FIFTH SECTION

DECISION

Application no . 5081/11 Luk áš BUREÅ against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 9 October 2012 as a Committee composed of:

Mark Villiger , President, Karel Jungwiert , André Potocki , judges, and Stephen Phillips, Deputy Section Registrar .

Having regard to the above application lodged on 14 January 2011,

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, Mr Lukáš Bureš , is a Czech national who was born in 1985 and lives in Brno . He was rep resented before the Court by Ms Z. Durajová and Mr M. Matiaško , lawyers from the Mental Disability Advocacy Center in Brno .

The Czech Government (“the Government”) were represented by their Agent, Mr V. A. Schorm , of the Ministry of Justice.

A. The circumstances of the case

The applicant has been diagnosed as having a psycho-social disability. In the past, he had been treated in a number of psychiatric hospitals.

On 29 May 2007 he was released from treatment in an open ward of Brno- Černovice Psychiatric Hospital (“the Hospital”).

In the evening of 4 June 2007 the applicant came back to the Hospital and sought help for his continuing health problems. He expressed his wish to stay for treatment in an open ward.

According to the medical report drafted at his arrival, the applicant was hearing voices threatening to kill him, which was hard to bear, and he said that he had been contemplating suicide and needed help. He came to the Hospital because he felt secure there. The receiving doctor stated that the applicant was calm, oriented, smiling, had no tension or anxiety but had paranoia. She noted that suicidal intentions could not be ruled out, and found that the applicant needed to be tr eated in a closed ward. At 8.40 p.m. that evening the applicant was therefore transferred to the closed ward. He disagreed with his transfer.

On 6 June 2007 the applicant ’ s mother visited the Hospital and asked why her son had been detained.

In the afternoon, the applicant was examined by another doctor who found out that he still suffered from voice hallucinations but that the suicidal thoughts were not likely to be realised and thus “although release is not the best option, [the applicant] does not seem to be dangerous to himself or others”.

The applicant was released upon his written request ( revers ) that day at 10:05 p.m.

On 5 June 2007 the Hospital notified the Brno Municipal Court ( městský soud ) of the applicant ’ s involuntary hospitalization. The notification stated that “the person [i.e. the applicant] showed signs of a mental disorder and he endangered himself or others”.

On 6 June 2007 a senior clerk at the Municipal Court made a note on the file that the applicant had been released that day and she instructed the office to archive the file.

On 24 April 2009 the applicant complained with the Municipal Court that no decision had been taken follo wing the notification of 5 June 2007 and that accordingly the proceedings on the legality of his detention suffered from delays within the meaning of Act no. 6/2002 on Courts and Judges. In a letter of 2 July 2009 the Deputy President of the Municipal Court found his complaint unsubstantiated. He stated that since the applicant had been released within 24 hours of the notification to the court, no proceedings had been instituted, which was in accordance with an established judicial practice.

On 22 June 2009 the applicant lodged a request with the Brno Regional Court ( krajský soud ) under Act no. 6/2002 on Courts and Judges to set a time-limit for a procedural step. He argued that courts must decide on the legality of every involuntary detention in a psychiatric hospital and they cannot terminate the proceedings only because the detainee had been released.

On 23 July 2009 the Regional Court rejected the applicant ’ s request. It recalled that it had decided in the past that proceedings for review of the lawfulness of involuntary admission to a psychiatric hospital should continue even after the person had been released but that this opinion had been superseded by an opinion of the Supreme Court (no. Cpjn 29/2006 of 14 January 2009). Referring to the Court ’ s ca se-law it held that Article 5 § 4 of the Convention applied only when the person was still detained. Moreover, it was unclear whether this provision applied to proceedings for review of the lawfulness of involuntary admission to a psychiatric hospital or the proceedings for review of the lawfulness of continuing detention at all as they were not instituted upon the request of the detainee. It further noted that the rejection of his request did not bar the applicant from seeking just satisfaction under the State Liability Act (no. 82/1998).

The applicant lodged a constitutional appeal, claiming a violation of Articles 5, 6 and 14 of the Convention by the letter of 2 July 2009 of the Deputy President of the Municipal Court and the decision of the Regional Court of 23 July 2009.

On 29 June 2010 the Constitutional Court dismissed the appeal as manifestly ill-founded. Referring to a decision of the former Commission in Weijden v. Sweden (( dec .), no. 12778/87, 9 December 1988), it held that Article 5 § 4 of the Convention ceased to apply when the person had been released. It added that the applicant had not attempted to institute any proceedings for just satisfaction and, therefo re, no violation of Article 5 § 5 of the Convention could be found on the ground that he had been denied his right to claim just satisfaction for unlawful detention.

B. Relevant domestic law and practice

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.

On 20 April 2006 the Prague Municipal Court upheld a claim filed under Article 11 of the Civil Code. It awarded each claimant 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. The judgment was upheld by the Supreme Court (no. 30 Cdo 3126/2007).

On 15 October 2010 the Ústí nad Labem Regional Court considered the merits of a claim under Article 11 of the Civil Code against a hospital of a claimant alleging his unlawful detention at a psychiatric department. It rejected the claim not finding that the claimant had shown that the hospital had acted unlawfully.

In decision no. I. ÚS 336/98 of 30 Novem ber 1998 (reiterated on 16 July 2007 in decision no. I. ÚS 842/07) the Constitutional Court held that if the claimant considered that a psychiatric hospital had violated his rights by not informing a court within 24 hours of his detention he could have claimed his rights in civil proceedings against the hospital.

In its decision no. II. ÚS 1191/08 of 14 April 2009 the Constitutional Court found a violation of the claimant ’ s right not to be removed from the jurisdiction of his lawful judge. In that case the claimant lodged an action for protection of personality rights under Article 11 of the Civil Code against the State claiming just satisfaction for allegedly illegal deprivation of his legal capacity to act. The Constitutional Court , however, decided, that protection of personality rights under the Civil Code was applicable only in horizontal relations between private persons and that in vertical relations between an individual and the State the claim should be considered under the State Liability Act. Consequently, the action should have been heard in the first instance by a district court and not a regional court, which is the first-instance court for actions under Article 11 of the Civil Code.

COMPLAINTS

The applicant complained under Article 5 § 1 of the Convention that he had been deprived of his liberty even though it had not been reliably established that he had been a person of unsound mind and that the detention had not been in accordance with law and lawful.

Further, relying on Article 5 § 4 of the Convention the applicant complained that there had been no judicial review of his detention in the Hospital.

Lastly, under Article 5 § 5 of the Convention he complained that he had had no enforceable right to compensation under domestic law for violations of his right to liberty.

THE LAW

1. The applicant complained that he had been detained in the Hospital without it being shown that he had been a person of unsound mind and without any judicial review in violation of Article 5 § 1 of the Convention.

The Government maintained that the applicant had failed to exhaust domestic remedies as he had not instituted civil proceedings for damages against the Hospital under Article 11 of the Civil Code.

The applicant argued that that remedy was not effective in practice, not least because the power of detention was an exercise of governmental authority for which the State should be responsible and it was not possible to lodge such an action against the State as ruled by the Constitutional Court (see Relevant domestic law and practice, above).

The Court reiterates that 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). However, an existence of mere doubts as to the prospects of success of a particular remedy, which is not obviously futile, is not a valid reason for failing to exhaust that domestic remedy (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).

The Court first notes that the applicant attempted to bring about a decision on the lawfulness of his detention in the proceedings under Article 191b of Code of Civil Procedure by his motions lodged on 24 April 2009 and 22 June 2009. However, at that time, it was established case-law of the domestic courts that these proceedings could not continue if the individual was no longer in detention (see the opinion of the Supreme Court no. Cpjn 29/2006 of 14 January 2009 in The circumstances of the case, above). Accordingly, the remedy used by the applicant was not an adequate remedy for his complaint for the purpose of Article 35 § 1 of the Convention. 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.

The Court notes that the right to liberty is an integral part of the protection of personality under Article 11 of the Civil Code (see also Ťupa v. the Czech Republic , no. 39822/07 , § 40, 26 May 2011). Generally, in proceedings brought under that provision the compliance of his detention with his right to liberty would have been assessed and the actions of the Hospital could have been found unlawful, and just satisfaction awarded to the applicant. Such a remedy is therefore, prima facie , effective for the purposes of Article 35 § 1 of the Convention.

As to the applicant ’ s contention that such an action was not effective, the Court observes that at least in one decision a domestic court (the Ústí nad Labem Regional Court on 15 October 2010) examined the merits of this type of action against a hospital in similar circumstances as that of the applicant. Further, in two decisions the Constitutional Court held that persons claiming violations of their rights while detained by a psychiatric hospital could bring a civil suit against the hospital.

In view of these decisions, the Court considers that the applicant ’ s arguments cannot be seen as anything more than mere doubts as to the effectiveness of this type of action. The applicant has failed to submit any example of a decision, where a domestic court rejected a claim in similar circumstances on the grounds that Article 11 of the Civil Code was not applicable.

Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. Relying on Article 5 § 4 of the Convention the applicant complained that the courts had refused to decide on the lawfulness of his admission to the Hospital.

The Court reiterates that A rticle 5 § 4 of the Convention does not deal with remedies which may serve to review the lawfulness of a period of detention which has already ended, including, in particular, a short-term detention. In Slivenko v. Latvia [GC], no. 48321/99, § 158, ECHR 2003 ‑ X, the Grand Chamber did not examine the claim under Article 5 § 4, when the detention lasted 30 hours, because “ the applicants were released speedily before any judicial review of the lawfulness of their detention could have taken place” and “it is not for the Court to determine in abstracto whether, had this not been so, the scope of the remedies available in Latvia would have satisfied the requirements of Article 5 § 4 of the Convention.” The Court reached a similar conclusion in Fox , Campbell and Hartley v. the United Kingdom , 30 August 1990, § 45, Series A no. 182, where the period of detention was 44 hours.

The Court finds that the same applies in the present case, in which the applicant made no attempt to bring proceedings before his release, and in which he was released after 50 hours. In these circumstances, Article 5 § 4 of the Convention did not require the Czech legal system to make remedies available to the applicant.

The Court also notes that by his motio ns of 24 April 2009 and 22 June 2009, and also by his constitutional appeal challenging the rejections of these motions, the applicant did not attempt to institute any new proceedings in which the lawfulness of his detention could be decided. These were motions under Act no. 6/2002 on Courts and Judges to speed up proceedings, which, under the domestic law, were not taking place. Consequently, Article 5 § 4 of the Convention cannot apply to these proceedings instituted by the applicant ’ s motions.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Lastly, the applicant complained that he could not have claimed compensation before domestic courts in violation of Article 5 § 5 of the Convention.

The Court reiterates that the applicability of Article 5 § 5 of the Convention presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Court ( see N.C . v. Italy [GC], no. 24952/94, § 49, ECHR 2002 ‑ X) . Referring to its previous conclusions under Article 5 §§ 1 and 4 of the Convention, it finds that paragraph 5 of Article 5 is not applicable in the present case.

This part of the application is therefore incompatible ratione materiae with the provisions of the Convention wit hin the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Mark Villiger Deputy Registrar President