AS TO THE ADMISSIBILITY OF
Application No. 12778/87
by W.
against Sweden
The European Commission of Human Rights sitting in private
on 9 December 1988, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
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 12 February
1987 by W. against Sweden and registered on 2 March 1987 under file
No. 12778/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Swedish citizen, born in 1955 and residing
at Malmö.
On 29 October 1986 the applicant was involuntarily admitted to
the psychiatric ward of a hospital (Malmö östra sjukhus) by a decision
of a chief doctor at the hospital under the Act on Institutional
Psychiatric Care (lagen om beredande av sluten psykiatrisk vård).
On 30 October 1986 the chief doctor found that the applicant
could be provided care pursuant to the Act on Institutional
Psychiatric Care.
The applicant appealed against the above decisions to the
Discharge Council (utskrivningsnämnden) of Lund requesting that the
decisions be quashed and that she be discharged.
On 17 November 1986 the Discharge Council, stating that the
mental illness of the applicant had required her admission to hospital,
upheld the decision of 29 October and declined to discharge her. On
the other hand the Council found that there could be no objection to
discharging the applicant on a provisional basis. The Discharge
Council consequently ordered that the applicant be discharged on a
provisional basis until the end of April 1987. It further ordered
that, during the provisional discharge, the applicant should take
medicine (neuroleptika) and present herself for medical control at the
hospital every second week.
The applicant appealed against this decision to the Psychiatric
Council (psykiatriska nämnden). On 10 February 1987 the Psychiatric
Council, agreeing with the Discharge Council that treatment was
required, rejected the appeal.
The Psychiatric Council gave the following reasons:
"From the documents in the case it is established that you
suffer from such mental disease as referred to in Section 1
of the Act on Institutional Psychiatric Care. From the
documents it is also established that psychiatric care under
the provisions of the said Act is absolutely necessary in
view of the degree and character of the disease and in view
of the fact that you, as a result of the disease, obviously
lack understanding of the disease and since your state of
health can be significantly improved by care and can
significantly deteriorate if you do not receive care -
Section 1 para. 1 (a) of the Act on Institutional
Psychiatric Care.
The conditions for providing care under Section 1 of the Act
on Institutional Psychiatric Care are satisfied. Moreover,
for your treatment it is necessary that you comply with the
prescription given for your provisional discharge."
COMPLAINTS
1. The applicant maintains that, having been deprived of her
liberty, she did not have the right to take proceedings by which the
lawfulness of her detention could be examined by a court. She alleges
a violation of Article 5 para. 4 of the Convention arguing that the
Discharge Council and the Psychiatric Council do not satisfy the
requirements of a court as required by that provision.
2. The applicant also requests compensation under Article 5 para. 5.
THE LAW
1. The applicant complains that she did not have access to a
court satisfying the conditions of Article 5 para. 4 (Art. 5-4) of the
Convention for the purpose of challenging the decision of 30 October
1986 to commit her for treatment pursuant to the Act on Institutional
Psychiatric Care. Article 5 para. 4 (Art. 5-4) of the Convention
reads:
"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."
The Commission observes that the applicant could take, and did
take, proceedings before the Discharge Council in order to have
examined the lawfulness of her detention. The result of those
proceedings was that the applicant was discharged provisionally. The
provisional discharge was accompanied by an order that the applicant
should take medicine and present herself for medical control at the
hospital once every second week. The Commission considers that these
conditions attached to the provisional discharge were not so severe
that the applicant's situation after her provisional discharge could
be characterised as a deprivation of liberty (cf. Eur. Court H.R.,
Guzzardi judgment of 6 November 1980, Series A no. 39, p. 33, para. 92
and Commission's decision on admissibility, No. 9990/82, Dec. 15.5.84,
D.R. 39 p. 119).
Consequently, the Commission's examination must be based on
the finding that the applicant's deprivation of liberty terminated as
a result of the provisional discharge ordered by the Discharge
Council.
The question therefore arises whether the applicant can still
claim to be a victim of a violation of the procedural guarantees of
Article 5 para. 4 (Art. 5-4) of the Convention. In this context the
Commission recalls that it has on several occasions held that an
applicant who has complained of violations of the procedural
guarantees in Article 6 (Art. 6) of the Convention in criminal
proceedings against him can no longer claim to be a victim if, at the
end of the proceedings, he is acquitted. In such cases the Commission
has considered that the alleged violations of Article 6 (Art. 6) had
been rectified by the acquittal and that the applicant could not
legitimately pursue a complaint before the Commission (see e.g. No.
8083/77, Dec. 13.3.80, D.R. 19 p. 223).
The Commission considers that similar considerations apply in
the present case. The purpose of Article 5 para. 4 (Art. 5-4) of the
Convention is to provide a safeguard against arbitrary detention by
enabling persons actually deprived of their liberty to take
proceedings before a "court" to have the legality of the detention
examined. Since the applicant was released as a result of the
procedure before the Discharge Council there is no purpose in
examining whether the procedure before that Council satisfied Article
5 para. 4 (Art. 5-4) as any procedural inadequacy must be considered
to have been rectified by the applicant's release.
Consequently, the applicant can no longer claim to be a victim
of a violation of Article 5 para. 4 (Art. 5-4) in respect of the
procedure before the Discharge Council.
Moreover, insofar as the applicant's complaint is directed
against the procedure before the Psychiatric Council, the Commission
considers that, since the applicant was discharged when she appealed
to the Psychiatric Council, Article 5 para. 4 (Art. 5-4) of the
Convention did not apply to the applicant's situation.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicant complains further that she has no right to
compensation for the alleged deprivation of her liberty, contrary to
Article 5 para. 5 (Art. 5-5) of the Convention, which reads:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The right to compensation under this provision presupposes
that a violation of one of the other paragraphs of Article 5 (Art. 5)
of the Convention has been established either by a domestic organ or
by the Convention organs (cf. No. 7950/77, Dec. 4.3.80, D.R. 10 p.
213).
In the present case, the Commission has found the applicant's
complaint under Article 5 para. 4 (Art. 5-4) of the Convention
manifestly ill- founded. Nor is there any indication of a violation
of any of the other paragraphs of Article 5 (Art. 5-4) of the
Convention.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)