Judgment (Merits and Just Satisfaction) of European Court of Human Rights, March 29, 2001 (case CASE OF THOMA v. LUXEMBOURG)

President:Mrs E. Palm
Resolution Date:March 29, 2001


(Application no. 27154/95)



29 March 2001

In the case of D.N. v. Switzerland,

The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:

Mrs E. Palm, President,

Mr L. Wildhaber,

Mr J.-P. Costa,

Mr A. Pastor Ridruejo,

Mr J. Makarczyk,

Mr P. Kūris,

Mr R. Türmen,

Mrs F. Tulkens,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr M. Fischbach,

Mr V. Butkevych,

Mr J. Casadevall,

Mrs H.S. Greve,

Mr A.B. Baka,

Mr R. Maruste,

Mrs S. Botoucharova,

and also of Mr M. de Salvia, Registrar,

Having deliberated in private on 18 October 2000 and 14 February 2001,

Delivers the following judgment, which was adopted on the last-mentioned date:


1. The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by the European Commission of Human Rights ("the Commission") and by the Swiss Government ("the Government") on 28 October and 16 December 1999 respectively (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

2. The case originated in an application (no. 27154/95) against the Swiss Confederation lodged with the Commission under former Article 25 of the Convention by a Swiss national, Ms D.N. ("the applicant"), on 20 April 1995.

3. The applicant complained under Article 5 § 4 of the Convention of the lack of impartiality of a judge of the Administrative Appeals Commission of the Canton of St Gall, which had decided on her request for release from a psychiatric clinic.

4. On 10 September 1997 the Commission declared the applicant's complaint admissible. In its report of 9 September 1999 (former Article 31 of the Convention) [Note by the Registry. The report is obtainable from the Registry], it expressed the opinion that there had been a violation of Article 5 § 4 (twenty votes to six).

5. Before the Commission, the applicant, who had been granted legal aid, was represented until 28 April 1997 by Mr Ch. Bernhart, a lawyer practising in St Gall, Switzerland. As from 30 May 1997 she was represented before the Commission and later before the Court by Mr B. Eugster, a lawyer also practising in St Gall. The Government were represented by their Deputy Agent, Mr F. Schürmann, head of the Human Rights and Council of Europe Section of the Federal Office of Justice.

6. On 6 December 1999 a panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court). The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and former Rule 24. The President of the Grand Chamber acceded to the applicant's request not to have her name disclosed (Rule 47 § 3).

7. The applicant and the Government each filed a memorial.

8. After consulting the Agent of the Government and the applicant's lawyer, the Grand Chamber decided that it was not necessary to hold a hearing (Rule 59 § 2 in fine).



9. The applicant, born in 1964, had been placed in psychiatric detention on eleven occasions since 1989. In 1994 she was hospitalised in February, June and September.

10. On 14 November 1994 Dr E., a district medical officer (Bezirksarzt) in St Gall, decided in agreement with the applicant to send her to the Wil cantonal psychiatric clinic ("the psychiatric clinic") on account of chronic schizophrenia and of constituting a danger to herself.

11. On 1 December 1994 the applicant applied for release from the psychiatric clinic. Her request was refused on the same day by Dr O., the chief medical officer of the psychiatric clinic, who referred, inter alia, to a psychotic outbreak (Schub) of recurring schizophrenia and to her inability to accept her illness (mangelnde Krankheitseinsicht).

12. On 12 December 1994 the applicant, who was represented by counsel, filed an application with the Administrative Appeals Commission (Verwaltungsrekurskommission) of the Canton of St Gall, requesting, with reference to Article 397e § 2 of the Swiss Civil Code (Zivilgesetzbuch), her release from the psychiatric clinic. She also requested that the expert who was to examine her should not act as specialised judge (Fachrichter).

13. The Administrative Appeals Commission appointed one of its members, R.W., a doctor specialising in psychiatry and psychotherapy, to act as judge rapporteur.

14. On 15 December 1994 R.W. interviewed the applicant at the psychiatric clinic from 2.25 p.m. to 3.15 p.m. A court registrar (Gerichtsschreiberin) was also present. According to the verbatim record prepared by the latter, R.W. concluded the interview as follows:

"W. explains the further procedure and that the hearing will take place on 28 December 1994.

W.: I shall propose to the court to dismiss the action.

N.: Pity."

15. By letter of 19 December 1994 the Administrative Appeals Commission informed the applicant's counsel that the hearing had been fixed for 28 December 1994 at the psychiatric clinic. The letter referred to R.W. as being one of the specialised judges on the bench and rapporteur. It was further stated that at the hearing counsel would have the opportunity to comment on the expert opinion and on the case file.

16. On 23 December 1994 R.W. submitted his expert opinion. He diagnosed a schizophrenic mental illness and found that the applicant could not be released in view of the required high doses of medication. The report concluded: "If the applicant's situation does not clearly improve before the date of the hearing, I recommend dismissal of the action. The applicant may consult this report."

17. The hearing took place on 28 December 1994 at the psychiatric clinic. The bench of the Administrative Appeals Commission consisted of the President, who was a professional judge, and four other judges, namely a youth attorney (Jugendanwalt) and lawyer; a district director and curator (Amtsvormund) of the social services; an administrator of Pro Infirmis, a charitable association assisting the ill; and R.W., the rapporteur. The Administrative Appeals Commission heard two doctors from the psychiatric clinic and the applicant. The applicant's counsel, who was on holiday, remained absent, the Administrative Appeals Commission having refused to grant his request to postpone the hearing until January 1995.

18. On 28 December 1994 the Administrative Appeals Commission dismissed the applicant's action.

19. In its decision, the Administrative Appeals Commission concluded with reference, inter alia, to R.W.'s expert opinion that the applicant suffered from severe mental disturbances warranting her detention in a psychiatric institution.

20. In so far as the applicant had requested to be examined by an expert who was not a member of the Administrative Appeals Commission, it was found that the she had not substantiated her request. Reference was made to the case-law of the Federal Court (Bundesgericht), in particular a decision published in 1993 (Bundesgerichtsentscheide (BGE), vol. 119 Ia, p. 260), where that court had not expressly ruled out the combination of expert and judicial functions.

21. The applicant lodged a public-law appeal (staatsrechtliche Beschwerde) with the Federal Court, complaining, inter alia, of the position of the expert R.W., who should not have dealt with the case as he had already previously dealt with it by acting as an expert (Vorbefassung).

22. On 3 April 1995 the Federal Court dismissed the public-law appeal. In respect of the position of the expert, the court found, with reference to its own case-law:

"In the letter ... of 19 December 1994 counsel for the applicant was informed of the identity of the expert, and also that he would act as specialised...

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