SECOND SECTION

DECISION

Application no . 71287/12 Mónika VERBIÁS against Hungary

The European Court of Human Rights ( Second Section ), sitting on 15 April 2014 as a Committee composed of:

Helen Keller , President, András Sajó , Egidijus Kūris , judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 10 October 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Mónika Verbiás , is a Hungarian national, who was born in 1970 and lives in Budapest . She was represented before the Court by Mr D. Karsai , a lawyer practising in Budapest .

The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice .

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant has a psychiatric disorder (apparently schizophrenia) and, prior to the introduction of the application, had been hospitalized on numerous occasions.

On 15 May 2012 the applicant sought help at the Psychiatric Department of Péterfy Sándor Hospital in Budapest , complaining of insomnia and anxiety attacks. The Department requested the Pest Central District Court to order the applicant ’ s compuls ory institutional treatment.

On the same day the Pest Central District Court held a hearing. For the purposes of the proceedings, a guardian ad litem was appointed for the applicant. During the hearing, the court ordered a forensic psychiatrist to prepare an expert medical opinion on the applicant ’ s condition. It also heard the applicant in person.

On the same day the District Court approved the applicant ’ s compulsory institutional treatment. According to the reasoning, which contained references to the opinions of the psychiatrist of the Department and of the expert, the applicant represented a ‘ danger ’ , although the decision did not clarify in which manner she did so.

The applicant ’ s guardian ad litem accepted the decision, but the applicant appealed to the Budapest Court of Appeal.

On 24 September 2012 the Court of Appeal dismissed the applicant ’ s appeal and upheld the first-instance decision, endorsing in essence its reasoning.

The applicant did not file a petition for review with the Kúria (Supreme Court).

COMPLAINT

The applicant complained under Article 5 § 1 (e) of the Convention that her involuntary hospitalisation in a psychiatric department had not been justified, because she had not been reliably shown to exhibit dangerous behaviour and thus her detention had not been lawful.

THE LAW

The applicant complained that her psychiatric detention had been unjustified, in breach of Article 5 § 1 (e) of the Convention. She submitted that fulfilment of the “dangerousness” criterion, requisite under domestic law for compulsory psychiatric treatment, had not been properly demonstrated in her case by the domestic courts. There had been no element in the case showing that the absence of treatment might “represent a serious danger to his or others ’ life and limb or health” for the purposes of section 188(b) of the Health Act.

Concerning the admissibility of the application, the Government submitted that the applicant should have filed a petition for review with the Kúria under section 270 of the Code of Civil Procedure. Moreover, she could have filed a constitutional complaint under section 27 of the Act on the Constitutional Court challenging the constitutionality of the decision of the Budapest Regional Court. However, she did not avail herself of either of those legal avenues and therefore she had not exhausted domestic remedies. Moreover, they also disputed the applicant ’ s arguments on the merits.

The applicant contested these views, arguing in particular that a petition for review is an extraordinary remedy, and only available in restricted cases; thus, the Kúria could have reviewed her forced psychiatric treatment only from a strictly legal point of view, but could not – since it was bound by the facts as established by the lower-instance courts – have reconsidered the underlying facts, including the applicant ’ s mental state.

Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court considers that it is not necessary to address in the instant case the parties ’ arguments concerning the effectiveness of a constitutional complaint, since the application is in any event inadmissible for the following reasons.

The Court observes that the applicant did not lodge a petition for review with the Kúria following the decision of the Budapest Court of Appeal.

The Court has already held that a petition for review is, for the purposes of Article 35 § 1 of the Convention, an ordinary remedy to be exhausted in civil matters (see, mutatis mutandis , Béla Szabó v. Hungary , no. 37470/06 , § 16, 9 December 2008).

It is true that in the case of Plesó v. Hungary ((dec.), no. 41242/08 , 17 January 2012), which also concerned psychiatric detention, the absence of a Supreme Court review was not held against the applicant. However, in that application the Court reached that conclusion in view of the fact that Mr Plesó had been represented by a court-appointed guardian ad litem , who, by his failure to pursue a petition for review despite the explicit instructions of the applicant, had effectively deprived him of the possibility to pursue a remedy; moreover, this guardian had misled the applicant about the pursuit of that remedy until after the statutory time-limit had expired.

However, the Court cannot identify such special circumstances in the present case. Contrary to the case of Plesó , the Court is therefore satisfied that the non-submission of the applicant ’ s complaint to the Kúria was solely due to the course of action chosen by the applicant herself.

It follows that the application must be declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Abel Campos Helen Keller              Deputy Registrar President