CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 27154/95                       by D. N.                       against Switzerland         The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    S. TRECHSEL                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, 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 20 April 1995 by D. N. against Switzerland and registered on 28 April 1995 under file No. 27154/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       18 February 1997 and the observations in reply submitted by the       applicant on 4 April 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swiss citizen born in 1964, is a pensioner residing in St. Gallen.   Before the Commission she is represented by Mr B. Eugster, a lawyer practising in St. Gallen.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         Since 1989, the applicant has frequently been remanded in psychiatric detention.   On 14 November 1994 she went to Dr. E., a district doctor, who decided again to detain her in the Wil Cantonal Psychiatric Clinic on account of chronic schizophrenia and of constituting a danger to herself.         On 1 December 1994 the applicant applied for release from detention.   Her request was refused on the same day by the Dr. O., head doctor of the Wil clinic, who referred, inter alia, to a psychotic outbreak (Schub) of recurring schizophrenia and to her inability to accept her illness (mangelnde Krankheitseinsicht).         On 12 December 1994 the applicant's lawyer filed an action with the Administrative Appeals Commission (Verwaltungsrekurskommission) of the Canton of St. Gallen, requesting her release from detention.   She also requested that the expert who would examine her should not act as specialised judge (Fachrichter).         The Administrative Appeals Commission appointed Dr. R.W., a doctor specialised in psychiatry and psychotherapy, to conduct the judicial examination of the applicant and to provide, as expert, an expert opinion.   On 15 December 1994 Dr. R.W. heard the applicant at the Wil clinic.         On 19 December 1994 the Administrative Appeals Commission invited the parties to a hearing at the clinic.   The letter referred to Dr. R.W. as being one of the specialised judges on the bench and Rapporteur.         On 23 December 1994 Dr. R.W. submitted his expert opinion.   The opinion diagnosed a schizophrenic mental illness and found that the applicant could not be released in view of the required high doses of medication.   As a result, Dr. R.W. proposed to dismiss the action if the applicant's state of health did not clearly improve until the hearing.         The hearing took place on 28 December 1994 at the clinic.   The Administrative Appeals Commission heard two clinic doctors and the applicant. Her lawyer remained absent.         On 28 December 1994 the Administrative Appeals Commission dismissed the applicant's action.    The bench consisted of five judges, i.e. the President, Dr. R.S., who was a lawyer; Mr B.F., a lawyer; Mr R.G., a district director of social services; Mr K.S., an administrator of the caritative organisation Pro Infirmis; and Dr. R.W., the medical expert and Rapporteur.       In its decision, the Administrative Appeals Commission concluded, also with reference to Dr. R.W.'s expert opinion, that the applicant suffered from severe mental disturbances warranting her detention in a psychiatric institution.         Insofar as the applicant had requested an expert who would not be a member of the Administrative Appeals Commission, the decision found that the applicant had not substantiated her request.   Reference was made to the case-law of the Federal Court, in particular ATF 119 Ia 260 (see below, Relevant domestic law and practice) where that Court had not expressly prohibited the combination of expert and judicial functions.         The applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), complaining, inter alia, of the position of the expert Dr. R.W.   She relied on S. 58 of the Federal Constitution (Bundesverfassung) which enshrines the right to a judge established according to the Constitution (verfassungs- mässiger Richter, see below, Relevant domestic law and practice).   The applicant submitted that Dr. R.W. could not deal with the case as he had previously already dealt with it (Vorbefassung) by acting as an expert.         On 3 April 1995 the Federal Court dismissed the public law appeal, the decision being served on 12 April.   In respect of the position of the expert, the Court found, with reference to its own case-law (see below, Relevant domestic law and practice):   <Translation>         "In the letter ... of 19 December 1994 the legal representative       of the applicant was informed of the person of the expert, and       also that he would act as specialised judge and rapporteur.       Already in her action to the Administrative Appeals Commission       the applicant had provisionally requested that the expert should       not act as specialised judge.   However, she does not discuss the       contrary opinion of the Federal Court.   Along the lines of the       Federal Council's Message to the Parliament concerning the part       of the Civil Code dealing with committal to a psychiatric       institution, ... it has not been called in question that experts       within the meaning of S. 397e para. 5 of the Civil Code also act       as members of the deciding body ..., to the extent that their       position can at all be compared with that of a regular expert who       is consulted in evidence proceedings ...   It is true that the       Federal Court has recently described the combination of expert       and judicial functions as being 'not entirely unobjectionable'       ...   However, no change of case-law can be seen in that decision,       and the applicant has not shown today in what respect such a       change would be called for.   Her submissions cannot therefore be       admitted ..."   <German>         "Im ... Schreiben vom 19. Dezember 1994 ist dem Rechtsvertreter       der Beschwerdeführerin nicht nur die Person des Gutachters       mitgeteilt worden, sondern auch, dass es sich dabei um den       referierenden Fachrichter handle.   Bereits in ihrer Klage an die       Verwaltungsrekurskommission hat die Beschwerdeführerin       vorsorglich beantragt, der Gutachter dürfe nicht Fachrichter       sein.   Mit der gegenteiligen Meinung des Bundesgerichts setzt sie       sich indes nicht auseinander.   In Anlehnung an die bundesrätliche       Botschaft zur fürsorgerischen Freiheitsentziehung ... ist nämlich       nicht beanstandet worden, dass Sachverständige im Sinne von       Art. 397e Ziffer 5 ZGB der entscheidenden Instanz als Mitglieder       angehören ..., soweit deren Stellung überhaupt mit derjenigen       eines regelrechten Experten, der in einem Beweisverfahren       beigezogen wird, vergleichbar ist ...   Es trifft zwar zu, dass       das Bundesgericht erst kürzlich die Verquickung sachverständiger       und richterlicher Funktionen als 'nicht ganz unbedenklich'       bezeichnet hat ..., doch ist in jenem Entscheid weder eine       Praxisänderung zu erblicken, noch zeigt die Beschwerdeführerin       heute auf, inwiefern eine solche geboten sein sollte.   Darauf       kann deshalb nicht eingetreten werden ..."   B.     Relevant domestic law and practice   a)     Expert medical opinions in case of deprivation of liberty on       account of mental illness         S. 397a ff of the Swiss Civil Code (Zivilgesetzbuch) concern deprivation of liberty, inter alia, on account of mental illness. S. 397d provides that the person concerned may complain about detention before a judge.   S. 397f states that the procedure must be simple and speedy.         S. 397e, relating to the procedure, states in para. 5:   <Translation>         "In the case of mentally ill persons a decision can only be taken       after having consulted an expert; if in judicial proceedings this       has already happened, higher courts need not do so."   <German>         "Bei psychisch Kranken darf nur unter Beizug von Sachverständigen       entschieden werden; ist dies in einem gerichtlichen Verfahren       bereits einmal erfolgt, so können obere Gerichte darauf       verzichten."         The Federal Court (Bundesgericht) has developed an extensive case-law on this provision.   In ATF (Arrêts du Tribunal Fédéral) 119 II 321 it referred, in respect of such experts, to "the particular requirement of critical objectivity towards clinical doctors and psychiatrists" ("die hier besonders geforderte kritische Objektivität gegenüber den Klinikärzten und den Psychiatern").         In ATF 110 II 122 ff the Federal Court dealt with the issue whether the expert required in S. 397e para. 5 could act as a judge in the proceedings.   The decision stated:   <Translation>         "(t)his provision is complied with, if experts belong as members       to the deciding body.   ...   The purpose of the statutory       provision is that in the case of mentally ill persons, no       decision should be taken without the advice and the specialised       knowledge of psychiatrically trained doctors.   This will be the       case in an optimal manner, if such doctors participate as members       of the judicial body."<German>         "(E)s genügt für die Einhaltung dieser Vorschrift, wenn       Sachverständige der entscheidenden Instanz als Mitglieder       angehören.   ...   Der Sinn der gesetzlichen Anordnung besteht       darin, dass bei psychisch Kranken nicht ohne den Rat und das       Fachwissen psychiatrisch geschulter Ärzte entschieden werden       soll.   Das ist bei der Mitwirkung solcher Ärzte als Mitglieder       der gerichtlichen Instanz in optimaler Weise der Fall."         In ATF 118 II 249 ff the Federal Court again examined the issue. It stated:   <Translation>         "Clinical doctors are mainly civil servants ... and as such       depend to some extent on the State imposing the detention ...       For, if such doctors would have to be excluded as experts, sheer       unsolvable problems would arise particularly for the smaller       Cantons.   Furthermore, it could not be justified in any way to       regard clinical doctors as unsuitable within the meaning of       Section 397e para. 5 of the Civil Code, merely because they are       employees of the municipality.   What must be required is solely       an objective opinion of a specialised, neutral doctor."   <German>         "Klinikärzte (sind) zumeist Beamte ... und (stehen) als solche       in einem gewissen Abhängigkeitsverhältnis zum einweisenden Staat       ...   Denn müssten solche Ärzte überhaupt als Gutachter       ausgeschlossen werden, entstünden vor allem für kleinere Kantone       beinahe unlösbare Probleme.   Ausserdem liesse sich in keiner       Weise rechtfertigen, Klinikärzte, nur weil sie Angestellte des       Gemeinwesens sind, zum vornherein als ungeeignet im Sinne von       Art.   397e Ziff. 5 ZGB zu betrachten.   Zu verlangen ist einzig       ein objektives Gutachten eines fachkundigen neutralen Arztes."         In ATF 119 Ia 263 the Federal Court referred to the "not entirely unobjectionable combination of expert and judicial functions" ("nicht ganz unbedenkliche Verquickung sachverständiger und richterlicher Funktionen").   b)     Administrative Appeals Commission of the Canton of St. Gallen         The Administrative Appeals Commission (Verwaltungsrekurskom- mission) is the competent body to decide on matters of deprivation of liberty where a person contests detention.   The Commission has one fulltime judge and 24 to 30 specialised judges (Fachrichter), among them medical doctors (often psychiatrists) or social workers. The professional judges are appointed by the cantonal parliament, the non- professional judges and the specialised judges are appointed, upon proposal of the Administrative Tribunal of the Canton of St. Gallen, by the Government of the Canton of St. Gallen.   A judge's term lasts six years.         The Administrative Appeals Commission sits with five judges, among them regular judges and specialised judges.         The Administrative Appeals Commission may refrain from choosing an outside expert as it has its own specialised judges.      According to S. 71c para. 2 of the Act on Administrative Court Procedure (Gesetz über die Verwaltungsrechtspflege) of the Canton of St. Gallen, in the version then in force, after an action has been filed with the Administrative Appeals Commission the President will immediately order the questioning of the person concerned by a judge.   The questioning is undertaken by the judge Rapporteur who will then prepare an expert opinion (S. 6 of the Ordonnance on the Procedure of the Administrative Appeals Commission, Reglement über den Geschäftsgang der Verwaltungsrekurskommission).   c)     Available remedies         S. 58 of the Federal Constitution (Bundesverfassung) provides that nobody shall be deprived of his or her judge established according to the Constitution (verfassungsmässiger Richter).         The Federal Judiciary Act (Organisationsgesetz) envisages different remedies in last resort to the Federal Court (Bundesgericht), inter alia, a public law appeal (staatsrechtliche Beschwerde) and an appeal (Berufung).         S. 84 subpara. 1 (a) of the Federal Judiciary Act provides that a public law appeal serves to complain about breaches of constitutional rights.   This has been interpreted by the Federal Court as also including Convention rights.   S. 84 para. 2 provides that the public law appeal remains subsidiary to other remedies which can be filed with the Federal Court.         According to S. 43 para. 1 of the Federal Judiciary Act, an appeal serves to complain about breaches of federal law; however, it is stated that a breach of constitutional rights must be raised in a public law appeal.     COMPLAINTS   1.     The applicant complains that in these proceedings Dr. R.W. participated as a judge although he had acted in the same proceedings as an expert within the meaning of Section 397e para. 5 of the Swiss Civil Code.   Thus, Dr. R.W., who in his expert opinion proposed to dismiss the applicant's action, had already formed an opinion on the applicant's action.   As a result, she did not have an impartial tribunal within the meaning of Article 6 para. 1 of the Convention.   2.     In her observations in reply before the Commission, filed on 18 February 1997, the applicant also complained that the Administrative Appeals Commission was not, in fact, a "court" within the meaning of Article 5 para. 4 of the Convention.   She refers in particular to specialised literature which refers to the strong position of the Government (Regierungsrat) of the Canton of St. Gallen in the appointment of judges of the Administrative Appeals Commission, and in dealing with certain appeals.   The applicant also complained under Article 5 para. 4 of the Convention that the proceedings before the Administrative Appeals Commission breached the principle of the equality of arms, and that she was not properly heard when the expert was appointed.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 20 April 1995 and registered on 28 April 1995.         On 27 November 1996 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 18 February 1997.   The applicant replied on 4 April 1997.     THE LAW   1.     The applicant complains that in these proceedings Dr. R.W. participated as a judge although he had acted in the same proceedings as an expert within the meaning of Section 397e para. 5 of the Swiss Civil Code.   Thus, Dr. R.W., who in his expert opinion proposed to dismiss the applicant's action, had already formed an opinion on the applicant's action.   As a result, she did not have an impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission has examined this complaint under Article 5 para. 4 (Art. 5-4) of the Convention which states:         "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."   a)     The respondent Government contend that the applicant has not complied with the requirement under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies, as she did not file the correct remedy with the Federal Court.   Thus, she filed a public law appeal. In fact, she was complaining of a breach of S. 397e para. 5 of the Swiss Civil Code.   However, an appeal would have been the correct remedy to complain in last resort to the Federal Court about a breach of Federal law, in particular S. 397e para. 5 of the Swiss Civil Code.   According to S. 84 para. 2 of the Federal Judiciary Act, the public law appeal remains subsidiary to other remedies which can be filed to the Federal Court.         The applicant submits that before the Federal Court she invoked the correct remedy by filing a public law appeal, as she complained of a breach of her constitutional rights.   Thus she complained of a breach of her right under S. 58 of the Federal Constitution which enshrines the right to a judge established according to the Constitution.   The applicant notes that the Federal Court did not declare her public law appeal inadmissible as she had filed the incorrect remedy.         Under Article 26 (Art. 26) of the Convention "the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...".         In the present case, the applicant wished to complain of a breach of her constitutional rights under S. 58 of the Federal Constitution. In the Commission's opinion, the public law appeal which she employed was the correct remedy, since according to S. 84 subpara. 1 (a) of the Federal Judiciary Act, it serves to complain of a breach of constitutional rights.   A confirmation herefor can be found in the decision of the Federal Court of 3 April 1995 which did not declare the applicant's public law inadmissible as it was the incorrect remedy.         The applicant's complaints cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies.   b)     The Government submit that the applicant was heard by a "court" as required by Article 5 para. 4 (Art. 5-4) of the Convention.   It is submitted that no court of law of the classic kind is required which is integrated within the standard judicial machinery of the country (see Eur. Court HR, Weeks v. United Kingdom judgment of 2 March 1987, Series A no. 114, p. 30, para. 61).   Moreover, the particular procedures must be adapted to the circumstances of the case, and States are free to choose different methods of performing their obligations under Article 5 para. 4 (Art. 5-4) of the Convention (see X. v. United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, para. 52).         The Government further contend that Dr. R.W., who heard the applicant on 15 December 1994, complied with the requirements under S. 397e of the Swiss Civil Code and S. 71c para. 2 of the Act on Administrative Court Procedure of the Canton of St. Gallen.   Dr. R.W. was chosen in view of his specialised knowledge.         In the Government's opinion, it cannot be said that Dr. R.W. acted first as expert psychiatrist and then as judge.   In fact, when he conducted the specialised examination of the applicant, he was already acting within judiciary proceedings in his function as judge, and it was as a judge that he established his report for the Administrative Appeals Commission.   Moreover, Dr. R.W. assumed these functions within one and the same proceedings.   He can thus be compared with a judge, for instance, who is instructed by the court to undertake a visit of the scene.   Indeed, after Dr. R.W. had prepared the opinion, the Administrative Appeals Commission conducted a hearing where all judges were present and where the applicant could put forward her grounds for contesting detention.   This hearing "compensated" the strong position which Dr. R.W. had as judge rapporteur.   The applicant's lawyer, on the other hand, was absent at the hearing as he was on holidays.         The applicant submits that in view of the expert opinion which Dr. R.W. had prepared, he had a preconceived opinion when he decided as a judge on her case.   This preconceived opinion played an even bigger part in the present case as the other judges knew nothing about the matter (völlig ahnungslos waren) and had to rely completely on Dr. R.W. as the only psychiatrist on the bench.         The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that the application is not manifestly ill- founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.   2.     The applicant also complains that the Administrative Appeals Commission was not a "court" within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention in view of the role of the Government of the Canton of St. Gallen.   Under this provision she also complains of a breach of the equality or arms, and that she was not properly heard when the expert was appointed.         Even assuming that the applicant had complied with the requirements under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies, the Commission notes that the decision of the Federal Court of 3 April 1995 was the final decision in the applicant's case, whereas these complaints were submitted by the applicant for the first time in her observations filed with the Commission on 18 February 1997, that is, more than six months after the date of that decision.         It follows that the remainder of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case, insofar as it relates to the applicant's       complaint that she did not have a "court" within the meaning of       Article 5 para. 4 of the Convention in view of the position of       Dr. R.W. as expert and as judge; and         DECLARES INADMISSIBLE the remainder of the application.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber