26955/95

 AS TO THE ADMISSIBILITY OF Application No. 26955/95 by P. against Switzerland The European Commission of Human Rights sitting in private on 20 May 1997, the following members being present: Mrs. G.H. THUNE, Acting President Mr. S. TRECHSEL Mrs. J. LIDDY MM. E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H. DANELIUS F. MARTINEZ C.L. ROZAKIS L. LOUCAIDES J.-C. GEUS M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIUNAS E.A. ALKEMA M. VILA AMIGÓ Mrs. M. HION MM. R. NICOLINI A. ARABADJIEV Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 17 March 1995 by P. against Switzerland and registered on 3 April 1995 under file No. 26955/95; Having regard to: - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 14 February 1997 and the observations in reply submitted by the applicant association on 22 February 1997; Having deliberated; Decides as follows: THE FACTS The applicant association is an association under Swiss law aiming at assisting persons affected by compulsory psychiatric treatment (Zwangspsychiatrie). Before the Commission the applicant association is represented by Mr E. Schönenberger, a lawyer practising in Zürich. The facts of the case, as submitted by the parties, may be summarised as follows. A. Particular circumstances of the case On 25 May 1992 the applicant association filed a request with the director of the Rheinau Psychiatric Clinic for distribution of a set of documents to all detainees of the clinic, namely a letter accompanied by a power of attorney, a brochure on the applicant association, a copy of the Schönenberger and Durmaz v. Switzerland case (Eur. Court HR, judgment of 20 June 1988, Series A no. 137) and a model letter to the Psychiatric Court Commission at the Court of Appeal of the Canton of Zürich. The letter to all detainees of the clinic, written on the association's letter paper, was signed by Mr Schönenberger and mentioned his title "lawyer". It stated:

"This letter is only of relevance to you if you are involuntarily in the Rheinau Clinic and if you want to be released. The (applicant association) is willing to help you obtain your liberty. You can read in the enclosed brochure what the association is and what it does. At this point we draw your attention to Article 5 para. 4 of the European Convention on Human Rights: '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.' So, if you do not want to live in the clinic, you can send the enclosed letter to the Psychiatric Court Commission, Court of Appeal, 8023 Zürich. This Commission will then have to examine whether you are rightly or wrongly in the institution. At the same time you may give the power of attorney to the (applicant association) with the enclosed letter. We will then support you with the organisation of your life outside the clinic and also represent you before the competent administrative and judicial authorities." The brochure was entitled "Psychex v. Compulsory Psychiatry" and numbered 8 pages. It contained three sections: one section was entitled "Criticism of compulsory psychiatry from a medical point of view" and was written by a doctor; a second section, written by Mr Schönenberger, was entitled "Criticism of compulsory psychiatry from a legal point of view"; a third section, entitled "Psychex", referred, inter alia, to the allegedly catastrophic situation in psychiatric institutions which disclosed the unlawfulness of detention and compulsory treatment. The brochure regarded as well-founded the reproaches that the persons concerned were also tortured; it stated that Psychex acted as representative of persons persecuted by psychiatry. The model letter to the Psychiatric Court Commission at the Court of Appeal of the Canton of Zürich stated:

"Based on Article 5 para. 4 of the Convention, I request examination of my detention, my immediate release and legal representation based on S. 397f para. 2 of the Civil Code, possibly on S. 4 of the Federal Constitution. The conditions herefor transpire from the case-file." On 8 July 1992 the Rheinau Psychiatric Clinic refused distribution of the letter and imposed costs of 200 Swiss Francs (CHF). The applicant association's appeal was dismissed by the Health Department (Gesundheitsdirektion) of the Canton of Zürich on 29 July 1992. On 4 February 1993 the Bar Supervisory Commission (Aufsichts- kommission über die Rechtsanwälte) of the Canton of Zürich fined the applicant association's representative 1,000 CHF for breaching the prohibition of obtrusive publicity (Verbot aufdringlicher Werbung) stated in S. 7 para. 2 of the Lawyers' Act (Anwaltsgesetz; see below, Relevant domestic law) of the Canton of Zürich. Meanwhile the applicant association filed a further appeal against the decision of 29 July 1992 which was dismissed by the Government (Regierungsrat) of the Canton of Zürich on 21 September 1994. The Government found that the applicant association's circular severely breached the statutory prohibition of obtrusive publicity for lawyers' activities. The Government also noted that the patients in the clinic were comprehensively informed of their rights. Thus, when entering the clinic the duty doctor gave them a leaflet which mentioned, inter alia, the possibility of applying to the Psychiatric Court Commission in the event of compulsory hospitalisation. The applicant association's public law appeal (staatsrechtliche Beschwerde), in which it also complained about the length of the proceedings, was dismissed by the Federal Court (Bundesgericht) on 22 February 1995. In its decision the Court found that it did not necessarily transpire from S. 7 para. 2 of the Lawyers' Act that it authorised or obliged the competent authorities to refuse mail which contained obtrusive publicity. This provision did not therefore provide a sufficient legal basis for the interference in the applicant association's rights under Articles 8 and 10 of the Convention, as mentioned by the Government of the Canton of Zürich. Rather, in the Court's opinion the legal basis for the interference at issue lay in S. 4 subpara. 1 (b) of the General House Rules for Cantonal Hospitals (Allgemeine Hausordnung für die kantonalen Krankenhäuser; see below, Relevant domestic law). Moreover, the prohibition was in the public interest and proportionate. With reference to the case of Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria (Eur. Court HR, judgment of 19 December 1994, Series A no. 302), the Federal Court further found that hospitals could in principle refuse to distribute unaddressed publicity material (Werbesendungen), sent from outside to the institution, if it disturbed the running of the institution and the patients' peace. B. Relevant domestic law S. 4 of the Federal Constitution (Bundesverfassung) enshrines the principle of equality before the law. According to S. 397f para. 2 of the Civil Code (Zivilgesetzbuch), where it is decided in court proceedings to detain a person on account, inter alia, of mental illness, the judge may if necessary appoint a legal representative. According to S. 7 para. 2 of the Lawyers' Act (Anwaltsgesetz) of the Canton of Zürich, a lawyer shall refrain from obtrusive recommendation (aufdringliche Empfehlung). S. 4 subpara. 1 (b) of the General House Rules for Cantonal Hospitals (Allgemeine Hausordnung für die kantonalen Krankenhäuser) of the Canton of Zürich prohibits unauthorised publicity in hospitals for political, commercial and idealistic purposes, for instance by means of leaflets and notices (Anschläge). COMPLAINTS 1. The applicant association complains under Articles 8 and 10 of the Convention that it was not allowed to send the letter and the accompanying documents to the detainees of the Rheinau Psychiatric Clinic. In the applicant association's view, if somebody is informed of his human rights, the Swiss authorities apparently regard this as a disturbance of the running of an institution and of the patients' peace. 2. The applicant association further complains that it did not have a "tribunal" within the meaning of Article 6 para. 1 of the Convention at its disposal. 3. Furthermore, the applicant association complains under Article 13 of the Convention of the length of the proceedings. It is pointed out that the proceedings lasted from 8 July 1992 until 22 February 1995. The fact that the Federal Court refused to examine the complaint breaches this provision. 4. Finally, the applicant association complains of a breach of Article 14 of the Convention in that letters may not be sent to persons detained in an institution. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 17 March 1995 and registered on 3 April 1995. On 25 November 1996 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 14 February 1997. The applicant association replied on 22 February 1997. THE LAW 1. The applicant association complains under Articles 8 and 10 (Art. 8, 10) of the Convention that it was not allowed to send a letter and accompanying documents to the detainees of the Rheinau Psychiatric Clinic. Article 8 (Art. 8) of the Convention states: "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." Article 10 (Art. 10) of the Convention states: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." The Government contend that the interference with the applicant association's rights under Article 10 (Art. 10) of the Convention was "prescribed by law", as it was based on S. 4 of the General House Rules for Cantonal Hospitals of the Canton of Zürich, and that it served the purpose of "the protection of health (and) of the ... rights of others" within the meaning of this provision. As regards the necessity of the measure the Government consider that the circular letter addressed to the detainees of the clinic reflected a certain objectivity, whereas the enclosed brochure bluntly told all the addressees that their stay in the clinic was unlawful and that they were systematically subjected to torture. Moreover, the applicant association's right to distribute documents was limited by practical considerations. Clearly the patients in the clinic, who at times felt abandoned and had particular needs, were interested in knowing their rights and possessing the address of an association which would defend them. Exhaustive information was therefore necessary. Thus, in the Rheinau Clinic every new patient received a leaflet explaining his or her rights as well as the possibilities of requesting release, the procedure being extremely simple and no lawyer being required. Thus, in 1996 76 requests for a judicial review of detention were filed; half were withdrawn during the proceedings; a quarter were refused, and a final quarter were successful. Every patient may request the assistance of the social services of the Canton of Zürich. The Government further point out that the addressees of the letter are often in a state of considerable confusion and not in a position sufficiently to appreciate their situation and their acts. It could thus be very damaging to their medical treatment and also to their well-being in general if it was suggested that their detention was unlawful. Indeed, it could even be extremely harmful if they were told that their medical treatment amounted to torture, since any relationship of confidence between the clinic staff and the patient would be destroyed. The Government consider that the decision of the Bar Supervisory Commission of 4 February 1993 is not the object of the present application, though it cannot be completely disregarded either. Subsidiarily, it is contended that in the documents concerned the lawyer employed a completely inappropriate style in a particularly sensitive area. The applicant association sees a clear breach in this case of Articles 8 and 10 (Art. 8, 10) of the Convention as the director of the Rheinau Clinic refused to distribute the three documents at issue. Had the director merely disagreed with the content of the brochure, he could have prohibited its distribution, though not that of the other documents. In fact, the documents were intended to help the detainees. The association points out that it has defended over 1,400 psychiatric patients so far, and most persons who have been defended by the association have been released. In the applicant association's opinion, the Government do not wish that the detainees should receive an opinion which digresses from the official one. The Commission considers, in the light of the parties' submissions, that the complaint raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established. 2. Insofar as the applicant association complains that it did not have a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention at its disposal, the Commission considers that the proceedings at issue concerned neither "civil rights" nor any "criminal charge" against the applicant association. This part of the application is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. The applicant association complains of the length of the proceedings. It relies on Article 13 (Art. 13) of the Convention which states: "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." Even assuming that an issue arises under this provision, the Commission observes that the proceedings were conducted before four authorities, i.e. the Rheinau Psychiatric Clinic, the Health Department of the Canton of Zürich, the Government of the Canton of Zürich, and the Federal Court. It cannot therefore be said that, in view of the length of the proceedings, the remedies at the applicant association's disposal were not "effective" within the meaning of Article 13 (Art. 13) of the Convention. 4. Insofar as the applicant association complains of a breach of Article 14 (Art. 14) of the Convention in that letters may not be sent to persons detained in an institution, the Commission finds no separate issue under this provision. The remainder of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, by a majority, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case, insofar as it relates to the applicant association's complaint under Articles 8 and 10 of the Convention that it was not allowed to send a letter and other documents; and DECLARES INADMISSIBLE the remainder of the application. H.C. KRÜGER G.H. THUNE Secretary Acting President to the Commission of the Commission