Facts
X., born in 1958, has been placed in the Cantonal Psychiatric Clinic several times based on a decision by the Superior Office Y. of July 9, 1991. His request for immediate release of July 11, 1991 was rejected by the Cantonal Department of the Interior on July 23, 1991, and X.'s appeal against this decision was also rejected by the Cantonal Administrative Court on July 31, 1991.
By an appeal for reform to the FSCA on September 16, 1991, X. requested the annulment of the judgment of the Administrative Court and his immediate release from the Cantonal Psychiatric Clinic.
The Administrative Court concluded that the appeal for reform should be dismissed.
The FSCA partially upheld the appeal for reform, annulled the contested judgment and remanded the case to the previous instance to complete the proceedings and render a new decision.
Considerations
Article 397e, paragraph 5, of the Swiss CC provides that decisions on involuntary commitment for assistance purposes must be made with the participation of experts. However, the law, the ECHR, and the Federal Council's message on involuntary commitment for assistance purposes of September 26, 1977 do not specify what is meant by "expert" or what circumstances may preclude the appointment of the expert provided for by the court.
In the case of an initial placement, the clinic's physicians can generally be considered experts within the meaning of Article 397e, paragraph 5, CC, even if they are civil servants and thus to some extent dependent on the state. However, when a person is placed in the same clinic repeatedly for the same reasons and the court relies exclusively on the reports of the attending physician or his superiors to examine whether the conditions of Article 397a CC are met, the objectivity of the expert opinion cannot be sufficiently guaranteed. The expert, who should be a neutral assistant to the judge according to Article 397e, paragraph 5, CC, can then no longer be considered impartial.
In the present case, the issue is the recusal of experts. The grounds for recusal are in principle governed by cantonal law, so that the violation of cantonal…