J.L. v. FINLAND
Inadmissible
Georg Ress
The applicant is a Finnish citizen, born in 1954. He is detained in a mental hospital in Kuopio. A. Circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. I. In 1981 the applicant was charged with murder (committed in 1981), sexual intercourse with a minor (committed in 1979) and assault, and reckless driving and driving while intoxicated (committed in 1980). The examination concluded that the applicant had not been in possession of his senses at the time of the crimes of which he was accused. As long as he remained ill he had to be considered very dangerous to others. Agreeing with this finding, the National Medical Board (lääkintöhallitus, medicinalstyrelsen) in 1982 ordered the applicant to undergo compulsory psychiatric treatment in pursuance of Section 16a, subsection 1, and Section 34 of the 1952 Act on the Mentally Ill (mielisairaslaki, sinnessjuklag 187/1952). In 1983 the applicant was found guilty of the aforementioned offences but was not sentenced, given his mental state at the time of committing them. In 1984 he was placed under guardianship. Following the entry into force of the 1990 Mental Health Act (mielenterveyslaki, mentalvårdslag 1116/1990) in 1991, compulsory care shall be reviewed at maximum interval of six months. Any prolongation order must be confirmed by the competent county administrative court (lääninoikeus, länsrätt). In so far as this is immediately relevant to the present application, the applicant’s care has been extended as follows. On 4 April 1996 the Senior Physician responsible for the applicant’s treatment considered that he was still in need of compulsory psychiatric care and ordered its prolongation. The Deputy to the Senior Physician had found that the applicant continued to suffer from a psychosis (schizo-affectiva) and a personality disturbance. In 1974 and 1978 he had been convicted of deprivation of liberty and rape. In 1977 he had been convicted of a continued offence comprising deprivation of liberty, rape and assault. In addition, he had, in 1979, raped his then 14-year-old sister-in-law who had become pregnant. On 11 May 1981 he had murdered his wife by stabbing her 40 times while she had been holding their four-year-old son in her arms. The applicant objected to the prolongation order and requested, inter alia, that his mental state be examined “impartially” in a “civil hospital”. On 21 May 1996 the County Administrative Court of Kuopio dismissed the applicant’s request for a further examination of his mental state and confirmed the prolongation order, having regard to the reasons stated by the Senior Physician and his deputy. The applicant appealed further, considering that his compulsory care was not justified and seeking damages from the State. On 21 October 1996 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) declined to examine the applicant’s claims for damages and upheld the County Administrative Court’s decision. No oral hearing was held at either court level. On 4 October 1996 the applicant’s compulsory care was again prolonged by the Senior Physician. His order was confirmed by the County Administrative Court on 19 November 1996. The applicant did not appeal. On 2 April 1997 the Senior Physician prolonged the applicant’s compulsory care in the light of the Deputy’s opinion of 1 April 1997 which was very similar to the one issued in April 1996. On 6 May 1997 the County Administrative Court confirmed this prolongation order. It noted, inter alia, the opinion of the Senior Physician, the terms of his decision, the information in the applicant’s patient records regarding his state of health. The court concluded that the applicant remained mentally ill. His discharge would significantly aggravate that illness and seriously jeopardise the health and safety of himself and others. The other means of treating his illness had remained inapplicable or insufficient. The applicant appealed and also requested that he be transferred to another mental hospital. The Supreme Administrative Court obtained opinions from the Chief Physician of the hospital and the Senior Physician responsible for the applicant’s treatment. In his rejoinder to those opinions the applicant requested a new and complete examination of his mental state. On 25 September 1997 the Supreme Administrative Court declined to examine the applicant’s requests and dismissed his appeal, thus confirming the County Administrative Court’s decision. No oral hearing was held at either court level. On 19 September 1997 the Senior Physician again prolonged the applicant’s compulsory care. In her opinion the Deputy to the Senior Physician had found that the applicant continued to suffer from the aforementioned psychosis and personality disturbance. Should he be discharged, there would exist a very high risk that he would commit heinous violent offences. The Deputy again made reference to various crimes which the applicant had committed. On 21 October 1997 the County Administrative Court confirmed the above prolongation order. Similar prolongation orders were issued on 18 March and 11 September 1998 as well as on 9 March 1999, and subsequently confirmed by the County Administrative Court. During a certain period starting in January 1997 the applicant was apparently placed in a closed ward. According to an official extract from the National Criminal Record (rikosrekisteri, straffregistret), the applicant has been found guilty of the crimes mentioned below. Judgment of 1974: Deliberate refusal to perform military service, committed in 1974. (The applicant was sentenced to conditional imprisonment.) Judgment of 1978 (upheld on appeal in 1978): 1. Deprivation of liberty and rape, committed in 1977 2. Deprivation of liberty and rape, committed in 1977 3. Deprivation of liberty and rape, committed in 1978 4. Deprivation of liberty and rape, committed in 1978 5. Assault committed in 1978 (The applicant was sentenced to various prison terms.) Judgment of 1982 (upheld on appeal in 1983): 1. Sexual intercourse with a minor, committed in 1979 2. Assault and reckless driving, committed in 1980 3. Murder and possession of edged weapon, committed on 11 May 1981 (The applicant was not sentenced for the above-mentioned offences after being deemed to have lacked criminal responsibility in view of his mental state.) II. In 1993 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal against a decision of the Insurance Court (vakuutusoikeus, försäkringsdomstolen) whereby his request for compensation for an occupational injury had been dismissed. B. Relevant domestic law and practice Under section 8 of the Mental Health Act a person can be ordered to undergo compulsory care in a psychiatric hospital if he or she is diagnosed as mentally ill; if he or she needs treatment for a mental illness which, if not treated, would become considerably aggravated or severely endanger his or her health or safety or the health or safety of others; and if all other mental health services are inapplicable or inadequate. According to section 28, subsection 1, a patient’s right to self-determination may be limited and coercive means may be used only to the extent necessary for the treatment of his or her illness, for his or her safety or for the safety of others. In a decision of 3 May 1996 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, statsrådets justitiekanslersadjoint) ad interim found that the restriction of telephone calls to a patient in a mental hospital could not be held to have been in clear violation of section 28, subsection 1. The Deputy Chancellor nevertheless drew the competent Ministry’s attention to the requirement that restrictions of fundamental rights should be sufficiently detailed. On this point the legislation should therefore be amended. An application lodged under the Convention in respect of the restriction in question was eventually settled (no. 30271/96; see “The Law” below). According to the 1992 Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter 785/1992), patient records shall be kept confidential. They may only be released to courts and other authorities entitled to such access and, on certain conditions, to institutions providing treatment to the patient, to a close relative or to researchers (section 13). In her decision of 4 January 1994 the Deputy Parliamentary Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman) considered that the Niuvanniemi hospital’s practice of photographing all patients was in violation of section 3 and section 5, subsection 2, of the 1987 Personal Files Act (henkilörekisterilaki, personregisterlag 471/1987). The Deputy Ombudsman noted that the hospital had not abolished this practice despite her earlier decision of 5 March 1992 in which she had reached the same conclusion. Prior to that decision she had heard the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), who had reached the same conclusion. Section 3 of the Personal Files Act stipulates, inter alia, that the keeper of personal data files shall ensure that the personal integrity, interests and rights of anyone registered in such a file are not unduly encroached upon. Section 5, subsection 2, requires that only information of relevance to the purpose of the file shall be included. In her two decisions the Deputy Ombudsman underlined that an assessment should be made in respect of each patient as to the necessity of including and retaining photographs. Photographs should only appear in his or her records if the specific care needs of the patient so warranted. The Personal Files Act did not allow for the inclusion of photographs in patient records in the interests of the security of other patients, staff or society as a whole. The keeper of a personal file shall speedily correct, delete or supplement information on file which is incorrect, unnecessary, incomplete or outdated and provided such information evidently jeopardises the protection of the integrity or the interests or rights of the person in question. If the file-keeper refuses a request to the above effect it shall provide a reasoned certificate thereof (section 15). At the request of the registered person the Data Ombudsman may order the file-keeper to take the requested action (section 35). If this order is not complied with or if the Data Ombudsman decides not to take action, the registered person may bring the matter before the Data Protection Board (tietosuojalautakunta, datasekretessnämnden), whose decision may be appealed to the Supreme Administrative Court (sections 35 and 38). According to the Constitution of 1919 (Suomen hallitusmuoto, Regeringsform för Finland 94/1919), as in force up to 1 March 2000, anyone who has suffered an infringement of his rights, or damage, through an illegal act or negligence on the part of a civil servant, is entitled to demand that the civil servant be convicted and held liable for damages, or to report him for the purpose of having charges brought against him (section 93, subsection 2). A similar provision appears in section 118, subsection 3, of the Constitution of 2000 (Suomen perustuslaki, Finlands grundlag 731/1999). Chapter 2 (“Basic rights and liberties”) of the 1919 Constitution was amended by Act no. 969/1995 which entered into force on 1 August 1995. The new chapter 2 includes, inter alia, the right to privacy (section 8; as from 1 March 2000 section 10) and has been incorporated as such into the Constitution of 2000. Under the 1974 Tort Liability Act (vahingonkorvauslaki, skadeståndslag 412/1974) proceedings for damages may be initiated against the State in view of its vicarious liability for actions taken by civil servants (chapters 3 and 4). In its decision no. 1992:144 the Supreme Court found a health centre physician guilty of negligent misconduct as he had failed to ensure that a patient was transported to the centre in accordance with the Act on the Mentally Ill. In the private prosecution proceedings in question the patient had been granted cost-free proceedings. According to the 1992 Act on Social Welfare and Health Care Fees (laki sosiaali- ja terveydenhuollon asiakasmaksuista, lag om klientavgifter inom social- och hälsovården 734/1992) and the related Decree (912/1992), the fee collected from a psychiatric patient in long-term hospital treatment shall be based on his or her solvency and not exceed 80 per cent of the monthly income (section 15 of the Decree).