P.B. v. SWITZERLAND

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.

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.

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.