FIFTH SECTION
DECISION
Application no. 13970/09
Eva SVOBODOVÁ
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 18 October 2011 as a Committee composed of:
	Mark Villiger, President,
	Karel Jungwiert,
	Isabelle Berro-Lefèvre, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 2 March 2009,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
PROCEDURE
The applicant, Ms Eva Svobodová, is a Czech national who was born in 1979 and lives in Brno. She was represented before the Court by Ms Bukovská, David Záhumenský and Mr Maroš Matiaško, lawyers from the Mental Disability Advocacy Centre in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr V. A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a person diagnosed with a psycho-social disability. In the past she had been treated in psychiatric hospital several times. She lives with her parents and draws a disability pension.
On 17 May 2007 the applicant had a dispute with her parents and then visited her psychiatrist who found that she had a relapse of schizophrenia, having refused to take medication. The psychiatrist therefore decided to hospitalise the applicant at the Psychiatric Hospital Brno-Černovice.
On 17 May 2007 the psychiatric hospital issued a report on the applicant’s hospitalisation, notifying it to the Brno Municipal Court on 18 May 2007 as provided for in Article 194a § 1 of the Code of Civil Procedure (hereinafter the “CCP”).
On 22 May 2007 the court initiated, pursuant to section 191a of the CCP, the proceedings on approval of the applicant’s admission to the psychiatric hospital. At the same time, it appointed a lawyer to represent the applicant in accordance with Article 191b § 2 of the CCP.
On 22 May 2007 a senior clerk of the Municipal Court visited the hospital and interviewed the applicant’s treating doctor who stated that the applicant had been hospitalised following her inadequate behaviour and accelerated psychometrical tempo; she had been under the influence of psychotic symptoms, having repeatedly dropped the taking of medication and having been dangerous to her. The clerk recorded that the applicant had not been able to be questioned as this might worsen her health condition, but that she had been able to understand that her admission to the psychiatric hospital had been based on the legal reasons as provided for in Article 119b § 4 of the CCP.
In a decision of 22 May 2007 the court found that the applicant’s admission to the hospital was lawful, relying on the statement of the treating doctor. The applicant and her representative were not involved in the proceedings. The applicant was served with the decision on 31 May 2007. The time-limit to challenge it expired on 15 June 2007. Her appointed lawyer, having also received the decision, did not take any procedural step and did not show any initiative to contact the applicant.
The applicant was heavily medicated. It was only on 21 June 2007 that she was able to find about the Mental Disability Advocacy Centre (hereinafter the “MDAC”). On the same day, a MDAC lawyer acting on the applicant’s behalf appealed against the Municipal Court’s decision by which the applicant’s admission to the psychiatric hospital had been approved, applying at the same time for waiver of the lapse of time to appeal.
After the Municipal Court having decided on the lawfulness of the applicant’s admission to the hospital, it continued the proceedings under Article 191d of the CCP to review the lawfulness of the applicant’s continued confinement. On 15 June 2007 it ordered an expert report to establish the applicant’s mental health. The expert examined the applicant on 13 July 2007.
On 22 June 2007 the applicant through her legal representative applied for release, relying on Article 119f of the CCP.
On 22 July 2007 the expert drew up a report finding that the applicant was suffering from a paranoiac schizophrenia and that her continued psychiatric confinement was appropriate. She did not recommend that the applicant be heard in a court.
On 17 August 2007 the Municipal Court stayed the proceedings on the applicant’s continued confinement, the applicant having agreed to undergo out-patient treatment.
As the applicant had not been released, on 17 September 2007 her legal representative lodged a complaint with the director of the psychiatric hospital arguing that the applicant was being detained illegally.
On 24 September 2007 the applicant was released.
On 24 October 2007 the Municipal Court rejected the application by the applicant’s lawyer for waiver of the lapse of time to appeal holding that the applicant had been legally represented and that the decision of 22 May 2007 concerning her admission to the hospital had been notified to her. On 21 December 2007 the Regional Court upheld the Municipal Court’s decision. Consequently, on 26 February 2008, the Municipal Court rejected the applicant’s appeal against the decision of 22 May 2007 as having been lodged outside the statutory time-limit. On 23 May 2008 the Regional Court upheld the rejection.
In the mean-time, on 7 April 2008, the applicant had filed a constitutional appeal challenging the Municipal Court’s decision of 24 October 2007 and the Regional Court’s decision of 21 December 2007.
On 25 August 2008 the Constitutional Court rejected her constitutional appeal as being manifestly ill-founded finding that the decision on the applicant’s admission to the hospital had been notified to her and thus she had had an opportunity to challenge it in time.
On 4 August 2008, after the Regional Court had rejected her appeal on 23 May 2008, she lodged a new constitutional appeal which seems to be still pending.
COMPLAINTS
1. The applicant complains under Article 5 § 4 of the Convention that she did not have access to a proper judicial review of her psychiatric confinement as she was not heard in the proceedings on approval of her admission to the psychiatric hospital and was not even aware of these proceedings and was not properly legally represented. Moreover, the principle of equality of arms was not respected.
2. She further complains under Article 5 § 1 of the Convention that her right to liberty was violated as it was not reliably established that she was a person of unsound mind within the meaning of Article 5 § 1 (e) of the Convention, her psychiatric confinement was not lawful because her dangerousness was not established and national law did not meet the standards of legal certainty and her detention was not “in accordance with a procedure prescribed by law” because she was not properly represented in the proceedings.
THE LAW
On 2 August 2011 the Court received the following declaration from the Government:.
“I, Vít Alexander Schorm, Agent of the Government of the Czech Republic, declare that the Government of the Czech Republic offer to pay ex gratia Ms Eva Svobodová, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 15,000 (fifteen thousand) euros, plus any tax that may be chargeable to the applicant.
This sum will be converted into Czech korunas at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision of the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 6 June 2011 the Court received the following declaration signed by the applicant:
“We, Barbora Bukovská, David Záhumenský and Maroš Matiaško, note that the Government of the Czech Republic are prepared to pay ex gratia Ms Eva Svobodová, with a view to securing a friendly settlement of the above mentioned case pending before the European Court of Human Rights, 15,000 (fifteen thousand) euros, plus any tax that may be chargeable to the applicant.
This sum will be converted into Czech korunas at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payble 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.
Having consulted our client, we would inform you that she accepts the proposal and waives any further claims against the Czech Republic in respect of the facts giving rise to this application. She declares that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
	Stephen Phillips	Mark Villiger
	Deputy Registrar	President