Facts
Parties: Appellant A. (born in 1972) and Dr. med. B., head physician of the Psychiatric Services.
Facts: On July 11, 2021, Dr. med. B. ordered the protective placement of A. in the Lucerne Psychiatry due to a mental disorder for a period of six weeks. A. appealed to the Higher Court of the Canton of Bern and demanded his release. The Higher Court dismissed the application for evidence and the appeal. A. complained to the Federal Supreme Court and requested the annulment of the higher court's decision and the referral of the case for a new decision.
Considerations
The Federal Supreme Court examined the federal legal requirements for the procedure in cases of medical protective placement. According to Art. 439 para. 1 no. 1 CC, the court must decide based on the expert opinion of an expert who must be independent of the court and may not be a member of the court with expert knowledge. The Higher Court disagreed with this interpretation and argued that a member of the court with expert knowledge could simultaneously act as an expert. The Federal Supreme Court did not follow this argument and referred to the case law of the European Court of Human Rights (ECtHR), which does not allow such a practice.
The Federal Supreme Court emphasized that protective placement constitutes a serious interference with personal freedom and therefore strict requirements must be placed on the procedure. It referred to the case law of the Federal Supreme Court, which is observed in the cantons and recognized in legal doctrine. A change in this practice was not justified, as it would have to be based on serious substantive reasons, which were not present in the present case.
Furthermore, the Federal Supreme Court examined whether the Higher Court could base the protective placement on a different reason than that stated in the medical…