Information Note on the Court’s case-law 212

November 2017

N. v. Romania - 59152/08

Judgment 28.11.2017 [Section IV]

Article 46

Article 46-2

Execution of judgment

Individual measures

General measures

Respondent State to provide procedural guarantees against arbitrariness in respect of compulsory admission to psychiatric hospital

Article 5

Article 5-1-e

Persons of unsound mind

Article 5-4

Review of lawfulness of detention

Speediness of review

Facts –  In January 2001, criminal proceedings were instituted against N. on suspicion of incest and corruption of his two minor daughters (the proceedings were discontinued in 2002). He was admitted to a psychi atric hospital, a measure upheld by a court in April 2002 in the applicant’s absence. Following legislative amendments designed to consolidate the rights of people with disabilities, the lawfulness of the applicant’s continued detention was periodically re viewed from September 2007 onwards. However, he remained in the psychiatric hospital as medical experts found that he was suffering from paranoid schizophrenia. In August 2016 the County Court held that in principle the applicant should be released from th e hospital, but that he would continue to be detained on a provisional basis until a place in a suitable facility became available. In February 2017 the first-instance court ordered that the applicant’s detention was to be replaced by compulsory treatment until his recovery, but efforts to secure his release were still to no avail.

Law – Article 5 § 1: The applicant’s deprivation of liberty fell within the scope of sub-paragraph (e), since his mental disorders had been confirmed by a series of forensic medi cal assessments.

(a) Continued detention after 2007 – In accordance with domestic legislation, a psychiatric detainee’s mental illness had to constitute a danger to society. Furthermore, Article 5 § 1 (e) implied that where no medical treatment was envisa ged, the detention of a person with mental disorders  required special justification on account of the seriousness of the disorders and the need to protect the person concerned or others.

In the present case, in its first review of the applicant’s detentio n, the first-instance court had based its decision on a simple reference to two main aspects: the criminal charges initially brought against the applicant (incest and corruption of minors); and his paranoid schizophrenia (according to the expert medical re port issued in July 2007).

Regarding the charges, the court had relied entirely on the file produced by the prosecution. However, the public prosecutor had dismissed the charge of incest for lack of evidence. The charge of corruption of minors had later given rise to a finding that there was no case to answer on account of the applicant’s lack of insight. That finding had never been reviewed by a court. The charges themselves had, moreover, not been examined by a court in adversarial proceedings. Accordingly, the reference to them wa s not sufficient to establish the applicant’s dangerousness.

With regard to the applicant’s mental disorders, instead of assessing the danger he posed, the court had quite simply referred to the conclusions of the forensic medical report (which had recomme nded continuing his detention), an approach that had already been criticised by the Court. In addition, neither the court nor the medical authorities had reported any acts of violence by the applicant during his detention. On the contrary, according to his assessment in July 2007, the applicant had behaved calmly, had not objected to his treatment, had not caused any conflicts with other patients and had only displayed a low level of hostility while receiving his treatment.

The subsequent reviews had not cl arified whether the applicant posed a potential danger, as the same formalistic and superficial approach had been pursued; and neither the applicant’s appeals against the first-instance court’s decisions nor the proceedings he had instituted separately had shed any further light on this issue.

Furthermore, neither the medical authorities nor the court itself had examined whether alternative measures could have been applied.

Accordingly, in the absence of an assessment of the danger posed by the applicant, his detention had had no legal basis and had not been justified under sub-paragraph (e) of Article 5 § 1. It had also been questionable in the light of Article 14 § 1 (b) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which specified that the existence of a disability in itself should on no account justify deprivation of liberty.

Although there had eventually been a review of whether the applicant posed a danger, the national authorities had not disclosed the factual information that had prompted the change in the medical experts’ assessment.

(b) Whether it was necessary to continue the applicant’s detention after the judicial decision ordering his release – In its judgment of August 2016, while emphasising the need to end the applicant’s detention, the County Court had kept the measure in place without indicating the relevant legal basis.

Furtherm ore, after the adoption of the final judgment of February 2017 ordering the applicant’s release, neither the national authorities nor the Government had indicated any procedure applicable to the applicant’s situation that could have allowed him first to ha ve his needs assessed before being released or transferred to another centre meeting those needs. The possibility of gradual or conditional release had not been mentioned either.

Although the applicant had agreed to remain in detention until such time as t he social services found an appropriate solution to his situation, he should have been afforded adequate protective safeguards ensuring that he could be released without undue delay.

Admittedly, the decisions referred to above drew on practices increasing ly adopted in recent years at international level encouraging the treatment and care of disabled people within the community where possible (see Article 19 of the CRPD, the guideli nes issued by the Committee on the Rights of Persons with Disabilities, or the Council of Europe D isability Strategy 2017-2023 ).

However, their implementation raised additional issues under Article 5 § 1. In practice, the applicant had not actually been released. In any event, there had yet to be any rigorous assessment of his specific needs and the ap propriate measures in terms of social protection. Furthermore, the efforts by the national authorities had proved to no avail on account of the lack of facilities that could accommodate him.

This state of affairs was a reflection of current realities in R omania, as previously described by other international bodies (such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) or the Council of Europe Commissioner for Human Rights ).

The applicant’s continued detention after the judgment of 29 August 2016 had therefore been arbitrary.

Conclusion : violation (unanimously).

Article 5 § 4: The implementatio n of the relevant Romanian legislation, which had come into force in September 2006, had been inadequate to safeguard the applicant’s rights.

(a) Periodic nature of reviews : The reviews by the courts of the necessity of the applicant’s detention had been separated by periods of fifteen months (February 2015 – May 2016), sixteen months (October 2008 – February 2010) and even three years and eight months (April 2010 – December 2013). No exceptional reasons had been put forward to justify such delays. Moreov er, these periods had significantly exceeded the time-limits provided for by domestic law (six months, and subsequently twelve months from 2014).

The Court also noted with concern the practice of retrospective assessment of the need for continued detention on the basis of medical information obtained a long time in advance (for example, more than one, two or three years previously) which did not necessarily reflect the detained person’s condition at the time of the decision. Such a delay between the forensi c medical examination and the subsequent decision could in itself run counter to the principle underlying Article 5 of the Convention, namely the protection of individuals against arbitrariness.

Lastly, in so far as the above-mentioned delays could be expl ained by the need to obtain the requisite forensic medical reports, the court did not appear to have enquired about the progress of the experts’ work, or to have made use of its power to fine experts who failed to comply with the obligation to submit a rep ort.

Accordingly, the requirement of a “speedy” review had not been satisfied.

(b) Legal assistance : The applicant, who suffered from mental disorders that prevented him from conducting court proceedings satisfactorily, had admittedly had the assistance o f officially assigned counsel. However, he had been represented by a different lawyer in each set of proceedings without being able to confer with them, having been unable to meet the various lawyers prior to the court hearings. In the vast majority of cas es, his lawyers had either argued in favour of his continued detention or had left the matter to the courts’ discretion.

While not dictating how lawyers should deal with cases in which they were representing a person with mental disorders, the Court found that there had been a lack of effective assistance.

Conclusion : violation (unanimously).

Article 46

Individual measures : In order to redress the effects of the violation of the rights secured to the applicant under Article 5, the authorities should implement without delay the County Court’s final judgment ordering his release in conditions meeting his needs.

General measur es : As the deficiencies identified in the present case were likely to give rise to other well-founded applications in the future, the Court recommended that the respondent State envisage general measures to ensure: that the detention of individuals in psyc hiatric hospitals was lawful, justified and not arbitrary; and that any individuals were able to take proceedings affording adequate safeguards with a view to securing a speedy court decision on the lawfulness of their detention.

Article 41: EUR 30,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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