Application No. 10801/84
L.
against
SWEDEN
REPORT OF THE COMMISSION
(adopted on 3 October 1988)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-14) ............... 1
A. The application (paras. 2-4) ............. 1
B. The proceedings (paras. 5-10) ............ 1
C. The present Report (paras. 11-14) ........ 3
II. ESTABLISHMENT OF THE FACTS (paras. 15-33) .... 4
A. The particular circumstances of the case
(paras. 15-21) ........................... 4
B. Relevant domestic law (paras. 22-33) ..... 5
III. SUBMISSIONS OF THE PARTIES (paras. 34-68) .... 9
A. The applicant (paras. 34-48) ............. 9
a. Article 5 para. 4 of the Convention
(paras. 34-40) ....................... 9
b. Article 6 of the Convention
(paras. 41-47) ....................... 11
c. Article 13 of the Convention (para. 48) 13
B. The Government (paras. 49-68) ............ 13
a. The facts (para. 49) ................. 13
b. Article 5 para. 4 of the Convention
(paras. 50-54) ....................... 14
c. Article 6 of the Convention
(paras. 55-67) ....................... 15
d. Article 13 of the Convention (para. 68) 18
IV. OPINION OF THE COMMISSION (paras. 69-96) ..... 19
A. Points at issue (para. 69) ................ 19
B. Article 5 para. 4 of the Convention
(paras. 70-77) ........................... 19
C. Article 5 para. 5 of the Convention
(paras. 78-82) ........................... 20
D. Article 6 para. 1 of the Convention
(paras. 83-89) ........................... 21
E. Article 13 of the Convention
(paras. 90-95) ........................... 22
F. Recapitulation (para. 96) ................ 23
APPENDIX I HISTORY OF THE PROCEEDINGS ........... 24
APPENDIX II DECISION ON THE ADMISSIBILITY ........ 26
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 Swedish citizen, born in 1949 and resident
at Lund. She is represented before the Commission by Mr. Göran
Melander, an associate professor of law at the University of Lund.
3. The Government of Sweden are represented by their Agent, Mr.
Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign
Affairs, Stockholm.
4. The case relates to the procedural guarantees in respect of a
determination as to whether the applicant should be permanently
discharged, or remain on provisional discharge, from a psychiatric
hospital. It raises issues under Article 5 para. 4, Article 6 para. 1
and Article 13 of the Convention.
B. The proceedings
5. The application was introduced on 5 August 1983 and registered
on 7 February 1984. On 14 March 1984 the Commission decided, in
accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
them to present before 25 May 1984 their observations in writing on
the admissibility and merits of the application.
The Government's observations were dated 23 May 1984 and the
applicants' observations in reply, after an extension of the time-
limit to 30 August 1984, were dated 14 September 1984.
On 6 March 1985, after a further examination of the
admissibility, the Commission decided to adjourn its examination of
the case.
On 7 May 1985, the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application at which
the parties were invited to make submissions under Article 5 para. 4
as well as Articles 6, 8 and 13 of the Convention. Since the hearing
could not be held until later, the Government were invited to submit
in the meantime such written observations as they might wish to make
under Articles 6, 8 and 13 of the Convention.
By letter of 7 June 1985, the Government requested the
Commission to invite the applicant to submit information and
documentation as regards Article 8 of the Convention.
On 8 July 1985, the Commission examined the Government's
request and decided to maintain its decision of 7 May 1985. It
further extended the time-limit for the written observations.
The Government submitted further observations by letters dated
23 August and 25 November 1985. The applicant did not submit any
further written observations in reply.
At the hearing, which was held on 20 January 1986, the
applicant was represented by Mr. Göran Melander. The Government were
represented by their Agent, Mr. Hans Corell, and by Mr. Karl-Ingvar
Rundquist, Under-Secretary for Legal Affairs at the Ministry of Health
and Social Affairs, and Mr. Håkan Berglin, Legal Adviser at the
Ministry for Foreign Affairs, as advisers.
6. Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 5 June 1984.
7. On 20 January 1986 the Commission decided to declare the
application inadmissible in respect of the complaint of an unjustified
interference with the right to respect for private life (Article 8 of
the Convention). The remainder of the application was declared
admissible.
8. The applicant was then invited to submit additional observations
on the merits of the application.
On 14 July 1986 the Commission, at the request of the parties,
decided to adjourn its further examination of the case until such time
as the Commission was informed by the Government of their
deliberations as to amendments of the legislation at issue.
On 10 December 1986 the Commission decided to further adjourn,
until May 1987, its examination of the case. On 9 May 1987 the
Commission decided to invite the applicant to present, before 26 June
1987, her further observations on the merits. The applicant's
observations, dated 18 July 1987, were received on 28 September 1987.
The Government were invited to present their additional observations
on the merits before 20 November 1987. The Government's observations
were dated 18 November 1987. A copy of these observations was sent
to the applicant for information.
On 5 March and 9 July 1988 the Commission considered the
state of proceedings of the case.
9. On 3 October 1988 the Commission deliberated on the merits
and took the final votes in the case.
10. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reactions the Commission
now finds that there is no basis on which a friendly settlement can be
effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. C.A. NØRGAARD
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
The text of the Report was adopted by the Commission on
3 October 1988 and is now transmitted to the Committee of Ministers
in accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
(1) to establish the facts, and
(2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
13. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application forms Appendix II.
14. 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
15. On 19 July 1977 the applicant was involuntarily admitted to
the St. Lars Hospital at Lund pursuant to Section 1 (b) of the 1966
Act on Institutional Psychiatric Care (lagen om beredande av sluten
psykiatrisk vård i vissa fall). The next day, the question of
admission to the hospital was examined by the Chief Medical Officer,
who concluded that the provisions of Section 1 (a) as well as (b) were
applicable. Consequently, the applicant was detained at the hospital.
16. Five months later, on 7 December 1977, the applicant was
provisionally discharged. At that time the diagnosis was that the
applicant suffered from "parafrenia fantastica". She was prescribed
continued medication with a neurolepticum. Until January 1984, the
applicant remained discharged on a trial basis, except for two short
periods at the end of 1978. She was readmitted to the hospital on 2
October and discharged on 16 October 1978, admitted again on 26
October and provisionally discharged on 1 December 1978.
While on provisional discharge, the applicant received
treatment as an out-patient (polyclinical treatment). Her provisional
discharge was extended continually, on the ground that she was still
in need of treatment, that her health would deteriorate substantially,
were the treatment to stop, and that she was unable to understand the
nature of her disease.
17. On 26 May 1983 the Psychiatric Council (psykiatriska nämnden)
received a petition from the applicant with a request that her provisional
discharge be discontinued. The petition was interpreted as a petition
for permanent discharge. On 8 June 1983 the petition was transmitted
to the Discharge Council (utskrivningsnämnden) of Lund, the competent
body for this matter. The Discharge Council adjourned the examination
of the petition on 23 June 1983, since the applicant was not present
in person and had no legal counsel to represent her before the Council.
18. On 1 July 1983 the Discharge Council examined the matter
again. The applicant, having announced that she did not wish to
appear in person, was represented by a lawyer, who was a member of the
Swedish Bar Association. The applicant's petition was rejected by the
Council with reference to Section 1 (a) of the Act on Institutional
Psychiatric Care. The Council stated inter alia that there were
reasons to believe that the applicant would stop taking her medication
if discharged and that her health would then deteriorate.
19. On 2 August 1983 the applicant appealed to the Psychiatric Council.
20. On 26 September the Psychiatric Council received observations
from the Chief Medical Officer of the St. Lars Hospital and from the
Discharge Council. On 11 October 1983 the Psychiatric Council
rejected the appeal, stating that there were no reasons to amend the
decision of the Discharge Council.
21. On 17 January 1984 the applicant was permanently discharged
from the hospital.
B. Relevant domestic law
22. The regulations concerning detention of persons of unsound
mind are laid down in the 1966 Act on Institutional Psychiatric Care.
Section 1 (a) and (b) of the Act reads:
(Swedish)
"Den som lider av psykisk sjukdom får oberoende av eget
samtycke beredas sluten psykiatrisk vård med stöd av denna
lag, om sådan vård är oundgängligen påkallad med hänsyn till
sjukdomens art och grad och till att han
(a) dels till följd av sjukdomen uppenbarligen saknar
sjukdomsinsikt eller till följd av beroende av narkotiska
medel uppenbarligen är ur stånd att rätt bedöma sitt behov
av vård, dels kan få sitt tillstånd avsevärt förbättrat
genom vården eller avsevärt försämrat om vården uteblir,
(b) till följd av sjukdomen är farlig för annans
personliga säkerhet eller fysiska eller psykiska hälsa eller
för eget liv"
(English translation)
"A person suffering from mental disease may, regardless of
consent, be given compulsory institutional psychiatric care
pursuant to this Act, if such care is indispensable in view of
the nature and severity of the disease, provided that the said
person
(a) as a result of his disease is manifestly unable to
understand his disease or as a result of his addiction to
drugs is manifestly unable to understand his need of
treatment, and where his health would substantially improve
by the treatment or substantially deteriorate if the
treatment was not given, or
(b) as a result of his disease presents a danger to the
personal safety or physical or mental health of others, or
to his own life".
23. Admission to a psychiatric hospital may only be decided if
a certificate on the need for treatment has been issued by an
authorised medical officer, who must not be affiliated to the
hospital to which the patient is supposed to be admitted, and who must
have examined the patient personally and issued the certificate
immediately after the examination (Sections 3, 4 and 6 of the Act).
The decision to admit a person shall in principle be made by the Chief
Medical Officer of the hospital or clinic. A certificate must not be
accepted as a basis for such a decision, if it has been issued more than
14 days prior to the decision (Section 8).
24. If the patient is admitted under Section 8 of the 1966 Act,
the Chief Medical Officer shall examine the patient as soon as
possible and, no later than on the eighth day after the admission,
consider whether the patient can be subject to treatment under the
Act. If the medical officer considers that this is the case, he shall
decide that the patient shall be detained at the hospital. The
patient shall otherwise be discharged (Section 9).
25. A person who has been admitted for treatment under the Act must
be discharged as soon as the conditions laid down in Section 1 are no
longer present. The question whether the patient qualifies for
discharge must be examined continuously (Section 16). A person may
also be discharged provisionally on a trial basis. Such a discharge
may only take place if there are special reasons and if the patient
presents no danger to others or to himself. The discharge must be
limited in time, and may not exceed six months. The time-limit can be
extended by not more than six months at a time (Section 19). It is
also possible to issue regulations for the patient and to subject him
to supervision by a suitable person.
26. Questions of discharge or provisional discharge are decided by
the Chief Medical Officer. His decisions can be appealed to the
Discharge Council. The Chief Medical Officer may also refer such
questions to the Discharge Council. Appeals against decisions of the
Discharge Council may be lodged with the Psychiatric Council (Sections
21 and 22). The Discharge Council is also authorised to examine these
matters ex officio or at the request of the patient or his relatives
(Sections 17 and 18).
27. There are 33 Discharge Councils in Sweden. Each Council is
composed of five members: the chairman, who shall be or shall have
been a permanent judge (ordinarie domare), one medical officer, who
should have special qualifications in the matter of mental diseases,
one person with special knowledge of social issues, and two additional
members.
28. The Psychiatric Council, which has its office in Stockholm,
has six members: the chairman, who shall be or shall have been a
permanent judge, two medical officers, both of whom must have special
qualifications in the matter of mental diseases, one person with
special knowledge of social issues, and two additional members.
29. The members of all the Councils are appointed by the
Government for periods not exceeding four years. All members have to
take the oath of a judicial office, i.e. the oath that all judges must
take (domared), before they serve on the Council. The Act also
contains rules on disqualification. The Instrument of Government
(regeringsformen) further provides guarantees that such Councils act
independently without any governmental interference (Chapter 11
Sections 2 and 7 of the Instrument).
30. The patient and the Chief Medical Officer of the hospital
concerned should be present at the Discharge Council's meetings,
unless there are particular reasons preventing their presence (Section
30). The Discharge Councils meet regularly every week at the hospital,
whereas the Psychiatric Council meets every fortnight.
31. Chapter 2 Section 9 of the Instrument of Government reads:
(Swedish)
"Har annan myndighet än domstol berövat någon medborgare
friheten med anledning av brott eller misstanke om brott,
skall denne kunna få saken prövad av domstol utan oskäligt
dröjsmål. Vad nu sagts gäller dock icke när fråga är om att
till riket överflytta verkställighet av frihetsberövande
påföljd som har ådömts i annan stat.
Har medborgare av annan anledning än som angives i första
stycket blivit omhändertagen tvångsvis, skall han likaså
kunna få saken prövad av domstol utan oskäligt dröjsmål. Med
prövning av domstol likställes i sådant fall prövning av
nämnd, om nämndens sammansättning är bestämd i lag och
ordföranden i nämnden skall vara eller ha varit ordinarie
domare.
Har prövning som avses i första eller andra stycket icke
uppdragits åt myndighet som är behörig enligt föreskrifterna
där, skall den ankomma på allmän domstol."
(English translation)
"Where a public authority other than a court has deprived a
citizen of his liberty on account of a criminal act or
suspicion of such act, such person shall have the right to
have the matter examined by a court without undue delay.
This shall not, however, apply where the issue is one of
transferring to the Realm the execution of a penal sanction
involving deprivation of liberty which has been imposed in
another State.
If a citizen, for reasons other than those referred to in
the first paragraph, has been coercively taken into custody,
he shall likewise be entitled to have the matter examined by
a court without undue delay. In such a case an examination
by a board shall be deemed to rank equally with the
examination by a court, provided that the composition of the
board is governed by rules of law and the chairman of the
board shall be or shall have been a permanent judge.
If such examination as referred to in the first or second
paragraph has not been entrusted to an authority, competent
according to the provisions laid down therein, the
examination shall be carried out by an ordinary court."
32. The question whether the Discharge Councils satisfy the
requirements of a "court" within the meaning of Article 5 para. 4 of
the Convention was addressed in the travaux préparatoires of the
legislation, both in 1966, when the proposal for the Act on
Institutional Psychiatric Care was made, and in 1973, when the
proposal for a new Constitution was presented to Parliament.
In 1966 the competent Minister noted inter alia (Government
Bill 1966:53 p. 207):
"The Committee points out that the Chief Medical Officer
should not be a member of the local board, when the board is
reviewing decisions by him or any other physician at the hospital
in question. Neither is it satisfactory in the Committee's view
to have the chief medical officer take part in the board's
examination of a release case as the first instance. The
Committee therefore proposes that the Chief Medical Officer must
not be a member of the board. In this context, the Committee
points to the requirement of independence which, having regard to
the European Convention on Human Rights, must be met by bodies
that are authorised to decide matters of admission to and release
from mental hospitals."
In 1973 the Minister of Justice stated as follows (Government
Bill 1973:90 p. 386):
"Concerning compulsory custody for other reasons than
criminal offences or suspicion of criminal offences, an
examination by a board should be considered equal to that of
a court, if the composition of the board is prescribed by
law and its chairman is, or has been, a permanent judge. A
rule to this effect should be included in the section now
under discussion. The result will be that the Instrument of
Government will not prevent the continued practice of
examinations by a board, which is at present prescribed in
the Act (1966:293) on Institutional Psychiatric Care ...
But for the Discharge Councils ... it should be prescribed
that the chairman not only should, but must fulfil the
requirements just mentioned. With such a wording of the
proposed provision in the Instrument of Government, a
wording which by the way our special legislation in this
field already contains to a large extent, there are
satisfactory guarantees that the examination by boards will
be as secure as an examination by the courts.
In this context, I would like to point out that, even if a
board of the nature now proposed is not a court according to
Swedish conceptions, the nature of the matters to be dealt
with by the board, the composition of the board, the nature
of its functions, its competence to conduct investigations,
and its totally independent status vis à vis the Government
and other authorities (cf. Section 7) speak in favour of the
conclusion that the board should be considered to meet the
standards set by international law for courts, as defined by
the European Convention for the Protection of Human Rights
and Fundamental Freedoms."
33. In 1984 a Governmental committee (socialberedningen) published
a report (SOU 1984:64 : Psykiatrin, tvånget och rättssäkerheten) in
order to reform the present system. In the report it is suggested that
the Discharge Councils and the Psychiatric Council should disappear.
It is proposed that any person who has been detained in order to
undergo psychiatric treatment should have access to the administrative
courts. So far, the Government have not introduced any Bill to
Parliament.
III. SUBMISSIONS OF THE PARTIES
A. The applicant
a. Article 5 para. 4 of the Convention
34. The applicant submits that the relevant Swedish legislation
has been correctly applied in her case. However, her rights under the
Convention have been violated.
35. The main question is whether the Discharge Council or the
Psychiatric Council can be considered as a "court" in the meaning of
Article 5 para. 4 of the Convention.
The Discharge Council is composed of five members, inter alia,
a chairman who shall be or shall have been a permanent judge, and a
medical officer. In order to create independence it is provided that
the medical officer must not be working at the hospital, in which the
person in question is a patient.
It is true that in the travaux préparatoires to the present
Act it is stated that the Discharge Council meets the requirements of
a "court" as laid down in Article 5 para. 4. However, from such a
statement it cannot be concluded that the legislation meets the
requirements, only that the Government have been aware of the fact
that the provisions in the Convention could have an influence on the
content of the legislation.
36. The Government argue that the mere fact that a judge is a
member of each of the Councils satisfies the conditions of the
Convention and, accordingly, that the Councils are to be considered as
courts. The Government have also demonstrated that all Discharge
Councils have chairmen of high judicial standard and that they are all
present or former judges. However, the mere fact that a judge is a
member of an organ does not transform that organ into a "court". For
instance, medical officers are subject to the supervision by the
National Board of Health and Welfare and are subject to disciplinary
responsibility under the Act on the Supervision of Health and Medical
Staff (lagen om tillsyn över hälso- och sjukvårdspersonalen m.fl.).
Such disciplinary matters are dealt with by a special board under the
chairmanship of a judge. Although this organ has a legal function it
cannot be considered a court. Several examples of similar boards can
be found in Swedish law, where it is clear that the term "court" is
not applicable. It is obvious that other criteria must also be
fulfilled before the term "court" can be used.
Another important element is the composition of the organ. A
reason why it is questionable whether the Discharge Councils and the
Psychiatric Council can be considered as courts is the fact that
medical officers who represent the medical expertise are full members
of the respective organ. It is likely that the medical officer will
have the greatest influence on the case. It may be practical that a
medical officer is a member of the respective organ. However, the
impartiality of the Council will be lost. It is true that the medical
officer of a Discharge Council must not be affiliated to the
hospital to which the patient in question is admitted. As long as he
is a full member of the Discharge Council his impartiality can,
however, be questioned, not only because of collegiality but also
because it is common that a medical officer changes his employment
from one hospital to another.
Medical officers who are specialised in psychiatry are very
few. It is a very narrow science and the actual number of
psychiatrists is low. As regards the composition of the Discharge
Council at Lund, the medical officer who sits on the Discharge Council
actually works, or did in those days, at another hospital in Lund.
There are two hospitals at Lund for psychiatric care and this member
of the Discharge Council works at the other psychiatric hospital in
Lund. Certainly, they do not work at the same hospital but still
there are rather close relations between the two hospitals, not only
because both medical officers have the same employer, the County
Council (landstinget). There are thus not direct but nevertheless
certain relations between the medical officers.
37. The travaux préparatoires of the Act also deal with the
procedure to be followed before a Discharge Council. In this respect
it is explicitly stated "that the informal procedure which has
developed within the local Discharge Councils mainly ought to be
upheld and that by all means a procedure should be avoided which is
similar to a court procedure" (Government Bill 1966:53 p. 209).
38. As far as its organisation is concerned, a Discharge Council
is a separate authority, but it is a general impression that it forms
part of the hospital's administration. For instance, it is the County
Council which is responsible for the remuneration of the members of
the Discharge Council. The administrative structure is vague and a
Discharge Council has not always office premises of its own.
Membership of a Discharge Council is a sparetime occupation. There is
no co-operation between the various Discharge Councils and in spite of
the Psychiatric Council, which serves as an appeal board, there is no
possibility of establishing precedents. From an administrative point
of view the Discharge Councils and the Psychiatric Council are
completely separated from the ordinary judicial system.
39. The Psychiatric Council consists of six members, inter alia,
a chairman who shall be a judge and two medical officers nominated by
the National Board of Health and Welfare. According to Section 31 of
the Act on Institutional Psychiatric Care, oral proceedings should be
held if it is considered necessary in view of the circumstances of the
case. However, the applicant has no right to oral proceedings. Such
a decision lies in the discretion of the Psychiatric Council. In
practice, it is rare that the Council meets in oral proceedings.
The office of the Psychiatric Council is situated on the
premises of the National Board of Health and Welfare and its
affiliation to the medical administration is firm. Also the other
objections raised against the Discharge Councils are of relevance as
regards the Psychiatric Council.
40. Taking all these elements into account it is not possible to
conclude that the Discharge Council and the Psychiatric Council
constitute "courts" in the meaning of Article 5 para. 4 of the
Convention. Accordingly, there has been a violation of the Convention.
b. Article 6 of the Convention
41. Article 6 para. 1 is also applicable in the present case. Any
person deprived of his or her liberty should be entitled to a hearing
before a tribunal. The minimum safeguards as provided for in Article
6 para. 1 should apply.
The applicability of Article 6 para. 1 is a question which has
been debated during the past few years. There are cases showing that
the applicability of Article 6 para. 1 should be interpreted in the
broadest possible sense. It would be confusing if a person were
entitled to a hearing before a tribunal in a small trifling case,
whereas when it comes to such severe measures as the deprivation of
liberty based on administrative provisions such proceedings should not
be applied.
The question as to whether a decision of whether the applicant
should be permanently released is a determination of her "civil rights
and obligations" within the meaning of Article 6 para. 1 of the Convention
must be answered in the affirmative.
42. In the Swedish context the term "civil rights" in Article 6
para. 1 has been given an intepretation which is too narrow. It is
most likely that this restrictive interpretation is due to a debatable
translation of the Convention into Swedish. The term "civil rights"
has been translated with "civila rättigheter", i.e. something like
"civil law". However, the term "civil rights" in the European
Convention is a much broader concept.
In this respect a comparison can be made with the UN Covenant
on Civil and Political Rights. In the Swedish version the Covenant
has been correctly translated, i.e. "medborgerliga och politiska
rättigheter".
"Civil rights" are concerned essentially with what individuals
may do within the law. The term normally denotes the set of rules
prescribed in various Bills of Rights in the Member States of the
Council of Europe. This broader interpretation of the term is
supported by the practice of the European Commission and the European
Court of Human Rights.
The above narrow interpretation would lead to absurd results.
For instance, under Article 5 para. 4, any person who has been
deprived of his or her liberty is entitled to take proceedings before
a tribunal. It is obvious that the hearing in all cases must be fair
and public, that the tribunal must be independent and impartial.
These conditions should not only be of relevance in cases when a
person is accused of a criminal offence. Thus, there must be a
relation between Article 5 para. 4 and Article 6 para. 1 of the
Convention.
43. A Discharge Council cannot be characterised as a "tribunal" in
the meaning of Article 6 of the Convention. One of the members of a
Discharge Council should be a medical doctor who is a specialist in
psychiatry. As a full member of the Discharge Council he is entitled
and obliged to take part in the deliberations and the decision of the
Council. Because of his expertise he will have a disproportionate
possibility to influence the decision. In practice it will be
extremely difficult for other members of the Council to act
independently in the presence of the medical expert.
The Government argue that the Discharge Council shall be
deemed equal to a court. In doing so reference has been made to the
Swedish Constitution Chapter 2 Section 9 (2). Should a board like the
Discharge Council have been considered as a court, subsection 2 would
have been superfluous. However, it was found necessary to include a
special provision in the Constitution, by which a board like a
Discharge Council became constitutional. The fact that a Discharge
Council has become legal according to the Swedish Constitution is of
no relevance with respect to Article 6 of the Convention.
44. A case is decided by the Discharge Council at a meeting which
normally is held at the hospital. As a rule the Chief Medical Officer
of the hospital or the clinic must be present, unless there are
particular reasons speaking against his presence.
If the case is determined in the absence of the applicant, the
members of the Council should have obtained personal information about
the patient before the decision. If provisional discharge has been
decided, it is enough if one of the members of the Discharge Council
has personal information about the patient. If there should be
"particular reasons" an exception can be made with regard to the
prerequisite of personal information.
In most cases the procedure before the Psychiatric Council
is in writing. In exceptional cases an oral hearing can be held, if
the nature of the case so requires.
45. As regards the procedure before the Discharge Council in the
applicant's case it is likely that the reason for the applicant's
absence - as in many other cases - is the patients' lack of confidence
in the Discharge Council. The procedure is considered as
dissimulation.
46. The applicant admits that as long as a person is actually
being detained it would be easy to argue only under Article 5 para. 4,
but in this case Article 6 is also applicable because of the decision
on provisional discharge. As the Government have pointed out, that
means, among other things, that the person in question is forced to
comply with certain directives without having any real access to a
court where this decision could be changed or amended. There exist
quite a number of directives under a provisional discharge. A
condition for making use of these prescriptions is that the person is
questioned first, has been detained and it has been found that the
legal conditions for detention no longer apply. Only in such a
situation is provisional discharge possible and these binding
prescriptions are possible. But it is not, under the law, possible to
issue prescriptions without the person in question having been
detained.
In the applicant's view, this means that a civil right is at
issue and it is necessary to have some kind of court proceedings in
order to determine it.
It is stated in the travaux préparatoires that provisional
discharge should not be considered as a kind of sanction. On the
other hand, from the point of view of the person in question, it is
obviously a sanction.
47. Article 6 para. 1 prescribes that the hearing must be public.
This condition is not fulfilled with regard to the procedure before
the Discharge Councils and the Psychiatric Council as the hearings are
held in private. The Government have argued that under the Convention
public hearings may be excluded where the interests of the private
life of the parties so require. The application of this principle is,
however, the prerogative of the person in question who may or may not
ask for a hearing in private. In a case where a person has been
detained under the 1966 Act it is important that there is a possibility
of holding hearings in private. However, the main rule should be that
hearings are public and that they will be in private only at the
request of the person in question.
c. Article 13 of the Convention
48. It can be argued that the applicant has not enjoyed the
guarantees of an effective remedy for the alleged violations of the
Convention. The applicant has been granted the rights provided for in
Swedish law, but it is the legislation as such which has indirectly
violated the Convention. Accordingly, no effective remedy for the
alleged violations was available, and Article 13 of the Convention has
also been violated in the present case.
B. The Government
a. The facts
49. The Government submit that the possibility of provisional
discharge has been an important means of preparing patients for a
final discharge. This possibility is often an alternative to
treatment in an institution. It is important that provisional
discharges are not extended over long periods. But in certain cases a
long period of provisional discharge could be an appropriate means if
the patient needs to take medicine but lacks ability to understand his
or her illness. In such cases provisional discharge means that
relapses with subsequent hospital treatment could be avoided.
The reason why a patient is provisionally discharged is that
such a patient is under the obligation to observe a certain
prescription which the Discharge Council may decide. Reference is
made to Section 19 of the 1966 Act which provides that the patient may
be given instructions and could also be put under the supervision of a
certain person. As an example the patient could be ordered to visit
the hospital once a week or to have an injection once a month. He
could be ordered not to drink alcoholic beverages or be subjected to
other rules of this kind.
b. Article 5 para. 4 of the Convention
50. The Government submit that Article 5 para. 4 deals with
persons who are deprived of their liberty. The applicant has been
discharged from the hospital since the end of 1977 on a trial basis.
She has not been deprived of her liberty by detention since the end of
1978. It is the opinion of the Government that the complaint falls
outside the scope of Article 5 para. 4.
51. Should the Commission find that Article 5 para. 4 applies to
the provisional discharge, the Government submit that the proceedings
before the Discharge Councils satisfy the requirements of court
proceedings. Thus the patient is represented by legal counsel and
an oral hearing is held during which the patient's arguments may be
presented etc.
52. The Discharge Councils are composed so as to ensure a maximum
of professional knowledge as well as layman influence. The fact that
the chairman is a judge or a former judge is a further guarantee of an
impartial and legally correct procedure. These Councils should
therefore be considered equal to courts within the meaning of Article
5 para. 4.
The Government refer to a list which they have compiled of the
33 Discharge Councils and their chairmen. They point out that 26 of
the chairmen were permanent judges of the ordinary courts of first
instance, one was a permanent judge of the administrative court of
first instance, two were permanent judges of courts of appeal, one was
a permanent judge of a Social Insurance Court (försäkringsrätt) and
three were retired judges. Moreover, the chairman of the Psychiatric
Council is a judge of the Supreme Administrative Court (regeringsrätten).
Additional provisions regarding the procedure are laid down in
the 1966 Act. Further instructions are given in the Instruction for
the Discharge Councils (instruktionen för utskrivningsnämnderna) and the
Instruction for the Psychiatric Council (instruktionen för psykiatriska
nämnden).
53. The applicant's petition was examined by the Discharge Council
as soon as circumstances permitted after her petition. A considerable
delay was caused by the applicant herself, since she sent her petition
to the Psychiatric Council in Stockholm instead of the Discharge
Council at Lund. As far as the Government have been able to establish
the Discharge Council received the petition on 8 June and discussed
the matter at its meeting on 23 June 1983, when the examination of the
petition had to be adjourned due to the fact that the applicant did
not appear in person and had no legal counsel to represent her. But
even if the whole period between 26 May and 1 July 1983 is considered,
the Government contend that the requirements of a speedy procedure
were met.
54. Referring to the Vagrancy cases (Eur. Court H.R., De Wilde,
Ooms and Versyp judgment of 18 June 1971, Series A no. 12), the
Luberti case (Eur. Court H.R., Luberti judgment of 28 February 1984,
Series A no. 75) and to the Swedish law which in the Government's view
provides firm rules for the proceedings on discharge matters under the
Act on Institutional Psychiatric Care, as well as the establishment by
law of independent and impartial bodies to decide on these matters,
the Government conclude that the Swedish system satisfies the
requirements of the Convention.
c. Article 6 of the Convention
55. Since there is no question of a criminal charge against the
applicant, the only situation in which Article 6 could, in the
Government's view, be applicable in this case is that the matter before
the Swedish authorities concerns the determination of her "civil
rights and obligations". The Government contest that this is the
case. A decision to subject a patient to treatment under the 1966 Act
on Institutional Psychiatric Care does not automatically entail the
loss of a patient's right to exercise his private rights, e.g. the
capacity to administer his property. Consequently there is no
similarity in this respect between the applicant's case and the
Winterwerp case (Eur. Court H.R., Winterwerp judgment of 24 October
1979, Series A no. 33, pp. 28-29, paras. 73 and 75). Nor did the
decision on institutional care prevent the applicant from contracting
a marriage.
Consequently, the Government submit that this aspect of the
application is incompatible ratione materiae with the provisions of
the Convention.
56. The Government admit that the term "civil right" is a more
limited concept in Swedish law than the interpretation given to it by
the European Court of Human Rights lately. In the UN Covenant of 1966
the expression also has been given a wider interprettion. The
difference regarding the interpretation of the expression "civil
rights" has created a problem as to the applicability of Article 6 to
the Swedish administrative procedure.
In the present case, however, the problem is somewhat
different. It must first be examined what kind of right could be
regarded as a "civil right" in the applicant's case. The question
thus arises whether an individual admitted to a psychiatric hospital
has a right to be released on a provisional basis and if so whether
this could be regarded as a civil right.
Evidently this kind of release is an instrument intended to
achieve a smooth transfer when the patient later is to be released
permanently. It must be questioned whether a provisional release can
be regarded as a right at all. Guidance can be found in the rules on
provisional or conditional release of convicted persons sentenced to
prison. In such cases the Commission has stated that conditional
release is not a civil right but an act of favour, the granting of
which is a matter for the proper national authorities left to their
discretion (see No. 1446/62, Dec. 7.3.64, Yearbook 8, p. 454). This
must apply irrespective of whether the conditions for a conditional
release are laid down in domestic law or not. Behind this reasoning
lies the idea that the State is obliged to release a person
permanently as soon as he has served his sentence, but not before.
57. As far as a person admitted involuntarily to a hospital is
concerned the same applies. Thus, as soon as the person in question
is well enough to be released, the authorities are obliged to release
him or her. However, there is nothing in international law that
obliges a State to provide a system according to which patients can be
released on a provisional basis as provided for in Sweden.
In the Government's view the "provisional release" like the
"conditional release" does not constitute a "civil right". It is a
system provided by the legislator in order to facilitate a smooth
transfer to a permanent release and there is no obligation under
international law to maintain such a system.
58. The fact that the authority may impose certain restrictions on
the patient, e.g. order him to visit the hospital on certain
occasions, similar to what can be done in connection with an order on
conditional release, does not alter this view.
59. The Government submit that a decision to release a person on a
provisional basis does not concern that person's civil rights and,
consequently, Article 6 does not apply in the present case.
60. In any event, the Government consider that the Discharge
Councils and the Psychiatric Council meet the requirements of a
"tribunal" within the meaning of Article 6.
61. The Government recall that in its decision of 2 October 1975
(No. 6837/74, D.R. 3, p. 139), the Commission examined the Belgian
Social Defence Committees under Article 5 para. 4. Like the Swedish
Discharge Councils, these Committees seem to be entrusted with the
determination of the duration of detention regarding persons in a
state of mental deficiency or illness and with the task of ordering
the release of such persons if the conditions prescribed by law for
detaining them on grounds of mental illness are no longer fulfilled.
The Belgian Committees are composed of three members, a magistrate as
president, a barrister and a doctor. The proceedings before such a
Committee take place in camera but the detainee has the right to be
heard by the Committee. Unlike the Swedish procedure it seems as if
the detainee is obliged to be assisted by a barrister. He also has
the possibility of arranging a counter expert opinion by a doctor of
his own choice. The Commission found the Social Defence Committee to
be independent of the executive power and of the parties to the
proceedings, and to apply a procedure of a judicial character adapted
to the special nature of the purpose of such proceedings. The
Commission found that the examination did not disclose any appearance
of a violation of Article 5 para. 4 of the Convention and the
application was rejected as being manifestly ill-founded.
The same reasoning should in the Government's view also apply
in the present case as regards the examination under Article 6. The
procedural guarantees are similar and so is the composition of the
organs. The Discharge Councils constitute independent bodies. They
are impartial. It should be possible to invoke the opinion of a
medical counter-expert of the applicant's own choice before the
Council. The patients may be assisted by barristers before the
Council as was done in the applicant's case.
62. Since the applicant did not wish to appear in person before
the Council she has waived her right in that regard. There is
nothing, however, in the way the Discharge Council dealt with the
matter which indicates that her case was not determined in a fair way.
63. Consistent with their stand on the issue under Article 5
para. 4, the Government maintain that the Discharge Councils and the
Psychiatric Council meet the requirements of a tribunal within the
meaning of Article 6. The question arises whether there is a difference
between the two Articles of the Convention. In the English text the
word "court" is used in Article 5 para. 4, whereas the word "tribunal"
is used in Article 6 para. 1. However, in the French version of the
Convention the word "tribunal" is used in both Articles.
64. There are three conditions which must be fulfilled as far as
the tribunal is concerned. It must be independent, impartial and
established by law.
As to the independence, there can be no doubt that this
requirement is fulfilled. From Chapter 11 Section 7 of the Swedish
Instrument of Government (cf. para. 29 above) it follows that an
independence similar to that of the ordinary courts in Sweden is
attributed to certain administrative bodies when they exercise
official power. The provision expressly mentions the independence of
bodies that exercise official power in particular cases in regard to
private subjects or apply provisions of law enacted by Parliament.
Even if the Discharge Council is considered as an administrative body
in Sweden, such a Council is nevertheless independent under the
Constitution.
Where the Councils have their premises - a question which has
been raised by the applicant - is of no relevance in this context.
From a psychological point of view it may be important to the patients
whether they go to premises within the hospital, or if they go to a
place outside the hospital premises. That may be of a psychological
significance, but in the legal context this feature in the Swedish
system is of no relevance.
65. With respect to the two remaining conditions, it is obvious
that the Discharge Councils are established by law and that they are
impartial. The applicant has not even alleged that the Discharge
Council failed to act in an impartial way. With regard to
impartiality, the Government refer to the Campbell and Fell case (Eur.
Court H.R., Campbell and Fell judgment of 28 June 1984, Series A no.
80, p. 39, para. 78) and the Sramek case (Eur. Court H.R., Sramek
judgment of 22 October 1984, Series A no. 84, p. 18, para. 38).
66. The hearing in the applicant's case was not public in so far
as no general public was admitted to the hearing. In the Government's
opinion a public hearing was, however, not required with respect to
the subject-matter, since Article 6 permits that the public may be
excluded from all or part of the hearing where the interests of inter
alia the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.
67. The question remains whether the decisions by the two
authorities have been pronounced publicly. The Government admit that
no positive actions have been taken in order to make the decisions
public. The Government refer to Chapter 7 Section 2 of the Secrecy
Act (sekretesslagen). According to this provision secrecy does not
apply to decisions by the Discharge Councils or the Psychiatric
Council. Under the circumstances, this fact in connection with the
general Swedish rules on free access to official documents have as a
result that anybody has the right to examine, on request, the decisions
by the two authorities. This publicity must satisfy the basic aim of
Article 6, namely to guarantee that justice is not administered in
camera. Reference is made to the Sutter case (Eur. Court H.R., Sutter
judgment of 22 February 1984, Series A no. 74, p. 14, paras. 33 and 34).
d. Article 13 of the Convention
68. The Government maintain that the possibility for the applicant
to have her case reviewed by the Discharge Council and the Psychiatric
Council constitutes effective remedies within the meaning of Article 13.
IV. OPINION OF THE COMMISSION
A. Points of issue
69. The application relates to the procedural guarantees in respect
of a decision as to whether the applicant should be permanently
discharged, or remain on provisional discharge, from a psychiatric
hospital. The principal points at issue are:
- whether or not Article 5 para. 4 (Art. 5-4) of the Convention
is applicable in the case and, if so, whether or not there has
been a violation of that provision;
- whether or not there has been a violation of Article 5 para. 5
(Art. 5-5) of the Convention;
- whether or not Article 6 para. 1 (Art. 6-1) of the Convention is
applicable in the case and, if so, whether or not there has
been a violation of that provision;
- whether or not there has been a violation of Article 13 of
(Art. 13) the Convention.
B. Article 5 para. 4 (Art. 5-4) of the Convention
70. Article 5 para. 4 (Art. 5-4) of the Convention reads:
"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."
71. The applicant submits that Article 5 para. 4 (Art. 5-4) has
been violated since the Discharge Council and the Psychiatric Council
do not satisfy the conditions for being "courts" within the meaning of
that provision. The Government submit that applicant was not deprived
of her liberty at the relevant time.
72. The first issue to be decided is whether Article 5 para. 4
(Art. 5-4) applied at the time of the applicant's petition for
permanent release, in particular in view of the fact that she was not
physically detained, but had been provisionally discharged from the
hospital. In order to determine this issue it is necessary to examine
whether the applicant was "deprived of (her) liberty" within the
meaning of Article 5 para. 4 (Art. 5-4).
73. The wording of Article 5 para. 4 (Art. 5-4) suggests that it only applies
to a person who "is deprived" of his or her liberty, and the fact
that the provision requires a speedy decision shows that its aim is to
provide safeguards to persons actually detained. According to the
case-law of the Commission and the Court, Article 5 (Art. 5) is not concerned
with mere restrictions on the liberty of movement which are governed
by Article 2 of Protocol No. 4 (Art. P2-4) to the Convention. In order to
determine whether an individual is, at a certain point, "deprived of
his liberty" within the meaning of Article 5 (Art. 5), the starting point is
the concrete situation of the individual and account must be taken of
a whole range of criteria such as the type, duration, effects and
manner of implementation of the measures taken to restrict the
individual's liberty. The distinction between deprivation of liberty
and restriction on liberty is one of degree and intensity and not one
of nature or substance (cf. Eur. Court H.R., Guzzardi judgment of
6 November 1980, Series A no. 39, p. 33, para. 92 and Ashingdane
judgment of 28 May 1985, Series A no. 93, p. 19, para. 41).
74. Although the applicant had been physically released from the
hospital as a result of her provisional discharge, it does not
automatically follow that she was no longer "deprived of (her)
liberty". For instance, a person detained in a psychiatric hospital
would clearly still be regarded as "deprived of his liberty" even if
he was occasionally allowed to leave the hospital premises (see
Nielsen v. Denmark, Comm. Report 12.3.87, paras. 109-111).
75. However, in the present case, it is established that the
applicant was on provisional discharge when she lodged her petition
for a permanent discharge in May 1983 and that she had been so since 1
December 1978. During the discharge the applicant was at liberty, but
was ordered to undergo certain medical treatment which she received on
an out-patient basis. The conditions thus attached to her provisional
discharge (cf. also paras. 16, 25, 46 and 49) were in the Commission's
view not so severe that her situation can be characterised as a
deprivation of liberty.
76. Consequently, Article 5 para. 4 (Art. 5-4) of the Convention was not
applicable to the applicant's situation.
Conclusion
77. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.
C. Article 5 para. 5 (Art. 5-5) of the Convention
78. Article 5 para. 5 (Art. 5-5) of the Convention reads:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
79. The right to compensation under this provision pre-supposes
that a violation of one of the other paragraphs of Article 5 (Art. 5) of the
Convention has been established, either by a domestic organ or by the
Convention organs (cf. No. 7950/77, Dec. 4.3.80, D.R. 10, p. 213).
80. In the present case, no violation of Articles 5 paras. 1 to 4
(Art. 5-1) (Art. 5-4) has been established by any domestic organ. The
Commission has found above that the applicant was not "deprived of
(her) liberty" and that Article 5 para. 4 (Art. 5-4) was not
applicable to the proceedings brought by the applicant. There is no
indication of a violation of any of the other paragraphs of Article 5
(Art. 5) of the Convention.
81. Accordingly, the Commission finds that the applicant has no
right to compensation under Article 5 para. 5 (Art. 5-5) of the Convention.
Conclusion
82. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 para. 5 (Art. 5-5) of the Convention.
D. Article 6 para. 1 (Art. 6-1) of the Convention
83. Article 6 para. 1 (Art. 6-1) first sentence of the Convention reads:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
84. The applicant submits that the decision concerning her
permanent discharge related to her "civil rights", and that the
Discharge Council and the Psychiatric Council do not constitute
"tribunals" within the meaning of Article 6 para. 1 (Art. 6-1). The
Government submit that the decision relating to the discharge did not
concern the applicant's "civil rights" and that, consequently, Article
6 para. 1 (Art. 6-1) is not applicable.
85. Article 6 para. 1 (Art. 6-1) would only apply to the
proceedings in which the applicant was refused a permanent discharge
if the subject of those proceedings was a dispute which was decisive
for her "civil rights and obligations".
The concept of "civil rights and obligations" cannot be
interpreted solely by reference to the domestic law of the respondent
State, but it must be given an autonomous interpretation in the light
of the object and purpose of the Convention (see Eur. Court H.R.,
König judgment of 28 June 1978, Series A no. 27, p. 29, para. 88).
Consequently, it is not decisive for the application of Article 6
para. 1 (Art. 6-1) whether the issue in the present case is regarded
in Swedish law as one of private law or as one of administrative law.
This does not mean that the legislation of the State concerned is
without importance. Whether or not a right is to be regarded as
"civil" within the meaning of the Convention must be determined by
reference to the substantive content and effects of the right, and not
its legal classification under the domestic law of the State
concerned.
86. The Commission considers that proceedings relating to an
individual's detention in a psychiatric hospital do not as such
concern that individual's "civil rights and obligations", unless such
detention has effects on the individual's right to administer his
property or the like (cf. Eur. Court H.R., Winterwerp judgment of
24 October 1979, Series A no. 33, p. 28, para. 73 and the Commission's
Report, van der Leer v. the Netherlands, 14.7.88, para. 121).
87. The Commission recalls that in the present case the issue
which was at stake before the Discharge Council and the Psychiatric
Council was not whether the applicant should be detained in a
psychiatric hospital but whether she should be discharged permanently,
or remain on provisional discharge, from the psychiatric hospital. In
substance, it could be said that the issue which was examined by the
domestic organs was whether the applicant was still in need of certain
medical treatment. In the Commission's opinion this examination did
not bear upon the applicant's "civil rights and obligations", and the
outcome of the proceedings was not directly or indirectly decisive for
any such rights or obligations.
88. Accordingly, Article 6 para. 1 (Art. 6-1) of the Convention was not
applicable to the proceedings before the Discharge Council and the
Psychiatric Council.
Conclusion
89. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
E. Article 13 (Art. 13) of the Convention
90. Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
91. The applicant submits that she has not had under Swedish law
an "effective remedy" for the alleged violations of the Convention.
The Government argue that the possibility for the applicant to have
her case examined by the Discharge Council and the Psychiatric Council
satisfied the condition of an "effective remedy".
92. Article 13 (Art. 13) does not guarantee a remedy whereby a law
as such can be challenged before a domestic organ (see Eur. Court
H.R., James and others judgment of 21 February 1986, Series A no. 98,
p. 47, para. 85). Moreover, Article 13 (Art. 13) does not require a
remedy under domestic law in respect of any alleged violation of the
Convention. It only applies if the individual can be said to have an
"arguable claim" of a violation of the Convention (Eur. Court H.R.,
Boyle and Rice judgment of 27 April 1988, Series A no. 131, para. 52).
93. It follows from the terms of the applicant's submissions that
it is basically the legislation as such which she attacks. However,
as stated above, Article 13 (Art. 13) does not guarantee a remedy for
such complaints. Insofar as the applicant can be understood to
complain that she did not have an effective remedy for the alleged
violation of Article 8 (Art. 8) of the Convention the Commission
recalls that it has found the Article 8 (Art. 8) complaint "manifestly
ill-founded" (see Appendix II). In its decision on admissibility the
Commission found that the decision not to discharge the applicant
permanently from the hospital, although constituting an interference
with her rights under Article 8 para. 1 (Art. 8-1), was justified
under Article 8 para. 2 (Art. 8-2) as being "in accordance with the
law" and "necessary in a democratic society" for the protection of the
applicant's health. In all circumstances, the Commission considers
that, in this respect, the applicant cannot be said to have an
"arguable claim" of a violation of Article 8 (Art. 8).
94. Consequently, the applicant was not entitled under Article 13
(Art. 13) to an effective remedy for the alleged violations of the Convention.
Conclusion
95. The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention.
F. Recapitulation
96. - The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 77).
- The Commission concludes, by a unanimous vote, that there has
been no violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 82).
- The Commission concludes, by a unanimous vote, that there has
been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 89).
- The Commission concludes, by a unanimous vote, that there has
been no violation of Article 13 (Art. 13) of the Convention (para. 95).
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
__________________________________________________________________________
5 August 1983 Introduction of the application.
7 February 1984 Registration of the application.
Examination of the admissibility
14 March 1984 Commission's deliberations and decision to
invite the Government to submit observations
on the admissibility and merits of the
application.
23 May 1984 Government's observations.
14 September 1984 Applicant's observations in reply.
6 March 1985 Commission's further examination of the
admissibility of the application and
decision to adjourn the examination.
7 May 1985 Commission's deliberations and decision to
invite the parties to a hearing on the
admissibility and merits and, in the meantime,
to invite the Government to submit further
observations.
7 June 1985 Government's letter.
8 July 1985 Commission's deliberations and decision to
maintain the invitation to the Government
to submit written observations.
23 August 1985 Government's further written observations.
25 November 1985 Applicant's further written observations.
Date Item
__________________________________________________________________________
20 January 1986 Hearing on admissibility and merits. The
parties were represented as follows:
Government: MM. Hans Corell
Kurt-Ingvar Rundquist
Håkan Berglin
Applicant: Mr. Göran Melander
20 January 1986 Decision to declare the application
admissible.
Examination of the merits
20 January 1986 Commission's deliberations on the merits.
14 July 1986 Commission's decision, at the request of the
parties, to adjourn the examination of the
case.
10 December 1986 Commission's decision to further adjourn
the examination of the case.
9 May 1987 Commission's decision to invite the applicant
to present further written observations on the
merits.
28 September 1987 Applicant's observations on the merits.
18 November 1987 Government's observations on the merits.
10 October 1987, Commission's consideration of the state of
5 March and 9 July proceedings.
1988
3 October 1988 Commission's deliberations on the merits,
final votes and adoption of the Report.