CONCURRING OPINION OF JUDGE TULKENS

(Translation)

1. I share the majority ’ s decision that in the present case there has not been a violation of Article 5 § 1 of the Convention , but I wish to address a point, in the applicant ’ s complaints (see paragraph 46 of the judgment), that could be the source of a misunderstanding.

2. As a general rule, the constitutive elements of a criminal offence are respectively the legal element, the material element and the mental element. As regards this last element, which includes the accountability of the perpetrator for the offence , the Lithuanian Criminal Code, like in fact the majority of contemporary criminal codes, lays down rules governing legal incapacity resulting from mental illness. A person will be regarded as “legally incapacitated where, at the time of commission of an act forbidden under this Code, he was unable to understand the dangerous nature of the act or to control his behaviour as a result of a mental disorder” (Article 17 § 1). This provision thus sets out a ground for non- accountability , which precludes the establishment of criminal responsibility and allows the court to order compulsory medical treatment: “A person found legally incapacitated by a court shall not be held liable under this Code for having committed a dangerous act. The court may order that compulsory medical treatment as provided for in Article 98 of this Code be applied” (Article 17 § 2). It is on that basis that the Jonava District Court, on 27 January 2006, held that the applicant had committed the offences in question while lacking criminal responsibility and relieved him from serving the sentence.

3. As to the applicant ’ s confinement in a psychiatric institution during the pre-trial investigation and trial, as ordered by the Jonava District Court on 28 October 2004 and extended on 21 September 2005, it was decided on the basis of Article 141, Articles 208 and 209, and Articles 392 et seq. , of the Lithuanian Code of Criminal Procedure. More specifically, Article 403 of th e latter refers to Article 98 of the Criminal Code as regards the various measures of compulsory medical treatment.

4. Whilst in some criminal-law systems the rules governing offenders of unsound mind are set out in special statutes, in the present case it was thus Article 98 of the Criminal Code which provided for the various types of treatment that could be ordered. The inclusion of these measures in the Criminal Code does not indicate, however, that they were criminal sanctions, because a person lacking capacity cannot be recognised as having criminal responsibility.

5. Article 98 § 5 of the Lithuanian Criminal Code provides that “[a] court shall order in-patient treatment under strict observation at a specialist establishment where a person has made an attempt on a person ’ s life or health and is particularly dangerous to those around him due to a mental disorder”. This provision lays down the criteria that may be taken into consideration when determining the measure to be ordered.

6. The reference in Article 98 § 5 to “ an attempt on a person ’ s life or health ” does not necessarily concern the offences with which the applicant was initially charged, namely theft , unlawful possession of a firearm and fraudulent use of a bank card (paragraph 21 of the judgment ), although the possession of firearms may perhaps constitute a danger to the lives of others. That provision, as worded, does not require, for the measure of placement under strict observation, that the individual must actually have committed a crime against persons, but it concerns more generally any attempts on a person ’ s life and the danger represented by the offender as a result of mental illness .

7. In the present case, the judicial authorities observed on numerous occasions, on the basis of medical reports, that the applicant, who had been confined in a psychiatric institution since the start of the proceedings, represented a threat to others (paragraphs 23 and 26 of the judgment ), was aggressive (paragraphs 24 and 31 of the judgment ), and had attacked a nurse (paragraph 28 of the judgment ) , his behaviour being destructive both for himself and for others ( see paragraph s 34 and 35 of the judgment ).

8. Lastly, in my view, a safeguard against arbitrariness seems to be provided by the fact that in-patient treatment under strict observation at a specialist establishment is decided by the court . In addition, the fact that the court for the person ’ s place of residence must assess the appropriateness of the compulsory medical measures every six months ( Article 98 § 6 of the Criminal Code and Article 405 of the Code of Criminal Procedure ) also has the potential to prevent any abuse .

DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE AND KELLER

1. To our regret, we are unable to follow the opinion of the majority in this case. In our opinion, the applicant was not detained in accordance with a procedure prescribed by law as required by Article 5 § 1 of the European Convention on Human Rights (the Convention).

I. The Facts

2. The applicant has a long criminal record. He committed various crimes and was treated several times in psychiatric hospitals. He suffers from hebephrenic schizophrenia.

3. In a first phase (1998-2004), the applicant was convicted of thefts and robberies. Lacking criminal responsibility, he was placed in a psychiatric hospital under “general observation”. In June 2004, the applicant escaped from the psychiatric hospital, but was detained shortly afterwards by the police. On 24 August 2004, he was informed that he was suspected of thefts, fraud and unlawful possession of firearms .

4. On 10 September 2004 an expert psychiatric report concluded that the applicant was unable to understand his actions, and recommended that he be kept “ under strict observation ” in the psychiatric hospital. The expert qualified the applicant ’ s behaviour as antisocial. It is important to emphasise that at that time the expert did not qualify the applicant as particularly dangerous.

5. On 28 October 2004 the Jonava District Court ordered that the applicant be admitted to psychiatric care under “strict observation”.

6. On 17 January 2005 the applicant was charged with theft, unlawful possession of a firearm and fraudulent use of a bank card .

7. On 20 July 2005 the psychiatric hospital recommended keeping the applicant “under strict observation”, because he was a threat to others and lacked critical thinking. The hospital gave no further explanation as to the nature of the threat, but stated that the applicant was aggressive.

8. Finally, on 27 January 2006 the applicant was convicted of unauthorised possession of a firearm, theft and fraudulent use of a bank card, but was found criminally irresponsible and relieved from serving a prison sentence. Instead, the court ordered his confinement in a psychiatric hospital “under strict observation”.

9. In a report of the psychiatric hospital dated 23 February 2006, the applicant ’ s alleged dangerous character was referred to again. The report concluded that the applicant was egocentric, considered himself right in every situation, and was uncritical of the criminal acts he was charged with. He was also angry and agitated , and would terrorise other patients and take their pre-paid telephone cards from them. The applicant also threatened to take revenge on his prosecutors and judges. The doctors also mentioned that on 12 April 2005 the applicant had attacked a nurse . Apart from the last point, the particularly dangerous behaviour of the applicant seems not to be obvious from this report. The attack on the nurse is not described in more detail.

10. On 26 March 2007 a report from the psychiatric hospital indicated that the applicant was constantly threatening to hang himself or to kill himself with a knife.

11. On 31 March 2008 the applicant was placed under the increased observation regime; on 1 October of that same year he was placed under general observation , and on 18 May 2009 he was again placed under increased observation .

II. The National Law

12. In Lithuanian law a mentally sound person is given a sentence after being found guilty of a criminal act committed with mens rea . A mentally ill person, on the other hand, is subjected to a security measure based on the criminal act committed and the danger he or she represents to the community. This twin-track system of sanctions is common in continental Europe . As the Government have acknowledged, the person ’ s mental illness, the nature of the act committed and the danger likely to be caused by the person are the relevant factors the trial court has to take in account in ordering a security measure. The law defines different types of compulsory medical treatment for persons who cannot be made to serve a criminal sentence under Article 17 of the Lithuanian Criminal Code because they do not understand the meaning of their actions or they cannot control their own behaviour.

13. Article 98 of the Lithuanian Criminal Code provides for four different forms of compulsory medical treatment for mentally ill persons who are not responsible for their acts: 1) out-patient observation; 2) in-patient treatment under “general observation” – under this regime patients are free to walk around and are hardly controlled at all; 3) in-patient treatment under “increased observation”, where the possibility of movement is restricted, and finally, 4) in-patient treatment under “strict observation”: under this regime the patients are kept in locked rooms; they are entitled to 15-minute walks in the hospital ’ s courtyard at least four times a day, and their rights to correspondence and visits are restricted.

14. Out-patient observation is applied when the mentally ill person who has committed a criminal act does not need in-patient treatment.

15. In-patient treatment under general observation is applied when the mentally ill person who has committed a criminal act needs observation and treatment at a specialised mental health care establishment.

16. In-patient treatment under increased observation depends on two conditions: first, the mentally ill person must have committed a dangerous criminal act and, second, such observation must be deemed necessary. The law does not require any particular gravity of the criminal act other than its “dangerous” character.

17. In-patient treatment under strict observation can only be ordered when “a person has made an attempt on a person ’ s life or health and is particularly dangerous to those around him because of a mental disorder”. In other words, the strict observation regime can only be applied if both of the above conditions are met: the mentally ill person has committed a crime against another person ’ s ! life or health and he or she is especially dangerous . In our view, these two conditions are cumulative: first, the provision uses the conjunction “and”, and second, otherwise there would be no substantive difference between the legal conditions of internment under increased observation and those of internment under strict observation.

18. At this juncture, it is important to note that these are four different sanctions applicable to mentally ill persons who have committed crimes and are relieved from serving a criminal sentence for lack of criminal responsibility. These are not, as the letter of Article 98 alone and read in conjunction with Article 17 clearly show s , different forms of one single sanction for mentally ill criminals. In fact, the law itself speaks of “the following compulsory treatment measures” in the plural , and each one of these “measures” requires specific conditions to be applied in a particular case . The most important of these legal conditions is the nature of the crime committed.

19. Finally, Article 141 of the Lithuanian Code of Criminal Procedure provides for the admission of a suspect to a medical institution during a criminal investigation. If the suspect is “dangerous to the public”, he or she may be retained at the examining institution while the criminal proceedings are pending.

III. The Applicant ’ s Claim

20. Without relying on any particular Article of the Convention, the applicant argued that the national courts had arbitrarily ordered his placement under stricter conditions than provided for by law.

IV. The Violation of Article 5

21. Article 5 § 1 of the Convention stipulates that any deprivation of liberty must be “ in accordance with a procedure prescribed by law”. Although it is in the first place for the national authorities to decide whether the relevant domestic law has been complied with or not, the Court regularly finds a violation of Article 5 § 1 of the Convention where an infringement of the principle of legality is apparent (among many other authorities, see Koendjbiharie v. the Netherlands , no. 11487/85 , 25 October 1990 ; Van der Leer v. t he Netherlands , no. 11509/85 , 21 February 1990 ; and Zervudacki v. France , no . 73947/01 , 27 July 2006 ).

22. We do not dispute the lawfulness of the applicant ’ s pre-trial detention from 17 June 2004 to 28 October 2004. On this last date the Jonava District Court ordered that he should be placed in psychiatric care “under strict observation”, which measure took effect on 4 November 2004.

23. Unlike the majority, we consider that the applicant ’ s confinement “under strict observation” after 4 November 2004 breached the relevant domestic law, namely Article 98 of the Criminal Code. Whereas Article 141 of the Code of Criminal Procedure allows for admission to a medical examining institution pending criminal proceedings, it is Article 98, paragraphs 2–5 of the Criminal Code that provides the relevant provisions for the deprivation of liberty during compulsory medical treatment of persons recognised as legally incapacitated or of diminished capacity (in-patient treatment under general observation, increased observation and strict observation; see our paragraphs 14-17).

24. Although the offences the applicant was charged with on 17 June 2004 and 17 January 2005 were serious (theft, unlawful possession of a firearm and fraudulent use of bank cards), none of these charges were related to crimes against a person ’ s life or health, nor was his aggressive character apparent at that time. Since the charges levelled against the applicant did not match the requirements mentioned in Article 98, paragraph 5, of the Criminal Code, he should not have been submitted to the most stringent form of internment. In our view, the principle of legality d oes not allow the application during criminal proce e d ings of a form of internment more stringent than that appli cable at the end of the proce e d ings .

25. It was only at a later stage in the criminal proceedings, in April 2005, that the applicant allegedly became violent towards the medical staff and other patients, but these facts were not imputed to the applicant. No new criminal charges were brought against him based on these alleged new criminal acts. Thus, when on 27 January 2006 the Jonava District Court found that the applicant had committed the offences with which he was charged (theft, unlawful possession of a firearm and fraudulent use of bank cards), but relieved him from serving his criminal sentence and ordered his in-patient treatment “under strict observation”, the cumulative conditions set forth in Article 98, paragraph 5 wer e clearly not met. In view of the nature of the crimes the applicant was found to have committed, after 17 January 2005 Article 98 of the Criminal Code only allowed for him to be placed under general observation (Article 98, paragraph 3) or increased observation (Article 98, paragraph 4), the principle of legality impeding the application of a security measure more stringent than the one provided for by the strict conditions set out in the Criminal Code .

26. The Kaunas Regional Court based its assessment of the lawfulness of the imposed security measure on the applicant ’ s “aggressive behaviour” referred to in expert report no. 354. In so doing, the domestic court not only based the applicability of the most stringent security measure on a vague non-legal criterion, but it also used new non-proven criminal facts which had allegedly occurred after the applicant had been charged. That interpretation of Article 98, paragraph 5 does not respect the principle of legality . Yet the Supreme Court, like the majority of this Court, confirmed that assessment. The majority of the Court put forward three motives for considering the treatment under strict observation “lawful and appropriate”: the applicant ’ s history of mental troubles, his prior escape from an institution while under general observation and his commission of fresh crimes soon thereafter (see paragraph 60 of the judgment). These motives do not correspond to the strict conditions required f or the application of the security measure provided for in Article 98, paragraph 5 of the Criminal Code. While being sufficient for the application of a security measure of internment under increased observation, they are not sufficient to justify the application of internment “under strict observation”, for which the requirements are more demanding. Hence, the interpretation of the disputed provision advanced by the domestic courts and confirmed by the majority breaches the principle of nulla poena sine lege stricta , which is applicable to security measures ( on the applicability of the principle of legality to security measures, see M. v. Germany , no. 19359/04, §§ 125-133, 17 December 2009 ).

27. Without prejudice to serious Article 8 issues related to the stringent nature of the security measure of internment “under strict observation”, which should have deserved the Court ’ s attention, we find that both the period of internment between 4 November 2004 and his conviction on 27 June 2006, and the period between this last date and 31 March 2008 were not lawful. It follows that the psychiatric confinement of the applicant “ under strict observation ” after 4 November 2004 failed to comply with the principle of legality of security measures. We are therefore of the opinion that the deprivation of the applicant ’ s liberty was not “ in accordance with a procedure prescribed by law” as required by Article 5 § 1 of the Convention.