FIFTH SECTION

Application no. 32863/05 L. M. against Slovenia lodged on 6 September 2005

STATEMENT OF FACTS

The applicant, Ms L.M., is a Slovenian national, who was born in 1971 and lives in Ljubljana . She is represented before the Court by Ms D. Pavlič , a lawyer from Ljubljana .

A. The circumstances of the case

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

1. Involuntary confinement of the applicant in the closed ward of the Idrija Psychiatric Hospital

On 10 July 2005 the applicant was confined in the closed ward of the Idrija Psychiatric Hospital upon referral by a general practitioner, who noted that she had been disturbing for the environment and under influence of psychotic behaviour. On 11 July 2005 the hospital informed the Idrija Local Court of the applicant ’ s confinement, indicating the reasons given by the general practitioner.

On 13 July 2005 the Idrija Local Court ex officio appointed lawyer R. P. to represent the applicant in the proceedings.

On 15 July 2005 a hearing regarding the applicant ’ s confinement was held. The attending doctor and the applicant were heard. The attending doctor stated that apparently the applicant lived in a garage and broke into a house, that she was found wondering around and was unmanageable and that she was convinced that her step-mother was a relative of Benito Mussolini and the devil incarnate. The applicant stated that she would rather be at home, that she was not aware of why she had been brought to the psychiatric hospital, but that other people she named, including a former politician, might have an idea about that. She provided an account of the events which took place prior to her confinement, whereby no mention was made of her having broken into a house. She also stated that she missed her father and that she took medication while at home.

On 29 July 2005 the applicant gave D.P., a lawyer from Ljubljana , the power of attorney.

On 2 August 2005 D.P. requested from the Idrija Psychiatric Hospital that the applicant be informed of her medical treatment and of its side effects. She also pointed out that the applicant had the right to express her free will and to refuse the treatment.

On 5 August 2005 the applicant, through her representative D. P., lodged a constitutional complaint against the “material act” of her detention and a constitutional petition for review of constitutionality of Article 49 of the Act on Medical Service and of Articles 70 to 81 of the Non-Contentious Civil Procedure Act.

On 6 August 2005 D.P. again wrote to the hospital, asking them to stop the forced administration of medication to the applicant.

On 8 August 2005 the applicant was transferred from the closed to the open ward of the Idrija Psychiatric Hospital . On the same date the Idrija Local Court stayed the proceedings regarding the applicant ’ s confinement due to her transferral to an open ward.

On 12 August 2005 the applicant was released from the Idrija Psychiatric Hospital .

On 15 September 2005 the Constitutional Court rejected the applicant ’ s constitutional complaints of 5 and 21 August 2005 against both the involuntary confinement in the Idrija Psychiatric Hospital and the confinement in the Ljubljana Psychiatric Hospital for failure to exhaust the available remedies. It found that these complaints had been lodged even before the first-instance decisions on the involuntary confinement were rendered.

2. Involuntary confinement of the applicant in the Ljubljana Psychiatric Hospital

On 15 August 2005 the applicant was, upon a referral by an emergency doctor, brought by an ambulance to the Ljubljana Psychiatric Hospital . As of 17 August 2005 she was placed in the closed ward.

As the Ljubljana Psychiatric Hospital had not informed the local court of the applicant ’ s confinement in the closed ward, on 21 August the applicant 2005 herself informed the Ljubljana Local Court thereof. The applicant lodged a motion for an interlocutory order that her medical treatment be stopped and that she be released until the adoption of a final decision on the matter. On the same date the applicant also lodged a constitutional complaint against the “material act” of her confinement and a constitutional petition for review of constitutionality of Article 49 of the Act on Medical Service and of Articles 70 to 81 of the Non-Contentious Procedure Act.

On 23 August 2005 the Ljubljana Local Court appointed an ex officio lawyer to represent the applicant in the proceedings regarding her involuntary confinement. On the same date a hearing was held which took twenty-five minutes. The applicant ’ s ex officio representative was present at the hearing but, according to the applicant, did not participate actively. The applicant was examined by an expert in psychiatry, who prepared the following expert opinion:

“The patient has been for the second time placed in this hospital, before that she had already been placed in the Idrija Psychiatric Hospital . During the examination she is very eloquent, to certain extent it is not possible to halt her, the flow of her speech is however already coherent. Spontaneously she does not show cognitive delusions; her mood is lowered, angry. Her narrative indicates a paranoid delusional system which has probably lasted for a longer time and to which she is completely uncritical. She mistrusts the treatment, the medical staff and she does not agree that she needs treatment. She also appears to be uncritical towards taking psychoactive substances. She appears psychometrically agitated; she denies suicidal thoughts; within her delusional disorders aggressive behaviour is indicated. I believe that the patient needs treatment in a closed ward for up to one month.”

The expert opinion was entered in the record of the proceedings. On the same date the Ljubljana Local Court ordered that the applicant be confined in the closed ward of the Ljubljana Psychiatric Hospital until 23 September 2005.

On 24 August 2005 the applicant ’ s motion for an interlocutory order was dismissed.

On 4 September 2005 the applicant was transferred to an open ward of the Ljubljana Psychiatric Hospital . It was not until 5 December 2005 that the Ljubljana Psychiatric Hospital informed the local court of the applicant ’ s transferral.

On 9 September 2005 the Ljubljana Higher Court granted the appeal of the applicant against the decisions of the Ljubljana Local Court of 23 and 24 August 2005 and remitted the case back to the first-instance court. The higher court pointed out that the reasoning lacked references to the decisive facts which would have indicated that it had been necessary to deprive the applicant of her liberty. As regards the dismissal of the applicant ’ s motion for an interlocutory order, the higher court rejected the interpretation that no legal basis existed for an interlocutory order for protection of personal rights. Further, the court also pointed out that the applicant ’ s request to stop the medical treatment deserved a separate consideration.

The applicant on the same day lodged a constitutional complaint against the decision of the Ljubljana Higher Court and a constitutional petition for review of the constitutionality of Article 49 of the Act on Medical Service and of Articles 70 to 81 of the Non-Contentious Civil Procedure Act. The applicant insisted that remitting her case back to the first instance court without ordering her release from the hospital violated her right to personal freedom.

On 15 September 2005 the Constitutional Court rejected the applicant ’ s constitutional complaints of 5 and 21 August 2005 against both the confinement in the Idrija Psychiatric Hospital and the following confinement in the Ljubljana Psychiatric Hospital for failure to exhaust the available remedies. Namely, these complaints had been lodged even before the first-instance decisions on the involuntary confinement were rendered. Furthermore, the Constitutional Court dismissed the applicant ’ s constitutional petition as unfounded.

On 22 September 2005 the applicant lodged a supervisory appeal with the Ministry of Justice regarding the proceedings before the local court. On 5 October the Ministry informed the applicant that the local court had set the date of the hearing for 11 October 2005.

On 7 October 2005 the father of the applicant, I. M., informed the local court that he had been served the summons addressed to his daughter for a hearing scheduled for 11 October 2005. The judge allowed the applicant ’ s father to attend the hearing.

At the hearing on 11 October 2005 the applicant ’ s ex officio representative, the applicant ’ s representative D. P. and the applicant ’ s father I.M. were present. D.P. proposed that the hearing be postponed since the applicant had not been properly summoned. She also informed the court that the applicant was held in the open ward of the Ljubljana Psychiatric Hospital but that the hospital was refusing to release her, or to stop the medical treatment. On the same date the local court appointed another expert in psychiatry to give an opinion on the applicant ’ s condition.

On 12 October 2005 the Ljubljana Local Court again ruled on the applicant ’ s motion for interlocutory order concerning the termination of her medical treatment and her immediate release from the psychiatric hospital. Notwithstanding the decision of the Ljubljana Higher Court of 9 September 2005, the motion was again dismissed on the ground that no legal basis existed for an interlocutory order for protection of personal rights.

On 14 October 2005 the applicant requested the withdrawal of the sitting judge due to the fact that at the hearing on 11 October the judge, inter alia , failed to postpone the hearing on the ground that the applicant had not been properly summoned. Furthermore, the judge allegedly violated the applicant ’ s right to privacy by allowing the applicant ’ s father to attend the hearing. The applicant also requested that the appointed expert be withdrawn. She further requested the court to decide on her immediate release and to exclude her father from the proceedings. On 26 October 2005 the applicant ’ s request for withdrawal of the sitting judge was dismissed. On 2 November 2005 the Ljubljana Local Court amended the decision of 12 October 2005 by including in the operative part also the dismissal of the applicant ’ s motion that the applicant ’ s father be prohibited to participate in the proceedings.

On 10 November 2005 the Ljubljana Higher Court again granted the appeal of the applicant against the decision of 12 October 2005 and remitted the case back to the first-instance court. It reiterated that a valid legal basis existed for an interlocutory order for the applicant ’ s release from the psychiatric hospital and that her request to stop medication deserved a separate consideration. Moreover, the court took note of the information in the case file that the applicant had meanwhile been transferred to the open ward. Accordingly, it recalled that the rules of the non-contentious procedure regarding the involuntary confinement only applied to the closed wards of psychiatric hospitals. It ordered the lower court to examine the question of whether the conditions still applied for the non-contentious proceedings to continue.

On 14 November 2005 the applicant through her representative, D.P., lodged an appeal against the decision of 2 November 2005 on the dismissal of the motion concerning the applicant ’ s father ’ s participation in the proceedings. The applicant ’ s ex officio representative reacted to the appeal lodged by D.P. by arguing that it should be dismissed.

On 21 November 2005 the Ljubljana Higher Court upheld the decision of 2 November 2005.

On 5 December 2005 the Ljubljana Psychiatric Hospital informed the Ljubljana Local Court that on 3 September 2005 the applicant had been transferred to the open ward.

On 12 December 2005 the Ljubljana Local Court stayed the proceedings regarding the applicant ’ s involuntary confinement in the psychiatric hospital due to her transferral to the open ward.

On 15 December 2005 the Constitutional Court rejected the applicant ’ s complaint against the decision of 9 September 2005 and her petition for constitutional review for lack of legal interest. It observed that the applicant was not any longer confined in the closed ward of the psychiatric hospital.

On 22 December 2005 the applicant lodged an appeal against the decision of 12 December, stressing, inter alia , that her transfer to the open ward of the hospital did not change the fact that she was detained there against her will, a fact which violated her right to personal freedom. She also complained about the lack of an effective remedy. She further lodged a motion that her ex officio representative be discharged from further duties for failure to act in her interest.

On 5 January 2006 the Ljubljana Higher Court dismissed the applicant ’ s appeal. It held that, since the applicant had been placed in an open ward, the rules of non-contentious procedure did not apply anymore. The court referred the applicant to the contentious procedure in which a claim for injunctive relief against infringement of personal rights could be lodged.

On 19 January 2006 the applicant was released from the Ljubljana Psychiatric Hospital .

On 23 January 2006 the Ljubljana Local Court rejected the applicant ’ s motion for an interlocutory order due to the fact that the proceedings on the merits had been stayed.

On 14 February 2006 the applicant lodged an appeal on points of law against the decision of 5 January 2006. She invoked, inter alia , Article 5 of the Convention and maintained that the fact that she had been placed in the open ward did not imply that she was held there voluntarily. Therefore, the provisions on confinement in a psychiatric hospital and the related procedure were still applicable.

On 13 April 2006 the Supreme Court rejected the applicant ’ s appeal on points of law on the ground that the applicant lacked legal interest, since the main proceedings had been stayed and she had also been released from the hospital.

On 27 February 2008 the Constitutional Court dismissed the applicant ’ s constitutional complaint against the decision of the Supreme Court as unfounded and rejected the applicant ’ s appeal against the decision of the Higher Court on the ground that it had been lodged out of time. It underlined that the lodging of an inadmissible appeal on points of law had not suspended the time-limit for lodging the constitutional complaint.

B. Relevant domestic law and practice

The relevant provision of this Act pertaining to the patients with mental illness reads as follows:

Article 49

“A patient who, due to his or her mental illness, poses a danger to his or her own life or the lives or others, or has caused grave harm to himself or herself or to others, may be referred and admitted to treatment at a psychiatric hospital without his or her consent.

... ”

The relevant provisions of this Act regulating the procedure for confining persons to psychiatric hospitals read as follows:

Article 70

“In the procedure for confining persons to psychiatric health institutions and other institutions or departments of institutions intended for the treatment of mental patients (hereinafter health institutions), the court decides on the confinement of a person in the closed ward of a health institution if the nature of the mental disorder or the person ’ s mental state renders it urgent that his or her freedom of movement be limited or he or she be prevented from having contact with the outside world because he or she poses a danger to his or her own life or the lives or others, or has caused grave harm to himself or herself or to others.”

Article 71

“If the health institution confines a person for treatment in a closed ward without his or her consent or without a court order, the authorised person of this institution must immediately, but at the latest within 48 hours, notify the court of local jurisdiction thereof.

... ”

Article 74

“In the proceedings, the court immediately, but no later than three days after it receives the notification of confinement, visits the confined person at the health institution and questions him or her, except if such questioning would harm his or her treatment or if this is impossible considering his or her health condition.”

Article 75

“In the confinement proceedings, the court questions the doctors who are treating the confined person and persons who can provide information about the mental state of the confined person.

The court orders that the confined person be examined by a psychiatric specialist from an

other health institution.”

Article 76

“The court decides based on the evidence obtained whether the confined person should be further detained at the health institution or released.

If the court decides that the person remain detained at the health institution, it determines the period of confinement, which may not be longer than one year. The court issues the decision without delay, but no later than in 30 days after the receipt of the notification of confinement.

... ”

Article 77

“ ...

An appeal on points of law may be filed against a decision of the court of second instance.”

The Constitutional Court examined the above provisions of the Non-contentious Civil Procedure Act in its decision no. U-I-60/03 of 4 December 2003 and found that they were not in conformity with the Constitution due to the lack of protection they afforded to the involuntarily confined persons. The Constitutional Court ordered the legislature to remedy the established inconsistencies and imposed the following provisional measures to apply in the meantime:

“Until the established inconsistency is remedied, the following must be ensured in procedure for the involuntary commitment of persons to a mental institution:

– an ex officio counsel must be appointed for an involuntarily committed person upon the commencement of proceedings;

– the notification of detention that the authorised mental institution is obliged to submit to the court must contain reasons substantiating the necessity of detention.”

Nevertheless, the procedure as a whole continued to apply until 2009.

COMPLAINTS

1. The applicant complains under Article 5 § 1 (e) of the Convention that she was not of an unsound mind at the material time and that her involuntary confinement was not necessary in the circumstances. Further, she submits that the statutory conditions for involuntary confinement were not shown to exist and that the proceedings regarding her involuntary confinement were not conducted in accordance with the law. Namely, the applicant alleges that in neither set of proceedings the domestic courts obtained an expert opinion on her mental state by an independent expert, that the psychiatric examination to which she was submitted in the second set of proceedings was insufficient and that her ex officio appointed representatives failed to properly represent her, since they had not contacted her prior to the hearings. The applicant also submits that her stay in the so-called open wards was not voluntary and that she was not allowed to leave the hospital, in addition to which her placement in these wards was entirely unregulated by the domestic law. Finally, the applicant complains that the domestic proceedings were conducted pursuant to the provisions which the Constitutional Court had found to be unconstitutional in its decision no. U-I-60/03 and that the reasoning of this court set out in this decision was inadequate and allowed for the regulation of involuntary confinement, which violated her right to liberty, to remain in force.

2. The applicant also complains in substance under Article 5 § 2 of the Convention that she was not informed of the reasons for her involuntary confinement.

3. The applicant complains in substance under Article 5 § 4 of the Convention that she was deprived of an effective legal protection in so far as the proceedings of involuntary confinement were stayed once she had been transferred from the closed to the open wards of the psychiatric hospitals, a fact which prevented her from obtaining a review of lawfulness of her confinement. The applicant also submits that despite grave errors in the court order of confinement ( Ljubljana Psychiatric Hospital ) in which no grounds for involuntary confinement were established, she was not released, as the higher court remitted the case for reconsideration.

4. The applicant complains under Article 5 § 5 of the Convention that, as she was unable to obtain a court decision regarding the lawfulness of her earlier involuntary confinement, she was deprived of any possibility of obtaining compensation for her unlawful deprivation of liberty.

6. The applicant complains that the proceedings of involuntary confinement were excessively lengthy, contrary to the requirements of Article 6 § 1 of the Convention.

7. The applicant complains under Articles 3, 8, 9, 10 and, in substance, 13 of the Convention that the forced administration of medication and other therapeutic procedures to which she had been submitted amounted to ill-treatment or had at least interfered with her physical and mental integrity. Furthermore, she complains that she had no remedy whereby she could have challenged this forced treatment.

8. Finally, the applicant complains under Article 13 of the Convention that the domestic law did not afford her an effective remedy to challenge the lawfulness of her involuntary confinement and to obtain redress for other alleged violations under Articles 3, 5, 8, 9 and 10 of the Convention. Moreover, as she was denied these rights on account of her mental disorder, the applicant also complains about a violation of Article 14 of the Convention. The applicant maintains that the failure of the State to secure her these rights also constitutes a violation of Article 1 of the Convention.

QUESTIONS

1. As regards the applicant ’ s admission in the closed wards of the two psychiatric hospitals at issue, was she deprived of her liberty 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, § 98, ECHR 2004 ‑ IX):

- as regards her admission to the Idrija Psychiatric Hospital ;

- as regards her admission to the Ljubljana Psychiatric Hospital ?

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 1990, § 22, Series A no. 170 ‑ A):

- as regards her confinement in the Idrija Psychiatric Hospital ;

- as regards her confinement in the Ljubljana Psychiatric Hospital ?

2. Was the applicant informed promptly of the reasons for her involuntary confinement as required by Article 5 § 2 of the Convention?

3(a). Did the applicant ’ s stay in the open wards of the psychiatric hospitals 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):

- as regards the Idrija Psychiatric Hospital ;

- as regards the Ljubljana Psychiatric Hospital ?

3(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?

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 hospitals, did the applicant have at her disposal an effective remedy as required by Article 13 of the Convention whereby she could have challenged her earlier involuntary confinement in the closed wards and, if applicable, in the open wards?

6. Assuming that there was a violation of Article 5 § 1 (e) and/or § 4, could the applicant obtain compensation for this violation as required by Article 5 § 5 of the Convention?

7(a). Did the medical treatment provided to the applicant in the closed wards amount to an interference with her right to respect for private life:

- as regards her confinement in the Idrija Psychiatric Hospital ;

- as regards her confinement in the Ljubljana Psychiatric Hospital ?

In the affirmative, did it satisfy the requirements of Article 8 § 2 of the Convention?

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

7(c). Once transferred to the open wards, was the applicant free to refuse medical treatment:

- as regards her stay in the Idrija Psychiatric Hospital ;

- as regards her stay in the Ljubljana Psychiatric Hospital ?

If the treatment continued despite the applicant ’ s refusal, did she have an effective remedy to challenge it?

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