AS TO THE ADMISSIBILITY OF
Application No. 19076/91
by Ann-Margret NORDBLAD
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 October 1993 the following members being present:
Present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 June 1991 by
Ann-Margret Nordblad against Sweden and registered on 14 November 1991
under file No. 19076/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Swedish citizen born in 1967. In the
proceedings before the Commission she is represented by her father,
Mr. Leif Nordblad, at the time of the events described below residing
at Oxie, near Malmö.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Since 18 September 1989 she is subject to compulsory psychiatric
care pursuant to section 1 (a) and (c) of the 1966 Act on Institutional
Psychiatric Care (lagen om beredande av sluten psykiatrisk vård i vissa
fall - the "1966 Act" below) and placed at the Malmö General Hospital
(Allmänna sjukhus). The above-mentioned provisions read :
"1. 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
...
(c) as a result of his disease is incapable of taking care of
himself ...".
On 25 July 1990 the applicant disappeared from the mental
hospital were she was detained. The police were informed and a
detention warrant issued. On 28 August 1990, after contact had been
established with the applicant, the Chief Physician at the hospital,
Dr. G.J., decided that she should be provisionally discharged until
30 November 1990. On 5 September 1990 the Chief Physician added the
condition that the applicant should allow doctor L. to examine her
state of health at least once a week. The decision indicated that any
complaints regarding the condition imposed should be lodged with the
Discharge Council (utskrivningsnämnden) in Lund.
On 6 September 1990 the Police Authority in Malmö received a
telephone request from Sheriff K. in Iowa, USA, for information
regarding the applicant. Sheriff K. stated that he had been contacted
by relatives of the applicant who had presented letters from the
applicant's father indicating that he intended to come to them in the
USA with the applicant as she was wanted by the Swedish police and was
being detained in a psychiatric hospital against her will. Sheriff K.
wished to know whether the information contained in the letters was
correct as, if that was so, the relatives in Iowa did not wish to
receive the applicant and her father. In response to this request the
Police Authority in Malmö contacted the Chief Physician of the mental
hospital who decided to revoke the conditional discharge and to request
the assistance of the police in bringing the applicant back to the
hospital. The applicant was found by the police the same afternoon and
brought to the hospital. Sheriff K. was informed of the developments
the same day.
The applicant's father first challenged the redetention decision
by requesting compensation from the State for two unused airline
tickets and for the damages caused on his property when the police
fetched his daughter. By decisions of 3 and 14 December 1990 the
Chancellor of Justice (justitiekanslern), as representative of the
Government, refused compensation finding no liability for the damages
claimed. No proceedings for damages were brought before the courts.
The father also complained to the Parliamentary Ombudsman
(justitieombudsmannen). However, after having heard the explanations
given by the local health care director (Sjukvårdsdirektören) and
considered the applicant's medical records, the Ombudsman found, by
decision of 29 January 1991, no cause for any action on his part.
The father also wrote to the Government requesting permission for
his daughter to leave Sweden. In her reply of 7 February 1991, the
competent Minister informed the applicant that no such permission was
required for persons wishing to leave Sweden but that limitations on
the freedom of movement might nevertheless be imposed by parliamentary
legislation, inter alia, in the case of mentally ill persons. The
Minister also drew the father's attention to the provisions of the 1978
Passport Act (passlag) according to which passports could be refused
or recalled in respect of persons detained in a mental hospital. The
Minister also advised the applicant that the task of implementing the
legislation in his daughter's case fell on the mental hospital where
she was detained and that the law had provided for possibilities of
review of detention decisions to the Discharge Council and thereafter
to the Psychiatric Board (psykiatriska nämnden); the Government,
however, had no power of review in these kinds of cases.
A medical certificate dated 5 June 1991 by Dr. E.D. states the
following in respect of the applicant's mental state after 13 November
1990:
"[The applicant] was transferred to department 86 on 13 November
1991 (sic!). [She] was at the time taken into compulsory care
pursuant to the 1966 Act. [She] exhibited a split mind and was
unstructured. Now and then she became psychotic and emotionally
isolated. No insight into her condition. The undersigned found
her to be in need of continued care pursuant to section 1 (a) and
(c) of the 1966 Act. When [the applicant] was anew examined on
29 November 1990, she presented paranoid tendencies and symptoms
on the border of psychosis. On this occasion she was also
strongly minimising her problems and was giving free reins to her
imagination."
On 27 June 1991 the father wrote to the Discharge Council
requesting information as to whether or not his daughter's provisional
discharge had been revoked on 6 September 1990. The Council replied
on 8 July 1991 that this was so.
A document dated 3 July 1991 and signed by the father indicates
that the passport authority decided to recall the applicant's passport
on the same day at the father's request. There is no indication of the
applicant having availed herself of her right, provided for in section
27 of the 1978 Passport Act, to appeal against this decision.
On 10 July 1991 the local tax authority (lokala skatte-
myndigheten), which is responsible for the register of persons
domiciled in Sweden, refused a request from the applicant to be struck
from this register. The authority stated that, as the applicant's
parents had informed it that the applicant did not have any valid
passport, it was not likely that she would be leaving Sweden.
On 19 July 1991 the applicant reiterated her request to be struck
from the register of persons domiciled in Sweden. The local tax
authority again refused to accede to the request and indicated that it
had sent the matter to the County Administrative Court (länsrätten).
There is no indication that the matter was pursued before the County
Administrative Court.
On 27 September 1991 the applicant's father appealed to the
Discharge Council against the redetention decision of 6 September 1990
and requested that his daughter be set free. The father did not
specify any reasons for his appeal. On 13 November 1991 the Discharge
Council rejected the appeal as it found, on the basis of, inter alia,
a medical certificate produced by Chief Physician G.J., that there were
no reasons to question the redetention decision. The Discharge Council
furthermore found established, on the basis of another medical
certificate produced by Dr. E.D., at the time Assistant Chief
Physician, that the applicant was mentally ill without being aware of
her illness and in need of compulsory care as she needed treatment and
could not take care of herself.
The father appealed to the Psychiatric Council invoking summarily
his "legal rights in Sweden". As a result of a change in the law on
1 January 1992, appeals against the Discharge Council's decisions were
henceforth to be examined by the administrative courts of appeal
(kammarrätterna). The father's appeal was, accordingly, transferred
to the Administrative Court of Appeal in Stockholm which rejected the
appeal on 16 January 1992. The judgment stated inter alia:
"The case-file shows that [the applicant] suffers from a serious
mental disorder and that this disorder and her other personal
conditions make is necessary for her to receive psychiatric care.
Her need of care must be considered such as not to leave any
alternative but full time care in a hospital. The medical
certificate submitted by Dr. E.D. to the Psychiatric Council
shows that [the applicant] experiences her illness but that she
does not have any real insight into her condition. It must
therefore be considered obvious that she does not have the
necessary capacity to express a well-founded opinion on her need
of care. In view of the above the requirements for continued
compulsory care continue to be met. In these circumstances, the
appeal shall be dismissed."
The applicant's father's request for leave to appeal to the
Supreme Administrative Court (Regeringsrätten) was refused by the Court
on 7 February 1992.
In the meantime, on 7 November 1991 the applicant was, in
accordance with her request, struck from the list of members of the
Church of Sweden.
On 25 November 1991 the applicant's parents applied to the County
Administrative Court in Malmö in order to obtain what they referred to
as an "emigration certificate". Such a document being unknown in
Swedish law, the court informed them that it could not help them in
this respect. On 25 November 1991, the applicant's father applied to
the Embassy of the USA in Sweden for political asylum on behalf of the
applicant stating that she was not allowed to decide herself about her
personal belongings. No reply appears to have been given to this
application.
On 14 and 15 May 1992, respectively, the applicant's father and
mother were struck from the register of persons domiciled in Sweden
(folkbokföringen) as they had informed the local tax authority that
they had emigrated, together with the applicant, to the USA for
humanitarian and religious reasons. The local tax authority did not,
however, strike the applicant from the register.
On 28 September 1992 the father applied to the National
Immigration Board (Statens Invandrarverk) to have his family relieved
of Swedish citizenship. By letter of 1 October 1992, the Board
informed the father that it was not possible to be relieved of one's
Swedish citizenship in order to become stateless; the only way to lose
one's Swedish citizenship was to become citizen of another country.
On 23 December 1992, the applicant's father applied on behalf of
his family to the Aliens Board (utlänningsnämnden - one of the
authorities deciding about the right of aliens to stay in Sweden under
the 1989 Aliens Act (utlänningslagen)), for refugee status in Sweden
awaiting their emigration to the USA.
An extract from the passport register issued on 19 March 1993
indicates that the applicant possesses a passport valid until
20 August 1997.
COMPLAINTS
1. The applicant alleges that her redetention on 6 September 1990
violated Article 5 para. 1 of the Convention in that her intended trip
to the USA could not be a lawful ground for revoking her provisional
discharge. She also alleges a violation of Article 5 para. 2 of the
Convention.
2. She also maintains that the refusal to allow her to go to the
USA violates Article 2 para. 2 of Protocol No. 4.
3. The applicant also alleges violations of Articles 3, 9 and 14
of the Convention and of Article 3 of Protocol No. 4.
THE LAW
1. The applicant alleges that her redetention on 6 September 1990
violated Article 5 para. 1 (Art. 5-1) of the Convention in that her
intended trip to the USA could not be a lawful ground for revoking her
provisional discharge. She also alleges a violation of Article 5 para.
2 (Art. 5-2). These provisions read in relevant parts:
"1. 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
... ;
...
2. Everyone who is arrested shall be informed promptly,
in a language which he understands, of the reasons for his
arrest and of any charge against him."
The Commission recalls at the outset that whether a person who
is provisionally discharged from mental hospital is still deprived of
his liberty or not will depend on the scope and nature of the
conditions imposed (see No. 12778/87, Dec. 9.12.88, D.R. 59, p. 158).
An examination of the conditions imposed in the present case does not
disclose that these were so severe as to amount to a deprivation of
liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the
Convention (cf. ibid.). The applicant's redetention on 6 September
1990 did, however, clearly amount to a deprivation of liberty which,
accordingly, had to meet the requirements of Article 5 para. 1
(Art. 5-1-e), in particular those of sub-para. (e).
In order for this redetention to be justified under sub-para. (e)
it had to constitute the "lawful" detention of a person of "unsound
mind" within the meaning of this provision. A mere breach of the
conditions attaching to the provisional release would not, under the
Convention, justify renewed detention under this provision. The
Commission first observes that there is nothing to suggest that the
redetention decision was not lawful under domestic law. On the basis
of the material submitted, the Commission, furthermore, finds no
indication of arbitrariness in the domestic authorities' assessment
that the applicant was a person of "unsound mind" at the time this
decision was taken (see, Eur. Court H.R., Winterwerp judgment of
24 October 1979, Series A No. 33, p. 17-18, para. 39). The Discharge
Council based its conclusion to this effect on, inter alia, a medical
certificate issued by the Chief Physician responsible for the
redetention decision and the Administrative Court of Appeal upheld,
after a renewed examination of the merits of the case, this conclusion;
the redetention decision was also examined by the Parliamentary
Ombudsman who did not, after having conducted an examination of his
own, find any reason for criticism. The Commission observes, in
addition, that the applicant had been subject to compulsory care on
account of her mental state without interruption since September 1989
and both the Discharge Council and the Administrative Court of Appeal
found, on the basis of a further medical certificate issued by another
doctor, that she was still at the time of the proceedings in need of
such care on account of her mental illness.
The applicant complains that her redetention was nevertheless
unjustified because it was based on her intention to leave Sweden to
go to the USA. The Commission finds, however, that this complaint
relates mainly to her rights under Article 2 of Protocol No. 4 (P4-2),
which appears as the lex specialis in this context, and will examine
it in the light of the requirements of that provision.
In view of the above, the Commission concludes that the
redetention of the applicant on 6 September 1990 does not disclose any
appearance of a violation of Article 5 para. 1 (Art. 5-1) of the
Convention.
As regards the applicant's complaint of a violation of Article 5
para. 2 (Art. 5-2), the Commission has found no indication to the
effect that the applicant was not adequately informed of the reasons
for her redetention. Accordingly, it finds no appearance of a
violation of this provision (cf Eur. Court H.R., Van der Leer judgment
of 21 February 1990, Series A No. 170, paras. 27-30).
It follows that this part of the application is inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant maintains, however, that the refusal to allow
her to go to the USA violates Article 2 of Protocol No. 4 (P4-2). This
provision reads :
"1. Everyone lawfully within the territory of a State
shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including
his own.
3. No restrictions shall be placed on the exercise of
these rights other than such as are in accordance with law
and are necessary in a democratic society in the interests
of national security or public safety, for the maintenance
of ordre public, for the prevention of crime, for the
protection of health or morals, or for the protection of
the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be
subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in
a democratic society."
The Commission recalls that pursuant to Article 26 (Art. 26) of
the Convention it is only competent to examine complaints after
domestic remedies have been exhausted. The present case raises a number
of issues in respect of this requirement.
The Commission notes first that the applicant's different
requests in this matter to the Chancellor of Justice, the Parliamentary
Ombudsman, the Swedish Government, the local tax authority, the County
Administrative Court and the Aliens Board cannot be considered as
relevant for the purpose of exhausting domestic remedies as none of
these authorities had the power to intervene and take any decision in
the case relating to her compulsory treatment in a mental hospital or
otherwise any powers of relevance for her right to leave the country
(see, as regards the Chancellor of Justice, No. 10371/83, dec. 6.3.85,
D.R. 42, p. 127 and, as regards the Parliamentary Ombudsman, No.
3893/68, dec. 16.3.70, Collection 33 p. 8). The Commission also notes
that there are certain uncertainties as regards the applicant's
possession of a valid passport. However, even if her passport would
have been cancelled at some stage, she has in any event not availed
herself of her right to appeal against any such decision.
Finally, the Commission notes that the applicant's father
challenged the lawfulness of the redetention decision of
6 September 1990 before the Discharge Council and the administrative
courts. However, he has not provided any material to show that he
brought the present complaint to the attention of the domestic
authorities. Instead, his appeal was worded in general terms. It is,
accordingly, doubtful whether it could be seen as encompassing the
applicant's complaint regarding her right to be free to leave her
country. The wording of the appeal also raises the question whether
it was really an appeal on behalf of the applicant. The Commission
does not, however, find it necessary to determine these questions as
it has in any event reached the conclusion that the applicant's
complaint on this point is manifestly ill-founded.
The Commission recalls that it has held that detention in
conformity with the requirements of Article 5 para. 1 (Art. 5-1) of a
convicted prisoner will imply a justified limitation of the prisoner's
right to leave the country where he is detained (see No. 10893/84, Dec.
2.12.85, D.R. 45 p. 198). Similar considerations may apply in the case
of a person who is detained on the ground of mental illness mainly on
account of his need to receive treatment and his inability to take care
of himself. The Commission does not, however, find it necessary to
resolve this question in the present case as it has in any event found
the applicant's redetention to be justified under para. 3 of Article 2
of Protocol No. 4 (P4-2-3).
The Commission has found above that this measure met the
requirements of Article 5 para. 1 (e) (Art. 5-1-e). In particular, it
has found that the redetention was "lawful" for the purposes of this
provision. Accordingly, it also finds that the measure was "in
accordance with law" for the purposes of Article 2 of Protocol
No. 4 (P4-2).
Furthermore, the Commission finds no reason to doubt that
redetention was necessary in a democratic society for the purpose of
protecting the applicant's health: the measure was decided in response
to information from the USA to the effect that the applicant intended
to go to that country for an unspecified period of time although no
form of adequate care or supervision had been organised there, either
by her, her father, her relatives there or someone else.
It follows that this part of the application is also manifestly
ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant also alleges violations of Articles 3, 9 and 14
of the Convention and of Article 3 of Protocol No. 4 (Art. 3, 9, 14,
P4-3).
The Commission notes that these complaints have been worded in
very general terms. After examining the material submitted it has
found nothing to substantiate them. As regards in particular the
applicant's right to religious freedom, the Commission notes that she
was allowed to leave the Church of Sweden upon simple notification of
her wish to do so (cf. Darby v. Sweden, Comm. Report 9.5.89, para. 45,
Eur. Court H.R., Series A No. 187, pp. 17-18).
It follows that the remaining complaints are also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy