FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 28808/95
by Tapio VALLE
against Finland
The European Court of Human Rights (Fourth Section), sitting on 16 March 2000 as a Chamber composed of
MrG. Ress, President,
MrM. Pellonpää,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić,
MrJ. Hedigan,
MrsS. Botoucharova, judges,
andMrV. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 22 December 1993 and registered on 2 October 1995,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Finnish national, born in 1965 and currently detained in a mental hospital in Vaasa, Finland. Before the Court he is represented by Mr Pekka Reinikainen, a lawyer of the Association for Psychiatric Health (Helmi r.y.) based in Helsinki, Finland.
A.Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was diagnosed as mentally ill for the first time in 1985. In 1986 the applicant was found guilty of rape but not convicted as he was found to have committed the crime in a state of diminished responsibility. In 1987 the National Board of Health (lääkintöhallitus, medicinalstyrelsen) found that he was in need of compulsory psychiatric care. Such care was consistently extended to him after regular reviews of its justification.
The applicant was initially detained at the Hesperia Hospital in Helsinki. On 22 May 1990, the Hesperia Hospital proposed his transfer to a State mental hospital (valtion mielisairaala, statens sinnessjukhus). This proposal failed because of the limited number of places available in the State mental hospital.
In December 1991 the hospital had plans to place the applicant in open care under supervision for six months. At that same time, the applicant failed to return to the hospital from his leave and escaped to Spain. He was repatriated through the offices of the consul in January 1992.
In 1992 the applicant was granted leave on several occasions. In the summer of 1992 he began to question whether his compulsory care was still justified.
According to the Government, in March 1992 the applicant made illegal threats against two girls of minor age (13 and 14 years of age). Charges of these crimes were brought against the applicant before the Helsinki District Court (raastuvanoikeus, rådstuvurätt) in May 1996. This was also when the physicians treating the applicant found out, for the first time, about the offences.
In May 1992 the applicant was isolated in the Hesperia Hospital several times because of sexually provocative uncontrolled behaviour.
In October 1992 the applicant escaped to Spain for a second time and again was repatriated through the offices of the consul.
On 30 October 1992, the applicant was transferred to the Old Vaasa Hospital in Vaasa, which is a State mental hospital practising a strict discipline. The applicant alleged that the reason for his transfer was his rape offence in 1986.
On 11 January 1994, the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) inspected the hospital and met the applicant. The Deputy Parliament Ombudsman found no reason to take any measures concerning the patients' rights to use the telephone.
The applicant's need for compulsory psychiatric care was reassessed regularly. On 17 March 1994 the chief physician of the hospital decided once again that the applicant should remain under compulsory psychiatric care, as he was still regarded as mentally ill. According to the chief physician's decision, it would significantly endanger the health and security both of the applicant and those of others if such care was not provided. Other forms of psychiatric care had proven to be insufficient. The applicant did not appeal, but the chief physician's decision was sent to the National Board of Medicolegal Affairs (terveydenhuollon oikeusturvakeskus, rättskyddscentralen för hälsovården) for confirmation. Such a confirmation took place on 13 April 1994 in pursuance of Sections 8 and 17(2) of the 1990 Mental Health Act (mielenterveyslaki, mentalvårdslag 1116/90).
In May 1994 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the Board's decision, arguing that he was no longer in need of compulsory psychiatric care. He also considered that, as from October 1992, compulsory care had been unnecessary in his case and therefore unlawful. Finally, he requested the court to examine the lawfulness of the measures taken by hospital staff, which had further restricted his liberty. He referred, inter alia, to restrictions relating both to visits to the Old Vaasa Hospital and to his telephone calls.
On 10 June and 30 August 1994 the applicant's legal counsel, Mr Reinikainen, tried to call the applicant at the hospital but his phone calls were not connected as the hospital had not been provided with a letter of authorisation for Mr Reinikainen by the applicant. It does not appear from the file whether the applicant was told about the phone calls or whether he was asked for an oral authorisation at the time.
In June 1994 the applicant complained to the Parliamentary Ombudsman about his detention and its alleged unlawfulness. On 31 October 1994 the Parliamentary Ombudsman rejected the applicant's complaint, stating that it was up to the Supreme Administrative Court to deal with the case.
In its decision of 22 March 1995 the Supreme Administrative Court dismissed without an examination of its merits the applicant's request for a reassessment of the justification of his compulsory care as from October 1992. The court considered that this matter could not be examined in connection with the applicant's appeal. It furthermore found that it lacked competence to examine whether the measures further restricting his liberty had been lawful. Finally, the court upheld the Board's decision.
The applicant complained to the Parliamentary Ombudsman about the Supreme Administrative Court's decision and about the lack of an effective remedy in respect of a decision restricting the applicant's right of self-determination while in compulsory psychiatric care.
The continuation of the applicant's treatment has been repeatedly decided in the same way, the treatment lasting about six months each time. According to a decision rendered by the chief physician on 5 September 1995, the applicant's mental illness was not considered any more to endanger his own safety seriously.
On 16 January 1998 the applicant's need for compulsory psychiatric care was, once again, reassessed. The chief physician decided to continue that care for another six months. The applicant appealed to the Vaasa County Administrative Court (lääninoikeus, länsrätt) which, on 7 April 1998, after holding an oral hearing, upheld the chief physician's decision and rejected the applicant's appeal. The applicant did not appeal to the Supreme Administrative Court as he did not, in the light of his previous experience when his appeal had been rejected by the Supreme Administrative Court on 22 March 1995, regard recourse to the Supreme Administrative Court as an effective remedy.
On 16 June 1998 the Deputy Parliamentary Ombudsman found that the applicant had been treated in the Hesperia Hospital (from 2 July 1987 until 30 October 1992) and in the Old Vaasa Hospital since 30 October 1992 for schizophrenia. According to her decision, the applicant's treatment had been difficult due to his total lack of awareness of his illness. According to the comments received by the Deputy Parliamentary Ombudsman from the Old Vaasa Hospital and the National Board of Medicolegal Affairs, that treatment had been carried out by affording the applicant as much freedom as possible, taking into account his serious psychiatric illness. Contacts with the applicant's relatives had been encouraged. However, it had been found that the applicant needed to be guarded all the time. Due to his unawareness of his illness, the applicant had felt unable to accept any treatment. According to a comment given by Doctor S.P. on 20 March 1997, the hospital staff had been ordered not to connect Mr Reinikainen's phone calls to the applicant. These phone calls were, according to the order, to be transmitted to the chief physician, Doctor L.S. The reasoning for the order could not be found from the above comment. Accordingly, Mr Reinikainen's phone calls to the applicant on 10 June and 30 August 1994 had been connected to the chief physician instead of the applicant.
The Deputy Parliamentary Ombudsman found in her decision that, as regards the continuation of the applicant's compulsory psychiatric treatment, the Supreme Administrative Court had decided the matter within its margin of appreciation and in accordance with the law. Concerning the restrictions on the applicant's right to receive phone calls, the Deputy Parliamentary Ombudsman found as follows:
(translation from Finnish)
“According to the documents, the chief physician of the Old Vaasa Hospital, Doctor L.S., restricted the applicant's telephone contacts on 10 June and 30 August 1994.
Restrictions on the right of self-determination are regulated by Section 28 of the Mental Health Act. The provision applies to psychiatric hospital care and is, therefore, applicable to the treatment given at a state mental hospital.
According to Section 28, subsection 1, of the Mental Health Act, the right of self-determination of a person admitted for observation or ordered to undergo treatment may be limited, and coercive measures may be taken, but only to the extent necessary for the treatment of his illness or to ensure his safety or that of others.
...
According to Article 8 of the [European] Convention [on the Human Rights], communication by telephone is included in the correspondence within the meaning of that provision. Accordingly, the relevant provision of the Mental Health Act should, in my opinion, be interpreted widely so as to cover also telephone communications by persons in the above-mentioned special circumstances, when they have been admitted for observation or ordered to undergo treatment. Therefore, such communication may not be restricted.
I, therefore, state as my opinion that [L.S.], the chief physician of the Old Vaasa Hospital at the time in question, acted wrongly by restricting the applicant's lawyer's contacts to the applicant by telephone on 10 June and 30 August 1994. L.S. has stated in her comments that the restriction decisions were based on considerations relating to the applicant's treatment. However, L.S. has not registered these considerations in the applicant's patient records, which, in my opinion, would have been necessary.
According to the documents, I have not found any other errors or unlawful acts in the applicant's treatment at the Old Vaasa hospital.”
B.Relevant domestic law (as in force at the relevant time)
According to Section 6, subsection 1, of the Constitution Act (Suomen Hallitusmuoto, Regeringsformen för Finland), everyone shall have the right to life and personal liberty, physical integrity and security of person. According to Section 6, subsection 3, of the Constitution Act, there shall be no interference with personal integrity, and no one shall be deprived of his liberty in an arbitrary manner and without grounds prescribed by an act of Parliament. All penalties entailing deprivation of liberty shall be imposed by a court of law, and the lawfulness of other forms of deprivation of liberty may be submitted to judicial review.
According to Section 8, subsection 1, of the Mental Health Act, a person can be ordered to undergo treatment in a psychiatric hospital against his will only when all the following three conditions are met:
the patient has been diagnosed as mentally ill; the patient needs treatment for a mental illness which, if not treated, would become considerably worse or severely endanger the health or safety of the patient or the health or safety of others; and all other mental health services are inapplicable or inadequate.
According to Sections 9 and 10 of the Mental Health Act, a decision to order a patient to undergo treatment is preceded by the following steps:
drawing up a referral for observation;admission for observation; andstatement on observation.
The decision on ordering a person under observation to treatment against one's will is made by the chief physician in charge of psychiatric care or, if he is disqualified or prevented, by another physician appointed to the task. The decision shall be presented no later than four days after the day of the patient's admission for observation. The decision shall be based on the referral for observation, the statement on observation and the case history.
According to Section 23 of the Mental Health Act, the statement on observation cannot be given by a physician who has drawn up the referral for observation. The physician deciding on ordering a patient to undergo treatment cannot be the same physician who has drawn up the referral for observation or given the statement on observation.
The decision shall be made in writing and it shall state, with reasons, whether or not the conditions for ordering the patient to undergo treatment against his will are met. The patient shall be informed of the decision without delay (Section 11, subsection 2 of the Mental Health Act).
According to Section 12, subsection 1, of the Mental Health Act, a person ordered to undergo treatment may be detained for treatment against his will for a maximum of three months. The treatment may be continued only if a new decision on the matter is given before the end of this period. A statement on observation must be produced if, before the end of this period, it seems probable that treatment will have to be extended beyond this date, but the patient does not agree with this. A decision on whether the treatment should be continued or discontinued must be made in writing and the patient must be informed of it without delay. The decision to continue the treatment must be submitted immediately for approval of the County Administrative Court.
On the basis of a decision to continue the treatment the patient may be detained for treatment against his will for a maximum of six months. When the continuation of the treatment after this is considered necessary, the conditions for ordering the patient to undergo treatment shall be assessed anew (Section 12, subsection 2, of the Mental Health Act).
If it appears during the treatment of a person ordered to undergo treatment against his will that the conditions for such treatment are no longer met, the treatment must be discontinued immediately and the patient must be discharged if the patient so wishes (Section 14 of the Mental Health Act).
The conditions for ordering patients accused of crime to undergo hospital treatment are the same as for other patients. If a court orders a person accused of a crime to undergo a mental examination, the person accused of a crime may be admitted to a hospital for mental examination and detained there against his will (Section 15 of the Mental Health Act).
According to Section 16 of the Mental Health Act, the mental examination shall be completed and a statement on the mental condition of the person accused of a crime shall be submitted to the National Board of Medicolegal Affairs not later than two months after the start of the mental examination. Having received the said statement, the National Board of Medicolegal Affairs shall issue its own statement concerning the mental condition of the person accused of a crime to the court.
If the conditions for ordering a person accused of a crime to undergo treatment against his will are met on completion of the mental examination, the National Board of Medicolegal Affairs shall order the person to undergo such treatment (Section 17 of the Mental Health Act). The person may be detained for treatment against his will on the basis of a decision of the National Board of Medicolegal Affairs for the maximum of six months. Before the end of the period of six months, a statement on observation shall be made indicating whether or not the conditions for referring the person for treatment against one's will are still met. The patient must be informed of the decision made by physician without delay and the decision must immediately be submitted for confirmation by the National Board of Medicolegal Affairs.
Also the decision to continue treatment is valid for a maximum of six months. The treatment must be discontinued if the conditions for it cease to exist (Section 17, subsection 3 of the Mental Health Act).
On the recommendation of a hospital in a hospital district, persons who are mentally ill or suffering from other mental disorders and whose treatment is particularly dangerous or difficult can be admitted to a state mental hospital. Decision on admitting a person accused of a crime or a person whose sentence has been waived because of his mental condition to a state mental hospital are made by the National Board of Medicolegal Affairs. Also a decision on discontinuing the treatment of such a person shall be submitted to the National Board of Medicolegal Affairs for confirmation.
Appeal may be lodged against the decision of a hospital physician to order a person to undergo treatment or continue treatment against one's will. Appeal may also be made against the decision by the National Board of Medicolegal Affairs to order a person, whose sentence has been waived, to be examined in a hospital.
Appeal against a decision of a physician of a mental hospital on taking a person to hospital or keeping him there shall be made to the County Administrative Court within 14 days. Decision of the National Board of Medicolegal Affairs and the County Administrative Court shall be appealed to the Supreme Administrative Court within 30 days (Section 24 of the Mental Health Act).
According to Section 11(3) of the Act on County Administrative Courts (laki lääninoikeuksista, lag om länsrätt), two professional judges and one expert of medicine shall participate in the consideration and ruling of a case relating to an order on treatment or continuation of treatment irrespective of the will of the patient referred to in the Mental Health Act.
According to Section 28, subsection 1, of the Mental Health Act, the right of self-determination of a person admitted for observation or ordered to undergo treatment may be limited, and coercive measures may be taken, but only to the extent necessary for the treatment of his illness or to ensure his safety or that of others.
According to Section 28, subsection 2, the chief physician of the hospital or another physician in charge has the right to examine a letter or other consignment addressed to a person who has been taken to undergo treatment against his will. A condition for this is that it is considered necessary for the maintenance of order or safety, or if there are reasonable grounds to suspect that the consignment contains intoxicants or drugs.
An administrative decision and measures taken by virtue of the decision as well as factual measure of treatment may be subject to administrative appeal to a supervising authority. The appeal may result, for example, to disciplinary measures or criminal charges.
A patient who is not satisfied with the health care or medical care and the related treatment received by the patient has the right to make a complaint on the matter to the director responsible for health care unit in question. Decision on the complaint has to be given in a reasonable time from making of the complaint. Making a complaint does not restrict the right of a patient to appeal to the authorities controlling health care or medical care about the care or related treatment received by the patient.
The supervision and guidance of mental health care and health care professionals at regional level rests with the County Governments (lääninhallitus, länsstyrelsen) which in practice deal with the main part of the procedural complaints concerning health care.
Complaints on the activities of health care professionals can be addressed also to the Parliamentary Ombudsman and to the Chancellor of Justice (oikeuskansleri, justitiekansler).
COMPLAINTS
1.The applicant complains that he has been deprived of his liberty contrary to Article 5 § 1(e) of the Convention as, at least as from October 1992, the grounds for initially ordering his compulsory psychiatric care have no longer been relevant and his continued care no longer strictly necessitated by his mental condition. He also alleges that his transfer to the Old Vaasa Hospital in 1992 was a punishment for his violation of the rules regarding leave from the Hesperia Hospital.
2.The applicant also complains, under Article 13 of the Convention, that he has been denied an effective remedy against the allegedly unlawful measures taken by the staff at the Old Vaasa Hospital which have further restricted his liberty. He submits, in particular, that he has been prohibited from telephoning, among others, his counsel and that telephone calls from his relatives and counsel are subject to permission by the chief physician. He argues that the measures have not been strictly necessitated by his condition. The applicant does not invoke any Article of the Convention in this respect.
3.The applicant finally complains that he has not had an effective remedy against the 1992 decision to transfer him to the Old Vaasa Hospital.
PROCEDURE
The application was introduced on 25 December 1993 before the European Commission on Human Rights and registered on 2 October 1995.
On 27 November 1996 the Commission decided to communicate the application to the respondent Government.
The Government's written observations were submitted on 13 February 1997. The applicant replied on 14 April 1997.
On 15 April 1997 the Commission granted the applicant legal aid.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
1.The applicant complains that he has been deprived of his liberty contrary to Article 5 § 1(e) of the Convention as, at least from October 1992, the grounds for initially ordering his compulsory psychiatric care no longer existed and as continued care was no longer strictly necessitated by his mental condition. He also alleges that his transfer to the Old Vaasa Hospital in 1992 was a punishment for his violation of the rules regarding leave from the Hesperia Hospital.
Article 5 § 1(e) reads as follows:
“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, ... “
The applicant points out that, according to the Mental Health Act, a person can be ordered to undergo treatment in a psychiatric hospital against his will only when all other mental health services are inapplicable or inadequate. All the measures taken against the patient have to be absolutely necessary and prescribed by law. The applicant has been deprived of his liberty for a very long period of time. At the beginning the deprivation may have been justified but the treatment should have been discontinued as soon as the conditions for it were no longer met. These conditions were no more met in 1992, when the applicant was allowed a significant number of home leaves. In his opinion he was deprived of his liberty in 1992 as a punishment for not returning from his leave. The applicant finds the alleged punishment illegal as it was not in accordance with a procedure prescribed by law. The reason for his transfer to the State mental hospital was officially said to be the crime he had committed in 1986. The applicant does not find that to be the real reason. If he had been sentenced to imprisonment for that crime, he would have been imprisoned for a maximum of one year. Now he has been deprived of his liberty since July 1987, that is, for over twelve years, and the deprivation continues without legal grounds.
The applicant does not contest the lawfulness of his detention, in the light of the above requirements, during the first phase of his detention. He accepts that on the basis of medical evidence available at his trial, his committal to a mental hospital was justified. He considers, however, that his detention has ceased to be justified since he has not been of unsound mind at least as from October 1992.
The respondent Government submit that a detention is arbitrary if it is not in conformity with the purpose of the particular subparagraph concerned or with Article 5 generally. However, it is in the first place for the national authorities to interpret and apply the domestic law and to evaluate the evidence adduced before them in a particular case. According to an observation made by a qualified physician other than the chief physician treating the applicant, the applicant is schizophrenic; lack of treatment would make his illness worse as he is incapable of understanding the importance of medication and the nature of his illness; and his treatment is particularly difficult because of his inability to understand his state of illness. The chief physician's order, and thus also the subsequent decisions, were based on the applicant's medical case history. The Government considers that it has been reliably established by the chief physician, the National Board of Medicolegal Affairs and, finally, the Supreme Administrative Court that the applicant was, at the time of their decisions, a person of unsound mind as required by Section 8 of the Mental Health Act. They found that the applicant, at that time, was and still is in need of treatment because of his mental illness to such an extent that a lack of treatment would seriously endanger his health and safety and those of others, and that other mental services would be inadequate. The Government rely on the view of the National Board of Medicolegal Affairs which, notwithstanding an improvement in the applicant's mental health, considered that the applicant did not fulfil the conditions set by the law for release. Accordingly, his detention has been justified throughout the relevant period.
The Government also submit that, as regards the character of the applicant's deprivation of liberty as a mental patient, there is no conceptual difference between the Hesperia Hospital and the Old Vaasa Hospital. The applicant was still, after his transfer to the latter hospital, detained at an ordinary hospital in the sense of Article 5 § 1(e) of the Convention. According to Section 7, subsection 2, of the Mental Health Act, the provisions of that Act shall be applied to the extent appropriate to the treatment provided in the State mental hospitals, prison mental hospitals and the psychiatric wards of other institutions for prisoners. The fact that the applicant, as a patient accused of a crime, was treated at the Hesperia Hospital in Helsinki was a rare exception to the rule, as no mental examinations were carried out there and patients accused of crime were usually not taken there. The reason for his transfer to the State mental hospital was that there was no progress in his treatment at the local hospital. The State mental hospitals are responsible for providing services concerning examinations and treatment relating to forensic psychiatry for the entire country. Special expertise concerning long-term treatment of patients who are dangerous or difficult to treat is concentrated in these hospitals. The State mental hospitals are not institutions particularly restrictive of liberty of patients, as is alleged in the complaint. The State mental hospitals are subject to the same provisions of the Mental Health Act as are other mental health hospitals.
In agreement with the parties, the Court finds that Article 5 § 1(e) of the Convention applies to the dispute in the present case.
The Court recalls, in accordance with its constant case-law, that the notion of the lawfulness of the detention of a person of unsound mind relates to procedural as well substantive rules. An individual should not be deprived of his liberty unless it has been reliably shown by medical evidence that the person is of unsound mind. Furthermore, the mental disorder must be of a kind or degree warranting compulsory confinement. The validity of continued confinement depends on the persistence of such disorder (cf. Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, § 39; and X v. the United Kingdom judgment of 5 November 1981, Series A, no. 46, § 40).
It is not disputed that the applicant's deprivation of liberty was effected “in accordance with a procedure prescribed in law” and was “lawful” in the sense of being in conformity with the relevant domestic law. However, it was submitted on behalf of the applicant that his deprivation of liberty was arbitrary and unlawful, as he had not been reliably shown to be a person of unsound mind by objective medical evidence, at least not since October 1992, and that the deprivation of his liberty was thus not justified under Article 5 § 1(e) of the Convention.
The Court recalls that it is primarily for the national authorities to evaluate the evidence adduced before them as it recognised that they enjoy a certain discretion in the matter. The Court's task is limited to reviewing the decisions taken by the domestic authorities under the Convention.
In the present case the applicant had committed a serious crime in 1986. It appears that in 1992 the applicant threatened two girls of minor age. While there is no evidence of further violent behaviour by the applicant since the last-mentioned year, the Court notes that all the subsequent decisions to continue compulsory mental care have been based on medical expertise attesting to the continuing need for care. Such decisions have been made at regular intervals and under the control of administrative courts and other supervisory authorities. The Court sees no reason to doubt the objectivity and reliability of the medical judgment of the domestic authorities. In conclusion, the Court finds that the deprivation of the applicant's liberty was justified within the meaning of Article 5 § 1(e) of the Convention.
As to the applicant's complaint that his transfer to another hospital was a punishment for his violation of the rules regarding leave from the Hesperia Hospital, the Court recalls that, according to the Convention organs' constant case-law, the Convention does not guarantee, for a prisoner or for a person who has been ordered to undergo compulsory psychiatric treatment, a right to choose the place of his detention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention
2.The applicant also complains, under Article 13 of the Convention, that he has been denied an affective remedy against allegedly unlawful measures taken by the staff at the Old Vaasa Hospital which further restricted his liberty. He submits, in particular, that he was prohibited from telephoning, among others, his counsel and that telephone calls from his relatives and counsel were subject to permission by the chief physician. He argues that these measures were not strictly necessitated on account of his condition. The applicant does not invoke any Article of the Convention in this respect.
Article 13 of the Convention reads as follows:
“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.”
The Court has, ex officio, examined this part of the application also in the light of Article 8 of the Convention, which reads:
“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.”
The Government argues that this part of the application was submitted out of time as the two telephone calls of 20 June and 30 August 1994 from the applicant's counsel to the applicant were mentioned for the first time by the applicant in his letter of 20 September 1995 and, even then, with a very general reference.
The Court considers that this part of the application does not concern only the telephone calls of 10 June and 30 August 1994 but relates also to a continuing situation alleged to be in violation of the Convention. According to the Convention organs' case law, the six month rule does not apply as long as the situation lasts. In the present case the situation, in which the applicant allegedly had no effective remedy, continued at the time when the complaint at issue was submitted. Thus, the Court finds that this part of the application cannot be rejected as being out of time.
The Court recalls that, according to the Deputy Parliamentary Ombudsman's decision of 16 June 1998, the telephone calls from the applicant's legal counsel to the applicant were indeed, on 10 June and 30 August 1994, transferred to the chief physician of the Old Vaasa Hospital instead of the applicant. The Court considers, in the light of the parties' submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention, nor out of non-exhaustion, within the meaning of Article 35 § 1 of the Convention.
It follows that this part of the application should be declared admissible.
3.The applicant finally complains that he has not had an effective remedy against the 1992 decision to transfer him to the Old Vaasa Hospital.
The Court recalls that it has above found the applicant's complaint, concerning his transfer to another hospital, incompatible with the Convention as no such right is guaranteed by the Convention. As the applicant, therefore, does not have an arguable claim in this respect, this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicant's complaints under Articles 8 and 13 of the Convention that his right to respect for his private life and correspondence has been violated, and that he has not had an effective remedy against the allegedly unlawful measures to restrict the telephone calls to the applicant from his legal counsel;
DECLARES INADMISSIBLE the remainder of the application.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy