Communicated on 22 January 2016

FOURTH SECTION

Application no. 78103/14 Maria da Glória FERNANDES DE OLIVEIRA against Portugal lodged on 4 December 2014

STATEMENT OF FACTS

The applicant, Ms Maria da Glória Fernandes de Oliveira, is a Portuguese national who was born in 1937 and lives in Ceira . She is represented before the Court by Mr J. Pais do Amaral , a lawyer practising in Coimbra.

A. The circumstances of the case

The case concerns the suicide of the applicant ’ s son, A.J., who was born in 1964. He had a history of mental disorders and of alcohol and drug addiction, and since 1993 had been hospitalised several times in the Sobral Cid Psychiatric Hospital (“the HSC”) in Coimbra. During at least two periods of his hospitalisation, from 12 December 1999 to 14 January 2000 and from 2 to 17 April 2000, A.J. had left the HSC premises several times and had sometimes gone to the applicant ’ s house. The facts of the case, as submitted by the applicant and as they appear from the documents on file, may be summarised as follows.

1. Death of the applicant ’ s son

On 1 April 2000 A.J. was admitted to the HSC because he had attempted to commit suicide.

On 25 April 2000 A.J. went home for the weekend to spend Easter with the applicant and other members of his family. At around 11 p.m. the applicant took A.J. to the emergency ward of the HSC because he had drunk a large amount of alcohol. According to the observation record, the emergency services considered that A.J. had behaved recklessly during the weekend because he had got drunk. The on-duty staff also wrote in the record that A.J. had a history of mental weakness, depressive episodes and recurrent suicide attempts, which had not been observed during that weekend. A.J. was subsequently sent to the HSC ward in which he was hospitalised.

On 26 April 2000 A.J. was kept under medical observation for the whole day, and his state of health improved. He got up to dine and welcome visiting family members.

On 27 April 2000 the hospital staff noted that between 8 a.m. and 4 p.m. A.J. ’ s behaviour had been calm and he had been walking around the HSC building. He had had lunch and an afternoon snack.

At around 4 p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine.

At around 7 p.m. it was noticed that A.J. had not appeared for dinner, and the head nurse was informed of his absence. The hospital staff then initiated searches within the HSC building in order to locate him.

At around 8 p.m. the applicant called the hospital again and was told that A.J. had not shown up for dinner.

At some time between 7 p.m. and 10 p.m. the hospital reported A.J. ’ s disappearance to the National Republican Guard ( Guarda Nacional Republicana ) and the applicant.

At a non-specified time, A.J. had left the hospital premises and followed a footpath towards the applicant ’ s house. He committed suicide by jumping in front of a train a few metres from the HSC.

2. Domestic proceedings against the hospital

On 17 March 2003 the applicant lodged a civil action ( domestic proceedings no. 251/2003 ) with the Coimbra Administrative Court ( Tribunal Administrativo do C í rculo de Coimbra ) against the HSC under the State Liability Act ( ac çã o de responsabilidade civil extracontratual por ato de gest ã o pública ), seeking pecuniary and non-pecuniary damage of 100,403 euros (EUR).

The applicant claimed that from 1993 to 2000 her son had been treated at the HSC for mental disorders. He had been hospitalised on 1 April 2000 because he had attempted to commit suicide. The fact that her son had been able to leave the hospital premises had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicidal attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital premises. She further claimed that the HSC premises should have had fencing around its boundaries in order to prevent patients from leaving.

On 25 April 2011 the Coimbra Administrative Court ruled against the applicant. It found that although her son had been suffering from a mental disorder, there was no causal link between his wholly unexpected suicide and an alleged violation of the hospital staff ’ s duty of care. It noted, in particular, that the applicant ’ s son had suffered from a psychiatric pathology which had never been properly diagnosed, either because the symptoms were complex or because he was addicted to alcohol and drugs. In this regard, it pointed out that over the years the applicant ’ s son had been diagnosed with schizophrenia and depression. However, only after his death and as a consequence of an expert opinion requested during the proceedings was there an agreement that he had been suffering from a severe personality disorder. The court established that he had last been hospitalised after a suicide attempt. However, it considered that despite the possibility that people diagnosed with mental diseases such as that of the applicant ’ s son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different from the preceding days. The court thus concluded that the hospital staff could not have foreseen the suicide of the applicant ’ s son and that his behaviour had been absolutely unexpected and unpredictable. With regard to the applicant ’ s argument that the hospital should have supervised her son more effectively and erected fences or other barriers around the hospital premises, the court pointed out that the current paradigm in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled patients. In the same way, any supervision of patients had to be carried out very discretely. Therefore, the court found that there had been no omission in the duty of care on the part of the hospital.

On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law.

On 26 September 2012 the Attorney General ’ s Office attached to the Administrative Supreme Court, called upon to issue an opinion on the appeal, held that the first-instance judgment should be reversed. In their opinion, given that A.J. ’ s medical record stated that he had attempted to commit suicide on different occasions and considering that his last hospitalisation had been because of a suicide attempt, a new attempt to commit suicide was likely and should have been foreseen. They noted that the hospital had failed to implement a supervision regime capable of preventing the applicant ’ s son from leaving the hospital premises.

On 29 May 2014 the Administrative Supreme Court dismissed the applicant ’ s appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant ’ s son would try to commit suicide, namely by leaving the hospital premises. The Supreme Court took into account that during previous periods of hospitalisation the applicant ’ s son had also left the hospital premises, and that no link had been established between those “escapes” and a particular risk of suicide.

In a dissenting opinion, one of the judges argued that the hospital should have secured the premises in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed patients to leave easily, thus breaching those duties. As such, that omission had been the cause of the applicant ’ s son “escape” and suicide.

B. Relevant domestic law and practice

1. Legislative Decree no. 48051 of 21 November 1967

Legislative Decree no. 48051, in force at the time the proceedings were instituted by the applicant, governs the State ’ s non-contractual civil liability. It contains the following provisions of relevance to the instant case:

Article 2 § 1

“The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence ( culpa ) by their agencies or officials in the performance of their duties or as a consequence thereof.”

Article 4

“1. The negligence ( culpa ) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code.”

Article 6

“For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.”

In accordance with the case-law concerning the State ’ s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.

2. Portuguese Civil Code

The relevant provisions of the Code read as follows:

Article 487

“1. It is for the injured party to prove liability for damage through negligence ( culpa ), unless there is a legal presumption of it.

2. In the absence of any other legal criteria, negligence is assessed with reference to the diligence of the bonus pater familias , given the circumstances of the case.”

3. Case-law of the Supreme Court of Justice

In its judgment of 25 July 1985, the Supreme Court of Justice analysed the duty of supervision of mentally ill patients who are hospitalised. In its judgment the Supreme Court held that whenever a mentally ill patient was hospitalised and receiving therapy, the hospital had an obligation to comply with its medical and supervision duties. In the case at hand, the Supreme Court considered that the hospital had omitted to fulfil that obligation by allowing a mentally disabled patient to leave the premises without a hospital discharge and by not making all due efforts to secure his immediate return.

C. Relevant international law

The United Nations Convention on the Rights of Persons with Disabilities (adopted by the United Nations General Assembly on 13 December 2006, Resolution A/RES/61/106) is designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity. It was ratified by Portugal on 23 September 2009. The relevant parts of the convention read as follows:

Article 10

Right to life

“States parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.”

Article 14

Liberty and security of a person

“...

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”

COMPLAINTS

The applicant complains under Article 2 of the Convention that the authorities failed to protect the life of her son and were responsible for his death. In particular, she claims that the hospital was negligent in the care of her son. In particular, it did not supervise him sufficiently and the hospital premises did not provide adequate protection to prevent him from leaving.

Under Article 6 the applicant further complains about the length of the civil proceedings against the hospital.

QUESTIONS TO THE PARTIES

1. Having regard to the authorities ’ positive obligations to take measures to protect an individual, in particular circumstances, from himself (see, for example, Mikayil Mammodov v. Azerbeijan , no. 4762/05, 17 December 2009; Reynolds v. the United Kingdom , no. 2694/08, 13 March 2012; Osman v. the United Kingdom , 28 October 1998, Reports of Judgments and Decisions 1998-VIII; Renolde v. France , no. 5608/05, ECHR 2008 (extracts); Haas v. Switzerland , no. 31322/07, ECHR 2011; Arskaya v. Ukraine , no. 45076/05, 5 December 2013; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, 17 July 2014), has Article 2 of the Convention been breached in the present case? In particular, did the authorities take all necessary precautions to prevent the applicant ’ s son from leaving the psychiatric hospital and committing suicide, in line with the requirements of Article 2 of the Convention? Was it foreseeable that he was at risk of committing suicide, and did the domestic authorities do everything possible to prevent that risk from materialising?

2. Having regard to the procedural protection of the right to life, was the manner in which the domestic authorities conducted the civil proceedings in breach of Article 2 of the Convention? In particular, given the length of the civil proceedings against the hospital, was their positive obligation to set up an effective judicial system respected?

3. The parties are requested to elaborate on whether the applicant ’ s son was voluntarily or involuntarily hospitalised on the different occasions particularly on 1 April 2000, and to clarify the supervision regime applied to him.