Communicated on 13 January 2014

FOURTH SECTION

Application no. 39693/12 B.K. against Finland lodged on 18 June 2012

STATEMENT OF FACTS

The applicant, Mr B.K. , is a Finnish national who was born in 1946 and lives in Kuopio. He is represented by Mr Ilkka Laari, a lawyer practising in Kuopio.

A. The circumstances of the case

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

Background and events giving rise to the criminal proceedings

The applicant is a violin teacher. He has 10 children with his late wife. He is religious, following the ideas of Emanuel Swedenborg, a Swedish philosopher and Christian theologian whose books he has translated into Finnish (some of them during his stay in a mental hospital).

In November 2006 the applicant shot his wife while he was severely intoxicated by alcohol. He claimed that it was an accident and due to the abuse of alcohol, for otherwise he had no intention of killing his wife. He was charged with murder and apparently also with assault, menace and fire ‑ arm offence. On 27 February 2007 the District Court ( käräjäoikeus, tingsrätten ) ordered the applicant to undergo a psychiatric assessment under Chapter 17 , Article 45 , of the Code of Judicial Procedure ( oikeudenkäymiskaari , RättegÃ¥ngs Balk ) and section 16(1) of the Mental Health Act ( mielenterveyslaki , mentalvÃ¥rdslagen ) , and adjourned the proceedings for the assessment to take place in Niuvanniemi State mental hospital in summer 2007.

On 31 August 2007 the District Court considered that the applicant was guilty of manslaughter, but that he was not criminally liable for his action due to his mental illness.

On 30 January 2009 the Court of Appeal ( hovioikeus, hovrätten ) upheld the judgment, but qualified the crime as murder.

The initiation of the applicant ’ s involuntary care

On 5 July 2007 the National Forensic Medical Authority ( t erve ydenhuollon oikeusturvakeskus , rättsskyddscentralen för hälsovården ) diagnosed the applicant as suffering from delusional disorder, narcissistic personality disorder and alcohol addiction. His behaviour was considered violent due to the illness. The National Forensic Medical Authority ordered the applicant to undergo involuntary psychiatric treatment under section 8 of the Mental Health Act. The applicant stayed in the closed ward of Niuvanniemi Hospital.

The applicant ’ s state of health and the need for care were subsequently assessed every six months, as required by the domestic law, starting on 3 January 2008. Each time, it was considered that the applicant was in need of treatment, even though he opposed the measure. The decision s to continue the applicant ’ s care were submitted for confirmation to the Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ). The applicant also appealed against all the care order decisions both to the Administrative Court and to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) , but they rejected all his appeals and endorsed the care order each time.

The applicant considered himself mentally well, without any real history of mental illness, violence or need for treatment. He had visited a psychiatrist a few times decades before, but he did not consider that he had any serious mental illness. However, he did accept that he had a drinking problem. He considered that the opinion of his doctors was partial as they did not understand or accept his religious and political views. He considered himself persecuted due to his opinions and on several occasions requested an objective assessment of his condition other than that made at the treating hospital. He also requested statements and letters from people he knew about his personality, beliefs and condition. He considered his own need for treatment to be minor, but was willing to accept open care treatment measures.

Continuation of the applicant ’ s involuntary care

The proceedings which are the subject of the application started on 7 April 2011 when the head physician of the hospital decided to continue the applicant ’ s involuntary care under sections 8 and 17 of the Mental Health Act. The decision regarding involuntary care concerns a maximum period of six months: before the end of this period a new assessment of the patient ’ s mental health must be made in order to determine whether the conditions for involuntary care are still met. Therefore the period of the applicant ’ s involuntary care, according to the decision of 7 April 2011, ended on 6 October 2011.

The decision was subject to confirmation by the Administrative Court in accordance with the relevant legal provision. The applicant also appealed to the same court. The applicant requested an objective medical opinion and an oral hearing.

On 14 September 2011 the Administrative Court held an oral hearing where the applicant was heard in person. He also called to testify one witness, a psychiatric nurse, and Ms H., a good friend whom he had known for a long time.

On 22 September 2011 the Administrative Court rejected both his appeal and his request for an objective medical opinion and confirmed the decision to continue the involuntary care. It considered that the applicant ’ s right under Article 5 § 4 of the Convention had not been violated by not allowing him to be assessed by another physician than the one currently treating him. As the composition of the Administrative Court included one member with medical expertise, the Administrative Court considered that this was a sufficient guarantee for the applicant. Moreover, the applicant still suffered from the same diagnosed psychiatric illnesses and was still in denial about his state of health. Less intrusive care was hence not considered sufficient.

The applicant appealed to the Supreme Administrative Court, but on 27 December 2011 his appeal was rejected. The Supreme Administrative Court accepted the reasoning of the Administrative Court.

It appears that in June 2011 the applicant escaped from hospital and was caught in Denmark a few days later after he had a car accident in poor weather conditions. The applicant said that he was heading for Spain or Germany to obtain an objective medical assessment and possibly seek asylum against arbitrary involuntary care. He was taken back to Niuvanniemi hospital.

On 5 October 2011 the head physician of the hospital decided to continue the applicant ’ s care on the basis of the observation of the applicant ’ s state of mental health made by a hospital psychiatrist on 4 October 2011. The period for involuntary care ran until 4 April 2012.

On 15 December 2011 the Administrative Court confirmed the decision and rejected the applicant ’ s appeal and his requests for an oral hearing and independent medical assessment.

On 10 April 2012 the Supreme Administrative Court upheld the judgment.

On 5 April 2012 the head physician of the hospital decided that the applicant ’ s care was to be continued because he still needed treatment. The treatment period ended on 4 October 2012.

On 15 June 2012 the decision was confirmed by the Administrative Court and the applicant ’ s appeal was rejected. The applicant appealed to the Supreme Administrative Court, but there is no information about the result of that appeal.

On 2 October 2012 the applicant ’ s physician, specialised in psychiatry, again assessed the applicant ’ s state of health and need for care and recommended that his care be continued as there had been no improvement. The applicant was in denial about his illness and the need for care and it was not likely that he would commit to open-care measures.

On 3 October 2012 the head physician of the hospital decided to continue the applicant ’ s involuntary care until 2 April 2013.

The applicant appealed to the Administrative Court, arguing as before that he was neither delusional nor dangerous and that his mental health should be assessed by an independent physician outside the treating hospital.

On 22 November 2012 the Administrative Court considered, referring to the judgment of the Court on 3 July 2012 in the case of X v. Finland , that the applicant had requested an independent assessment which had not been provided and that there was therefore a considerable flaw in the proceedings. Thus it quashed the decision of the head physician.

On 26 November 2012 the head physician of Niuvanniemi hospital made a request to the National Institute for Health and Welfare ( Terveyden ja Hyvinvoinnin laitos, Institutet för Hälsa och Välfärd - previously the National Forensic Medical Authority ) that the applicant be committed to involuntary care under section 17 of the Medical Health Act.

On 28 November 2012 the hospital invited a general physician, M., from the municipal health centre to assess the applicant ’ s condition. He wrote the observation note on the applicant for admission to involuntary care, considering him to be in need of such care. Another physician at Niuvanniemi hospital wrote a statement concerning the assessment of the applicant ’ s state of health and need for care.

On 30 November 2012 the head physician of the hospital decided to commit the applicant to involuntary care in accordance with sections 8 and 11 of the Mental Health Act. That decision could remain in force for a period of three months, thus until 28 February 2013.

On 7 December 2012 the National Institute for Health and Welfare dismissed the request of the head physician at Niuvanniemi hospital as being outside its jurisdiction. It considered, however, that the applicant could be committed to involuntary care on 30 November 2012 on the basis of section 11 of the Mental Health Act and that he should not be left without treatment.

The applicant appealed to the Administrative Court arguing, inter alia , that M. was not a specialist in psychiatry but a general physician and had no expertise to assess his condition. Moreover, M. had not made any remarks about his state of health that would justify his placement in involuntary care.

On 6 February 2013 the Administrative Court quashed the decision of 30 November 2012 made by the head physician of the hospital as it considered that it had been made in accordance with the wrong provisions of the Mental Health Act. The applicant was a forensic patient to whom provisions under Chapter 3 of the Mental Health Act applied, but the decision had been made according to the provisions in Chapter 2 of the Mental Health Act, governing the treatment of civil patients.

On 22 February 2013 the head physician of the hospital again took a decision to commit the applicant to involuntary care on the basis of sections 8 and 17 § 2 of the Mental Health Act. Before making that decision, the applicant had a possibility to have his condition assessed by a doctor working outside the hospital. On 17 February 2013 the general physician of the municipal health centre had a consultation with the applicant, but the latter had refused the assessment. As the decision was taken on the basis of section 17 § 2 concerning forensic patients, it could be in force for a maximum period of six months, that is until 21 August 2013.

The applicant appealed to the Administrative Court requesting also an oral hearing. He argued again, inter alia , that his mental health should be assessed by an independent specialist in psychiatry and not by a general practitioner and that he was not in need of involuntary mental care.

On 6 May 2013 the Administrative Court quashed the decision of 22 February 2013 taken by the head physician of the hospital. It noted again that the applicant had been a forensic patient and therefore the decision concerning his involuntary care could not be taken according to the procedure used for civil patients. As the applicant was a forensic patient, it was for the National Institute for Health and Welfare to take the decision to commit the applicant to involuntary care. The Administrative Court considered furthermore that, due to procedural mistakes, the time-limits set for decision-making in involuntary care cases had been exceeded. It also noted that there were no provisions in the Mental Health Act governing such situations where the time-limits had been exceeded.

It is not known what has happened since then.

B. Relevant domestic law and practice

Constitution

The Constitution ( Suomen perustuslaki , Finlands grundlag , Act no. 731/1999) provides in its relevant parts:

“Section 7 - The right to life , personal liberty and integrity

Eve ryone has the right to life , personal liberty , integrity and security.

No one shall be sentenced to death , tortured or otherwise treated in a manner violating human dignity.

The personal integrity of the individual shall not be violated , nor shall anyone be deprived of liberty arbitrarily or without a reason prescribed by an Act. A penalty involving deprivation of liberty may be imposed only by a court of law. The lawfulness of other cases of deprivation of liberty may be submitted for review by a court of law. The rights of individuals deprived of their liberty shall be guaranteed by an Act ...

Section 10 - The right to privacy

Eve ryone ’ s private life , honour and the sanctity of the home are guaranteed ...”

Mental Health Act

The relevant parts of the Mental Health Act ( mielenterveyslaki , mentalvårdslagen , Act no. 1116/1990) , as in force at the material time , provided as follows:

“Chapter 1

... Section 2 - Direction and supervision

...In each province the planning , direction and supervision of mental health work is the responsibility of the State Provincial Office. The State Provincial Office shall , in particular , supervise the use of limitations on the right of self-determination referred to in Chapter 4 (a) of this Act. (1423/2001) ...

Section 6 - Treatment given in State mental hospitals

Psychiatric assessments referred to in section 15 are conducted in State mental hospitals. On the recommendation of a hospital in a hospital district ( sairaanhoitopiirin sairaala, ett sjukhus i sjukvårdsdistriktet ) , individuals who are mentally ill or suffering from other mental disorders and whose treatment is particularly dangerous or difficult can be admitted to a State mental hospital.

On the recommendation of a hospital in a hospital district , individuals who are not mentally ill or suffering from the other mental disorders referred to in subsection 1 may also be treated in a State mental hospital if appropriate treatment cannot be provided in a hospital within the hospital district.

Decisions on admitting to a State mental hospital a person accused of a crime or a person whose sentence has been waived because of his or her mental condition are made by the National Forensic Medical Authority, as provided for in section 17. In other cases decisions on admitting a patient to a State mental hospital , discontinuing treatment and discharging the patient are made by the head physician of the State mental hospital. (1504/1999)

... Chapter 2

Section 8 – Criteria for compulsory treatment

A person can be ordered to undergo treatment in a psychiatric hospital against his or her will only (1) if the person is diagnosed as mentally ill; (2) if the person needs treatment for a mental illness which , if not treated , would become considerably worse or seriously endanger the person ’ s health or safety or the health or safety of others; and (3) if all other mental health services are inapplicable or inadequate ...

Chapter 3

Section 15 - Admission to hospital for psychiatric assessment

If the court orders a person accused of an offence to undergo a psychiatric assessment under Article 45 of Chapter 17 of the Code of Judicial Procedure , the person accused of the offence may be admitted to hospital for psychiatric assessment and detained there against his or her will notwithstanding Chapter 2 of this Act.

Section 16 (1086/1992) - Psychiatric assessment

After ordering a person who is accused of an offence to undergo a psychiatric assessment, the court must forward the associated documents to the National Forensic Medical Authority without delay. The National Forensic Medical Authority shall decide where the psychiatric assessment is to be carried out and , if it is to be carried out outside hospital , by whom.

The psychiatric assessment shall be completed and a statement on the mental condition of the person accused of the offence shall be submitted to the National Forensic Medical Authority not later than two months after the start of the psychiatric assessment. If there are reasonable grounds for so doing , the National Forensic Medical Authority may extend the period of the assessment by a maximum of two months.

When it has received the said statement , the National Forensic Medical Authority shall issue its own statement to the court concerning the mental condition of the person accused of the offence.

Section 17 - Involuntary treatment after psychiatric assessment

If the conditions for ordering a person accused of an offence to undergo treatment against his or her will are met on completion of a psychiatric assessment, the National Forensic Medical Authority shall order the person to undergo treatment against the person ’ s will. (1086/1992)

The person may be detained for treatment against his or her will on the basis of the decision of the National Forensic Medical Authority for a maximum of six months. Before the end of this period a statement on the observation of the patient shall be produced indicating whether or not the conditions for referring the person for treatment against his or her will are still met. A decision on whether treatment should be continued or discontinued shall be made in writing by [the head physician in charge of the psychiatric care or , if that physician is ineligible or unavailable , by another physician assigned to the task , preferably one specialising in psychiatry], before the treatment has continued for six months. A decision to continue the treatment shall be made known to the patient without delay and shall be immediately submitted for approval of the [court] , and the [court] shall assess whether the conditions for ordering treatment against the patient ’ s will still exist. A decision to discontinue the treatment shall also be made known to the patient without delay and shall be submitted immediately to the National Forensic Medical Authority for approval. The National Forensic Medical Authority shall either confirm the decision to discontinue the treatment or , if the conditions for treatment against the patient ’ s will still exist , order the patient to undergo treatment. (1504/1994)

On the basis of a decision to continue treatment, the patient may be detained for treatment against his or her will for a maximum of six months. If it seems probable at the end of this period that continuing the treatment is still necessary , measures shall be taken in accordance with subsection 2. (1504/1994)

If it appears during the treatment of a person whose treatment is compulsory that the conditions for ordering the patient to undergo treatment against his or her will do not exist , measures shall be taken in accordance with subsection 2. (1504/1994)

Section 17 a (383/1997) – Specialised psychiatric hospital treatment

The National Forensic Medical Authority shall decide on initiating involuntary treatment of a person accused of a crime; the treatment shall take place in a hospital which has the facilities and particular expertise required for the treatment of the patient.

When the patient ’ s need for treatment changes, the physician referred to in section 11 shall immediately take measures to transfer the patient to a hospital which can provide the treatment the patient requires.

The need for treatment in a State mental hospital shall , however , be assessed within six months of the beginning of the treatment, in collaboration with the hospital district in whose area the patient ’ s home municipality is located.

Recommendation by the Ministry for Social Affairs and Health

The Ministry for Social Affairs and Health made a recommendation on procedure on 18 December 2012 after the Court ’ s judgment in the case of X v. Finland had become final.

It was recommended that, when re-assessing the patient ’ s condition and the need to continue involuntary care, the patient should have the possibility to be examined by a physician who does not work in the hospital where the patient is treated. That physician could be a general practitioner, but it would be preferable for the physician to have expertise in psychiatry. That physician must be invited to the hospital where the patient is currently treated and there should be no cost to the patient. The independent physician should assess the patient ’ s condition and the need for care even when the patient does not want it or is not cooperating.

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention that his right to liberty has been violated. The legal remedies are insufficient as he has been deprived of independent medical assessment and an oral hearing.

QUESTIONS TO THE PARTIES

Has the applicant ’ s right to liberty under Article 5 § 1 (e) of the Convention been violated? In particular, did the deprivation of liberty as from 4 October 2012 fall within paragraph (e) of this provision?