AS TO THE ADMISSIBILITY OF
Application No. 10801/84
The European Commission of Human Rights sitting in private on
20 January 1986, the following members being present:
MM. C. A. NØRGAARD, President
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. G. SCHERMERS
Mrs G. H. THUNE
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 August 1983
by L.L. against Sweden and registered on 7 February 1984 under file No.
Having regard to
- the report provided for by Rule 40 of the Rules of Procedure
of the Commission;
- the Government's observations of 23 May 1984;
- the applicant's observations of 14 September 1984;
- the report provided for by Rule 40 of the Rules of Procedure;
- the Commission's decision of 6 March 1985 to adjourn the
examination of the case;
- the report provided for by Rule 40 of the Rules of Procedure;
- the Government's letter of 7 June 1985;
- the Government's supplementary observations of 23 August 1985;
- the Government's information by letter of 25 November 1985;
- the submissions of the parties at the hearing on 20 January
Decides as follows:
The facts of the case, as submitted by the parties, may be
summarised as follows:
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.
The particular facts of the case
On 19 July 1977 the applicant was involuntarily admitted to the
St. Lars Hospital at Lund under 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 forced admission
into the hospital was examined by the Chief Medical Officer, who
concluded that the provisions of Section 1 (a) as well as (b) were
applicable. The applicant was thus detained at the hospital.
Five months later on 7 December 1977, the applicant was
provisionally discharged. The diagnosis was then "parafrenia
fantastica" and she was prescribed continued medication with a
neurolepticum. Until January 1984, the applicant was discharged on a
trial basis, except for two short periods at the end of 1978. She was
admitted to the hospital on 2 October and discharged on 16 October,
admitted again on 26 October and provisionally discharged on 1 December
1978. While on provisional discharge, the applicant has 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 realise the
nature of her disease.
On 26 May 1983 the Psychiatric Council (psykiatriska nämnden)
received a petition from the applicant to have her "provisional
discharge discontinued". Her petition was interpreted as a petition
for permanent discharge. On 8 June 1983 her letter was sent to the
Discharge Council (utskrivningsnämnden) of Lund, the competent body for
this matter. The Discharge Council had to adjourn the examination of
her petition on 23 June 1983, since she was not present in person and
had no legal counsel to represent her before the Council.
On 1 July 1983 the Council decided the matter. The applicant,
having announced that she did not wish to appear in person, was
represented by a lawyer and member of the Swedish Bar Association. The
applicant's petition was rejected with reference to the provisions of
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 that
would lead to her health deteriorating.
The applicant appealed against this decision on 2 August 1983
to the Psychiatric Council.
On 26 September the Psychiatric Council received observations
from the Chief Medical Officer of St. Lars and from the Discharge
Council and on 11 October 1983 the Psychiatric Council rejected the
appeal, stating that there were no reasons to amend the decision of the
On 17 January 1984, the applicant was permanently discharged
from the hospital.
The Swedish legislation
The rules on detention of persons with mental illnesses are
laid down in the 1966 Act on Institutional Psychiatric Care. Section
1 (a) and (b) of the said Act read:
"A person suffering from mental disease may, regardless
of consent, be given compulsory institutional psychiatric care
by virtue of this Act, if such care is indispensable in view of
the nature and severity of the disease, provided that the said
(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
..." (subsequent alternatives omitted here).
In addition, admission to a psychiatric hospital can only be
decided if there is a certificate on the need for treatment, issued by
an authorised medical officer, who must not be affiliated with 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 his examination (Sections 3, 4 and 6). The decision
to admit a person has in principle to 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 is issued more than a fortnight
prior to the decision (Section 8).
If the patient is admitted in accordance with Section 8, 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).
A person who has been admitted for treatment under the Act, must
be discharged as soon as the conditions, as 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 be effected 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 last no longer than 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.
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 issues
to the Discharge Council. The decisions of the Council may be appealed
to the Psychiatric Council (Sections 21 and 22). The Discharge Council
is also authorised to act in these matters ex officio or on petitions by
the patient or his relatives etc (Sections 17 and 18).
There are at present 33 Discharge Councils in Sweden. Each
Council consists 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
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 who is
acquainted with social issues, and two additional members.
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, ie the oath that the judges in Sweden 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 will be
free to act independently without any governmental interference (Chapter
11, Sections 2 and 7).
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 each week at the hospital, whereas
the Psychiatric Council meets every fortnight.
Chapter 2, Section 9 of the Instrument of Government reads:
"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 a court of general jurisdiction."
The question whether the Discharge Councils fulfil the
requirement of a "court" as laid down in Art. 5, para. 4 of the
Convention was addressed in particular 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."
1. The applicant complains that neither the Discharge Councils nor
the Psychiatric Council satisfy the requirements of a "court" as
prescribed in Art. 5, para. 4 of the Convention. She therefore alleges
a violation of Art. 5, para. 4.
She also requests compensation under Art. 5, para. 5.
2. The applicant also states that according to Art. 6, para. 1 of
the Convention she is entitled to a court determination, but that she
has not had that benefit in the present case.
3. She further complains that the provisional discharge constituted
an unjustified interference with her right to respect for private life
and that there has accordingly been a breach of Art. 8 of the
4. Finally, the applicant complains that she has not been accorded
the right to an effective remedy for the violations of the Convention
which she alleges is in violation of Art. 13.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 August 1983 and registered
on 7 February 1984.
On 14 March 1984 the Commission examined the admissibility of
the application, and decided pursuant to Rule 42, para. 2, sub-para. b
of its Rules of Procedure to invite the Government to submit written
observations on the admissibility and merits of the application (Art. 5
of the Convention).
The Government's observations were dated 23 May 1984 and the
applicant's observations in reply were dated 14 September 1984.
On 5 June 1984 the President of the Commission decided to grant
the applicant legal aid.
On 6 March 1985 the Commission examined the admissibility of the
application and decided to adjourn its examination.
On 7 May 1985, the Commission decided to invite the parties to a
hearing on the admissibility and merits of the applicaton at which the
parties were invited to make submissions under Arts. 5, para. 4, 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 any such
written observations as they might wish to make under Arts. 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 Art. 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.
At the hearing, which was held on 20 January 1986, the parties
were represented as follows:
Mr. Hans Corell Ambassador, Under-Secretary for Legal and
Consular Affairs, Ministry for Foreign
Mr. Karl-Ingvar Rundquist Under-Secretary for Legal Affairs,
Ministry of Health and Social
Mr. Håkan Berglin Legal Adviser, Ministry for Foreign
Mr. Göran Melander Associate Professor of law, Institute of
International Law, University of Lund
SUBMISSIONS OF THE PARTIES
A. The Government
1. The Facts
The possibility of provisional discharge has been an important
means of preparing patients for a final discharge. This possibility
often functions as an alternative to treatment in an institution. It
is, of course, 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 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 where it is laid down that the patient may be subjected
to rules 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 or something
like that. He could be ordered not to drink alcoholic beverages or be
subjected to other rules of this kind.
2. The Admissibility
2.1 Art. 5, para. 4 of the Convention
The Government submit that Art. 5, para. 4 deals with persons
who are deprived of their liberty. The Government also submit that 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, therefore, the opinion of the Government
that her complaint falls outside the scope of Art. 5, para. 4.
Consequently, the application should be rejected as being incompatible
ratione materiae with the provisions of the Convention.
It is admitted that the applicant has been deprived of her
liberty earlier and that she may have had a case under the Convention,
had she brought her application at an earlier stage. At the present
state of the file however it is submitted that the applicant has not met
the conditions of Art. 26 of the Convention.
2.2 Art. 6 of the Convention
Since there is no question of a criminal charge against the
applicant, the only situation in which Art. 6 could be applicable in
this case is that the matter before the Swedish authorities concerns the
determination of her "civil rights and obligations". The Government
contest that this is the case. It is stressed that a decision to
subject a patient to treatment under the 1966 Act on Institutional
Psychiatric Care does not automatically entail the loss of a patient's
right to exercise his private rights, eg the capacity to administer his
property. Consequently there is no similarity in this respect between
the applicant's case and the Winterwerp case (Eur. Court H.R., judgment
of 24 October 1979, Series A no. 33 paras. 73 and 75). Nor did the
decision on institutional care prevent the applicant from entering into
marriage. Consequently the Government submit that this aspect of the
application is incompatible ratione materiae with the provisions of the
3. The Merits
3.1 Art. 5, para. 4 of the Convention
Should the Commission find that Art. 5, para. 4 was applicable
to the provisional discharge, the Government submit that under the
Swedish legal system it should be evident that the proceedings before
the Discharge Councils are meant to 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. Reference is made to Sections 28-34 of the Act on
Institutional Psychiatric Care.
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. For all intents and purposes,
therefore, these councils should be considered equal to courts as
prescribed by Art. 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 general 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 present 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 (instruktion för utskrivningsnämnderna) and the
Instruction for the Psychiatric Council (instruktion för psykiatriska
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 process of Art. 5,
para. 4 were met.
Referring to the Vagrancy cases (Eur. Court H.R., judgment of 18
June 1971, Series A no. 12), the Luberti case (judgment of 28 February
1984, Series A no. 75) and to the Swedish law which 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.
3.2 Art. 6 of the Convention
In consequence, with their stand on the issue under Art. 5,
para. 4, the Government maintain that the Discharge Councils and the
Psychiatric Council meet the requirements of a tribuanl within the
meaning of Art. 6. The question arises whether there is a difference
between the two Articles of the Convention. In the English text the
word "court" is used in Art. 5, para. 4, whereas the word "tribunal" is
used in Art. 6, para. 1. It is noted, however, that in the French
version of the Convention the word "tribunal" is used in both Articles.
The Government refer to the Winterwerp judgment (op. cit., para. 60).
The Government submit that it seems as if the Court is of the
opinion that the standards for the "tribunal" in Art. 6, para. 1 are set
at a higher level than that for the "court" in Art. 5, para. 4. The
Government maintain however that the two Swedish authorities now in
question, the Discharge Council and the Psychiatric Council, also meet
the requirements of Art. 6, para. 1.
There are three prerequisites which must be fulfilled as far as
the tribunal is concerned. It must be independent. It must be
impartial. It must be established by law.
As to the independence, there can be no doubt that this
requirement is fulfilled. From Chapter 11, Section 7 of the Swedish
Instrument of Government it follows that a similar independence to that
of the ordinary courts in Sweden is attributed to administrative bodies
when they exercise official power. The provision expressly mentions the
independence of bodies that exercise official power in particular cases
in regard to private subjects or apply provisions of law enacted by the
Parliament. It is stressed that, even if the Discharge Council is
considered as an administrative body in Sweden, such a council is
nevertheless independent under the Constitution.
Where the Councils have their premises - a question which has
been raised by the applicant - is of no relevance in this context. From
a psychological point of view it may be important to the patients
whether they go to the same premises as the hospitals, or if they go
outside the hospital premises. That may be of a psychological
significance, but in the legal context this feature in the Swedish
system is of no relevance.
With respect to the two remaining prerequisites, it is obvious
that the Discharge Councils are established by law and that they are
impartial. The applicant has not even alleged that the Discharge
Council has not acted in an impartial way. With regard to impartiality,
the Government refer to the Campbell and Fell Case (Eur. Court H.R.,
judgment of 28 June 1984, Series A no. 80 para. 78) and the Sramek case
(Eur. Court H.R., judgment of 22 October 1984, Series A no. 84 para.
It is admitted that the hearing in the applicant's case was not
public in so far as there was no general public admitted to the hearing.
In the Government's opinion a public hearing was, however, not required
with respect to the subject matter, since Art. 6 permits that the public
may be excluded from all or part of the trial where the interests of
inter alia the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice.
The question remains whether the decisions by the two
authorities have been pronounced publicly. The Government admit that no
positive actions have been taken in order to make the decisions public.
The Government refer to Chapter 7, Section 2 of the Secrecy Act
(sekretesslagen). According to this provision secrecy does not apply to
decisions by the Discharge Councils or the Psychiatric Council. Under
the circumstances, this fact in connection with the general Swedish
rules on free access to official documents have as a result that anybody
has the right to examine on request the decisions by the two
authorities. This publicity must satisfy the basic aim of Art. 6,
namely to guarantee that justice is not administered in camera.
Reference is in this context made to the Sutter case (Eur. Court H.R.
judgment of 22 February 1984, Series A no. 74 paras. 33 and 34).
3.3 Art. 8 of the Convention
The Commission has asked whether the facts of the case
constitute an interference with the applicant's right to respect for her
private life as guaranteed by Art. 8, para. 1 and if any such
interference with the applicant's right to respect for private life is
justified under the terms of Art. 8, para. 2.
The Government admit, in principle, that decisions taken under
the 1966 Act may affect a person's right to respect for his private and
family life, his home and his correspondence. The Government maintain,
however, that the actions taken in the present case were permitted in
accordance with Art. 8, para. 2. The measures were taken in accordance
with the law and necessary in a democratic society for the protection of
health and morals, and for the protection of the rights and freedoms of
3.4 Art. 13 of the Convention
The Government maintain that the possibility for the applicant
to have her case reviewed by the Discharge Council and the Pyschiatric
Council constitutes effective remedies within the meaning of Art. 13.
In the Government's opinion the applicant had several further
effective remedies before national authorities in the present case. The
following are mentioned:
- doctors are subject to supervision by the National Board
of Social Welfare (socialstyrelsen) and are subject to
disciplinary responsibility in accordance with the Act
on the Supervision over Health and Medical Staff (lagen
om tillsyn över hälso- och sjukvårdspersonalen). Such
disciplinary matters are dealt with by a special board under
the chairmanship of a judge.
- the Discharge Councils and the Psychiatric Council are
also subject to the supervision of the Parliamentary
Ombudsman (JO). The Ombudsman has made several inspections
of the Discharge Councils over the years.
- both the Chief Medical Officer and the members of the Councils
are subject to the rules on misuse of office of the Penal
- compensation is also possible in accordance with Section 3
of the Act on Compensation for Deprivation of Liberty
(lagen om ersättning vid frihetsinskränkning).
The Government conclude that
- the complaints under Arts. 5 and 6 are inadmissible as being
incompatible ratione materiae with the provisions of the
Convention, alternatively as being manifestly ill-founded.
- the complaints under Arts. 8 and 13 are inadmissible as being
- there has in all circumstances been no violation of the
B. The Applicant
The applicant submits that, in the present case, the relevant
Swedish legislation, the 1966 Act, has been correctly applied. However,
it is argued that the treatment of the applicant has in several respects
violated her rights under the Convention.
1. The Facts
Slightly more than one year ago a governmental committee
published a report 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 already existing Administrative Courts. It is
important to note that the motive for this proposal is to increase the
legal safeguards in favour of the individual. Should this reform become
a reality that would certainly satisfy Arts. 5, para. 4, and 6 of the
Another proposal made by this committee is to abandon the system
of provisional discharge. Should the various proposals become reality
it is considered unnecessary to continue the system of provisional
discharge in the future.
So far, the Government have not introduced any Bill to
Parliament. It is an open question what the final result will be,
because the opinions with regard to the Discharge Councils or
the Administrative Courts, as well as with regard to provisional
discharge, are completely divided. In this context it is noted that
various patients' associations are strongly in favour of the court
system, and they are also in favour of abandoning the Discharge
2.1 Art. 5, para. 4 of the Convention
The main question is whether the Discharge Councils and the
Psychiatric Council can be considered equal to a "court" in the meaning
of Art. 5, para. 4 of the Convention.
The Discharge Council consists 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 of the present Act
it is stated that the Discharge Council meets with the requirements of
a "court" as laid down in Art. 5, para. 4. However, from such a
statement it cannot be concluded that the present legislation meets the
requirements, only that the Government have been aware of the fact that
provisions in the Convention could have an influence on the content of
The Government argue that the mere fact that a judge is a member
of the Councils satisfies the prerequisites 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 active 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, as has
been submitted by the Government in another context, medical officers
are subject to supervision by the National Board of Social Welfare and
are subject to disciplinary responsibility in accordance with the Act on
the Supervision over Health and Medical Staff. Such disciplinary
matters are dealt with by a special board under the chairmanship of a
judge. Although this organ has a legal function it can obviously not be
considered a court. Several examples of similar boards can be found in
Swedish law, where it is clear to everyone 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 factor 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, and for other
motives reasonable, 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 with 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.
It is important to remember that 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 actually 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.
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).
From an organisational point of view 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 extremely vague and
a Discharge Council has not always office premises of its own. It must
also be noted that 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
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 Social Welfare. According to Section 31 of the Act
oral proceedings should be held if it is considered necessary in view of
the circumstances of the case. It is to be noted that 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 Social Welfare and its affiliation
with the medical administration is firm. Also the other objections
raised against the Discharge Councils are of relevance as regards the
It is also interesting to note that it has not been considered
appropriate to use the term "court" in connection with the Discharge
Councils. This is reflected in the Instrument of Government which
contains a chapter on basic human rights and freedoms. In Chapter 2,
Section 9 it is prescribed as a main rule that a decision on deprivation
of liberty must be taken by a court. In order to make the Discharge
Councils and the Psychiatric Council lawful it was necessary to permit
exceptions from court decisions. Accordingly, it is prescribed that a
decision by a Council (nämnd) should be considered equal with a court
decision provided the composition of the Council is determined by law
and the chairman is or has been a judge. In the travaux préparatoires
it is stated that "through this provision the Instrument of Government
will not be an obstacle to preserving the decision by Councils, at
present provided for in the Act on Institutional Psychiatric Care".
Accordingly, not even the Government considered, at that time, the
Councils to be courts.
Taking all these aspects into account it is hardly possible to
state that the Discharge Councils and the Psychiatric Council constitute
a "court" in the meaning of Art. 5, para. 4 of the Convention.
Accordingly, there has been a violation of the Convention.
3.2 Art. 6 of the Convention
Art. 6, para. 1 is also applicable in the present case. Any
person deprived of his liberty should be entitled to a hearing before a
tribunal. The minimum safeguards as provided for in Art. 6, para. 1
should be applicable in this case.
The applicability of Art. 6, para. 1 is certainly a question
which has been debated during the past few years. There are cases
showing and proving that the applicability of Art. 6, para. 1 should be
interpreted in the broadest possible sense. It would be a rather
confusing situation 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 applicant admits that as long as the person is actually
being detained it would be very easy to argue only under Art. 5, para.
4, but in this case Art. 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 follow
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 prerequisite for making use
of these prescriptions is that the person is questioned first, has been
detained and it has been found that the legal prerequisites for
detention no longer apply. Only in such a situation is provisional
discharge possible and these forcible prescriptions are possible. But
it is not, according to the law, possible to issue some kind of
prescriptions without the person in question having been detained.
In the applicant's view, this means clearly that there is a
civil right and it is necessary to have some kind of court proceedings
in order to clear all these things up.
It is clearly stated in the travaux préparatoires that
provisional discharge should not be considered as any kind of sanction.
On the other hand, from the point of view of the person in question, it
is obviously some kind of sanction.
Art. 6, para. 1 prescribes that the hearing must be public. This
prerequisite 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 hearings in
private. However, the main rule should be that hearings are public and
that they will be in private only upon the request of the person in
question. In this respect also, there is a violation of the Convention.
3.3 Art. 8 of the Convention
With regard to Art. 8, the Government admit, in principle that
decisions taken under the 1966 Act may affect a person's right to
respect for his private and family life, his home and correspondence.
They maintain however, that the actions taken are permitted under Art.
8, para. 2 and are necessary in a democratic society for the protection
of health and morals, and for the protection of the rights and freedoms
The only applicable criterion in the present case may be the
reference to the applicant's health. Her mental illness was also the
reason for her detention. In view of the provision in Art. 8, para. 2
it can be accepted that the decision to detain her originally did not
constitute a violation of Art. 8 of the Convention.
However, in accordance with the 1966 Act the applicant was given
a so-called provisional discharge. That means that the person in
question is allowed to leave the hospital, but that he or she can be
brought back without the normal procedure being followed. A decision
will be taken by the Chief Medical Officer or by another medical
officer, should "special reasons" be at stake.
Any person faced with a decision on provisional discharge has to
live in a constant fear of being returned to the hospital. In practice,
the threat of being returned functions as a kind of sanction should the
person not follow directives given to him or her. Although the original
idea of provisional discharge has nothing to do with sanctions, in
practice it works as a kind of threat to the applicant.
It cannot be argued that any of the reasons provided for in Art.
8, para. 2 are applicable. A reference, for instance, to the
applicant's health is inappropriate. The provisional discharge of the
applicant constitutes a violation of Art. 8 of the Convention.
3.4 Art. 13 of the Convention
It can be argued that the applicant has not enjoyed the
guarantees of an effective remedy for the alleged violations of the
Convention. In this respect the Government seem to be of the opinion
that a number of remedies are available in the present case. However,
none of them is of relevance in this connection, because all of them -
the supervision by the National Board of Social Welfare, the rules on
misuse of office in the Penal Code, the Act on Compensation for
Deprivation of Liberty, etc - presuppose that the applicant has been
treated in a way which is contradictory to domestic Swedish law. The
applicant has been granted the rights provided for in Swedish law, but
it is the legislation as such which has indirectly created the
violations of the Convention. Accordingly, no effective remedy for the
alleged violations was available, and Art. 13 of the Convention has also
been violated in the present case.
1. The applicant has complained that her provisional discharge from
the psychiatric hospital was in breach of Art. 8 (Art. 8) of the
Art. 8 (Art. 8) reads:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."
The Government have submitted that the facts of the case do not
disclose any interference with the applicant's rights under Art. 8
para. 1 (Art. 8-1) of the Convention, and that, even if they did, any
such interference would be justified under the terms of Art. 8, para. 2
(Art. 8-2) of the Convention as being in accordance with the law and
necessary in a democratic society for the protection of health and
morals and for the protection of the rights and freedoms of others.
The Commission is of the opinion that the fact that the
applicant has been legally under a detention order and only discharged
on a provisional basis from December 1977 to January 1984 except for a
period at the end of 1978 constitutes an interference with her right to
respect for her "private life" within the meaning of Art. 8, para. 1
(Art. 8-1). In order to be justified under Art. 8, para. 2 (Art. 8-2)
that interference must be "in accordance with the law" and "necessary in
a democratic society" for one of the purposes enumerated in Art. 8,
para. 2 (Art. 8-2) of the Convention.
The Commission finds no reason to conclude that the decision
arrived at was other than "in accordance with the law", namely the Act
on Institutional Psychiatric Care. It is clear from the decision of the
Discharge Council that the reason for not discharging the applicant
permanently was that there were reasons to believe that the applicant
would stop taking her medication if permanently discharged and that that
would lead to a deterioration of her health. The decision thus pursued
the aim of protecting the applicant's "health", which is an aim
permissible under Art. 8, para. 2 (Art. 8-2). Having examined the case
file and the parties' submissions, the Commission finds that the
decision not to discharge the applicant permanently was "necessary in a
democratic society" for the protection of her health.
It follows that this aspect of the application is manifestly
ill-founded within the meaning of Art. 27, para. 2 (Art. 27-2) of the
2. The applicant has complained that she has not enjoyed the
guarantees of Art. 5, para. 4 and Art. 6 (Art. 5-4, 6) of the Convention
with respect to her application for release from the hospital. She also
submits that she has not had an effective remedy for the alleged
violations of the Convention as guaranteed by Art. 13 (Art. 13).
Art. 5, para. 4 (Art. 5-4) 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."
Art. 6, para. 1 (Art. 6-1) reads:
"In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but
the press and public may be excluded from all or part of the trial in
the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection
of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
Art. 13 (Art. 13) reads:
"Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting
in an official capacity."
The Government have contended that since the applicant has been
released on a trial basis her complaint under Art. 5, para. 4
(Art. 5-4) is incompatible ratione materiae with the provisions of the
Convention. In the alternative the Government submit that the applicant
has not complied with the conditions in Art. 26 (Art. 26) of the
As regards Art. 6, para. 1 (Art. 6-1), the Government also
maintain that the application is incompatible ratione materiae with the
Convention since the "determination" before the Discharge and
Psychiatric Council concerned neither the applicant's "civil rights and
obligations" nor a "criminal charge" against her.
If Art. 5, para. 4 or Art. 6, para. 1 (Art. 5-4, 6-1) of the
Convention is considered applicable, the Government submit that the
Discharge Council and the Psychiatric Council fulfil the conditions of
"court" in Art. 5, para. 1 (Art. 5-1) and "tribunal" in Art. 6, para. 1
(Art. 6-1) and that the application is in any event manifestly
As regards Art. 13 (Art. 13) of the Convention, the Government
contend that the application is manifestly ill-founded since the
procedure before the Discharge Council and the Psychiatric Council
constitute "effective" remedies as required by Art. 13 (Art. 13).
The Commission observes that the present application relates to
the procedural guarantees in respect of a determination as to whether
the applicant should be permanently released or remain on provisional
discharge from a psychiatric hospital. The question of the
applicability of Art. 5, para. 4 (Art. 5-4) to an individual who is
actually deprived of her liberty does not arise in this case, since the
applicant had already been provisionally released a long time when she
brought the present application.
The issue to be decided in respect of Art. 5, para. 4
(Art. 5-4) is whether that provision applies to the applicant's petition
for permanent discharge having regard to the fact that she was no longer
deprived of her liberty, but was on provisional discharge. If that
question is answered in the affirmative it would have to be determined
whether the procedures before the Discharge Council and the Psychiatric
Council meet the requirements of Art. 5, para. 4 (Art. 5-4).
The issue under Art. 6, para. 1 (Art. 6-1) of the Convention is
mainly whether the "determination" of whether the applicant should be
permanently released or remain on provisional discharge concerned her
"civil rights and obligations". In the affirmative it would have to be
determined whether the procedures before the Discharge Council and the
Psychiatric Council fulfil the conditions of Art. 6 (Art. 6) of the
Finally, the issue arises whether the applicant had at her
disposal an "effective remedy" for the alleged violations of the
Convention as required by Art. 13 (Art. 13).
Having made a preliminary examination of the above issues the
Commission considers that in these respects the application raises
issues of fact and law which are of such importance that their
determination should depend upon an examination of the merits. These
aspects of the application are therefore admissible.
3. The applicant has also requested compensation referring to Art.
5, para. 5 (Art. 5-5) of the Convention. Art. 5, para. 5 (Art. 5-5)
provides for a right to compensation for everyone who has been the
victim of arrest or detention in breach of the other provisions of Art.
5 (Art. 5).
The Commission considers that this complaint is closely linked
to the determination of the complaint under Art. 5, para. 4 (Art. 5-4)
of the Convention and it should therefore be retained for the
examination of the merits of the application.
For these reasons, the Commission
the complaint of an unjustified interference with the
right to respect for private life (Art. 8 (Art. 8) of the
DECLARES ADMISSIBLE, without prejudging the merits,
the remainder of the application.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)