes in 1974 and 1979. Neither do the doctor’s statements regarding the circumstances of the murder in 1981 correspond to the truth.
The Court has first considered this grievance in light of Article 6 § 2 of the Convention which reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Government question the applicability of this provision as, at the time of lodging their observations, the applicant was not being charged with any criminal offence. Even assuming that Article 6 § 2 were to apply, the inaccuracies in the applicant’s patient records are partly due to the non-legal character of those records. Since a patient may repeat his or her violent behaviour, medical opinions of the relevant kind often include information on offences for which the patient may not have been sentenced. Under domestic law, however, such records are kept secret and the information pertaining to the applicant has therefore not been made public. Nor have these inaccuracies affected his treatment or continued detention. Consequently, this complaint is at any rate manifestly ill-founded.
The Court recalls that, following the discontinuation of criminal proceedings without a formal acquittal, statements which describe a state of suspicion - as opposed to statements which amount to a determination of the accused’s guilt - may be compatible with the presumption of innocence. The voicing of suspicions regarding an accused’s innocence is also conceivable as long as the criminal proceedings have not resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely on such suspicions once an acquittal has become final. The general aim of the presumption of innocence is to protect the accused against any judicial decision or other statements by State officials amounting to an assessment of the applicant’s guilt without him having previously been proved guilty according to law. Once an acquittal has become final the voicing of any suspicions of guilt, including those expressed in the reasons for the acquittal, is incompatible with the presumption of innocence (see, e.g., Rushiti v. Austria, no. 28389/95, 21.3.2000, §§ 28 et seq.).
The Court notes the Government’s concession that the annotations in the medical opinions concerning the applicant do not fully correspond to those appearing in the National Criminal Record. While his physicians have been referring to certain crimes of which he has not been found guilty according to law, the applicant has apparently not been charged with any criminal offence since the early 1980s. It follows that Article 6 § 2 is not applicable.
The Court would not exclude that inaccuracies in patient records could, at least if disclosed to the public, raise an issue under Article 8 of the Convention with regard to the patient’s right to respect for his private life (see the Z v. Finland judgment of 25 February 1997, Reports-I, p. 347, § 95). In the absence of any evidence that the medical opinions in respect of the applicant have been so disclosed the Court finds no indication of a violation of Article 8 of the Convention in this respect.
The Court concludes that this part of the application is, as regards Article 6 § 2, incompatible ratione materiae with the provisions of the Convention and, as regards Article 8, manifestly ill-founded, both within the meaning of Article 35 § 3 of the Convention.
(x)Refusal of pension
The applicant finally complains that he has been refused pension for an employment-related injury. The refusal was allegedly based on only one out of several medical opinions which he had submitted.
Under Article 35 § 1 of the Convention the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. The refusal of the pension in question dates back to 1993, whereas the application was lodged in 1996.
It follows that this part of the application must be rejected as being out of time pursuant to 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy