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FIFTH
SECTION
CASE OF M. v. UKRAINE
(Application
no. 2452/04)
JUDGMENT
STRASBOURG
19 April
2012
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 M. v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Ganna
Yudkivska,
Angelika
Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2452/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Ms M. (“the
applicant”), on 5 January 2004. The President of the Fifth
Section decided that the applicant’s identity should not be
disclosed to the public (Rule 47 § 3 of the Rules of Court).
2. The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
3. The
applicant alleged, in particular, that her placements in the
psychiatric hospital had been contrary to Article 5 § 1 of the
Convention.
- On
10 September 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Odessa.
A. The applicant’s admissions to the psychiatric
hospital
1. The applicant’s first hospitalisation
- In
the period between 10 September and 13 October 1999 the applicant had
in-patient treatment in the Odessa Region Psychiatric Hospital (“the
hospital”) which is a State-run institution. In 2000 she was
registered with the Odessa Region Psychoneurological Dispensary (“the
psychoneurological dispensary”) as a person with potential
mental problems.
2. The applicant’s second hospitalisation
- On 24 September 2003 the applicant was assessed by a
doctor at the psychoneurological dispensary and referred to the
hospital for in-patient treatment for a serious mental disorder.
However, the applicant ignored the referral and stayed at home with
her mother. A report of the applicant’s assessment was provided
to the hospital.
- In
the next few days the applicant’s condition worsened and her
behaviour became aggressive towards her mother and neighbours. The
mother and the housing maintenance authority therefore complained to
the hospital about the applicant’s conduct.
- In the morning of 28 September 2003 the applicant was
taken to the hospital by ambulance and was assessed by a psychiatrist
of the hospital, who concluded that she needed to be hospitalised for
a serious mental disorder. The applicant was therefore kept in the
hospital.
- On 29 September 2003 a panel of three different
psychiatrists of the hospital assessed the applicant once again and
issued a report stating that she was a danger to society due to her
serious mental disorder, which required in-patient psychiatric
treatment. The psychiatrists specified in the report that the
applicant’s manner of communication with her mother and
neighbours was aggressive; she threatened them, threw glass jars,
bottles and vases off the balcony, which was on the fifth floor,
played loud music at night and damaged property in the apartment.
- The
hospital therefore lodged an application with a local court, seeking
authorisation for compulsory admission to hospital in accordance with
sections 14 and 16 of the Psychiatric Assistance Act.
- On
30 September 2003 a judge at the local court conducted an on site
hearing of the applicant’s case in the administration wing of
the hospital. The hearing was held in the presence of a prosecutor
and one of the doctors who had assessed the applicant earlier.
Following the hearing the court allowed the application and held as
follows:
“... having examined the case file and heard a
representative of [the hospital] and a prosecutor, the court
considers that the application in question should be allowed.
It appears from the case file that the patient was taken
from home to [the hospital] by the ambulance after showing signs of
mental illness which suggested that she was a danger to society.
A panel of psychiatrists [of the hospital] has concluded
that the patient should have in-patient treatment.
Relying on the Psychiatric Assistance Act and Article
202 of the Code of Civil Procedure, the court
has decided that
[M.] should be compulsorily hospitalised to undergo
medical treatment.
The decision shall not be subject to appeal. ...”
- On
19 December 2003 the compulsory treatment was completed and the
applicant was discharged from the hospital.
- According
to the applicant, the sanitary and hygienic conditions in which she
was kept in the hospital were unsatisfactory.
3. The applicant’s third hospitalisation
- On 15 July 2004 the applicant was assessed by a doctor
at the psychoneurological dispensary and referred to the hospital for
in-patient treatment for a serious mental disorder. The applicant
refused the proposed treatment and stayed at home. A report of the
assessment of the applicant was sent to the hospital.
- After
the assessment, the applicant’s condition worsened in a similar
way as before the second hospitalisation and the neighbours and the
housing maintenance authority complained to the hospital about her
behaviour.
- In the morning of 19 July 2004 the applicant was taken
to the hospital by ambulance and assessed by a psychiatrist there,
who concluded that she was suffering from a mental disorder and
needed to be hospitalised. The applicant was therefore kept in the
hospital.
- On 20 July 2004 a panel of three psychiatrists of the
hospital, including the psychiatrist who had assessed the applicant
the previous day, issued a report stating that the applicant was a
danger to society due to her serious mental disorder and that she
needed in-patient treatment. The hospital therefore applied to the
court for an order for compulsory admission.
- On
21 July 2004 the local court allowed the application, following an
on-site hearing held in the administration wing of the hospital. The
hearing was attended by the prosecutor and one of the psychiatrists
who had previously assessed the applicant. The court held as follows:
“... having examined the case file and heard a
representative of [the hospital] and a prosecutor, the court
considers that the application in question should be allowed.
It appears from the case file that on 19 July 2004 the
patient was taken from home to [the hospital] by ambulance after
showing signs of a serious mental disorder. For this reason a panel
of psychiatrists found that the applicant was a danger to society and
should be compulsorily admitted to [the hospital] for in-patient
treatment.
The representative of [the hospital] has submitted that
the patient should be admitted to the hospital and treated for a
serious mental disorder.
Having regard to all the circumstances, the court comes
to the conclusion that the patient’s compulsory hospitalisation
is required.
Relying on the Psychiatric Assistance Act and Article
202 of the Code of Civil Procedure, the court
has decided that
[M.] should be compulsorily hospitalised to undergo
medical treatment.
The decision shall not be subject to appeal. ...”
- On
8 September 2004 the applicant was discharged from the hospital on
completion of the treatment.
4. The applicant’s fourth hospitalisation
- On
13 February 2006 the applicant was assessed by a doctor at the
psychoneurological dispensary, who concluded that the applicant’s
mental disorder had recurred.
- On
17 February 2006 the applicant made a written application for
admission to the hospital for treatment. The application was signed
only by the applicant. According to the applicant, she had been
compelled to do so under the threat of never being discharged from
the hospital. She had been in poor health, mentally and physically,
that day.
- Subsequently,
the application was marked and signed by a member of hospital staff,
designating the department of the hospital to which the applicant was
to be assigned.
- According
to the applicant, the regime under which she was kept in the hospital
was strict, as she had to stay in the hospital for the whole day; her
movements within the premises of the hospital were restricted; and
her personal belongings were limited in number and inventoried.
- On
19 April 2006 the applicant was discharged from the hospital.
B. Labour dispute
- On
an unspecified date the applicant instituted civil proceedings in the
Suvorovskyy District Court of Odessa against Odessa Regional
Oncological Hospital, seeking reinstatement in the position of doctor
and payment of salary arrears.
- On
9 February 2005 the court rejected her claim as unsubstantiated. On
15 June 2005 the Odessa Regional Court of Appeal upheld that
judgment.
- On
the expiration of the time-limit the applicant lodged an appeal on
points of law with the Supreme Court against the judgment of 9
February 2005. The applicant did not request the Supreme Court to
extend the time limit.
- On
28 October 2005 the Supreme Court declared the applicant’s
appeal inadmissible as submitted out of time.
II. RELEVANT DOMESTIC LAW
A. Constitution of 28 June 1996
- The
relevant provisions of the Constitution read as follows:
Article 55
“Human and citizens’ rights and freedoms are
protected by the courts.
Everyone is guaranteed the right to challenge in court
the decisions, actions or omissions of bodies of State power, bodies
of local self-government, officials and officers. ...
Everyone has the right to protect his or her rights and
freedoms from violations and illegal encroachments by any means not
prohibited by law.”
B. Codes of Civil Procedure
- Article
202 of the Code of Civil Procedure of 18 July 1963 (in force until 1
September 2005) provided that a court decision had to be lawful and
substantiated. The courts had to substantiate their decision with the
pieces of evidence they had examined during the court hearing.
- Article
248-1 of that Code provided that that anyone who considered that his
or her rights or freedoms had been infringed by a decision, act or
omission of a State body, legal entity or official could lodge a
complaint with a court.
- The Code of Civil Procedure of 18 March 2004 provides
in Section XI, “Final and transitional provisions”,
as follows:
“1. This Code shall enter into force on
1 September 2005 ...
3. [The following normative acts] shall be
repealed with the entry into force of this Code:
The Code of Civil Procedure of 18 July 1963 ...”
C. Code of Administrative Justice of 6 July 2005 (in
force from 1 September 2005)
- The relevant provisions of the Code read as follows:
Article 2 Role of the administrative justice system
“1. The role of the administrative
justice system shall be the protection of the rights, freedoms and
interests of physical persons, and the rights and interests of legal
entities in the field of public-law relations, from violations by
public authorities ...
2. Any decisions, actions or inaction on the
part of public authorities may be appealed against in administrative
courts, except for cases in which the Constitution and laws of
Ukraine foresee a different procedure of judicial appeal against such
decisions, actions or inactivity ...”
Article 3 Definition of terms
“1. The terms listed below shall have
the following meaning:
1) the administrative jurisdiction case
(hereinafter ‘the administrative case’) – a
public-law dispute, referred to an administrative court, in which one
of the parties shall be a body of the executive power, local
self-governance, its official or the other subject empowered to
perform public administrative functions on the basis of legalisation,
including those aimed at the exercise of delegated powers;
...”
Article 17 Jurisdiction of administrative courts in
deciding administrative cases
“1. The jurisdiction of the
administrative courts shall cover legal relationships arising in the
course of the exercise of public administrative powers by the
subjects of public authority and [legal relationships arising] in the
course of public formation of a subject of public authority by way of
election or referendum.
...”
D. Psychiatric Assistance Act of 22 February 2000
- The relevant extracts from the Act read as follows:
Section 13 Hospitalisation of a person in a mental
health facility
“A person shall be hospitalised in a mental health
facility voluntarily, either at his or her request or with his or her
conscious agreement. ... Consent to hospitalisation shall be included
in the medical documentation following the signature of the person
concerned or his or her legal representative and a psychiatrist.”
Section 14 Grounds for compulsory hospitalisation of
a person
in a mental health facility
“A person who is suffering from a mental disorder
may be hospitalised in a mental health facility without his or her
conscious agreement or without the agreement of his or her legal
representative if the medical examination or treatment of that person
is possible only within the mental health facility and if, as a
result of the serious mental disorder, such a person:
commits or expresses real intentions to commit acts
which are directly dangerous to this person or to others; or
is unable to meet his or her vital needs at the basic
level.”
Section 16 Assessment of persons compulsorily
hospitalised
in a mental health facility
“A person who has been hospitalised in a mental
health facility upon a decision of a psychiatrist on the grounds
provided for in section 14 of this Act, shall be assessed, within
twenty-four hours, by a panel of psychiatrists of the mental health
facility to determine whether the hospitalisation is required. If the
hospitalisation is found to be unnecessary and the person concerned
does not wish to stay in the mental health facility, he or she shall
be immediately discharged.
If compulsory hospitalisation of the person is required,
a representative of the mental health facility in which the person is
being kept shall apply, within twenty-four hours, to the court ...
for compulsory hospitalisation of the person on the grounds provided
for in section 14 of this Act. ...”
Section 17 Continuation of compulsory hospitalisation
A person shall be compulsorily retained in a mental
health facility exclusively for the period when the grounds
justifying his or her hospitalisation exist.
A person, who has been compulsorily hospitalised in a
mental health facility shall be assessed by a panel of psychiatrists
at least once a month to determine whether the person should remain
in hospital or be discharged.
If compulsory hospitalisation is required for more than
six months, a representative of the mental health facility shall
apply to the court ... seeking an extension of the compulsory
hospitalisation. A report of a panel of psychiatrists giving grounds
for an extension of the hospitalisation shall be enclosed with the
application... The person’s hospitalisation may subsequently be
extended, on each occasion for a period which does not exceed six
months.
A person subjected to compulsory hospitalisation or his
or her legal representative shall be entitled to lodge requests with
a court for termination of the compulsory hospitalisation every three
months, starting from the date of the court decision extending the
hospitalisation.”
Section 18 Discharge of a person from a mental health
facility
“A person shall be discharged from a mental health
facility when the assessment or expert examination of his or her
mental state has been completed, or when he or she has recovered from
the illness, or when his or her mental state has changed to the
extent that any further in-patient treatment is no longer required. A
person who was voluntarily admitted shall be discharged upon written
application by that person or his or her legal representative or upon
a decision of a psychiatrist.
The discharge of a person who was voluntarily
hospitalised may be refused if a panel of psychiatrists finds grounds
for compulsory hospitalisation of the person as provided for in
section 14 of this Act. In this event procedures for compulsory
hospitalisation, continuation of the hospitalisation and discharge
shall be conducted as provided for in sections 16, 17 and 22
(paragraphs 2 and 3) of this Act and paragraph 3 of this
section.
A person subjected to compulsory hospitalisation shall
be discharged upon a decision of a panel of psychiatrists or a court
decision refusing extension of the hospitalisation. ...”
Section 22 The procedure for judicial examination of
applications for compulsory provision of psychiatric assistance
“... An application by a representative of a
mental health facility for compulsory hospitalisation of a patient
shall be examined by a court ... within twenty-four hours of receipt
of the application. ...
Cases concerning compulsory provision of psychiatric
assistance shall be examined in the presence of the person concerned.
A prosecutor, a legal representative of the person concerned and
either a psychiatrist or a representative of the mental health
facility shall participate in the hearing.”
E. Prosecution Service Act of 1 December 1991 (with
amendments)
- The relevant provisions of the Act provide:
Section 12 Examination of applications and complaints
“The public prosecutor shall examine applications
and complaints of violation of rights of individuals and legal
entities, except for those complaints which are within the competence
of a court.
...
A decision taken by a public prosecutor can be appealed
against before a higher public prosecutor or a court.”
III. RELEVANT INTERNATIONAL MATERIAL
A. UN Principles for the Protection of Persons with
Mental Illness and for the Improvement of Mental Health Care adopted
by General Assembly resolution 46/119 of 17 December 1991
- The relevant extracts of this international instrument
provide as follows:
Principle 11 Consent to treatment
1. No treatment shall be given to a patient
without his or her informed consent, except as provided for in
paragraphs 6, 7, 8, 13 and 15 of the present principle.
2. Informed consent is consent obtained
freely, without threats or improper inducements, after appropriate
disclosure to the patient of adequate and understandable information
in a form and language understood by the patient on:
(a) The diagnostic assessment;
(b) The purpose, method, likely duration and
expected benefit of the proposed treatment;
(c) Alternative modes of treatment, including
those less intrusive;
(d) Possible pain or discomfort, risks and
side-effects of the proposed treatment.
3. A patient may request the presence of a
person or persons of the patient’s choosing during the
procedure for granting consent.
4. A patient has the right to refuse or stop
treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 of
the present principle. The consequences of refusing or stopping
treatment must be explained to the patient.
...
Principle 15 Admission principles
...
3. Every patient not admitted involuntarily
shall have the right to leave the mental health facility at any time
unless the criteria for his or her retention as an involuntary
patient, as set forth in principle 16 below, apply, and he or she
shall be informed of that right.
Principle 16 Involuntary admission
1. A person may be admitted involuntarily to
a mental health facility as a patient or, having already been
admitted voluntarily as a patient, be retained as an involuntary
patient in the mental health facility if, and only if, a qualified
mental health practitioner authorized by law for that purpose
determines, in accordance with principle 4 above, that that person
has a mental illness and considers:
(a) That, because of that mental illness,
there is a serious likelihood of immediate or imminent harm to that
person or to other persons; or
(b) That, in the case of a person whose
mental illness is severe and whose judgement is impaired, failure to
admit or retain that person is likely to lead to a serious
deterioration in his or her condition or will prevent the giving of
appropriate treatment that can only be given by admission to a mental
health facility in accordance with the principle of the least
restrictive alternative.
In the case referred to in subparagraph (b), a second
such mental health practitioner, independent of the first, should be
consulted where possible. If such consultation takes place, the
involuntary admission or retention may not take place unless the
second mental health practitioner concurs.
2. Involuntary admission or retention shall
initially be for a short period as specified by domestic law for
observation and preliminary treatment pending review of the admission
or retention by the review body. The grounds of the admission shall
be communicated to the patient without delay and the fact of the
admission and the grounds for it shall also be communicated promptly
and in detail to the review body, to the patient’s personal
representative, if any, and, unless the patient objects, to the
patient’s family.
...
Principle 17 Review body
1. The review body shall be a judicial or
other independent and impartial body established by domestic law and
functioning in accordance with procedures laid down by domestic law.
It shall, in formulating its decisions, have the assistance of one or
more qualified and independent mental health practitioners and take
their advice into account.
2. The initial review of the review body, as
required by paragraph 2 of principle 16 above, of a decision to admit
or retain a person as an involuntary patient shall take place as soon
as possible after that decision and shall be conducted in accordance
with simple and expeditious procedures as specified by domestic law.
3. The review body shall periodically review
the cases of involuntary patients at reasonable intervals as
specified by domestic law.
4. An involuntary patient may apply to the
review body for release or voluntary status, at reasonable intervals
as specified by domestic law.
5. At each review, the review body shall
consider whether the criteria for involuntary admission set out in
paragraph 1 of principle 16 above are still satisfied, and, if not,
the patient shall be discharged as an involuntary patient.
6. If at any time the mental health
practitioner responsible for the case is satisfied that the
conditions for the retention of a person as an involuntary patient
are no longer satisfied, he or she shall order the discharge of that
person as such a patient.
7. A patient or his personal representative
or any interested person shall have the right to appeal to a higher
court against a decision that the patient be admitted to, or be
retained in, a mental health facility.
...”
B. Recommendation Rec(2004)10 of the Committee of
Ministers to member states concerning the protection of the human
rights and dignity of persons with mental disorder (Adopted by the
Committee of Ministers on 22 September 2004 at the 896th meeting of
the Ministers’ Deputies)
- The relevant extracts of the Recommendation provide as
follows:
Article 17 Criteria for involuntary placement
1. A person may be subject to involuntary
placement only if all the following conditions are met:
i. the person has a mental disorder;
ii. the person’s condition represents a
significant risk of serious harm to his or her health or to other
persons;
iii. the placement includes a therapeutic
purpose;
iv. no less restrictive means of providing
appropriate care are available;
v. the opinion of the person concerned has
been taken into consideration.
...
Article 20 Procedures for taking decisions on
involuntary placement and/or involuntary treatment
Decision
1. The decision to subject a person to
involuntary placement should be taken by a court or another competent
body. The court or other competent body should:
i. take into account the opinion of the
person concerned;
ii. act in accordance with procedures
provided by law based on the principle that the person concerned
should be seen and consulted.
...
3. Decisions to subject a person to
involuntary placement or to involuntary treatment should be
documented and state the maximum period beyond which, according to
law, they should be formally reviewed. This is without prejudice to
the person’s rights to reviews and appeals, in accordance with
the provisions of Article 25.
...
Article 25 Reviews and appeals concerning the
lawfulness of involuntary placement and/or involuntary treatment
1. Member states should ensure that persons
subject to involuntary placement or involuntary treatment can
effectively exercise the right:
i. to appeal against a decision;
ii. to have the lawfulness of the measure, or
its continuing application, reviewed by a court at reasonable
intervals;
iii. to be heard in person or through a
personal advocate or representative at such reviews or appeals.
2. If the person, or that person’s
personal advocate or representative, if any, does not request such
review, the responsible authority should inform the court and ensure
that the continuing lawfulness of the measure is reviewed at
reasonable and regular intervals.
3. Member states should consider providing
the person with a lawyer for all such proceedings before a court.
Where the person cannot act for him or herself, the person should
have the right to a lawyer and, according to national law, to free
legal aid. The lawyer should have access to all the materials, and
have the right to challenge the evidence, before the court.
...
7. A procedure to appeal the court’s
decision should be provided.
...”
C. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (“the
CPT”)
- The CPT standards (document no. CPT/Inf/E (2002)
1-Rev. 2006, page 40) provide, in so far as relevant, as follows:
“V. Involuntary placement in
psychiatric establishments
... 41. Patients should, as a matter of
principle, be placed in a position to give their free and informed
consent to treatment. The admission of a person to a psychiatric
establishment on an involuntary basis should not be construed as
authorising treatment without his consent. It follows that every
competent patient, whether voluntary or involuntary, should be given
the opportunity to refuse treatment or any other medical
intervention. Any derogation from this fundamental principle should
be based upon law and only relate to clearly and strictly defined
exceptional circumstances.
Of course, consent to treatment can only be qualified as
free and informed if it is based on full, accurate and comprehensible
information about the patient’s condition and the treatment
proposed. ... Consequently, all patients should be provided
systematically with relevant information about their condition and
the treatment which it is proposed to prescribe for them. Relevant
information (results, etc.) should also be provided following
treatment. ...
52. The procedure by which involuntary
placement is decided should offer guarantees of independence and
impartiality as well as of objective medical expertise. ...
55. The CPT also attaches considerable
importance to psychiatric establishments being visited on a regular
basis by an independent outside body (eg. a judge or supervisory
committee) which is responsible for the inspection of patients’
care. This body should be authorised, in particular, to talk
privately with patients, receive directly any complaints which they
might have and make any necessary recommendations. ...
56. Involuntary placement in a psychiatric
establishment should cease as soon as it is no longer required by the
patient’s mental state. Consequently, the need for such a
placement should be reviewed at regular intervals. ...”
- The
relevant excerpts from the Report to the Ukrainian Government on the
visit to Ukraine carried out by the CPT from 24 November to
6 December 2002 (CPT/Inf (2002) 19)
read as follows:
“D. Mental health establishments
...
2. Chernivtsi Regional Clinical
Psychiatric Hospital
f. safeguards offered to psychiatric
patients
... 166. A few patients were officially
admitted on a non-voluntary basis under a civil committal
procedure.
Nevertheless, as previously mentioned (cf. paragraph 146
above), a large number of the 510 adult patients in the secure wards
had not consented to their admission to a psychiatric hospital and
could not leave the hospital of their own free will. In practice,
they did not have the slightest opportunity to benefit from the
safeguards provided by the 2000 Law on Psychiatric Care, in
particular the opportunity to contest their admission to hospital. In
many cases, the files contained only a request for treatment made by
a relative.
Worse still, an examination of the patients’ files
revealed that some of them had been admitted to hospital without
their consent simply on the basis of a letter from a public
prosecutor or at the request of the Militia, without an involuntary
committal request having been submitted to the competent court.
By letter of 15 April 2003, the Ukrainian authorities
informed the CPT that instructions had been issued to put into
practice at Chernivtsi the 2000 Law on Psychiatric Care. The CPT
wishes to receive confirmation that this is currently the case. In
addition, it recommends that the Ukrainian authorities immediately
take all the necessary steps to ensure that the sections of the 2000
Law on Psychiatric Care concerning involuntary admission to hospital
are scrupulously observed in all Ukrainian hospitals which admit
non-voluntary patients. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF
THE CONVENTION
- The
applicant complained that her right to liberty under Article 5 §
1 was infringed during her involuntary and voluntary hospitalisations
in a mental health facility.
- The
relevant parts of Article 5 § 1 of the Convention provide:
“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. Admissibility
1. Parties’ submissions
- The
Government submitted that the applicant had failed to exhaust
domestic remedies in respect of her complaint about the fourth
hospitalisation. In particular, the applicant should have applied to
a prosecutor who was authorised to maintain domestic legal order and
consider complaints about violations of individual rights. The
applicant could have lodged a complaint with a court under Article
248-1 of the Code of Civil Procedure 1963 that her fourth
hospitalisation had been unlawful. The applicant could have raised
the matter before the administrative courts seeking to have the
actions of the hospital declared unlawful. Moreover, the applicant
could have applied to court seeking damages under the Civil Code for
allegedly unlawful placement in the hospital. As an alternative, the
Government contended that the applicant did not comply with the
six-month rule when complaining about the fourth hospitalisation as
she had only raised that issue in her submissions of 18 October 2006.
- The
Government further maintained that the applicant had abused her right
of petition by not revealing the real circumstances of her fourth
hospitalisation. In particular, in her submissions the applicant
concealed from the Court the fact that the fourth hospitalisation was
conducted on the basis of her personal application written on 17
February 2006.
- Lastly,
in the Government’s opinion the part of the application
referring to the fourth hospitalisation was manifestly ill-founded
due to the voluntary nature of her admission to the hospital.
- The
applicant insisted that her complaint was admissible. She contended
that she had signed the application for the fourth hospitalisation
under the threat of never being discharged from the hospital.
Moreover, on that day she was in particularly bad health.
2. The Court’s assessment
- The
Court notes at the outset that the complaint about the first
hospitalisation was submitted by the applicant to the Court on 29 May
2006 while the hospitalisation itself ended on 13 October 1999. The
applicant did not raise this matter at the domestic level. The Court
considers that, in view of the requirements of Article 35 § 1 of
the Convention, the applicant should have either made use of the
domestic remedies or, in the event they were absent or ineffective,
should have applied to the Court within the six month time-limit
from the moment when the measure complained of ceased to exist. As
this has not been done, the respective part of the application should
be dismissed as inadmissible.
- Concerning
the Government’s contention that the applicant did not comply
with the rule of exhaustion of domestic remedies and the six-month
rule when complaining of the fourth hospitalisation, the Court notes
that these issues are closely connected with the merits of the
complaint. The Government’s objections in this respect should
therefore be joined to the merits of the application.
- Concerning
the issue of abuse of the right of petition, raised by the
Government, such a finding may be made by the Court in exceptional
circumstances, in particular, if it appears that the application was
based on untrue statements in a deliberate attempt to mislead the
Court (see Ismoilov and Others v. Russia, no. 2947/06, §
103, 24 April 2008). The circumstances surrounding the applicant’s
fourth admission to the mental health facility did not affect other
aspects of the application relating to the previous instances of the
applicant’s hospitalisation in a mental health facility.
Neither did they affect the applicant’s submissions to the
effect that she was compulsorily kept in hospital during the fourth
hospitalisation after the admission procedure had been completed.
Lastly, proper regard should be given to the applicant’s
further arguments as to the alleged lack of her real agreement for
the fourth admission to the hospital. In sum, the applicant’s
failure to initially specify the circumstances referred to by the
Government did not relate to a greater part of the application, that
failure cannot be interpreted as a deliberate attempt to mislead the
Court and in the end it did not impede the proper conduct of the
proceedings before the Court. The Government’s objection to
this effect is therefore dismissed.
- In
the light of the material in its possession the Court considers that
the applicant’s complaint under Article 5 § 1 of the
Convention concerning her second, third and fourth hospitalisation in
the mental health facility is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It also notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the case file contained sufficient evidence
substantiating the need for the applicant’s second and third
hospitalisation in a mental health facility. They further contended
that those hospitalisations were conducted in conformity with
domestic procedure, which offered appropriate procedural safeguards
to comply with the requirements of lawfulness under Article 5 §
1 of the Convention.
- The
Government further maintained their position that no issue could
arise under Article 5 § 1 of the Convention with respect to the
fourth hospitalisation, which had been conducted voluntarily at the
applicant’s request.
- The
applicant argued that she had been hospitalised
contrary to her right to liberty. She insisted that the courts had
not examined her case properly when they ordered her second and third
hospitalisations and that she had been compelled to sign an
application for the fourth hospitalisation.
2. The Court’s assessment
(a) As to the second and third
hospitalisations
- The
parties have not disputed that the applicant’s retention in a
mental health facility during the second and third hospitalisations
amounted to detention within the meaning of Article 5 § 1 of the
Convention. The Court finds no reason to hold otherwise. It is
therefore necessary to determine whether the impugned measures were
justified under that Convention provision.
(i) Recapitulation of the relevant
principles
- The Court reiterates that an individual cannot be
deprived of his liberty on the basis of unsoundness of mind unless
three minimum conditions are satisfied: (i) he must reliably be shown
by objective medical expertise to be of unsound mind; (ii) the mental
disorder must be of a kind or degree warranting compulsory
confinement; (iii) the validity of continued confinement depends upon
the persistence of such a disorder (see Winterwerp v. the
Netherlands, 24 October 1979, § 39, Series A no. 33 and
Stanev v. Bulgaria [GC], no. 36760/06, §
145, 17 January 2012).
- The lawfulness of detention depends on conformity with
the procedural and substantive aspects of domestic law (see
Winterwerp, cited above, pp. 17-18, § 39). However, not
every fault discovered in a detention order renders the underlying
detention as such unlawful for the purposes of Article 5 § 1. A
period of detention is, in principle, “lawful” if it is
based on a court order. For the assessment of compliance with Article
5 § 1 of the Convention a basic distinction has to be made
between ex facie invalid detention orders – for example,
given by a court in excess of jurisdiction or where the interested
party did not have proper notice of the hearing – and detention
orders which are prima facie valid and effective unless and
until they have been overturned by a higher court. A detention order
must be considered as ex facie invalid if the flaw in the
order amounted to a “gross and obvious irregularity” in
the exceptional sense indicated by the Court’s case-law (see
Mooren v. Germany [GC], no. 11364/03, §§ 74 and 75,
9 July 2009 with further references). The reasoning of the detention
order is a relevant factor in determining whether a person’s
detention must be considered as arbitrary. The Court has considered
the absence of any grounds given by the judicial authorities in their
decisions authorising detention for a prolonged period of time to be
incompatible with the principle of the protection from arbitrariness
enshrined in Article 5 § 1 (see Stašaitis v.
Lithuania, no. 47679/99, § 67, 21 March 2002; Nakhmanovich
v. Russia, no. 55669/00, § 70, 2 March 2006; and
Belevitskiy v. Russia, no. 72967/01, § 91, 1 March
2007).
- The
detention of an individual is such a serious measure that it is only
justified 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.
That means that it does not suffice that the deprivation of liberty
is executed in conformity with national law, but it must also be
necessary in the circumstances (see Witold Litwa v. Poland,
no. 26629/95, § 78, ECHR 2000 III).
- Given
the importance of personal liberty, the relevant national law must
meet the standard of “lawfulness” set by the Convention,
which requires that domestic law be sufficiently precise and
foreseeable in its application (see, for example, Kawka v. Poland,
no. 25874/94, § 49, 9 January 2001). Moreover, the
condition that detention be “in accordance with a procedure
prescribed by law”, requires the existence in domestic law of
“fair and proper procedures” and adequate legal
protection against arbitrary deprivation of liberty (see Winterwerp,
cited above, pp. 19-20, § 45; Amuur v. France,
judgment of 25 June 1996, Reports 1996 III, pp. 851-52,
§ 53; and H.L. v. the United Kingdom, no. 45508/99, §
115, ECHR 2004 IX).
(ii) Application of these principles to
the present case
- In
the present case the need for the applicant’s second and third
hospitalisations was corroborated by an individual opinion provided
by a psychiatrist working at the psychoneurological dispensary, then
by an individual opinion provided by a psychiatrist working at the
receiving hospital, and lastly by a collective opinion of the board
of psychiatrists of the same hospital (see paragraphs 7, 9, 10, 15, 17
and 18 above). The applicant’s diagnosis was therefore
established and confirmed by several mental health practitioners, one
of them belonging to a facility not connected, administratively or
financially, with the receiving hospital. The Court accepts that in
both cases there existed adequate evidence suggesting that the
applicant suffered from a mental disorder which might have required
her admission to the mental health facility for in-patient treatment.
- Reviewing
the court decisions authorising the applicant’s second and
third hospitalisation, the Court notes that according to section 22
of the Psychiatric Assistance Act cases concerning compulsory
provision of psychiatric assistance should be heard in the presence
of the person concerned. However, there is no indication that the
applicant was given any notice of the relevant hearings. The texts of
the decisions do not suggest that she was present at the hearings.
Neither do they suggest that the courts took any account of the
applicant’s opinion as to the matters in question. No
explanation was given by the courts as to why the applicant was
absent and why her opinion on the appropriateness of hospitalisations
was not examined.
- In
ordering the compulsory hospitalisations of the applicant on the
grounds that she was dangerous, the courts were expected to show that
the conditions for compulsory hospitalisation, as provided by section
14 of the Psychiatric Assistance Act, had been met. However, in
support of their conclusions the courts did not refer to any specific
facts suggesting that those conditions had been complied with. In
particular, no specific facts were established in the court hearings
to show that the applicant had committed or expressed a real
intention to commit acts which were directly dangerous to her or to
other individuals (see also Gajcsi v. Hungary, no. 34503/03,
§21, 3 October 2006).
- The
court decisions did not refer to any other medical opinions apart
from the report from the receiving mental health facility. However,
assessment of the medical opinions given by mental health
practitioners independently of each other would contribute to the
objectivity of the medical conclusions justifying compulsory
hospitalisation. In this context the Court notes that according to
principle 17 § 1 of the UN Principles for the Protection of
Persons with Mental Illnesses and for the Improvement of Mental
Health Care of 17 December 1991 (“the UN Principles”) the
procedures for compulsory hospitalisations should provide for the
independent medical assessment of the patient (see paragraph 37
above).
- Assessing
the court decisions from the standpoint of the necessity of the
compulsory hospitalisation, the Court notes that at no point did the
courts examine other, less severe, measures that might have been
sufficient for the protection of the applicant’s and the public
interests. In this context another question arises as to the degree
of the intensity of the impugned measures. Different types and levels
of mental disorders call for varying approach in selecting a regime
under which a particular patient is to be kept. The courts did not
address this issue, however.
- The
Court further notes that the above shortcomings in the court
decisions could not be addressed at the stage of appeal as the courts
specified that their decisions were not subject to appeal. Likewise,
it has not been suggested by the Government that at the relevant time
such court decisions could be challenged before the courts of appeal.
Meanwhile, the availability of appeal procedure is a standard which
has been recognised by the international community as essential
guarantee which should exist for an involuntary patient in a mental
health facility (see principle 17 § 7 of the UN Principles cited
in paragraph 37 and Article 25 of the Recommendation Rec(2004)10 of
the Committee of Ministers to member states concerning the protection
of the human rights and dignity of persons with mental disorder (“the
CM Recommendation”) cited in paragraph 38 above).
- Moreover,
in ordering the applicant’s hospitalisations, the domestic
courts were not obliged to set any specific time-limits for those
compulsory measures. In this context it is relevant to note that the
CM Recommendation has endorsed the principle that the decisions to
subject a person to involuntary placement in mental hospital should
state the maximum period beyond which, according to law, they should
be formally reviewed (see Article 20 of the CM Recommendation). The
Court further notes that, according to section 17 of the Psychiatric
Assistance Act, following the compulsory admission of a person to a
mental hospital on the basis of judicial decision his or her mental
health is subject to automatic review by a panel of psychiatrists at
least once a month to determine whether it is necessary to keep the
person in hospital. However, the law does not specify whether any
external expert has to be involved in such examinations and does not
put in place any other safeguards for the independent review of the
matter. At the same time, subsequent judicial review of compulsory
hospitalisation is obligatory only in cases where the hospitalisation
exceeds six months. The right of the patients to apply to a court
seeking review of their status comes into being only three months
after the date of the court decision extending the hospitalisation.
- It
follows that, in the absence of any time-limits set by the courts in
the primary decisions for hospitalisation, the subsequent judicial
review of the matter was not available to the applicant for a
considerable period of time. Meanwhile, the monthly review by a panel
of psychiatrists was not supported by adequate guarantees for
independence, impartiality and objectivity of the medical examination
(see, mutatis mutandis, L.M. v. Latvia, no.
26000/02, § 52, 19 July 2011). Accordingly, after the compulsory
admission of the applicant on the basis of the court decisions, the
practitioners of the mental health facility assumed effective
internal control of the applicant’s liberty and treatment for
the whole period of the second hospitalisation, which lasted for two
months and twenty-one days (from 28 September to 19 December 2003),
and the third hospitalisation which lasted for one month and twenty
days (from 19 July to 8 September 2004). The Court finds no
indication that, following her admissions to the hospital, the
applicant was subject to any assessment by an outside authority.
Moreover, the Government did not provide any medical or other
documentary evidence to show that after the admission the applicant’s
status was subsequently reviewed by specialists within the hospital.
- Based
on the foregoing considerations the Court concludes that the
applicant’s admissions to the hospital and subsequent
retentions therein were not protected by appropriate safeguards
against arbitrary deprivation of liberty. Moreover, it has not been
reliably shown that the applicant’s retention in the hospital
was justified by the mental illness throughout the whole period of
her second and third hospitalisations. Accordingly, there has been a
violation of Article 5 § 1 of the Convention in this regard.
(b) As to the fourth hospitalisation
- The
question as to whether there was “deprivation of liberty”
in respect of the fourth hospitalisation is in dispute between the
parties. The Government maintained that the applicant was admitted to
the hospital on the basis of her own application, which was
sufficient to show that the hospitalisation was voluntary. The
applicant disagreed, claiming that she was compelled to sign the
admission application.
- The
Court reiterates that the notion of deprivation of liberty comprises
both an objective element, namely a person’s confinement in a
restricted space for a significant length of time, and a subjective
element, namely the person’s lack of valid consent to the
confinement (see Storck v. Germany, no. 61603/00, §
74, ECHR 2005 V, 16 June 2005). Nevertheless, the right to
liberty is too important in a democratic society for a person to lose
the benefit of the protection of the Convention for the single reason
that he gives himself up to be taken into detention. Detention may
violate Article 5 even when the person concerned has agreed to it
(see Osypenko v. Ukraine, no. 4634/04, §
48, 9 November 2010).
- In
the present case the Court shall first examine whether the severity
of the restrictions imposed on the applicant and the factual
background of the case suggest that the measure in question should be
qualified as deprivation of liberty; if so, then whether the
applicant’s consent to hospitalisation could be viewed as valid
and thus lawful for the purpose of the Convention, and lastly,
whether the prolonged keeping of the applicant in the hospital was
lawful.
(i) The nature of the measure in question
- With
respect to the applicant’s stay in the hospital, the Court
notes that if in-patient psychiatric treatment is voluntary this
presupposes that the patient has the guaranteed right to stop any
further treatment and to leave the hospital whenever he or she wishes
to do so. This freedom of action is subject to mental health
practitioners’ authority to refuse to discharge the patient,
provided that the relevant compulsory admission procedures are
immediately applied, following which the person shall be treated as
an involuntary patient. This approach is recognised both
internationally (see principle 15 of the UN Principles cited in
paragraph 37 above) and at the domestic level (see section 18 of the
Psychiatric Assistance Act cited in paragraph 35).
- However,
there is no indication that after being admitted the applicant was
free to leave the hospital. The applicant contended that she was
confined in the hospital in quite strict conditions, even as to
freedom of movement within the premises of the hospital, let alone
freedom to leave the hospital. The control over her liberty and
privacy extended to strict limitations on her personal belongings.
The applicant’s account of the factual situation is indirectly
corroborated by the CPT’s observations expressed after the
visit to a similar mental health facility in Ukraine. The CPT noted
that a large number of adult patients, who had not been officially
admitted as involuntary patients, could not in fact leave the
hospital of their own free will (see paragraph 40 above).
- At
the same time the applicant’s submissions have not been shown
by the Government to be false in any way. No evidence has been
provided by the Government as to the regime of the applicant’s
stay in the hospital specifying, in particular, what difference there
was between the applicant’s daily supervision and that of
involuntary patients, the amount of social contact allowed, the
restrictions on privacy and other matters of fact. These matters were
in the possession of the authorities rather than of the applicant.
- Therefore
the Court, having regard to the overall context of the case, must
give preference to the applicant’s account of the facts and
conclude that after the admission the applicant was deprived of
liberty throughout the period of the fourth hospitalisation, within
the meaning of Article 5 § 1 of the Convention.
(ii) The consent to admission
- With
respect to the applicant’s consent to admission, the Court
considers that medical practitioners are required to pay particular
attention to the validity of decisions made by a person whose mental
health is questionable.
- The
international community has developed a set of relevant principles
under which the validity of a patient’s consent to psychiatric
treatment can be ensured. In particular, under principle 11 § 2
of the UN Principles an agreement to psychiatric treatment implies
that a patient has been provided with adequate and understandable
information, in a form and language he or she understands on the
diagnostic assessment; the purpose, method, likely duration and
expected benefit of the proposed treatment; alternative modes of
treatment, including those less intrusive; possible pain or
discomfort, risks and side-effects of the proposed treatment (see
paragraph 37 above). The CPT has specified that consent to treatment
can only be qualified as free and informed if it is based on full,
accurate and comprehensible information about the patient’s
condition and the treatment proposed (see paragraph 39 above).
-
Accordingly, the Court takes the view that a person’s consent
to admission to a mental health facility for in-patient treatment can
be regarded as valid for the purpose of the Convention only where
there is sufficient and reliable evidence suggesting that the
person’s mental ability to consent and comprehend the
consequences thereof has been objectively established in the course
of a fair and proper procedure and that all the necessary information
concerning placement and intended treatment has been adequately
provided to him.
- In
the present case the applicant’s hospitalisation was conducted
on the basis of the consent given by the applicant who, at the
relevant time, had been diagnosed with a mental disorder. The only
document evidencing the applicant’s consent is her admission
application. While section 13 of the Psychiatric Assistance Act
requires that consent to hospitalisation should be signed by the
person concerned and a psychiatrist, no such consent countersigned by
a psychiatrist has been presented to the Court. There is no evidence
suggesting that her mental ability to consent was established, that
the consequences of the consent were explained to her or that the
relevant information on placement and treatment was provided to her.
- In
these circumstances the Court considers that the applicant’s
consent to the fourth hospitalisation cannot be viewed as valid and
lawful for the purpose of the Convention.
(iii) The lawfulness of keeping the
applicant in the hospital
- In
determining whether keeping the applicant in the hospital could be
justified on the grounds of her mental health, the Court notes that
the only medical evidence available in the case file with respect to
this period is a copy of a psychiatrist’s opinion of 13
February 2006 preceding the applicant’s admission to the
hospital. However, there is no evidence suggesting that the
applicant’s mental illness continued to persist throughout the
period of the fourth hospitalisation, which lasted from 17 February
to 19 April 2006, that is for two months. In these circumstances
the Court is unable to conclude that keeping the applicant in the
hospital was justified for that period.
- The
Court further reiterates that the requirements of appropriate
procedural safeguards against arbitrary retention in a mental health
facility are inherent in the concept of lawfulness under Article 5 §
1 of the Convention. This issue is equally important with respect to
voluntary patients, because without safeguards for this type of
patient, there may be improper inducements to circumvent the
complicated procedure for compulsory hospitalisation by admitting a
person on a “voluntary” basis. As a result, the
guarantees provided within a compulsory hospitalisation may lose
their practical efficiency and not serve as a real shield against
arbitrary deprivation of liberty.
- The
Court has noted above that the applicant’s admission to the
hospital was not supported by the necessary safeguards ensuring the
validity of her consent to admission. As regards keeping the
applicant in the hospital, no information has been provided by the
Government as to the existing practice of regular visits to mental
health facilities by an independent outside body with the aim of
talking privately with patients, reviewing their status on its own
initiative, receiving complaints, and dealing effectively with the
issues raised by the patients. The importance of such supervisory
procedures has been stressed by the CPT (see paragraph 39 above). In
the Court’s opinion the availability of these procedures
offering independent review of the status of both voluntary and
involuntary admitted patients are essential guarantees against
possible abuses in their respect.
- Considering
further the issues of legal procedures, the Court cannot find that
the remedies referred to by the Government in their objections as to
the admissibility of the instant complaint on the grounds of
non exhaustion were effective for the purposes of the
Convention. In the area of the exhaustion of domestic remedies there
is a distribution of the burden of proof. It is incumbent on the
Government claiming non exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say that it was accessible, was capable
of providing redress in respect of the applicant’s complaints,
and offered reasonable prospects of success (see Akdivar and
Others v. Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996 IV). Having regard to the
vulnerability of persons placed in mental health facilities, the
Court considers that it was the Government’s onus probandi
to show that the remedies, they mentioned, were effective.
- One of the principal issues in examining the
effectiveness of a remedy is whether it could offer adequate redress.
The Court would not exclude that certain complaints concerning
deprivation of liberty may be adequately redressed by retrospective
remedies. For example, complaints about short periods of detention or
certain kinds of non-compliance with the formalities of the domestic
law in exercising detention procedures may be (and, in some
circumstances, may exclusively be) adequately protected by recourse
to a retrospective remedy. However, where the complaint is about a
continued and arbitrary deprivation of liberty conducted in the
absence of a fair and proper procedure for admission to the facility,
as in the present case, an adequate remedy is primarily one capable
of immediately terminating the continued violation by ordering
release. The specific requirements of Article 5 § 4 of the
Convention concerning the judicial character of a necessary
procedure, including guarantees of independent and impartial review
based on the adversarial nature of the procedure and the principle of
equality of arms, are inherent in such a remedy. A retrospective
compensatory relief could be supplementary to that remedy.
- As
regards the complaint to the prosecutor referred to by the
Government, this recourse cannot be regarded as an adequate remedy
because of the lack of the above-mentioned procedural safeguards.
Besides that, the Government have not provided any comparable
examples of domestic practice where the prosecutors had offered
adequate redress in an appropriate manner. The Court would reiterate
that the remedy should offer direct and timely redress, and not
merely indirect protection of the rights guaranteed by the Convention
(see, mutatis mutandis, Melnik v. Ukraine, no.
72286/01, § 68, 28 March 2006).
- The
Government’s argument that the applicant could have complained
to a court under Article 248-1 of the Code of Civil Procedure of 1963
is immaterial, as that Code was no longer in force at the relevant
time (see paragraph 33). As to the action in an administrative court,
the Government have not provided any substantiation or any examples
of domestic practice showing that such an action would have had any
prospect of success, given that the jurisdiction of administrative
courts covers only public-law disputes involving public authorities
(see paragraph 34). Civil proceedings for damages under the Civil
Code constitutes a purely compensatory remedy and, for the reasons
set out in paragraph 84 above, would not offer appropriate protection
in respect of the applicant’s complaint.
- Moreover,
assessing the effectiveness of these remedies from the standpoint of
their practical availability, the Court, having regard to the
applicant’s submissions as to the regime under which she was
kept in the hospital, notes that no evidence has been provided
suggesting that any appropriate mailing service or other means of
communication with the outer world, protected by specific and
practical safeguards ensuring the privacy of communication, existed
in the hospital. Nor has it been shown that any legal aid schemes
were available to the applicant to support her complaints and ensure
that her interests were represented. As noted above, no information
has been provided concerning any practice of visits to the hospital
by outside authorities with the purpose of communication with the
patients. The CPT’s critical observations as to the practical
availability of the legal safeguards for the patients of a similar
mental health facility are quite pertinent in this context (see
paragraph 40 above).
- In
the light of these considerations the Court rejects the Government’s
contention concerning non-exhaustion of domestic remedies.
- It
further notes that the present complaint was submitted to the Court
on 7 October 2006 and the applicant was discharged from the hospital
on 19 April 2006. The complaint was therefore lodged within six
months of the moment when the continuing situation complained of
ceased to exist (see, among other authorities, Papon v. France
(no. 1) (dec.), no. 64666/01, ECHR 2001-VI). Accordingly, the
Government’s objections as to the six month rule should
also be dismissed.
(iv) Conclusion
- The
Court therefore concludes that it has not been reliably shown that
the applicant’s retention in the hospital was justified by the
mental illness throughout the period of her fourth hospitalisation;
moreover, her admission to the hospital and retention therein were
not supported by adequate procedural safeguards against arbitrary
deprivation of liberty. There has therefore been a violation of
Article 5 § 1 of the Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
- In
her initial submissions the applicant complained
of a violation of her right provided by Article 5 § 5 of the
Convention.
- However,
the applicant did not pursue this complaint further. In particular,
she made no submissions to this effect at the stage of communicating
the application to the Government. It appears that this issue did not
constitute a matter of concern for her.
- In
these circumstances, the Court considers that the applicant may not
be regarded as wishing to pursue the complaint under Article 5 §
5 of the Convention, within the meaning of Article 37 § 1 (a) of
the Convention (see Nikolay Kucherenko v. Ukraine, no.
16447/04, §§ 39-41, 19 February 2009 and Visloguzov v.
Ukraine, no. 32362/02, §§ 98-100, 20 May 2010).
Furthermore, in accordance with Article 37 § 1 in fine,
the Court finds no special circumstances regarding respect for human
rights as defined in the Convention and its Protocols which require
the continued consideration of the complaint. In view of the above,
the Court finds it appropriate to discontinue the examination of this
part of the application.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained of violations of Articles 3, 9, 10 and 14 of the
Convention on account of her compulsory stays in the hospital. She
further complained under Articles 4 and 6 of the Convention that the
proceedings in her labour dispute were unfair.
- The
Court has examined those complaints and considers that, in the light
of all the material in its possession and in so far as the matters
complained of are within its competence, they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. Accordingly, the Court rejects them as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
IV. 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 pecuniary damage without
specifying the amount. She further claimed 4,000,000 euros (EUR) in
respect of non pecuniary damage.
- The
Government submitted that the claims were excessive and groundless.
- The
Court notes that the applicant failed to substantiate the pecuniary
damage incurred. It therefore makes no award in this respect. As to
non-pecuniary damage, the Court considers that
the applicant must have suffered distress and anxiety on account of
the violations found. Ruling on an equitable basis, as required by
Article 41 of the Convention, it awards the applicant EUR 12,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed compensation for costs
and expenses incurred before the domestic authorities and the Court,
without specifying the amount.
- The
Government maintained that the claim was unsubstantiated.
- In
the present case, no evidence has been presented within the
time limit fixed concerning the costs and expenses claimed. The
Court therefore rejects the claim.
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
- Decides to discontinue the examination of the
applicant’s complaint of an alleged violation of Article 5 §
5 of the Convention;
- Joins to the merits the Government’s
objections as to the applicant’s compliance with the rule of
exhaustion of domestic remedies and the six-month rule and dismisses
them after an examination on the merits;
3. Declares the complaint under Article 5 § 1
of the Convention (concerning the second, third and fourth
hospitalisations in a mental health facility) admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention as regards the second, third and fourth
hospitalisations of the applicant in a mental health facility;
- 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 12,000 (twelve thousand euros) plus any tax
that may be chargeable, in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at 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 19 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
