AS TO THE ADMISSIBILITY OF
Application No. 22504/93
by Asbjörn SKJOLDAGER
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
Mr. H. DANELIUS
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, 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 24 May 1993 by
Asbjörn Skjoldager against Sweden and registered on 23 August 1993
under file No. 22504/93;
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, a Swedish citizen, is a psychologist born in 1948
and resident at Karlshamn. He states that he represents three disabled
patients, Tommy Varenhed as well as two persons named Lars and
Ann-Kristin, who were staying at the Lindemo nursing home at Asarum
until the end of 1994.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In November 1991 the applicant, working as a psychologist of the
Authority for the Care of Disabled Persons (handikappomsorgen) of the
County Council (landstinget) of Blekinge, carried out an inspection of
the Lindemo nursing home. He concluded that a number of patients were
being locked up in their rooms without permission. In certain sections
of the nursing home the front doors of the buildings were also locked.
The applicant brought his findings to the attention of the manager of
the nursing home.
On 10 February 1992 the applicant was temporarily suspended from
his post.
On 31 March 1992 the National Board of Health and Welfare
(socialstyrelsen) carried out an inspection of the Lindemo nursing
home. It found that in one section ("Boken 2") patients could only open
the front door of the building with assistance from staff members in
possession of the necessary key.
On 1 April 1992 the County Council ordered the applicant to
undergo a psychiatric examination prior to considering whether to
reinstate him in office.
The applicant refused to undergo the examination.
At the request of the County Council the National Board of Health
and Welfare then instituted proceedings against the applicant before
the Disciplinary Board of Health Care (hälso- och sjukvårdens
ansvarsnämnd). The National Board of Health and Welfare requested that
his certification as a psychologist be temporarily withdrawn due to,
among other things, alleged cooperation difficulties.
On 10 April 1992 the National Board of Health and Welfare
requested the County Council to indicate when the locking-up of
patients at the Lindemo nursing home would end.
On 4 June 1992 the County Council replied that patients were no
longer locked up, as new locks had been installed. These locks had a
protective cap, thus enabling everyone to open them.
In a letter to the applicant of 11 June 1992 the National Board
of Health and Welfare stated that it had concluded its investigation
at the Lindemo nursing home. It had found that patients were no longer
being locked up and, accordingly, refrained from taking any further
action. In October 1992 the applicant complained about the locking-up
to the Disciplinary Board of Health Care. No action was allegedly taken
by the Board.
In response to a further petition by the applicant relating to
the manner in which patients in the Lindemo nursing home were allegedly
being locked up, the Government (Ministry of Social Welfare) on
18 January 1993 referred to the advice issued by the National Board on
protective measures to be taken in the treatment of patients suffering
from dementia (socialstyrelsens allmänna råd, socialstyrelsens
författningssamling 1992:17). The Government pointed out that according
to the advice the locks shall be such that the patients themselves can
unlock a door.
On 22 January 1993 the Disciplinary Board of Health Care rejected
the request of the National Board of Health and Welfare that the
applicant's certification as a psychologist be revoked.
On 17 January 1994 the National Board of Health and Welfare
refused to disclose to the applicant the names of the patients staying
at the Lindemo nursing home.
The Lindemo nursing home was closed at the end of 1994.
COMPLAINTS
The applicant complains that the locks which were installed on
the doors of the patients' rooms in the Lindemo nursing home in 1992
could not be opened by a disabled person due to their protective caps.
Given that no compulsory care orders had been issued in regard to the
patients, at least the three patients referred to by the applicant were
de facto detained in violation of Article 5 para. 1 of the Convention.
The detention allegedly also endangered the patients' health. The
applicant also invokes Article 14 of the Convention and Article 2 of
Protocol No. 4.
The applicant submits that the three patients referred to by him
are unable to lodge an application on their own and that the
authorities have refused to disclose information enabling him fully
to identify all of them and to procure powers of attorney either from
the patients themselves or from their possible guardians, showing that
he is entitled to represent them before the Commission. He nevertheless
considers that, although he is temporarily suspended from his post as
a psychologist of the County Council of Blekinge, he remains ethically
and professionally responsible for the care of his patients. He
therefore considers himself competent to bring an application on their
behalf.
THE LAW
The applicant complains that the nature of the locks which were
installed on the doors of the patients' rooms in the Lindemo nursing
home in 1992 resulted in the de facto detention of at least the three
patients referred to by him. Their detention was allegedly in violation
of Article 5 para. 1 (Art. 5-1) of the Convention and also endangered
their health. The applicant also invokes Article 14 (Art. 14) of the
Convention and Article 2 of Protocol No. 4 (P4-2).The applicant
submits that the three patients referred to by him are unable to lodge
an application on their own. He therefore considers himself competent
to bring an application on their behalf.
The Commission recalls that under Article 25 para. 1
(Art. 25-1) of the Convention it may receive petitions from any person,
non-governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties of the
rights set forth in this Convention, provided that the High Contracting
Party against which the complaint has been lodged has declared that it
recognises the competence of the Commission to receive such petitions.
Under Article 27 para. 1 (a) (Art. 27-1-a) of the Convention the
Commission shall furthermore not deal with any petition submitted under
Article 25 (Art. 25) which is anonymous.
The Commission observes that the applicant does not claim that
he himself is the direct victim of a violation of his Convention
rights. He has lodged the application on behalf of patients in a
nursing home which he inspected in 1991 in his capacity as a
psychologist of the Authority for the Care of Disabled Persons of the
competent County Council. He submits that none of the patients are able
to lodge an application on their own and has fully named one of them.
He has been unable, however, to procure powers of attorney either from
any of the patients themselves or from any of their possible guardians,
showing that he is entitled to represent the patients before the
Commission.
The Commission recalls that, in principle, a person who does not
have the right to represent a person under domestic law may
nevertheless, in certain circumstances, represent this person before
the Commission (cf., e.g., Eur. Court H.R., Nielsen judgment of
28 November 1988, Series A no. 144). However, the representative should
normally submit evidence showing that he is empowered to appear before
the Convention organs on an applicant's behalf. If this condition is
not met, the Commission can only consider the application in so far as
the representative himself claims to be a victim, either in his direct
or indirect capacity (cf. No. 8612/79, Dec. 10.5.79, D.R. 15 pp. 259,
263).
The Commission furthermore recalls that in exceptional
circumstances it has accepted that a third party can be accepted as an
"indirect victim" at least in the initial stage of the Commission
proceedings, for instance if he has a valid personal interest in the
welfare of the person on whose behalf he has lodged the application
(No. 7011/75, Dec. 3.10.75, D.R. 4 pp. 215, 232). A close connection
is required, however, between the indirect and the direct victim as
well as between them and the act complained of (cf. No. 8416/79,
Dec. 13.5.80, D.R. 19 pp. 244, 248).
The Commission assumes that the patients named by the applicant
could themselves claim status as direct victims under Article 25 para.
1 (Art. 25-1) of the Convention. It notes that at least one of them has
been identified by the applicant. It finds no evidence, however,
showing that the applicant has been authorised by any of the patients
or their possible guardians to act on the patients' behalf in the
Convention proceedings. Nor has it been shown that the patients were
unable to lodge an application in their own names, for instance by
authorising the applicant to act as their representative. The
Commission can therefore only consider the application in so far as the
applicant claims to be an indirect victim of the situation complained
of.
The Commission notes that as a psychologist for the Authority for
the Care of Disabled Persons the applicant carried out an inspection
of the nursing home in 1991, that is prior to the installation of the
new locks which he complains about. There is no indication that he was
at any time entrusted with the everyday care of the patients whom he
has referred to in his application. In these circumstances the
Commission cannot find a sufficiently close connection between him and
those patients. The present case can therefore be distinguished from
Application No. 7011/75 referred to above. Accordingly, the applicant
cannot be accepted as an indirect victim of the situation complained
of.
The Commission concludes that the applicant has failed to meet
the requirements under Article 25 para. 1 (Art. 25-1) of the
Convention. It follows that the application is incompatible ratione
personae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President
the Second Chamber of the Second Chamber
(M.-T. SCHOEPFER) (G. H. THUNE)
Full & Egal Universal Law Academy