CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 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. 27613/95                       by P. B.                       against Switzerland            The European Commission of Human Rights (First Chamber) sitting in private on 3 December 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                 M. VILA AMIGÓ            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 29 May 1995 by P. B. against Switzerland and registered on 14 June 1995 under file No. 27613/95;        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      8 April 1997 and the observations in reply submitted by the      applicant on 20 May 1997;        Having deliberated;        Decides as follows:     THE FACTS        The applicant, a Swiss citizen born in 1955, is currently residing in Amriswil in Switzerland.   Before the Commission he is represented by Mr M. Hug, a lawyer practising in Winterthur.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In 1977 criminal proceedings were introduced against the applicant in the Canton of Thurgau, inter alia, on account of attempted fraud.   Following the applicant's psychiatric examination, the proceedings were terminated (eingestellt) on 15 February 1977 as he was found to lack full criminal responsibility (Zurechnungsunfähigkeit).        On 6 April 1977 the applicant was placed under guardianship (Vormundschaft) in view of his mental illness.        The applicant was then ordered to submit as an out-patient to psychiatric treatment.   As he failed to do so, the Weinfelden District Court placed the applicant in psychiatric detention on 4 September 1979.        Against this decision the applicant filed an appeal.   In reply, the President of the Court of Appeal (Obergericht) of the Canton of Thurgau informed the applicant on 10 July 1980 that, as he was placed under guardianship, only his guardian (Vormund) could file an appeal. As the latter had not done so, the decision of 4 September 1979 had become legally binding (rechtskräftig).        In 1981 the applicant fled from the psychiatric institution and settled in Germany.   In 1984 he was transferred to Switzerland where the authorities of the Canton of Thurgau placed him in psychiatric detention in Münsterlingen.        The applicant filed requests for his immediate release from detention on 9 and 23 August 1993.        On these requests, the authorities of the Canton of Thurgau obtained the views of the applicant's guardian on 21 October 1993.        Meanwhile, the applicant consulted the lawyer Sch. who on 28 October 1993 requested the applicant's release from detention.   In the subsequent proceedings Sch., who resides in the Canton of Zürich, represented the applicant.        On 1 November 1993 the Department for Justice and Security (Department für Justiz und Sicherheit) of the Canton of Thurgau gave its decision on "(the applicant's) request for release on probation" ("Gesuch um bedingte Entlassung [des Beschwerdeführers]").   In its decision, in which the Department referred to the applicant's requests filed on 9 and 23 August 1993, it ordered the applicant's continuing detention based on S. 43 of the Swiss Penal Code (see below, Relevant domestic law).        The Department noted in particular the clear statements of the medical expert concerned and of the Guardianship's Office (Amtsvormundschaft).   The decision further noted that the applicant suffered from a mental illness and had "an urge to write" (Schreibsucht), hardly a day passing without the applicant sending at least one letter (mail orders, marriage announcements, advertisements etc.).        The applicant's appeal of 7 November 1993 against this decision was dismissed by the Department for Justice and Security of the Canton of Thurgau on 15 November 1993.        The Department's decision, referring to the applicant's request for release of 28 October 1993, noted the necessity under S. 43 of the Penal Code to detain the applicant on account of his mental illness and the "offences committed" (begangene Delikte).   The Department noted in particular that the original criminal proceedings had been terminated in view of the applicant's condition, not for lack of evidence.   The decision stated that "had the proceedings been correctly concluded, (the applicant) would in view of the overwhelming evidence indubitably have been sentenced to imprisonment" ("dass er bei ordentlicher Beendigung des Verfahrens - aufgrund der erdrückenden Beweislage - unzweifelhaft zu einer Zuchthaus- oder Gefängnisstrafe verurteilt worden wäre").        The Department furthermore found that the proceedings had so far been conducted speedily and without any delay.   It refused the applicant's request to have his lawyer Sch. officially appointed as lawyer (unentgeltlicher Rechtsbeistand) as the latter did not reside in the Canton of Thurgau.        On 21 November 1993 the applicant filed an appeal (Beschwerde) with the Administrative Court (Verwaltungsgericht) of the Canton of Thurgau.        On 26 and 29 November 1993 the Department for Justice and Security filed observations on the appeal.        On 29 November 1993 the Administrative Court fixed a hearing for 8 December 1993.   On this date, the applicant, a doctor from the psychiatric hospital and two witnesses were heard.        The hearing continued on 15 December 1993 when the Administrative Court heard the applicant's guardian and the legal representative of the Guardianship's Office.   On the same day the Court dismissed the applicant's request for immediate release and ordered a medical examination of the applicant.        On 22 December 1993 the Administrative Court's decision to order the applicant's medical examination was transmitted to the expert.   On 24 December 1993 the applicant requested the appointment of a second expert.   This request was dismissed by the Court on 12 January 1994, though it decided to add further questions to the ones transmitted on 22 December.        The medical expert submitted his opinion on 12 February 1994.        On 16 February 1994 the Administrative Court requested the applicant and the authorities to submit their observations on the medical expert opinion within ten days.   The applicant and the psychiatric clinic filed their observations on 24 February 1994.   The expert proposed by the applicant submitted his observations on 28 February and 1 March 1994.   The Department for Justice and Security filed its observations on 28 February 1994.        On 2 March 1994, the Administrative Court gave its decision which was served on the applicant on 18 March 1994.   In its decision, the Court ordered the applicant's release from detention on probation, while placing him under supervision (Schutzaufsicht).        In its decision, the Administrative Court found that the decision on "the applicant's request of 9 August/28 October 1993" ("das Gesuch des Beschwerdeführers vom 9. August/28. Oktober 1993") for release had been given speedily, and that delays could be explained with the preparation of the medical expert opinion.   The Court also noted that it did not transpire from the case-file that the applicant had consistently had an examination (lückenlose Überprüfung) of his detention, though Article 5 para. 4 of the Convention did not give a right to an automatic review, and the applicant had failed to request such an examination.        The Administrative Court further found that according to the expert opinion the applicant suffered from a psychological abnormality, in particular of a mental weakness (Geistesschwäche), rather than a mental illness, and that the applicant's detention was an inadequate measure.   As a result, his release on probation was called for.        The Administrative Court also dismissed the applicant's request for legal aid, as the lawyer Sch. did not practise in the Canton of Thurgau.        The applicant was released from detention on 18 March 1994.        Against the decision of the Administrative Court the applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht), raising various complaints under Articles 3, 5 and 6 of the Convention about his psychiatric detention. In his administrative law appeal the applicant complained, inter alia, under Article 6 para. 2 of the Convention that it had never been determined whether the applicant had committed a criminal offence in 1977.        The applicant also filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court, requesting in particular legal aid and the retroactive appointment of lawyer Sch. as official lawyer.        After obtaining the observations of the Federal Office of Justice on 5 July 1994, the Federal Court dismissed the applicant's appeals in two decisions.        On 9 September 1994 the Federal Court dismissed the applicant's administrative law appeal, the decision being served on the applicant on 30 November 1994.        Insofar as the applicant complained that the Weinfelden District Court on 4 September 1979 had not examined whether the applicant had at all committed a criminal offence, the Federal Court found that the applicant had failed to contest the letter of the President of the Court of Appeal of the Canton of Thurgau of 10 July 1980 and that the decision of the Weinfelden District Court had, therefore, acquired legal force.   For the same reason the Court dismissed the applicant's complaints under Article 6 para. 2 of the Convention.        The Federal Court further dismissed the applicant's complaint that the proceedings at issue had not been conducted speedily within the meaning of Article 5 para. 4 of the Convention.   It considered that the proceedings commenced on 28 October 1993; the applicant's submissions of 9 and 23 August 1993 could be regarded as having been included in the separate annual proceedings which the authorities were obliged to conduct in respect of the applicant's release from detention.   Moreover, the fact that two administrative instances had examined the applicant's request did not substantially prolong the proceedings.   The proceedings before the Administrative Court were time-consuming (zeitaufwendig) and complicated, involving over 200 documents, in particular the many statements of the applicant.        The Federal Court also dealt with the applicant's complaint that S. 45 of the Penal Code had not been complied with in that he should have had an ex officio annual examination of his detention.   The Court noted the Administrative Court's decision according to which it did not transpire from the case-file whether the applicant had had this annual examination.   However, the Court found that the applicant had meanwhile been released from detention and, therefore, lacked a practical interest in his appeal.   The Court thereby referred to the Federal Court's case-law on the matter (see below, Relevant domestic law and practice).        Insofar as the applicant complained under Article 5 para. 4 of the Convention that during all the years of his detention he had never been legally represented, the Court found that this complaint fell to be examined together with the applicant's public law appeal.   In its decision the Federal Court regarded it as established that the applicant was indigent.        On 6 March 1995 the Federal Court dismissed the applicant's public law appeal.   In its decision, in which the Court noted that the proceedings concerned the issue whether the applicant should be represented by an officially appointed lawyer residing in another Canton, it considered that lawyers residing in the Canton at issue regularly had a better knowledge of the procedural law concerned. Moreover, lawyers residing in other Cantons were normally more expensive.   This solution was acceptable as long as in individual cases a lawyer residing in another Canton could be appointed if there were close bonds of confidence (Vertrauensverhältnis) between the two.   In the present case, Sch. had not previously assisted the applicant before the present proceedings, and there were sufficient other lawyers in the Canton of Thurgau who could have duly represented the applicant.        The Federal Court further found, with reference to the Megyeri v. Germany case (Eur. Court HR, judgment of 12 May 1992, Series A no. 237-A), that Article 5 para. 4 of the Convention did not require that an indigent person had the right to choose his officially appointed lawyer.   B.    Relevant domestic practice and practice   a.    Swiss Penal Code        S. 43 of the Swiss Penal Code (Strafgesetzbuch) provides that, if a person has committed an offence punishable by law with imprisonment, he may, if his mental state so requires, be detained in a psychiatric institution, inter alia, if it can be expected that this would prevent further offences.   S. 45 (1) states, insofar as relevant:        "1.    The competent authority examines ex officio if and when      release shall be ordered conditionally or on probation.              As regards the conditional or probational release from an      institution according to S. ... 43, the competent authority must      take a decision at least once a year ..."   b.    Federal Judiciary Act        S. 103 (a) of the Swiss Federal Judiciary Act (Organisations- gesetz) is entitled "Standing to file an appeal" (Beschwerde- legitimation).   According to this provision, a person is entitled to file an administrative law appeal if he is affected by the contested ordinance and has an interest worthy of protection in its annulment or amendment.        The Federal Court has interpreted the standing to file an appeal particularly in the context of matters of detention on remand (see ATF <Arrêts du Tribunal Fédéral> 110 Ia 140).   According to this case-law, an actual and practical interest of the applicant is required in the quashing of the contested act.   This requirement ensures that the Federal Court will examine concrete and not merely theoretical issues, and thus serves procedural economy.   Once a person has been released from detention, he no longer has an actual practical interest in the examination of his appeal for release from detention.   The persons concerned can still claim damages based on cantonal procedural rules and on Article 5 para. 5 of the Convention.        Exceptionally, the Federal Court will renounce the requirement of an actual practical interest if the contested interference could at any time be repeated (wenn der gerügte Eingriff sich jederzeit wiederholen könnte); if there is a sufficient public interest in the examination of the question; and if in the circumstances of the case the matter could scarcely be examined on time.     COMPLAINTS   1.    The applicant complains about the imposition of his psychiatric detention according to S. 43 of the Penal Code.        Under Articles 3, 5 para. 1 and 6 para. 1 of the Convention the applicant complains of the unlawfulness of his detention.   Thus, he had never been convicted of a criminal offence, as required by S. 43 of the Penal Code for the imposition of psychiatric detention.        The applicant further complains under Article 6 para. 2 of the Convention of the decision of the Department for Justice and Security of the Canton of Thurgau on 15 November 1993 where it was stated that "had the proceedings been correctly concluded, (the applicant) would in view of the overwhelming evidence indubitably have been sentenced to imprisonment".        The applicant submits that it could not be expected of him to file further remedies in this respect.   He refers in particular to the letter of the President of the Court of Appeal of the Canton of Thurgau of 10 July 1980 which did not even let him try to contest the decision of 4 September 1979.   2.    Under Article 5 para. 1 of the Convention the applicant complains that he did not have an annual judicial examination of his psychiatric detention required by S. 45 of the Penal Code in cases such as his where detention is imposed on the basis of S. 43 of the Penal Code.   3.    The applicant complains that the proceedings instituted to have the lawfulness of his detention examined were not decided speedily within the meaning of Article 5 para. 4 of the Convention.   He submits that on 9 August 1993 he instituted these proceedings by requesting his release from detention; 205 days expired until the Administrative Court of the Canton of Thurgau gave its decision.   The applicant points out that the Administrative Court itself referred in its decision to 9 August 1993 as the date when he had filed his request for release.   4.    Under Article 5 para. 4 of the Convention the applicant raises complaints about his legal representation.   a)    The applicant submits that throughout his psychiatric detention he had never had an officially appointed lawyer.   He points out that the Federal Court, while adjourning the complaint in its decision of 9 September 1994, did not deal with it in its decision of 6 May 1995.   b)    The applicant complains that in the proceedings at issue his request for legal representation by lawyer Sch. as an officially appointed lawyer was dismissed.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 May 1995 and registered on 14 June 1995.        On 17 January 1997 the Commission decided to communicate the applicant's complaint under Article 5 para. 4 of the Convention concerning the length of the proceedings and under Article 6 para. 2 of the Convention concerning the presumption of innocence to the respondent Government.        The Government's written observations were submitted on 8 April 1997.   The applicant replied on 20 May 1997.     THE LAW   1.    The applicant complains that the proceedings instituted to have the lawfulness of his detention examined were not decided speedily within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention.        Article 5 para. 4 (Art. 5-4) of the Convention 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."        The Government contend that the complaint is inadmissible as being manifestly ill-founded.   In the Government's opinion, it is not easy to determine when the period to be examined under Article 5 para. 4 (Art. 5-4) of the Convention commenced, as the applicant constantly filed submissions with the authorities.   Reference is made to 28 October 1993 when the applicant, with the help of a lawyer, prepared a request for release.   The period ended on 18 March 1994 when the decision of the Administrative Court of the Canton of Thurgau was served on the applicant and he was released.   The period to be examined thus lasted four months and 21 days.        The Government submit that the proceedings do not disclose any inactivity on the part of the authorities.   On the other hand, the matter could be regarded as complex.   Thus, the Administrative Court was called upon to examine whether the applicant constituted a danger for society if he was released, and how he would lead his daily life. The Court consulted different persons and authorities; the views expressed were exchanged among the parties, which also prolonged the proceedings.        The Government recall that the notion of a "speedy" decision within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention must be determined in the circumstances of the concrete case, rather than in the abstract.   Indeed, the Convention organs have been more lenient where the proceedings concerned psychiatric detention, as the domestic authorities necessarily require time carefully to examine the case.        The applicant submits that the period to be examined under Article 5 para. 4 (Art. 5-4) of the Convention commenced on 9 August 1993 when he filed a request for release.   It is irrelevant that the request of 28 October 1993 was prepared by a lawyer.   More than seven months elapsed until he was released on 18 March 1994.   Such a long period cannot be justified by the fact that two administrative bodies are called upon to examine the request for release.   In the present case, the period required to prepare the medical opinion (15/22 December 1993-12 February 1994) was too long.   Furthermore, nothing happened from August until October 1993.   Two weeks elapsed after 2 March 1994 until the applicant was released from detention on 18 March 1994.        The Commission finds that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   This aspect of the case cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.   2.    Also under Article 5 para. 4 (Art. 5-4) of the Convention the applicant complains that his request for legal representation by lawyer Sch. as an officially appointed lawyer was dismissed.        The Commission recalls that the right to have a tribunal decide on the lawfulness of detention may require the granting of legal assistance if the person detained, e.g. for reasons of mental health, is not able to avail himself of the remedy without such assistance (see Eur. Court HR, Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, p. 12, para. 23).        The present applicant was represented by the lawyer Sch. as from 28 October 1993.   However, he is complaining that Sch. was not his officially appointed lawyer.        In the Commission's opinion, Article 5 para. 4 (Art. 5-4) cannot be understood as granting an absolute right to be represented by a lawyer of one's own choosing.   This right is necessarily subject to certain limitations where free legal aid is concerned, and it is for the courts to decide whether the interests of justice require that the person in detention be defended by counsel appointed by them.   When appointing a legal representative, the national courts must certainly have regard to the detained person's wishes.   However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see mutatis mutandis Eur. Court HR, Croissant v. Germany judgment of 25 September 1992, Series A no. 237-B, p. 33, para. 29).        In the present case, the Commission notes the Federal Court's decision of 6 March 1995 according to which lawyers residing in the Canton at issue regularly had a better knowledge of the procedural law concerned.   This solution was acceptable as long as in individual cases a lawyer residing in another Canton could be appointed if there were close bonds of confidence between the two.   The Federal Court noted that Sch. had not previously assisted the applicant before the present proceedings, and there were sufficient other lawyers in the Canton of Thurgau who could have duly represented the applicant.        In the Commission's opinion, the grounds referred to be the domestic authorities, in particular the Federal Court, were relevant and sufficient within the meaning of the Convention organs' case-law.        This part of the application is, therefore, manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains of the unlawfulness of his detention. Thus, he had never been convicted of a criminal offence, as required by S. 43 of the Penal Code for the imposition of psychiatric detention. He relies on Articles 3, 5 para. 1 and 6 para. 1 (Art. 3, 5-1, 6-1) of the Convention.        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 Commission notes that the Federal Court in its decision of 9 September 1994 did not deal with the applicant's complaint as he had failed to challenge the letter of the President of the Court of Appeal of the Canton of Thurgau according to the requirements of domestic law.   As a result, the decision of the Weinfelden District Court of 4 September 1979 had acquired legal force.        However, according to the Convention organs' case-law there is no exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention where a domestic appeal is not admitted because of a procedural mistake (see No. 6878/75, Dec. 6.10.76, D.R. 6, p. 79).        This part of the application is, therefore, inadmissible according to Article 27 para. 3 (Art. 27-3) of the Convention.   4.    Under Article 5 para. 1 (Art. 5-1) of the Convention the applicant complains that he did not have an annual judicial examination of his psychiatric detention required by S. 45 of the Penal Code in cases such as his where detention is imposed on the basis of S. 43 of the Penal Code.   He also complains under Article 5 para. 4 (Art. 5-4) of the Convention that throughout his psychiatric detention he had never had an officially appointed lawyer.        The 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.   Thus, insofar as he complained that he did not have an annual judicial examination, his administrative law appeal was declared inadmissible by the Federal Court as he had meanwhile been released, and he failed to file a claim for compensation based on Article 5 para. 5 (Art. 5-5) of the Convention.        The Government also point out that the applicant's detention was in fact examined by a court, in particular the Administrative Court of the Canton of Thurgau which on 2 March 1994 examined his detention and, as a result, ordered his release.        In the applicant's view, a detained person cannot be expected immediately to file a claim for financial compensation particularly since such proceedings may take time.   Furthermore, he never renounced his rights under Article 5 para. 4 (Art. 5-4) of the Convention.        Insofar as these complaints concern the proceedings commencing on 9 August 1993, the Commission refers to its findings under para. 1.        Insofar as the applicant is complaining about the lack of annual review proceedings and of legal representation before this date and as from 1977, the Commission need not examine whether the applicant has complied with the requirement as to the exhaustion of domestic remedies according to Article 26 (Art. 26) of the Convention, as these complaints concern events which lie outside the time-limit of six months mentioned in Article 26 (Art. 26) of the Convention.        This part of the application must therefore be rejected according to Article 27 para. 3 (Art. 27-3) of the Convention.   5.    The applicant complains of the formulation employed in the decision of the Department for Justice and Security of the Canton of Thurgau on 15 November 1993 which in his view breached the presumption of innocence stated in Article 6 para. 2 (Art. 6-2) of the Convention. The applicant submits that it could not be expected of him to file further remedies in this respect.   He refers in particular to the letter of the President of the Court of Appeal of the Canton of Thurgau of 10 July 1980 which did not even let him try to contest the decision of 4 September 1979.        Article 6 para. 2 (Art. 6-2) of the Convention states:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The Government contend that the applicant has not exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention as he failed to raise his complaint in 1977 when the criminal proceedings were terminated.   For the same reason he has also not complied with the six months' rule enshrined in Article 26 (Art. 26) of the Convention.        The applicant submits that the presumption of innocence was breached in 1977, and again on 15 November 1993 by the Department for Justice and Security of the Canton of Thurgau and on 9 September 1994 by the Federal Court.        The Commission considers that, insofar as the applicant is complaining about the decision of 1977 to terminate the criminal proceedings against him, he has not shown that he introduced any remedies in this respect.        Insofar as the applicant is complaining about a formulation employed by the Department for Justice and Security of the Canton of Thurgau in its decision of 15 November 1993, the Commission notes that the applicant did not raise this complaint in his administrative law appeal before the Federal Court.        The applicant has not therefore complied with the requirements under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies.   The remainder of the application is, therefore, inadmissible 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 the proceedings in which he was involved were not      "decided speedily" within the meaning of Article 5 para. 4 of the      Convention; and        DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                                 J. LIDDY      Secretary                                    President to the First Chamber                         of the First Chamber