FIFTH SECTION

Application no . 19617/09 O.P. against Slovenia lodged on 25 March 2009

STATEMENT OF FACTS

The applicant, Ms O.P., is a Slovenian national, who was born in 1958. She is represented before the Court by Mr B. Franko , a lawyer practising in Å kofljica .

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

On 19 June 2007 the applicant, who had been suffering from schizophreni a for almost two decades, w as against her will taken to a psychiatric hospital and co nfined for treatment.

On 22 June 2007 the applicant informed the competent local court of her involuntary confinement . Later that day, the court appointed a psychiatrist to examine the applicant. In the decision on appointment, it was indicated that attorney M.S. representing the applicant had attended the hearing.

On 26 June 2007 the applicant complained by fax to the competent district court that she had not yet been heard. Moreover, she left several messages for M.S. , but received a reply that he had not been assigned to her case .

On 29 June 2007 the psychiatrist submitted his report on the applicant ’ s medical condition, concluding that it was necessary to restrict her liberty of movement and her contacts with the outside world.

T he competent district court therefore decided to co nfine the applicant to the closed ward of the local psychiatric hospital . It was indicated in the decision that the applicant had been heard on 22 June 2007.

On 2 July 2007 the local court ex-officio appointed attorney M.S. to represent the applicant. Upon the examination of her case-file, M.S. first acquired knowledge of the expert ’ s report and the decision on confinement . On the same day the applicant was transferred to the open ward of the hospital and was consequently no longer entitled to the assistance of an attorney appointed ex-officio . However , the applicant alleges that also her stay and continued medical treatment in the open ward were involuntary and that she only remained there under the threat of her immin ent transfer to the closed ward, should she attempt to leave the hospital.

On 16 July 2007 the applicant was released from the Ljubljana Psychiatric Hospital , whereupon she was served with the decision on confinement, which had been sent to her home address .

On 21 August 2007 the applicant challenged the lawfulness of her earlier confinement before the higher court . Her appeal was dismissed in its entirety, the court having noted that it was in any event devoid of purpose, as she had already been transferred to the open ward before the decision on appeal was given. The copy of the final decision which was ser ved on the applicant included an incorrect instruction on the right of appeal, which the applicant followed. Having later realised that she had missed the time-limit for lodging the appeal on points of law, which would have been the correct legal avenue to pursue her complaints , on 28 November 2007 she petitioned the State Prosecutor ’ s Office to lodge a n extraordinary appeal (a request for the protection of legality ) before the Supreme Court. In addition to repeating her previous complaints, she further complained of the incorrect instruction on the right of appeal.

On 3 December 2007 the State Prosecutor replied that according to the established case-law, the applicant no longer had legal interest to lodge a request for the protection of legality, as she was no longer deprived of her liberty.

On 27 December 2007 the applicant lodged a constitutional appeal, which was subsequently rejected for non-exhaustion of the available remedies. The applicant then unsuccessfully attempted to obtain a judicial decisio n in respect of the incorrect remedy lodged against the higher court ’ s decision. On 29 February 2008 she lodged another constitutional appeal , which was also rejected .

COMPLAINTS

The applicant complains under Article 5 § 1 (e) of the Convention that her confinement to the psychiatric hospital was unlawful, as no statutory grounds had been established which would have necessitated it . Moreover, she was not informed about the reasons for her confinement, nor did she know how long she would have to remain in the hospital. She further complains under this Article that a number of procedural guarantees had been breached in the proceedings for confinement. In this respect she alleges that the psychiatric hospital failed to notify the competent court of her confinement within the prescribed time-limit, that neither she nor the doctors who had been treating her were heard by the court, that an attorney was appointed to her only after the decision on confinement had already been rendered and that the court-appointed psychiatrist was not impartial. Relying on the same article, the applicant complains that the period of her stay in the open ward also constituted involuntary confinement, as she was held there under threat and coercion.

Relying on Article 5 §§ 2 and 4 of the Convention, the applicant complains that as she was not informed promptly of the decision on her confinement, she was not able to effectively challenge its lawfulness.

Furthermore, the applicant complains under Article 6 of the Convention that her right to a trial within a reasonable time was violated, as she had been denied prompt access to court to challenge the lawfulness of her confinement.

Relying on Article 13 of the Convention, the applicant complains that she did not have an effective remedy at her disposal for obtaining relief for the violations allegedly confined in the proceedings for her confinement, once she had been released from the hospital.

Finally, invoking the Convention for the Protection of Human Rights and Dignity of Human Being with regard to the Application of Biology and Medicine, the applicant complains that while in the hospital, she was medically treated against her will.

QUESTIONS TO THE PARTIES

1. As regards the applicant ’ s confinement in the closed ward of the psychiatric hospital , was she deprived of her l iberty in breach of Article 5 § 1 (e) of the Convention?

1(a). In particular, was it reliably shown that the applicant was of unsound mind and that her confinement was necessary in the circumstances (see , among many authorities, H.L. v. the United Kingdom , no. 45508/99, § 9 8 , ECHR 2004 ‑ IX )?

1(b ). Moreover, were the provisions of the domestic law applicable at the material time, most notably the thirty-day time limit for issuing a court order of confinement, compatible with the rule of law and provided sufficient safeguards to the applicant to constitute a “fair and proper procedure” (see, for example, X v. Finland , no. 34806/04 , § 167, 3 July 2012)?

1 ( c ). Finally, were the proceedings for confining the applicant in a psychiatric hospital conducted in accordance with the domestic law (see Winterwerp v. the Netherlands , 24 October 1979, § 45, Series A no. 33 , and Van der Leer v. the Netherlands , 21 February 1 990, § 22, Series A no. 170 ‑ A)?

2(a). Did the applicant ’ s stay in the open ward of the psychiatric hospital constitute a deprivation of liberty within the meaning of Article 5 of the Convention (see H.L. v. the United Kingdom , no. 45508/99, §§ 91-92, ECHR 2004 ‑ IX )?

2 (b). If so, was it “lawful” within the meaning of Article 5 § 1 of the Convention? In particular, was there a proper legal basis provided for it and sufficient safeguards to constitute a “fair and proper procedure” devoid of any risk of arbitrariness?

3 . Was the applicant informed promptly of the reasons for her involuntary confinement within the meaning of Article 5 § 2 of the Convention ?

4 (a). Did the applicant have at her disposal habeas corpus proceedings to challenge her confinement which satisfied the requirements of Article 5 § 4 of the Convention in respect of her admission to the closed wards (see De Jong, Baljet and Van den Brink v. the Netherlands , 22 May 1984, § 58, Series A no. 77)?

4 (b). Assuming that the applicant ’ s stay in the open wards constituted a deprivation of liberty, did she have an effective access to a court to challenge it as required by Article 5 § 4 of the Convention?

5. After her release from the psychiatric hospital, d id the applicant have available an effective remedy or remedies as required by Article 13 of the Convention to challenge the lawfulness of her earlier involuntary confinement

- as regards her confinement in the closed ward;

- if applicable, as regards her stay in the open ward?

6(a) . Did the medical treatment provided to the applicant in the closed wards amount to an interference with her rig ht to respect for private life? In the affirmative, did it satisfy the requirements of Ar ticle 8 § 2 of the Convention?

6 (b). Did the applicant have an effective remedy to challenge this treatment as required by Article 13 of the Convention?

6 (c). On ce transferred to the open ward , was the applicant free to refuse medical treatment ? If the treatment continued despite the applicant ’ s refusal, did she have an ef fective remedy to challenge it?

The Government are requested to provide copies of the case files pertaining to the domestic proceedings concerning the applicant ’ s involuntary confinement.