AS TO THE ADMISSIBILITY OF
Application No. 26900/95
by S. M.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 January 1998, the following members being present:
MM J.-C. GEUS, President
S. TRECHSEL
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 20 March 1995 by
S. M. against Switzerland and registered on 28 March 1995 under file
No. 26900/95;
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 Swiss citizen born in 1963, is a student
residing in Basel in Switzerland. Before the Commission she is
represented by Mr P. Joset, a lawyer practising in Basel.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Particular circumstances of the case
On Tuesday, 22 February 1994 the applicant was detained in the
psychiatric hospital clinic of the Canton of Basel-Stadt. She fled on
the same day, returning to the clinic on 25 February.
On Friday, 25 February 1994, the applicant filed a request with
the Basel-Stadt Psychiatric Commission for release from psychiatric
detention. The request was received by the Psychiatric Commission on
Monday, 28 February 1994. Still on Monday, 28 February, the
applicant's lawyer filed a further request for release. On 2 March
1994, a medical member of the Commission heard the applicant.
On Friday, 4 March 1994, the Psychiatric Commission dismissed the
request, referring, inter alia, to a report of the psychiatric hospital
clinic and to the opinion expressed by the medical member of the
Commission according to which the applicant was in need of psychiatric
treatment.
On 17 March 1994, the applicant filed an appeal against the
decision of 4 March, requesting, inter alia, her release from
detention.
The appeal reached the Court of Appeal of the Canton of Basel-
Stadt on 18 March which transferred it to the Psychiatric Commission
for observations. The latter were filed on 28 March 1994.
On 30 March 1994 the applicant was released from psychiatric
detention.
On the same day, 30 March, the Court of Appeal of the Canton of
Basel-Stadt acting as Administrative Court (hereinafter referred to as
Administrative Court) declared the applicant's appeal inadmissible (auf
den Rekurs wird nicht eingetreten). The Court referred to the
applicant's release from detention and found that she lacked a legal
interest in her appeal.
The applicant filed a public law appeal (staatsrechtliche
Beschwerde) and an appeal (Berufung) with the Federal Court
(Bundesgericht). In her public law appeal she complained that she had
not been duly heard. She relied on Articles 5 para. 4 and 13 of the
Convention. In her appeal she complained, inter alia, that her
detention had been unlawful.
On 6 June 1994 the Federal Court dismissed the applicant's
request for legal aid and imposed, in respect of her appeal, advance
court costs of 1,500 Swiss Francs (CHF). In its decision, the Court
noted in particular that an appeal only served to complain of decisions
withdrawing freedom, whereas in the present case the applicant was not
complaining of such a decision. As a result, the appeal appeared
inadmissible and, therefore, lacked prospects of success.
In respect of the decision of 6 June 1994 the applicant filed a
request for reconsideration (Wiedererwägung) which the Federal Court
dismissed on 26 September 1994. In its decision it explained, inter
alia, its case-law, namely that upon release from detention the person
concerned lacked legal interest. The Federal Court nevertheless noted
that aspects of the procedure of the Canton Basel-Stadt would not be
acceptable (nicht standhalten dürfte), for instance that the appeal had
first to be filed with the Psychiatric Commission which, in the opinion
of the Administrative Court, did not qualify as a judicial body.
Moreover, the person concerned had not been heard by the entire
Psychiatric Commission.
On 22 September 1994 the Federal Court dismissed the applicant's
public law appeal. In its decision it found that the Administrative
Court had given sufficient reasons for its decision of 30 March 1994.
It could also not be said that that Court had remained inactive. On
the other hand, an appeal, rather than the public law appeal, served
as the correct remedy to complain about the unlawfulness of detention.
Relevant domestic law
S. 3 of the Act on the Hospitalisation of Mentally Ill Persons
of the Canton of Basel-Stadt of 1961 (Gesetz über die Hospitalisierung
seelisch kranker Personen) concerns the Psychiatric Commission. The
members of the Commission, which decides on various matters of hospital
detention, are appointed by the Government (Regierungsrat) for a period
of four years. The Commission consists of two psychiatric medical
specialists, and one lawyer; the members may not be employed by the
services of psychiatric hospitals with closed wards.
COMPLAINTS
1. The applicant complains under Article 5 para. 4 of the Convention
that the Psychiatric Commission of the Canton of Basel-Stadt does not
qualify as a judicial body, as it is not democratically elected by the
people. Rather, there is a certain factual dependence on the
Government (Regierungsrat) which appoints the members.
2. The applicant further complains that the release proceedings in
her case were not conducted "speedily" within the meaning of Article
5 para. 4 of the Convention in that the Administrative Court only
decided after 32 days.
Moreover, by being obliged first to file an appeal with this
Commission, she did not have a simple and speedy procedure at her
disposal as required by Article 5 para. 4 of the Convention. Indeed,
it was unnecessary for the Administrative Court to transmit her appeal
to the Psychiatric Commission for further observations.
3. Under Article 6 para. 1 of the Convention the applicant complains
that on 6 June 1994 the Federal Court rejected her request for legal
aid as her appeal lacked prospects of success, although she was
indigent and although the Federal Court later found in its decision of
26 September 1994 that aspects of the procedure of the Canton Basel-
Stadt would not be acceptable.
4. The applicant complains under Article 13 of the Convention that
she did not have an effective remedy at her disposal to complain about
her detention in view of the fact that she had been released from
detention.
THE LAW
1. The applicant complains under Article 5 para. 4 (Art. 5-4) of the
Convention that the Psychiatric Commission of the Canton of Basel-Stadt
does not qualify as a judicial body, as its members are appointed by
the Government.
Article 5 para. 4 (Art. 5-4) of the Convention states:
"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."
According to the Convention organs' case-law, Article 5 para. 4
(Art. 5-4) of the Convention does not exclude that a request for
release from detention must first be filed with an administrative body,
as long as thereafter a court meeting the requirements of Article 5
para. 4 (Art. 5-4) of the Convention is able to examine the request
(see mutatis mutandis, Eur. Court HR, Sanchez-Reisse v. Switzerland
judgment of 21 October 1986, Series A no. 107, p. 17, para. 45).
In the present case, therefore, it is unnecessary to examine
whether the Psychiatric Commission met the conditions for a court
within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention,
since the applicant was able thereafter to file an appeal with the
Administrative Court. The applicant has not called in question the
judicial character of this Court.
This part of the application is, therefore, manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that the release proceedings in
her case were not decided "speedily" within the meaning of Article 5
para. 4 (Art. 5-4) of the Convention in that the Administrative Court
only decided after 32 days.
According to the Convention organs' case-law, in guaranteeing to
persons arrested or detained a right to institute proceedings, Article
5 para. 4 (Art. 5-4) of the Convention also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision terminating their deprivation of liberty if it proves unlawful
(see Eur. Court HR, Van der Leer v. Netherlands judgment of 21 February
1990, Series A no. 170-A, p. 14, para. 35).
In the present case the applicant filed a request for release on
Friday, 25 February 1994 when she was placed in psychiatric detention.
The request was received by the Psychiatric Commission on Monday,
28 February 1994. The applicant was heard by a medical member of the
Commission on 2 March 1994. The request was dismissed on Friday,
4 March 1994.
Thereafter, the applicant waited for thirteen days until on
17 March 1994 she filed an appeal. The latter, after having been
transferred to the Psychiatric Commission for observations, was
rejected by the Administrative Court on 30 March 1994 as the applicant
had been released from detention on the same day.
Thus, the Psychiatric Commission decided within seven days of the
applicant's request for release. She was released thirteen days after
having filed her appeal. Moreover, it does not transpire that the
domestic authorities remained inactive during this period. The
Commission furthermore notes that the applicant waited twelve days
until she filed her appeal.
As a result, the Commission finds that these proceedings did not
exceed the notion of "speediness" within the meaning of Article 5
para. 4 (Art. 5-4) of the Convention.
This part of the application is, therefore, also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that on 6 June 1994 the Federal Court rejected her request
for legal aid as her appeal lacked prospects of success, although she
was indigent and although the Federal Court later found in its decision
of 26 September 1994 that aspects of the procedure of the Canton Basel-
Stadt would not be acceptable.
The Commission notes that the proceedings before the Federal
Court were directed against the decision of the Administrative Court
of 30 March 1994 which declared inadmissible the applicant's appeal as
she lacked a legal interest therein.
Thus, the proceedings before the Federal Court concerned a
decision declaring the applicant's appeal inadmissible. The
proceedings therefore concerned neither "the determination of (the
applicant's) civil rights and obligations (nor) of any criminal charge
against (her)" within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention.
As a result, this part of the application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant complains under Article 13 (Art. 13) of the
Convention that she did not have an effective remedy at her disposal
to complain about her detention in view of the fact that she had been
released from detention.
In the present case, the Commission has just found that the
complaints under Article 5 para. 4 (Art. 5-4) of the Convention are
manifestly ill-founded. The Commission finds that the applicant's
submissions in this respect do not raise any prima facie issue under
the Convention. As a result, no arguable claim can be maintained in
respect of a violation of this provision.
It follows that the remainder of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy