CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1993

.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. 19076/91                       by Ann-Margret NORDBLAD                       against Sweden             The European Commission of Human Rights (Second Chamber) sitting in private on 13 October 1993 the following members being present:   Present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                    Mr.   K. ROGGE, Secretary to the Chamber             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 June 1991 by Ann-Margret Nordblad against Sweden and registered on 14 November 1991 under file No. 19076/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant is a Swedish citizen born in 1967.   In the proceedings before the Commission she is represented by her father, Mr. Leif Nordblad, at the time of the events described below residing at Oxie, near Malmö.         The facts of the case, as submitted by the applicant, may be summarised as follows.         Since 18 September 1989 she is subject to compulsory psychiatric care pursuant to section 1 (a) and (c) of the 1966 Act on Institutional Psychiatric Care (lagen om beredande av sluten psykiatrisk vård i vissa fall - the "1966 Act" below) and placed at the Malmö General Hospital (Allmänna sjukhus).   The above-mentioned provisions read :         "1. 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       ...       (c)   as a result of his disease is incapable of taking care of       himself ...".         On 25 July 1990 the applicant disappeared from the mental hospital were she was detained.   The police were informed and a detention warrant issued.   On 28 August 1990, after contact had been established with the applicant, the Chief Physician at the hospital, Dr. G.J., decided that she should be provisionally discharged until 30 November 1990.   On 5 September 1990 the Chief Physician added the condition that the applicant should allow   doctor L. to examine her state of health at least once a week.   The decision indicated that any complaints regarding the condition imposed should be lodged with the Discharge Council (utskrivningsnämnden) in Lund.         On 6 September 1990 the Police Authority in Malmö received a telephone request from Sheriff K. in Iowa, USA, for information regarding the applicant.   Sheriff K. stated that he had been contacted by relatives of the applicant who had presented letters from the applicant's father indicating that he intended to come to them in the USA with the applicant as she was wanted by the Swedish police and was being detained in a psychiatric hospital against her will.   Sheriff K. wished to know whether the information contained in the letters was correct as, if that was so, the relatives in Iowa did not wish to receive the applicant and her father.   In response to this request the Police Authority in Malmö contacted the Chief Physician of the mental hospital who decided to revoke the conditional discharge and to request the assistance of the police in bringing the applicant back to the hospital.   The applicant was found by the police the same afternoon and brought to the hospital.   Sheriff K. was informed of the developments the same day.       The applicant's father first challenged the redetention decision by requesting compensation from the State for two unused airline tickets and for the damages caused on his property when the police fetched his daughter.   By decisions of 3 and 14 December 1990 the Chancellor of Justice (justitiekanslern), as representative of the Government, refused compensation finding no liability for the damages claimed.   No proceedings for damages were brought before the courts.         The father also complained to the Parliamentary Ombudsman (justitieombudsmannen).   However, after having heard the explanations given by the local health care director (Sjukvårdsdirektören) and considered the applicant's medical records, the Ombudsman found, by decision of 29 January 1991, no cause for any action on his part.         The father also wrote to the Government requesting permission for his daughter to leave Sweden.   In her reply of 7 February 1991, the competent Minister informed the applicant that no such permission was required for persons wishing to leave Sweden but that limitations on the freedom of movement might nevertheless be imposed by parliamentary legislation, inter alia, in the case of mentally ill persons.   The Minister also drew the father's attention to the provisions of the 1978 Passport Act (passlag) according to which passports could be refused or recalled in respect of persons detained in a mental hospital. The Minister also advised the applicant that the task of implementing the legislation in his daughter's case fell on the mental hospital where she was detained and that the law had provided for possibilities of review of detention decisions to the Discharge Council and thereafter to the Psychiatric Board (psykiatriska nämnden); the Government, however, had no power of review in these kinds of cases.         A medical certificate dated 5 June 1991 by Dr. E.D. states the following in respect of the applicant's mental state after 13 November 1990:         "[The applicant] was transferred to department 86 on 13 November       1991 (sic!).   [She] was at the time taken into compulsory care       pursuant to the 1966 Act.   [She] exhibited a split mind and was       unstructured.   Now and then she became psychotic and emotionally       isolated.   No insight into her condition.   The undersigned found       her to be in need of continued care pursuant to section 1 (a) and       (c) of the 1966 Act.   When [the applicant] was anew examined on       29 November 1990, she presented paranoid tendencies and symptoms       on the border of psychosis.   On this occasion she was also       strongly minimising her problems and was giving free reins to her       imagination."         On 27 June 1991 the father wrote to the Discharge Council requesting information as to whether or not his daughter's provisional discharge had been revoked on 6 September 1990.   The Council replied on 8 July 1991 that this was so.         A document dated 3 July 1991 and signed by the father indicates that the passport authority decided to recall the applicant's passport on the same day at the father's request.   There is no indication of the applicant having availed herself of her right, provided for in section 27 of the 1978 Passport Act, to appeal against this decision.       On 10 July 1991 the local tax authority (lokala skatte- myndigheten), which is responsible for the register of persons domiciled in Sweden, refused a request from the applicant to be struck from this register.   The authority stated that, as the applicant's parents had informed it that the applicant did not have any valid passport, it was not likely that she would be leaving Sweden.         On 19 July 1991 the applicant reiterated her request to be struck from the register of persons domiciled in Sweden.   The local tax authority again refused to accede to the request and indicated that it had sent the matter to the County Administrative Court (länsrätten). There is no indication that the matter was pursued before the County Administrative Court.         On 27 September 1991 the applicant's father appealed to the Discharge Council against the redetention decision of 6 September 1990 and requested that his daughter be set free.   The father did not specify any reasons for his appeal.   On 13 November 1991 the Discharge Council rejected the appeal as it found, on the basis of, inter alia, a medical certificate produced by Chief Physician G.J., that there were no reasons to question the redetention decision.   The Discharge Council furthermore found established, on the basis of another medical certificate produced by Dr. E.D., at the time Assistant Chief Physician, that the applicant was mentally ill without being aware of her illness and in need of compulsory care as she needed treatment and could not take care of herself.         The father appealed to the Psychiatric Council invoking summarily his "legal rights in Sweden".   As a result of a change in the law on 1 January 1992, appeals against the Discharge Council's decisions were henceforth to be examined by the administrative courts of appeal (kammarrätterna).   The father's appeal was, accordingly, transferred to the Administrative Court of Appeal in Stockholm which rejected the appeal on 16 January 1992.   The judgment stated inter alia:         "The case-file shows that [the applicant] suffers from a serious       mental disorder and that this disorder and her other personal       conditions make is necessary for her to receive psychiatric care.       Her need of care must be considered such as not to leave any       alternative but full time care in a hospital.   The medical       certificate submitted by Dr. E.D. to the Psychiatric Council       shows that [the applicant] experiences her illness but that she       does not have any real insight into her condition.   It must       therefore be considered obvious that she does not have the       necessary capacity to express a well-founded opinion on her need       of care.   In view of the above the requirements for continued       compulsory care continue to be met.   In these circumstances, the       appeal shall be dismissed."         The applicant's father's request for leave to appeal to the Supreme Administrative Court (Regeringsrätten) was refused by the Court on 7 February 1992.         In the meantime, on 7 November 1991 the applicant was, in accordance with her request, struck from the list of members of the Church of Sweden.         On 25 November 1991 the applicant's parents applied to the County Administrative Court in Malmö in order to obtain what they referred to as an "emigration certificate".   Such a document being unknown in Swedish law, the court informed them that it could not help them in this respect.   On 25 November 1991, the applicant's father applied to the Embassy of the USA in Sweden for political asylum on behalf of the applicant stating that she was not allowed to decide herself about her personal belongings.   No reply appears to have been given to this application.         On 14 and 15 May 1992, respectively, the applicant's father and mother were struck from the register of persons domiciled in Sweden (folkbokföringen) as they had informed the local tax authority that they had emigrated, together with the applicant, to the USA for humanitarian and religious reasons.   The local tax authority did not, however, strike the applicant from the register.         On 28 September 1992 the father applied to the National Immigration Board (Statens Invandrarverk) to have his family relieved of Swedish citizenship.   By letter of 1 October 1992, the Board informed the father that it was not possible to be relieved of one's Swedish citizenship in order to become stateless; the only way to lose one's Swedish citizenship was to become citizen of another country.         On 23 December 1992, the applicant's father applied on behalf of his family to the Aliens Board (utlänningsnämnden - one of the authorities deciding about the right of aliens to stay in Sweden under the 1989 Aliens Act (utlänningslagen)), for refugee status in Sweden awaiting their emigration to the USA.         An extract from the passport register issued on 19 March 1993 indicates that the applicant possesses a passport valid until 20 August 1997.     COMPLAINTS         1. The applicant alleges that her redetention on 6 September 1990 violated Article 5 para. 1 of the Convention in that her intended trip to the USA could not be a lawful ground for revoking her provisional discharge.   She also alleges a violation of Article 5 para. 2 of the Convention.         2. She also maintains that the refusal to allow her to go to the USA violates Article 2 para. 2 of Protocol No. 4.         3. The applicant also alleges violations of Articles 3, 9 and 14 of the Convention and of Article 3 of Protocol No. 4.   THE LAW         1. The applicant alleges that her redetention on 6 September 1990 violated Article 5 para. 1 (Art. 5-1) of the Convention in that her intended trip to the USA could not be a lawful ground for revoking her provisional discharge.   She also alleges a violation of Article 5 para. 2 (Art. 5-2).   These provisions read in relevant parts:         "1.   Everyone has the right to liberty and security of       person.   No one shall be deprived of his liberty save in       the following cases and in accordance with a procedure       prescribed by law:       ...       e.    the lawful detention ... of persons of unsound mind       ... ;       ...       2.    Everyone who is arrested shall be informed promptly,       in a language which he understands, of the reasons for his       arrest and of any charge against him."         The Commission recalls at the outset that whether a person who is provisionally discharged from mental hospital is still deprived of his liberty or not will depend on the scope and nature of the conditions imposed (see No. 12778/87, Dec. 9.12.88, D.R. 59, p. 158). An examination of the conditions imposed in the present case does not disclose that these were so severe as to amount to a deprivation of liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention (cf. ibid.).   The applicant's redetention on 6 September 1990 did, however, clearly amount to a deprivation of liberty which, accordingly, had to meet the requirements of Article 5 para. 1 (Art. 5-1-e), in particular those of sub-para. (e).         In order for this redetention to be justified under sub-para. (e) it had to constitute the "lawful" detention of a person of "unsound mind" within the meaning of this provision.   A mere breach of the conditions attaching to the provisional release would not, under the Convention, justify renewed detention under this provision.   The Commission first observes that there is nothing to suggest that the redetention decision was not lawful under domestic law.   On the basis of the material submitted, the Commission, furthermore, finds no indication of arbitrariness in the domestic authorities' assessment that the applicant was a person of "unsound mind" at the time this decision was taken (see, Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A No. 33, p. 17-18, para. 39).   The Discharge Council based its conclusion to this effect on, inter alia, a medical certificate issued by the Chief Physician responsible for the redetention decision and the Administrative Court of Appeal upheld, after a renewed examination of the merits of the case, this conclusion; the redetention decision was also examined by the Parliamentary Ombudsman who did not, after having conducted an examination of his own, find any reason for criticism.   The Commission observes, in addition, that the applicant had been subject to compulsory care on account of her mental state without interruption since September 1989 and both the Discharge Council and the Administrative Court of Appeal found, on the basis of a further medical certificate issued by another doctor, that she was still at the time of the proceedings in need of such care on account of her mental illness.       The applicant complains that her redetention was nevertheless unjustified because it was based on her intention to leave Sweden to go to the USA.   The Commission finds, however, that this complaint relates mainly to her rights under Article 2 of Protocol No. 4 (P4-2), which appears as the lex specialis in this context, and will examine it in the light of the requirements of that provision.         In view of the above, the Commission concludes that the redetention of the applicant on 6 September 1990 does not disclose any appearance of a violation of Article 5 para. 1 (Art. 5-1) of the Convention.         As regards the applicant's complaint of a violation of Article 5 para. 2 (Art. 5-2), the Commission has found no indication to the effect that the applicant was not adequately informed of the reasons for her redetention.   Accordingly, it finds no appearance of a violation of this provision (cf Eur. Court H.R., Van der Leer judgment of 21 February 1990, Series A No. 170, paras. 27-30).         It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         2. The applicant maintains, however, that the refusal to allow her to go to the USA violates Article 2 of Protocol No. 4 (P4-2). This provision reads :         "1.   Everyone lawfully within the territory of a State       shall, within that territory, have the right to liberty of       movement and freedom to choose his residence.         2.    Everyone shall be free to leave any country, including       his own.         3.    No restrictions shall be placed on the exercise of       these rights other than such as are in accordance with law       and are necessary in a democratic society in the interests       of national security or public safety, for the maintenance       of ordre public, for the prevention of crime, for the       protection of health or morals, or for the protection of       the rights and freedoms of others.         4.    The rights set forth in paragraph 1 may also be       subject, in particular areas, to restrictions imposed in       accordance with law and justified by the public interest in       a democratic society."         The Commission recalls that pursuant to Article 26 (Art. 26) of the Convention it is only competent to examine complaints after domestic remedies have been exhausted. The present case raises a number of issues in respect of this requirement.         The Commission notes first that the applicant's different requests in this matter to the Chancellor of Justice, the Parliamentary Ombudsman, the Swedish Government, the local tax authority, the County Administrative Court and the Aliens Board cannot be considered as relevant for the purpose of exhausting domestic remedies as none of these authorities had the power to intervene and take any decision in the case relating to her compulsory treatment in a mental hospital or otherwise any powers of relevance for her right to leave the country (see, as regards the Chancellor of Justice, No. 10371/83, dec. 6.3.85, D.R. 42, p. 127 and, as regards the Parliamentary Ombudsman, No. 3893/68, dec. 16.3.70, Collection 33 p. 8).   The Commission also notes that there are certain uncertainties as regards the applicant's possession of a valid passport.   However, even if her passport would have been cancelled at some stage, she has in any event not availed herself of her right to appeal against any such decision.         Finally, the Commission notes that the applicant's father challenged the lawfulness of the redetention decision of 6 September 1990 before the Discharge Council and the administrative courts.   However, he has not provided any material to show that he brought the present complaint to the attention of the domestic authorities. Instead, his appeal was worded in general terms.   It is, accordingly, doubtful whether it could be seen as encompassing the applicant's complaint regarding her right to be free to leave her country.   The wording of the appeal also raises the question whether it was really an appeal on behalf of the applicant.   The Commission does not, however, find it necessary to determine these questions as it has in any event reached the conclusion that the applicant's complaint on this point is manifestly ill-founded.         The Commission recalls that it has held that detention in conformity with the requirements of Article 5 para. 1 (Art. 5-1) of a convicted prisoner will imply a justified limitation of the prisoner's right to leave the country where he is detained (see No. 10893/84, Dec. 2.12.85, D.R. 45 p. 198).   Similar considerations may apply in the case of a person who is detained on the ground of mental illness mainly on account of his need to receive treatment and his inability to take care of himself.   The Commission does not, however, find it necessary to resolve this question in the present case as it has in any event found the applicant's redetention to be justified under para. 3 of Article 2 of Protocol No. 4 (P4-2-3).         The Commission has found above that this measure met the requirements of Article 5 para. 1 (e) (Art. 5-1-e).   In particular, it has found that the redetention was "lawful" for the purposes of this provision. Accordingly, it also finds that the measure was "in accordance with law" for the purposes of Article 2 of Protocol No. 4 (P4-2).         Furthermore, the Commission finds no reason to doubt that redetention was necessary in a democratic society for the purpose of protecting the applicant's health: the measure was decided in response to information from the USA to the effect that the applicant intended to go to that country for an unspecified period of time although no form of adequate care or supervision had been organised there, either by her, her father, her relatives there or someone else.         It follows that this part of the application is also manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.         3. The applicant also alleges violations of Articles 3, 9 and 14 of the Convention and of Article 3 of Protocol No. 4 (Art. 3, 9, 14, P4-3).       The Commission notes that these complaints have been worded in very general terms.   After examining the material submitted it has found nothing to substantiate them.   As regards in particular the applicant's right to religious freedom, the Commission notes that she was allowed to leave the Church of Sweden upon simple notification of her wish to do so (cf. Darby v. Sweden, Comm. Report 9.5.89, para. 45, Eur. Court H.R., Series A No. 187, pp. 17-18).         It follows that the remaining complaints are also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber         President of the Second Chamber               (K. ROGGE)                            (S. TRECHSEL)