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BEIERE v. LATVIA - 30954/05 [2011] ECHR 1980 (29 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1980.html
Cite as:
[2011] ECHR 1980
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THIRD
SECTION
CASE OF
BEIERE v. LATVIA
(Application
no. 30954/05)
JUDGMENT
STRASBOURG
29
November 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 Beiere v. Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Santiago Quesada,
Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30954/05) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Latvian national, Ms Valentīna Beiere
(“the applicant”), on 28 July 2005.
The
applicant was represented by Mr J. Avotiņš, a lawyer
practising in Rīga. The Latvian Government
(“the Government”) were represented by their Agent, Mrs
I. Reine.
The
applicant alleged, in particular, that her confinement in a
psychiatric hospital had been unlawful.
On
7 January 2009 the President of the Third Section decided to give
notice of the complaints concerning Article 5 of the Convention to
the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1934 and lives in the parish of Saldus in
Latvia.
A. Criminal proceedings against the applicant
On 6 November 2001 the executive director of the
municipality where the applicant resided, V.D., lodged with the
Saldus District Court an application for a private prosecution
against the applicant and her husband for offences which at the
relevant time were proscribed by sections 156 and 157 of the Criminal
Law (defamation and bringing into disrepute). The complaint appears
to have been based on three letters that the applicant had sent to
the council of the local municipality in which it had been alleged
that V.D. had given false testimony in courts to the applicant’s
detriment, that V.D. was a liar who did not deserve to be working in
an official position, and that V.D. had hidden the will left by the
applicant’s sister-in-law.
On
9 November 2001, having considered V.D’s complaint, a judge of
the Saldus District Court decided to initiate criminal proceedings
against the applicant for defamation of a representative of public
authority (section 271 of the Criminal Law as in force at the
relevant time). Offences under section 271 of the Criminal Law
were subject to public prosecution.
On
8 January 2002 an out-patient psychiatric assessment was carried out
on the applicant in a psychiatric hospital located in Jelgava. The
assessment was carried out by a commission composed of several
medical professionals. The commission was unable to arrive at a
definite conclusion concerning the applicant’s psychiatric
condition.
According
to the Government, on 4 April 2002 the applicant was officially
charged with defamation of V.D. No documents have been provided in
that connection by either of the parties. On the same day an
authorisation (orderis) was issued to sworn attorney M.D.
According to the authorisation, M.D. was authorised to “participate
in the pre-trial investigation” to assist the applicant. The
applicant claims that she never appointed M.D. to represent her
interests. Nothing in the copy of the authorisation submitted by the
Government indicates that the applicant was made aware of its
existence or of M.D.’s role in the proceedings.
On
22 April 2002 a prosecutor of the Saldus Distric Public Prosecutor’s
Office requested the Saldus District Court to order a residential
psychiatric-psychological assessment of the applicant to be carried
out in a psychiatric hospital in Rīga. The prosecutor indicated
that there were grounds to believe that the applicant had not been
capable of understanding the consequences of writing the letters in
issue. The prosecutor also stated that during the out-patient
psychiatric assessment of 8 January 2002 it had been impossible to
establish the applicant’s psychiatric condition with certainty.
On
2 May 2002 a single judge of the Saldus District Court issued a
decision authorising the applicant’s placement in a psychiatric
hospital. The decision noted that the judge had heard statements from
the prosecutor and from M.D. The decision also stated that the
applicant had refused to report for a residential examination
voluntarily, but no details were given. The Government have not
suggested that the applicant was ever requested to report voluntarily
for a residential assessment. Lastly, the decision noted that it
could be appealed against to the Kurzeme Regional Court but that the
lodging of such an appeal did not suspend the execution of the
decision. The decision also ordered the Saldus District police to
transport the applicant to a psychiatric hospital in Rīga and
guard her during the course of the examination.
According
to the applicant, on 9 May 2002 some ten to twelve police officers
arrived at her home and announced to her that she had five minutes to
get ready to leave. She was taken to a psychiatric hospital in Rīga
and was told only after arriving there of the existence of the Saldus
District Court judge’s decision of 2 May 2002. She had not
received a copy of that decision. The Government did not dispute this
account.
The
applicant submits that the conditions in the hospital were
unbearable: she was placed together with people who were mentally
ill, drug addicts and people with sexually transmitted diseases, and
the toilets in the hospital were flooded and impossible to use. She
also submits that prior to 22 May 2002 – when, according
to her, she was first seen by a psychiatrist – she was
questioned by another doctor in a “political” manner. She
also submits that her brain was scanned and that she was injected
with unknown substances against her will.
At
some later date (probably on 12 May 2002) the applicant submitted an
appeal against the decision of the Saldus District Court. The
applicant pointed out that she had not been informed that a hearing
concerning her placement in a psychiatric hospital would take place,
and had not participated in that hearing; she accordingly requested
that the decision of the first-instance court be quashed.
On
24 May 2002 the Kurzeme Regional Court adopted a decision whereby it
dismissed the applicant’s appeal. At the hearing the court
heard submissions from the lawyer, M.D., and a public prosecutor.
M.D. supported the applicant’s appeal and alleged that the
decision of the first-instance court had been unlawful. The
prosecutor considered that the decision had been adopted lawfully and
was justified by the applicant’s persistent refusal to respond
to any summonses sent to her or to sign the statement of charges
brought against her. He furthermore informed the court that the
applicant’s assessment would be completed within one week of
the date of the hearing in the appeal court. The appeal court
considered that the first-instance court had adopted its decision in
full conformity with the requirements of section 191 of the Code
of Criminal Procedure (see below, paragraph 26), under which the
presence of the suspected or accused person at the court hearing
concerning that person’s placement in a psychiatric hospital
was not mandatory. The court considered that the actual
implementation of the decision of the Saldus District Court had not
been sufficiently considerate, since the applicant had been forced to
leave her household and domestic animals without any supervision.
Nevertheless, the court took into account that the Saldus District
Public Prosecutor’s Office had taken certain steps to ensure
that the applicant’s property would be looked after during her
stay at the psychiatric hospital, and it therefore considered that it
was not “expedient” to terminate the assessment of the
applicant’s psychiatric health.
On
28 May 2002 the applicant sent a request to the Prosecutor General.
She asked him to lodge a complaint against the Saldus District
Court’s decision of 2 May 2002 and the Kurzeme Regional Court’s
decision of 24 May 2002. On 7 June 2002 a prosecutor from the
Office of the Prosecutor General replied to the applicant, indicating
that the decision of 24 May 2002 was final and therefore no appeal
lay against it.
On
31 May 2002 the applicant was released from the hospital upon
completion of her psychiatric assessment.
On
the same day a commission consisting of three certified psychiatrists
and one certified psychologist issued a report concerning the
applicant’s psychiatric health and psychological state. The
principal conclusion of the experts was that the applicant suffered
from persistent delusions about being persecuted by communists and
various other persons, including officials of her local municipality.
They also found that the applicant was egocentric and her ability to
objectively and adequately assess reality and her own behaviour was
impaired. The overall conclusion was that the applicant “was
unable to take account of her actions and to control them and [was to
be] considered to have been in a state of mental incapacity
(nepieskaitāma) with regard to the offence she was
accused of”. It was recommended that the applicant should
undergo out-patient psychiatric treatment.
On
28 June 2002 a public prosecutor of the Saldus District adopted a
decision to discontinue the criminal proceedings against the
applicant. The decision indicated that the applicant “had
committed” the criminal offence mentioned in section 271 of the
Criminal Law and that her guilt had been proved by all the materials
obtained during the pre-trial investigation. However, taking into
account the applicant’s mental incapacity and the fact that
there was no need to order her compulsory treatment in a psychiatric
hospital, the criminal proceedings were terminated.
On
22 January 2004 the applicant submitted a civil-law complaint to the
Rīga City Ziemeļu District Court. She complained about
being held in the psychiatric hospital and indicated that it was
still unclear to her why she had been held there. The complaint was
directed against the hospital and contained a request for 2,000
Latvian lati (LVL) in compensation for restriction of the applicant’s
liberty and for harm done to her honour and reputation.
On
25 March 2004 the applicant submitted an additional complaint about,
inter alia, the conditions in the hospital. She also named as
additional defendants the two doctors who had observed her. The
applicant further noted that while detained she had “had no
possibility to appeal against the decisions of the [judge of the
Saldus District Court] or the public prosecutor, which [she] had not
received” and that she had not been allocated a lawyer, in
contravention of the law. In another complaint dated 5 April
2004 the applicant complained, inter alia, that she had not
been summoned to the hearing of the Saldus District Court, had had no
possibility to defend herself and had not been sent a copy of the
decision. The amount of compensation requested was increased to LVL
10,000.
The
first-instance court rejected the applicant’s claim by a
judgment on the merits which was adopted on 1 November 2004. The
court pointed out that the applicant’s liberty had been
restricted in accordance with decisions of a public prosecutor and a
court and accordingly the deprivation of liberty had not been
unlawful. It was further noted that since the psychiatric hospital
where the applicant had been held had received a certificate which
attested to its compatibility with the standards set forth in Latvian
legislation, the applicant’s complaints regarding the
conditions in the hospital were ill-founded. The applicant’s
complaint about the alleged impossibility of appealing against the
decisions of the public prosecutor and the Saldus District Court was
not addressed in the judgment.
On
8 November 2004 the applicant lodged an appeal against the judgment
of the first-instance court. On 3 December she supplemented her
appeal. She complained, inter alia, about having been held in
a psychiatric hospital for an excessive length of time despite having
been “completely healthy”. The applicant also reiterated
her complaint that she had been unable to appeal against the decision
to place her in a psychiatric hospital because she had not been
informed of that decision, and that she had not been summoned to the
relevant court hearing.
On
27 January 2005 the Rīga Regional Court rejected the applicant’s
appeal. That court held that the applicant’s constitutional
right to liberty had not been violated because she had been placed in
the psychiatric hospital in accordance with the law. It also held
that the applicant’s placement in the hospital had been
“proportionate” (“samērīgs”)
with the aim to determine whether she had “realised and
understood the nature and consequences of her actions”. The
applicant’s complaint about her purported inability to appeal
against the court order requiring her placement in the psychiatric
hospital was not addressed.
On
23 May 2005 the Senate of the Supreme Court, in a preparatory meeting
(rīcības sēde), rejected the applicant’s
appeal on points of law. The Senate pointed out that the applicant
had failed to indicate any violations of material or procedural
norms.
II. RELEVANT DOMESTIC LAW
At
the relevant time the placing of suspects or accused persons in
medical institutions was governed by Article 191 of the Code of
Criminal Procedure (in force until 1 October 2005), which provided as
follows:
“If
during the performance of a ... forensic psychiatric assessment there
arises a necessity to observe and test the suspect or accused person,
the public prosecutor can adopt a reasoned decision and place him in
an appropriate medical institution. If the suspect or the accused
person is not in detention, he may only be placed in a medical
institution on the basis of a decision by a judge or by a court. ...”
27. Pursuant to Article 98 of the
Code of Criminal Procedure, the participation of defense counsel was
compulsory during a trial before the first-instance court, as well as
during a pre-trial investigation in cases concerning, inter
alia, persons “unable to exercise
their rights to defence because of mental defects”. If the
person in question had not chosen a legal representative, the
prosecutor or the court had an obligation to ensure the participation
of defence counsel.
Article 97
obliged defence counsel to use “all legal means and methods”
to provide the necessary legal assistance to their clients. To that
end counsel had a right to meet with their client alone, to take part
in various procedural actions, to lodge complaints and requests, and
to submit evidence.
29. Article 2221
provided as follows:
“The
suspect, the accused person or their representative may appeal
against a decision of a judge concerning ... placement in a medical
institution ...
Such
appeal may be lodged within seven days of the time when the person in
question has become aware ... of the placement in a medical
institution...
Such
appeal ... shall be heard by a higher court, which shall adopt a
decision to quash the judge’s decision or to leave it
unchanged. A decision shall be adopted no later than seven days after
a complaint ... has been received at the court, in the presence of
the person who has lodged the appeal ... and the prosecutor. The
decision of the court shall be final and not subject to appeal.”
30. In a judgment of 29 October
2003 the Constitutional Court of Latvia declared section 271 of the
Criminal Law, under which the applicant had been indicted,
unconstitutional as being inconsistent with freedom of speech. In
accordance with that judgment, section 271 became invalid on
1 February 2004.
Section
2352 of the Civil Law provides: “If someone unlawfully deprives
another person of their personal liberty, they shall restore the
liberty and shall, at the discretion of a court, give full
compensation thereof, including compensation for non-pecuniary
damage”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant argued that her confinement in the psychiatric hospital had
been unlawful and that she had been unable to challenge its
lawfulness. These complaints raise issues under Article 5 of the
Convention, which, in so far as is relevant, provides 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:
...
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
...
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.”
A. Admissibility
The
Government argued that the applicant’s complaints under Article
5 of the Convention ought to be declared inadmissible for failure to
comply with the six-month time-limit within the meaning of
Article 35 § 1 of the Convention. In that regard,
the Government submitted that the final decision taken at the
domestic level with regard to the applicant’s complaints had
been the one adopted by the Kurzeme Regional Court on 24 May
2002, which was not subject to further appeal. The Government further
argued that regardless of whether or not the applicant had been sent
a copy of the decision of 24 May 2002, it could be clearly seen from
her complaint to the Prosecutor General of 28 May 2002 (see above,
paragraph 16) that on that date she had been aware of the
decision. In any case, the applicant had been released from the
hospital on 31 May 2002, which was the latest possible start date for
the six-month period.
The
applicant did not submit any observations in this regard.
1. Concerning the lawfulness of the deprivation of the
applicant’s liberty
Concerning the applicant’s complaint about the
alleged unlawfulness of her placement in a psychiatric hospital
(which, as in L.M. v. Latvia, no. 26000/02,
19 July 2011, Winterwerp v. the
Netherlands, 24 October 1979, Series A no. 33, and
numerous other cases, the Court will analyse from the angle of
Article 5 § 1 of the Convention), the Court notes that the
Government have not commented on the civil proceedings concerning the
applicant’s complaint based on, inter alia, section 2352
of the Civil Law (see above, paragraph 31), in which the applicant
sought to establish that she had been deprived of her liberty
unlawfully and thus entitled to compensation, and which ended in a
final decision of the Senate of the Supreme Court of 23 May
2005.
The
Court has previously held on many occasions that normally
the six-month period runs from the final decision in the process of
exhaustion of domestic remedies (see, among many other
authorities, Paul and Audrey Edwards v. the United Kingdom
(dec.), no. 46477/99, 7 June 2001). In that regard it has to be
analysed whether in the present case that period started running on
24 May 2002 when the Kurzeme Regional Court adopted a final decision
concerning the applicant’s complaint about her placement in the
psychiatric hospital, or at the latest on 31 May 2002 when she
was released from the psychiatric hospital, or rather when the
applicant’s civil-law claim about the purportedly unlawful
character of her placement in the psychiatric hospital was dismissed
in the final decision of the Senate of the Supreme Court of 23 May
2005.
The
Court notes that the applicant’s complaint about the purported
illegality of her placement in a psychiatric hospital in the context
of civil proceedings was examined on the merits by two courts (see
above, paragraphs 20-24). The final decision in those proceedings was
the one adopted by the Senate of the Supreme Court on 23 May
2005. Both the Commission (Huber v. Switzerland, no. 12794/87,
Commission decision of 9 July 1988, Decisions and Reports (DR) 57,
p. 251 (265)) and the Court (Voggenreiter
v. Germany (dec.), no. 47169/99,
28 November 2002) have held that if a national authority
does in fact examine the merits of a complaint, then it is considered
that the domestic remedies have been exhausted within the meaning of
Article 35 § 1 of the Convention.
The
Court is required to decide whether the applicant has complied with
the six-month rule contained in Article 35
§ 1 of the Convention. The test to be applied in
evaluating compliance with the six-month rule is whether an applicant
has attempted to lodge “misconceived applications to bodies or
institutions which have no power or competence to offer effective
redress” for his or her complaints (see, for example, Fernie
v. the United Kingdom (dec.), no. 14881/04, 5 January 2006,
and Svenska Flygföretagens Riksförbund and Skyways
Express AB v. Sweden (dec.), no. 32535/02, 12 December
2006). The Court will not pronounce in
abstracto on the effectiveness of the remedy in Latvian civil law
in relation to situations of alleged unlawful deprivation of liberty.
It would in any case be unable to do so in the absence of any
concrete examples of domestic case-law to that effect. Nevertheless,
in view of the wording of Article 2352 of the Civil Law and
considering the claim that the applicant brought to the civil courts
in this particular case, these courts, firstly, had to establish
whether the deprivation of her liberty had been unlawful and,
secondly, whether by virtue of this the applicant had incurred any
damage. The Latvian civil courts chose to decide on the merits of the
applicant’s claim. For these reasons the Court does not
consider that the applicant’s civil-law claim was a
“misconceived application”.
Therefore, in the particular circumstances of the case, the Court
considers that the process of the exhaustion of domestic remedies
with regard to the applicant’s complaint concerning the
lawfulness of the deprivation of her liberty culminated in the final
decision which the Senate of the Supreme Court adopted on 23 May
2005.
Taking
into account the above considerations, the Court holds that the
applicant has complied with the six-month rule. Furthermore, her
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. The Court further notes that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Concerning the review of the lawfulness of the
deprivation of the applicant’s liberty
Turning
to the applicant’s complaint that she was unable to challenge
the legality of her placement in the psychiatric hospital (in
accordance with its well-established case-law, for example, L.M.
v. Latvia, cited above, § 57, Nikolova v.
Bulgaria [GC], no. 31195/96, § 69, ECHR 1999 II, the
Court will examine this complaint under Article 5 § 4 of the
Convention), the Court notes that on 24 May 2002 the Kurzeme Regional
Court dismissed the applicant’s appeal against the decision of
the Saldus District Court to place her under observation in the
psychiatric hospital. No further appeal was possible in that regard.
Unlike with regard to the applicant’s complaint under
Article 5 § 1, the domestic law did not provide
any prima facie effective avenues for claiming compensation
for damage done by the alleged impossibility of challenging in a
court the lawfulness of a decision ordering placement in a
psychiatric hospital. Therefore the Court agrees with the Government
that the running of the six-month period for the applicant’s
complaint about the review of the lawfulness of the deprivation of
her liberty started on 24 May 2002, which was more than six months
before the date on which the application was submitted to the Court.
Accordingly, this complaint has been submitted too late and is
therefore declared inadmissible in accordance with Article 35 §§
1 and 4 of the Convention.
Merits
1. Submissions of the parties
The
Government pointed out that the applicant had not been confined to a
psychiatric hospital in order to secure treatment for a mental
illness or to isolate her from society. Accordingly, her detention
had not been ordered in accordance with Article 5 § 1 (e).
Instead, the applicant had been placed in the hospital in order to
have her mental capacity evaluated to determine whether she could be
held criminally responsible for the criminal actions attributed to
her. Taking that into account, the Government argued that the
applicant’s confinement to the psychiatric hospital had been
justified in order to secure the fulfilment of an obligation
prescribed by law and/or because of non-compliance with the lawful
order of a court, as provided for in Article 5 § 1 (b) of the
Convention. They referred in this regard to the
admissibility decision in the case of Berliński
v. Poland ((dec.), nos. 27715/95
and 30209/96, 18 January 2001).
As
concerns securing the fulfilment of an obligation prescribed by law,
the Government, with reference to the Court’s case law
recapitulated in the judgment Nowicka v. Poland (no. 30218/96,
§§ 58 and 60-61, 3 December 2002), indicated that the
decision to place the applicant in the psychiatric hospital had been
made in accordance with section 191 of the Code of Criminal Procedure
and that the overall length of her stay there had not exceeded the
maximum time permitted by the domestic law (thirty days). The
Government thus considered it proven that the applicant had been
placed in the psychiatric hospital in full compliance with the
criteria prescribed by the national substantive and procedural law
and without any arbitrariness.
Lastly,
the Government argued that in the present case a proper balance had
been struck “between the importance in a democratic society of
securing the immediate fulfilment of the obligation in question”
and the “importance of the right to liberty”. According
to the Government, the considerations to be taken into account in
that regard included the essence of the
obligation prescribed by law which was to be fulfilled, the
information about the person being detained, the particular
circumstances necessitating their deprivation of liberty, and the
length of the detention (Vasileva v. Denmark, no.
52792/99, § 38, 25 September 2003). In the
present case the psychiatric assessment had been carried out
in the applicant’s interest, to ensure the fairness of the
criminal proceedings. The in-patient assessment had been carried out
only after the out-patient assessment had proved inconclusive. The
applicant had been held in the psychiatric hospital for only as long
as was necessary to carry out the assessment and had been released on
the day after the assessment had been completed. The foregoing
considerations led the Government to conclude that the applicant’s
detention had been proportionate and that Article 5 § 1
of the Convention had not been violated.
The
applicant disagreed with the Government’s submissions, arguing
that the criminal proceedings against her had been started merely
because of the hatred towards her of the executive director of the
local municipality. She also noted that she had never been informed
of the hearing of the Saldus District Court concerning her placement
in the psychiatric hospital, or of that court’s decision,
before the police officers arrived at her home to take her to the
hospital. The applicant further complained that she had been unable
to take part in the hearing of the Saldus District Court and that she
had been represented by a lawyer with whom she had not entered into
an agreement about her representation.
2. The Court’s assessment
The
Court reiterates at the outset that the physical liberty of a person
is in the first rank of the fundamental rights that protect the
physical security of an individual (McKay v. the United Kingdom
[GC], no. 543/03, § 30, ECHR 2006 X). It follows that
the list of exceptions (Article 5 § 1 (a)
to (f)) to the right to liberty secured in Article 5 § 1 is an
exhaustive one and only a narrow interpretation of those exceptions
is consistent with the aim of that provision, namely to ensure that
no one is arbitrarily deprived of his liberty (see Vasileva v.
Denmark, cited above, § 33). Furthermore, detention of an
individual is such a serious measure that it is justified only as a
last resort where other, less severe measures have been considered
and found to be insufficient to safeguard the individual or public
interest which might require that the person concerned be detained
(see Saadi v. the United Kingdom [GC], no. 13229/03, §
70, ECHR 2008 ..., and C.B. v. Romania, no.
21207/03, § 48, 20 April 2010).
In
the present case it is common ground that the applicant was deprived
of her liberty. It therefore remains to be determined whether the
deprivation of liberty was justified by any of the grounds contained
in the various subparagraphs of Article 5 § 1.
The Court notes that the Government argued that the applicant’s
detention had been ordered in conformity with Article 5 § 1 (b)
of the Convention. Accordingly, it is not disputed between the
parties that no other subparagraphs of Article 5 § 1 apply.
In so far as Article 5 § 1 (b) is concerned,
the Government has put forth arguments that pertain to both aspects
of the subparagraph, namely, that the applicant’s detention was
ordered for “non-compliance with the lawful order of a court”
and/or “in order to secure the fulfilment of [an] obligation
prescribed by law”. The Court will analyse both of those
hypotheses.
(a) Obligation prescribed by law
In
this regard the Government drew guidance from the above-cited
judgment, Nowicka v. Poland. The Court observes that in the
Nowicka case the applicant’s obligation to submit to a
psychiatric examination had been prescribed by several court orders.
Therefore that case is to be seen as pertaining more to
non-compliance with a court order, considering that the Court has
previously held that the phrase “obligation prescribed by law”
denotes an obligation of a specific and concrete nature already
incumbent on the person concerned (Ciulla v. Italy, 22
February 1989, § 36, Series A no. 148). The Court considers
that, given the wording of section 191 of the Code of Criminal
Procedure (see above, paragraph 26), which, according to the
Government, is the source of the “obligation prescribed by
law”, and which directly refers to the requirement for a judge
or a court to adopt a corresponding decision, the second aspect of
Article 5 § 1 (b) is not at issue in the
present case.
(b) Lawful order of a court
The
Court notes that Article 5 § 1 (b) refers to arrest or detention
for “non-compliance” with a “lawful order of a
court”. Semantically the choice of that sort of language
presumes that the person arrested or detained must have had an
opportunity to comply with such an order and have failed to do so
(see, with regard to securing “the fulfilment of any obligation
prescribed by law”, McVeigh, O’Neill and
Evans, nos. 8022/77, 8025/77 and 8027/77, Report of the
Commission of 18 March 1981, DR 25, § 175).
That conclusion is borne out by the case-law of Convention organs,
where a pre-condition for verifying the compliance of an internment
for psychiatric observation with Article 5 § 1 (b) has been a
prior implied or explicit refusal of the applicants to be subjected
to a court-ordered internment for observation (in addition to the
above-cited Berliński
decision see also X v. FRG,
no.6659/74, Decisions and Reports (DR) no.3; Nowicka
v. Poland, cited above, § 62; and
Sobek v. Czech Republic
(dec.), no. 48282/99, 20 May 2003). For examples of other
pre-existing court orders that have brought detention orders within
the ambit of the first limb of Article 5 § 1 (b)
see Gatt v. Malta
(no. 28221/08, § 37, 27 July 2010).
50. The
Court considers that a person cannot be held accountable for
“non-compliance” with a court order if he or she has
never been informed of that order. In the present case the Government
have not disputed the applicant’s claim that she was informed
about the existence of the order of the Saldus District Court only
after she had been taken to the psychiatric hospital on 9 May 2002.
Therefore the applicant did not know about the contents of the court
order and was not given any chance to comply with it voluntarily, at
a time convenient for her.
Turning
next to the question of whether the order of the Saldus District
Court was “lawful”, it is necessary to verify if it was
compatible with the essential objective of Article 5 § 1 of the
Convention, which is to prevent individuals being deprived of their
liberty in an arbitrary fashion (see Assanidze v. Georgia
[GC], no. 71503/01, § 170, ECHR 2004-II, and H.L. v. the
United Kingdom, no. 45508/99, § 115, ECHR 2004 IX).
This objective, and the broader condition that detention be “in
accordance with a procedure prescribed by law”, require the
existence in domestic law of adequate legal protection and fair and
proper procedures (Winterwerp v. the Netherlands, cited
above, § 45). In other words, the Court has to examine the
quality of the domestic law, verifying its compliance with the rule
of law, a concept inherent in all the Articles of the Convention (see
Amuur v. France, 25 June 1996, § 50, Reports of
Judgments and Decisions 1996 III).
The
Court notes that in the present case the order to detain the
applicant was adopted by the Saldus District Court in her absence and
without summoning her to the hearing or informing her that a hearing
would take place. From the materials in the case file it cannot be
clearly established whether the applicant was aware that criminal
charges had been brought against her (see above, paragraph 9). The
applicant was represented by a lawyer who, without going into the
details of the quality of the representation, had never met with the
applicant. What is more, the applicant had never even been informed
that M.D. had been authorised to represent her interests. The Court
considers that in such circumstances the domestic proceedings did not
offer the applicant sufficient protection against a potentially
arbitrary deprivation of her liberty (see Shtukaturov v. Russia,
no. 44009/05, § 113, 27 March 2008). For that reason the
decision of the Saldus District Court of 2 May 2002 was not a
“lawful order of a court” in the sense of
Article 5 § 1 (b) of the Convention. In
these circumstances it is not necessary to address the
proportionality argument raised by the Government.
The
Court therefore considers that the deprivation of the applicant’s
liberty was not ordered in accordance with Article 5 § 1 (b) of
the Convention. Taking into account that the Government have not
argued that it was justified by any of the remaining subparagraphs of
Article 5 § 1, the Court concludes that there has been a
violation of Article 5 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also raised various other complaints under Articles 3, 4,
6, 7 and 10 of the Convention, as well as Article 2 § 1 of
Protocol No. 7. In the light of all the material in its possession,
and in so far as the matters complained of are within its competence,
the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be declared inadmissible in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. 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 285,000 euros (EUR) in respect of non-pecuniary
damage caused by “the unlawful actions” of the Latvian
prosecutors and courts, by the deterioration of her physical state
because of medications forcibly administered to her while in the
hospital, and by suffering caused by being held in a room which had
to be shared with mentally ill patients.
The
Government remarked that part of the applicant’s claim for
damages was not related to the alleged violation of Article 5 §§ 1
and 4 of the Convention. In so far as the damage had been caused by
the violation, the Government considered the applicant’s claim
to be “excessive and exorbitant” and suggested that an
adequate just satisfaction award would not exceed EUR 3,000.
The
Court considers that the applicant has suffered some non-pecuniary
damage, at the same time agreeing with the Government that part of
the applicant’s claim is related to alleged violations of the
Convention which were not communicated to the Government and have
been declared inadmissible. Having regard to the character of the
violations found in the present case, and ruling on an equitable
basis, the Court awards EUR 9,000 under this head.
B. Costs and expenses
The
applicant did not formulate a claim in respect of costs.
C. Default interest
The
Court considers it appropriate that the default interest 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 complaint under Article 5 § 1 of the
Convention admissible and the remainder of the
application inadmissible;
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 9,000 (nine
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Latvian lati at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 29 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section Registrar President
