P. v. SWITZERLAND



                     AS TO THE ADMISSIBILITY OF

                      Application No. 26955/95

                      by P.

                      against Switzerland

     The European Commission of Human Rights sitting in private on

20 May 1997, the following members being present:

           Mrs. G.H. THUNE, Acting President

           Mr.  S. TRECHSEL

           Mrs. J. LIDDY

           MM.  E. BUSUTTIL

                G. JÖRUNDSSON

                A.S. GÖZÜBÜYÜK

                A. WEITZEL

                J.-C. SOYER

                H. DANELIUS

                F. MARTINEZ

                C.L. ROZAKIS

                L. LOUCAIDES

                J.-C. GEUS

                M.A. NOWICKI

                I. CABRAL BARRETO

                B. CONFORTI

                N. BRATZA

                I. BÉKÉS

                J. MUCHA

                D. SVÁBY

                G. RESS

                A. PERENIC

                C. BÎRSAN

                P. LORENZEN

                K. HERNDL

                E. BIELIUNAS

                E.A. ALKEMA

                M. VILA AMIGÓ

           Mrs. M. HION

           MM.  R. NICOLINI

                A. ARABADJIEV

           Mr.  H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 17 March 1995 by

P. against Switzerland and registered on 3 April 1995 under file

No. 26955/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     14 February 1997 and the observations in reply submitted by the

     applicant association on 22 February 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant association is an association under Swiss law

aiming at assisting persons affected by compulsory psychiatric

treatment (Zwangspsychiatrie).  Before the Commission the applicant

association is represented by Mr E. Schönenberger, a lawyer practising

in Zürich.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

A.   Particular circumstances of the case

     On 25 May 1992 the applicant association filed a request with the

director of the Rheinau Psychiatric Clinic for distribution of a set

of documents to all detainees of the clinic, namely a letter

accompanied by a power of attorney, a brochure on the applicant

association, a copy of the Schönenberger and Durmaz v. Switzerland case

(Eur. Court HR, judgment of 20 June 1988, Series A no. 137) and a model

letter to the Psychiatric Court Commission at the Court of Appeal of

the Canton of Zürich.

     The letter to all detainees of the clinic, written on the

association's letter paper, was signed by Mr Schönenberger and

mentioned his title "lawyer".  It stated:

     "This letter is only of relevance to you if you are involuntarily in

     the Rheinau Clinic and if you want to be released.

     The (applicant association) is willing to help you obtain your liberty.

     You can read in the enclosed brochure what the association is and what

     it does.

     At this point we draw your attention to Article 5 para. 4 of the

     European Convention on Human Rights:

           '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.'

     So, if you do not want to live in the clinic, you can send the enclosed

     letter to the Psychiatric Court Commission, Court of Appeal, 8023

     Zürich.  This Commission will then have to examine whether you are

     rightly or wrongly in the institution.  At the same time you may give

     the power of attorney to the (applicant association) with the enclosed

     letter.  We will then support you with the organisation of your life

     outside the clinic and also represent you before the competent

     administrative and judicial authorities."

     The brochure was entitled "Psychex v. Compulsory Psychiatry" and

numbered 8 pages.  It contained three sections: one section was

entitled "Criticism of compulsory psychiatry from a medical point of

view" and was written by a doctor; a second section, written by

Mr Schönenberger, was entitled "Criticism of compulsory psychiatry from

a legal point of view"; a third section, entitled "Psychex", referred,

inter alia, to the allegedly catastrophic situation in psychiatric

institutions which disclosed the unlawfulness of detention and

compulsory treatment.  The brochure regarded as well-founded the

reproaches that the persons concerned were also tortured; it stated

that Psychex acted as representative of persons persecuted by

psychiatry.     The model letter to the Psychiatric Court Commission

at the Court of Appeal of the Canton of Zürich stated:

     "Based on Article 5 para. 4 of the Convention, I request

     examination of my detention, my immediate release and legal

     representation based on S. 397f para. 2 of the Civil Code,

     possibly on S. 4 of the Federal Constitution.  The conditions

     herefor transpire from the case-file."

     On 8 July 1992 the Rheinau Psychiatric Clinic refused

distribution of the letter and imposed costs of 200 Swiss Francs (CHF).

     The applicant association's appeal was dismissed by the Health

Department (Gesundheitsdirektion) of the Canton of Zürich on 29 July

1992.

     On 4 February 1993 the Bar Supervisory Commission (Aufsichts-

kommission über die Rechtsanwälte) of the Canton of Zürich fined the

applicant association's representative 1,000 CHF for breaching the

prohibition of obtrusive publicity (Verbot aufdringlicher Werbung)

stated in S. 7 para. 2 of the Lawyers' Act (Anwaltsgesetz; see below,

Relevant domestic law) of the Canton of Zürich.

     Meanwhile the applicant association filed a further appeal

against the decision of 29 July 1992 which was dismissed by the

Government (Regierungsrat) of the Canton of Zürich on 21 September

1994.  The Government found that the applicant association's circular

severely breached the statutory prohibition of obtrusive publicity for

lawyers' activities.  The Government also noted that the patients in

the clinic were comprehensively informed of their rights.  Thus, when

entering the clinic the duty doctor gave them a leaflet which

mentioned, inter alia, the possibility of applying to the Psychiatric

Court Commission in the event of compulsory hospitalisation.

     The applicant association's public law appeal (staatsrechtliche

Beschwerde), in which it also complained about the length of the

proceedings, was dismissed by the Federal Court (Bundesgericht) on

22 February 1995.  In its decision the Court found that it did not

necessarily transpire from S. 7 para. 2 of the Lawyers' Act that it

authorised or obliged the competent authorities to refuse mail which

contained obtrusive publicity.  This provision did not therefore

provide a sufficient legal basis for the interference in the applicant

association's rights under Articles 8 and 10 of the Convention, as

mentioned by the Government of the Canton of Zürich.

     Rather, in the Court's opinion the legal basis for the

interference at issue lay in S. 4 subpara. 1 (b) of the General House

Rules for Cantonal Hospitals (Allgemeine Hausordnung für die kantonalen

Krankenhäuser; see below, Relevant domestic law).  Moreover, the

prohibition was in the public interest and proportionate.  With

reference to the case of Vereinigung Demokratischer Soldaten

Österreichs and Gubi v. Austria (Eur. Court HR, judgment of 19 December

1994, Series A no. 302), the Federal Court further found that hospitals

could in principle refuse to distribute unaddressed publicity material

(Werbesendungen), sent from outside to the institution, if it disturbed

the running of the institution and the patients' peace.

B.   Relevant domestic law

     S. 4 of the Federal Constitution (Bundesverfassung) enshrines the

principle of equality before the law.

     According to S. 397f para. 2 of the Civil Code (Zivilgesetzbuch),

where it is decided in court proceedings to detain a person on account,

inter alia, of mental illness, the judge may if necessary appoint a

legal representative.

     According to S. 7 para. 2 of the Lawyers' Act (Anwaltsgesetz) of

the Canton of Zürich, a lawyer shall refrain from obtrusive

recommendation (aufdringliche Empfehlung).

     S. 4 subpara. 1 (b) of the General House Rules for Cantonal

Hospitals (Allgemeine Hausordnung für die kantonalen Krankenhäuser) of

the Canton of Zürich prohibits unauthorised publicity in hospitals for

political, commercial and idealistic purposes, for instance by means

of leaflets and notices (Anschläge).

COMPLAINTS

1.   The applicant association complains under Articles 8 and 10 of

the Convention that it was not allowed to send the letter and the

accompanying documents to the detainees of the Rheinau Psychiatric

Clinic.  In the applicant association's view, if somebody is informed

of his human rights, the Swiss authorities apparently regard this as

a disturbance of the running of an institution and of the patients'

peace.

2.   The applicant association further complains that it did not have

a "tribunal" within the meaning of Article 6 para. 1 of the Convention

at its disposal.

3.   Furthermore, the applicant association complains under Article 13

of the Convention of the length of the proceedings.  It is pointed out

that the proceedings lasted from 8 July 1992 until 22 February 1995.

The fact that the Federal Court refused to examine the complaint

breaches this provision.

4.   Finally, the applicant association complains of a breach of

Article 14 of the Convention in that letters may not be sent to persons

detained in an institution.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 17 March 1995 and registered

on 3 April 1995.

     On 25 November 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

14 February 1997.  The applicant association replied on 22 February

1997.

THE LAW

1.   The applicant association complains under Articles 8 and 10

(Art. 8, 10) of the Convention that it was not allowed to send a letter

and accompanying documents to the detainees of the Rheinau Psychiatric

Clinic.

     Article 8 (Art. 8) of the Convention states:

     "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."

     Article 10 (Art. 10) of the Convention states:

     "1.   Everyone has the right to freedom of expression.  This

     right shall include freedom to hold opinions and to receive and

     impart information and ideas without interference by public

     authority and regardless of frontiers.  This Article shall not

     prevent States from requiring the licensing of broadcasting,

     television or cinema enterprises.

     2.    The exercise of these freedoms, since it carries with it

     duties and responsibilities, may be subject to such formalities,

     conditions, restrictions or penalties as are prescribed by law

     and are necessary in a democratic society, in the interests of

     national security, territorial integrity or public safety, for

     the prevention of disorder or crime, for the protection of health

     or morals, for the protection of the reputation or rights of

     others, for preventing the disclosure of information received in

     confidence, or for maintaining the authority and impartiality of

     the judiciary."

     The Government contend that the interference with the applicant

association's rights under Article 10 (Art. 10) of the Convention was

"prescribed by law", as it was based on S. 4 of the General House Rules

for Cantonal Hospitals of the Canton of Zürich, and that it served the

purpose of "the protection of health (and) of the ... rights of others"

within the meaning of this provision.

     As regards the necessity of the measure the Government consider

that the circular letter addressed to the detainees of the clinic

reflected a certain objectivity, whereas the enclosed brochure bluntly

told all the addressees that their stay in the clinic was unlawful and

that they were systematically subjected to torture.  Moreover, the

applicant association's right to distribute documents was limited by

practical considerations.  Clearly the patients in the clinic, who at

times felt abandoned and had particular needs, were interested in

knowing their rights and possessing the address of an association which

would defend them.  Exhaustive information was therefore necessary.

Thus, in the Rheinau Clinic every new patient received a leaflet

explaining his or her rights as well as the possibilities of requesting

release, the procedure being extremely simple and no lawyer being

required.  Thus, in 1996 76 requests for a judicial review of detention

were filed; half were withdrawn during the proceedings; a quarter were

refused, and a final quarter were successful.  Every patient may

request the assistance of the social services of the Canton of Zürich.

     The Government further point out that the addressees of the

letter are often in a state of considerable confusion and not in a

position sufficiently to appreciate their situation and their acts.

It could thus be very damaging to their medical treatment and also to

their well-being in general if it was suggested that their detention

was unlawful. Indeed, it could even be extremely harmful if they were

told that their medical treatment amounted to torture, since any

relationship of confidence between the clinic staff and the patient

would be destroyed.

     The Government consider that the decision of the Bar Supervisory

Commission of 4 February 1993 is not the object of the present

application, though it cannot be completely disregarded either.

Subsidiarily, it is contended that in the documents concerned the

lawyer employed a completely inappropriate style in a particularly

sensitive area.

     The applicant association sees a clear breach in this case of

Articles 8 and 10 (Art. 8, 10) of the Convention as the director of the

Rheinau Clinic refused to distribute the three documents at issue.  Had

the director merely disagreed with the content of the brochure, he

could have prohibited its distribution, though not that of the other

documents.  In fact, the documents were intended to help the detainees.

The association points out that it has defended over 1,400 psychiatric

patients so far, and most persons who have been defended by the

association have been released.  In the applicant association's

opinion, the Government do not wish that the detainees should receive

an opinion which digresses from the official one.

     The Commission considers, in the light of the parties'

submissions, that the complaint raises complex issues of law and of

fact under the Convention, the determination of which should depend on

an examination of the merits of the application.  The Commission

concludes, therefore, that this part of the application is not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  No other grounds for declaring it

inadmissible have been established.

2.   Insofar as the applicant association complains that it did not

have a "tribunal" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention at its disposal, the Commission considers

that the proceedings at issue concerned neither "civil rights" nor any

"criminal charge" against the applicant association.  This part of the

application is therefore incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.   The applicant association complains of the length of the

proceedings.  It relies on Article 13 (Art. 13) of the Convention which

states:

     "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."

     Even assuming that an issue arises under this provision, the

Commission observes that the proceedings were conducted before four

authorities, i.e. the Rheinau Psychiatric Clinic, the Health Department

of the Canton of Zürich, the Government of the Canton of Zürich, and

the Federal Court.  It cannot therefore be said that, in view of the

length of the proceedings, the remedies at the applicant association's

disposal were not "effective" within the meaning of Article 13

(Art. 13) of the Convention.

4.   Insofar as the applicant association complains of a breach of

Article 14 (Art. 14) of the Convention in that letters may not be sent

to persons detained in an institution, the Commission finds no separate

issue under this provision.  The remainder of the application is

therefore 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 ADMISSIBLE, without prejudging the

     merits of the case, insofar as it relates to the applicant

     association's complaint under Articles 8 and 10 of the Convention

     that it was not allowed to send a letter and other documents; and

     DECLARES INADMISSIBLE the remainder of the application.

        H.C. KRÜGER                          G.H. THUNE

         Secretary                        Acting President

     to the Commission                    of the Commission

 

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