28917/95
A.B. gegen Schweiz
Nichtzulassungsentscheid no. 28917/95, 06 avril 2000
The European Court of Human Rights (Second Section), sitting on 6 April 2000 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr M. Fischbach,
Mr L. Wildhaber
Mr G. Bonello,
Mrs V. Stráznická,
Mr P. Lorenzen,
Mr A. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 5 October 1995 and registered on 12 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, a Swiss citizen born in 1939, is a pensioner residing in Basel. He is represented before the Court by Mr Joset and Ms Pauen, lawyers practising in Binningen in Switzerland.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 June 1994 the applicant entered voluntarily and for the 45th time the psychiatric university clinic in Basel on account of his mental illness. On 7 June 1994 he requested his release.
In the subsequent proceedings the applicant was represented by a lawyer.
On 9 June 1994 an expert member of the Psychiatric Commission (Psychiatrische Kommission) of the Canton of Basel-Stadt examined the applicant in hospital. As a result, the Psychiatric Commission authorised on 15 June 1994 his forced confinement in hospital (zwangsweise Hospitalisierung) until 21 July 1994. In its decision the Commission referred to the applicant's chronic illness, in particular his manic ideas (Wahnideen) and that he might endanger others. The Commission thereby relied on S. 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) concerning detention for welfare purposes (fürsorgerische Freiheitsentziehung; privation de liberté à des fins d'assistance; see below, Relevant domestic law and practice).
On 20 July 1994 the psychiatric university clinic requested the applicant's continuing psychiatric detention as his situation had not ameliorated. An expert member of the Psychiatric Commission again examined the applicant on 21 July 1994 and concluded that he suffered from a chronic mental illness. The expert noted that the applicant was ready to stay in the clinic until he had found a new apartment.
On 25 July 1994 the Psychiatric Commission authorised, with reference to the expert's examination of 21 July, the applicant's continuing forced confinement until he had found a new apartment or at the latest until 21 October 1994.
On 5 August 1994 the applicant filed an appeal with the Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt, requesting his immediate release from the clinic or at least a finding that his stay in the clinic had been unlawful. He submitted, inter alia, that he had not been properly heard by the members of the Psychiatric Commission.
The Court of Appeal transmitted the appeal on 10 August 1994 to the Psychiatric Commission which, on 23 August 1994, filed its observations. The Commission noted that the applicant had agreed to stay in the clinic until he found a new apartment; he could move about freely and also leave the clinic though he returned at night to sleep. As long as he was under medicaments there was no danger of endangering others, though this could change immediately if the medicaments were taken belatedly, or not at all.
On 7 September 1994 the applicant was released from the clinic.
On 15 December 1994 the Court of Appeal declared the applicant's appeal inadmissible as he had meanwhile been released and therefore lacked interest in his appeal(fehlendes Rechtsschutzinteresse). The Court thereby referred to its constant case-law. To the extent that the applicant requested compensation in view of the alleged unlawfulness of his detention, the Court noted that he had the possibility of filing a separate civil claim according to S. 429a of the Swiss Civil Code (see below, Relevant domestic law and practice). The decision of the Court of Appeal was served on 16 January 1995.
On 15 February 1995 the applicant filed a public law appeal (staatsrechtliche Beschwerde) and an appeal (Berufung) with the Federal Court (Bundesgericht), claiming that he had a legal interest in his complaints, and requesting legal aid. In his appeal, he furthermore addressed the unlawfulness of his detention, in his public law appeal he complained about the length of the proceedings.
In a decision dated 2 March 1995 and issued in respect of the applicant's appeal, the Federal Court dismissed his request for legal aid and imposed advance court costs of 1,500 Swiss Francs (CHF) on the applicant. The Court found in particular that the appeal lacked prospects of success as the applicant had meanwhile been released. The Court thereby referred to its case-law as well as a previous case in which it had already explained this case-law to the applicant's lawyer. As the applicant failed to pay the court costs, the Federal Court declared the appeal inadmissible on 29 March 1995.
On 3 May 1995 the Federal Court rejected the applicant's public law appeal. Insofar as the applicant complained of the length of the proceedings before the cantonal authorities, the Court found that he lacked practical interest in his appeal as he had meanwhile been released.
B. Relevant domestic law and practice
Under the heading "Detention for Welfare Purposes" the Swiss Civil Code lists in Sections 397a-f the grounds and procedures leading to such detention, including psychiatric detention. For instance, S. 397f provides for a "simple and speedy"(einfach und rasch) judicial procedure in which the person is, if necessary, legally represented and, in first instance, there is an oral hearing. Under a separate heading "Responsibility of Guardianship Organs" the Civil Code lists in S. 426-430 liabilities and ensuing procedures in guardianship matters. Here, S. 429a , concerning "Detention for Welfare Purposes" provides, inter alia, that "Whoever has been damaged by an unlawful deprivation of liberty is entitled to damages and, if justified by the severity of the breach, to satisfaction."
According to the case-law of the Federal Court, a complaint about unlawfulness of such detention may be raised by means of a claim for damages, but not of a public law appeal or an appeal after release from detention. For instance, in a decision of 1983 the Federal Court held:
"Il est de jurisprudence que le recours de droit public exige un intérêt actuel et pratique à ce que la décision attaquée soit annulée: le Tribunal fédéral doit trancher des questions concrètes, et non pas théoriques. L'intérêt actuel nécessaire fait défaut, en particulier lorsque l'acte de l'autorité a été exécuté ou est devenu sans objet ... Toutefois, le Tribunal fédéral renonce à faire d'un tel intérêt une condition de recevabilité du recours de droit public quand cette exigence empêcherait le contrôle de la constitutionnalité d'un acte qui peut se reproduire en tout temps et qui, en raison de sa brève durée, échapperait toujours à sa censure ...
En l'espèce, l'internement de la recourante a duré du 13 au 17 juin 1982. La recourante n'a dès lors plus d'intérêt actuel, puisque la mesure critiquée a pris fin. Les circonstances exceptionnelles qui permettent de renoncer à cette exigence ne sont pas réalisées. En matière de privation de liberté à des fins d'assistance, le séjour dans un établissement approprié n'est pas légalement limité à un bref laps de temps : il peut se prolonger tant que l'assistance personnelle ne peut pas être fournie d'une autre manière aux personnes indiquées à l'art. 397a CC. L'intérêt actuel peut donc exister encore au moment où le Tribunal fédéral est saisi d'un recours de droit public.
On ne saurait dire que celui qui a été relaxé après une mesure de privation de liberté à des fins d'assistance a encore un intérêt actuel à former un recours de droit public parce qu'il peut se prévaloir de l'illégalité du placement pour réclamer une indemnité. L'art. 429a CC donne droit à une indemnité à titre de dommages-intérêts et de réparation morale en cas de privation illégale de liberté ..." (Arrêts du Tribunal fédéral [ATF] 109 I a 170 et seq.).
This case-law also applies to other types of detention (see ATF 110 Ia 140) and was confirmed in 1999 (ATF 125 Ia 394). In the last mentioned decision, the Federal Court furthermore generally found that a person who had been released from detention can, pursuant to Article 5 § 5 of the Convention, institute separate proceedings for damages in which all complaints may be raised about the unlawfulness of detention
COMPLAINTS
The applicant complains under Article 5 § 4 of the Convention of the length of the proceedings. Thus, he filed his request for release on 5 August 1994. While he was released on 7 September 1994, the Court of Appeal gave its decision on 15 December 1994, i.e. only after four months.
Under Articles 6 § 1 and 13 of the Convention the applicant complains that he did not have access to a court and an effective remedy, respectively. Thus, both the Court of Appeal and the Federal Court rejected his complaints as he had meanwhile been released and lacked a legal interest.
THE LAW The applicant complains under Article 5 § 4 of the Convention of the length of the proceedings in which he was involved. Under Articles 6 and 13 of the Convention he complains that in this respect he did not have an effective remedy in that the domestic courts rejected his complaints as he had meanwhile been released.
The Government submit that the application is incompatible ratione materiae with the provisions of the Convention, as the applicant was not deprived of his liberty. He entered the clinic voluntarily until 5 August 1994. During his entire stay he was able to leave the clinic, though he had to return for the night in order to take his medicaments and as he did not have an apartment. Thus, he was able to entertain social relations with other persons without constant surveillance. The overall period was also comparatively short.
The Government furthermore point out that the applicant has not complied with the time-limit of six months laid down in Article 35 § 1 of the Convention. Once he had been released from detention, constant Swiss case-law obliged the courts to reject his appeals as he lacked interest therein. Thus, the six months-period started to run at the latest when the decision of the Court of Appeal was served on the applicant on 16 January 1995. As the applicant only did so on 5 October 1995, the application is out of time. The Government also refer to the possibility for the applicant to initiate compensation proceedings.
The Government consider that, since the application is inadmissible for the above reasons, it is unnecessary for them to file any observations as to the length of the proceedings.
The applicant submits that as from 15 June 1994 the psychiatric university clinic was empowered to detain him compulsorily. His detention lasted until 7 September 1994. It cannot be said that he remained voluntarily in the clinic since the latter would otherwise not have asked for his confinement. The applicant contests the statements of the Psychiatric Commission according to which he agreed to stay in the clinic. In its decision of 25 July 1994, the Psychiatric Commission did not limit confinement to night time. In any event, most social contacts occur in the evening, and confinement during evenings and nights in the clinic in itself amounts to a deprivation of liberty.
The applicant accepts the case-law according to which an appeal is no longer entertained once the person has been released from detention. However, in practice the Federal Court will depart from this principle when the question might be posed again at any time under the same or similar circumstances or when owing to its fundamental importance there is a public interest in a decision. All this the applicant argued before the Federal Court. In the present case, it was not clear from the outset whether the remedy lacked prospects of success. As a result, the applicant must be considered as having complied with the time-limit set out in Article 35 § 1 of the Convention. As regards the possibility of instituting compensation proceedings, the applicant points out that their purpose is primarily to obtain financial relief and not to complain about Convention violations.
The Court notes at the outset that it is in dispute between the parties whether or not the applicant was deprived of his liberty within the meaning of Article 5 § 1 of the Convention. The Court need nevertheless not decide this matter since the application is inadmissible for the following reasons.
According to Article 35 § 1 of the Convention, "the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law".
According to the case-law of the Court and the Commission, in order to comply with these requirements the applicant must make normal use of remedies which are likely to be effective and adequate to remedy the matters of which he complains (see the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p. 23, §§ 47 et seq.; Eur. Comm. HR, no. 10978/84, Dec. 14.10.86, D.R. 49, p. 145).
The Court notes that S. 397f provides for a speedy judicial procedure, if detention for welfare purposes is imposed. According to S. 429a of the Swiss Civil Code, a person may file a claim for damages and just satisfaction for unlawful detention for welfare purposes. Such a claim may include, inter alia, the complaint that the proceedings were unlawful in that they were not conducted speedily within the meaning of S. 397f. In its decision of 15 December 1994 the Court of Appeal confirmed the possibility of such a claim for damages in the present case and drew the applicant's attention to it. Such a claim for damages has furthermore been confirmed by the Federal Court's case-law both with reference to detention for welfare purposes and more generally in respect of Article 5 § 5 of the Convention.
The applicant therefore had at his disposal a remedy which would have enabled him to raise the complaints he is now making before the Court. As he failed to institute such proceedings, he has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.
It follows that the application must be rejected, in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously, DECLARES THE APPLICATION INADMISSIBLE.
Erik Fribergh Registrar
Christos Rozakis President