CONCURRING OPINION OF JUDGE SAJÓ

1 . In the present case the applicant ’ s son, who was under a court order of involuntary placement, committed suicide after escaping from the open ward to which he had been transferred in the meantime. The applicant pleaded a violation of Article 2. Given the very stringent test that is applicable in similar circumstances (see Keenan v. the United Kingdom , no. 27229/95, § 90, ECHR 2001 ‑ III) [1] I had to conclude that there was no real and immediate risk of which the authorities ought to have known, given the uncontested medical opinions. Therefore, I had to vote together with my colleagues finding no violation.

2 . There are, however, some disturbing elements in this case. The applicant was under a court order of placement, and that order had been changed by the hospital personnel for medical reasons to facilitate his reintegration. It is true that the State is obliged to take immediate steps to facilitate release from detention and that under the Austrian Hospitalisation Act freedom of movement has to be restored as soon as the circumstances so permit. However, this cannot be done in breach of an unconditional court order, but must involve prompt judicial action; moreover, the person had already escaped twice in breach of the court order. Moreover, the Austrian Hospitalisation Act was silent on the issue of unaccompanied walks. Where a contrary judicial order has been issued, the silence of the law cannot be interpreted as authorisation.

3 . The medical personnel took a professional decision to facilitate the integration of the applicant ’ s son. For the Court this seems to fit into an emerging trend in international law concerning persons with mental disorders, and in particular as a matter to be considered in the light of the “principle of least restriction” (see paragraph 32). Now the UN Office of the High Commissioner for Human Rights has issued a statement concerning Article 14 of Convention on the Rights of Persons with Disabilities (CRPD) (“the existence of a disability shall in no case justify a deprivation of liberty”) as meaning, in view of the CRPD Committee ’ s position, that “it is contrary to Article 14 to allow for the detention of persons with disabilities based on the perceived danger to themselves or to others.” (see paragraph 36). This approach resulted in the tragic loss of the applicant ’ s life, and it is now endorsed by the Court. I beg to differ: precaution is not paternalism. There was a judicial finding that such placement is necessary and there is no finding that this was not necessary for the above-mentioned purposes.

4 . It must be added that the applicant complained exclusively under Article 2. Since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant or the Government (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). Without prejudging the matter, I think that given the factual allegations of the application the case should have been reclassified and recommunicated under Articles 3 and 8.

DISSENTING OPINION OF JUDGE MOTOC

“With a truly tragic delusion,” Carl Jung noted, “these theologians fail to see that it is not a matter of proving the existence of the light, but of blind people who do not know that their eyes could see. It is high time we realized that it is pointless to praise the light and preach it if nobody can see it. It is much more needful to teach people the art of seeing.” ‑ Carl Jung

This case is extremely important given the increasing number of deaths in custody and the rise in the number of persons with mental health problems. I respectfully disagree with the majority that the case presents no violation of Article 2 of the Convention.

The majority sees no reason to question the finding of the Austrian domestic courts to the effect that M.K. ’ s escape and subsequent death had been neither foreseeable nor attributable to the hospital authority as a matter of negligence. On the facts, the majority agrees with the Court of Appeal and the Supreme Court that the hospital did not fail to comply with its positive obligations arising from Article 2 of the Convention and considers that restrictions on M.K. ’ s freedom of movement would have adversely affected his recovery process as well as raised questions related to the infringement of other articles of the Convention (see paragraphs 55-56 of the judgment).

It is important to reiterate that the Court will respect the principle of subsidiarity; thus, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. It follows that any assessment of the relevant facts and evidence that has previously been made in the domestic context must be taken into account. Thus, the Government ’ s submissions, which state that open psychiatry is the norm in the treatment of mentally ill patients and that restriction of the patient ’ s movement was no longer indicated or medically adequate in M.K. ’ s circumstances, will not be contested. These findings are the result of medical expert analysis and have already been appropriately reviewed in procedure and substance by the Austrian national courts.

In the same way, it is difficult to contest the medical findings that M.K. had displayed no indication of an intention to take his own life, and thus, according to the jurisprudence on the matter, that his suicide was not foreseeable. The majority ’ s assessment considered whether there was a “real and immediate risk” that M.K. would try to commit suicide, which they rightly answered in the negative based on the present facts. The well ‑ established definition of “real and immediate” implies that the risk must be “substantial or significant” “not a remote or fanciful one” and “real and ever-present” (see cases such as Osman v. the United Kingdom , 28 October 1998, § 108, Reports of Judgments and Decisions 1998 ‑ VIII, and Opuz v. Turkey , no. 33401/02, ECHR 2009). Considering that the risk of suicide was neither explicit nor recurring, or an overall and present worry in respect of the patient, the majority ’ s conclusion that there has been no violation of Article 2, as in the case of Keenan v. the United Kingdom , no. 27229/95, ECHR 2001 ‑ III, was natural.

I do not disagree with the majority in this finding. Rather, I argue that the main question which my colleagues, in line with the national courts, have addressed is not the correct one. In the circumstances of the forced hospitalisation of a mentally-ill person, Article 2 implies a positive obligation on the hospital authorities to take preventive operational measures to protect an individual from others or from him- or herself. The general duty of these authorities in cases concerning their obligation to protect the life of the person in their custody is to take all necessary and reasonable steps in the circumstances (see Keenan , cited above, § 91). The majority upholds the Austrian Government ’ s argument that the hospital authorities had indeed done all that was reasonable and necessary, since they did not and could not have known that M.K. was at risk of committing suicide at the relevant time. But this question is a truncated version of that posed in Keenan. The broader question, which is relevant in these circumstances, relates to the duty of the hospital authorities to know whether, at the time of the unsupervised walks, M.K. posed a real and immediate risk to his own life in general (and not merely at risk of deliberately committing suicide). I argue that his medical condition clearly indicated that he was at such a risk, and that in such circumstances giving him wide freedom of movement was not what could reasonably have been expected of the medical authority.

The majority seems to focus too much on the foreseeability of suicide and disregards the foreseeability of an act of self-harm caused by a delusional thought. In both medical testimony and the Government ’ s arguments it is stated that M.K. still posed a threat to himself on account of his delusional status. It is stated repeatedly in the applicant ’ s claim and acknowledged in the Government ’ s counter-claim that self-harming behaviour is likely to occur outside the hospital environment due to overstimulation, especially in patients with M.K. ’ s condition. Thus, I cannot agree with the finding of the Court of Appeal, endorsed by both the Supreme Court and the majority of my colleagues, that “there is no causal link between the wholly unexpected suicide of the applicant ’ s son and the alleged dereliction of the hospital ’ s duty of supervision” (see paragraph 20 of the majority judgment). If the national courts were really to have taken the symptoms of paranoid schizophrenia into consideration, they would naturally have contemplated whether a delusional patient might put himself in harm ’ s way as a result of a psychotic episode, without any intention of actually taking his own life. Once this is established, the State authorities are under an operational obligation to take reasonable measures and to act with due diligence.

It is clear that keeping M.K. in a locked ward would have been detrimental to the process of his recovery, but in view of the foreseeable danger to his safety, the hospital authorities were required to strike a balance between taking all necessary precautions in the circumstances and respecting his freedom of movement. The majority argued that the hospital was reasonable in allowing the patient to go on unsupervised walks and to report back at his convenience, in view of his seemingly improved state which gave no indication of suicidal thoughts. If the envisaged consequences of M.K. ’ s freedom are not suicide-related but escape-related, then I would argue that the total lack of supervision represents a complete forfeiture of any obligational duty to implement reasonable measures. Although the patient showed signs of improvement, he had already tried to escape on two previous occasions. This cannot be completely disregarded when weighing the benefits of open treatment against its downfalls. As unfamiliar environments are likely to trigger delusional fits in patients with M.K. ’ s diagnosis, his escape should have been a real issue for the hospital authorities and should have implied at least some minimal procedural obligations. The medical authorities failed to carry out such a balancing exercise, and by giving the patient such wide exposure to new surrounding they placed him in a dangerous environment which eased the triggering of his delusions and paranoid state (see Reynolds v. the United Kingdom , no. 2694/08 , 13 March 2012 ).

I also disagree with the Austrian Government ’ s statement that “[t]he behaviour of M.K. had not been foreseeable ... and the fact that the risk of self-harm could never be entirely excluded in the case of psychotic patients did not change this assessment” (see paragraph 21 of the judgment). Article 2 of the Convention also implies a duty to investigate in circumstances where a patient such as M.K. takes his or her own life. It is evident that it is no longer possible to determine whether the applicant ’ s son deliberately committed suicide or followed a delusional impulse. Nevertheless, an investigation into the patient ’ s vulnerability and the level of risk he posed to himself on account of his condition could have been conducted to determine the degree of control the hospital ought to have exercised over him in order to guarantee his safety during his walks. Thus, the fact that a psychotic patient faces a risk of self-harm is highly relevant to the circumstances at hand. It, firstly, implies a need for medical examinations into the patient ’ s specific condition and, secondly, indicates that the hospital should be cautious, so as to ensure that it does not unduly provoke a psychotic episode which would increase the patient ’ s chances of self-harming. M.K. ’ s therapeutic walks could still have assisted his recovery even had some additional supervisory measures been put in place by the authorities. Thus, a balance could have been achieved, by granting him the freedom of movement that was deemed beneficial, while still policing against his foreseeable tendency to escape, which could have been anticipated to have destructive consequences.

In these circumstances, I have to agree with the applicant and the Regional Civil Court, to the effect that the hospital authority has breached its positive duty under Article 2 by failing to impose some procedural safeguards to ensure that the patient would not escape from the hospital premises, as it was foreseeable that any such escape could be fatal in the light of his diagnosis.

To conclude, the duty to protect the right to life should not be sacrificed in an attempt to comply with the above-mentioned recent trend in healthcare. I cannot disagree with the findings of the majority, to the effect that the advantages of an open hospitalisation regime are far greater in the treatment of persons in M.K. ’ s state than an entirely restricted hospital regime. Nevertheless, a balance must be struck in providing this “open” medical care, while still ensuring that the hospital authority imposes certain safeguards in order to comply with its positive obligations under Article 2. I strongly believe that no such balance has been reached in the circumstances at hand.

[1] 1. “ For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk .”