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SHTUKATUROV v. RUSSIA - 44009/05 [2008] ECHR 223 (27 March 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/223.html
Cite as:
(2012) 54 EHRR 27,
54 EHRR 27,
[2008] MHLR 238,
(2008) 11 CCL Rep 440,
[2008] ECHR 223
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FIRST
SECTION
CASE OF SHTUKATUROV v. RUSSIA
(Application
no. 44009/05)
JUDGMENT
STRASBOURG
27
March 2008
This
judgment will become final in the circumstances set out in
Article
44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Shtukaturov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section Registrar,
Having
deliberated in private on 6 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 44009/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Pavel Vladimirovich
Shtukaturov (“the applicant”), on 10 December 2005.
The
applicant, who was granted legal aid, was represented by
Mr D. Bartenev, a lawyer practising in St Petersburg. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
The
applicant alleged that by depriving him of his legal capacity without
his participation and knowledge the domestic courts had breached his
rights under Articles 6 and 8 of the Convention. He further alleged
that his detention in a psychiatric hospital infringed Articles 3 and
5 of the Convention.
On
9 March 2006 the Court decided that an interim measure should be
indicated to the Russian Government under Rule 39 of the Rules of
Court. The Government was requested to allow the applicant to meet
his lawyer in hospital in order to discuss the present case before
the Court.
On
23 May 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1982 and lives in St Petersburg.
Since
2002 the applicant has suffered from a mental disorder. On several
occasions he was placed in Hospital no. 6 in St Petersburg for
in patient psychiatric treatment. In 2003 he obtained the status
of a disabled person. The applicant lived with his mother; he did not
work and received a disability pension.
In
May 2003 the applicant’s grand-mother died. The applicant
inherited from her a flat in St Petersburg and a house with a plot of
land in the Leningrad region.
On
27 July 2004 the applicant was placed in Hospital no. 6 for
in patient treatment.
A. Incapacitation proceedings
On 3 August 2004 the applicant’s
mother lodged an application with the Vasileostrovskiy District Court
of St Petersburg, seeking to deprive the applicant of legal capacity.
She claimed that her son was inert and passive, that he rarely left
the house, that he spent his days sitting on a couch, and that
sometimes he behaved aggressively. She indicated that her son had
recently inherited property from his grand-mother; however, he had
not taken the necessary steps to register his property rights. This
indicated that he was incapable of leading an independent social life
and thus needed a guardian. It appears that the applicant was not
formally notified about the proceedings that had been brought in his
respect.
On
10 August 2004 the judge invited the applicant and his mother to the
court to discuss the case. However, there is no evidence that the
invitation ever reached the applicant. The court also requested the
applicant’s medical records from Hospital no. 6.
On
12 October 2004 the judge of the Vasileostrovskiy District Court of
St Petersburg commissioned a psychiatric expert examination of
the applicant’s mental health. The examination was assigned to
the doctors of Hospital no. 6, where the applicant had been
undergoing treatment. The judge formulated two questions to the
doctors: first, whether the applicant suffered from any mental
illness, and, second, whether he was able to understand his actions
and control them.
On 12 November 2004 an expert
team from Hospital no. 6 examined the applicant and his medical
records. The report prepared by the expert team may be summarised as
follows. After graduating from the school the applicant worked for a
short time as an interpreter. However, some time later he became
aggressive, unsympathetic and secluded, and prone to empty
philosophizing. He abandoned his job, started attending religious
meetings and visiting Buddhist shrines, lost most of his friends,
neglected his personal hygiene and became very negative towards his
relatives. He suffered from anorexia and was hospitalised in this
respect.
In
August 2002 he was placed in a psychiatric hospital for the first
time with a diagnosis of “simple schizophrenia”. In April
2003 he was discharged from hospital, however, in April 2003 he was
admitted again because of his aggressive behaviour towards his
mother. In the following months he was placed in hospital two more
times. In April 2004 he was discharged. However, he “continued
to live in an anti-social way”. He did not work, loitered in
the flat, prohibited his mother from preparing him food, leaving the
flat or moving around, and threatened her. She was so afraid of the
applicant that one day she spent a night at her friends’ home
and had to complain to the police about her son.
The
final part of the report concerned the applicant’s mental
condition at the moment of his examination. The doctors noted that
the applicant’s social maladjustment and autism had worsened.
They noted, inter alia,
that “the applicant did not understand why he had been
subjected to a [forensic] psychiatric examination”. The
doctors further stated that the applicant’s “intellectual
and mnemonic abilities were without any impairment”. However,
his behaviour was characterised by several typical features of
schizophrenia, such as “formality of contacts, structural
thought disorder [...], lack of judgment, emotional emasculation,
coldness, reduction of energetic potential”. The
expert team concluded that the applicant was suffering from “simple
schizophrenia with a manifest emotional and volitional defect”
and that he could not understand his actions and control them.
On
28 December 2004 Judge A. of the Vasileostrovskiy District Court held
a hearing on the merits of the case. The applicant was neither
notified nor present at that hearing. The applicant’s mother
was notified but did not appear. She informed the court that she
maintained her initial request and asked the court to examine the
case in her absence. The case was examined in the presence of the
district prosecutor. A representative of Hospital no. 6 was also
present. The representative of the hospital, described in the
judgment as “an interested party”, asked the court to
declare the applicant incapable. It appears that the prosecutor did
not make any remarks on the substance of the case. The hearing lasted
ten minutes. As a result, the judge declared the applicant legally
incapable, referring to the experts’ findings.
Since
no appeal was lodged against the judgment of 28 December 2004 within
the ten-day time-limit provided by the law, on 11 January 2005 the
judgment became final.
On
14 January 2005 the applicant’s mother received a copy of the
full text of the judgment of 28 December 2004. Subsequently, on an
unspecified date she was appointed the applicant’s guardian,
and authorised by law to act on his behalf in all matters.
According
to the applicant, he was not sent a copy of the judgment and became
aware of its existence by chance in November 2005, when he found a
copy of the judgment among his mother’s papers at home.
B. The first contact with the lawyer
On
2 November 2005 the applicant contacted Mr Bartenev, a lawyer with
the Mental Disability Advocacy Centre (“the lawyer”), and
told him his story. The applicant and the lawyer met for two hours
and discussed the case. According to the lawyer, who holds a degree
in medicine from the Petrozavodsk State University, during the
meeting the applicant was in an adequate state of mind and was fully
able to understand complex legal issues and give relevant
instructions. On the same day the lawyer helped the applicant to
draft a request to restore the time-limits for lodging an appeal
against the judgment of 28 December 2004.
C. Confinement in the psychiatric hospital in 2005
On
4 November 2005 the applicant was placed in Hospital no. 6.
The admission to the hospital was requested by the applicant’s
mother, as his guardian; in terms of domestic law it was therefore
voluntary and did not require approval by a court (see paragraph 56
below). The applicant claimed, however, that he had been confined in
hospital against his will.
On
9, 10, 12 and 15 November 2005 the lawyer attempted to meet his
client in the hospital. The applicant, in his turn, requested the
hospital administration to allow him to see his lawyer in private.
However, Dr Sh., the director of the hospital, refused permission. He
referred to the applicant’s mental condition and the fact that
the applicant was legally incapable and therefore could act only
through his guardian.
On
18 November 2005 the lawyer had a telephone conversation with the
applicant. Following that conversation the applicant signed an
authority form, authorising the lawyer to lodge an application with
the European Court of Human Rights in connection with the events
described above. That authority form was then transmitted to the
lawyer through a relative of another patient in Hospital no. 6.
The
lawyer reiterated his request for a meeting. He specified that he was
representing the applicant before the European Court and enclosed a
copy of the power of attorney. However, the hospital administration
refused permission on the ground that the applicant did not have
legal capacity. The applicant’s guardian also refused to take
any action on the applicant’s behalf.
From
December 2005 the applicant was prohibited any contact with
the outside world; he was not allowed to keep any writing equipment
or use a telephone. The applicant’s lawyer produced a
written statement by Mr S., another former patient in Hospital no. 6.
Mr S. met the applicant in January 2006 while Mr S. was in the
hospital in connection with attempted suicide. Mr S. and the
applicant shared the same room. In the words of Mr S., the applicant
was someone friendly and quiet. However, he was treated with strong
medicines, such as Haloperidol and Chlorpromazine. The hospital staff
prevented him from meeting his lawyer or his friends. He was not
allowed to write letters; his diary was confiscated. According to the
applicant, at a certain moment he attempted to escape from the
hospital, but the staff members captured him and attached him to his
bunk-bed.
D. Applications for release
On
1 December 2005 the lawyer complained to the guardianship office of
Municipal District no. 11 of St Petersburg about the actions of the
applicant’s official guardian – his mother. He claimed
that the applicant had been placed in the hospital against his will
and without medical necessity. The lawyer also complained that the
hospital administration was preventing him from meeting the
applicant.
On
2 December 2005 the applicant himself wrote a letter in similar terms
to the district prosecutor. He indicated, in particular, that he was
prevented from meeting his lawyer, that his hospitalisation had not
been voluntary, and that his mother had placed him in the hospital in
order to appropriate his flat.
On
7 December 2005 the applicant wrote a letter to the Chief Doctor of
Hospital no. 6, asking for his immediate discharge. He claimed that
he needed some specialist dental assistance which could not be
provided within the psychiatric hospital. In the following weeks the
applicant and his lawyer wrote several letters to the guardianship
authority, district prosecutor, public health authority etc., calling
for the applicant’s immediate discharge from the psychiatric
hospital.
On
14 December 2005 the district prosecutor advised the lawyer that the
applicant had been placed in the hospital at the request of his
official guardian, and that all questions related to his eventual
release should be decided by her.
On
16 January 2006 the guardianship office informed the lawyer that the
actions of the applicant’s guardian had been lawful. According
to the guardianship office, on 12 January 2006 the applicant was
examined by a dentist. As follows from this letter, the
representatives of the guardianship office did not meet the applicant
and relied solely on information obtained from the hospital and from
the guardian – the applicant’s mother.
E. Request under Rule 39 of the Rules of Court
In
a letter of 10 December 2005, the lawyer requested the Court to
indicate to the Russian Government interim measures under Rule 39 of
the Rules of Court. In particular, he requested the Court to oblige
the Russian authorities to grant him access to the applicant with a
view to assisting him in the proceedings and preparing his
application to the European Court.
On
15 December 2005 the President of the Chamber decided not to take any
decision under Rule 39 until more information was received. The
parties were invited to produce additional information and comments
regarding the subject matter of the case.
Based
on the information received from the parties, on 6 March 2006 the
President of the Chamber decided to indicate to the Government of
Russia, under Rule 39 of the Rules of Court, interim measures
desirable in the interests of the proper conduct of the proceedings
before the Court. These measures were as follows: the respondent
Government was directed to organise, by appropriate means, a meeting
between the applicant and his lawyer. That meeting could take place
in the presence of the personnel of the hospital where the applicant
was detained, but outside their hearing. The lawyer was to be
provided with the necessary time and facilities to consult with the
applicant and help him in preparing the application before the
European Court. The Russian Government was also requested not to
prevent the lawyer from having such meeting with his client at
regular intervals in future. The lawyer, in his turn, was obliged to
be cooperative and comply with reasonable requirements of the
hospital regulations.
However,
the applicant’s lawyer was not given access to the applicant.
The Chief Doctor of Hospital no. 6 informed the lawyer that he did
not regard the Court’s decision on interim measures as binding.
Furthermore, the applicant’s mother objected to the meeting
between the applicant and the lawyer.
The
applicant’s lawyer challenged that refusal before the
St Petersburg Smolninskiy District Court, referring to the
interim measure indicated by the European Court of Human Rights. On
28 March 2006 the court upheld his claim, declaring the ban on
meetings between the applicant and his lawyer was unlawful.
On
30 March 2006 the former Representative of the Russian Federation at
the European Court of Human Rights, Mr P. Laptev, wrote a letter to
the President of the Vasileostrovskiy District Court of
St Petersburg, informing him of the interim measures applied by
the Court in the present case.
On
6 April 2006 the Vasileostrovskiy District Court examined, on the
applicant’s motion, the Court’s request under Rule 39 of
the Rules and held that the lawyer should be allowed to meet the
applicant.
The
hospital and the applicant’s mother appealed against that
decision. On 26 April 2006 the St Petersburg City Court examined
their appeal and quashed the lower court’s judgment of 6 April
2006. The City Court held, in particular, that the District Court had
no competence to examine the request lodged by the Representative of
the Russian Federation. The City Court further noted that the
applicant’s official guardian – his mother – had
not applied to the court with any requests of this kind. The City
Court finally held as follows:
“... The applicant’s complaint [to the
European Court] was lodged against the Russian Federation... The
request by the European Court was addressed to the authorities of the
Russian Federation. The Russian Federation as a special subject of
international relations enjoys immunity from foreign jurisdiction, it
is not bound by coercive measures applied by foreign courts and
cannot be subjected to such measures ... without its consent. The
[domestic] courts have no right to undertake on behalf of the Russian
Federation an obligation to comply with the preliminary measures...
This can be decided by the executive ... by way of an administrative
decision.”
On
16 May 2006 the St Petersburg City Court examined the appeal against
the judgment of 28 March 2006 lodged by the Chief Doctor of Hospital
no. 6. The City Court held that “under Rule 34 of the Rules of
Court the authority of an advocate [representing the applicant before
the European Court] should be formalised in accordance with the
legislation of the home country”. The City Court further held
that under Russian law the lawyer could not act on behalf of the
client in the absence of an agreement between them. However, no such
agreement had been concluded between Mr Bartenev (the lawyer) and the
applicant’s mother – the person who had the right to act
on behalf of the applicant in all legal transactions. As a result,
the City Court concluded that the lawyer had no authority to act on
behalf of the applicant, and his complaint should be dismissed. The
judgment of 28 March 2006 by the Smolninskiy District Court was thus
reversed.
On
the same day the applicant was discharged from hospital and met with
his lawyer.
F. Appeals against the judgment of 28 December 2004
On 20 November 2005 the
applicant’s lawyer brought an appeal against the decision of 28
December 2004. He also requested the court to extend the time-limit
for lodging the appeal, claiming that the applicant had not been
aware of the proceedings in which he had been declared incapable. The
appeal was lodged through the registry of the Vasileostrovskiy
District Court.
On
22 December 2005 Judge A. of the Vasileostrovskiy District Court
returned the appeal to the applicant’s lawyer without
examination. She indicated that the applicant had no legal capacity
to act and, therefore, could lodge an appeal or any other request
only through his guardian.
On
23 May 2006, after the applicant’s discharge from the
psychiatric hospital, the applicant’s lawyer appealed against
the decision of 22 December 2005. By a ruling of 5 July 2006 the
St Petersburg City Court upheld the decision of 22 December 2005. The
City Court held that the Code of Civil Procedure did not allow for
the lodging of applications for restoration of procedural terms by
legally incapable persons.
In
the following months the applicant’s lawyer introduced two
appeals for supervisory review, but to no avail.
According
to the applicant’s lawyer, in 2007 the applicant was admitted
to Hospital no. 6 again, at the request of his mother.
II. RELEVANT DOMESTIC LAW
A. Legal capacity
Under Article 21 of the Civil Code of the Russian
Federation of 1994, any individual aged 18 or more has, as a rule,
full legal capacity (дееспособность),
which is defined as “the ability to acquire and enjoy civil
rights, create and fulfil civil obligations by his own acts”.
Under Article 22 of the Civil Code legal capacity can be limited, but
only on the grounds defined by law and within a procedure prescribed
by law.
Under
Article 29 of the Civil Code, a person who cannot understand or
control his or her actions as a result of a mental disease may be
declared legally incapable by the court and placed in the care of a
guardian (опека).
All legal transactions on behalf of the incapacitated person are
concluded by his guardian. The incapacitated person can be declared
fully capable if the grounds on which he or she was declared
incapable cease to exist.
Article
30 of the Civil Code provides for partial limitation of legal
capacity. If a person’s addiction to alcohol or drugs is
creating serious financial difficulties for his family, he can be
declared partially incapable. That means that he is unable to
conclude large-scale transactions. He can, however, dispose of his
salary or pension and make small transactions, under the control of
his guardian.
Article
135 (1) of the Code of Civil Proceedings of 2002 establishes that a
civil claim lodged by a legally incapable person should be returned
to him without examination.
Article
281 of the Code of Civil Proceedings of 2002 establishes the
procedure for declaring a person incapable. A request for
incapacitation of a mentally ill person can be brought before a
first-instance court by a family member of the person concerned. On
receipt of the request, the judge must commission a forensic
psychiatric examination of the person concerned.
Article
284 of the Code of Civil Proceedings provides that the incapacitation
request should be examined in the presence of the person concerned,
the plaintiff, the prosecutor and a representative of the
guardianship office (орган
опеки
и попечительства).
The person whose legal capacity is being examined by the court is to
be summoned to the court hearing, unless his state of health
prohibits him from attending it.
Article 289 of the Code of Civil Proceedings provides
that full legal capacity can be restored by the court at the request
of the guardian, a close relative, the guardianship office or the
psychiatric hospital, but not of the person declared incapable
himself.
B. Confinement to a psychiatric hospital
The
Psychiatric Assistance Act of 2 July 1992, as amended (“the
Act”), provides that any recourse to psychiatric aid should be
voluntary. However, a person declared fully incapable may be
subjected to psychiatric treatment at the request or with the consent
of his official guardian (section 4 of the Act).
Section
5 (3) of the Act provides that the rights and freedoms of persons
with mental illnesses cannot be limited solely on the ground of their
diagnosis, or the fact that they have been subjected to treatment in
a psychiatric hospital.
Under
section 5 of the Act, a patient in a psychiatric hospital can have a
legal representative. However, pursuant to point 2 of section 7, the
interests of a person declared fully incapable are represented by his
official guardian.
Section
28 (3) and (4) of the Act (“Grounds for hospitalisation”)
provides that a person declared incapable can be subjected to
hospitalisation in a psychiatric hospital at the request of his
guardian. This hospitalisation is regarded as voluntary and does not
require approval by the court, as opposed to non-voluntary
hospitalisation (sections 39 and 33 of the Law).
Section
37 (2) of the Law establishes the list of rights of a patient in a
psychiatric hospital. In particular, the patient has the right to
communicate with his lawyer without censorship. However, under
section 37 (3) the doctor may limit the applicant’s rights to
correspond with other persons, have telephone conversations and meet
visitors.
Section
47 of the Act provides that the doctors’ actions can be
appealed against before the court.
III. RELEVANT INTERNATIONAL DOCUMENTS
On 23 February 1999 the Committee of Ministers of the
Council of Europe adopted “Principles concerning the legal
protection of incapable adults”, Recommendation No. R (99) 4.
The relevant provisions of these Principles read as follows:
Principle 2 – Flexibility in legal response
“1. The measures of protection and
other legal arrangements available for the protection of the personal
and economic interests of incapable adults should be sufficient, in
scope or flexibility, to enable suitable legal response to be made to
different degrees of incapacity and various situations. ...
4. The range of measures of protection should
include, in appropriate cases, those which do not restrict the legal
capacity of the person concerned.”
Principle 3 – Maximum reservation of capacity
“1. The legislative framework should,
so far as possible, recognise that different degrees of incapacity
may exist and that incapacity may vary from time to time.
Accordingly, a measure of protection should not result automatically
in a complete removal of legal capacity. However, a restriction of
legal capacity should be possible where it is shown to be necessary
for the protection of the person concerned.
2. In particular, a measure of protection
should not automatically deprive the person concerned of the right to
vote, or to make a will, or to consent or refuse consent to any
intervention in the health field, or to make other decisions of a
personal character at any time when his or her capacity permits him
or her to do so. ...”
Principle 6 – Proportionality
“1. Where a measure of protection is
necessary it should be proportional to the degree of capacity of the
person concerned and tailored to the individual circumstances and
needs of the person concerned.
2. The measure of protection should interfere
with the legal capacity, rights and freedoms of the person concerned
to the minimum extent which is consistent with achieving the purpose
of the intervention. ...”
Principle 13 – Right to be heard in person
“The person concerned should have the right to be
heard in person in any proceedings which could affect his or her
legal capacity.”
Principle 14 – Duration review and appeal
“1. Measures of protection should,
whenever possible and appropriate, be of limited duration.
Consideration should be given to the institution of periodical
reviews. ...
3. There should be adequate rights of
appeal.”
THE LAW
The
Court notes that the applicant submitted several complaints under
different Convention provisions. Those complaints relate to his
incapacitation, placement in a psychiatric hospital, inability to
obtain a review of his status, inability to meet with his lawyer,
interference with his correspondence, involuntary medical treatment,
etc. The Court will examine these complaints in chronological
sequence. Thus, the Court will start with the complaints related to
the incapacitation proceedings – the episode which gave rise to
all the subsequent events, and then examine the applicant’s
hospitalisation and the complaints stemming from it.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE INCAPACITATION PROCEEDINGS
The
applicant complained that he had been deprived of his legal capacity
as a result of proceedings which had not been “fair”
within the meaning of Article 6 of the Convention. Article 6 §
1, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Submissions by the parties
The
Government contended that the proceedings before the Vasileostrovskiy
District Court had been fair. Under Russian law, a request to declare
a person legally incapable may be lodged by a close relative of the
person suffering from a mental disorder. In the present case it was
Ms Shtukaturova, the applicant’s mother, who filed such a
request. The court ordered a psychiatric examination of the
applicant. Having examined the applicant, the doctors concluded that
he was unable to understand and control his actions. Given the
applicant’s medical condition, the court decided not to summon
him to the hearing. However, in compliance with Article 284 of the
Code of Civil Procedure, a prosecutor and a representative of the
psychiatric hospital were present at the hearing. Therefore, the
applicant’s procedural rights were not breached.
The
applicant maintained that the proceedings before the first instance
court had been unfair. The judge had not explained why he changed his
mind and considered that the applicant’s personal presence had
not been necessary (see paragraphs 11 et seq. above). The court had
decided on the applicant’s incapacity without hearing or seeing
him, or obtaining any submissions from the applicant. The court based
its decision on the written medical report, which the applicant had
not seen and had had no opportunity to challenge. The prosecutor who
participated in the hearing on 28 December 2004 also supported the
application, without having seen the applicant prior to the hearing.
The Vasileostrovskiy District Court also failed to question the
applicant’s mother, who had lodged the application for
incapacity. In sum, the court failed to take even minimal measures in
order to ensure an objective assessment of the applicant’s
mental condition. Further, the applicant maintained that he was
unable to challenge the judgment of 28 December 2004 because under
Russian law he lacked standing to lodge an appeal.
B. Admissibility
The
parties did not dispute the applicability of Article 6, under its
“civil” head, to the proceedings at issue, and the Court
does not see any reason to hold otherwise (see Winterwerp v. the
Netherlands, judgment of 24 October 1979, Series A no. 33, §
73).
The Court notes that the applicant’s complaints
are not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further notes that they are not inadmissible
on any other grounds. They must therefore be declared admissible.
C. Merits
1. General principles
In
most of the previous cases before the Court involving “persons
of unsound mind”, the domestic proceedings concerned their
detention and were thus examined under Article 5 of the Convention.
However, the Court has consistently held that the “procedural”
guarantees under Article 5 §§ 1 and 4 are broadly
similar to those under Article 6 § 1 of the Convention (see, for
instance, Winterwerp, cited above, § 60; Sanchez-Reisse
v. Switzerland, judgment of 21 October 1986, Series A no. 107;
Kampanis v. Greece, 13 July 1995, Series A no. 318-B; and
Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July
2001). Therefore, in deciding whether the incapacitation proceedings
in the present case were “fair”, the Court will have
regard, mutatis mutandis, to its case-law under Article 5 §
1 (e) and Article 5 § 4 of the Convention.
The
Court recalls that in deciding whether an individual should be
detained as a “person of unsound mind”, the national
authorities are to be recognised as having a certain margin of
appreciation. It is in the first place for the national authorities
to evaluate the evidence adduced before them in a particular case;
the Court’s task is to review under the Convention the
decisions of those authorities (see Luberti v. Italy, judgment
of 23 February 1984, Series A no. 75, § 27).
In
the context of Article 6 § 1 of the Convention, the Court
assumes that in cases involving a mentally ill person the domestic
courts should also enjoy a certain margin of appreciation. Thus, for
example, they can make the relevant procedural arrangements in order
to secure the good administration of justice, protection of the
health of the person concerned, etc. However, such measures should
not affect the very essence of the applicant’s right to a fair
trial as guaranteed by Article 6 of the Convention. In assessing
whether or not a particular measure, such as exclusion of the
applicant from a hearing, was necessary, the Court will take into
account all relevant factors (such as the nature and complexity of
the issue before the domestic courts, what was at stake for the
applicant, whether his appearance in person represented any threat to
others or to himself, etc.).
2. Application to the present case
It
is not disputed that the applicant was unaware of the request for
incapacitation made by his mother. Nothing suggests that the court
notified the applicant proprio motu about the proceedings (see
paragraph 10 above). Further, as follows from the doctor’s
report of 12 November 2004 (see paragraph 13 above), the applicant
did not realise that he was being subjected to a forensic psychiatric
examination. The Court concludes that the applicant was unable to
participate in the proceedings before the Vasileostrovskiy District
Court in any form. It remains to be ascertained whether, in the
circumstances, this was compatible with Article 6 of the Convention.
The
Government argued that the decisions taken by the national judge had
been lawful in domestic terms. However, the crux of the complaint is
not the domestic legality but the “fairness” of the
proceedings from the standpoint of the Convention and the Court’s
case-law.
In
a number of previous cases (concerning compulsory confinement in a
hospital) the Court confirmed that a person of unsound mind must be
allowed to be heard either in person or, where necessary, through
some form of representation – see, for example, Winterwerp,
cited above, § 79. In Winterwerp the applicant’s
freedom was at stake. However, in the present case the outcome of the
proceedings was at least equally important for the applicant: his
personal autonomy in almost all areas of life was at issue, including
the eventual limitation of his liberty.
Further,
the Court notes that the applicant played a double role in the
proceedings: he was an interested party, and, at the same time, the
main object of the court’s examination. His participation was
therefore necessary not only to enable him to present his own case,
but also to allow the judge to form his personal opinion about the
applicant’s mental capacity (see, mutatis mutandis,
Kovalev v. Russia, no. 78145/01, §§ 35-37, 10 May
2007).
The
applicant was indeed an individual with a history of psychiatric
troubles. From the materials of the case, however, it appears that
despite his mental illness he had been a relatively autonomous
person. In such circumstances it was indispensable for the judge to
have at least a brief visual contact with the applicant, and
preferably to question him. The Court concludes that the decision of
the judge to decide the case on the basis of documentary evidence,
without seeing or hearing the applicant, was unreasonable and in
breach of the principle of adversarial proceedings enshrined in
Article 6 § 1 (see Mantovanelli v. France, judgment of
18 March 1997, Reports of Judgments and Decisions
1997-II, § 35).
The
Court has examined the Government’s argument that a
representative of the hospital and the district prosecutor attended
the hearing on the merits. However, in the Court’s opinion,
their presence did not make the proceedings truly adversarial. The
representative of the hospital acted on behalf of an institution
which had prepared the report and was referred to in the judgment as
an “interested party”. The Government did not explain the
role of the prosecutor in the proceedings. In any event, from the
record of the hearing it appears that both the prosecutor and the
hospital representative remained passive during the hearing, which,
moreover, lasted only ten minutes.
Finally,
the Court recalls that it must always assess the proceedings as a
whole, including the decision of the appellate court (see C.G. v.
the United Kingdom, no. 43373/98, § 35, 19 December 2001).
The Court notes that in the present case the applicant’s appeal
was disallowed without examination, on the ground that the applicant
had no legal capacity to act before the courts (see paragraph 41
above). Regardless of whether or not the rejection of his appeal
without examination was acceptable under the Convention, the Court
merely notes that the proceedings ended with the first-instance court
judgment of 28 December 2004.
The
Court concludes that in the circumstances of the present case the
proceedings before the Vasileostrovskiy District Court were not fair.
There has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS
REGARDS THE INCAPACITATION OF THE APPLICANT
The
applicant complained that by depriving him of his legal capacity the
authorities had breached Article 8 of the Convention. Article 8
provides:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Submissions by the parties
1. The Government
The
Government admitted that the judgment depriving the applicant of his
legal capacity entailed a number of limitations in the area of
private life. However, they claimed that the applicant’s
rights under Article 8 had not been breached. Their submissions can
be summarised as follows. First, the measure adopted by the court was
aimed at the protection of the interests and health of other persons.
Further, the decision was taken in conformity with the substantive
law, namely on the basis of Article 29 of the Civil Code of the
Russian Federation.
2. The applicant
The
applicant insisted on his initial complaint that Article 8 had been
breached in his case. He maintained that Article 29 of the Civil
Code, which had served as a basis for depriving him of legal
capacity, was not formulated with sufficient precision. The law
permitted the deprivation of an individual’s legal capacity if
that person “could not understand the meaning of his actions or
control them”. However, the law did not explain what kind of
“actions” the applicant should understand or control, or
how complex these actions should be. In other words, there was no
legal test to establish the severity of the reduction in cognitive
capacity which called for full deprivation of legal capacity. The law
was clearly deficient in this respect; it failed to protect mentally
ill people from arbitrary interference with their right to private
life. Therefore, the interference with his private life had not been
lawful.
The
applicant further argued that the interference did not pursue a
legitimate aim. The authorities did not seek to protect national
security, public safety or the economic well-being of the country, or
to prevent disorder or crime. As to the protection of health and
morals of others, there was no indication that the applicant
represented a threat to the rights of third parties. Finally, with
regard to the applicant himself, the government did not suggest that
the incapacitation had had a therapeutic effect on the applicant. Nor
was there any evidence that the authorities had sought to deprive the
applicant of his capacity because he would otherwise have carried out
actions which would result in a deterioration of his health. With
regard to his own pecuniary interests, the protection of a person’s
own rights is not a ground listed in Article 8 § 2, and it
cannot therefore serve as a justification for interfering with a
person’s rights as protected under Article 8 § 1 of the
Convention. In sum, the interference with his private life did not
pursue any of the legitimate aims listed in Article 8 § 2 of the
Convention.
Finally,
the applicant submitted that the interference had not been “necessary
in a democratic society”, as there had been no need to restrict
his legal capacity. The Vasileostrovskiy District Court did not
adduce any reason for its decision: there was no indication that the
applicant had had problems with managing his property in the past,
was unable to work, abused his employment, etc. The medical report
was not corroborated by any evidence, and the court did not assess
the applicant’s past behaviour in any of the areas where it
restricted his legal capacity.
Even
if the Vasileostrovskiy District Court was satisfied that the
applicant could not act in a certain area of life, it could have
restricted his capacity in that specific area, without going further.
However, Russian law, unlike the legislation in many other European
countries, did not allow a partial limitation of one’s legal
capacity, but provided only for full incapacitation. The restricted
capacity option could be used solely for those who abused drugs or
alcohol. In such circumstances the court should have refused to apply
a measure as drastic as full incapacitation. Instead, the court
preferred to strip bluntly the applicant of all of his
decision-making powers for an unlimited period of time.
B. Admissibility
The parties agreed that the judgment of 28 December
2004 amounted to an interference in the applicant’s private
life. The Court recalls that Article 8 “secures to the
individual a sphere within which he or she can freely pursue the
development and fulfilment of his personality” (see Brüggeman
and Scheuten v. Germany, no. 6959/75, Commission’s report
of 12 July 1977, Decisions and Reports 10, p. 115, § 55). The
judgment of 28 December 2004 deprived the applicant of his
capacity to act independently in almost all areas of life: he was no
longer able to sell or buy any property on his own, to work, to
travel, to choose his place of residence, to join associations, to
marry, etc. Even his liberty could henceforth have been limited
without his consent and without any judicial supervision. In sum, the
Court concludes that the deprivation of legal capacity amounted to an
interference with the private life of the applicant (see Matter v.
Slovakia, no. 31534/96, § 68, 5 July 1999).
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
C. Merits
The
Court reiterates that any interference with an individual’s
right to respect for his private life will constitute a breach of
Article 8 unless it was “in accordance with the law”,
pursued a legitimate aim or aims under paragraph 2, and was
“necessary in a democratic society” in the sense that it
was proportionate to the aims sought.
The
Court took note of the applicant’s contention that the measure
applied to him had not been lawful and had not pursued any legitimate
aim. However, in the Court’s opinion it is not necessary to
examine these aspects of the case, since the decision to incapacitate
the applicant was in any event disproportionate to the legitimate aim
invoked by the Government for the reasons set out below.
1. General principles
The applicant claimed that full incapacitation had
been an inadequate response to the problems he experienced. Indeed,
under Article 8 the authorities must strike a fair balance between
the interests of a person of unsound mind and the other legitimate
interests concerned. However, as a rule, in such a complex matter as
determining somebody’s mental capacity,
the authorities should enjoy a wide margin of appreciation.
This is mostly explained by the fact that the national authorities
have the benefit of direct contact with the persons concerned and are
therefore particularly well placed to determine such issues. The task
of the Court is rather to review under the Convention the decisions
taken by the national authorities in the exercise of their powers in
this respect (see, mutatis mutandis, Bronda v. Italy,
judgment of 9 June 1998, Reports 1998-IV, p. 1491, § 59).
At the same time, the
margin
of appreciation
to be accorded to the competent national authorities will vary
in accordance with the nature of the issues and the importance of the
interests at stake (see Elsholz v. Germany [GC], no. 25735/94,
§ 49, ECHR 2000-VIII). A stricter scrutiny is called for in
respect of very serious limitations in the sphere of private life.
Further,
the Court reiterates that, whilst Article 8 of the Convention
contains no explicit procedural requirements, “the
decision-making process involved in measures of interference must be
fair and such as to ensure due respect of the interests safeguarded
by Article 8” (see Görgülü v. Germany,
no. 74969/01, § 52, 26 February 2004). The extent of the
State’s margin of appreciation thus depends on the quality of
the decision-making process. If the procedure was seriously deficient
in some respect, the conclusions of the domestic authorities are more
open to criticism (see, mutatis mutandis, Sahin v. Germany,
no. 30943/96, §§ 46 et seq., 11 October 2001).
2. Application to the present case
First, the Court notes that the interference with the
applicant’s private life was very serious. As a result of his
incapacitation the applicant became fully dependant on his official
guardian in almost all areas of life. Furthermore, “full
incapacitation” was applied for an indefinite period and could
not, as the applicant’s case shows, be challenged otherwise
than through the guardian, who opposed any attempts to discontinue
the measure (see also “Relevant Domestic Law” above,
paragraph 52).
Second,
the Court has already found that the proceedings before the
Vasileostrovskiy District Court were procedurally flawed. Thus, the
applicant did not take part in the court proceedings and was not even
examined by the judge in person. Further, the applicant was unable to
challenge the judgment of 28 December 2004, since the City Court
refused to examine his appeal. In sum, his participation in the
decision-making process was reduced to zero. The Court is
particularly struck by the fact that the only hearing on the merits
in the applicant’s case lasted ten minutes. In such
circumstances it cannot be said that the judge had “had the
benefit of direct contact with the persons concerned”, which
normally would call for judicial restraint on the part of this Court.
Third,
the Court must examine the reasoning of the judgment of 28 December
2004. In doing so, the Court will have in mind the seriousness of the
interference complained of, and the fact that the court proceedings
in the applicant’s case were perfunctory at best (see above).
The
Court notes that the District Court relied solely on the findings of
the medical report of 12 November 2004. That report referred to the
applicant’s aggressive behaviour, negative attitudes and
“anti-social” lifestyle; it concluded that the applicant
suffered from schizophrenia and was thus unable to understand his
actions. At the same time, the report did not explain what kind of
actions the applicant was unable of understanding and controlling.
The incidence of the applicant’s illness is unclear, as are the
possible consequences of the applicant’s illness for his social
life, health, pecuniary interests, etc. The report of 12 November
2004 was not sufficiently clear on these points.
The
Court does not cast doubt on the competence of the doctors who
examined the applicant and accepts that the applicant was seriously
ill. However, in the Court’s opinion the existence of a mental
disorder, even a serious one, cannot be the sole reason to justify
full incapacitation. By analogy with the cases concerning deprivation
of liberty, in order to justify full incapacitation the mental
disorder must be “of a kind or degree” warranting such a
measure – see, mutatis mutandis, Winterwerp,
cited above, § 40. However, the questions to the doctors, as
formulated by the judge, did not concern “the kind and degree”
of the applicant’s mental illness. As a result, the report of
12 November 2004 did not analyse the degree of the applicant’s
incapacity in sufficient detail.
It
appears that the existing legislative framework did not leave the
judge another choice. The Russian Civil Code distinguishes between
full capacity and full incapacity, but it does not provide for any
“borderline” situation other than for drug or alcohol
addicts. The Court refers in this respect to the principles
formulated by Recommendation No. R (99) 4 of the Committee of
Ministers of the Council of Europe, cited above in paragraph 59.
Although these principles have no force of law for this Court, they
may define a common European standard in this area. Contrary to these
principles, Russian legislation did not provide for a “tailor-made
response”. As a result, in the circumstances the applicant’s
rights under Article 8 were limited more than strictly necessary.
In
sum, having examined the decision-making process and the reasoning
behind the domestic decisions, the Court concludes that the
interference with the applicant’s private life was
disproportionate to the legitimate aim pursued. There was, therefore,
a breach of Article 8 of the Convention on account of the applicant’s
full incapacitation.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
Under
Article 5 § 1 of the Convention the applicant complained that
his placement in the psychiatric hospital had been unlawful. Article
5, in so far as relevant, provides:
“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 ... of
unsound mind...”
A. Submissions by the parties
1. The Government
The
Government claimed that the applicant’s placement in the
hospital had been lawful. Under sections 28 and 29 of the Psychiatric
Assistance Act, a person can be placed in a psychiatric hospital
pursuant to a court order or at the request of the doctor, provided
that the person suffers from a mental disorder. The law distinguishes
between non-voluntary and voluntary confinement in hospital. The
latter does not require a court order and may be authorised by the
official guardian, if the person is legally incapable. The applicant
was placed in the hospital at the request of his official guardian in
relation to a worsening of his mental condition. In such
circumstances, there was no need for a court order authorising the
confinement.
The
Government further indicated that section 47 of the Psychiatric
Assistance Act provided for administrative and judicial remedies
against the acts or negligence of medical personnel. However, under
paragraph 2 of Article 31 of the Civil Code of the Russian
Federation, if a person is legally incapable, it is his official
guardian who should act in his stead before the administrative bodies
or the courts. The applicant’s official guardian was his
mother, who did not lodge any complaint. The prosecutor’s
office, after an inquiry, concluded that the applicant’s rights
had not been breached. Therefore, the domestic law provided effective
remedies to protect the applicant’s rights.
As
to compensation for damages caused by the confinement in a
psychiatric hospital, it is recoverable only if there was a fault on
the part of the domestic authorities. The Government asserted that
the medical personnel had acted lawfully.
2. The applicant
The
applicant maintained his claims. First, he alleged that his placement
in hospital had amounted to a deprivation of his liberty. Thus, he
was placed in a locked facility. After he attempted to flee the
hospital in January 2006, he was tied to his bed and given an
increased dose of sedative medication. He was not allowed to
communicate with the outside world until his discharge. Finally, the
applicant subjectively perceived his confinement in the hospital as a
deprivation of liberty. Contrary to what the Government suggested, he
had never regarded his detention as consensual and had unequivocally
objected to it throughout the entire duration of his stay in the
hospital.
Further,
the applicant claimed that his detention in the hospital was not “in
accordance with the procedure prescribed by law”. Thus, under
Russian law, his hospitalization was regarded as voluntary
confinement, regardless of his opinion, and, consequently, none of
the procedural safeguards usually required in cases of non-voluntary
hospitalisation applied to him. There should, however, be some
procedural safeguards in place, especially where the person concerned
clearly expressed his disagreement with his guardian’s
decision. In the present case the authorities did not assess the
applicant’s capacity to take an independent decision of a
specific kind at the moment of his hospitalisation. They relied on
the applicant’s status as a legally incapable person, no matter
how far removed in time the court decision about his global capacity
might be. In the present case it was made more than ten months prior
to the hospitalisation.
Furthermore,
Russian law did not sufficiently reflect the fact that a person’s
capacity could change over time. There was no mandatory periodic
review of the capacity status, nor was there a possibility for the
person under guardianship to request such a review. Even assuming
that, at the moment of the initial court decision declaring him
incapable, the applicant’s capacity was so badly impaired that
he could not decide for himself the question of hospitalisation, his
condition might have changed in the meantime.
B. Admissibility
The
Government may be understood as claiming that the applicant’s
hospitalisation was, in domestic terms, voluntary, and, as such, did
not fall under the scenario of “deprivation of liberty”
within the meaning of Article 5 of the Convention. However, the Court
cannot subscribe to this thesis.
It
reiterates that in order to determine whether there has been a
deprivation of liberty, the starting point must be the concrete
situation of the individual concerned. Account must be taken of a
whole range of factors arising in a particular case such as the type,
duration, effects and manner of implementation of the measure in
question (see Guzzardi v. Italy, judgment of 6 November 1980,
Series A no. 39, § 92, and Ashingdane v. the United
Kingdom, judgment of 28 May 1985, Series A no. 93, § 41).
The
Court further recalls that the notion of deprivation of liberty
within the meaning of Article 5 § 1 does not only comprise the
objective element of a person’s confinement in a particular
restricted space for a not negligible length of time. A person can
only be considered to have been deprived of his liberty if, as an
additional subjective element, he has not validly consented to the
confinement in question (see, mutatis mutandis, H.M. v.
Switzerland, no. 39187/98, § 46, ECHR 2002-II).
The
Court observes in this respect that the applicant’s factual
situation at the hospital was largely undisputed. The applicant was
confined in the hospital for several months, he was not free to leave
and his contacts with the outside world were seriously restricted. As
to the “subjective” element, it was disputed between the
parties whether the applicant had consented to his stay in the
clinic. The Government mostly relied on the legal construction of
“voluntary confinement”, whereas the applicant referred
to his own perception of the situation.
The
Court notes in this respect that, indeed, the applicant lacked de
jure legal capacity to decide for himself. However, this does not
necessarily mean that the applicant was de facto unable to
understand his situation. First, the applicant’s own behaviour
at the moment of his confinement proves the contrary. Thus, on
several occasions the applicant requested his discharge from
hospital, he contacted the hospital administration and a lawyer with
a view to obtaining his release, and once he attempted to escape from
the hospital (see, a fortiori, Storck v. Germany, no.
61603/00, ECHR 2005-V, of 16 June 2005, where the applicant consented
to her stay in the clinic but then attempted to escape). Second, it
follows from the Court’s above conclusions that the findings of
the domestic courts on the applicant’s mental condition were
questionable and quite remote in time (see paragraph 96 above).
In
sum, even though the applicant was legally incapable of expressing
his opinion, the Court in the circumstances is unable to accept the
Government’s view that the applicant agreed to his continued
stay in the hospital. The Court therefore concludes that the
applicant was deprived of his liberty by the authorities within the
meaning of Article 5 § 1 of the Convention.
The
Court further notes that although the applicant’s detention was
requested by the applicant’s guardian, a private person, it was
implemented by a State-run institution – a psychiatric
hospital. Therefore, the responsibility of the authorities for the
situation complained of was engaged.
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
C. Merits
The
Court accepts that the applicant’s detention was “lawful”,
if this term is construed narrowly, in the sense of formal
compatibility of the detention with the procedural and material
requirements of the domestic law. It appears that the only condition
for the applicant’s detention was the consent of his official
guardian, his mother, who was also the person who solicited the
applicant’s placement in the hospital.
However,
the Court recalls that the notion of “lawfulness” in the
context of Article 5 § 1 (e) has also a broader meaning. “The
notion underlying the term [‘procedure prescribed by law’]
is one of fair and proper procedure, namely that any measure
depriving a person of his liberty should issue from and be executed
by an appropriate authority and should not be arbitrary” (see
Winterwerp, cited above, § 45). In other words, the
detention cannot be considered as “lawful” within the
meaning of Article 5 § 1 if the domestic procedure does not
provide sufficient guarantees against arbitrariness.
In its Winterwerp
judgment of 24 October 1979, the Court set out three minimum
conditions which have to be satisfied in order for there to be “the
lawful detention of a person of unsound mind” within the
meaning of Article 5 § 1 (e): except in emergency cases, the
individual concerned must be reliably shown to be of unsound mind,
that is to say, a true mental disorder must be established before a
competent authority on the basis of objective medical expertise; the
mental disorder must be of a kind or degree warranting compulsory
confinement; and the validity of continued confinement depends upon
the persistence of such a disorder.
Turning to the present case, the Court notes that it
was submitted on behalf of the applicant that his deprivation of
liberty had been arbitrary, because he had not been reliably shown to
be of unsound mind at the time of his confinement. The Government
submitted nothing to refute this argument. Thus, the Government did
not explain what made the applicant’s mother request his
hospitalisation on 4 November 2005. Further, the Government did not
provide the Court with any medical evidence concerning the
applicant’s mental condition at the moment of his admission to
the hospital. It appears that the decision to hospitalise relied
merely on the applicant’s legal status, as it was defined ten
months earlier by the court, and, probably, on his medical history.
Indeed, it is inconceivable that the applicant remained in hospital
without any examination by the specialist doctors. However, in the
absence of any supporting documents or submissions by the Government
concerning the applicant’s mental condition during his
placement, the Court has to conclude that it has not been “reliably
shown” by the Government that the applicant’s mental
condition necessitated his confinement.
In
view of the above the Court concludes that the applicant’s
hospitalisation between 4 November 2005 and 16 May 2006 was not
“lawful” within the meaning of Article 5 § 1 (e) of
the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant complains that he was unable to obtain his release from the
hospital. Article 5 § 4, relied on by the applicant, provides:
“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.”
A. Submissions by the parties
The
Government maintained that the applicant had had an effective remedy
to challenge his admission to the psychiatric hospital. Thus, he
could have applied for release or complained about the actions of the
medical staff through his guardian, who represented him before third
parties, including the court. Further, the General Prosecutor’s
Office had carried out a check of the applicant’s situation and
did not establish any violation of his rights.
The
applicant claimed that Russian law allowed him to bring court
proceedings only through his guardian, who was opposed to his
release.
B. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
C. Merits
The
Court recalls that by virtue of Article 5 § 4, a person of
unsound mind compulsorily confined in a psychiatric institution for
an indefinite or lengthy period is in principle entitled, at any rate
where there is no automatic periodic review of a judicial character,
to take proceedings at reasonable intervals before a court to put in
issue the “lawfulness” – within the meaning of the
Convention – of his detention (see Winterwerp, cited
above, § 55, and Luberti v. Italy, judgment of 23
February 1984, Series A no. 75, § 31; see also Rakevich
v. Russia, no. 58973/00, §§ 43 et seq., 28 October
2003).
This
is so in cases where the initial detention was initially authorised
by a judicial authority (see X v. the United Kingdom, judgment
of 5 November 1981, Series A no. 46, § 52), and it is a
fortiori true in the circumstances of the present case, where the
applicant’s confinement was authorised not by a court but by a
private person, namely the applicant’s guardian.
The
Court accepts that the forms of the judicial review may vary from one
domain to another, and depend on the type of the deprivation of
liberty at issue. It is not within the province of the Court to
inquire into what would be the best or most appropriate system of
judicial review in this sphere. However, in the present case the
courts were not involved in deciding on the applicant’s
detention at any moment and in any form. It appears that Russian law
does not provide for automatic judicial review of confinement in a
psychiatric hospital in situations such as the applicant’s.
Further, the review cannot be initiated by the person concerned if
that person has been deprived of his legal capacity. Such a reading
of Russian law follows from the Government’s submissions on the
matter. In sum, the applicant was prevented from pursuing
independently any legal remedy of judicial character to challenge his
continued detention.
The
Government claimed that the applicant could have initiated legal
proceedings through his mother. However, that remedy was not directly
accessible to him: the applicant fully depended on his mother who had
requested his placement in hospital and opposed his release. As to
the inquiry carried out by the prosecution authorities, it is unclear
whether it concerned the “lawfulness” of the applicant’s
detention. In any event, a prosecution inquiry as such cannot be
regarded as a judicial review satisfying the requirements of Article
5 § 4 of the Convention.
The
Court recalls its findings that the applicant’s hospitalisation
was not voluntary. Further, the last time on which the courts had
assessed the applicant’s mental capacity was ten months before
his admission to the hospital. The “incapacitation” court
proceedings were seriously flawed, and, in any event, the court never
examined the necessity of the applicant’s placement in a closed
institution. Nor was this necessity assessed by a court at the moment
of his placement in the hospital. In such circumstances the
applicant’s inability to obtain judicial review of his
detention amounted to a violation of Article 5 § 4 of the
Convention.
V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant submitted that the compulsory medical treatment he received
in hospital amounted to inhuman and degrading treatment. Furthermore,
on one occasion physical restraint was used against him, when he was
tied to his bed for more than 15 hours. Article 3 of the Convention,
referred to by the applicant in this respect, provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Court notes that the complaint under Article 3 relates to two
distinct facts: (a) involuntary medical treatment and (b) the
securing of the applicant to his bed after his attempted escape. As
regards the second allegation, the Court notes that it was not part
of the applicant’s initial submissions to the Court and was not
sufficiently substantiated. Reference to it appeared only in the
applicant’s observations in reply to those of the Government.
Therefore, this incident falls outside of the scope of the present
application, and, as such, will not be examined by the Court.
It
remains to be ascertained, however, whether the medical treatment of
the applicant in the hospital amounted to “inhuman and
degrading treatment” within the meaning of Article 3. According
to the applicant, he was treated with Haloperidol and Chlorpromazine.
He described these substances as obsolete medicine with strong and
unpleasant side effects. The Court notes that the applicant did not
provide any evidence showing that he had actually been treated with
this medication. Furthermore, there is no evidence that the
medication in question had the unpleasant effects he was complaining
of. The applicant does not claim that his health has deteriorated as
a result of such treatment. In such circumstances the Court finds
that the applicant’s allegations in this respect are
unsubstantiated.
The
Court concludes that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained under Article 13, taken together with Articles 6
and 8 of the Convention, that he had been unable to obtain a review
of his status as a legally incapable person. Article 13, insofar as
relevant, provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Court finds that this complaint is linked to the complaints submitted
under Article 6 and 8 of the Convention, and it should therefore be
declared admissible.
The
Court further notes that in analysing the proportionality of the
measure complained of under Article 8 it took account of the fact
that the measure was imposed for an indefinite period of time and
could not be challenged by the applicant independently from his
mother or other persons empowered by law to seek its withdrawal (see
paragraph 90 above). Furthermore, this aspect of the proceedings was
considered by the Court in its examination of the overall fairness of
the incapacitation proceedings.
In
these circumstances the Court does not consider it necessary to
re-examine this aspect of the case separately through the prism of
the “effective remedies” requirement of Article 13.
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
Court notes that under Article 14 of the Convention the applicant
complained about his alleged discrimination. The Court finds that
this complaint is linked to the complaints submitted under Article 6
and 8 of the Convention, and it should therefore be declared
admissible. However, in the circumstances and given its findings
under Articles 5, 6 and 8 of the Convention, the Court considers that
there is no need to examine the complaint under Article 14 of the
Convention separately.
VIII. COMPLIANCE WITH ARTICLE 34 OF THE CONVENTION
The
applicant maintained that, by preventing him from meeting his lawyer
in private for a long period of time, despite the measure indicated
by the Court under Rule 39 of the Rules of Court, Russia had failed
to comply with its obligations under Article 34 of the Convention.
Article 34 of the Convention provides:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
Rule
39 of the Rules of Court provides:
“1. The Chamber or, where appropriate,
its President may, at the request of a party or of any other person
concerned, or of its own motion, indicate to the parties any interim
measure which it considers should be adopted in the interests of the
parties or of the proper conduct of the proceedings before it.
2. Notice of these measures shall be given to
the Committee of Ministers.
3. The Chamber may request information from
the parties on any matter connected with the implementation of any
interim measure it has indicated.”
A. Submissions by the parties
The
Government maintained that the applicant had not been prevented from
exercising his right of individual petition under Article 34 of the
Convention. However, he was able to do so only through his mother –
his official guardian. Since his mother had never asked Mr Bartenev
(the lawyer) to represent her son, he was not his legal
representative in the eyes of the domestic authorities. Consequently,
the authorities acted lawfully when not allowing him to meet the
applicant in the hospital.
The applicant submitted that his right of individual
petition has been breached. Thus, the hospital authorities prevented
him from meeting his lawyer, confiscated writing materials from him
and prohibited him to make or receive phone calls. The applicant was
also threatened with the extension of his confinement if he continued
his “litigious behaviour”. When the Court indicated an
interim measure, the hospital authorities refused to consider the
decision of the Court under Rule 39 as legally binding. This position
was later confirmed by the Russian courts. As a result, it was
virtually impossible for the applicant to work on his case before the
European Court during his whole stay in the hospital. Moreover, the
applicant’s lawyer was unable to assess the applicant’s
condition and collect information about the treatment the applicant
was subjected to while in the psychiatric hospital.
B. The Court’s assessment
1. Compliance with Article 34 before the indication of
an interim measure
The
Court reiterates that it is of the utmost importance for the
effective operation of the system of individual petition instituted
by Article 34 that applicants or potential applicants should be
able to communicate freely with the Convention organs without being
subjected to any form of pressure from the authorities to withdraw or
modify their complaints (see Akdivar and Others v. Turkey,
judgment of 16 September 1996, Reports 1996-IV; see also Ergi
v. Turkey judgment of 28 July 1998, Reports 1998-IV, §
105).
The
Court notes that an interference with the right of individual
petition may take different forms. Thus, in Boicenco v. Moldova
(no. 41088/05, §§ 157 et seq., 11 July 2006) the Court
found that the refusal by the authorities to let the applicant be
examined by a doctor in order to substantiate his claims under
Article 41 of the Convention constituted an interference with the
applicant’s right of individual petition, and, thus, was
incompatible with Article 34 of the Convention.
In
the present case the ban on the contacts with the lawyer lasted from
the applicant’s hospitalisation on 4 November 2005 until his
discharge on 16 May 2006. Further, telephone calls and correspondence
were also banned for almost all of that period. Those restrictions
made it almost impossible for the applicant to pursue his case before
the Court, and thus the application form was completed by the
applicant only after his discharge from the hospital. The authorities
could not have ignored the fact that the applicant had introduced an
application with the Court concerning, inter alia, his
confinement in the hospital. In such circumstances the authorities,
by restricting the applicant’s contacts with the outside world
to such an extent, interfered with his rights under Article 34 of the
Convention.
2. Compliance with Article 34 after the indication of
an interim measure
The
Court further notes that in March 2006 it indicated to the Government
an interim measure under Rule 39. The Court requested the Government
to allow the applicant to meet his lawyer on the premises of the
hospital and under the supervision of the hospital staff. That
measure was supposed to ensure that the applicant was able to pursue
his case before this Court.
The
Court is struck by the authorities’ refusal to comply with that
measure. The domestic courts which examined the situation found that
the interim measure was addressed to the Russian State as a whole,
but not to any of its bodies in particular. The courts concluded that
Russian law did not recognise the binding force of an interim
measures indicated by the Court. Further, they considered that the
applicant could not act without the consent of his mother. Therefore,
Mr Bartenev (the lawyer) was not regarded as his lawful
representative either in domestic terms, or for the purposes of the
proceedings before this Court.
Such
an interpretation of the Convention is contrary to the Convention. As
regards the status of Mr Bartenev, it was not for the domestic courts
to determine whether or not he was the applicant’s
representative for the purposes of the proceedings before the Court –
it sufficed that the Court regarded him as such.
As
to the legal force of an interim measure, the Court wishes to
reiterate the following (Aoulmi v. France, no. 50278/99, §
107, ECHR 2006 ... (extracts)):
“Under the Convention system, interim measures, as
they have consistently been applied in practice, play a vital role in
avoiding irreversible situations that would prevent the Court from
properly examining the application and, where appropriate, securing
to the applicant the practical and effective benefit of the
Convention rights asserted. Accordingly, in these conditions a
failure by a respondent State to comply with interim measures will
undermine the effectiveness of the right of individual application
guaranteed by Article 34 and the State’s formal undertaking in
Article 1 to protect the rights and freedoms set forth in the
Convention... Indications of interim measures given by the Court ...
permit it not only to carry out an effective examination of the
application but also to ensure that the protection afforded to the
applicant by the Convention is effective; such indications
also subsequently allow the Committee of Ministers to supervise
execution of the final judgment. Such measures thus enable the State
concerned to discharge its obligation to comply with the final
judgment of the Court, which is legally binding by virtue of Article
46 of the Convention”.
In
sum, an interim measure is binding to the extent that non-compliance
with it may lead to a finding of a violation under Article 34 of the
Convention. For the Court, it makes no difference whether it was the
State as a whole or any of its bodies which refused to implement an
interim measure.
The
Court recalls in this respect the case of Mamatkulov and Askarov
v. Turkey ([GC], nos. 46827/99 and 46951/99, §§ 92 et
seq., ECHR 2005 I) in which the Court analysed the State’s
non-compliance with an interim measure indicated under Rule 39. The
Court concluded that “the obligation set out in Article 34, in
fine, requires the Contracting States to refrain ... also from
any act or omission which, by destroying or removing the
subject matter of an application, would make it pointless or
otherwise prevent the Court from considering it under its normal
procedure” (§ 102).
By
not allowing the applicant to communicate with his lawyer the
authorities de facto prevented him from complaining to the
Court, and this obstacle existed so long as the authorities kept the
applicant in the hospital. Therefore, the aim of the interim measure
indicated by the Court was “to avoid ... [a] situation that
would prevent the Court from properly examining the
application and, where appropriate, securing to the applicant the
practical and effective benefit of the Convention rights asserted”
(see Aoulmi, loc. cit).
The
Court notes that the applicant was eventually released and met with
his lawyer, and was thus able to continue the proceedings before this
Court. The Court therefore finally had all the elements to examine
the applicant’s complaint, despite previous non-compliance with
the interim measure. However, the fact that the individual actually
managed to pursue his application does not prevent an issue arising
under Article 34: should the Government’s action make it more
difficult for the individual to exercise his right of petition, this
amounts to “hindering” his rights under Article 34 (see
Akdivar and Others, cited above, §§ 105 and 254). In
any event, the applicant’s release was not in any way connected
with the implementation of an interim measure.
The
Court takes note that the Russian legal system may have lacked a
legal mechanism for implementing interim measures under Rule
39. However, it does not absolve the defendant State from its
obligations under Article 34 of the Convention. In sum, in the
circumstances the failure of the authorities to comply with an
interim measure under Rule 39 amounted to a breach of Article 34 of
the Convention.
3. Conclusion
Having
regard to the material before it, the Court concludes that, by
preventing the applicant for a long period of time from meeting his
lawyer and communicating with him, as well as by failing to comply
with the interim measure indicated under Rule 39 of the Rules of
Court, the Russian Federation was in breach of its obligations under
Article 34 of the Convention.
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
The
applicant claimed 85,000 euros in respect of non pecuniary
damage.
The
Government considered these claims “fully unsubstantiated and
anyway excessive”. Further, the Government claimed that it was
the applicant’s mother who was entitled to claim any amounts on
behalf of the applicant.
The
Court recalls that the applicant has legal standing in his own right
within the Strasbourg proceedings and, consequently, can claim
compensation under Article 41 of the Convention.
The
Court considers that the question of the application of Article 41
is not ready for decision. Accordingly, it shall be reserved and the
subsequent procedure fixed having regard to any agreement which might
be reached between the Government and the applicant (Rule 75 § 1
of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 5
(concerning confinement to the psychiatric hospital), Article 6
(concerning incapacitation proceedings), Article 8 (concerning the
applicant’s incapacitation), Article 13 (concerning the absence
of effective remedies), and Article 14 of the Convention (concerning
the alleged discrimination) admissible, and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 of the Convention as regards the incapacitation proceedings;
3. Holds that there has been a violation of Article
8 of the Convention on account of the applicant’s full
incapacitation;
Holds that there has been a violation of Article
5 § 1 of the Convention as regards the lawfulness of the
applicant’s confinement in hospital;
5. Holds that there has been a violation of Article
5 § 4 of the Convention as regards the applicant’s
inability to obtain his release from the hospital;
Holds that there is no need to examine the
applicant’s complaint under Article 13 of the Convention;
Holds that there is no need to examine the
applicant’s complaint under Article 14 of the Convention;
Holds that the State failed to comply with its
obligations under Article 34 of the Convention by hindering the
applicant’s access to the Court and not complying with an
interim measure indicated by the Court in order to remove this
hindrance;
Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written observations on
the matter and, in particular, to notify the Court of any agreement
that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President