CEDH · CASELAW;REPORTS;ENG — 3 octobre 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s23A41E03 { width:36pt; display:inline-block }    Application No. 10801/84   L.   against   SWEDEN                 REPORT OF THE COMMISSION   (adopted on 3 October 1988)         TABLE OF CONTENTS                                                               page   I.       INTRODUCTION (paras. 1-14) ...............         1           A.   The application (paras. 2-4) .............     1           B.   The proceedings (paras. 5-10) ............     1           C.   The present Report (paras. 11-14) ........     3     II.      ESTABLISHMENT OF THE FACTS (paras. 15-33) ....     4           A.   The particular circumstances of the case             (paras. 15-21) ...........................     4           B.   Relevant domestic law (paras. 22-33) .....     5     III.     SUBMISSIONS OF THE PARTIES (paras. 34-68) ....     9           A.   The applicant (paras. 34-48) .............     9               a.   Article 5 para. 4 of the Convention                 (paras. 34-40) .......................     9               b.   Article 6 of the Convention                 (paras. 41-47) .......................    11               c.   Article 13 of the Convention (para. 48)   13           B.   The Government (paras. 49-68) ............    13               a.   The facts (para. 49) .................    13               b.   Article 5 para. 4 of the Convention                 (paras. 50-54) .......................    14               c.   Article 6 of the Convention                 (paras. 55-67) .......................    15               d.   Article 13 of the Convention (para. 68)   18     IV.      OPINION OF THE COMMISSION (paras. 69-96) .....    19           A.   Points at issue (para. 69) ................   19           B.   Article 5 para. 4 of the Convention             (paras. 70-77) ...........................    19           C.   Article 5 para. 5 of the Convention             (paras. 78-82) ...........................    20           D.   Article 6 para. 1 of the Convention             (paras. 83-89) ...........................    21           E.   Article 13 of the Convention             (paras. 90-95) ...........................    22           F.   Recapitulation (para. 96) ................    23     APPENDIX I       HISTORY OF THE PROCEEDINGS ...........    24   APPENDIX II      DECISION ON THE ADMISSIBILITY ........    26     I.       INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       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.   3.       The Government of Sweden are represented by their Agent, Mr. Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.   4.       The case relates to the procedural guarantees in respect of a determination as to whether the applicant should be permanently discharged, or remain on provisional discharge, from a psychiatric hospital.   It raises issues under Article 5 para. 4, Article 6 para. 1 and Article 13 of the Convention.   B.       The proceedings   5.       The application was introduced on 5 August 1983 and registered on 7 February 1984.   On 14 March 1984 the Commission decided, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to present before 25 May 1984 their observations in writing on the admissibility and merits of the application.           The Government's observations were dated 23 May 1984 and the applicants' observations in reply, after an extension of the time- limit to 30 August 1984, were dated 14 September 1984.           On 6 March 1985, after a further examination of the admissibility, the Commission decided to adjourn its examination of the case.          On 7 May 1985, the Commission decided to invite the parties to a hearing on the admissibility and merits of the application at which the parties were invited to make submissions under Article 5 para. 4 as well as Articles 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 such written observations as they might wish to make under Articles 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 Article 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 in reply.           At the hearing, which was held on 20 January 1986, the applicant was represented by Mr.   Göran Melander.   The Government were represented by their Agent, Mr.   Hans Corell, and by Mr.   Karl-Ingvar Rundquist, Under-Secretary for Legal Affairs at the Ministry of Health and Social Affairs, and Mr.   Håkan Berglin, Legal Adviser at the Ministry for Foreign Affairs, as advisers.   6.       Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicant on 5 June 1984.   7.       On 20 January 1986 the Commission decided to declare the application inadmissible in respect of the complaint of an unjustified interference with the right to respect for private life (Article 8 of the Convention).   The remainder of the application was declared admissible.   8.       The applicant was then invited to submit additional observations on the merits of the application.           On 14 July 1986 the Commission, at the request of the parties, decided to adjourn its further examination of the case until such time as the Commission was informed by the Government of their deliberations as to amendments of the legislation at issue.           On 10 December 1986 the Commission decided to further adjourn, until May 1987, its examination of the case.   On 9 May 1987 the Commission decided to invite the applicant to present, before 26 June 1987, her further observations on the merits.   The applicant's observations, dated 18 July 1987, were received on 28 September 1987. The Government were invited to present their additional observations on the merits before 20 November 1987.   The Government's observations were dated 18 November 1987.   A copy of these observations was sent to the applicant for information.           On 5 March and 9 July 1988 the Commission considered the state of proceedings of the case.   9.       On 3 October 1988 the Commission deliberated on the merits and took the final votes in the case.   10.      After declaring the case admissible the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.           C.   The present Report   11.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                   MM.   C.A. NØRGAARD                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      H. VANDENBERGHE           The text of the Report was adopted by the Commission on 3 October 1988 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           (1)   to establish the facts, and           (2)   to state an opinion as to whether the facts found              disclose a breach by the State concerned of its              obligations under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   14.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   15.      On 19 July 1977 the applicant was involuntarily admitted to the St.   Lars Hospital at Lund pursuant to 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 question of admission to the hospital was examined by the Chief Medical Officer, who concluded that the provisions of Section 1 (a) as well as (b) were applicable.   Consequently, the applicant was detained at the hospital.   16.      Five months later, on 7 December 1977, the applicant was provisionally discharged.   At that time the diagnosis was that the applicant suffered from "parafrenia fantastica".   She was prescribed continued medication with a neurolepticum.   Until January 1984, the applicant remained discharged on a trial basis, except for two short periods at the end of 1978.   She was readmitted to the hospital on 2 October and discharged on 16 October 1978, admitted again on 26 October and provisionally discharged on 1 December 1978.           While on provisional discharge, the applicant 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 understand the nature of her disease.   17.      On 26 May 1983 the Psychiatric Council (psykiatriska nämnden) received a petition from the applicant with a request that her provisional discharge be discontinued.   The petition was interpreted as a petition for permanent discharge.   On 8 June 1983 the petition was transmitted to the Discharge Council (utskrivningsnämnden) of Lund, the competent body for this matter.   The Discharge Council adjourned the examination of the petition on 23 June 1983, since the applicant was not present in person and had no legal counsel to represent her before the Council.   18.      On 1 July 1983 the Discharge Council examined the matter again.   The applicant, having announced that she did not wish to appear in person, was represented by a lawyer, who was a member of the Swedish Bar Association.   The applicant's petition was rejected by the Council with reference to 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 her health would then deteriorate.   19.      On 2 August 1983 the applicant appealed to the Psychiatric Council.   20.      On 26 September the Psychiatric Council received observations from the Chief Medical Officer of the St.   Lars Hospital and from the Discharge Council.   On 11 October 1983 the Psychiatric Council rejected the appeal, stating that there were no reasons to amend the decision of the Discharge Council.   21.      On 17 January 1984 the applicant was permanently discharged from the hospital.   B.       Relevant domestic law   22.      The regulations concerning detention of persons of unsound mind are laid down in the 1966 Act on Institutional Psychiatric Care. Section 1 (a) and (b) of the Act reads:   (Swedish)   "Den som lider av psykisk sjukdom får oberoende av eget samtycke beredas sluten psykiatrisk vård med stöd av denna lag, om sådan vård är oundgängligen påkallad med hänsyn till sjukdomens art och grad och till att han   (a)     dels till följd av sjukdomen uppenbarligen saknar sjukdomsinsikt eller till följd av beroende av narkotiska medel uppenbarligen är ur stånd att rätt bedöma sitt behov av vård, dels kan få sitt tillstånd avsevärt förbättrat genom vården eller avsevärt försämrat om vården uteblir,   (b)     till följd av sjukdomen är farlig för annans personliga säkerhet eller fysiska eller psykiska hälsa eller för eget liv"   (English translation)   "A person suffering from mental disease may, regardless of consent, be given compulsory institutional psychiatric care pursuant to 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".   23.      Admission to a psychiatric hospital may only be decided if a certificate on the need for treatment has been issued by an authorised medical officer, who must not be affiliated to 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 the examination (Sections 3, 4 and 6 of the Act). The decision to admit a person shall in principle 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 has been issued more than 14 days prior to the decision (Section 8).   24.      If the patient is admitted under Section 8 of the 1966 Act, 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).   25.      A person who has been admitted for treatment under the Act must be discharged as soon as the conditions 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 take place 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 not exceed 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.   26.      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 questions to the Discharge Council.   Appeals against decisions of the Discharge Council may be lodged with the Psychiatric Council (Sections 21 and 22).   The Discharge Council is also authorised to examine these matters ex officio or at the request of the patient or his relatives (Sections 17 and 18).   27.      There are 33 Discharge Councils in Sweden.   Each Council is composed 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.   28.      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 with special knowledge of social issues, and two additional members.   29.      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, i.e. the oath that all judges 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 act independently without any governmental interference (Chapter 11 Sections 2 and 7 of the Instrument).   30.      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 every week at the hospital, whereas the Psychiatric Council meets every fortnight.   31.      Chapter 2 Section 9 of the Instrument of Government reads:   (Swedish)   "Har annan myndighet än domstol berövat någon medborgare friheten med anledning av brott eller misstanke om brott, skall denne kunna få saken prövad av domstol utan oskäligt dröjsmål.   Vad nu sagts gäller dock icke när fråga är om att till riket överflytta verkställighet av frihetsberövande påföljd som har ådömts i annan stat.   Har medborgare av annan anledning än som angives i första stycket blivit omhändertagen tvångsvis, skall han likaså kunna få saken prövad av domstol utan oskäligt dröjsmål.   Med prövning av domstol likställes i sådant fall prövning av nämnd, om nämndens sammansättning är bestämd i lag och ordföranden i nämnden skall vara eller ha varit ordinarie domare.   Har prövning som avses i första eller andra stycket icke uppdragits åt myndighet som är behörig enligt föreskrifterna där, skall den ankomma på allmän domstol."   (English translation)   "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 an ordinary court."   32.      The question whether the Discharge Councils satisfy the requirements of a "court" within the meaning of Article 5 para. 4 of the Convention was addressed 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."   33.      In 1984 a Governmental committee (socialberedningen) published a report (SOU 1984:64 : Psykiatrin, tvånget och rättssäkerheten) 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 administrative courts.   So far, the Government have not introduced any Bill to Parliament.     III.     SUBMISSIONS OF THE PARTIES     A.       The applicant   a.       Article 5 para. 4 of the Convention   34.      The applicant submits that the relevant Swedish legislation has been correctly applied in her case.   However, her rights under the Convention have been violated.   35.      The main question is whether the Discharge Council or the Psychiatric Council can be considered as a "court" in the meaning of Article 5 para. 4 of the Convention.           The Discharge Council is composed 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 to the present Act it is stated that the Discharge Council meets the requirements of a "court" as laid down in Article 5 para. 4.   However, from such a statement it cannot be concluded that the legislation meets the requirements, only that the Government have been aware of the fact that the provisions in the Convention could have an influence on the content of the legislation.   36.      The Government argue that the mere fact that a judge is a member of each of the Councils satisfies the conditions 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 present 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, medical officers are subject to the supervision by the National Board of Health and Welfare and are subject to disciplinary responsibility under the Act on the Supervision of Health and Medical Staff (lagen om tillsyn över hälso- och sjukvårdspersonalen m.fl.). Such disciplinary matters are dealt with by a special board under the chairmanship of a judge.   Although this organ has a legal function it cannot be considered a court.   Several examples of similar boards can be found in Swedish law, where it is clear 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 element 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 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 to 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.           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 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.   37.      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).   38.      As far as its organisation is concerned, 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 vague and a Discharge Council has not always office premises of its own. 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.   39.      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 Health and Welfare.   According to Section 31 of the Act on Institutional Psychiatric Care, oral proceedings should be held if it is considered necessary in view of the circumstances of the case.   However, 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 Health and Welfare and its affiliation to the medical administration is firm.   Also the other objections raised against the Discharge Councils are of relevance as regards the Psychiatric Council.   40.      Taking all these elements into account it is not possible to conclude that the Discharge Council and the Psychiatric Council constitute "courts" in the meaning of Article 5 para. 4 of the Convention.   Accordingly, there has been a violation of the Convention.   b.       Article 6 of the Convention   41.      Article 6 para. 1 is also applicable in the present case.   Any person deprived of his or her liberty should be entitled to a hearing before a tribunal.   The minimum safeguards as provided for in Article 6 para. 1 should apply.           The applicability of Article 6 para. 1 is a question which has been debated during the past few years.   There are cases showing that the applicability of Article 6 para. 1 should be interpreted in the broadest possible sense.   It would be confusing if a person were entitled to a hearing before a tribunal in a small trifling case, whereas when it comes to such severe measures as the deprivation of liberty based on administrative provisions such proceedings should not be applied.           The question as to whether a decision of whether the applicant should be permanently released is a determination of her "civil rights and obligations" within the meaning of Article 6 para. 1 of the Convention must be answered in the affirmative.   42.      In the Swedish context the term "civil rights" in Article 6 para. 1 has been given an intepretation which is too narrow.   It is most likely that this restrictive interpretation is due to a debatable translation of the Convention into Swedish.   The term "civil rights" has been translated with "civila rättigheter", i.e. something like "civil law".   However, the term "civil rights" in the European Convention is a much broader concept.           In this respect a comparison can be made with the UN Covenant on Civil and Political Rights.   In the Swedish version the Covenant has been correctly translated, i.e. "medborgerliga och politiska rättigheter".           "Civil rights" are concerned essentially with what individuals may do within the law.   The term normally denotes the set of rules prescribed in various Bills of Rights in the Member States of the Council of Europe.   This broader interpretation of the term is supported by the practice of the European Commission and the European Court of Human Rights.           The above narrow interpretation would lead to absurd results. For instance, under Article 5 para. 4, any person who has been deprived of his or her liberty is entitled to take proceedings before a tribunal.   It is obvious that the hearing in all cases must be fair and public, that the tribunal must be independent and impartial. These conditions should not only be of relevance in cases when a person is accused of a criminal offence.   Thus, there must be a relation between Article 5 para. 4 and Article 6 para. 1 of the Convention.   43.      A Discharge Council cannot be characterised as a "tribunal" in the meaning of Article 6 of the Convention.   One of the members of a Discharge Council should be a medical doctor who is a specialist in psychiatry.   As a full member of the Discharge Council he is entitled and obliged to take part in the deliberations and the decision of the Council.   Because of his expertise he will have a disproportionate possibility to influence the decision.   In practice it will be extremely difficult for other members of the Council to act independently in the presence of the medical expert.           The Government argue that the Discharge Council shall be deemed equal to a court.   In doing so reference has been made to the Swedish Constitution Chapter 2 Section 9 (2).   Should a board like the Discharge Council have been considered as a court, subsection 2 would have been superfluous.   However, it was found necessary to include a special provision in the Constitution, by which a board like a Discharge Council became constitutional.   The fact that a Discharge Council has become legal according to the Swedish Constitution is of no relevance with respect to Article 6 of the Convention.   44.      A case is decided by the Discharge Council at a meeting which normally is held at the hospital.   As a rule the Chief Medical Officer of the hospital or the clinic must be present, unless there are particular reasons speaking against his presence.           If the case is determined in the absence of the applicant, the members of the Council should have obtained personal information about the patient before the decision.   If provisional discharge has been decided, it is enough if one of the members of the Discharge Council has personal information about the patient.   If there should be "particular reasons" an exception can be made with regard to the prerequisite of personal information.           In most cases the procedure before the Psychiatric Council is in writing.   In exceptional cases an oral hearing can be held, if the nature of the case so requires.   45.      As regards the procedure before the Discharge Council in the applicant's case it is likely that the reason for the applicant's absence - as in many other cases - is the patients' lack of confidence in the Discharge Council.   The procedure is considered as dissimulation.   46.      The applicant admits that as long as a person is actually being detained it would be easy to argue only under Article 5 para. 4, but in this case Article 6 is also applicable because of the decision on provisional discharge.   As the Government have pointed out, that means, among other things, that the person in question is forced to comply with certain directives without having any real access to a court where this decision could be changed or amended.   There exist quite a number of directives under a provisional discharge.   A condition for making use of these prescriptions is that the person is questioned first, has been detained and it has been found that the legal conditions for detention no longer apply.   Only in such a situation is provisional discharge possible and these binding prescriptions are possible.   But it is not, under the law, possible to issue prescriptions without the person in question having been detained.           In the applicant's view, this means that a civil right is at issue and it is necessary to have some kind of court proceedings in order to determine it.           It is stated in the travaux préparatoires that provisional discharge should not be considered as a kind of sanction.   On the other hand, from the point of view of the person in question, it is obviously a sanction.   47.      Article 6 para. 1 prescribes that the hearing must be public. This condition is not fulfilled with regard to the procedure before the Discharge Councils and the Psychiatric Council as the hearings are held in private.   The Government have argued that under the Convention public hearings may be excluded where the interests of the private life of the parties so require.   The application of this principle is, however, the prerogative of the person in question who may or may not ask for a hearing in private.   In a case where a person has been detained under the 1966 Act it is important that there is a possibility of holding hearings in private.   However, the main rule should be that hearings are public and that they will be in private only at the request of the person in question.   c.       Article 13 of the Convention   48.      It can be argued that the applicant has not enjoyed the guarantees of an effective remedy for the alleged violations of the Convention.   The applicant has been granted the rights provided for in Swedish law, but it is the legislation as such which has indirectly violated the Convention.   Accordingly, no effective remedy for the alleged violations was available, and Article 13 of the Convention has also been violated in the present case.     B.       The Government   a.       The facts   49.      The Government submit that the possibility of provisional discharge has been an important means of preparing patients for a final discharge.   This possibility is often an alternative to treatment in an institution.   It is 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 or her 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 which provides that the patient may be given instructions 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.   He could be ordered not to drink alcoholic beverages or be subjected to other rules of this kind.   b.       Article 5 para. 4 of the Convention   50.      The Government submit that Article 5 para. 4 deals with persons who are deprived of their liberty.   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 the opinion of the Government that the complaint falls outside the scope of Article 5 para. 4.   51.      Should the Commission find that Article 5 para. 4 applies to the provisional discharge, the Government submit that the proceedings before the Discharge Councils 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.   52.      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.   These Councils should therefore be considered equal to courts within the meaning of Article 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 ordinary 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 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 (instruktionen för utskrivningsnämnderna) and the Instruction for the Psychiatric Council (instruktionen för psykiatriska nämnden).   53.      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 procedure were met.   54.      Referring to the Vagrancy cases (Eur.   Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12), the Luberti case (Eur.   Court H.R., Luberti judgment of 28 February 1984, Series A no. 75) and to the Swedish law which in the Government's view 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.   c.       Article 6 of the Convention   55.      Since there is no question of a criminal charge against the applicant, the only situation in which Article 6 could, in the Government's view, be applicable in this case is that the matter before the Swedish authorities concerns the determination of her "civil r