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S. v. ESTONIA - 17779/08 [2011] ECHR 1511 (4 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1511.html
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[2011] ECHR 1511
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FIRST
SECTION
CASE OF S. v. ESTONIA
(Application
no. 17779/08)
JUDGMENT
STRASBOURG
4
October 2011
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 S. v. Estonia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 17779/08) against the Republic
of Estonia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Estonian national, Ms S. (“the
applicant”), on 10 April 2008. The President of the
Chamber acceded to the applicant’s request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).
The
applicant was represented by Ms V. Lee, Ms B. Bukovská and
Mr Y. Marchenko, lawyers at the Mental Disability Advocacy
Centre, an NGO based in Budapest, and by Ms E. Pilt, a lawyer at the
Estonian Patients’ Advocacy Association, an NGO based in
Tallinn. The Estonian Government (“the Government”) were
represented by their Agent, Ms M. Kuurberg, of the Ministry
of Foreign Affairs.
The
applicant alleged that her involuntary admission to a psychiatric
clinic had been unlawful and in violation of Article 5 § 1 of
the Convention.
On
28 August 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was reassigned to the newly composed First Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lives in Tallinn.
On
4 October 2006 a criminal investigation was started in respect of the
applicant’s violent behaviour towards her partner. Allegedly,
on 17 September 2006, she had repeatedly punched him and broken
his nose.
On
5 November 2006 another criminal investigation was started in respect
of the applicant’s allegedly violent behaviour towards her
partner on 3 November 2006. The two proceedings were
subsequently joined.
According
to the applicant, her partner had physically attacked her and she had
acted in self-defence.
On
6 November 2006 the applicant was admitted to the admissions ward of
the Psychiatric Clinic of the North Estonia Medical Centre.
On
8 November 2006 the psychiatric clinic filed an application with the
Harju County Court for the authorisation of the applicant’s
involuntary psychiatric treatment. The application was accompanied by
an opinion signed by two doctors, according to which the applicant
had been suffering from a mental illness for some years. She had been
treated in different hospitals and had been making outpatient visits
to psychiatrists. When not in hospital, she had used medicines
irregularly. According to the doctors’ opinion, the applicant
was suffering from delusions of grandeur, she was paranoid and her
condition had become acute. She had attacked her partner and had been
travelling with her six-year old child all over Estonia, including
doing so late in the evening, and had repeatedly taken the child to a
shelter. She had been hospitalised on 30 October 2006 but as she had
refused inpatient treatment, had behaved in a restrained manner and
had undertaken to follow outpatient treatment, she had been allowed
to leave the hospital on the following day. However, the applicant
had failed to undergo adequate treatment. She had become aggressive
and, after having attacked her partner again, she had been
hospitalised by ambulance. The doctors affirmed that at the time of
her involuntary admission to the clinic on 6 November 2006 the
applicant had demonstrated uninhibited and threatening behaviour.
Thereafter, she had remained psychotic, had demonstrated signs of
delusions of grandeur and had been paranoid. The doctors affirmed in
their opinion that the applicant had refused inpatient treatment.
On
8 November 2006 the County Court decided to apply interim measures
(esialgne õiguskaitse) and authorised the applicant’s
involuntary psychiatric treatment for as long as necessary, but for
no longer than three months. The relevant part of the court’s
decision read as follows:
“The court, having examined the evidence presented
to it, finds that there are circumstances [warranting] involuntary
emergency psychiatric treatment pursuant to the procedure for the
application of interim measures. According to the application of the
health care institution and the accompanying letter from the
attending physicians, [the applicant] was taken to the Psychiatric
Clinic by ambulance on 6 November 2006 because she had attacked her
partner. She had also been roaming around Estonia with her six-year
old child, thereby exhausting [the child] and damaging the child’s
health. On admission the patient was noisy, agitated and very angry
with her partner: she did not deny having punched him, but argued
that she had done so in self-defence. As [the applicant’s]
behaviour was threatening and uncontrollable, involuntary emergency
psychiatric treatment was applied in respect of her from 6 November
2006, as she posed a danger to herself and to those around her.
Previously, [the applicant] had received inpatient treatment [at a
psychiatric hospital] in Jämejala and [had also been treated] in
recent years in Tallinn. She had also been making outpatient visits
to psychiatrists. Since 1993 [the applicant] had received treatment
at the Psychiatric Clinic [of the North Estonia Medical Centre] on
five occasions.
At the time of the lodging of the application the
patient’s condition had not improved. [She] is agitated and
stressed, and does not understand the need for treatment.
Considering [the applicant’s] mental state and the
fact that her treatment is not possible by other means, the court
finds that there are grounds to apply interim measures pursuant to
Article 534 § 3 of the Code of Civil Procedure – that is,
before hearing the person herself and the other persons [involved],
and before appointing a representative for her. Based on the above,
involuntary emergency psychiatric treatment shall be authorised in
respect of [the applicant] for as long as necessary, but for no
longer than three months.”
On
the same date, the decision was sent to the psychiatric clinic by
fax.
On
8 November 2006, after having taken the above decision, the County
Court appointed a lawyer to defend the applicant at the State’s
expense.
According
to the applicant, she gave her consent to undergo treatment and
signed a consent form on 8 November 2006.
According
to the psychiatric clinic, as stated in the reply to the applicant’s
subsequent appeal against the County Court’s decision (see
paragraph 20 below), the applicant had said that she consented to the
treatment on 9 November 2006, after having been informed of the
County Court’s decision. She had signed a consent form to that
effect which had been placed in her medical file.
On
14 November 2006, in the course of the criminal proceedings, the
police ordered the applicant’s forensic psychiatric
examination. According to an expert report drawn up on 17 November
2006, the applicant suffered from paranoid schizophrenia and, at the
time of committing the acts she was accused of (that is, the alleged
assaults on 17 September and 3 November 2006), she had been
mentally incompetent. Furthermore, she was unable to participate in
the pre-trial investigation, give evidence in court or serve a
punishment.
On
21 November 2006 the County Court heard the applicant’s
brother.
On
23 November 2006 the applicant’s lawyer and a judge from the
County Court paid a visit to the applicant in the clinic. According
to a note made by the judge in the case file concerning the hearing
of the applicant, she was satisfied with her treatment, particularly
satisfied with her doctor, and had no complaints.
On
13 December 2006, following a telephone call from the Estonian
Patients’ Advocacy Association (“the EPAA”), the
applicant was given a copy of the County Court’s decision of 8
November 2006. On 22 December 2006, represented by an EPAA lawyer,
she appealed against the decision, arguing that the court had not
reliably established the existence of the circumstances required for
involuntary emergency psychiatric care under section 11 of the Mental
Health Act (Psühhiaatrilise abi seadus). She also
complained that there had been procedural violations, arguing that
she had not been heard at the earliest opportunity, that both the
hearing and the appointment of a lawyer had been of a merely formal
nature and that the principle of equality of arms had not been
complied with.
On 25 January 2007 the psychiatric clinic submitted a
reply to the applicant’s appeal, explaining with reference to
her medical record that the conditions for placing her in involuntary
psychiatric treatment had been met. It was noted, inter alia,
that the applicant’s consent to her voluntary treatment, given
on 9 November 2006, had been disregarded as this had not been her
true will.
On
5 February 2007 the applicant’s treatment in the psychiatric
clinic was terminated and she was transferred to the Jämejala
psychiatric hospital where she stayed until 5 September 2007. The
legal basis for her treatment in Jämejala was the Harju County
Court’s decision of 5 February 2007, made in the context of the
criminal proceedings. The court found that the applicant had
committed the unlawful acts she had been charged with. However, she
had been mentally incompetent at the time. Therefore, the criminal
proceedings were terminated and the applicant was subjected to
coercive psychiatric treatment under Article 86 of the Penal Code
(Karistusseadustik).
On
20 March 2007, in a written procedure, the Tallinn Court of Appeal
dismissed the appeal by the applicant against the County Court’s
decision of 8 November 2006.
The
applicant appealed to the Supreme Court, reiterating her earlier
complaints. In addition, relying on Article 5 § 4 of the
Convention, she complained that she had received the County Court’s
decision thirty-eight days after it had been adopted and that it had
taken three months for the Court of Appeal to decide on her appeal.
On 10 October 2007 the Supreme Court dismissed the
applicant’s appeal. It found that the elements required under
section 11 of the Mental Health Act to involuntarily admit the
applicant to a closed institution had been established by the lower
courts which in their decisions had referred to doctors’
opinions. As regards the fifteen-day delay that had elapsed before
the County Court had heard the applicant, the Supreme Court stated as
follows:
“18. In response to the claim in the
[present] appeal concerning a violation of the second sentence of
Article 534 § 3 of the [Code of Civil Procedure – “the
CCP”], the [Supreme Court] notes the following. In the event of
the admission of a person to a closed institution pursuant to the
procedure for the application of interim measures, the person himself
or herself, and those close to him or her, have to be heard
(Article 534 § 1 (4) of the CCP).
The second sentence of Article 534 § 2
of the CCP allows for an exception from this rule to be made if the
hearing may cause significant damage to the health of the person or
if the person is clearly not able to express his or her will.
According to the first sentence of Article 534 §
3 of the CCP, due to the potential danger resulting from a delay (the
meaning of the provision indicates that reference is made to danger
to the person’s own life or other persons’ lives, health
or safety), interim measures may be applied before hearing the person
himself or herself and the other persons, and before appointing a
representative for him or her. According to the second sentence of
Article 534 § 3 of the CCP, such
[hearing and appointment] must be performed promptly thereafter. The
[Supreme Court] considers that the main purpose of Article 534 §
1 (4) and the second sentence of § 534
(3) of the CCP is the need to prevent an unfounded admission of a
person to a closed institution or the opportunity to decide on the
termination of the admission pursuant to Article 539 §
1 of the CCP.
In the present case, the County Court heard the person
concerned fifteen days after the decision to apply interim measures
had been taken. The [Supreme Court] finds that in the present case
the County Court has not given reasons for the fifteen-day delay.
Although the second sentence of Article 534 §
3 of the CCP obliges the court to promptly perform certain acts (hear
the person himself or herself and the other persons named in the law,
and appoint him or her a representative), the meaning of the law is
that the person concerned has to be heard in the first place. Since
the person concerned, as a rule, will have been admitted to the
closed institution by that time, his or her whereabouts will be known
to the court. If there were any objective circumstances preventing
the court from hearing the person concerned herself, or if there were
any circumstances mentioned in the second sentence of Article 534 §
2 of the CCP (hearing the person concerned would cause significant
damage to his or her health, or he or she is clearly not able to
express his or her will), pertinent reasons should have been set out
in the decision. However, the aforementioned violation of the norms
of procedure is not so important that it would result in quashing the
ruling. The County Court has heard the person concerned and, based on
the materials in the case file and the rulings made, the courts have
not had doubts as to the existence of the prerequisites for the
person’s admission to the closed institution or as to their
cessation.”
II. RELEVANT DOMESTIC LAW
The Mental Health Act (Psühhiaatrilise abi
seadus), as in force at the material time, provided:
Section 11 – Involuntary emergency psychiatric
care
“(1) A person may be admitted to the
psychiatric department of a hospital for emergency psychiatric care
without the consent of the person or his or her legal representative,
or the treatment of a person may be continued regardless of his or
her wishes, only if all of the following circumstances exist:
1. the person has a severe mental disorder
which restricts his or her ability to understand or control his or
her behaviour;
2. without inpatient treatment, the person
may endanger the life, health or safety of himself or herself or
others due to the mental disorder; and
3. other psychiatric care is not sufficient.
(2) Involuntary treatment may be applied only
on the basis of a court’s decision. Involuntary care may be
applied in the absence of a court’s decision if this is
unavoidable for the protection of the person or the public and a
court’s decision cannot be obtained sufficiently promptly.
(3) A decision to apply involuntary treatment
in the absence of a court’s decision shall be made by a
psychiatrist on the admission of the person to the psychiatric
department of the hospital ... promptly after his or her medical
examination. ...
(4) Involuntary treatment on the basis of a
decision referred to in subsection 3 may be applied for forty-eight
hours from the beginning of the involuntary treatment.
...”
Section 13 – Review of involuntary treatment
“(1) A request to apply involuntary
treatment and admit a person to a hospital’s psychiatric
department under the procedure for the application of interim
measures shall be made to the court in the area where the hospital is
located by the hospital’s chief doctor. ...”
Admission of persons to closed institutions is dealt
with in Chapter 54 of the Code of Civil Procedure
(Tsiviilkohtumenetluse seadustik). As in force at the material
time, it provided:
Article 533 – Admission of persons to closed
institutions
“Pursuant to the procedure provided in this
Chapter, the court shall conduct proceedings concerning the following
matters based on a petition by the rural municipality or city
government of the residence of the person:
1. the admission of a mentally ill person to
a psychiatric hospital or a social welfare institution against his or
her will, together with deprivation of the liberty of the person;
...
3. other matters concerning the admission of
a person to a closed institution provided by law.”
Article 534 – Application of interim measures
“(1) Based on the request of the
petitioner, the court may [order the] admission of a person to a
closed institution pursuant to the procedure for the application of
interim measures, if:
1. the conditions of admission to a closed
institution are clearly met and a delay is likely to result in
danger, and
2. documents exist concerning the person’s
state of health, and
3. a representative has been appointed for
the person [concerned] in the proceedings, and
4. the person himself or herself, and the
persons specified in Article 536 § 2 of this Code, have been
heard.
(2) ... A person need not be heard if this
may cause significant damage to his or her health or if the person is
clearly not able to express his or her will.
(3) If a delay could result in danger, the
court may apply interim measures even before hearing the person
himself or herself and the other persons, and before appointing a
representative for him or her. In such a case, such [hearing and
appointment] must be performed promptly (viivitamata)
thereafter.
(4) Interim measures may be applied for a
period of up to three months. After hearing an expert, such term may
be extended to up to six months. Such term shall also include the
time the person is admitted to a closed institution for examination.
(5) In the cases and pursuant to the
procedure provided by law, a person may be admitted to a closed
institution without a court ruling if this is strictly necessary for
the protection of the person himself or herself or the public, and a
court ruling cannot be obtained promptly enough. In such a case, a
petition for obtaining a court ruling shall be submitted no later
than during the following working day.”
Article 535 – Appointment of representative for
a person
“(1) If it is clearly necessary in the
interests of the person and the person is not represented by another
person with full legal capacity [to take part in] civil proceedings,
the court shall appoint a representative for the person [concerned]
in proceedings for the admission of the person to a closed
institution.
...”
Article 536 – Hearing of the person himself or
herself and other persons
“(1) Before a person is admitted to a
closed institution, the person must be heard in person by the court
and the court shall explain the course of the proceedings to him or
her. If necessary, the court shall hear the person in his or her
usual environment. ...
(2) Before a person is admitted to a closed
institution, the court shall also hear the opinion of the rural
municipality or city government, and the following persons:
1. the spouse of the person, and other family
members who live or have lived together with the person;
2. the guardian or caregiver of the person;
3. the trustee appointed by the person;
4. the head of the closed institution in
which the person has been admitted, or an official appointed thereby.
...”
Article 539 – Termination and extension of term
of admission to a closed institution
“(1) The court shall terminate the
admission of a person to a closed institution by a ruling after the
prerequisites thereof have ceased to exist. The court may also
terminate admission to a closed institution based on an application
by the person himself or herself, the petitioner or at the initiative
of the court. Before terminating a person’s admission to a
closed institution, the court shall obtain the opinion of the rural
municipality or city government.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that her involuntary hospitalisation in the
Psychiatric Clinic of the North Estonia Medical Centre on 6 November
2006 had not been “lawful” and “in accordance with
a procedure prescribed by law” and that she had not received a
fair hearing before the Harju County Court when it decided on 8
November 2006 to admit her to the closed institution. She relied on
paragraphs 1 and 4 of Article 5 of the Convention, which read, in so
far as relevant, as follows:
“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.
...”
The
Court considers that the proceedings in question fall to be examined
under Article 5 § 1 (e), as the applicant’s initial
admission was ordered in the course of proceedings brought by the
authorities and no proceedings taken by the applicant to have the
lawfulness of her detention decided (Article 5 § 4) were
involved.
A. Admissibility
The
Government argued that domestic remedies had not been exhausted in so
far as the applicant’s complaint concerned the quality of legal
assistance because no complaints had been made to the domestic courts
or the Estonian Bar Association in this respect. In any event, this
complaint was manifestly ill-founded.
The
applicant maintained that the issue of the lack of effective legal
representation had been raised in the appeal to the Court of Appeal.
In
respect of the Government’s claim of non-exhaustion, the Court
reiterates that the only remedies which Article 35 § 1 of the
Convention requires to be exhausted are those that relate to the
breaches alleged and which, at the same time, are available and
sufficient. The existence of such remedies must be sufficiently
certain not only in theory but also in practice, failing which they
will lack the requisite accessibility and effectiveness (see, among
other authorities, Selmouni v. France [GC], no. 25803/94,
§ 75, ECHR 1999 V).
The
Court does not consider that making a complaint to the Bar
Association or lodging a civil claim against the lawyer would have
had any positive effect on the applicant’s situation in the
proceedings related to her deprivation of liberty. It therefore
considers that this complaint cannot be rejected for failure to
exhaust domestic remedies.
Furthermore,
the Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
The
applicant argued that her involuntary hospitalisation on 6 November
2006 had not been “lawful” and “in accordance with
the procedure prescribed by law” within the meaning of Article
5 § 1 (e). In particular, the Harju County Court had failed to
reliably establish, contrary to the requirements of national law,
that the applicant’s mental disorder was “severe”
and that she posed a danger to herself or others. Moreover, Estonian
law lacked the preciseness and clearness required of “law”
within the meaning of the Convention. Furthermore, the County Court
had failed to consider less restrictive measures alternative to
detention.
The
applicant further argued that she had not been given a fair hearing
in the proceedings related to her involuntary admission to the
hospital. The proceedings had not been adversarial and the principle
of equality of arms had not been complied with. She had not been
heard either before or immediately after her admission had been
ordered but had only been heard fifteen days later. Neither had she
been provided with effective legal assistance.
(b) The Government
The
Government maintained that a comprehensive and detailed opinion by
two doctors had been submitted to the County Court. It had included
information about the applicant’s medical history as well as
her recent behaviour and had comprised an assessment of the severity
of her mental disorder. Her situation at the time of her detention
had been assessed and she had been found to pose a danger to her
daughter. In respect of possible alternatives to her involuntary
admission, it had been noted that the applicant had refused voluntary
inpatient treatment and had failed to follow outpatient treatment. As
the doctors had given their opinion after the applicant had been
detained in the hospital for nearly two days, their observations had
also been based on the applicant’s actual condition. There was
no reason whatsoever to believe that the doctors had lacked
impartiality or had wished any harm to the applicant.
The
Government argued that the applicant’s deprivation of liberty
had been decided by a competent court in accordance with the
procedure prescribed by law. As the applicant had been dangerous, the
court had issued a temporary injunction before hearing the applicant
and appointing a lawyer to represent her. Thereafter, a lawyer had
promptly been appointed for her and she had been heard at the
earliest opportunity that her condition had allowed. According to a
forensic psychiatric examination report which had been ordered in the
course of the criminal proceedings and which had been drawn up on 17
November 2006 – that is, between the court ruling on the
applicant’s admission (8 November 2006) and her hearing by the
court (23 November 2006) – the applicant had been mentally
incompetent and unable to participate in the pre-trial investigation,
give evidence in court or serve a punishment. Accordingly, the
Government argued that the applicant’s mental disorder had not
allowed hearing her earlier.
2. The Court’s assessment
(a) Whether the applicant was a “person
of unsound mind”
According to the Court’s case-law, except in
emergency cases, three minimum conditions 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) of
the Convention. Firstly, 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. Secondly, the mental disorder must be of
a kind or degree warranting compulsory admission. Thirdly, the
validity of the extension of the period of compulsory admission
depends upon the persistence of such a disorder (see Winterwerp v.
the Netherlands, 24 October 1979, § 39, Series A no.
33; Rakevich v. Russia, no. 58973/00, § 27, 28 October
2003; and Shtukaturov v. Russia, no. 44009/05, § 114, 27
March 2008). The national authorities have a certain margin of
appreciation regarding the merits of clinical diagnoses since it is
in the first place for them to evaluate the evidence in a particular
case: the Court’s task is to review under the Convention the
decisions of those authorities (see H.L. v. the United Kingdom,
no. 45508/99, § 98, ECHR 2004 IX, and Winterwerp,
cited above, § 40).
Turning
to the present case, the Court notes the applicant’s argument
that Estonian law lacked the preciseness and clearness required of
“law” within the meaning of the Convention, in particular
insofar as the criterion of “danger” was concerned. The
Court observes, however, that, pursuant to section 11(1)(2) of the
Mental Health Act, one of the preconditions for compulsory admission
was that “without inpatient treatment, the person may endanger
the life, health or safety of himself or herself or others due to [a]
mental disorder” (see paragraph 25 above). The Court considers
such a definition sufficiently clear to describe, without excessive
rigidity, the situations in which a person’s compulsory
admission could be ordered (see, for comparison, Rakevich,
cited above, §§ 31-32).
The
Court further observes that in the present case the applicant had
suffered from mental illness for several years before her
hospitalisation on 6 November 2006. According to the medical
opinion presented to the County Court together with the psychiatric
clinic’s request for her involuntary treatment, the applicant’s
condition had recently become acute. She had become violent towards
her partner and had put her child’s well-being in danger. Her
outpatient treatment had not proved effective. The Court considers
that the medical opinion and the court’s decision were
sufficiently detailed in the circumstances of the present case,
particularly given the time-frame within which the authorities had to
act, as well as the limited duration of the applicant’s
compulsory admission. Furthermore, the Court has no reason to doubt
the accuracy of the medical opinion and is satisfied that the
applicant was shown to have been a “person of unsound mind”
whose mental disorder warranted compulsory admission. It also notes
that the assessment of the applicant’s medical condition and
her dangerousness were later confirmed by the forensic psychiatric
opinion and other evidence gathered in the course of the criminal
proceedings.
(b) Whether the applicant’s
detention was “lawful”
The
lawfulness of detention for the purposes of Article 5 § 1 (e)
presupposes conformity both with domestic law and with the purpose of
the restrictions permitted by Article 5 § 1 (e). As regards
conformity with domestic law, the Court reiterates that the term
“lawful” covers procedural and substantive aspects of
national law, overlapping to a certain extent with the general
requirement in Article 5 § 1 to observe a “procedure
prescribed by law” (see, inter alia, Winterwerp,
cited above, § 39; H.L. v. the United Kingdom, cited
above, § 114; and Storck v. Germany, no. 61603/00, §
111, ECHR 2005 V).
Although
it is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, under Article 5 § 1
failure to comply with domestic law entails a breach of the
Convention and the Court can and shall therefore review whether this
law has been complied with (see, inter alia, Mooren v.
Germany [GC], no. 11364/03, § 73, ECHR 2009 ...;
Benham v. the United Kingdom, 10 June 1996, § 41, Reports
of Judgments and Decisions 1996 III; and Boris Popov v.
Russia, no. 23284/04, § 69, 28 October 2010).
The
Court has also had regard to previous cases where the person who was
deprived of his liberty was not given the opportunity to be heard by
the courts (see, Van der Leer v. the Netherlands, 21 February
1990, §§ 23 24, Series A no. 170 A; and,
mutatis mutandis, the above-cited cases of Winterwerp and
Shtukaturov, at §§ 60-61 and §§ 71-73,
respectively) and where a judicial detention order was given with
substantial delay, in violation of domestic law (see Rakevich,
cited above, § 35).
Turning to the present case, the Court notes that the
applicant was not heard by the County Court before it ruled on her
compulsory admission. This, in itself, was not incompatible with
domestic law, which, in urgent cases, allowed the person concerned to
be heard subsequently. However, in such a case, the person concerned
had to be heard “promptly” thereafter, as stipulated by
Article 534 of the Code of Civil Procedure (see paragraph 26 above).
In the present case, the applicant was not heard by the judge until
fifteen days after the decision concerning her compulsory admission
had been made. The Supreme Court found that no reasons – for
example, that hearing the applicant would have caused significant
damage to her health, or that she had clearly not been able to
express her will – had been given for the fifteen-day delay and
concluded that Article 534 § 3 had
been violated (see paragraph 24 above). The Court sees no reason to
come to a different conclusion. It also notes in this context that
fifteen days constituted a considerable portion of the three-month
admission period – the maximum duration allowed according to
the procedure for interim measures under Article 534 of the Code of
Civil Procedure.
As concerns the Government’s argument that the
applicant’s mental state had not allowed hearing her earlier,
based on the forensic psychiatric examination report made in the
course of the criminal proceedings, the Court observes that,
according to the information available, at no point did the domestic
authorities substantiate the delay in the applicant being heard with
that argument. Moreover, the report in question concerned the
applicant’s ability to participate in criminal proceedings
against her. In the Court’s opinion, the same criteria could
not be applied to her eligibility to be heard in the proceedings
related to her compulsory admission to the psychiatric clinic.
Indeed, the applicant’s mental incompetence, her inability to
give evidence in court and to serve a punishment were closely linked
to the reasons for her compulsory admission. To hold in such
circumstances that her inability automatically extended to the
proceedings concerning her compulsory admission would render her
right to be heard in the latter proceedings virtually devoid of
substance.
Lastly, the Court observes that in the present case
the higher courts focused their review on the question of whether the
applicant’s compulsory admission was justified and whether the
decision underlying her compulsory admission ought to be quashed. The
Court does not underestimate the importance of these matters.
However, it considers that an important aspect of the applicant’s
complaints also related to the very procedure by which she was
deprived of her liberty. It notes in this context that although the
Supreme Court found that the fifteen-day delay that elapsed before
the County Court heard the applicant constituted a “violation
of the norms of procedure”, it drew no further conclusions from
that assessment and afforded the applicant no redress.
The foregoing considerations are sufficient to enable
the Court to conclude that the applicant was not detained in
accordance with a procedure prescribed by law. The Court considers
that there is no need to examine the further arguments raised by the
parties.
There has therefore been a violation of Article 5 §
1 of the Convention.
II. 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.”
A. Damage
The
applicant claimed 7,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government submitted that, should the Court find a violation of the
applicant’s rights, a finding of a violation would constitute
sufficient just satisfaction. In case the Court considered that to be
insufficient just satisfaction, the Government left the amount of the
award to the Court’s discretion.
The
Court considers that the applicant has suffered non-pecuniary damage
which cannot be compensated for solely by a finding of a violation.
In view of the circumstances of the present case and ruling on an
equitable basis, it therefore awards the applicant EUR 5,000 in
respect of non-pecuniary damage plus any tax which may be chargeable
on that amount.
B. Costs and expenses
The
applicant also claimed EUR 2,118.60 for costs and expenses incurred
before the Court. She submitted an agreement for the provision of
legal services and a request for payment together with an appendix
specifying the costs and expenses incurred in the proceedings.
The
Government considered that sum excessive and emphasised that it had
not yet been paid by the applicant. They called on the Court to
accept only reasonable costs and expenses.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Absence of proof of payment does not
necessarily result in the rejection of a claim for costs and expenses
that is in itself well-founded (see Krejčíř v.
the Czech Republic, nos. 39298/04 and 8723/05, § 137,
ECHR 2009 ...).
In
the present case, regard being had to the documents in its possession
and to the above criteria, the Court considers it reasonable that the
sum claimed, namely EUR 2,118.60, should be awarded in full, plus any
tax that may be chargeable to the applicant on that amount.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage and EUR 2,118.60
(two thousand one hundred and eighteen euros and sixty cents) in
respect of costs and expenses, plus any tax that may be chargeable to
the applicant on these amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
