Communicated on 19 March 2015

FIFTH SECTION

Application no. 80365/13 K.Å . against the Czech Republic lodged on 21 March 2014

STATEMENT OF FACTS

1 . The applicant, K.Å ., is a Czech national, who was born in 1943 and lives in Prague.

A. The circumstances of the case

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

1. Background

2 . In the 1950s the applicant ’ s father was a political prisoner in the former Czechoslovakia and the applicant considers herself t o have been a victim of persecution by its regime and secret police ( Státn í bezpečnost - “ StB ”).

3 . Since 2000 the applicant was involved in a private-law dispute comprising several sets of proceedings concerning her rights as of a tenant to a flat in which she resided. She eventually lost and was evicted as a result. Her adversary in those proceedings was represented by A., a practicing lawyer.

4 . As would be later established by courts, between 30 January and 18 May 2009 the applicant made five written submissions to the Police, in which she suggested that A. had been an informer and a collaborator of the StB . On 1 April 2009 she uttered similar assertions on her publically accessible blog.

2. Criminal proceedings

5 . A t an unspecified time the applicant wa s charged and later indicted to stand trial on the charge of slander within the meaning of Article 206 §§ 1 and 2 of the Criminal Code (Law no. 140/1961 Coll., as applicable at the relevant time – “the 1961 CC”) on the ground of a suspicion that she had been making the above utterances about A. despite knowing, at least since 28 January 2009, that the person on the list of StB collaborators kept by the respective archives bearing the same name as A. was in fact not A. and that A. had been issued a vetting clearance ( lustrační osvědčení ) to the effect that he had not been an StB member or collaborator.

6 . In the context of the applicant ’ s prosecution, an outpatient examination of her mental health was ordered. As she resisted, an inpatient observation was ordered and forcibly took place, during which the applicant was restrained and medicated (see below).

7 . On 17 March 2011 the Prague II District Court ( Obvodní soud ) found the applicant guilty as charged.

However, relying on Articles 25 of the 1961 CC and 99 §§ 1 and 4 of the Criminal Code of 2009 (Law no. 40/2009 Coll. – “the 2009 CC”), it refrained from imposing a penalty ( trest ) and – instead - ordered that the applicant be subjected to inpatient psychia tric treatment by way of a protective measure ( ochrann é léčení ).

8 . In ruling on the consequences of the applicant ’ s conviction, it took into account inter alia evidence from B., a sworn expert in psychiatry. That expert had examined the applicant during her inpatient observation and concluded that she suffered from an “orga nic personality disorder” or an “organic delusional syndrome”. It manifested itself by a clear change in habitual patterns with abnormal demonstrations of emotions, needs and impulses. The expert also considered that “the applicant ’ s treatment should be aimed above all at her social convalescence, thus at having her refrain from socially harmful behaviour”.

B. concluded that the applicant ’ s cognitive and volitional capacity had been substantially reduced, but not extinct. In the original written report, he recommended that the applicant be treated as an outpatient. However witnessing her conduct at a hearing before the District Court, he impromptu altered his recommendation to inpatient treatment, having concluded that the applicant was very likely to carry on her behaviour and that outpatient treatment was not likely to succeed in view of the applicant ’ s dismissive attitude.

In his view, the applicant ’ s stay at liberty presented a danger and “the only way how to protect [A.] from the unlawful actions by the applicant was to order her protective psychiatric treatment”.

9 . The District Court also took evidence from four other mental health specialists who had seen the applicant in the past in connection with proceedings for establishing her as a legal guardian to her nephew. None of this evidence attested to any mental disorder on her part and she had eventually been appointed as guardian.

10 . Moreover, the District Court found that the applicant ’ s offence had been “considerably dangerous for the society”, because it had been committed over a longer period of time and partly despite the fact that charges for it had already been brought against the applicant. It further took into account that the applicant had no criminal record, was providing care for her nephew, and was in a complicated situation following her eviction. Her conduct could only be explained by her reduced mental capacity, which was why the court concluded that “protection of the society and correction of the applicant” would better be served by a protective treatment rather than by a penalty.

11 . On 17 May 2011 the Prague Municipal Court ( Městský soud ) dismissed the applicant ’ s appeal and on 12 January 2012 the Supreme Court ( Nejvy šší soud ) declared her appeal on points of law inadmissible.

12 . The applicant also twice unsuccessfully requested that her trial be reopened. In dealing with one of these requests, on 22 September 2011, the Municipal Court observed that:

“ ... it is not very clear from the reasoning [in the judgment of 17 March 2011] why the court ordered inpatient psychiatric treatment, as it does not contain any more specific assessment of why [the applicant ’ s] remaining at large would be so dangerous as to warrant her isolation in a psychiatric hospital against her obvious resistance. The general reasoning, relying solely on one expert opinion as a justific ation for such a tough measure ... especially in relation to a non-violent offence attracting a maximum penalty of imprisonment for one year, raises concerns that the District Court may have proceeded rather mechanically, ... , wi thout taking into account that ... , being a doctor of medicine, the expert may be limited by his profession, or concentrated on his own mission, while not taking into account other factors eminently important to a judge ’ s decision (e.g. proportionality of the measure of deprivation of liberty to the criminal offence and the personality of the offender). The court did not explain why it considered proportional to order inpatient psychiatric treatment of an almost seventy-year old woman of previously good character with no tendency to physical violence, who committed a petty offence under difficult life circumstances and influence of a delusional disorder ... . In this connection the District Court may perhaps also be reminded that inpatient psychiatric treatment (in particular if ordered in respect of a resisting and refusing patient) is a very radical interference with the way of life of the treated person, the consequences of which for the refusing offender may approximate to conditions of deprivation of liberty during the service of a prison sentence.”

13 . On 19 August 2013 the Constitutional Court ( Ústavní soud ) rejected the applicant ’ s constitutional complaint, by which she had complained about a violation of her rights to liberty and access to a court. In particular, she had argued that her conviction had been arbitrary, that her compulsory inpatient psychiatric treatment had been contrary to the principles of proportionality and subsidiarity, and that her appeal on points of law had been arbitrarily rejected.

14 . The Constitutional Court found her complaint to be manifestly ill ‑ founded. Nevertheless, it observed that:

“It is however appropriate to record that the manner of how the final expert conclusion was formed, as well as the appearance of how the form of the ordered protective treatment was justified, give rise to non-negligible misgivings, and from the constitutional point of view the outcome is at the very borderline of what is acceptable; [the outcome] having been toned down by the fact that the situation so created has already come to an end.”

15 . The Constitutional Court ’ s decision became enforceable on 23 September 2013.

3. Hospitalisation

16 . In the context of her prosecution, the applicant was hospitalised in the Bonice Psychiatric Institution: between 25 Many and 25 June 2010, between 26 August 2011 and 31 January 2012, and between 1 March and 9 May 2012.

The first of these periods consisted of the applicant ’ s observation, the remaining two of the protective treatment ordered.

It was eventually discontinued by an order of the Prague VIII District Court of 9 May 2012, following a recommendation by the institution.

17 . On 19 November 2012, following the applicant ’ s complaint, the Ombudsperson of the Czech Republic issued a report, in which he concluded that the institution had erred, inter alia , ( i ) in administering pharmacotherapy to the applicant despite her refusal during the period of her observation; (ii) in applying restraints and treating her very harshly during her admission for her first and second hospitalisation, and (iii) in administering pharmacotherapy to the applicant despite her refusal at least until 1 April 2012 because such involuntary treatment had been short of any legal basis.

18 . In a letter to the applicant of 7 December 2012, with reference to the Ombudsperson ’ s report, the institution presented its apology for having medicated the applicant against her will (at least until 1 April 2012) and for having restrained her during her observation in 2010.

B. Relevant domestic law and practice

1. 1961 CC

19 . Article 25, in so far as relevant, provides:

“The court may also waive punishment of an offend er if he committed a crime in a state of diminished sanity, and the court is of the opinion that the protective treatment ... which it concurrently orders will ensure the offender ’ s rehabilitation and the protection of society more effectively than punishment. ... ”

20 . Article 206 reads:

“Slander

1. A person who communicates false information which can seriously endanger another person ’ s respect among his fellow citizens, in particular damaging his position in employment, and relations with his family, or causing him some other serious detriment, shall be sentenced to a term of imprisonment of up to one year.

2. An offender shall be punished by a term of imprisonment of up to two years or prohibition of a specific activity, if he commits an act under sub-paragraph (1) by using the press, film, radio or TV broadcasting or some other similarly effective method.”

2. 2009 CC

21 . The relevant part of Article 99, in conjunction with Article 47 § 1, stipulates:

“Protective treatment

1. A court shall order pro tective treatment in the cases ... [where it refrains from imposing a penalty because the offender committed the offence in a condition of diminished sanity ... and finds that the protective treatment ensures the offender ’ s rehabilitation and the protection of the society better than a penalty], or if an offender is not criminally liable because of insanity and it would be dangerous if he remained at large.

...

4. According to the nature of the illness and the avai lable therapeutic capacities, a court orders the protective treatment as inpatient or outpatient. ...

...

6. A protective treatment shall last as long as needed in order to fulfil its purpose, however at most two years. Should the treatment not be completed in this period, a court shall decide on its extension prior to its expiry. Such an extension may be repeated, every time by at most two years. Otherwise the court shall decide on release from the treatment ...

3 . Statistics

22 . In 2011 in the Czech Republic, charges of defamation were brought in twenty-four cases and nineteen persons were indicted. No unconditional prison sentence was handed down. In sixteen cases a conditional prison sentence being imposed. One person was sentenced to a fine and in two cases the courts refrained from imposing any penalty at all.

23 . In 2012, for the same offence, charges were brought in eighteen cases and seventeen persons were indicted. In one case an unconditional prison term of up to one year was imposed, sixteen conditional prison sentences were handed down, two fines were imposed, in one case public works were ordered, and in one case it was refrained from imposing any penalty.

COMPLAINTS

24 . The applicant complains under Article 5 § 1 ( e) of the Convention that her detention was unlawful and arbitrary in that the applicable law lacked the requisite certainty; she had not been reliably shown to be of unsound mind; her mental disorder was not of such a kind and de gree as to warrant her compulsory confinement; and her detention was disproportionate.

25 . The applicant also complains under Article 5 § 5 of the Convention that she has been denied an enforceable right to compensation in respect of her detention in alleged contravention of its Article 5 § 1 ( e).

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention?

2. Did the applicant have an effective and enforceable right to compensation for her detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention (see, for example, Crabtree v. the Czech Republic , no. 41116/04 , §§ 46 - 53, 2 5 February 2010 )?