EHRM, 18-09-2012, nr. 13837/07

At the time of the events complained of, the Psychiatric Hospitals (Compulsory Admissions) Act, in its relevant parts, provided as follows:

Section 2

Section 8

Section 8a

Section 9

Section 10

Section 14h

Section 35

Section 49

A sunset clause was linked to section 14h, providing for an evaluation of the measure as of 1 January 2008, after which it would lapse automatically on 31 December 2008 unless extended by order in council (algemene maatregel van bestuur). The Government having elected not to extend it, it lapsed automatically on 31 December 2008.

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, in its relevant part, reads as follows:

Article 17 — Criteria for involuntary placement

The applicant complained that she had been detained on the ground of a suspicion that she was of unsound mind, as distinct from an established disorder. She alleged a violation of Article 5 § 1 of the Convention, which reads as follows:

The Government argued that absent the possibility of alternative, less restrictive measures, the existence of strong grounds for suspecting that a person was a danger to him or herself owing to a mental disorder was sufficient to order the temporary involuntary comittal of a person for diagnostic purposes.

They referred to, in particular, Article 17 § 2 of 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 (see paragraph 18 above).

The observation order had been given for a limited time, no more than three weeks, and had been intended to enable the court to determine whether an interim or provisional order was necessary. The proceedings leading to the giving of the order had been presided over by an independent judge.

The applicant argued that she had been detained for observation purposes on a mere suspicion that she was of unsound mind. No impairment of her mental faculties had actually been established when the order was given.

There had been no urgency requiring her to be detained without delay; it would have been possible to subject her to an examination before the order was given. Nor had her behaviour been violent.

In actual fact, there had been no diagnosis of any mental impairment justifying her detention. This was reflected by the psychiatrist's letter of 23 March 2007. She had been set up by her neighbours, who had told untruths to the police.

The Court reiterates its established case-law according to which an individual cannot be considered to be of ‘unsound mind’ and deprived of his liberty unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (the so-called Winterwerp criteria, see the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 17–18, § 39; as more recent authorities, see, inter alia, Varbanov v. Bulgaria, no. 31365/96, § 45, ECHR 2000-X; Hutchison Reid v. the United Kingdom, no. 50272/99, § 48, ECHR 2003-IV; and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012).

The Court further reiterates that a necessary element of the ‘lawfulness’ of the detention within the meaning of Article 5 § 1 (e) is the absence of arbitrariness. 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. The deprivation of liberty must be shown to have been necessary in the circumstances (see, inter alia, Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III; Varbanov, cited above, § 46; Hilda Hafsteinsdóttir v. Iceland, no. 40905/98, § 51, 8 June 2004; Enhorn v. Sweden, no. 56529/00, § 36, ECHR 2005-I; and Stanev, cited above, § 145).

No deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention (see Varbanov, cited above, § 47).

The particular form and procedure in this respect may vary depending on the circumstances. It may be acceptable, in urgent cases or where a person is arrested because of his or her violent behaviour, that such an opinion be obtained immediately after the person is first placed in detention. In all other cases a prior consultation is necessary. Where no other possibility exists, for instance due to a refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind (see Varbanov, cited above, § 47; and Shulepova v. Russia, no. 34449/03, § 42, 11 December 2008).

The national authorities have a certain discretion regarding the merits of clinical diagnoses since it is in the first place for them to evaluate the evidence in a particular case: the Court's task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40; X v. the United Kingdom, 5 November 1981, § 42, Series A no. 46; Luberti v. Italy, 23 February 1984, § 27, Series A no. 75; H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004-IX; Frank v. Germany (dec.), no. 32705/06, ECHR 28 September 2010; and Biziuk v. Poland (no. 2), no. 24580/06, § 42, 17 January 2012).

Turning to the facts of the case, the Court observes that a medical report drawn up by a qualified practitioner not involved in her existing treatment was available even before the hearing took place (see paragraph 2 above). This document has not been submitted to the Court. However, in the light of the summary given by the Regional Court in its decision, the Court is not disposed to doubt that it reflected genuine concerns that the applicant's mental state was such as to justify at least her detention for a limited period so as to make sure.

The applicant denies that her behaviour was violent. It is clear, however, that two conflicting accounts exist; this is apparent from the decision of the Regional Court (see paragraph 6 above), which mentions complaints about the applicant's behaviour and describes the applicant as suspicious of her neighbours, and stated in so many words in the psychiatrist's letter of 23 March 2007 (see paragraph 15 above). For its part, and noting that neither of the two psychiatric reports presented in the proceedings in the Regional Court has been submitted, the Court points out that the applicant has not submitted a shred of proof that her neighbours set her up, nor even offered the slightest beginning of an explanation why they should go to the lengths of involving the police if their version of events be entirely untrue.

It cannot be decisive that the applicant was released after three weeks' observation and that the applicant's mental condition was never determined to be dangerous. The letter of 23 March 2007 certainly does not satisfy the Court that a problem did not exist; in this letter, the psychiatrist states his doubts on the matter and defers his diagnosis.

The Court has interpreted Article 5 § 1 (e) so as to allow the detention of persons who have abused alcohol and whose resulting behaviour gives rise to genuine concern for public order and for their own safety (see Witold Litwa, cited above, § 62, and Hilda Hafsteinsdóttir, cited above, § 42). The same applies to persons in respect of whom there is sufficient indication that they may be of unsound mind.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The applicant complained, without invoking any particular provision of the Convention, of the Supreme Court's decision declaring her appeal on points of law inadmissible.

The Court construes this as a complaint under Article 5 § 4, which provides as follows:

The Government argued that the applicant could have asked the medical director of the psychiatric hospital to discharge her. If met with a refusal, she could have sought an order for her release from the Regional Court. In the further alternative, she had available to her the option of summary injunction proceedings before the Provisional Measures Judge; she had in fact made use of this possibility.

Moreover, the Supreme Court had in fact expressed its views on the complaints which the applicant had placed before it, albeit by way of obiter dictum.

The applicant's position was that the Supreme Court had declared her appeal on points of law inadmissible on the ground that she had no longer any legal interest in the proceedings, the observation order having long since expired. In fact, she had a valid interest in that, having been the victim of a violation of Article 5 § 1, she was entitled to compensation.

The applicant dismissed as ineffective the possibility offered by section 49 of the Psychiatric Hospitals (Compulsory Admissions) Act (see paragraph 16 above) of asking the medical director of the psychiatric hospital to release her, since she had been met with a refusal both from the medical director and from the public prosecutor. She also argued that she was prevented from seeking damages under section 35 of the Psychiatric Hospitals (Compulsory Admissions) Act, or in tort under civil law, in the absence of a judgment of the Supreme Court recognising her claim.

The Court observes that, regardless of alternative procedural avenues open to the applicant, her complaint is confined to the decision of the Supreme Court declaring her appeal on points of law inadmissible on the ground that, the validity of the observation order having long expired, she no longer had any legal interest.

This choice is binding on the Court. In availing herself of Article 34, the applicant was free to decide upon the measures of which she would claim to be the victim. What Article 35 § 1 in principle prevents is coming directly before the Court with a complaint which has not first been litigated within the national legal order; on the other hand, the person concerned is not obliged by Article 35 § 1 to repeat in his or her application to the Court the full case he or she argued before the relevant national authorities (see Deweer v. Belgium, 27 February 1980, § 29, Series A no. 35).

In S.T.S. v. the Netherlands, no. 277/05, § 61, ECHR 2011, the Court held as follows (case-law references omitted):

It is true that the Supreme Court declared the applicant's claim inadmissible as the order appealed against could no longer be overturned. However, it was not thereby prevented from ruling on the lawfulness of the applicant's detention. Although it did not accept the applicant's complaints as regards the legality of her detention, it did actually express itself in her favour on the complaint that she had not had a proper opportunity to argue her case against the delivery of an observation order as distinct from a provisional order (see paragraph 4.7 of the Supreme Court's decision, quoted in paragraph 12 above). Had the applicant brought proceedings to obtain compensation for damage, be it under section 35 of the Psychiatric Hospitals (Compulsory Admissions) Act or under civil law, the court seized of the case would have found the Supreme Court's opinion impossible to ignore.

The Supreme Court's decision therefore did not have the effect of depriving the applicant of a decision on the merits of her appeal on points of law. Nor can the Court find it established that the applicant was prevented from enjoying the effects of that decision in so far as it was favourable to her position.

It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The applicant complained under Article 6 of the Convention, firstly, that she had not been heard in advance and that she had not been told that the judicial examination would involve an application for an observation order; and secondly, that she had been denied the chance to ask the courts to seek a preliminary ruling from the Court on the question of compliance with Article 5 of the Convention. She complained under Article 2 of Protocol No. 7 that she had been denied review of the observation order as a result of the Supreme Court's decision.

However, 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 these complaints too are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada

Registrar

Josep Casadevall

President