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FIFTH
SECTION
CASE OF
ŤUPA v. THE CZECH REPUBLIC
(Application
no. 39822/07)
JUDGMENT
STRASBOURG
26 May
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ťupa v. the Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean
Spielmann,
President,
Elisabet
Fura,
Karel
Jungwiert,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ann
Power,
Ganna
Yudkivska,
judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 39822/07) against the Czech
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Czech national, Mr Miloš Ťupa
(“the applicant”), on 31 August 2007.
- The
applicant was represented by Mr V. Peřina, a lawyer practising
in Chrudim. The Czech Government (“the Government”) were
represented by their Agent, Mr V. A. Schorm of the Ministry of
Justice.
- The
applicant alleged, in particular, violations of his right to liberty
under Article 5 § 1 of the Convention because his detention in a
psychiatric hospital had not been in accordance with a procedure
prescribed by law and justified.
- On
22 June 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Miloš Ťupa, is a Czech national who was
born in 1970 and lives in Bystřice nad Pernštejnem.
- He
lives in a house with his mother, brothers and sisters. On 4 January
2007 the police came to their house with a doctor and took the
applicant against his will to Jihlava Psychiatric Hospital.
- On
the morning of 8 January 2007 the hospital informed Jihlava District
Court (okresní soud) of the applicant’s
involuntary detention pursuant to Article 191a § 1 of the Code
of Civil Procedure.
- On
the afternoon of the same day a senior clerk at the District Court
went to the hospital and interviewed the applicant and his treating
doctor. A one-paragraph record of the interview with the doctor
shows that the latter stated that the applicant had been hospitalised
at the recommendation of his general practitioner who had asserted
that the applicant had suffered from auditory hallucinations for
about a year, thought that his food was being poisoned, slept in a
gas mask because he thought somebody had tried to poison him with gas
and threatened to kill his brother. It seems that the hospital called
the applicant’s family to confirm this last event. The doctor
further said that the applicant had disputed the information given by
the general practitioner, that he had been cooperating only formally
and that there was considerable paranoia and lack of logic in his
thinking. According to the doctor, because the applicant had not
given his consent, it had been decided to admit him involuntarily.
- The
applicant, in his statement to the clerk, disputed these allegations
maintaining that he had not seen his general practitioner for several
months and that he had had disputes with his mother and brothers who
had orchestrated his detention. He further claimed that he had never
been treated by a psychologist or psychiatrist before and had never
taken psychiatric medication. He also requested his immediate release
because the hospital had not informed the court of his detention
within twenty-four hours of his admission.
- The
District Court decided a few hours later, based solely on this record
of the interview, that the applicant’s involuntary admission to
the psychiatric hospital was lawful. The decision, after taking note
of the content of the record, contains only the following reasoning:
“The court is of the opinion that at the time of
the applicant’s admission to [the hospital] he was not able,
considering his health condition influenced by his mental illness, to
express his qualified consent to his admission to [the hospital]
which appears to be necessary to protect his life and health. The
court has thus decided that his admission was lawful.”
The decision was served
only on the applicant’s court-appointed lawyer and not on the
applicant himself.
- The
applicant appealed arguing that his detention was not justified and
that it was not in accordance with law because the hospital had not
informed the court of his admission within twenty-four hours.
- On
22 February 2007 Brno Regional Court (krajský soud)
upheld the first-instance decision. It held that the record of the
interview had been sufficient evidence for the first-instance court
to base its decision on, given that it had had to decide without
delay. It added that the applicant’s claims of disputes in the
family had not been concrete enough and that in any case his
hospitalisation had been recommended by his general practitioner. It
also held that the twenty-four-hour time-limit had not been met but
that that did not affect the legality of his detention.
- The
applicant was released from hospital on 9 March 2007.
- On
16 July 2007 the Constitutional Court (Ústavní soud)
dismissed the applicant’s constitutional appeal as manifestly
ill-founded holding that it could not re-evaluate the evidence heard
by the ordinary courts and that their decisions regarding the
necessity of the applicant’s detention were not manifestly
unreasonable. It further held that the law sets a twenty-four-hour
time-limit for a hospital to inform a court of an involuntary
admission but that non-compliance with this time-limit did not make
the detention unlawful. It added that such a conclusion did not, as a
matter of course, exclude the possibility for an applicant to claim
damages against the hospital.
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
Charter of Fundamental Rights and Freedoms (Act no. 2/1993)
15. Article
8 provides that personal liberty is guaranteed and the law shall
specify the cases in which a person may be committed to or kept in
a medical institution without his or her consent.
A court must be notified within twenty-four hours that such a measure
has been taken, and it shall decide within seven days whether the
placement is justified.
Code of Civil Procedure (Act no. 99/1963)
- Pursuant
to Article 191a a hospital that admits a patient against his or her
will must inform the competent court within twenty-four hours.
- Pursuant
to Article 191b § 1 the courts must review the lawfulness of the
involuntary admission to the hospital within seven days.
The Public Health Care Act (Act no. 20/1966)
- Under
section 23(4)(b) a person can be compulsorily medically treated and
even hospitalised if he appears to have signs of a mental illness and
endangers himself or his surroundings.
The Civil Code (Act no. 40/1964)
- Under
Article 11, natural persons have the right to protection of their
personality rights (personal integrity), in particular their life and
health, civil and human dignity, privacy, name and personal
characteristics.
- Under
Article 13 § 1, natural persons have the right to request that
any unjustified infringement of their personality rights be ended and
that the consequences of such infringement be eliminated. They also
have the right to appropriate just satisfaction. Paragraph 2 provides
that, in cases where the satisfaction obtained under paragraph 1 is
insufficient, in particular because the injured party’s dignity
or social standing has been considerably diminished, the injured
party is also entitled to financial compensation for non-pecuniary
damage.
B. Relevant domestic practice
- In
its decision of 27 September 2007 (30 Cdo 3126/2007) the Supreme
Court upheld a judgment of Prague Municipal Court from 20 April 2006
that awarded each claimant, under Article 13 § 2 of the Civil
Code, 15,000 Czech korunas (CZK) in respect of non-pecuniary damage
suffered on account of their overnight detention at a police station
in breach of their right to liberty.
C. Relevant international documents
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)
- The
principle in Article 8 provides: “Persons with mental disorder
should have the right to be cared for in the least restrictive
environment available and with the least restrictive or intrusive
treatment available, taking into account their health needs and the
need to protect the safety of others.”
- Article
17 contains 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.
2. The law may provide that exceptionally a person may
be subject to involuntary placement, in accordance with the
provisions of this chapter, for the minimum period necessary in order
to determine whether he or she has a mental disorder that represents
a significant risk of serious harm to his or her health or to others
if:
i. his or her behaviour is strongly suggestive of such a
disorder;
ii. his or her condition appears to represent such a
risk;
iii. there is no appropriate, less restrictive means of
making this determination; and
iv. the opinion of the person concerned has been taken
into consideration.”
- Article
20 contains recommendations on procedures for taking decisions on
involuntary placement:
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. ...
4. Involuntary placement, involuntary treatment, or
their extension should only take place on the basis of examination by
a doctor having the requisite competence and experience, and in
accordance with valid and reliable professional standards.
5. That doctor or the competent body should consult
those close to the person concerned, unless the person objects, it is
impractical to do so, or it is inappropriate for other reasons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his right to liberty had been violated
because his psychiatric confinement had not been in accordance with
a procedure prescribed by law and had not been justified. He
relied on Articles 5 and 6 of the Convention.
The
Court considers appropriate to examine the present complaint under
Article 5 § 1 of the Convention, which, in so far as relevant,
reads as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
...
(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
1. The parties’ submissions
- The
Government maintained that the applicant’s complaint regarding
the violation of the twenty-four-hour time-limit for notifying a
court of a person’s involuntary admission to a psychiatric
hospital was inadmissible for non-exhaustion of domestic remedies,
incompatible ratione personae and because of the lack of a
significant disadvantage suffered by the applicant.
- Regarding
the non-exhaustion of domestic remedies, they argued that the
applicant had only challenged the decision approving the lawfulness
of his admission to the hospital, which, if successful, would bring
about his release. This remedy was, however, not appropriate for a
simple procedural mistake on the part of the hospital. In their view,
if a health care institution breaches the twenty-four-hour time-limit
but the court still decides within seven days, it is an entirely
adequate consequence that the person concerned is not released if
statutory grounds for his hospitalisation exist but this error is
“only” acknowledged and an opportunity is given to claim
compensation in respect of pecuniary and non-pecuniary damage. A
different approach would be, in their opinion, unreasonably
formalistic and could potentially seriously harm the health or life
of the patient or third persons.
- The
Government thus suggested that the applicant should have instituted
civil proceedings for compensation in respect of pecuniary or
non-pecuniary damage against the hospital as was indicated to him by
the Constitutional Court.
- The
applicant disagreed stating that the remedy suggested by the
Government had not been available to him.
2. The Court’s assessment
- The
Court observes that the purpose of Article 35 of the Convention is to
afford the Contracting States the opportunity to prevent or put right
the violations alleged against them before those allegations are
submitted to the Convention institutions. Consequently, States are
dispensed from answering for their acts before an international body
before they have had an opportunity to put matters right through
their own legal system. That rule is based on the assumption,
reflected in Article 13 of the Convention – with which it has
close affinity – that there is an effective remedy available in
respect of the alleged breach in the domestic system. In this way, it
is an important aspect of the principle that the machinery of
protection established by the Convention is subsidiary to the
national systems safeguarding human rights (see, for example,
Selmouni v. France [GC], no. 25803/94, § 74, ECHR
1999 V).
- The
only remedies which an applicant is required to exhaust are those
that relate to the breaches alleged and which are at the same time
available and sufficient. The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness.
Moreover, an applicant who has exhausted a remedy that is apparently
effective and sufficient cannot be required also to have tried others
that were available but probably no more likely to be successful (see
T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999).
- In
the present case, the Court has first to determine whether the
applicant’s appeal against the District Court’s decision
approving the lawfulness of his involuntary admission to the hospital
was adequate in the sense that it could have addressed his grievance
that the hospital had not complied with the twenty-four-hour
statutory time-limit.
- The
Court notes that the purpose of the appeal is to review whether the
conditions of involuntary hospitalisation under the Public Health
Care Act are satisfied, that is, whether the patient has signs of a
mental illness and endangers himself or his surroundings. The courts
do not deal with the question whether the hospital satisfied its duty
to meet the twenty-four-hour time-limit. This was confirmed in the
present case by the Regional Court and the Constitutional Court,
which acknowledged that the hospital had made a mistake but that it
was one which could not have any negative impact on the merits of the
court’s decision.
- Accordingly,
the remedy used by the applicant was not an adequate remedy for this
aspect of his complaint for the purpose of Article 35 § 1 of the
Convention.
- However,
it remains to be decided whether a civil action for damages brought
against the hospital, as suggested by the Government, was an
available and sufficient remedy in the applicant’s situation or
whether a remedy requiring the applicant’s release was
necessary.
- In
this context, the Court must firstly determine the nature of the
applicant’s complaint. Two periods of detention must be
distinguished here – before the decision of the District Court
and afterwards when the detention was based on that decision (see
Shulepova v. Russia, no. 34449/03, § 47, 11 December
2008).
- Regarding the first period, the Court cannot accept
the Government’s argument that the breach of the
twenty-four-hour time-limit by the hospital could be considered as a
simple procedural mistake which did not affect the substance of the
applicant’s detention. The Court notes that the
twenty-four-hour rule is an important safeguard against the arbitrary
detention of persons by health institutions. Under the rule such
detention must be reported to a court, which can immediately
rule that it is not justified and thus order the release of the
person. Under the Court’s case-law the existence of procedural
safeguards is an integral component of the legality of any detention.
The absence of them makes detention arbitrary and thus unlawful (see
H.L. v. the United Kingdom, no. 45508/99, ECHR 2004 IX).
Similarly, in the case of Erkalo v. the Netherlands (2
September 1998, Reports of Judgments and Decisions 1998 VI)
the Court ruled that the delayed application of a prosecutor to a
court for the applicant’s continued detention made the
detention unlawful until the court decided on the belated request.
Consequently, the applicant’s allegations that he was held for
four days at the psychiatric hospital before it reported the
detention to the District Court, if true, would make his detention
unlawful because of the lack of procedural safeguards. Accordingly, a
request for release would have been an appropriate remedy in that
period. It, however, remains to be decided whether this was still the
case in the second period after the District Court decided on his
detention.
- The
Court notes that the District Court decided on 8 January 2007 that
the conditions of the Public Health Care Act had been met, that is,
that the applicant was a person of unsound mind and that his
detention was necessary for the protection of his life and health.
Thus since a court, in observance of the seven-day time-limit, had
already decided on the legality of his detention, there was no longer
any question that the applicant was being detained without any
procedural safeguards. After 8 January 2007 his claim was therefore
that his deprivation of liberty was not in accordance with a
procedure prescribed by law because the hospital failed to observe
the twenty-four-hour time-limit. Since that day the fact that the
hospital failed to report his detention had no bearing on the
substance of the matter, that is, the justification of his detention.
Accordingly, the Court holds that the applicant’s grievance
after 8 January 2007 was thus solely of a procedural nature. The
Court agrees with the Government that it would be unreasonably
formalistic in these circumstances to require a remedy by which the
applicant could have been released from detention.
- Thus
in the present case the Court considers that after 8 January 2007
just satisfaction would be an adequate remedy for the applicant’s
claim that his detention was not in accordance with a procedure
prescribed by law.
- The
Court observes that the right to liberty, under the domestic
case-law, is an integral part of the personality rights protected by
Article 11 of the Civil Code. At the same time the Convention is
directly applicable in the Czech legal order. Consequently, it was
open to the applicant in the present case to institute these
proceedings in which the compliance of his detention with his right
to liberty would have been assessed and the actions of the
psychiatric hospital could have been found unlawful, and just
satisfaction awarded to the applicant. The applicant did not put
forward any arguments that would suggest otherwise.
- The
Court thus concludes that after 8 January 2007 a civil claim for
damages under the Civil Code was an available and sufficient remedy
for the applicant’s claim that the hospital had failed to
report his detention within twenty-four hours to a court. Since the
applicant failed to use this remedy, this part of the application
must be rejected for non-exhaustion of domestic remedies pursuant to
Article 35 §§ 1 and 4 of the Convention. In these
circumstances, the Court considers it unnecessary to decide on the
other objections of the Government to the admissibility of this
complaint.
- Regarding
the complaint that the applicant’s detention was not justified,
the Court notes that it is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention or inadmissible
on any other ground. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that his detention as a person of unsound mind had
not been justified, that the domestic courts had given no relevant
reasons for his detention, that there had been no medical opinion
certifying that it had been necessary to detain him for his own
protection or that of his surroundings and that there had been no
piece of evidence stating what his alleged mental disorder was.
- The
Government argued that a medical declaration from a treating doctor
must be satisfactory for the purpose of the initial review of a
person’s detention conducted by the court within the seven-day
time-limit. They maintained that a medical report by the hospital
doctor had convincingly proved that the applicant had been suffering
from a real mental disorder. They further referred to the discretion
the Court leaves to the national authorities in evaluating evidence
regarding a person’s medical diagnosis and the extent of the
threat they may pose. They argued that the Court should defer to
domestic decisions because national courts were better placed to
directly ascertain the circumstances and hear those concerned in
person, which is what the District Court had done in the present
case.
2. The Court’s assessment
- The
Court reiterates that Article 5 of the Convention is, together with
Articles 2, 3 and 4, in the first rank of the fundamental rights that
protect the physical security of an individual and as such its
importance in a democratic society is paramount (see McKay v. the
United Kingdom [GC], no. 543/03, § 30, ECHR 2006 X, and
Storck v. Germany, no. 61603/00, § 102, ECHR 2005 V).
- The
detention of a person considered to be of unsound mind must be in
conformity with the purpose of Article 5 § 1 of the
Convention, which is to prevent persons from being deprived of their
liberty in an arbitrary fashion, and with the aim of the restriction
contained in sub-paragraph (e). In this latter respect the Court
reiterates that, according to its established case-law, 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 by objective medical
expertise 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 (see Winterwerp v. the Netherlands, 24 October
1979, § 39, Series A no. 33).
- In
order to justify detention, the fact that a person is “of
unsound mind” must be established conclusively, except in case
of emergency. To this end an objective medical report must
demonstrate to the competent national authority the existence of
genuine mental disturbance whose nature or extent is such as to
justify such deprivation of liberty, which cannot be extended unless
the mental disturbance continues (see Herczegfalvy v. Austria,
24 September 1992, § 63, Series A no. 244). Except in cases of
emergency, assessment by a psychiatrist is indispensable, especially
if the person concerned has no history of psychiatric disorder (see
C.B. v. Romania, no. 21207/03, § 56, 20 April
2010).
- The
Court further reiterates that 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 Varbanov v.
Bulgaria, no. 31365/96, § 46, ECHR 2000 X).
- The
Court has held on numerous occasions that it gives certain deference
to the national authorities in deciding whether an individual should
be detained as a “person of unsound mind”. It will not
substitute the decisions of states on how to apply the Convention
rights to concrete factual circumstances. It is in the first place
for the national authorities to evaluate the evidence adduced before
them in a particular case; the Court’s task is to review under
the Convention the decisions of those authorities (see Luberti v.
Italy, 23 February 1984, § 27, Series A no. 75). It is not
the Court’s task to reassess various medical opinions, which
would fall primarily within the competence of national courts;
however, it must ascertain for itself whether the domestic courts,
when taking the contested decision, had at their disposal sufficient
evidence to justify the detention (see Herz v. Germany, no.
44672/98, § 51, 12 June 2003). Deference is greater if it is a
case of emergency detention (ibid., § 55).
- The
Court also reiterates the fundamentally subsidiary role of the
Convention (see, among other authorities, Hatton and Others v. the
United Kingdom [GC], no. 36022/97, § 97, ECHR
2003 VIII). It considers that subsidiarity and the effective
protection of rights at the national level are two sides of the same
coin. In order for subsidiarity to be fully operative, it is
necessary for the domestic authorities to effectively protect human
rights at the domestic level. It is upon them in the first place to
ensure that the rights and freedoms set forth in the Convention are
fully secured.
- Consequently,
in order to defer to the judgment of domestic authorities, who are
indeed better placed to assess the facts of a given case, the Court
must be satisfied that they have assessed and scrutinised the
pertinent issues thoroughly. These principles are fully applicable to
situations of deprivation of liberty, given the fundamental
importance of this right in a democratic society. Domestic courts
must subject deprivations of liberty to thorough scrutiny so that the
detained persons enjoy effective procedural safeguards against
arbitrary detention in practice (see also paragraph 37 above).
- Turning
to the present case, the Court firstly notes that this is not a case
of emergency detention. It was never suggested at any time during the
domestic proceedings that an emergency arose requiring the
applicant’s immediate confinement. On the contrary, it seems
that the applicant’s detention was planned on the
recommendation of his general practitioner. The applicant was
detained for four days before the hospital informed the District
Court. Under the domestic law the court had three more days to render
its decision whether the applicant’s admission to the hospital
had been lawful. The Court thus considers that the domestic
authorities had enough time to thoroughly assess whether the
applicant’s detention was justified.
- The
Court further notes that the applicant stated, and it has not been
disputed by the Government, that he had no history of psychiatric
illness or violence. He was involuntarily taken from his home to the
psychiatric hospital without ever having been examined by a
psychiatrist before. These facts alone should have alerted the
domestic courts and prompted them to conduct a thorough review of his
detention.
- Nevertheless, the Court observes that the domestic
courts based their decisions solely on one document, namely, the
record of an interview by the senior court clerk with the doctor from
the hospital and the applicant. It notes that in that interview the
hospital psychiatrist’s diagnosis was based on his own
assessment of the applicant and, to a substantial degree, on a
collateral history given to him by the applicant’s general
practitioner. The Court, however, observes that the general
practitioner’s report was not adduced before the court and
neither was she examined as a witness. Thus, there was not any
opportunity for such evidence to be tested whether by way of
cross-examination or otherwise.
- Regarding
whether the applicant presented a danger, the domestic courts did not
provide any reasons why they considered the applicant to be dangerous
to himself, the District Court simply stating that this was the case.
The Court, however, observes that in his statement, which was the
only piece of evidence the domestic courts had, the hospital doctor
did not express any view in this regard. It rather seems that the
hospital based its decision to detain the applicant on the alleged
threats he made to his brother. The Court thus considers that the
finding of the domestic courts was not supported by any medical
opinion or other evidence (see Trajče Stojanovski v. “the
former Yugoslav Republic of Macedonia”, no. 1431/03, §
35, 22 October 2009, where the Court was concerned by the fact
that the medical opinions contained no reference to the applicant
being aggressive but he was still detained on this ground; and, a
contrario, Wassink v. the Netherlands, 27
September 1990, § 25, Series A no. 185 A, where the
domestic court had four different medical opinions and other evidence
to asses the danger presented by the applicant; and Herczegfalvy,
cited above, § 64, where, similarly, there were three medical
opinions testifying the danger presented by the applicant).
- As to the alleged general lack of adequate reasons in
the domestic court decision, the Court observes that the District
Court merely stated in one sentence that the applicant’s health
condition was influenced by his mental illness and that his detention
appeared to be necessary to protect his life and health. In doing so,
it essentially only repeated the wording of section 23(4) of the
Public Health Care Act. In any case, the District Court did not
consider the applicant’s claims that he had not been examined
by his general practitioner in months and that her allegations were
untrue. The Court considers that these statements and arguments, if
accepted, would be highly important for the outcome of the case. The
situation thus required more detailed reasoning from the courts for
the conclusion that all the conditions for the applicant’s
detention had been fulfilled (see, mutatis mutandis,
Georgiadis v. Greece, 29 May 1997, § 43, Reports
1997 III, and Pronina v. Ukraine, no. 63566/00, §
25, 18 July 2006).
57. The
Court has already observed that the domestic courts did not hear any
evidence that would refute or confirm the above-mentioned
statements of the applicant. The court did not summon to a hearing or
even try to contact the applicant’s general practitioner or
members of his family, unspecified members of which had allegedly
told the hospital that the applicant presented a danger. The
Government argued that the hospital doctor had testified that the
applicant had suffered from auditory hallucinations and considerable
paranoia for approximately one year and that this convincingly
confirmed that the applicant suffered from a real mental disorder.
The Court, however, notes that the hospital doctor merely reiterated
to the court clerk what was stated in a report of the applicant’s
general practitioner, the veracity of which was disputed by the
applicant. In this context, the absence of any attempt by the
domestic courts to hear the applicant’s general practitioner or
to examine her report is particularly striking. The Court thus
considers that the domestic courts, when taking the contested
decision, did not have at their disposal sufficient evidence to
justify the detention.
- The
Court also notes that the hospital doctor and the applicant were
interviewed by a senior clerk and not the District Court judge who
decided the case. This fact thus diminishes the strength of the
Government’s argument that the Court should defer to the
domestic decisions because the national courts had made use of their
ability to directly ascertain the circumstances and hear those
concerned in person.
- The
Court further cannot accept the argument expressed by the Regional
Court that any more thorough review was not feasible owing to the
requirement to decide without undue delay. The Court observes that
the District Court had three days for its decision and, in any case,
it did not even try to gather additional evidence.
- The
Court adds that there is no indication in the case file, and the
Government submitted no information in this regard, to suggest that
any less severe measures than detention in a psychiatric hospital
were considered and found insufficient. The domestic courts expressed
no view on this matter, although the applicant has never undergone
any psychiatric treatment before and it was not a case of emergency
detention.
- In
conclusion the Court considers that the domestic courts failed to
subject the detention of the applicant to thorough scrutiny as is
required by Article 5 § 1 (e) of the Convention. Accordingly,
there has been a breach of Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the police had violated his right to
respect for his home. He relied on Article 8 of the Convention, which
reads:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
Court observes that the applicant did not institute any domestic
proceedings in this regard and it does not seem that he mentioned
this complaint at all before the domestic authorities including in
his constitutional appeal. It follows that this part of the
application is inadmissible for non-exhaustion of domestic remedies
within the meaning of Article 35 § 1 of the Convention and must
be declared inadmissible pursuant to Article 35 § 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
respect of non-pecuniary damage, the applicant claimed 20,000 euros
(EUR).
- The
Government maintained that given the procedural nature of the alleged
violations, a finding of a violation would constitute sufficient just
satisfaction for any non-pecuniary damage the applicant might have
sustained.
- However,
the Court considers that the applicant undoubtedly suffered feelings
of frustration and anxiety, which cannot be compensated solely by the
finding of a violation. Having regard to the circumstances of the
case and ruling on an equitable basis, as required by Article 41, it
awards him EUR 12,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 6,300 Czech korunas for costs and expenses at
the domestic level and an unspecified amount for the proceedings
before the Court.
- The
Government maintained that no award should be made under this head
because the applicant had not submitted any documents to support his
claims.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Given the absence of any proof of payment,
the Court does not award the applicant any amount under this head
(see Melich and Beck v. the Czech
Republic, no. 35450/04, § 62,
24 July 2008).
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 complaints concerning the
justification of the applicant’s detention under Article 5 §
1 of the Convention admissible and the remainder of the complaints
inadmissible;
- Holds that there has been a violation of
Article 5 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 12,000
(twelve thousand euros) in respect of non-pecuniary damage, to be
converted into Czech korunas 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean
Spielmann
Deputy Registrar President
