AS TO THE ADMISSIBILITY OF
Application no. 49453/99
by Markku KAIPILA
The European Court of Human Rights (Fourth Section), sitting on 18 October 2005 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Mr J. Borrego Borrego,
Ms L. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 11 May 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Markku Kaipila, is a Finnish national who was born in 1959 and lives in Vammala. He is represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Nokia. The Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
Proceedings concerning detention in a psychiatric institution
On 11 January 1998 the chief physician at the health care centre referred the applicant for observation (tarkkailulähete, observationsremiss). He was admitted to the local hospital on the same day. He however left the hospital in the evening.
On 14 January 1998 a physician at the psychiatric clinic of the same hospital referred the applicant anew for observation.
On 16 January 1998 another physician at the hospital issued a medical statement finding that the conditions for involuntary treatment were met (tarkkailulausunto, observationsutlåtande).
Later that day the applicant was committed to involuntary psychiatric treatment (hoito tahdosta riippumatta, vård oberoende av patientens vilja) by a decision of the chief physician, X, of the psychiatric clinic at the local hospital. According to the decision, the applicant was in need of treatment for a mental illness, which if not treated would considerably worsen or severely endanger his health or safety or the health or safety of others. No other mental health services were considered applicable or adequate.
On 24 January 1998 the applicant left the hospital without authorisation. As the police were unable to find him, he was discharged from the hospital on 4 February 1998.
On 28 January 1998 the applicant, represented by counsel, appealed against the decision to commit him to treatment to the then County Administrative Court (lääninoikeus, länsrätten) of Turku and Pori, arguing in essence that he was not mentally ill. Nor was he a danger to himself or others. He did not request an oral hearing. The next day the court requested X to produce a fresh medical opinion and other documents, which were subsequently communicated to the applicant. In his submission of 27 February 1998 the applicant, represented by counsel, considered the findings in the medical opinion unfounded and unproven. He did not request a hearing at this point, either.
On 19 March 1998 the County Administrative Court rejected the appeal, finding that the applicant’s mental state at the time of the impugned decision had justified the involuntary psychiatric treatment. It granted him cost-free proceedings and free legal assistance. It did not hold an oral hearing of its own motion.
The applicant appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing during which he and the doctors who had treated him should be heard. He contested the diagnosis on which his detention had been based.
On 12 November 1998 the Supreme Administrative Court, having received X’s submission and communicated it to the applicant, rejected the appeal. It refused the request for a hearing as unnecessary as it found that the case turned on an assessment of medical evidence.
On 19 February 1998 the applicant was charged with, inter alia, aggravated drunken driving, committed on 12 November 1997. The District Court (käräjäoikeus, tingsrätten) of Ikaalinen granted him cost-free proceedings but rejected the requested free legal assistance. On 24 February 1998 he was convicted as charged and sentenced to three months’ imprisonment.
The applicant appealed, claiming that he had driven the vehicle under emergency conditions escaping a violent attack by a third person. On 11 September 1998 the Turku Court of Appeal (hovioikeus, hovrätten) rejected the appeal.
The applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, claiming that the presiding judge in the District Court had not taken into account any of his arguments concerning the alleged act of emergency and that the judge had not allowed him to put forward any arguments for his defence. He also claimed that his representative, who had not been present at the District Court hearing but merely drafted his writ of appeal to the Court of Appeal, had not been able to comment on the judge’s behaviour in the writ of appeal as he was reluctant to raise any unpleasant issues at a court where he worked daily as a representative. On 8 December 1998 the Supreme Court, having granted the applicant free legal assistance, refused leave to appeal.
B. Relevant domestic law and practice
Involuntary psychiatric treatment
The Mental Health Act (mielenterveyslaki, mentalvårdslagen; 1116/1990) provides that involuntary treatment in a psychiatric hospital can be ordered only if the adult patient is diagnosed as mentally ill and needs treatment for the mental illness which, if untreated, would considerably worsen or severely endanger his or her health or safety or the health or safety of others and if other mental health services are inapplicable or inadequate (section 8).
For the purposes of establishing whether these conditions are met, the patient may be admitted to hospital for observation. Prior to such a referral, a physician must examine the patient and issue a written and reasoned referral for observation (section 9).
The physician in charge of the observation shall produce a written statement no later than four days after the admission of the patient. It shall include a well-founded opinion on whether the conditions are met for ordering the patient to undergo involuntary treatment. If those conditions cease to exist during the observation period, the observation shall be discontinued immediately and the patient shall be discharged if he or she so wishes (section 10).
The referral for observation and the observation are two separate measures which are taken independently of one another. Further, the doctor deciding on admission for observation is not bound by the referral for observation but must independently assess whether the conditions for ordering the patient to undergo treatment are likely to be met.
The patient’s opinion shall be found out before he or she is ordered to undergo treatment. The relevant decision is made by the chief physician in charge of psychiatric care. It must be reasoned and be in writing, it must be based on the referral for observation, the statement on observation and the case history, and it must be produced no later than four days after the admission for observation (section 11).
Accordingly, there are at least three doctors involved in the process.
The order for treatment can be appealed to the County Administrative Board. A further appeal lies to the Supreme Administrative Court.
The Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; 586/1996) provides that an oral hearing shall be conducted when necessary for the purposes of establishing the facts of the case. The parties, witnesses and experts, inter alia, may be heard and other evidence received in the hearing. The hearing may be limited to only a part of the matter, to clarify the opinions of the parties or to receive oral evidence, or in another comparable manner (section 37).
An administrative court shall hold an oral hearing if a private party so requests. The same applies to the Supreme Administrative Court where it is considering an appeal against the decision of an administrative authority. A hearing need not be held if the claim is dismissed without considering its merits or immediately rejected or if an oral hearing is manifestly unnecessary in view of the nature of the matter or for any other reason. If a party requests an oral hearing, he or she shall state why it is necessary and what evidence will be presented in the hearing (section 38).
1. The applicant complained, under Article 6 § 1 of the Convention, about the lack of an oral hearing before the Administrative Court and the Supreme Administrative Court. He claimed that the decision to place him in compulsory psychiatric care was based on superficial grounds and that the lawfulness of the deprivation of his liberty should thus have been examined more carefully by the Supreme Administrative Court in an oral hearing.
2. Relying on Article 8, the applicant complained that the decision to place him in compulsory psychiatric care violated his right to respect for his private and family life.
3. He also complained, under Article 14, that he was discriminated against on the basis of his status as his case, concerning his detention in a mental institution, was not regarded to be as important as cases concerning transfer of guardianship, in which oral hearings were usually held.
4. Further he complained, under Article 6, that the District Court refused him a fair hearing in the criminal proceedings as he was not allowed to present grounds for his argument that his drunken driving had been an act of emergency.
5. He furthermore complained, under Article 6 § 3 (c), about the District Court’s refusal to grant him free legal assistance even though the interests of justice so required.
6. Lastly, he complained, under Article 8, that the enforcement of his punishment in the spring of 1999 violated his right to respect for his private and family life.
The applicant made various complaints under Article 6 of the Convention, which reads in relevant part:
“1. 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. ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...
He also complained under Articles 8 and 14. Article 8 reads insofar as relevant:
“1. Everyone has the right to respect for his private and family life ....
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.”
Article 14 reads:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Insofar as the committing of the applicant to involuntary psychiatric treatment might raise an issue under Article 5, it provides in relevant part:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
4. 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. Proceedings concerning detention in a psychiatric institution
The parties’ submissions
The Government submitted that the relevant order had been made on medical grounds based on several doctors’ assessments of the applicant’s need for treatment. The conditions for involuntary treatment were fulfilled. As to the County Administrative Court proceedings, the applicant, who was represented by counsel, did not request an oral hearing and thus waived any right to a hearing. A hearing was not necessary for the establishment of the facts either, as the court had at its disposal the referral for observation, the patient records relating to the observation period, the statement given on the basis of the observation and the treatment order. Thus, it had access to all relevant written materials on which the order was based. The applicant had an opportunity to rely on all relevant facts in the written procedure. The case was examined on the basis of the case-file and the applicant’s written observations. An oral hearing would simply not have brought anything to the proceedings.
As to the proceedings before the Supreme Administrative Court, the Government emphasised that the court examined the appeal as a second instance and thus, there was no similar requirement to hold a hearing as in the lower court. The applicant requested that he and the doctors who had treated him should be heard but he did not name any other witnesses to be heard. The court found a hearing unnecessary for the establishment of the facts as the doctors’ opinions and the applicant’s observations were included in the case-file. The applicant had not raised any issues of fact or law which were of such nature as to call for a hearing for their disposition.
In his observations in reply the applicant submitted that, given the fact that he had been discharged following his escape from the hospital, he had acceptable reasons not to request a hearing before the Administrative Court.
The applicant considered that he had an interest to have it determined whether there had been grounds for his detention. As he considered that there had been no grounds for the involuntary treatment, the Supreme Administrative Court should have held a hearing with a view to taking evidence from him and the doctors.
The Court’s assessment
1. Insofar as the applicant complained, under Article 8, that the involuntary treatment to which he was subjected violated his right to respect for private and family life, the Court sees no reason, given the medical opinions before the courts, to doubt that the interference was justified under the second paragraph of Article 8.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. As to the complaint about the allegedly discriminatory lack of an oral hearing in the proceedings concerning the involuntary treatment, the Court observes that, following the applicant’s discharge from the hospital, the domestic courts’ task was to review the lawfulness of his detention in a psychiatric institution.
The Court reiterates that since the examination of the lawfulness of the applicant’s detention was conducted after his release, Article 5 § 4 did not apply to the proceedings (see W. v. Sweden, no. 12778/87, Commission decision of 9 December 1988, Decisions and Reports (DR) 59, p. 158). The Court will therefore examine the complaint raised under Article 6 § 1, assuming that this provision is applicable (see Vermeersch v. France (dec.), no. 39277/98, 30 January 2001 and Laidin v. France (no. 2), no. 39282/98, §§ 73-76, 7 January 2003). The Court also reiterates that the requirements under Article 6 are generally stricter than those under Article 5 § 4 (see Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22).
The entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no issues of public importance making a hearing necessary. A waiver can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66; and Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).
Furthermore, a hearing may not be necessary due to exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see Döry v. Sweden, no. 28394/95, § 37, 12 November 2002; Pitkänen v. Sweden (dec.), no. 52793/99, 26 August 2003).
The Court observes that the applicant did not request an oral hearing before the County Administrative Court. He however requested that one be held in the Supreme Administrative Court. He was represented by counsel before both instances. As the proceedings before the administrative courts were normally in writing and he had been committed for treatment against his will, the applicant could have been expected to request a hearing before that court if he found it important that one be held in the proceedings in issue. However, he chose not to do so and must thereby be considered to have unequivocally waived his right to a public hearing at least before the County Administrative Court.
It remains to be determined whether the lack of an oral hearing before the Supreme Administrative Court involved a breach of the applicant’s rights under Article 6 § 1. The Court reiterates that in proceedings before a court of first and only instance there is normally a right to a hearing (see Håkansson and Sturesson v. Sweden, cited above, p. 20, § 64). However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings in issue, provided a hearing has been held at first instance (see Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36). Accordingly, unless there are circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance.
The Court observes that no hearing was held at first instance since the applicant did not request the County Administrative Court to hold one. It reiterates that, in the interests of the proper administration of justice, it is normally more expedient that a hearing is held already at the first court instance rather than only before the higher appellate body. Depending on the circumstances of the case, it might therefore be acceptable to reject a request for a hearing upon appeal, although no such hearing has been held at first instance (see Döry v. Sweden, cited above, § 40).
The Court observes that the applicant had been discharged from the hospital already before the Country Administrative Court’s decision. His factual situation and interests were therefore the same before the Supreme Administrative Court as they had been before the lower court.
The Court further recognises that the outcome of disputes concerning involuntary psychiatric treatment usually depends on the written opinions given by medical doctors. Many such disputes may accordingly be better dealt with in writing than in oral argument.
In the applicant’s case, the Court observes that the jurisdiction of the Supreme Administrative Court was not limited to matters of law but also extended to factual issues. The issue was whether the applicant’s state of health had required involuntary treatment several months earlier. The Court observes that the courts’ assessments were entirely based on the medical evidence in the case, presented in the form of written opinions issued by different physicians. It does not appear that their opinions differed. The Court considers that the higher appellate court could adequately resolve the issue before it on the basis of the medical certificates in question and the applicant’s written submissions.
Having regard to the foregoing, the Court finds that there were circumstances which justified dispensing with a hearing in the applicant’s case. The Court finds no indication of a violation of Article 14 of the Convention, either.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Criminal proceedings
1. Insofar as the applicant complained, under Article 6, that the District Court did not allow him to present arguments and that it refused to grant him free legal assistance, the Court notes that he did not submit these complaints to the Court of Appeal.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Insofar as he complained, under Article 8, that the enforcement of the sentence violated his right to respect for his private and family life, the Court notes that he did not submit this complaint to any domestic authority.
It follows that also this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
KAIPILA v. FINLAND DECISION
KAIPILA v. FINLAND DECISION