ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 28.10.2003"ДЕЛО "РАКЕВИЧ (rakevich) ПРОТИВ РОССИЙСКОЙ ФЕДЕРАЦИИ" [рус., англ.]

Unlawful actions of medical, social, educational and other staff and of medical commissions involved in psychiatric care may be complained about ... to a court, a supervising authority or a public prosecutor..."
Section 48
"1. The complaints [defined in section 47-1] shall be considered by a court in accordance with chapter 24-1 of the Code of Civil Procedure..."
Chapter 24-1 of the Code of Civil Procedure outlines the procedure for the judicial review of administrative penalties.
THE LAW
I. Alleged violation of Article 5 § 1 (e) of the Convention
19. The applicant alleged that her detention in the psychiatric hospital was in breach of Article 5 § 1 (e) of the Convention, which reads insofar as relevant 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..."
A. Arguments of the parties
1. The applicant
20. The applicant submitted that she had not been reliably shown by objective medical evidence to be of "unsound mind" at the moment of her detention. She had no history of psychiatric troubles, still less any diagnosed disorder. Furthermore, in her spare time she indulged in mountaineering and had the qualifications necessary for this sport which would not be possible if she were a lunatic.
21. The applicant also submitted that the circumstances in which her detention had taken place could not be called a "psychiatric emergency". The grounds cited by the Ordzhonikidzevskiy District Court to justify her hospitalisation - being "deranged", staying awake at night, weeping over the Scriptures, writing frequent complaints - were grotesque and did not, even remotely, disclose an emergency. The applicant maintained that her behaviour was not violent and did not pose a risk to her or others" safety. In the applicant"s opinion, a religious pastime at a friend"s home was not dangerous, at any rate not to the public.
22. The applicant claimed further that her detention was not "lawful" for a number of reasons. First, neither the Psychiatric Treatment Law nor any other law defined the meaning of "being a direct danger to oneself" - the main ground for her detention. As such, this criterion was open to far too broad an interpretation, and the Law did not, therefore, meet the Convention requirements of legal certainty and foreseeability. Secondly, the Law did not provide sufficient guarantees against arbitrary detention because it did not require an independent medical report on a detainee. Lastly, it took the Ordzhonikidzevskiy District Court thirty-nine days, rather than the five required by the Law, to examine her case.
2. The Government
23. The Government insisted that the applicant was found, medically, to be of unsound mind before her commitment to the hospital. The ambulance doctor and the doctor on duty at the hospital both stated that the applicant was suffering from an acute psychotic condition accompanied by confusion, fear and psychomotor excitation.
24. The Government also argued that the applicant"s condition on the eve of her detention could well be described as a "psychiatric emergency". According to the medical evidence relied on by the Government, the condition was such that only urgent hospitalisation could thwart the danger which the applicant posed to herself and others.
25. The Government conceded that the time-limit for the judicial review of the detention was not respected. However, nothing suggested that the delay had caused any harm to the applicant"s health.
B. The Court"s assessment
1. Whether the applicant was a "person of unsound mind"
26. The Court recalls that the term "a person of unsound mind" does not lend itself to precise definition since psychiatry is an evolving field, both medically and in social attitudes. However, it cannot be taken to permit the detention of someone simply because his or her views or behaviour deviate from established norms (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A No. 33, § 37).
27. Furthermore, for compulsory psychiatric confinement to be "lawful" within the meaning of Article 5 § 1 (e) of the Convention, three basic requirements must be fulfilled. First, the individual concerned must be reliably shown by objective medical expertise to suffer from "a true mental disorder" except in an emergency. Secondly, the disorder must be of a kind or degree warranting compulsory confinement. Thirdly, the disorder must persist throughout the period of detention (see Winterwerp, cited above, § 39).
28. It is clear that the applicant did not have a documented history of mental disorder before her hospitalisation on 26 September 1999. The first psychiatrist she encountered was the doctor of the ambulance team. Whilst medical expertise of mental disturbance must be obtained before hospitalisation, this requirement may recede in cases of emergency. The Court must therefore determine if the events of 26 September 1999 represented a genuine emergency.
29. According to the judgment of the Ordzhonikidzevskiy District Court, on the day of her hospitalisation the applicant was in a deranged state of mind after a night-long emotional study of the Bible. These facts alone would not, in the Court"s view, suggest that the person urgently needed to be detained in a psychiatric facility. However, the somewhat equivocal words of the District Court are supplemented by medical evidence. The psychiatric reports indicate that on 26 September 1999 the applicant had an acute and rapidly progressing mental condition which manifested itself, foremost, in disorientation. The Court has no reason to doubt the accuracy of these reports, and is satisfied that the applicant"s condition presented an "emergency".
30. In so far as the applicant asserts that her condition did not necessitate psychiatric confinement, the Court reiterates that in deciding whether an individual should be detained as a "person of unsound mind", the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence before them in a particular case (see Winterwerp, cited above, § 40). The Court does not consider that the applicant"s detention was arbitrary as the authorities" decision was based on psychiatric evidence that she was mentally ill. There is no reason to diverge from this finding.
2. Whether the applicant"s detention was "lawful"
31. The Court does not agree with the applicant that the Psychiatric Treatment Law, namely its provisions dealing with the grounds for compulsory confinement, are too vague and imprecise to comply with the legal certainty principle inherent in the Convention. According to this principle, the law must be sufficiently precise to enable an individual to regulate his conduct, but it does not require absolute precision (see The Sunday Times v. the United Kingdom (No. 1) judgment of 26 April 1979, Series A No. 30, § 49).
32. Section 29 of the Psychiatric Treatment Law makes compulsory confinement possible if, inter alia, "the mental disorder is severe enough to give rise to a direct danger to the person or to others." In the Court"s view, it is not necessary for the lawmaker exhaustively to interpret the term "danger", as it is hardly possible to embrace in the law the whole diversity of conditions which involve psychiatric hazards. Furthermore, the Law requires the courts to review all cases of compulsory confinement on the basis of medical evidence, and this is a substantial safeguard against arbitrariness.
33. The Court further recalls that the authorities must also conform to the requirements imposed by domestic law in the proceedings concerning detention (see Van der Leer v. the Netherlands, judgment of 21 February 1990, Series A No. 170-A, §§ 23 - 24; Wassink v. the Netherlands, judgment of 27 September 1990, Series A No. 185-A, § 27; Erkalo v. the Netherlands, judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 57).
34. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can, and should, exercise a certain power of review of such compliance (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, § 41).
35. The Court notes that, under section 34-1 of the Psychiatric Treatment Law, a judge must grant or refuse a detention order within five days of the hospital"s application for it. In the present case, the hospital applied for the detention order on 26 September 1999, but it was not until 5 November 1999, that is thirty-nine days later, that the application was considered by the Ordzhonikidzevskiy District Court. Therefore, the applicant"s detention did not follow the procedure prescribed by law. Consequently, there has been a violation of Article 5 § 1 of the Convention.
II. Alleged violation of Article 5 § 4 of the Convention
36. The applicant further complained that the judicial review of her detention was deficient in its scope, fairness and speed. She also maintained that, under the Psychiatric Treatment Law, a detainee did not have a right to initiate a judicial review of detention. In respect of these complaints, the applicant relied on Article 5 § 4 of the Convention, which reads as follows:
"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."
A. Arguments of the parties
1. The applicant
37. The applicant submitted that for thirty-nine days after her detention she had no access to a judge. This period not only breached the Psychiatric Treatment Law but was also too long in absolute terms. In the applicant"s opinion, the domestic court remained inactive throughout this period.
38. The applicant further submitted that the proceedings before the Ordzhonikidzevskiy District Court were tainted by a number of procedural defects. In particular, neither the applicant nor her lawyers had access to any medical files before, during or after the proceedings. Moreover, the court did not summon M. who was a crucial witness.
39. Finally, the Psychiatric Treatment Law did not permit involuntary patients to initiate any judicial control of their detention. Although automatic judicial review was an important safeguard against arbitrariness, it should not exclude the right of the detained person to take proceedings.
2. The Government
40. The Government claimed that permitting the applicant to examine the medical evidence would have served no purpose since this information could have aggravated her condition and her illness prevented her from interpreting it correctly. They claimed that there had been no need to hear M. as this person was not a psychiatrist and her testimony would have added little to the case.
41. The Government submitted that the applicant never asked for access to the medical files and that, when her lawyer did so, his request was promptly granted.
42. In connection with the applicant"s allegation that she could not initiate any judicial review of her detention, the Government argued that such a remedy did exist. They referred to sections 47 and 48 of the Psychiatric Treatment Law which empowered mental health detainees to complain to a court about any actions of medical staff. The Government added that, in any event, the Law contained an effective safeguard against arbitrariness as compulsory commitment was only made possible by a court decision based on a medical report.
B. The Court"s assessment
43. The Court notes that the cornerstone guarantee of Article 5 § 4 is that a detainee must have the right actively to seek judicial review of his detention (see, e.g., Musial v. Poland, judgment of 25 March 1999, Reports 1999-II, § 43).
44. The administration of the hospital, acting under section 33-2 of the Psychiatric Treatment Law, applied for the judicial review of the applicant"s detention. The Law did not permit the applicant to apply to the court herself. Instead, the initiative lay solely with the medical staff. However, Article 5 § 4 requires in the first place an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the detention. When this remedy is available, the detainee"s access to the judge should not depend on the good will of the detaining authority. Whilst the legal mechanism contained in sections 33 - 35 of the Psychiatric Treatment Law, ensuring that a mental patient is brought before a judge automatically, constitutes an important safeguard against arbitrary detention, it would still be deficient if it does not contain the basic guarantee of Article 5 § 4. Surplus guarantees do not eliminate the need for fundamental ones.
45. It does not appear that the Law on Psychiatric Treatment provided the applicant with a direct right of appeal in order to secure her release. Sections 47 and 48 of the Law referred to by the Government recognised a detainee"s right to complain about the unlawful actions of medical staff in general, but Article 5 § 4 requires a specific remedy to protect the liberty of a detainee.
46. The Court therefore finds that the applicant was not entitled to take proceedings to test the lawfulness of her detention by a court, as required by Article 5 § 4 of the Convention. There has, accordingly, been a violation of that provision.
47. Moreover, since the proceedings did not satisfy the core requirement of Article 5 § 4, and in view of the finding of a violation of Article 5 § 1 due the excessive length of the proceedings in the present case, it is not necessary to assess the manner in which the proceedings were conducted, in particular whether they were "speedy".
III. Application of Article 41 of the Convention
48. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
49. The applicant claimed compensation for the non-pecuniary damage suffered by her and the reimbursement of her pecuniary losses, legal costs and expenses. The Government contested these claims.
A. Non-pecuniary

"СОГЛАШЕНИЕ МЕЖДУ МИНИСТЕРСТВОМ ЗДРАВООХРАНЕНИЯ РОССИЙСКОЙ ФЕДЕРАЦИИ И МИНИСТЕРСТВОМ ЗДРАВООХРАНЕНИЯ РЕСПУБЛИКИ БЕЛОРУССИЯ О ВЗАИМНОМ ПРИЗНАНИИ САНИТАРНО-ЭПИДЕМИОЛОГИЧЕСКИХ ЗАКЛЮЧЕНИЙ РОССИЙСКОЙ ФЕДЕРАЦИИ И УДОСТОВЕРЕНИЙ О ГОСУДАРСТВЕННОЙ ГИГИЕНИЧЕСКОЙ РЕГИСТРАЦИИ РЕСПУБЛИКИ БЕЛОРУССИЯ"(Заключено в г. Москве 24.10.2003)  »
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