CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 janvier 1986

.s800EAC49 { font-size:12pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sBB9EE52A { font-family:Arial }                           AS TO THE ADMISSIBILITY OF                        Application No. 10801/84                      by L.L.                      against Sweden           The European Commission of Human Rights sitting in private on 20 January 1986, the following members being present:                        MM.   C. A. NØRGAARD, President                           G. SPERDUTI                           F. ERMACORA                           E. BUSUTTIL                           G. JÖRUNDSSON                           G. TENEKIDES                           S. TRECHSEL                           B. KIERNAN                           A. S. GÖZÜBÜYÜK                           A. WEITZEL                           J. C. SOYER                           H. G. SCHERMERS                           H. DANELIUS                           G. BATLINER                           J. CAMPINOS                           H. VANDENBERGHE                       Mrs G. H. THUNE                         Mr. H. C. KRÜGER, Secretary to the Commission           Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 August 1983 by L.L. against Sweden and registered on 7 February 1984 under file No. 10801/84;           Having regard to   -        the report provided for by Rule 40 of the Rules of Procedure         of the Commission;   -        the Government's observations of 23 May 1984;   -        the applicant's observations of 14 September 1984;   -        the report provided for by Rule 40 of the Rules of Procedure;   -        the Commission's decision of 6 March 1985 to adjourn the         examination of the case;   -        the report provided for by Rule 40 of the Rules of Procedure;   -        the Government's letter of 7 June 1985;   -        the Government's supplementary observations of 23 August 1985;   -        the Government's information by letter of 25 November 1985;   -        the submissions of the parties at the hearing on 20 January         1986;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant is a Swedish citizen, born in 1949 and resident at Lund.   She is represented before the Commission by Mr. Göran Melander, an associate professor of law at the University of Lund.           The particular facts of the case           On 19 July 1977 the applicant was involuntarily admitted to the St. Lars Hospital at Lund under Section 1 (b) of the 1966 Act on Institutional Psychiatric Care (lagen om beredande av sluten psykiatrisk vård i vissa fall).   The next day, the forced admission into the hospital was examined by the Chief Medical Officer, who concluded that the provisions of Section 1 (a) as well as (b) were applicable.   The applicant was thus detained at the hospital.           Five months later on 7 December 1977, the applicant was provisionally discharged. The diagnosis was then "parafrenia fantastica" and she was prescribed continued medication with a neurolepticum.   Until January 1984, the applicant was discharged on a trial basis, except for two short periods at the end of 1978.   She was admitted to the hospital on 2 October and discharged on 16 October, admitted again on 26 October and provisionally discharged on 1 December 1978.   While on provisional discharge, the applicant has received treatment as an out-patient (polyclinical treatment).   Her provisional discharge was extended continually, on the ground that she was still in need of treatment, that her health would deteriorate substantially, were the treatment to stop, and that she was unable to realise the nature of her disease.           On 26 May 1983 the Psychiatric Council (psykiatriska nämnden) received a petition from the applicant to have her "provisional discharge discontinued".   Her petition was interpreted as a petition for permanent discharge.   On 8 June 1983 her letter was sent to the Discharge Council (utskrivningsnämnden) of Lund, the competent body for this matter.   The Discharge Council had to adjourn the examination of her petition on 23 June 1983, since she was not present in person and had no legal counsel to represent her before the Council.           On 1 July 1983 the Council decided the matter.   The applicant, having announced that she did not wish to appear in person, was represented by a lawyer and member of the Swedish Bar Association. The applicant's petition was rejected with reference to the provisions of Section 1 (a) of the Act on Institutional Psychiatric Care.   The Council stated inter alia that there were reasons to believe that the applicant would stop taking her medication if discharged and that that would lead to her health deteriorating.           The applicant appealed against this decision on 2 August 1983 to the Psychiatric Council.           On 26 September the Psychiatric Council received observations from the Chief Medical Officer of St. Lars and from the Discharge Council and on 11 October 1983 the Psychiatric Council rejected the appeal, stating that there were no reasons to amend the decision of the Discharge Council.           On 17 January 1984, the applicant was permanently discharged from the hospital.           The Swedish legislation           The rules on detention of persons with mental illnesses are laid down in the 1966 Act on Institutional Psychiatric Care.   Section 1 (a) and (b) of the said Act read:           "A person suffering from mental disease may, regardless of consent, be given compulsory institutional psychiatric care by virtue of this Act, if such care is indispensable in view of the nature and severity of the disease, provided that the said person   (a)   as a result of his disease is manifestly unable to understand his disease or as a result of his addiction to drugs is manifestly unable to understand his need of treatment, and where his health would substantially improve by the treatment or substantially deteriorate if the treatment was not given, or   (b)   as a result of his disease presents a danger to the personal safety or physical or mental health of others, or to his own life ..." (subsequent alternatives omitted here).           In addition, admission to a psychiatric hospital can only be decided if there is a certificate on the need for treatment, issued by an authorised medical officer, who must not be affiliated with the hospital to which the patient is supposed to be admitted, and who must have examined the patient personally and issued the certificate immediately after his examination (Sections 3, 4 and 6).   The decision to admit a person has in principle to be made by the Chief Medical Officer of the hospital or clinic.   A certificate must not be accepted as a basis for such a decision, if it is issued more than a fortnight prior to the decision (Section 8).           If the patient is admitted in accordance with Section 8, the Chief Medical Officer shall examine the patient as soon as possible and, no later than on the eighth day after the admission, consider whether the patient can be subject to treatment under the Act.   If the medical officer considers that this is the case, he shall decide that the patient shall be detained at the hospital.   The patient shall otherwise be discharged (Section 9).           A person who has been admitted for treatment under the Act, must be discharged as soon as the conditions, as laid down in Section 1, are no longer present.   The question whether the patient qualifies for discharge must be examined continuously (Section 16).   A person may also be discharged provisionally on a trial basis.   Such a discharge may only be effected if there are special reasons and if the patient presents no danger to others or to himself.   The discharge must be limited in time, and may last no longer than six months.   The time limit can be extended by not more than six months at a time (Section 19).   It is also possible to issue regulations for the patient and to subject him to supervision by a suitable person.           Questions of discharge or provisional discharge are decided by the Chief Medical Officer.   His decisions can be appealed to the Discharge Council.   The Chief Medical Officer may also refer such issues to the Discharge Council.   The decisions of the Council may be appealed to the Psychiatric Council (Sections 21 and 22).   The Discharge Council is also authorised to act in these matters ex officio or on petitions by the patient or his relatives etc (Sections 17 and 18).           There are at present 33 Discharge Councils in Sweden.   Each Council consists of five members: the chairman, who shall be or shall have been a permanent judge (ordinarie domare), one medical officer, who should have special qualifications in the matter of mental diseases, one person with special knowledge of social issues, and two additional members.           The Psychiatric Council, which has its office in Stockholm, has six members: the chairman, who shall be or shall have been a permanent judge, two medical officers, both of whom must have special qualifications in the matter of mental diseases, one person who is acquainted with social issues, and two additional members.           The members of all the Councils are appointed by the Government for periods not exceeding four years.   All members have to take the oath of a judicial office, ie the oath that the judges in Sweden must take (domared), before they serve on the Council.   The Act also contains rules on disqualification.   The Instrument of Government (regeringsformen) further provides guarantees that such Councils will be free to act independently without any governmental interference (Chapter 11, Sections 2 and 7).           The patient and the Chief Medical Officer of the hospital concerned should be present at the Discharge Council's meetings, unless there are particular reasons preventing their presence (Section 30). The Discharge Councils meet regularly each week at the hospital, whereas the Psychiatric Council meets every fortnight.           Chapter 2, Section 9 of the Instrument of Government reads:           "Where a public authority other than a court has deprived a citizen of his liberty on account of a criminal act or suspicion of such act, such person shall have the right to have the matter examined by a court without undue delay.   This shall not, however, apply where the issue is one of transferring to the Realm the execution of a penal sanction involving deprivation of liberty which has been imposed in another State.   If a citizen, for reasons other than those referred to in the first paragraph, has been coercively taken into custody, he shall likewise be entitled to have the matter examined by a court without undue delay.   In such a case an examination by a board shall be deemed to rank equally with the examination by a court, provided that the composition of the board is governed by rules of law and the chairman of the board shall be or shall have been a permanent judge.   If such examination as referred to in the first or second paragraph has not been entrusted to an authority, competent according to the provisions laid down therein, the examination shall be carried out by a court of general jurisdiction."           The question whether the Discharge Councils fulfil the requirement of a "court" as laid down in Art. 5, para. 4 of the Convention was addressed in particular in the "travaux préparatoires" of the legislation, both in 1966, when the proposal for the Act on Institutional Psychiatric Care was made, and in 1973, when the proposal for a new Constitution was presented to Parliament.           In 1966 the competent Minister noted inter alia (Government Bill 1966:53 p. 207):           "The Committee points out that the Chief Medical Officer should not be a member of the local board, when the board is reviewing decisions by him or any other physician at the hospital in question.   Neither is it satisfactory in the Committee's view to have the chief medical officer take part in the board's examination of a release case as the first instance.   The Committee therefore proposes that the Chief Medical Officer must not be a member of the board.   In this context, the Committee points to the requirement of independence which, having regard to the European Convention on Human Rights, must be met by bodies that are authorised to decide matters of admission to and release from mental hospitals."           In 1973 the Minister of Justice stated as follows (Government Bill 1973:90 p. 386):           "Concerning compulsory custody for other reasons than criminal offences or suspicion of criminal offences, an examination by a board should be considered equal to that of a court, if the composition of the board is prescribed by law and its chairman is, or has been, a permanent judge.   A rule to this effect should be included in the section now under discussion. The result will be that the Instrument of Government will not prevent the continued practice of examinations by a board, which is at present prescribed in the Act (1966:293) on Institutional Psychiatric Care ...   But for the Discharge Councils ... it should be prescribed that the chairman not only should, but must fulfil the requirements just mentioned.   With such a wording of the proposed provision in the Instrument of Government, a wording which by the way our special legislation in this field already contains to a large extent, there are satisfactory guarantees that the examination by boards will be as secure as an examination by the courts.   In this context, I would like to point out that, even if a board of the nature now proposed is not a court according to Swedish conceptions, the nature of the matters to be dealt with by the board, the composition of the board, the nature of its functions, its competence to conduct investigations, and its totally independent status vis à vis the Government and other authorities (cf. Section 7) speak in favour of the conclusion that the board should be considered to meet the standards set by international law for courts, as defined by the European Convention for the Protection of Human Rights and Fundamental Freedoms."   COMPLAINTS   1.       The applicant complains that neither the Discharge Councils nor the Psychiatric Council satisfy the requirements of a "court" as prescribed in Art. 5, para. 4 of the Convention.   She therefore alleges a violation of Art. 5, para. 4.           She also requests compensation under Art. 5, para. 5.   2.       The applicant also states that according to Art. 6, para. 1 of the Convention she is entitled to a court determination, but that she has not had that benefit in the present case.   3.       She further complains that the provisional discharge constituted an unjustified interference with her right to respect for private life and that there has accordingly been a breach of Art. 8 of the Convention.   4.       Finally, the applicant complains that she has not been accorded the right to an effective remedy for the violations of the Convention which she alleges is in violation of Art. 13.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 August 1983 and registered on 7 February 1984.           On 14 March 1984 the Commission examined the admissibility of the application, and decided pursuant to Rule 42, para. 2, sub-para. b of its Rules of Procedure to invite the Government to submit written observations on the admissibility and merits of the application (Art. 5 of the Convention).           The Government's observations were dated 23 May 1984 and the applicant's observations in reply were dated 14 September 1984.           On 5 June 1984 the President of the Commission decided to grant the applicant legal aid.           On 6 March 1985 the Commission examined the admissibility of the application and decided to adjourn its examination.          On 7 May 1985, the Commission decided to invite the parties to a hearing on the admissibility and merits of the applicaton at which the parties were invited to make submissions under Arts. 5, para. 4, 6, 8 and 13 of the Convention.   Since the hearing could not be held until later, the Government were invited to submit in the meantime any such written observations as they might wish to make under Arts. 6, 8 and 13 of the Convention.           By letter of 7 June 1985, the Government requested the Commission to invite the applicant to submit information and documentation as regards Art. 8 of the Convention.           On 8 July 1985, the Commission examined the Government's request and decided to maintain its decision of 7 May 1985.   It further extended the time-limit for the written observations.           The Government submitted further observations by letters dated 23 August and 25 November 1985.   The applicant did not submit any further written observations.           At the hearing, which was held on 20 January 1986, the parties were represented as follows:   The Government   Mr. Hans Corell               Ambassador, Under-Secretary for Legal and                              Consular Affairs, Ministry for Foreign                              Affairs, Agent   Mr. Karl-Ingvar Rundquist     Under-Secretary for Legal Affairs,                              Ministry of Health and Social                              Affairs, Adviser   Mr. Håkan Berglin             Legal Adviser, Ministry for Foreign                              Affairs, Adviser   The applicant   Mr. Göran Melander           Associate Professor of law, Institute of                             International Law, University of Lund   SUBMISSIONS OF THE PARTIES   A.       The Government   1.       The Facts           The possibility of provisional discharge has been an important means of preparing patients for a final discharge.   This possibility often functions as an alternative to treatment in an institution.   It is, of course, important that provisional discharges are not extended over long periods.   But in certain cases a long period of provisional discharge could be an appropriate means if the patient needs to take medicine but lacks ability to understand his illness.   In such cases provisional discharge means that relapses with subsequent hospital treatment could be avoided.           The reason why a patient is provisionally discharged is that such a patient is under the obligation to observe a certain prescription which the Discharge Council may decide.   Reference is made to Section 19 of the 1966 Act where it is laid down that the patient may be subjected to rules and could also be put under the supervision of a certain person.   As an example the patient could be ordered to visit the hospital once a week or to have an injection once a month or something like that.   He could be ordered not to drink alcoholic beverages or be subjected to other rules of this kind.   2.       The Admissibility           2.1      Art. 5, para. 4 of the Convention           The Government submit that Art. 5, para. 4 deals with persons who are deprived of their liberty.   The Government also submit that the applicant has been discharged from the hospital since the end of 1977 on a trial basis.   She has not been deprived of her liberty by detention since the end of 1978.   It is, therefore, the opinion of the Government that her complaint falls outside the scope of Art. 5, para. 4. Consequently, the application should be rejected as being incompatible ratione materiae with the provisions of the Convention.             It is admitted that the applicant has been deprived of her liberty earlier and that she may have had a case under the Convention, had she brought her application at an earlier stage.   At the present state of the file however it is submitted that the applicant has not met the conditions of Art. 26 of the Convention.           2.2      Art. 6 of the Convention           Since there is no question of a criminal charge against the applicant, the only situation in which Art. 6 could be applicable in this case is that the matter before the Swedish authorities concerns the determination of her "civil rights and obligations".   The Government contest that this is the case.   It is stressed that a decision to subject a patient to treatment under the 1966 Act on Institutional Psychiatric Care does not automatically entail the loss of a patient's right to exercise his private rights, eg the capacity to administer his property.   Consequently there is no similarity in this respect between the applicant's case and the Winterwerp case (Eur. Court H.R., judgment of 24 October 1979, Series A no. 33 paras. 73 and 75).   Nor did the decision on institutional care prevent the applicant from entering into marriage.   Consequently the Government submit that this aspect of the application is incompatible ratione materiae with the provisions of the Convention.   3.       The Merits           3.1      Art. 5, para. 4 of the Convention           Should the Commission find that Art. 5, para. 4 was applicable to the provisional discharge, the Government submit that under the Swedish legal system it should be evident that the proceedings before the Discharge Councils are meant to satisfy the requirements of court proceedings.   Thus the patient is represented by legal counsel and an oral hearing is held during which the patient's arguments may be presented etc.   Reference is made to Sections 28-34 of the Act on Institutional Psychiatric Care.           The Discharge Councils are composed so as to ensure a maximum of professional knowledge as well as layman influence.   The fact that the chairman is a judge or a former judge is a further guarantee of an impartial and legally correct procedure.   For all intents and purposes, therefore, these councils should be considered equal to courts as prescribed by Art. 5, para. 4.           The Government refer to a list which they have compiled of the 33 Discharge Councils and their chairmen.   They point out that 26 of the chairmen were permanent judges of the general courts of first instance, one was a permanent judge of the administrative court of first instance, two were permanent judges of courts of appeal, one was a permanent judge of a Social Insurance Court (försäkringsrätt) and three were retired judges.   Moreover, the present chairman of the Psychiatric Council is a judge of the Supreme Administrative Court (regeringsrätten).           Additional provisions regarding the procedure are laid down in the 1966 Act.   Further instructions are given in the Instruction for the Discharge Councils (instruktion för utskrivningsnämnderna) and the Instruction for the Psychiatric Council (instruktion för psykiatriska nämnden).           The applicant's petition was examined by the Discharge Council as soon as circumstances permitted after her petition.   A considerable delay was caused by the applicant herself, since she sent her petition to the Psychiatric Council in Stockholm instead of the Discharge Council at Lund.   As far as the Government have been able to establish the Discharge Council received the petition on 8 June and discussed the matter at its meeting on 23 June 1983, when the examination of the petition had to be adjourned due to the fact that the applicant did not appear in person and had no legal counsel to represent her.   But even if the whole period between 26 May and 1 July 1983 is considered, the Government contend that the requirements of a speedy process of Art. 5, para. 4 were met.           Referring to the Vagrancy cases (Eur. Court H.R., judgment of 18 June 1971, Series A no. 12), the Luberti case (judgment of 28 February 1984, Series A no. 75) and to the Swedish law which provides firm rules for the proceedings on discharge matters under the Act on Institutional Psychiatric Care, as well as the establishment by law of independent and impartial bodies to decide on these matters, the Government conclude that the Swedish system satisfies the requirements of the Convention.           3.2      Art. 6 of the Convention           In consequence, with their stand on the issue under Art. 5, para. 4, the Government maintain that the Discharge Councils and the Psychiatric Council meet the requirements of a tribuanl within the meaning of Art. 6.   The question arises whether there is a difference between the two Articles of the Convention.   In the English text the word "court" is used in Art. 5, para. 4, whereas the word "tribunal" is used in Art. 6, para. 1.   It is noted, however, that in the French version of the Convention the word "tribunal" is used in both Articles. The Government refer to the Winterwerp judgment (op. cit., para. 60).           The Government submit that it seems as if the Court is of the opinion that the standards for the "tribunal" in Art. 6, para. 1 are set at a higher level than that for the "court" in Art. 5, para. 4. The Government maintain however that the two Swedish authorities now in question, the Discharge Council and the Psychiatric Council, also meet the requirements of Art. 6, para. 1.           There are three prerequisites which must be fulfilled as far as the tribunal is concerned.   It must be independent.   It must be impartial.   It must be established by law.           As to the independence, there can be no doubt that this requirement is fulfilled.   From Chapter 11, Section 7 of the Swedish Instrument of Government it follows that a similar independence to that of the ordinary courts in Sweden is attributed to administrative bodies when they exercise official power.   The provision expressly mentions the independence of bodies that exercise official power in particular cases in regard to private subjects or apply provisions of law enacted by the Parliament.   It is stressed that, even if the Discharge Council is considered as an administrative body in Sweden, such a council is nevertheless independent under the Constitution.           Where the Councils have their premises - a question which has been raised by the applicant - is of no relevance in this context. From a psychological point of view it may be important to the patients whether they go to the same premises as the hospitals, or if they go outside the hospital premises.   That may be of a psychological significance, but in the legal context this feature in the Swedish system is of no relevance.           With respect to the two remaining prerequisites, it is obvious that the Discharge Councils are established by law and that they are impartial.   The applicant has not even alleged that the Discharge Council has not acted in an impartial way.   With regard to impartiality, the Government refer to the Campbell and Fell Case (Eur. Court H.R., judgment of 28 June 1984, Series A no. 80 para. 78) and the Sramek case (Eur. Court H.R., judgment of 22 October 1984, Series A no. 84 para. 38).           It is admitted that the hearing in the applicant's case was not public in so far as there was no general public admitted to the hearing. In the Government's opinion a public hearing was, however, not required with respect to the subject matter, since Art. 6 permits that the public may be excluded from all or part of the trial where the interests of inter alia the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.           The question remains whether the decisions by the two authorities have been pronounced publicly.   The Government admit that no positive actions have been taken in order to make the decisions public. The Government refer to Chapter 7, Section 2 of the Secrecy Act (sekretesslagen).   According to this provision secrecy does not apply to decisions by the Discharge Councils or the Psychiatric Council.   Under the circumstances, this fact in connection with the general Swedish rules on free access to official documents have as a result that anybody has the right to examine on request the decisions by the two authorities.   This publicity must satisfy the basic aim of Art. 6, namely to guarantee that justice is not administered in camera. Reference is in this context made to the Sutter case (Eur. Court H.R. judgment of 22 February 1984, Series A no. 74 paras. 33 and 34).           3.3      Art. 8 of the Convention           The Commission has asked whether the facts of the case constitute an interference with the applicant's right to respect for her private life as guaranteed by Art. 8, para. 1 and if any such interference with the applicant's right to respect for private life is justified under the terms of Art. 8, para. 2.           The Government admit, in principle, that decisions taken under the 1966 Act may affect a person's right to respect for his private and family life, his home and his correspondence.   The Government maintain, however, that the actions taken in the present case were permitted in accordance with Art. 8, para. 2.   The measures were taken in accordance with the law and necessary in a democratic society for the protection of health and morals, and for the protection of the rights and freedoms of others.           3.4      Art. 13 of the Convention           The Government maintain that the possibility for the applicant to have her case reviewed by the Discharge Council and the Pyschiatric Council constitutes effective remedies within the meaning of Art. 13.           In the Government's opinion the applicant had several further effective remedies before national authorities in the present case. The following are mentioned:   -        doctors are subject to supervision by the National Board         of Social Welfare (socialstyrelsen) and are subject to         disciplinary responsibility in accordance with the Act         on the Supervision over Health and Medical Staff (lagen         om tillsyn över hälso- och sjukvårdspersonalen).   Such         disciplinary matters are dealt with by a special board under         the chairmanship of a judge.   -        the Discharge Councils and the Psychiatric Council are         also subject to the supervision of the Parliamentary         Ombudsman (JO).   The Ombudsman has made several inspections         of the Discharge Councils over the years.   -        both the Chief Medical Officer and the members of the Councils         are subject to the rules on misuse of office of the Penal         Code.   -        compensation is also possible in accordance with Section 3         of the Act on Compensation for Deprivation of Liberty         (lagen om ersättning vid frihetsinskränkning).   4.       Conclusions           The Government conclude that   -        the complaints under Arts. 5 and 6 are inadmissible as being         incompatible ratione materiae with the provisions of the         Convention, alternatively as being manifestly ill-founded.   -        the complaints under Arts. 8 and 13 are inadmissible as being         manifestly ill-founded.   -        there has in all circumstances been no violation of the         Convention.   B.       The Applicant           The applicant submits that, in the present case, the relevant Swedish legislation, the 1966 Act, has been correctly applied. However, it is argued that the treatment of the applicant has in several respects violated her rights under the Convention.   1.       The Facts           Slightly more than one year ago a governmental committee published a report in order to reform the present system.           In the report it is suggested that the Discharge Councils and the Psychiatric Council should disappear.   It is proposed that any person who has been detained in order to undergo psychiatric treatment should have access to the already existing Administrative Courts.   It is important to note that the motive for this proposal is to increase the legal safeguards in favour of the individual.   Should this reform become a reality that would certainly satisfy Arts. 5, para. 4, and 6 of the Convention.           Another proposal made by this committee is to abandon the system of provisional discharge.   Should the various proposals become reality it is considered unnecessary to continue the system of provisional discharge in the future.           So far, the Government have not introduced any Bill to Parliament.   It is an open question what the final result will be, because the opinions with regard to the Discharge Councils or the Administrative Courts, as well as with regard to provisional discharge, are completely divided.   In this context it is noted that various patients' associations are strongly in favour of the court system, and they are also in favour of abandoning the Discharge Councils.   2.       Merits           2.1      Art. 5, para. 4 of the Convention           The main question is whether the Discharge Councils and the Psychiatric Council can be considered equal to a "court" in the meaning of Art. 5, para. 4 of the Convention.           The Discharge Council consists of five members, inter alia a chairman who shall be or shall have been a permanent judge, and a medical officer.   In order to create independence it is provided that the medical officer must not be working at the hospital, in which the person in question is a patient.           It is true that in the travaux préparatoires of the present Act it is stated that the Discharge Council meets with the requirements of a "court" as laid down in Art. 5, para. 4.   However, from such a statement it cannot be concluded that the present legislation meets the requirements, only that the Government have been aware of the fact that provisions in the Convention could have an influence on the content of the legislation.           The Government argue that the mere fact that a judge is a member of the Councils satisfies the prerequisites of the Convention and accordingly, that the Councils are to be considered as courts. The Government have also demonstrated that all Discharge Councils have chairmen of high judicial standard and that they are all active or former judges.   However, the mere fact that a judge is a member of an organ does not transform that organ into a court.   For instance, as has been submitted by the Government in another context, medical officers are subject to supervision by the National Board of Social Welfare and are subject to disciplinary responsibility in accordance with the Act on the Supervision over Health and Medical Staff.   Such disciplinary matters are dealt with by a special board under the chairmanship of a judge.   Although this organ has a legal function it can obviously not be considered a court.   Several examples of similar boards can be found in Swedish law, where it is clear to everyone that the term "court" is not applicable.   It is obvious that other criteria must also be fulfilled before the term "court" can be used.           Another important factor is the composition of the organ.   A reason why it is questionable whether the Discharge Councils and the Psychiatric Council can be considered as courts is the fact that medical officers who represent the medical expertise are full members of the respective organ.   It is likely that the medical officer will have the greatest influence on the case.   It may be practical, and for other motives reasonable, that a medical officer is a member of the respective organ.   However, the impartiality of the Council will be lost.   It is true that the medical officer of a Discharge Council must not be affiliated with the hospital to which the patient in question is admitted.   As long as he is a full member of the Discharge Council his impartiality can, however, be questioned, not only because of collegiality but also because it is common that a medical officer changes his employment from one hospital to another.           It is important to remember that medical officers who are specialised in psychiatry are very few.   It is a very narrow science and the actual number of psychiatrists is low.   As regards the composition of the Discharge Council at Lund, the medical officer who sits on the Discharge Council actually works, or did in those days, at another hospital in Lund.   There are two hospitals at Lund for psychiatric care and this member of the Discharge Council actually works at the other psychiatric hospital in Lund.   Certainly, they do not work at the same hospital but still there are rather close relations between the two hospitals, not only because both medical officers have the same employer, the County Council (landstinget). There are thus not direct but nevertheless certain relations between the medical officers.         The travaux préparatoires of the Act also deal with the procedure to be followed before a Discharge Council.   In this respect it is explicitly stated "that the informal procedure which has developed within the local Discharge Councils mainly ought to be upheld and that by all means a procedure should be avoided which is similar to a court procedure" (Government Bill 1966:53 p. 209).           From an organisational point of view a Discharge Council is a separate authority, but it is a general impression that it forms part of the hospital's administration.   For instance, it is the County Council which is responsible for the remuneration of the members of the Discharge Council.   The administrative structure is extremely vague and a Discharge Council has not always office premises of its own.   It must also be noted that membership of a Discharge Council is a sparetime occupation.   There is no co-operation between the various Discharge Councils and in spite of the Psychiatric Council, which serves as an appeal board, there is no possibility of establishing precedents. From an administrative point of view the Discharge Councils and the Psychiatric Council are completely separated from the ordinary judicial system.           The Psychiatric Council consists of six members, inter alia a chairman who shall be a judge and two medical officers nominated by the National Board of Social Welfare.   According to Section 31 of the Act oral proceedings should be held if it is considered necessary in view of the circumstances of the case.   It is to be noted that the applicant has no right to oral proceedings.   Such a decision lies in the discretion of the Psychiatric Council.   In practice, it is rare that the Council meets in oral proceedings.           The office of the Psychiatric Council is situated on the premises of the National Board of Social Welfare and its affiliation with the medical administration is firm.   Also the other objections raised against the Discharge Councils are of relevance as regards the Psychiatric Council.           It is also interesting to note that it has not been considered appropriate to use the term "court" in connection with the Discharge Councils.   This is reflected in the Instrument of Government which contains a chapter on basic human rights and freedoms.   In Chapter 2, Section 9 it is prescribed as a main rule that a decision on deprivation of liberty must be taken by a court.   In order to make the Discharge Councils and the Psychiatric Council lawful it was necessary to permit exceptions from court decisions.   Accordingly, it is prescribed that a decision by a Council (nämnd) should be considered equal with a court decision provided the composition of the Council is determined by law and the chairman is or has been a judge.   In the travaux préparatoires it is stated that "through this provision the Instrument of Government will not be an obstacle to preserving the decision by Councils, at present provided for in the Act on Institutional Psychiatric Care". Accordingly, not even the Government considered, at th