CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 avril 2012

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margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA68D9128 { width:171.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIFTH SECTION           CASE OF M. v. UKRAINE   (Application no. 2452/04)               JUDGMENT       STRASBOURG   19 April 2012   FINAL   19/07/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of M. v. Ukraine , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President,   Elisabet Fura,   Karel Jungwiert,   Boštjan M. Zupančič,   Mark Villiger,   Ganna Yudkivska,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 27 March 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 2452/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms M. (“the applicant”), on 5 January 2004. The President of the Fifth Section decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 3 of the Rules of Court). 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. 3.     The applicant alleged, in particular, that her placements in the psychiatric hospital had been contrary to Article 5 § 1 of the Convention. 4.     On 10 September 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article   29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1964 and lives in Odessa. A.     The applicant’s admissions to the psychiatric hospital 1.     The applicant’s first hospitalisation 6.     In the period between 10 September and 13 October 1999 the applicant had in-patient treatment in the Odessa Region Psychiatric Hospital (“the hospital”) which is a State-run institution. In 2000 she was registered with the Odessa Region Psychoneurological Dispensary (“the psychoneurological dispensary”) as a person with potential mental problems. 2.     The applicant’s second hospitalisation 7 .     On 24 September 2003 the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in-patient treatment for a serious mental disorder. However, the applicant ignored the referral and stayed at home with her mother. A report of the applicant’s assessment was provided to the hospital. 8.     In the next few days the applicant’s condition worsened and her behaviour became aggressive towards her mother and neighbours. The mother and the housing maintenance authority therefore complained to the hospital about the applicant’s conduct. 9 .     In the morning of 28 September 2003 the applicant was taken to the hospital by ambulance and was assessed by a psychiatrist of the hospital, who concluded that she needed to be hospitalised for a serious mental disorder. The applicant was therefore kept in the hospital. 10 .     On 29 September 2003 a panel of three different psychiatrists of the hospital assessed the applicant once again and issued a report stating that she was a danger to society due to her serious mental disorder, which required in-patient psychiatric treatment. The psychiatrists specified in the report that the applicant’s manner of communication with her mother and neighbours was aggressive; she threatened them, threw glass jars, bottles and vases off the balcony, which was on the fifth floor, played loud music at night and damaged property in the apartment. 11.     The hospital therefore lodged an application with a local court, seeking authorisation for compulsory admission to hospital in accordance with sections 14 and 16 of the Psychiatric Assistance Act. 12.     On 30 September 2003 a judge at the local court conducted an on ‑ site hearing of the applicant’s case in the administration wing of the hospital. The hearing was held in the presence of a prosecutor and one of the doctors who had assessed the applicant earlier. Following the hearing the court allowed the application and held as follows: “... having examined the case file and heard a representative of [the hospital] and a prosecutor, the court considers that the application in question should be allowed. It appears from the case file that the patient was taken from home to [the hospital] by the ambulance after showing signs of mental illness which suggested that she was a danger to society. A panel of psychiatrists [of the hospital] has concluded that the patient should have in-patient treatment. Relying on the Psychiatric Assistance Act and Article 202 of the Code of Civil Procedure, the court has decided that [M.] should be compulsorily hospitalised to undergo medical treatment. The decision shall not be subject to appeal. ...” 13.     On 19 December 2003 the compulsory treatment was completed and the applicant was discharged from the hospital. 14.     According to the applicant, the sanitary and hygienic conditions in which she was kept in the hospital were unsatisfactory. 3.     The applicant’s third hospitalisation 15 .     On 15 July 2004 the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in-patient treatment for a serious mental disorder. The applicant refused the proposed treatment and stayed at home. A report of the assessment of the applicant was sent to the hospital. 16.     After the assessment, the applicant’s condition worsened in a similar way as before the second hospitalisation and the neighbours and the housing maintenance authority complained to the hospital about her behaviour. 17 .     In the morning of 19 July 2004 the applicant was taken to the hospital by ambulance and assessed by a psychiatrist there, who concluded that she was suffering from a mental disorder and needed to be hospitalised. The applicant was therefore kept in the hospital. 18 .     On 20 July 2004 a panel of three psychiatrists of the hospital, including the psychiatrist who had assessed the applicant the previous day, issued a report stating that the applicant was a danger to society due to her serious mental disorder and that she needed in-patient treatment. The hospital therefore applied to the court for an order for compulsory admission. 19.     On 21 July 2004 the local court allowed the application, following an on-site hearing held in the administration wing of the hospital. The hearing was attended by the prosecutor and one of the psychiatrists who had previously assessed the applicant. The court held as follows: “... having examined the case file and heard a representative of [the hospital] and a prosecutor, the court considers that the application in question should be allowed. It appears from the case file that on 19 July 2004 the patient was taken from home to [the hospital] by ambulance after showing signs of a serious mental disorder. For this reason a panel of psychiatrists found that the applicant was a danger to society and should be compulsorily admitted to [the hospital] for in-patient treatment. The representative of [the hospital] has submitted that the patient should be admitted to the hospital and treated for a serious mental disorder. Having regard to all the circumstances, the court comes to the conclusion that the patient’s compulsory hospitalisation is required. Relying on the Psychiatric Assistance Act and Article 202 of the Code of Civil Procedure, the court has decided that [M.] should be compulsorily hospitalised to undergo medical treatment. The decision shall not be subject to appeal. ...” 20.     On 8 September 2004 the applicant was discharged from the hospital on completion of the treatment. 4.     The applicant’s fourth hospitalisation 21.     On 13 February 2006 the applicant was assessed by a doctor at the psychoneurological dispensary, who concluded that the applicant’s mental disorder had recurred. 22.     On 17 February 2006 the applicant made a written application for admission to the hospital for treatment. The application was signed only by the applicant. According to the applicant, she had been compelled to do so under the threat of never being discharged from the hospital. She had been in poor health, mentally and physically, that day. 23.     Subsequently, the application was marked and signed by a member of hospital staff, designating the department of the hospital to which the applicant was to be assigned. 24.     According to the applicant, the regime under which she was kept in the hospital was strict, as she had to stay in the hospital for the whole day; her movements within the premises of the hospital were restricted; and her personal belongings were limited in number and inventoried. 25.     On 19 April 2006 the applicant was discharged from the hospital. B.     Labour dispute 26.     On an unspecified date the applicant instituted civil proceedings in the Suvorovskyy District Court of Odessa against Odessa Regional Oncological Hospital, seeking reinstatement in the position of doctor and payment of salary arrears. 27.     On 9 February 2005 the court rejected her claim as unsubstantiated. On 15 June 2005 the Odessa Regional Court of Appeal upheld that judgment. 28.     On the expiration of the time-limit the applicant lodged an appeal on points of law with the Supreme Court against the judgment of 9 February 2005. The applicant did not request the Supreme Court to extend the time ‑ limit. 29.     On 28 October 2005 the Supreme Court declared the applicant’s appeal inadmissible as submitted out of time. II.     RELEVANT DOMESTIC LAW A.     Constitution of 28 June 1996 30.     The relevant provisions of the Constitution read as follows: Article 55 “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” B.     Codes of Civil Procedure 31.     Article 202 of the Code of Civil Procedure of 18 July 1963 (in force until 1 September 2005) provided that a court decision had to be lawful and substantiated. The courts had to substantiate their decision with the pieces of evidence they had examined during the court hearing. 32.     Article 248-1 of that Code provided that that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court. 33 .     The Code of Civil Procedure of 18 March 2004 provides in Section   XI, “Final and transitional provisions”, as follows: “1.     This Code shall enter into force on 1 September 2005 ... 3.     [The following normative acts] shall be repealed with the entry into force of this Code: The Code of Civil Procedure of 18 July 1963 ...” C.     Code of Administrative Justice of 6 July 2005 (in force from 1   September 2005) 34 .     The relevant provisions of the Code read as follows: Article 2 Role of the administrative justice system “1.     The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ... 2.     Any decisions, actions or inaction on the part of public authorities may be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” Article 3 Definition of terms “1.     The terms listed below shall have the following meaning: 1)     the administrative jurisdiction case (hereinafter ‘the administrative case’) – a public-law dispute, referred to an administrative court, in which one of the parties shall be a body of the executive power, local self-governance, its official or the other subject empowered to perform public administrative functions on the basis of legalisation, including those aimed at the exercise of delegated powers; ...” Article 17 Jurisdiction of administrative courts in deciding administrative cases “1.     The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by the subjects of public authority and [legal relationships arising] in the course of public formation of a subject of public authority by way of election or referendum. ...” D.     Psychiatric Assistance Act of 22 February 2000 35 .     The relevant extracts from the Act read as follows: Section 13 Hospitalisation of a person in a mental health facility “A person shall be hospitalised in a mental health facility voluntarily, either at his or her request or with his or her conscious agreement. ... Consent to hospitalisation shall be included in the medical documentation following the signature of the person concerned or his or her legal representative and a psychiatrist.” Section 14 Grounds for compulsory hospitalisation of a person in a mental health facility “A person who is suffering from a mental disorder may be hospitalised in a mental health facility without his or her conscious agreement or without the agreement of his or her legal representative if the medical examination or treatment of that person is possible only within the mental health facility and if, as a result of the serious mental disorder, such a person: commits or expresses real intentions to commit acts which are directly dangerous to this person or to others; or is unable to meet his or her vital needs at the basic level.” Section 16 Assessment of persons compulsorily hospitalised in a mental health facility “A person who has been hospitalised in a mental health facility upon a decision of a psychiatrist on the grounds provided for in section 14 of this Act, shall be assessed, within twenty-four hours, by a panel of psychiatrists of the mental health facility to determine whether the hospitalisation is required. If the hospitalisation is found to be unnecessary and the person concerned does not wish to stay in the mental health facility, he or she shall be immediately discharged. If compulsory hospitalisation of the person is required, a representative of the mental health facility in which the person is being kept shall apply, within twenty-four hours, to the court ... for compulsory hospitalisation of the person on the grounds provided for in section 14 of this Act. ...” Section 17 Continuation of compulsory hospitalisation A person shall be compulsorily retained in a mental health facility exclusively for the period when the grounds justifying his or her hospitalisation exist. A person, who has been compulsorily hospitalised in a mental health facility shall be assessed by a panel of psychiatrists at least once a month to determine whether the person should remain in hospital or be discharged. If compulsory hospitalisation is required for more than six months, a representative of the mental health facility shall apply to the court ... seeking an extension of the compulsory hospitalisation. A report of a panel of psychiatrists giving grounds for an extension of the hospitalisation shall be enclosed with the application... The person’s hospitalisation may subsequently be extended, on each occasion for a period which does not exceed six months. A person subjected to compulsory hospitalisation or his or her legal representative shall be entitled to lodge requests with a court for termination of the compulsory hospitalisation every three months, starting from the date of the court decision extending the hospitalisation.” Section 18 Discharge of a person from a mental health facility “A person shall be discharged from a mental health facility when the assessment or expert examination of his or her mental state has been completed, or when he or she has recovered from the illness, or when his or her mental state has changed to the extent that any further in-patient treatment is no longer required. A person who was voluntarily admitted shall be discharged upon written application by that person or his or her legal representative or upon a decision of a psychiatrist. The discharge of a person who was voluntarily hospitalised may be refused if a panel of psychiatrists finds grounds for compulsory hospitalisation of the person as provided for in section 14 of this Act. In this event procedures for compulsory hospitalisation, continuation of the hospitalisation and discharge shall be conducted as provided for in sections 16, 17 and 22 (paragraphs 2 and 3) of this Act and paragraph   3 of this section. A person subjected to compulsory hospitalisation shall be discharged upon a decision of a panel of psychiatrists or a court decision refusing extension of the hospitalisation. ...” Section 22 The procedure for judicial examination of applications for compulsory provision of psychiatric assistance “... An application by a representative of a mental health facility for compulsory hospitalisation of a patient shall be examined by a court ... within twenty-four hours of receipt of the application. ... Cases concerning compulsory provision of psychiatric assistance shall be examined in the presence of the person concerned. A prosecutor, a legal representative of the person concerned and either a psychiatrist or a representative of the mental health facility shall participate in the hearing.” E.     Prosecution Service Act of 1 December 1991 (with amendments) 36.     The relevant provisions of the Act provide: Section 12 Examination of applications and complaints “The public prosecutor shall examine applications and complaints of violation of rights of individuals and legal entities, except for those complaints which are within the competence of a court. ... A decision taken by a public prosecutor can be appealed against before a higher public prosecutor or a court.” III.     RELEVANT INTERNATIONAL MATERIAL A.     UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care adopted by General Assembly resolution 46/119 of 17 December 1991 37 .     The relevant extracts of this international instrument provide as follows: Principle 11 Consent to treatment 1.     No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle. 2.     Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on: (a)     The diagnostic assessment; (b)     The purpose, method, likely duration and expected benefit of the proposed treatment; (c)     Alternative modes of treatment, including those less intrusive; (d)     Possible pain or discomfort, risks and side-effects of the proposed treatment. 3.     A patient may request the presence of a person or persons of the patient’s choosing during the procedure for granting consent. 4.     A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle. The consequences of refusing or stopping treatment must be explained to the patient. ... Principle 15 Admission principles ... 3.     Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in principle 16 below, apply, and he or she shall be informed of that right. Principle 16 Involuntary admission 1.     A person may be admitted involuntarily to a mental health facility as a patient or, having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with principle 4 above, that that person has a mental illness and considers: (a)     That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or (b)     That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative. In the case referred to in subparagraph (b), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs. 2.     Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient’s personal representative, if any, and, unless the patient objects, to the patient’s family. ... Principle 17 Review body 1.     The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account. 2.     The initial review of the review body, as required by paragraph 2 of principle 16 above, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law. 3.     The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law. 4.     An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law. 5.     At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of principle 16 above are still satisfied, and, if not, the patient shall be discharged as an involuntary patient. 6.     If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient. 7.     A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility. ...” B.     Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder (Adopted by the Committee of Ministers on 22 September 2004 at the 896th meeting of the Ministers’ Deputies) 38 .     The relevant extracts of the Recommendation provide as follows: Article 17 Criteria for involuntary placement 1.     A person may be subject to involuntary placement only if all the following conditions are met: i.     the person has a mental disorder; ii.     the person’s condition represents a significant risk of serious harm to his or her health or to other persons; iii.     the placement includes a therapeutic purpose; iv.     no less restrictive means of providing appropriate care are available; v.     the opinion of the person concerned has been taken into consideration. ... Article 20 Procedures for taking decisions on involuntary placement and/or involuntary treatment Decision 1.     The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should: i.     take into account the opinion of the person concerned; ii.     act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted. ... 3.     Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article   25. ... Article 25 Reviews and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment 1.     Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right: i.     to appeal against a decision; ii.     to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; iii.     to be heard in person or through a personal advocate or representative at such reviews or appeals. 2.     If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals. 3.     Member states should consider providing the person with a lawyer for all such proceedings before a court. Where the person cannot act for him or herself, the person should have the right to a lawyer and, according to national law, to free legal aid. The lawyer should have access to all the materials, and have the right to challenge the evidence, before the court. ... 7.     A procedure to appeal the court’s decision should be provided. ...” C.     Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) 39 .     The CPT standards (document no. CPT/Inf/E (2002) 1-Rev. 2006, page 40) provide, in so far as relevant, as follows: “V.     Involuntary placement in psychiatric establishments ... 41.     Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. Of course, consent to treatment can only be qualified as free and informed if it is based on full, accurate and comprehensible information about the patient’s condition and the treatment proposed. ... Consequently, all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them. Relevant information (results, etc.) should also be provided following treatment. ... 52.     The procedure by which involuntary placement is decided should offer guarantees of independence and impartiality as well as of objective medical expertise. ... 55.     The CPT also attaches considerable importance to psychiatric establishments being visited on a regular basis by an independent outside body (eg. a judge or supervisory committee) which is responsible for the inspection of patients’ care. This body should be authorised, in particular, to talk privately with patients, receive directly any complaints which they might have and make any necessary recommendations. ... 56.     Involuntary placement in a psychiatric establishment should cease as soon as it is no longer required by the patient’s mental state. Consequently, the need for such a placement should be reviewed at regular intervals. ...” 40.     The relevant excerpts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 24 November to 6   December 2002 (CPT/Inf (2002) 19) read as follows: “D.     Mental health establishments ... 2.     Chernivtsi Regional Clinical Psychiatric Hospital f.     safeguards offered to psychiatric patients ... 166.     A few patients were officially admitted on a non-voluntary basis under a civil committal procedure. Nevertheless, as previously mentioned (cf. paragraph 146 above), a large number of the 510 adult patients in the secure wards had not consented to their admission to a psychiatric hospital and could not leave the hospital of their own free will. In practice, they did not have the slightest opportunity to benefit from the safeguards provided by the 2000 Law on Psychiatric Care, in particular the opportunity to contest their admission to hospital. In many cases, the files contained only a request for treatment made by a relative. Worse still, an examination of the patients’ files revealed that some of them had been admitted to hospital without their consent simply on the basis of a letter from a public prosecutor or at the request of the Militia, without an involuntary committal request having been submitted to the competent court. By letter of 15 April 2003, the Ukrainian authorities informed the CPT that instructions had been issued to put into practice at Chernivtsi the 2000 Law on Psychiatric Care. The CPT wishes to receive confirmation that this is currently the case. In addition, it recommends that the Ukrainian authorities immediately take all the necessary steps to ensure that the sections of the 2000 Law on Psychiatric Care concerning involuntary admission to hospital are scrupulously observed in all Ukrainian hospitals which admit non-voluntary patients. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5   §   1 OF THE CONVENTION 41.     The applicant complained that her right to liberty under Article 5 § 1 was infringed during her involuntary and voluntary hospitalisations in a mental health facility. 42.     The relevant parts of Article 5 § 1 of the Convention provide: “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.     Admissibility 1.     Parties’ submissions 43.     The Government submitted that the applicant had failed to exhaust domestic remedies in respect of her complaint about the fourth hospitalisation. In particular, the applicant should have applied to a prosecutor who was authorised to maintain domestic legal order and consider complaints about violations of individual rights. The applicant could have lodged a complaint with a court under Article 248-1 of the Code of Civil Procedure 1963 that her fourth hospitalisation had been unlawful. The applicant could have raised the matter before the administrative courts seeking to have the actions of the hospital declared unlawful. Moreover, the applicant could have applied to court seeking damages under the Civil Code for allegedly unlawful placement in the hospital. As an alternative, the Government contended that the applicant did not comply with the six-month rule when complaining about the fourth hospitalisation as she had only raised that issue in her submissions of 18 October 2006. 44.     The Government further maintained that the applicant had abused her right of petition by not revealing the real circumstances of her fourth hospitalisation. In particular, in her submissions the applicant concealed from the Court the fact that the fourth hospitalisation was conducted on the basis of her personal application written on 17 February 2006. 45.     Lastly, in the Government’s opinion the part of the application referring to the fourth hospitalisation was manifestly ill-founded due to the voluntary nature of her admission to the hospital. 46.     The applicant insisted that her complaint was admissible. She contended that she had signed the application for the fourth hospitalisation under the threat of never being discharged from the hospital. Moreover, on that day she was in particularly bad health. 2.     The Court’s assessment 47.     The Court notes at the outset that the complaint about the first hospitalisation was submitted by the applicant to the Court on 29 May 2006 while the hospitalisation itself ended on 13 October 1999. The applicant did not raise this matter at the domestic level. The Court considers that, in view of the requirements of Article 35 § 1 of the Convention, the applicant should have either made use of the domestic remedies or, in the event they were absent or ineffective, should have applied to the Court within the six ‑ month time-limit from the moment when the measure complained of ceased to exist. As this has not been done, the respective part of the application should be dismissed as inadmissible. 48.     Concerning the Government’s contention that the applicant did not comply with the rule of exhaustion of domestic remedies and the six-month rule when complaining of the fourth hospitalisation, the Court notes that these issues are closely connected with the merits of the complaint. The Government’s objections in this respect should therefore be joined to the merits of the application. 49.     Concerning the issue of abuse of the right of petition, raised by the Government, such a finding may be made by the Court in exceptional circumstances, in particular, if it appears that the application was based on untrue statements in a deliberate attempt to mislead the Court (see Ismoilov and Others v. Russia , no. 2947/06, § 103, 24 April 2008). The circumstances surrounding the applicant’s fourth admission to the mental health facility did not affect other aspects of the application relating to the previous instances of the applicant’s hospitalisation in a mental health facility. Neither did they affect the applicant’s submissions to the effect that she was compulsorily kept in hospital during the fourth hospitalisation after the admission procedure had been completed. Lastly, proper regard should be given to the applicant’s further arguments as to the alleged lack of her real agreement for the fourth admission to the hospital. In sum, the applicant’s failure to initially specify the circumstances referred to by the Government did not relate to a greater part of the application, that failure cannot be interpreted as a deliberate attempt to mislead the Court and in the end it did not impede the proper conduct of the proceedings before the Court. The Government’s objection to this effect is therefore dismissed. 50.     In the light of the material in its possession the Court considers that the applicant’s complaint under Article 5 § 1 of the Convention concerning her second, third and fourth hospitalisation in the mental health facility is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 51.     The Government submitted that the case file contained sufficient evidence substantiating the need for the applicant’s second and third hospitalisation in a mental health facility. They further contended that those hospitalisations were conducted in conformity with domestic procedure, which offered appropriate procedural safeguards to comply with the requirements of lawfulness under Article 5 § 1 of the Convention. 52.     The Government further maintained their position that no issue could arise under Article 5 § 1 of the Convention with respect to the fourth hospitalisation, which had been conducted voluntarily at the applicant’s request. 53.     The applicant argued that she had been hospitalised contrary to her right to liberty. She insisted that the courts had not examined her case properly when they ordered her second and third hospitalisations and that she had been compelled to sign an application for the fourth hospitalisation. 2.     The Court’s assessment (a)     As to the second and third hospitalisations 54.     The parties have not disputed that the applicant’s retention in a mental health facility during the second and third hospitalisations amounted to detention within the meaning of Article 5 § 1 of the Convention. The Court finds no reason to hold otherwise. It is therefore necessary to determine whether the impugned measures were justified under that Convention provision. (i)     Recapitulation of the relevant principles 55 .     The Court reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: (i) he must reliably be shown by objective medical expertise to be of unsound mind; (ii) the mental disorder must be of a kind or degree warranting compulsory confinement; (iii) the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33 and Stanev v. Bulgaria [GC], no. 36760/06, § 145, 17 January 2012). 56.     The lawfulness of detention depends on conformity with the procedural and substantive aspects of domestic law (see Winterwerp , cited above, pp. 17-18, § 39). However, not every fault discovered in a detention order renders the underlying detention as such unlawful for the purposes of Article 5 § 1. A period of detention is, in principle, “lawful” if it is based on a court order. For the assessment of compliance with Article 5 § 1 of the Convention a basic distinction has to be made between ex facie invalid detention orders – for example, given by a court in excess of jurisdiction or where the interested party did not have proper notice of the hearing – and detention orders which are prima facie valid and effective unless and until they have been overturned by a higher court. A detention order must be considered as ex facie invalid if the flaw in the order amounted to a “gross and obvious irregularity” in the exceptional sense indicated by the Court’s case-law (see Mooren v. Germany [GC], no. 11364/03, §§ 74 and 75, 9 July 2009 with further references). The reasoning of the detention order is a relevant factor in determining whether a person’s detention must be considered as arbitrary. The Court has considered the absence of any grounds given by the judicial authorities in their decisions authorising detention for a prolonged period of time to be incompatible with the principle of the protection from arbitrariness enshrined in Article 5 § 1 (see Stašaitis v. Lithuania , no. 47679/99, § 67, 21 March 2002; Nakhmanovich v.   Russia , no. 55669/00, § 70, 2 March 2006; and Belevitskiy v. Russia , no.   72967/01, § 91, 1 March 2007). 57.     The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is executed in conformity with national law, but it must also be necessary in the circumstances (see Witold Litwa v. Poland , no. 26629/95, § 78, ECHR 2000 ‑ III). 58.     Given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention, which requires that domestic law be sufficiently precise and foreseeable in its application (see, for example, Kawka v. Poland , no. 25874/94, § 49, 9   January 2001). Moreover, the condition that detention be “in accordance with a procedure prescribed by law”, requires the existence in domestic law of “fair and proper procedures” and adequate legal protection against arbitrary deprivation of liberty (see Winterwerp , cited above, pp. 19-20, §   45; Amuur v. France , judgment of 25 June 1996, Reports 1996 ‑ III, pp.