CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     Communicated on 29 June 2015   FIRST SECTION Application no. 75378/13 M.T. against Estonia lodged on 21 November 2013 STATEMENT OF FACTS The applicant, Ms M.T., is a Russian national, who was born in 1962 and lives in Tallinn. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 27 May 2010 the Harju County Court appointed the applicant as her son’s (born in 1984) guardian. The court relied on a forensic psychiatric expert opinion dated 14 March 2010 according to which the applicant’s son O.T. suffered from permanent paranoid schizophrenia and was incapable of understanding or controlling his acts. On 25 October 2010 O.T. committed acts of sexual nature in respect of a ten-year old girl. He also threatened to kill the victim pointing a knife at her throat. O.T. was placed into psychiatric care under court orders. Criminal proceedings were initiated and O.T. was examined by forensic psychiatric experts. According to the expert opinion O.T. had been incapable of understanding or controlling his acts at the time of their commission. On 6   May 2011 the Harju County Court discontinued the criminal proceedings and ordered O.T.’s coercive psychiatric treatment. On 14 December 2012 the applicant requested the Tartu County Court to discontinue O.T.’s coercive psychiatric treatment or replace his inpatient treatment by outpatient treatment. The County Court refused. On 5 March 2013 the Tartu Court of Appeal, on the applicant’s appeal, quashed the lower court’s decision for procedural reasons. It noted that the County Court had resolved the applicant’s request in written proceedings and in the absence of defence counsel and prosecutor whereas according to the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ) such a matter had to be examined in oral proceedings. The Court of Appeal referred the case to the County Court for a fresh examination. On 30 April 2013 the Tartu County Court granted legal aid to O.T. and a lawyer was appointed to assist him. The County Court re-examined the case at a hearing. It had at its disposal an opinion of a medical committee of 11 December 2012 according to which O.T.’s mental condition was without changes – substantial contact with him was inadequate, his answers to questions were scant, he replied “I don’t know” or “I don’t remember” or posed counter-questions and made incoherent statements. In the course of the interview his facial expression had become angry from time to time, he laughed inadequately, and dissimulated psychotic experiences. The head of the coercive treatment unit of the psychiatric clinic, heard at the County Court hearing, submitted that O.T. had not recovered. O.T. did not have an understanding of what was going on, did not adhere to the treatment, and had accused his mother of poisoning him. In such situation outpatient treatment was out of question. O.T. had had contacts with psychiatrists already from his early school years and he had been admitted for involuntary treatment on two earlier occasions. The prosecutor also considered that O.T.’s coercive treatment had to be continued. O.T., who was present at the court hearing, submitted that he did not wish to make any statements and that he did not understand anything. He inquired whether he was being taken somewhere. O.T.’s legal aid lawyer supported the applicant’s request for O.T.’s outpatient treatment. The applicant submitted that she wished to have her son at home and asserted that he would be taking the medicines. By a decision of 8 May 2013 the County Court dismissed the applicant’s request. It noted that there was no reason to put in doubt the reliability of the opinions of the medical committee or the head of the coercive treatment unit according to which O.T.’s coercive treatment had to be continued as he had not recovered and continued to be dangerous while he himself did not think that he was ill. The court concluded that O.T. had not recovered to such extent that it would be possible to terminate the coercive treatment or replace it by outpatient coercive treatment. The applicant appealed to the Tartu Court of Appeal. She argued that it had not been established that O.T. was dangerous for himself or for the society and that no independent expert assessment had been carried out. She also invoked Article 5 § 4 of the Convention. On 4 July 2013 the Tartu Court of Appeal dismissed the appeal. It considered that the applicant’s complaint about the lack of objectivity of the doctors who treated O.T. was unfounded and the County Court had rightly relied on the opinions of the medical committee and the head of the coercive treatment unit according to which O.T. had not recovered and continued to be dangerous. The Court of Appeal noted that carrying out an expert examination was mandatory in the proceedings related to the initial ordering of the coercive treatment (Article 86 § 1 of the Penal Code ( Karistusseadustik )). O.T.’s dangerousness and the premises for applying coercive treatment had already been established by a court on 6 May 2011. In the proceedings at hand – which concerned the discontinuation of inpatient coercive treatment or its replacement by outpatient treatment – it was not mandatory to obtain an expert opinion (Article 402-1 § 3 of the Code of Criminal Procedure). The Court of Appeal considered that in the situation where O.T.’s health condition and adherence to the treatment had not at all improved and in the opinion of the doctors the discontinuation of his inpatient treatment or its replacement by outpatient treatment was excluded ordering an expert examination would give no additional information about O.T.’s health condition. The applicant filed an appeal with the Supreme Court reiterating in substance her complaints made to the Court of Appeal. She also requested State legal aid as such an appeal had to be lodged by a lawyer but she had no means to hire one. By a decision of 16 September 2013 the Supreme Court dismissed the applicant’s request for legal aid finding that she could not have the right which she sought to protect. The Supreme Court noted that the applicant had requested legal aid for herself (and not for O.T.) but in her reasoning concerning the need to grant legal aid she referred to the protection of the rights of O.T. (primarily his right to liberty). Thus, the applicant had not explained why it was necessary to grant legal aid for the protection of her rights. The Supreme Court noted that legal aid had been granted to O.T. by the Tartu County Court’s decision of 30 April 2013. The Supreme Court also noted that the applicant did not have, in the proceedings at hand, rights that could be protected by granting her legal aid. Although the decisions concerning the refusal to discontinue O.T.’s coercive treatment inevitably interfered, to a certain degree, with the rights of his mother, an appeal in the interests of O.T. could have been filed by his legal aid lawyer and therefore there were no grounds for holding that the applicant would have a right to appeal against the Court of Appeal’s decision with the assistance of a lawyer. B.     Relevant domestic law The Code of Criminal Procedure ( Kriminaalmenetluse seadustik ) provides in the relevant part as follows: Article 402-1 – Alteration of administration of coercive psychiatric treatment “ (1)     Taking into consideration the opinion of a psychiatrist or medical committee having examined the person subject to coercive treatment, coercive inpatient treatment may be replaced by outpatient treatment ..., if such request is submitted by a person close to the person being treated ..., a legal representative, health care provider or counsel of such person... ... (3)     Alteration of the administration of coercive psychiatric treatment shall be decided by a ruling of the court of the location of the health care provider in the presence of a prosecutor and a criminal defence counsel. When coercive inpatient treatment is replaced by coercive outpatient treatment, the person subject to treatment and his or her guardian shall be also summoned to the session, but their failure to appear shall not hinder the hearing of the matter. If necessary, the court may involve other persons or order an expert assessment upon deciding on alteration of administration of coercive psychiatric treatment.” ...” Article 403 – Termination of administration of coercive psychiatric treatment “(1)     If a person recovers as a result of coercive psychiatric treatment administered to him or her or, according to the opinion of a psychiatrist or medical committee having examined the person subjected to coercive treatment, there is no need for further administration of coercive treatment, a court shall terminate the administration of coercive psychiatric treatment on the proposal of the health care provider. ... (4)     Taking into consideration the opinion of the psychiatrist or medical committee having examined the person subjected to treatment, a court may terminate the administration of coercive treatment if such request is submitted by a person close to the person being treated ..., his or her legal representative or counsel. (5)     Termination of the administration of coercive psychiatric treatment shall be decided by a ruling of the court of the location of the health care provider in the presence of a prosecutor and a criminal defence counsel. The person subject to treatment and his or her guardian shall be also summoned to a court session, but their failure to appear shall not hinder the hearing of the matter. If necessary, the court may involve other persons or order an expert assessment upon deciding on termination of the administration of coercive psychiatric treatment.” Regulation No. 35 of 26 August 2011 of the Minister of Social Affairs (“Requirements for the provider of psychiatric coercive treatment, requirements for psychiatric coercive treatment and the organisation of work of a health care provider upon the use of psychiatric coercive treatment ordered by court” ( Psühhiaatrilise sundravi osutajale esitatavad nõuded, psühhiaatrilise sundravi nõuded ja tervishoiuteenuse osutaja töökorraldus kohtu poolt määratud psühhiaatrilise sundravi kohaldamisel )) provides that patients of inpatient psychiatric treatment must undergo medical examination by a committee every six months. Patients of outpatient psychiatric treatment must undergo such examination at least once a year (section 3(6)). The medical committee comprises at least two psychiatrists. In the course of the examination the medical committee decides whether inpatient coercive treatment is to be replaced by outpatient treatment, whether outpatient coercive treatment is to be replaced by inpatient treatment or whether the coercive treatment of the patient needs to be continued, having regard to his or her state of mind and dangerousness (section 3(7)). COMPLAINTS The applicant complains that her son’s detention was in breach of Article   5 § 1 of the Convention. She argues that the dangerousness of her son was not established, measures less intrusive than involuntary placement were not considered, and the opinions given by a medical committee of the psychiatric clinic where his son is being held contained scant reasoning of a general nature. No independent and impartial expert examination of her son has been carried out. She further complains under Article 5 § 4 that her son has no possibility to take proceedings by which the lawfulness of his detention would be decided. The periodic assessment every six months by a medical committee of the clinic is insufficient, of formal nature and not of a judicial character. QUESTIONS TO THE PARTIES 1.     Was the applicant’s son deprived of his liberty in breach of Article 5 of the Convention? In particular, was it established by independent psychiatric assessment that the persistence of his mental disorder warranted his continued confinement at the time when the applicant requested the discontinuation of his compulsory inpatient treatment (see, for example, Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012; X v. Finland , no. 34806/04, § 169, ECHR 2012 (extracts); and Ruiz Rivera v. Switzerland , no. 8300/06, § 59 et seq., 18 February 2014)?   2.     Did the applicant’s son have at his disposal an effective procedure – according to domestic legislation or as a matter of practice – by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention (see, for example, Stanev , cited above, § 171)? Was the refusal to carry out a fresh and independent assessment of the health of the applicant’s son in breach of Article 5 § 4 (see, for example, Ruiz Rivera , loc. cit.)?