CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 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 }                              AS TO THE ADMISSIBILITY OF                         Application No. 12778/87                       by W.                       against Sweden             The European Commission of Human Rights sitting in private on 9 December 1988, the following members being present:                 MM. C. A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C. L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 12 February 1987 by W. against Sweden and registered on 2 March 1987 under file No. 12778/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is a Swedish citizen, born in 1955 and residing at Malmö.           On 29 October 1986 the applicant was involuntarily admitted to the psychiatric ward of a hospital (Malmö östra sjukhus) by a decision of a chief doctor at the hospital under the Act on Institutional Psychiatric Care (lagen om beredande av sluten psykiatrisk vård).           On 30 October 1986 the chief doctor found that the applicant could be provided care pursuant to the Act on Institutional Psychiatric Care.           The applicant appealed against the above decisions to the Discharge Council (utskrivningsnämnden) of Lund requesting that the decisions be quashed and that she be discharged.           On 17 November 1986 the Discharge Council, stating that the mental illness of the applicant had required her admission to hospital, upheld the decision of 29 October and declined to discharge her.   On the other hand the Council found that there could be no objection to discharging the applicant on a provisional basis.   The Discharge Council consequently ordered that the applicant be discharged on a provisional basis until the end of April 1987.   It further ordered that, during the provisional discharge, the applicant should take medicine (neuroleptika) and present herself for medical control at the hospital every second week.           The applicant appealed against this decision to the Psychiatric Council (psykiatriska nämnden).   On 10 February 1987 the Psychiatric Council, agreeing with the Discharge Council that treatment was required, rejected the appeal.   The Psychiatric Council gave the following reasons:   "From the documents in the case it is established that you suffer from such mental disease as referred to in Section 1 of the Act on Institutional Psychiatric Care.   From the documents it is also established that psychiatric care under the provisions of the said Act is absolutely necessary in view of the degree and character of the disease and in view of the fact that you, as a result of the disease, obviously lack understanding of the disease and since your state of health can be significantly improved by care and can significantly deteriorate if you do not receive care - Section 1 para. 1 (a) of the Act on Institutional Psychiatric Care.   The conditions for providing care under Section 1 of the Act on Institutional Psychiatric Care are satisfied.   Moreover, for your treatment it is necessary that you comply with the prescription given for your provisional discharge."     COMPLAINTS   1.       The applicant maintains that, having been deprived of her liberty, she did not have the right to take proceedings by which the lawfulness of her detention could be examined by a court.   She alleges a violation of Article 5 para. 4 of the Convention arguing that the Discharge Council and the Psychiatric Council do not satisfy the requirements of a court as required by that provision.   2.       The applicant also requests compensation under Article 5 para. 5.     THE LAW   1.       The applicant complains that she did not have access to a court satisfying the conditions of Article 5 para. 4 (Art. 5-4) of the Convention for the purpose of challenging the decision of 30 October 1986 to commit her for treatment pursuant to the Act on Institutional Psychiatric Care.   Article 5 para. 4 (Art. 5-4) of the Convention reads:   "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."           The Commission observes that the applicant could take, and did take, proceedings before the Discharge Council in order to have examined the lawfulness of her detention.   The result of those proceedings was that the applicant was discharged provisionally.   The provisional discharge was accompanied by an order that the applicant should take medicine and present herself for medical control at the hospital once every second week.   The Commission considers that these conditions attached to the provisional discharge were not so severe that the applicant's situation after her provisional discharge could be characterised as a deprivation of liberty (cf.   Eur.   Court H.R., Guzzardi judgment of 6 November 1980, Series A no. 39, p. 33, para. 92 and Commission's decision on admissibility, No. 9990/82, Dec. 15.5.84, D.R. 39 p. 119).           Consequently, the Commission's examination must be based on the finding that the applicant's deprivation of liberty terminated as a result of the provisional discharge ordered by the Discharge Council.           The question therefore arises whether the applicant can still claim to be a victim of a violation of the procedural guarantees of Article 5 para. 4 (Art. 5-4) of the Convention.   In this context the Commission recalls that it has on several occasions held that an applicant who has complained of violations of the procedural guarantees in Article 6 (Art. 6) of the Convention in criminal proceedings against him can no longer claim to be a victim if, at the end of the proceedings, he is acquitted.   In such cases the Commission has considered that the alleged violations of Article 6 (Art. 6) had been rectified by the acquittal and that the applicant could not legitimately pursue a complaint before the Commission (see e.g.   No. 8083/77, Dec. 13.3.80, D.R. 19 p. 223).           The Commission considers that similar considerations apply in the present case.   The purpose of Article 5 para. 4 (Art. 5-4) of the Convention is to provide a safeguard against arbitrary detention by enabling persons actually deprived of their liberty to take proceedings before a "court" to have the legality of the detention examined.   Since the applicant was released as a result of the procedure before the Discharge Council there is no purpose in examining whether the procedure before that Council satisfied Article 5 para. 4 (Art. 5-4) as any procedural inadequacy must be considered to have been rectified by the applicant's release.           Consequently, the applicant can no longer claim to be a victim of a violation of Article 5 para. 4 (Art. 5-4) in respect of the procedure before the Discharge Council.           Moreover, insofar as the applicant's complaint is directed against the procedure before the Psychiatric Council, the Commission considers that, since the applicant was discharged when she appealed to the Psychiatric Council, Article 5 para. 4 (Art. 5-4) of the Convention did not apply to the applicant's situation.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant complains further that she has no right to compensation for the alleged deprivation of her liberty, contrary to Article 5 para. 5 (Art. 5-5) of the Convention, which reads:   "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."           The right to compensation under this provision presupposes that a violation of one of the other paragraphs of Article 5 (Art. 5) of the Convention has been established either by a domestic organ or by the Convention organs (cf.   No. 7950/77, Dec. 4.3.80, D.R. 10 p. 213).           In the present case, the Commission has found the applicant's complaint under Article 5 para. 4 (Art. 5-4) of the Convention manifestly ill- founded.   Nor is there any indication of a violation of any of the other paragraphs of Article 5 (Art. 5-4) of the Convention.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)