European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2008/1058.html
Cite as: [2008] ECHR 1058

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1431/03
by Trajče STOJANOVSKI
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Fifth Section), sitting on 16 September 2008 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 18 December 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Trajče Stojanovski, is a Macedonian national who was born in 1973 and lives in Štip. He is represented before the Court by Mr N. Garazov, a lawyer practising in Štip. The Macedonian Government (“the Government”) are represented by their Agent, Mrs R. Lazareska Gerovska.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant’s conviction

On 10 July 1998 the Štip Court of First Instance (“the trial court”) ordered a security measure against the applicant, who was a deaf mute, of “compulsory psychiatric treatment and confinement in a medical institution of a closed type” (задолжително психијатриско лекување и чување во здравствена установа од затворен тип) (“the confinement order”) for causing “serious bodily injury” and “endangering another with a dangerous implement in a fight or quarrel”. The order was to be enforced immediately. The court established that on 23 October 1995 an incident had taken place in the court building between Mr I. (the applicant’s father) and Mr D., as parties summoned to attend a hearing scheduled for that day in a case in which they had accused each other of causing bodily injuries. The applicant intervened in the quarrel and knocked Mr D down. Mr D. sustained severe head injuries and brain haemorrhaging as a result of the fall and died seven days later. The applicant also hit a judge several times. He was subsequently prevented from assaulting a third person, who had tried to help the judge. The court found that the applicant was “slightly mentally retarded” and that, due to his mental deficiency, he had been incapable of controlling his actions. It also established that he had been considered a threat and a danger to other people, in particular villagers whom he had allegedly often assaulted. It therefore considered the applicant aggressive and a danger to the public. The court based its judgment on two medical reports drawn up by three psychiatric specialists confirming that the applicant was mentally ill and incapable of assuming responsibility for his behaviour. They proposed medical treatment in a specialised psychiatric hospital.

The trial court accordingly imposed an indefinite confinement order, being satisfied that it was necessary for the protection of the public. The applicant was admitted to the Negorci Hospital for Mental Diseases (“the hospital”). There was no record of any previous conviction.

The applicant did not appeal against that judgment.

2. The 2001 review

On 28 October 1999 the hospital requested the trial court to amend the confinement order and release the applicant on condition that he undergoes compulsory psychiatric treatment. It based its proposal on the applicant’s good behaviour in the past, the good relations he had established with the staff and other patients and the lack of any neurotic or psychiatric disorder since his confinement. The hospital noted that the applicant was mentally ill, which was a permanent state that could not be regarded as a disease. Moreover, it considered that his father and sister could ensure that he would undergo the necessary supervision and regular examination in the Štip Medical Centre. The hospital also observed that, although he had left three times, he had not manifested any further intention to leave. He had also been regularly visited by his father.

In June 2000 the applicant’s sister asked the court to rule on the hospital’s proposal. A petition signed by over a dozen villagers was allegedly enclosed with her request.

On a date which has not been clarified, the Štip Court of First Instance dismissed the hospital’s proposal as ill-founded. It based its decision on a notification by the Ministry of the Interior (“the Ministry”) of 23 January 2001, according to which the applicant had left the hospital several times and his visits to the village had been perceived as a threat and a danger by the local inhabitants. The Ministry also referred to an incident on 1 January 2001 when the applicant had allegedly physically attacked Mr V., Mr D.’s son (see sub-heading 4, below). The trial court also took into consideration a petition signed by many of the villagers which had been attached to the notification. In its decision, the trial court further referred to submissions by the public prosecutor supporting the hospital’s proposal.

On 20 February 2001 the applicant, through his representative, appealed against the above decision. He claimed that the trial court had ignored the hospital’s expert opinion that there were no grounds requiring the applicant’s further confinement. The trial court should have obtained an alternative expert opinion regarding the applicant’s mental health in case of misgivings as to the validity of the hospital’s opinion. It should not have based its decision on the police report and the local inhabitants’ fears of the applicant.

At a hearing held on 30 March 2001, the Štip Court of Appeal dismissed the applicant’s appeal. The public prosecutor, who attended the hearing, pleaded against the applicant’s appeal. The court established that the trial court had not been bound by the hospital’s proposal, as Article 64 § 2 of the Criminal Code empowered the court to evaluate the results of the treatment in order to determine whether the applicant could be released on condition that he undergo compulsory medical treatment.

On 7 June 2001 the public prosecutor informed the applicant that there had been no grounds for lodging a request for the protection of legality with the Supreme Court.

2. The 2003 review

On 3 April 2003 the hospital lodged another proposal requesting the trial court to amend the confinement order and release the applicant on condition that he undergo compulsory medical treatment. The grounds of that proposal were similar to those of the 2001 review: good relations with the staff and other patients; no incidental mental disorder; no disturbance of order; mild drug therapy. The applicant was transferred to an open ward of the hospital.

On 25 April 2003 the applicant’s lawyer asked the court to rule on the hospital’s proposal. He noted, inter alia, that the applicant’s father intended to change residence and had, consequently, bought an apartment in another city.

On 7 May 2003 the public prosecutor lodged his submissions with the trial court, supporting the hospital’s proposal.

On 24 September 2003 the trial court requested the police to make an inquiry as to whether the applicant had caused problems during his stay in the village and whether he had been a danger to the local inhabitants.

At a meeting held in private on 20 November 2003, the adjudicating panel (кривичен совет) of the trial court (“the panel”) dismissed the hospital’s proposal. It based its decision on the Ministry’s notification of 15 October 2003, a copy of which was not submitted to the parties. The trial court stated, inter alia, that:

“...the applicant left the hospital several times and went to stay with his father...the last visit was in August 2003...after his arrival in the village, he started shouting out some indistinct words...although he was noticed by the inhabitants, there were no attacks on other persons...during the four-day stay in the village, he was always with his father. His presence in the village frightened the neighbours, who protected themselves by shutting up their houses and barring them from inside. Many inhabitants said that the applicant was under the psychological influence of his father, who – when intoxicated – had often provoked him by telling lies about the death of his mother and had thus made him aggressive towards some people. Local inhabitants therefore still feared the applicant’s aggression...”

On 9 February 2004 the applicant appealed on the following grounds: substantial procedural flaws; errors in facts and incorrect application of the substantive law. As to the grounds of his appeal, he confined himself to complaining that the panel had not based its decision on relevant facts, as the expert opinion of the hospital and the responsible medical officer who had treated him were the only evidence relevant for the court. He argued that in case of misgivings as to the validity of the opinion, the court should have obtained an alternative medical opinion.

On 20 February 2004 the hospital informed the trial court that the applicant had left it on 6 January 2004 and had not yet returned, despite his father’s assurances to that effect. The Government stated that he had returned to the hospital on 8 June 2004 with the assistance of the police. He allegedly fled the hospital once again in 2004, but returned of his own volition.

On 13 April 2004 the Štip Court of Appeal dismissed the applicant’s appeal. It accepted the reasoning of the panel and concluded that the hospital’s opinion had been irrelevant and not binding on the court, as on the basis of the results of the medical treatment it was free to decide whether the applicant was fit to be discharged from the hospital and treated on his release. It concluded, lastly, that the applicant had left the hospital several times and had been considered a threat by the public. It was therefore too early to consider him fit for release. The Court of Appeal referred to the written submissions of the public prosecutor dated 31 March 2004 by which the latter had supported the applicant’s appeal and his request that the case be remitted for fresh consideration.

The hospital did not submit any further request for review of the confinement order.

4. The criminal proceedings instituted against a third person

On 23 August 2001 the public prosecutor lodged an indictment against Mr V. for having inflicted serious bodily injury on the applicant on 1 January 2001. The medical certificate of 7 February 2001 indicated “serious bodily injury”.

On 11 February 2002 the trial court acquitted Mr V. as having acted in self-defence. It further instructed the applicant that any compensation claim could be decided in separate civil proceedings.

On 19 June 2002 the Štip Court of Appeal dismissed an appeal by the public prosecutor and upheld the trial court’s decision.

In December 2002 the applicant requested the public prosecutor to lodge a request for the protection of legality with the Supreme Court. No information has been provided as to any decision being taken.

2. Relevant domestic law

1. Criminal Procedure Act (Закон за кривичната постапка) (“the Act”)

Section 22 § 6

Trial courts sitting in three-judge panels ... decide at first instance (on a closed session) in the absence of a hearing (надвор од главниот претрес)...

Ordinary remedies

1. Appeal against a trial court judgment

Section 354 § 1 (1 and 2)

A (trial court) judgment may be challenged:

(1) for a substantive flaw of the criminal proceedings;

(2) for an infringement of the Criminal Code...

Section 355 § 1 (3)

There is a substantial flaw of the proceedings:

(3) if the hearing was held in the absence of a person whose presence at the trial was mandatory under the law.

Section 361 § 3

When the public prosecutor returns the file, the president of the panel shall schedule a session and notify the public prosecutor thereof.

Section 362

The accused and his/her representative ... shall be notified of a session of the panel (of the second-instance court) only if, within the time-period for lodging an appeal, they have made an appropriate request or proposed that a hearing be held before the second-instance court. The president of the panel or the panel itself may notify the parties ... of its session even if they have not made an appropriate request, if their presence is deemed useful.

Section 367 § 1 (1) and (2)

The second-instance court shall confine its review to the challenged part of the (trial court) judgment, but the review must always be of its own motion:

(1) ... whether, contrary to the provisions of this Act, the hearing was held in the absence of the accused and his representative when the presence of the defence was mandatory;

Appeal against a decision (жалба на решението)

Section 386

Sections 351, 353, 359, 361, 369 and 371 of this Act apply likewise to appeal proceedings against a decision.

If an appeal has been submitted against a decision given under section 478 of this Act, the public prosecutor, and other persons in accordance with the conditions set forth in section 362 of this Act, shall be notified of the panel’s session.

Request for the protection of legality

Section 403

The public prosecutor may (може) file a request for the protection of legality (барање за заштита на законитоста) against a final court decision or court proceedings if the law has been breached (ако е повреден законот).

Section 408

If the request for the protection of legality is well-founded, the court (the Supreme Court) may ... overturn the final decision, quash the first- and second-instance decisions, in full or in part ... and order a retrial before the lower courts ... or may confine itself to establishing that there has been a violation.

Special proceedings

Proceedings concerning the application of security measures

Section 483

A court which at first instance has ordered compulsory psychiatric treatment and confinement in a medical institution shall discontinue the order and release the perpetrator from the medical institution of its own motion or upon a proposal lodged by the medical institution or the custodial institution and after hearing the public prosecutor. It shall so decide if, after consulting the medical officer, it finds that there is no need for medical treatment and confinement of the perpetrator in the institution. It can order his or her release on condition that he or she undergoes compulsory psychiatric treatment.

2. Criminal Code (Кривичен Законик)

Article 63

Compulsory psychiatric treatment and confinement in a medical institution

“(1) The court shall order the compulsory psychiatric treatment and confinement in a medical institution of a perpetrator who has committed an offence while of unsound mind or with a substantial mental deficiency if it finds that, due to that condition, he or she may reoffend and that medical treatment and confinement in such an institution is warranted to prevent him or her from doing so.

(2) The court shall discontinue the measure set forth in paragraph 1 when it finds that there is no need for medical treatment and confinement of the perpetrator in the medical institution.

...

(4) The court shall review the need for medical treatment and confinement in a medical institution every year.”

Article 64

Compulsory psychiatric treatment on release

“(1) The court shall order compulsory psychiatric treatment on release of a perpetrator who has committed an offence while of unsound mind if it finds that, due to that condition, he or she may reoffend and that medical treatment on release would be sufficient to prevent him or her from doing so.

(2) The measure set forth in paragraph 1 may be imposed on an offender who has already undergone compulsory psychiatric treatment and confinement in a medical institution when, on the basis of the results of the medical treatment, the court determines that his or her treatment and confinement in a medical institution is no longer necessary...”

COMPLAINTS

The applicant complained under Article 5 of the Convention that his confinement in the medical institution had been unlawfully continued despite the hospital’s requests for his release. He complained that the courts had wrongly based their decisions on police reports instead of the findings of the hospital and the responsible medical officers as the only reliable evidence concerning his mental health.

Relying on Article 6 of the Convention, he also alleged unfairness of the criminal proceedings against Mr V., as the courts had wrongly applied domestic law and had erroneously established the facts.

THE LAW

The applicant complained under Article 5 of the Convention that his continued confinement in the hospital had been unlawful as the domestic courts had ignored the hospital’s request for his release. He further complained, under Article 6, of the unfairness of the criminal proceedings against Mr V. Articles 5 and 6 of the Convention, in so far as relevant, read as follows:

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

4. 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.”

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The 2003 review

1. The Government’s objection of non-exhaustion of domestic remedies concerning the applicant’s complaints under Article 5 § 4 of the Convention

(a) The parties’ submissions

The Government submitted that the applicant had not exhausted domestic remedies by which to determine whether the 2003 review had been in compliance with Article 5 § 4 of the Convention. They stated that the applicant had not complained about the trial court’s failure to hear evidence from him in his appeal lodged with the Court of Appeal. The applicant had also failed to request, under section 362 of the Act, the Court of Appeal to notify him of its session and to hear him in person.

The applicant contested the Government’s objection. He argued that the Court of Appeal had powers under the Act to hold a hearing or to inform him of its session even though he had not made an explicit request in that respect.

(b) The Court’s assessment

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see, mutatis mutandis, Merger and Cros v. France (dec.), no. 68864/01, 11 March 2004; Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52; and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).

As stated in the Court’s case-law, Article 35 provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999 V, and Akdivar and Others, cited above, § 68).

In the present case, the Court notes that the proceedings in question concerned a periodic judicial review of the confinement order. They were instituted on the hospital’s proposal, submitted under section 483 of the Act, requesting the court to release the applicant on condition that he undergoes compulsory psychiatric treatment. The panel, composed under section 22(6) of the Act, considered the proposal on a closed session – in the absence of a hearing. It is not disputed that the applicant was never summoned to appear in court. However, the applicant did not complain on that ground in his appeal of 9 February 2004. Moreover, both parties agreed that he did not request the Court of Appeal to hold a hearing or to inform him of a session of its panel, as provided under section 362 of the Act.

In that connection, the Court finds that there is force in the Government’s argument that complaining about the lack of a hearing in his appeal would have offered reasonable prospects of success. The Court agrees with the applicant that the Court of Appeal was not prevented to inform him of its session even though he had not made a request in that respect. However, it considers that the applicant, who was represented by counsel, could be expected to request a hearing on that matter. Since he failed to do so, he failed to exhaust domestic remedies (see, mutatis mutandis, Riess-Passer v. Austria (dec.), no. 31820/04, 20 September 2007).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant’s complaints under Article 5 § 1 (e) of the Convention

(a) The parties’ submissions

The Government stated that the confinement order placing the applicant in the hospital had been given on the basis of two medical reports confirming his mental deficiency. They argued that the hospital had not established that the applicant had completely recovered from his mental illness, but rather that his health had improved. Furthermore, a possible risk of reoffending could not be determined solely on the basis of psychological observations; regard also had to be had to the objective manifestations of the person concerned. In that connection the trial court’s request for a police inquiry regarding the applicant’s behaviour had been justified. They maintained that the domestic courts had carefully considered the hospital’s proposal with a view to securing the interests of the public and those of the applicant. In that connection they relied on the reasons for the applicant’s conviction, the incident of 1 January 2001 and the hospital’s failure to notify the trial court of his leaving.

The applicant reiterated that the courts had wrongly based their decisions on police reports, instead of the findings of the hospital and the responsible medical officers as the only reliable evidence concerning his mental health. He argued that the courts should not have ignored the hospital’s proposal as their decision should have been based on the results of his medical treatment. As a result of such a dismissive approach, the hospital had not submitted any further proposal requesting replacement of the confinement order. He referred to the doctors’ unanimous opinion according to which his mental deficiency had not been a result of an illness or psychosis, but of his handicaps which could neither improve nor be cured. His further stay in the hospital had therefore been pointless.

(b) The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. The 2001 review

The Court notes that the Court of Appeal’s decision of 30 March 2001 was served on the applicant before 7 June 2001, when the public prosecutor notified the applicant that there were no grounds for lodging a request for the protection of legality with the Supreme Court. For the reasons detailed in the Lepojić case (see Lepojić v. Serbia, no. 13909/05, § 54, 6 November 2007), which likewise apply to the present case, a subsequent application by the applicant to the public prosecutor was not a remedy which had to be exhausted for the purposes of the Convention. Accordingly, the time-period for using that remedy did not interrupt the running of the six-month period, which ended on 18 December 2002 when the application was lodged with the Court.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

C. The criminal proceedings instituted against a third person

The Court observes that the applicant complained under Article 6 of the Convention that he had not been given a fair trial in the course of the criminal proceedings that the public prosecutor brought against Mr V. The Court considers the applicant’s complaints under this head to be incompatible ratione materiae with the Convention as the latter does not generally provide for a right of prosecution of third parties (see Lazarevska v. the former Yugoslav Republic of Macedonia, no. 22931/03, § 42, 5 July 2007, and the references cited therein).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

The Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 5 § 1 (e) of the Convention concerning the 2003 review;

Declares inadmissible the remainder of the application.

Claudia Westerdiek Peer Lorenzen Registrar President