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SECOND SECTION
CASE OF GAJCSI v. HUNGARY
(Application no. 34503/03)
JUDGMENT
STRASBOURG
3 October 2006
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 Gajcsi v. Hungary,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa,
President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D.
Jočienė, judges,
and Mrs S. Dollé, Section
Registrar,
Having deliberated in private on 12 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 34503/03)
against the Republic of Hungary lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Hungarian
national, Mr László Gajcsi (“the applicant”),
on 16 September 2003.
- The applicant, who had been granted legal aid, was
represented by Mr Á.L. Szőcs, a lawyer
practising in Budapest. The Hungarian Government (“the
Government”) were represented by Mr L. Höltzl, Agent,
Ministry of Justice and Law Enforcement.
- On 2 May 2005 the Court decided to give notice of the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1955 and lives in the
Lad-Gyöngyöspuszta Social Home, Hungary.
- On 4 November 1999 the applicant was taken by ambulance
to the Psychiatric Department of Nagyatád Hospital. Pursuant
to section 199 § 2 of the Health Care Act (“the Act”),
the Hospital notified the Nagyatád District Court of this fact
the next day.
- In the opinion of an expert psychiatrist, dated
8 November 1999, it was observed that the applicant had been
committed to hospital because of his erratic, pyromaniac behaviour,
and was in a deranged state of mind which warranted his compulsory
psychiatric treatment in a closed institution. On the same day the
court heard the applicant and ordered his treatment under section 199
§ 5 of the Act.
- Between 21 January 2000 and 22 November 2002 the
applicant’s compulsory treatment was reviewed by the court at
the statutory intervals.
- On 21 January 2003 the District Court again reviewed
the applicant’s psychiatric detention. At the hearing he was
represented by an ad hoc guardian (eseti gondnok). The
judge in charge appointed an expert psychiatrist, specifying that his
task was
“to give an opinion as to whether or not the
patient’s (eljárás alá vont személy)
admittance to, and prolonged treatment at, the psychiatric department
was justified because of his pathological mental status (kóros
elmeállapot)”.
The expert confirmed the need to continue the applicant’s
treatment.
- Based on that opinion, the court ordered the
prolongation of the applicant’s compulsory psychiatric
treatment for an indefinite period, the necessity of which was to be
reviewed within 60 days. It reasoned as follows:
“The patient (eljárás alá
vont személy) was admitted to the psychiatric department.
Relying on the evidence taken and the expert opinion,
the court has established that the patient’s prolonged
psychiatric treatment was justified and lawful.
The patient is in need of further therapy; the court has
therefore given its decision according to section 198(1) of Act no.
154 [on Health Care].”
- The applicant’s lawyer appealed to the Somogy
County Regional Court, arguing that the first-instance decision was
unlawful in that its reasoning was substantially deficient. He
pointed out that section 198(1) did not provide any substantive
ground for prolonging his compulsory treatment, which could only be
authorised under sections 200(1) and 188(b) of the Act.
- On 28 February 2003 the Regional Court upheld the
District Court’s decision, finding that it was in compliance
with the relevant provisions of the Code of Civil Procedure. It noted
that, according to the expert psychiatrist’s opinion, no change
had occurred in the applicant’s condition as to warrant his
release, and that his prolonged therapy was justified and necessary.
It was satisfied that the first-instance proceedings were in
compliance with section 201 of the Act. This decision was received at
the District Court for despatch on 11 March, and was served on 17
March 2003.
- On 15 May 2003 the applicant’s lawyer filed a
petition for review by the Supreme Court. He reiterated that the
reasoning of the first-instance decision was insufficient, and argued
that the lower courts’ decision infringed the applicant’s
constitutional right to a fair hearing. He pointed out that the Act
provided no ground for compulsory psychiatric treatment because of a
patient’s “pathological mental status” – a
criminal-law notion which had mistakenly been referred to when the
expert psychiatrist had been appointed. The potential grounds for the
applicant’s psychiatric confinement were enumerated in section
200(1) of the Act. In his view, this element deprived the expert’s
opinion of any relevance. He stressed that the fairness of any
proceedings which might result in coercive measures required detailed
reasoning in the relevant decisions. Referring to the Court’s
conclusions in the case of Van der Leer v. the Netherlands
(judgment of 21 February 1990, Series A no. 170 A), he also
argued that the failure to inform a patient of the reasons for his
involuntary psychiatric treatment might amount to a violation of his
Convention rights.
- On 27 October 2004 the Supreme Court rejected the
petition for review as inadmissible. It held that it was incompatible
ratione materiae with the relevant provisions of the Code of
Civil Procedure.
- Meanwhile, on 24 April 2003 the applicant was released
from hospital.
RELEVANT DOMESTIC LAW
- The relevant provisions of Act no. 154 of 1997 on
Health Care read as follows:
Section 188
“... b) Dangerous conduct is constituted by a
condition in which a patient, due to his disturbed state of mind, may
represent a serious danger to his or others’ life and limb or
health, but, given the nature of the illness, ‘urgent
hospitalisation’ [within the meaning of section 199] is not
warranted (a sürgős intézeti gyógykezelésbe
vétel nem indokolt).”
Section 197 – Voluntary treatment
“(1) The treatment may be considered voluntary if,
prior to admission to the psychiatric institution, the [mentally]
competent patient has consented to it in writing.
(2) A partly or fully incompetent patient may be
subjected to treatment in a psychiatric institution at the request of
the person referred to in sections 16(1) and 16(2).”
Section 198
“(1) In cases under sections 197(1) and 197(2),
the court shall regularly review the necessity of hospitalisation.
Such review shall take place every 30 days in psychiatric hospitals
and every 60 days in psychiatric rehabilitation institutions.”
Section 199 – Urgent hospitalisation
“(1) The doctor in charge shall directly make
arrangements to commit a patient to an appropriate psychiatric
institution, if the patient’s conduct is imminently dangerous
because of his psychiatric or addictive disease and can only be
controlled by urgent treatment in a psychiatric institution. ...
(2) The head of the psychiatric institution shall,
within 24 hours of the patient’s admission, notify the court
thereof and shall thereby initiate steps to establish the necessity
of the patient’s admission and the order of compulsory
psychiatric treatment. ...
(5) The court shall order the compulsory treatment of a
patient subjected to urgent hospitalisation if the patient’s
conduct is dangerous and his treatment in an institution necessary.
(6) Before deciding, the court shall hear the patient
and obtain the opinion of an independent expert psychiatrist. ...
(8) The court shall review the necessity of the
treatment every 30 days.
(9) The patient must be released from the psychiatric
institution if his treatment in an institution is no longer
necessary.”
Section 200 - Compulsory treatment
“(1) The court shall order the compulsory
institutional treatment of a patient whose conduct is dangerous
because of his psychiatric or addictive disease but whose urgent
treatment is not warranted. ...
(4) Before giving its decision, the court shall hear the
patient and an independent ... forensic expert psychiatrist ... as
well as the psychiatrist who has initiated the proceedings. ...
(7) The court shall review the necessity of compulsory
institutional treatment at the intervals specified in section 198.
...
(8) A patient subjected to compulsory institutional
treatment must be released once his treatment is no longer warranted.
...”
Section 201 - Common procedural rules
“(1) In the proceedings outlined in this chapter,
the court shall proceed by way of non-contentious proceedings. Unless
required otherwise by this Act or the non-contentious nature of the
proceedings, the court shall apply the provisions of Act no. 3 of
1952 on Civil Procedure as appropriate. ...
(4) In the court proceedings, appropriate representation
must be secured for the patient. ... .”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The applicant complained that his involuntary
psychiatric treatment had been unjustified, that it had not been
ordered in a procedure “prescribed by law”, and that he
had not been given reasons for his confinement. He relied on
Article 5 § 1 which provides as relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law: ...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants; ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The applicant maintained that his compulsory treatment
had been subject to a review pursuant to section 200 of the Health
Care Act. The reasoning of the court decision to prolong his
psychiatric detention had been very superficial and insufficient to
show that his conduct had been dangerous for the purposes of
paragraph 1 of that provision. As such, therefore, it had been
inadequate to meet the requirements of a procedure prescribed by law
within the meaning of Article 5 § 1 of the Convention.
- The Government were of the view that the applicant’s
detention had been susceptible to a review under section 199, rather
than section 200, of the Act. However, in view of the superficial
nature of the expert opinion at issue, they were not in a position to
assess whether the applicant’s potentially dangerous conduct
had indeed warranted his prolonged compulsory treatment. They
conceded that the Hungarian law governing the prolongation of
compulsory psychiatric treatment had apparently not been applied in a
manner fully reconcilable with the Convention’s requirements.
- The Court reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 essentially refer back to national law and state
the obligation to conform to the substantive and procedural rules
thereof. While it is normally in the first place for the national
authorities, notably the courts, to interpret and apply domestic law,
it is otherwise in relation to cases where, as under Article 5 § 1,
failure to comply with that law entails a breach of the Convention.
In such cases the Court can and should exercise a certain power to
review whether national law has been observed (Baranowski v.
Poland, no. 28358/95, § 50, ECHR 2000 III). Moreover,
any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law
but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness (see, among many
other authorities, the Chahal v. the United Kingdom judgment
of 15 November 1996, Reports of Judgments and Decisions
1996-V, p. 1864, § 118).
- In the present case, the Court notes that the relevant
domestic law emphasises the prerequisite of dangerousness in order to
justify compulsory hospitalisation and treatment. However, it finds
that the domestic court decisions in the present case were devoid of
any assessment of the applicant’s alleged or potential
“dangerous conduct”, under either section 199 or section
200 of the Health Care Act. This has not been disputed by the
Government. In these circumstances, the Court considers that the
prolongation of the applicant’s compulsory treatment was not
prescribed by law.
There has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 5 § 4 AND 13 OF THE
CONVENTION
- The applicant further complained that, since the
first-instance decision had not been properly reasoned and the
appellate court had not addressed all the arguments contained in his
appeal, he had not had an effective remedy at his disposal, in breach
of Articles 5 § 4 and 13. The Government did not address this
issue.
- The Court considers that this complaint falls to be
examined under Article 5 § 4 alone, being the lex specialis
in the field of deprivation of liberty, with stricter requirements
compared to Article 13 of the Convention (see De Jong, Baljet
and Van Den Brink v. the Netherlands, judgment of 22 May
1984, Series A no. 77, p. 27, § 60 in fine).
Moreover, it is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and is not inadmissible on any
other grounds. It must therefore be declared admissible.
- However, having regard to its finding under Article 5
§ 1 (see paragraphs 20-21 above), the Court considers that it is
not necessary to examine separately whether, in this case, there has
also been a violation of Article 5 § 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly, the applicant complained that his compulsory
treatment had been prolonged in unfair proceedings, in breach of
Article 6 § 1 of the Convention.
- However, again having regard to its finding under
Article 5 § 1 (see paragraphs 20-21 above), the Court considers
that, while this complaint is admissible, it is not necessary to
examine separately whether, in this case, there has also been a
violation of Article 6 § 1 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 2 million Hungarian forints, the
equivalent of 7,350 euros (“EUR”), in respect of
non-pecuniary damage.
- The Government found this claim reasonable.
- The Court considers that the applicant has suffered
non-pecuniary damage and awards him, on an equitable basis, the
amount claimed in full.
B. Costs and expenses
- The applicant made no claim under this head.
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 application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there is no need to examine
separately the complaints under Articles 5 § 4, 6 § 1 and
13 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 7,350 (seven thousand three hundred and fifty euros)
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, plus any tax that may be chargeable;
(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.
Done in English, and notified in writing on 3 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
