H.M. v. SWITZERLAND

THE FACTS

The applicant, a Swiss citizen born in 1912, is a pensioner residing in Worben in Switzerland. Before the Court she is represented by Mr W. Krähenmann, a lawyer practising in Bern in Switzerland.

The facts of the case, as submitted by the parties, may be summarised as follows.

Until 1994, the applicant lived together with her husband in the flat of a house belonging to H.M., one of her two sons, in Lyss in the Canton of Bern. In view of her leg sores, she was tended by an Association for House and Sick Visits as from 1987. In 1989 H.M. moved in.

In 1994, upon their request, the applicant and her husband were placed under curatorship (Beistandschaft) of her other son, A.M. However, H.M. objected thereto. At the end of 1994, the applicant’s husband moved into the S. old persons and foster home at Worben in the Canton of Bern. It was agreed that the applicant would also move in within a week, though she did not do so.

On 29 March 1995 a new curator, Mrs B.F. was appointed. Upon the applicant’s request and in view of H.M.’s resistance towards the new curator, the curatorship was terminated in respect of the applicant on 28 June 1995, though not in respect of her husband.

Early in 1996 the applicant’s husband died. As from 29 February 1996 the Association for House and Sick Visits stopped visiting the applicant. Thereafter, and following an eye-operation, the applicant’s eye-sight deteriorated. As from March 1996 the house doctor ceased to visit the applicant who continued to live with H.M. in his house.

On 13 December 1996 the Lyss Guardianship Commission (Vormundschaftskommission) requested the Aarberg District Government Office (Regierungsstatthalteramt) to place the applicant into an old persons and foster home.

On 16 December 1996, the Aarberg District Governor visited the applicant at her home. The latter explained that, as a rule, her son cooked, and that she had enough to eat. She could go alone to the toilet, and she washed herself in the kitchen. Her leg sores were washed and treated by a woman who helped her. The applicant also stated that she did not wish to go to the S. foster home.

On 17 December 1996, the Aarberg District Government Office ordered for an unlimited period of time the applicant’s placement in the S. foster home Worben on account of serious neglect (schwere Verwahrlosung). The Office relied on S. 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) and S. 9 of the Act on Deprivation of Liberty on Grounds of Welfare Assistance (Gesetz über die fürsorgerische Freiheitsentziehung) of the Canton of Bern. The order requested the municipal police, together with the health police, to undertake the placement on 20 December. The order noted that the applicant required permanent treatment in view of her leg sores and her eye cataract, that she no longer received care from a doctor or an association, and that it was not certain that she had enough to eat. The order, referring to untenable hygienic conditions in the unheated flat, stated that this situation, lasting already for many years, would not change in the foreseeable future.

On 20 December 1996 the applicant was placed in the S. foster home in Worb.

The applicant and H.M. each filed an appeal (Rekurs) with the Cantonal Appeals Commission (Rekurskommission) of the Canton of Bern for Deprivation of Liberty on Grounds of Welfare Assistance. The Commission consisted of three judges on the bench, of which one, the president, was a lawyer. The other two persons were specialised judges, one of whom, the Rapporteur, was a medical doctor.

On 16 January 1997 the Commission conducted a hearing at which the applicant, H.M., their lawyer as well as a member of the Guardianship Commission and of the S. home were present. According to the minutes of the hearing, the applicant explained, on the one hand, that she had no reason to be unhappy with the foster home; that, as she could no longer walk, it would be better for her to stay there; and that she did not see how matters would get better for her. On the other hand, she stated that “(she) wanted to get out of the S.”.

On the same day, 16 January 1997, the Cantonal Appeal Commission dismissed the appeals. In its decision, the Commission stated as to the facts:

“The situation at [the applicant’s residence] was apparently catastrophic, as even third persons found it necessary to file reports or make statements. It is noted in the file that lately [the applicant] had only been lying in bed, that her eyesight was very bad, and that she could not walk or stand properly. According to her own submissions she has to hold herself everywhere. She needs a wheel-chair which she did not have at home. The flat was not heated, there was refuse everywhere, and her nourishment was not taken care of. The health nurse responsible for [the applicant’s] care had already previously stated that her leg sores had not healed in view of the circumstances of her life. The nurse now stated that in the last weeks of care she had noticed a serious reduction of body weight which she considered had to do with the fact that [the applicant’s son] was not taking sufficient care of the mother’s nourishment. A certain Mr Hi., who had brought [the applicant] home after her stay in hospital had been disgusted about the situation there and also stated that the flat was not heated. Also the fruit vendor reported that the situation was untenable. When Mrs B., head of the Social Department of the W. S., had been asked how [the applicant] liked it there, she had herself declared that she had been present when [the applicant] had arrived at the foster home. At that time [the applicant] had not been able to walk, she was not properly dressed (nylon stockings and a torn woollen jacket) and she had stunk terribly. Mrs B. was shocked and declared that never had she seen a person in such a state, although she had a long experience in guardianship matters.”

In its decision the Appeals Commission considered, with reference to S. 397a of the Swiss Civil Code that two grounds were met which justified depriving the applicant of her liberty against her will. First, the applicant was neglected, as she was no longer in a position to comply with the minimal requirements of nourishment and hygiene. She could not even dress herself any longer. Without the help of third persons she would have to stay in bed. In respect of the second ground the Appeals Commission considered that “during the hearing it had come to the conclusion that the applicant had a mental weakness (senile dementia)” (Geistesschwäche [altersbedingte Demenz]). Since the Association for House and Sick Visits had stopped its care, the problem was unresolved, particularly as the applicant refused to enter the S. foster home on her own free will. The decision continued:

“In this context, the argument also does not help that [the applicant] has accepted the necessity of her stay in a foster home, as she explained during the appeal hearing. It is true that the necessity of a deprivation of liberty on grounds of welfare assistance would become superfluous, if [the applicant] would on her own free will reside in the S.. However, it transpires from the case-file that she has already frequently stated that she would now wish to enter voluntarily in the S., though finally it did not happen.”

In the Appeals Commission’s view, if the applicant was released, she would return to her son who was unable to provide sufficient care for her, as he himself was an invalid and had bad eyesight. On the other hand, the S. foster home, which could provide the necessary care, was ideal for the applicant as it was in an area which she knew. Indeed, the applicant hardly felt the deprivation of liberty which was minimal, and in fact it affected mainly her son who did not want to lose his mother. The Appeals Commission further found that the deprivation of liberty on grounds of welfare assistance complied with Article 5 § 1 (e) of the Convention, since this provision also permitted deprivation of liberty in case of vagrancy, which term was to be understood in a wider sense than neglect.

The applicant and her son filed a public law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 15 May 1997, the decision being served on 17 June 1997.

Insofar as the applicant and her son complained that serious neglect, as stated in S. 397a of the Civil Code, was incompatible with Article 5 § 1 (e) of the Convention, the Federal Court found that, in view of S. 113 § 3 of the Swiss Federal Constitution, in the version in force at the time, it was not in a position to examine whether or not provisions of the Civil Code complied with Article 5 § 1 (e) of the Convention.

Insofar as the applicant and her son complained that the Appeals Commission had not examined whether less stringent measures were possible, the Federal Court found:

“The Commission concludes on a factual level that the first appellant [the applicant] is no longer capable to look after and care for herself, to nourish herself and even to dress herself; without the help of third persons she would only be able to lie in bed; the second appellant [the applicant’s son] who is an invalid and in fact can no longer see is unable to look after her, and there is nobody else who is in a position to care; other attempts which have been made to solve this open problem of care have failed; only at the end has the placement in the S. Worben foster home been considered as the only means to remove neglect. The Appeals Commission has therefore duly considered the proportionality of the deprivation of liberty ...

Whether in the case of the first appellant there exists, apart from serious neglect, also mental weakness, which would also justify deprivation of liberty on its own - a point which is called in question by the appellants - and whether procedural rules have allegedly been breached in connection with this ground of detention, need not be examined, particularly since the appellants have without success contested detention on account of serious neglect.”

On 14 January 1998, the Aarberg District Government Office lifted the applicant’s deprivation of liberty on grounds of welfare assistance as she was residing in the foster home on her own free will.

S. 397a et seq. of the Swiss Civil Code concern withdrawal of liberty on grounds of welfare assistance (fürsorgerische Freiheitsentziehung). S. 397a concerns the conditions herefor and states as follows:

“A person of age or an incapacitated person may be placed or kept back in a suitable institution on account of mental illness, mental weakness, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care.

In this context the burden must be considered to which the person causes to the environment.

The person concerned must be released as soon as the situation permits.”

S. 397e, concerning the procedure in such cases, provides that “in the case of mentally ill persons a decision can only be taken on the basis of an expert opinion”.

The Act on Deprivation of Liberty on Grounds of Welfare Assistance of the Canton of Bern implements S. 397a et seq. of the Civil Code. S. 3 et seq. of the Act concern “measures without deprivation of liberty”. S. 3 provides that the Guardianship Office (Vormundschaftsbehörde) shall ensure for the necessary personal assistance for persons who endanger themselves or others on account of mental illness, mental weakness, alcoholism, other addictions or serious neglect. Pursuant to S. 4 the Guardianship office can order measures of care if guardianship measures do not suffice; such measures may be renewed after two years and shall follow acknowledged principles of social work. S. 8 et seq. concern “deprivation of liberty on grounds of welfare assistance”. S. 8 mentions, inter alia, the institutions for the placement of such persons, namely a psychiatric clinic, a home for therapy, or a foster home. S. 9 mentions the competent bodies, in particular the District Government Office.

S. 113 § 3 of the Swiss Federal Constitution (Bundesverfassung), in force at the relevant time, provided, inter alia, that Federal Statutes, enacted by Parliament, are binding upon the Federal Court. S. 113 § 3 has meanwhile been taken over by S. 191 of the Federal Constitution currently in force.

COMPLAINTS

1. The applicant complains of the unlawfulness of her deprivation of liberty in that Article 5 § 1 (e) of the Convention lists only “vagrancy” and not “neglect” as a ground of detention, and in that the one cannot be compared with the other. Neglect implies that the usual conventions in respect of cleanliness, nourishment and health care are not met. Vagrancy, on the other hand, implies lack of residence and of financial means, and being a burden to the public. The applicant points out that she had a fixed domicile together with her son and, as an old age pensioner, draws a regular pension. Thus, none of the grounds of detention under Article 5 § 1 were met in her case.

The applicant concludes that S. 397a of the Civil Code contradicts the Convention.

2. Under Article 13 of the Convention the applicant complains that S. 113 § 3 of the Swiss Federal Constitution prevents the Swiss authorities from examining whether S. 397a of the Civil Code complies with the Convention. In view thereof, a breach of the rights of the Convention can be raised for the first time only before the Strasbourg organs.