SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58973/00
by Tamara Nikolayevna RAKEVICH
against
The European
Court of Human Rights (Second Section), sitting on 5March
2002 as a Chamber composed
of
MrJ.-P.Costa,
President,
MrA.B.Baka,
MrGaukurJ?rundsson,
MrK.Jungwiert,
MrV.Butkevych,
MrsW. Thomassen,
MrA.Kovler,
judges,
and Mrs S. Doll?,
Section Registrar,
Having regard
to the above application lodged on
Having regard
to the observations submitted by the respondent Government and the observations
in reply submitted by the applicant,
Having deliberated,
decides as follows:
THE FACTS
The applicant,
TamaraNikolayevna Rakevich, is a Russian national,
who was born in 1961 and lives in Yekaterinburg. She is represented before
the Court by Anna Demeneva, a lawyer practising in Yekaterinburg.
A. The
circumstances of the case
The facts of
the case, as submitted by the parties, may be summarised as follows.
1.
The applicant’s placement in a mental hospital
On
The applicant
was taken to the Yekaterinburg City Psychiatric Hospital No. 26. The doctor
on duty qualified the applicant’s condition as a grave mental disorder
that manifested itself in the applicant’s being a danger to herself (she
had previously escaped from a general hospital, experienced fear, anxiety
and disorientation) and her being helpless (the applicant had cried: “I
do not understand anything! I am afraid!” and was uncooperative with the
doctor).
On
Two days later,
on
2.
Judicial review of the detention
On
The applicant’s
representative did not have any access to the report of the medical commission
either before or after the hearing, despite his requests.
On
On
On
B. Relevant
domestic law
The basic principles
of psychiatric medical care in Russia are governed by the Law on Psychiatric
Treatment and Associated Civil Right Guarantees, enacted in 1992 (“the
Act”).
Section 29
of the Act sets out the grounds for involuntary placement in a psychiatric
facility:
“A mentally
disturbed individual may be hospitalised in a psychiatric facility contrary
to his will or the will of his legal representative without a court decision,
if the individual’s examination or treatment can only be carried out by
in-patient care, and the mental disorder is severe enough to give rise
to:
a) a
direct danger for the person or for others, or
b) the
individual’s helplessness, i.e. an inability to take care of himself, or
c)
a significant impairment in health as a result of a deteriorating
mental condition, if the affected person were to be left without psychiatric
care.”
Section 32
of the Act specifies the procedure for the examination of patients compulsorily
confined in a hospital:
“(1)
A person placed in a psychiatric hospital on the grounds defined by Section
29 of the present Act shall be subject to compulsory examination within
48 hours by a commission of psychiatrists of the hospital, which commission
shall take a decision as to the necessity of hospitalisation. If no reasons
for hospitalisation are established and the hospitalised person expresses
no intention of remaining in the hospital, the person shall be released
immediately.
(2)
If hospitalisation is considered necessary, the conclusion of the
commission of psychiatrists shall be forwarded to the court having territorial
jurisdiction over the hospital, within 24 hours, for a decision as to the
person’s further confinement in the hospital.”
Sections 33-35
set out in detail the procedure for judicial review of applications for
compulsory treatment of mentally ill persons:
Section
33
“(1)
Involuntary hospitalisation for in-patient psychiatric care on the
grounds defined by Section 29 of the present Act shall be subject to review
by the court having territorial jurisdiction over the hospital.
(2) An
application for the involuntary placement of a person in a psychiatric
facility shall be filed by a representative of the hospital where the person
is detained.
The application
containing the grounds for involuntary psychiatric hospitalisation shall
be accompanied by a reasoned conclusion of a commission of psychiatrists
as to the further necessity of the person’s in-patient treatment in a psychiatric
facility.
(3)
A judge who accepts the application for review shall simultaneously
order the person’s detention in a psychiatric hospital for the term necessary
for that review.”
Section
34
“(1)
An application for the involuntary placement of a person in a psychiatric
hospital shall be reviewed by a judge on the premises of the court or hospital
within five days after receipt of the application.
(2) The
person shall be allowed to participate personally in the hearing to determine
whether he should be hospitalised. If, on the information provided by a
representative of the psychiatric hospital, the person’s mental state does
not allow him to participate personally in the hearing, the application
shall be reviewed by the judge on the hospital’s premises.
(3)
The presence at the hearing of a public prosecutor, a representative
of the psychiatric institution requesting hospitalisation, and a representative
of the person who it is intended to detain, shall be mandatory.”
Section
35
“(1)
Upon examination of the application on the merits, the judge shall
either grant or refuse it.
(2) The
judge’s grant of the application shall justify the person’s hospitalisation
and further confinement in the hospital.
(3) The
judge’s decision shall be subject to appeal within ten days by the person
placed in the psychiatric hospital, his representative, the
head of the psychiatric hospital as well as by an organisation entitled
by virtue of law or its by-laws to protect citizens’ rights, or by a public
prosecutor. The appeal shall be made in accordance with the rules established
in the Code of Civil Procedure of the RSFSR.”
COMPLAINT
The applicant
complains under Articles 5 and 6 of the Convention about her compulsory
placement in the psychiatric hospital. She points out that she had not
been diagnosed as mentally ill at the time of her detention and that no
ground existed to detain her. It is also claimed that the judicial review
of the applicant’s arrest lasted too long, even without reference to the
time-limits established by domestic law, and was a mere formality.
THE LAW
The applicant
claims, with reference to Articles 5 and 6 of the Convention, that her
compulsory psychiatric detention was not necessary and that there was non-compliance
with the domestic law on the judicial review of such detention. The Court
considers that this complaint falls to be examined under Article 5, which,
insofar as relevant, reads as follows:
“1.
Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law: ...
(e) the
lawful detention ... of persons of unsound mind...
4.
Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention
is not lawful ...”
The Government
submit that the applicant’s detention was justified under Article 5 § 1
(e) as the lawful detention of a person of unsound mind. They argue that
the applicant’s initial detention on 26 September 1999 was necessitated
by her condition, which was later confirmed by the hospital orders of 29
September (28 September, according to the applicant) and 4 November 1999,
based on an objective medical opinion that the applicant had been suffering
from a mental disorder of such a degree that confinement was warranted.
The Court should be slow to reject that conclusion. Nor was there any reason
to believe that the applicant’s detention was arbitrary.
The Government
concede that, according to Section 34 of the Law on Psychiatric Treatment
and Associated Civil Right Guarantees 1992, judicial review of the applicant’s
detention should have taken place within five days of the decision to hospitalise
her, whereas it in fact took forty days - until
In respect
of the possibility for the applicant to challenge her detention before
a court, the Government claim that the applicant did benefit from such
a possibility as she and her lawyer took part in the hearing before the Ordzhonekidzevskiy
District Court on 5 November 1999 and were successfully able to appeal
the court’s decision.
The applicant
disagrees with the Government. She states that, contrary to Convention
case-law, she was not reliably shown to be of unsound mind either at the
moment of her hospitalisation or after the medical report had been drawn
up. The applicant submits that her condition at the time of the detention
was not such as to show an “urgent” case because she did not behave violently
and did not pose a threat to herself or others. Moreover, she had no history
of mental disturbance, and the authorities never considered alternatives
to detention. The applicant further points to inconsistencies between the
reasons given for her detention on her admission to the hospital, as now
submitted by the Government, and the reasons contained in the court ruling
of
The applicant
argues that her detention was in any event unlawful within the meaning
of Article 5 § 1 (e) of the Convention because the time-limits laid down
in the Act were not complied with. The applicant challenges the interpretation
of Section 33 § 3 of the Act suggested by the Government as offering a
certain “judicial control” of the detention. According to the applicant,
the mere communication by a hospital administration to a court of an application
for detention in no way assumes any effective involvement of the judiciary
in the matter.
Finally, the
applicant maintains that the procedure for the review of her detention
did not comply with Article 5 § 4 of the Convention, as the courts failed
to examine the factual circumstances of the case thoroughly, did not hear
M. (the person who initiated the whole procedure and was a crucial witness),
and did not provide access to the case-file to the applicant’s lawyer.
The applicant also believes that the decision taken forty days after her
detention was not “speedy”.
The Court considers,
in the light of the parties’ submissions, that the complaint raises serious
issues of fact and law under the Convention, the determination of which
requires an examination of the merits. The Court concludes therefore that
this complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. No other ground for declaring it inadmissible
has been established.
For these
reasons, the Court unanimously
Declares
the application admissible.
S. Doll?J.-P. Costa
RegistrarPresident