CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 juin 2014

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SLOVENIA   (Application no. 32863/05)     JUDGMENT             STRASBOURG   12 June 2014         FINAL   12/09/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of L.M. v. Slovenia , The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 20 May 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 32863/05) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mrs L.M. (“the applicant”), on 6   September 2005. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). 2.     The applicant was represented by Mr D. Šilc, a lawyer from Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney. 3.     The applicant alleged, in particular, under Article 5 of the Convention that her involuntary confinement in the closed wards of the Idrija and Ljubljana Psychiatric Hospitals had not been necessary or conducted in accordance with the law, and that her stay in the open wards of these hospitals had not been voluntary. She further complained that she had not been informed about the reasons for her confinement, and that she had been deprived of effective legal protection in respect of both periods of confinement, as well as of any possibility of obtaining compensation for the unlawful deprivation of her liberty. Invoking Article 8, she alleged that the forced administration of medication and other therapeutic procedures to which she had been subjected had amounted to ill-treatment or had at least interfered with her physical and mental integrity. Furthermore, she had not been afforded a remedy whereby she could have challenged this forced medical treatment. 4.     On 12 December 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1971 and lives in Ljubljana. She has suffered from a psychotic disorder for a number of years and has been admitted to psychiatric hospitals for treatment several times since 2000. The present case concerns two consecutive periods of confinement in such hospitals between July 2005 and January 2006. A.     The applicant’s confinement in the Idrija Psychiatric Hospital 6.     On 10 July 2005 the applicant’s family physician received a telephone call from the local police informing him that the applicant had broken into an unoccupied house, apparently with the intention of sleeping there, and that they were having trouble communicating with her. He referred her to the Idrija Psychiatric Hospital, a public healthcare institution, indicating that she was disturbing the environment and behaving psychotically. 7.     On the same day the applicant was admitted to the closed ward of the Idrija Psychiatric Hospital. On admission, she signed a consent form for confinement and psychiatric treatment. In her exchange with the hospital staff, the applicant said that she was “possessed by energetic and physical people sent to her through the lens of cameras operated by President Bush”. The psychiatrists treating her diagnosed her with schizophrenia and noted that she exhibited “delusional interpretations and perceptual anomalies as well as features of depersonalisation and derealisation”. The applicant was started on medication consisting of 10 mg of Moditen three times a day, three Akineton tablets a day, 5 mg of Apaurin three times a day, and an ampoule each of Haldol and Akineton a day. No mention was made in her medical records of her having refused to take any medication. 8.     On 11 July 2005 the applicant started to ask how long she would have to stay in the hospital and told the psychiatrists that she would resist. The hospital notified the Idrija Local Court of her confinement, indicating the reasons given by the family physician for referring her to the hospital. 9.     On 13 July 2005 the Idrija Local Court appointed a lawyer, I.R.P., to represent the applicant in proceedings it had commenced in her respect. It also scheduled a confinement hearing for 15 July. A notification of the hearing, addressed to the applicant, was sent to the hospital; however, it is not clear when or whether it was received by the applicant. 10.     On 15 July 2005 a hearing was held regarding the applicant’s confinement. The applicant and one of the psychiatrists treating her were heard. The psychiatrist stated that the applicant had apparently been living in a garage and had broken into a house, and that she had been found wandering around and had been psychotic and uncontrollable. The applicant stated that she would rather be at home, that she did not understand why she had been taken to the hospital, but that other people she named, including a former politician, might have more of an idea. She provided an account of the events which had taken place prior to her confinement, in which she made no mention of having broken into a house. She also stated that she missed her father, and that she had been taking medication while at home. 11.     In the weeks that followed, the applicant continued her treatment and, according to the medical records, also continued to agree to therapy. On 4 August 2005 the Haldol was replaced with Leponex and the dosage of Apaurin was reduced to 5 mg a day. Eventually, the applicant was taken off the Apaurin altogether. 12.     Meanwhile, on 30 July 2005 the applicant gave D.P., a lawyer from Ljubljana, power of attorney. She told the representative that she was receiving treatment against her will, but was afraid to refuse it for fear that medication would be administered to her by force. 13.     On 2 August 2005 the applicant’s representative D.P. notified the hospital that the applicant did not consent to her medical treatment and requested the Idrija Psychiatric Hospital to inform the applicant of her treatment and its side effects. She also pointed out that the applicant had the right to express her own free will and to refuse the treatment if she so wished. 14.     On 5 August 2005 the applicant, through her representative D.P., lodged a constitutional complaint against the “material act” of her involuntary confinement and an application for a review of the constitutionality of section 49 of the Health Services Act, and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. She alleged, inter alia , that she was unable to effectively enforce her right to judicial review in the involuntary confinement proceedings, as no formal decision had been rendered until that time. She therefore argued that the Constitutional Court should examine the alleged violations of her human rights committed through the “material act” of her confinement, as any other interpretation would constitute a breach of her right to judicial review within the meaning of Article 5 § 4 of the Convention. In addition, she requested that the disputed legislation be repealed with immediate effect, and that she be released from the hospital pending a decision on her confinement. 15.     On 6 August 2005 D.P. wrote to the hospital again, asking it to stop forcibly administering medication to the applicant. 16.     On 8 August 2005 the applicant was transferred from the closed to the open ward of the Idrija Psychiatric Hospital. On the same date the Idrija Local Court was informed of the applicant’s transfer and terminated the proceedings regarding her confinement. 17.     On 12 August 2005 the applicant was discharged from the Idrija Psychiatric Hospital at her own request. In this regard, it was noted by her psychiatrists that she no longer exhibited any manifestly psychotic symptoms, but that she should continue medical treatment to prevent herself from having a psychotic relapse with violent outbursts. The final diagnosis listed in the applicant’s medical records was disorganised (hebephrenic) schizophrenia. 18.     On 15 September 2005 the Constitutional Court rejected the applicant’s constitutional complaint of 5 August 2005 against her involuntary confinement in the Idrija Psychiatric Hospital for failure to exhaust the available remedies. It also rejected a further constitutional complaint she had lodged on 21 August 2005 relating to her confinement in the Ljubljana Psychiatric Hospital on the same grounds (see paragraph 19 below). It found that these complaints had been lodged even before the first-instance decisions on the involuntary confinement were rendered. As regards the applicant’s application for a review of the provisions of the Non-Contentious Civil Procedure Act, the Constitutional Court reiterated its findings in an earlier decision (no. U-I-60/03) that the thirty-day time-limit for issuing a court order for confinement could be too long (see paragraph   64 below). However, it was not possible to repeal the disputed legislation with immediate effect, as that would leave a sizeable gap in the legal system, so the application was dismissed. B.     The applicant’s confinement in the Ljubljana Psychiatric Hospital 19.     On 15 August 2005 the applicant was taken to the emergency medical services by the police. On arrival, she stated that she was being “raped by the police, the emergency medical technicians, everybody”. The emergency physician referred her to the Ljubljana Psychiatric Hospital, a public healthcare institution, where she was taken by ambulance. It was noted in her admission record that her speech was dissociated and that she exhibited signs of paranoia and megalomaniac delusions. Under the heading “the degree of the patient’s rejection of hospitalisation” the emergency psychiatrist circled the statement that the applicant “accepted hospitalisation owing to the situation (the staff being present)”. Under the heading “the need to use compulsory measures on patients rejecting hospitalisation” the psychiatrist circled the statement “negative attitude, no compulsory measures necessary”. It is evident from the applicant’s medical records that during the first days of her admission, she was restless, talkative and unable to follow the activity programme. She spent the first two days of her treatment in the admission ward. 20.     As of 17 August 2005 the applicant was placed in the closed ward. Based on her medical records, it appears that she remained talkative but found it somewhat difficult to engage in meaningful discussion. She still exhibited delusions of persecution and was convinced that her father had bribed the doctors and the police to keep her in the hospital. She was also convinced that the garage where she had been living was bugged by the CIA. On 19 August 2005 the applicant was visited by her representative D.P. 21.     The applicant was given thirty drops of Haldol three times daily, three Akineton tablets a day and 2 mg of Lorsilan three times a day. The Haldol was subsequently replaced with 10 mg of Moditen three times a day. In the latter stages of her treatment, the applicant received Lorsilan and 100   mg of Leponex three times a day. Eventually, the applicant was only treated with Leponex . During the treatment she often complained of various physical pains and discomfort, in particular painful muscle spasms and toothache. 22.     On 21 August 2005 the applicant informed the Ljubljana Local Court of her confinement and lodged an application for an interlocutory order that her medical treatment be discontinued and that she be released from the hospital pending a final decision on the matter. On the same day the applicant also lodged a constitutional complaint against the “material act” of her confinement and an application for a review of the constitutionality of section 49 of the Health Services Act and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. The applicant’s notification of involuntary confinement was received by the local court on 22 August 2005. 23.     On 23 August 2005 the Ljubljana Local Court appointed a lawyer, P.C., to represent the applicant in the involuntary confinement proceedings. On the same day a hearing was held which took twenty-five minutes. The applicant’s court-appointed representative was present, but, according to the applicant, did not participate actively. At the hearing, the applicant was examined by an expert from another healthcare institution, who immediately upon examination submitted an opinion stating that the applicant’s narrative showed signs of a paranoid delusional system which had probably lasted for a long time and to which she was uncritical. She considered that the applicant needed treatment in a closed ward for up to one month. 24.     Based on this expert opinion, the Ljubljana Local Court ordered that the applicant be confined in the closed ward of the Ljubljana Psychiatric Hospital until 23 September 2005. 25.     On 24 August 2005 the applicant’s application for an interlocutory order was dismissed by the Local Court on the grounds that personality rights could not be protected by injunctive relief. 26.     On 27 August 2005 the applicant was visited by her court-appointed lawyer P.C., who wanted her to give him the power of attorney. According to the applicant’s medical records, the psychiatrist on duty was informed of the visit and gave his consent for the applicant to sign the document. 27.     On 2 September 2005 the applicant appealed against the Ljubljana Local Court’s order regarding her continued confinement and the dismissal of her application for an interlocutory order. 28.     On 3 September 2005 the applicant spoke to the then head of the hospital, complaining that there was no reason for her to remain there. She also stated that she did not understand why she was on medication, although she did confirm that she was taking Akineton as part of her outpatient treatment. 29.     According to the Government, which relied on her medical records, later that day the applicant was transferred to the open ward of the Ljubljana Psychiatric Hospital. The applicant, however, maintained that the transfer took place on 4 September 2005. On 6 September 2005 the applicant’s representative D.P. notified the Ljubljana Local Court of the applicant’s transfer. 30.     During the course of her stay in the open ward of the hospital, on 7   September 2005 the applicant was allowed by her psychiatrist to withdraw some of the money she had received as social assistance. In addition, on 13   September she was permitted to recover her clothes. She was allowed to leave the hospital premises for a few hours several times during her stay, on   20, 23 24, 27 and 28 October, and 9, 11, 13 and 30 November 2005. Her psychiatrists noted that she was disciplined in her outings and always returned to the hospital at the designated time. 31.     On 9 September 2005 the Ljubljana Higher Court allowed the applicant’s appeal against the Ljubljana Local Court’s decisions of 23 and 24   August 2005 and remitted the case to the first-instance court. The higher court pointed out that the court’s reasoning lacked reference to the decisive factors which would indicate that it was necessary to deprive the applicant of her liberty. As regards the dismissal of the applicant’s application for an interlocutory order, the higher court rejected the lower court’s interpretation that no legal basis existed for an interlocutory order for the protection of the applicant’s personality rights. The court also pointed out that the applicant’s request for her medical treatment to be stopped warranted separate consideration. 32.     On the same day the applicant lodged a constitutional complaint against the Ljubljana Higher Court’s decision and a request for a procedure to be initiated for the review of the constitutionality of section 49 of the Health Services Act and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. She insisted that remitting her case to the first-instance court without ordering her release from the hospital had violated her right to personal freedom. 33.     As already stated (see paragraph 18 above), on 15 September 2005 the Constitutional Court rejected the applicant’s constitutional complaints of 5 and 21 August 2005 against both periods of her confinement. 34.     On 22 September 2005 the applicant lodged a supervisory appeal with the Ministry of Justice regarding the proceedings before the Ljubljana Local Court. On 5 October the Ministry informed the applicant that the local court had set the date of the hearing for 11 October 2005. The summons to the hearing was sent to the applicant’s home address. 35.     On 7 October 2005 the father of the applicant, I. M., informed the local court that he had been served a summons addressed to the applicant for a hearing scheduled for 11 October 2005. The judge agreed to allow the applicant’s father to attend the scheduled hearing. 36.     On 10 October 2005 the applicant’s representative D.P. informed the local court that the summons to the hearing of 11 October was unclear as to whether the representative herself had been summoned, or whether the applicant had been summoned by way of her representative. In addition, she proposed that a new summons be served in which the reasons for the hearing be set out. 37.     The next day the applicant’s court-appointed representative P.C., the applicant’s father I.M. and her chosen representative D.P. were present at the hearing. D.P. proposed that the hearing be rescheduled since the applicant had not been properly summoned. She also informed the local court that the applicant was being held in the open ward of the Ljubljana Psychiatric Hospital but that the hospital was refusing to release her, or to discontinue her medical treatment. On the same date the local court appointed another expert to give an opinion on the applicant’s condition. 38.     On 12 October 2005 the Ljubljana Local Court again ruled on the applicant’s application for an interlocutory order concerning the termination of her medical treatment and her immediate release from the psychiatric hospital. Contrary to the reasoning of the Ljubljana Higher Court’s decision of 9 September 2005, the application was again dismissed on the grounds that no legal basis existed for an interlocutory order for the protection of a person’s personality rights. The applicant appealed against this decision. 39.     On 14 October 2005 the applicant requested that the judge sitting on the case be removed on the grounds, inter alia , that he had refused to adjourn and reschedule the hearing of 11 October despite the fact that she had not been properly summoned. Furthermore, she alleged that the judge had violated her right to privacy by allowing her father to attend the hearing. She also requested that the appointed expert be withdrawn. She further requested the court to decide on her immediate release and to exclude her father from the proceedings. On 26 October 2005 the applicant’s request for the withdrawal of the judge was dismissed. 40.     On 2 November 2005 the Ljubljana Local Court amended its decision of 12 October 2005 by also including in its operative part the dismissal of the applicant’s application that her father be prevented from participating in the hearing. 41.     On 10 November 2005 the Ljubljana Higher Court again allowed the applicant’s appeal against the decision of 12 October 2005 and remitted the case to the first-instance court. It reiterated that a valid legal basis did exist for an interlocutory order for the applicant’s release from the psychiatric hospital and that her request for her medication to be stopped deserved separate consideration. Moreover, the court took note of information in the case file that the applicant had meanwhile been transferred to the open ward. Accordingly, it pointed out that the rules of non-contentious procedure regarding involuntary confinement only applied to closed wards of psychiatric hospitals. It ordered the lower court to examine the question of whether the conditions for continuing the non-contentious proceedings still applied. Otherwise, the applicant was supposed to apply for injunctive relief against infringement of her personality rights. 42.     On 14 November 2005 the applicant, through her representative D.P., lodged an appeal against the decision of 2 November 2005 on the dismissal of the application concerning her father’s participation in the hearing. The court-appointed representative P.C. responded to the appeal lodged by D.P., arguing that it should be dismissed. On 21 November 2005 the Ljubljana Higher Court upheld the decision of 2 November 2005. 43.     On 30 November 2005 the Ljubljana Local Court sent a letter to the Ljubljana Psychiatric Hospital, requesting information about when the applicant had been transferred to the open ward. 44.     On 8 December 2005 the local court received a reply from the hospital stating that the applicant had been transferred to the open ward on 3   September 2005. 45.     On 12 December 2005 the Ljubljana Local Court terminated the proceedings regarding the applicant’s involuntary confinement in the psychiatric hospital because of her transfer to the open ward. 46.     Meanwhile the applicant renewed contact with her father, who arranged for her to spend some weekends at his home. Arrangements were subsequently made for the applicant to move in with him after her release from the hospital. 47.     On 12 December 2005 the applicant and her father visited the Sežana Social Work Centre, where the applicant declared that she wished her father to act as her guardian in financial and health matters, and her father declared himself willing to provide her with a home and to assume responsibility for her medical treatment and finances. A record was made of the applicant and her father’s declarations and they were informed that they could address any possible disagreements regarding the arrangement to the centre. 48.     On 15 December 2005 the Constitutional Court rejected the applicant’s constitutional complaint against the decision of 9 September 2005 and her application for constitutional review (see paragraph 32 above) for lack of legal interest. It observed that the applicant was no longer confined in the closed ward of the psychiatric hospital. 49.     On 22 December 2005 the applicant lodged an appeal against the decision of 12 December, stressing, inter alia , that her transfer to the open ward of the hospital did not change the fact that she was confined there against her will. She also complained about the lack of an effective remedy. Moreover, she pointed out that no decision had been made regarding the necessity of her confinement and that she had not been informed of the grounds on which her continuing confinement was based. She further lodged an application for her court-appointed representative P.C. to be taken off the case for failure to act in her interests. 50.     On 5 January 2006 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that, since the applicant had been placed in an open ward, the rules of non-contentious procedure were no longer applicable. The court referred the applicant to the rules of contentious procedure, under which it was possible to apply for injunctive relief against infringement of personality rights. 51.     On 19 January 2006 the applicant was released from the Ljubljana Psychiatric Hospital. The diagnosis listed on her release form was paranoid schizophrenia. 52.     On 23 January 2006 the Ljubljana Local Court rejected the applicant’s application for an interlocutory order owing to the fact that the proceedings on the merits had been terminated. 53.     On 14 February 2006 the applicant lodged an appeal on points of law against the decision of 5 January 2006. She invoked, inter alia , Article 5 of the Convention, and maintained that the fact that she had been placed in the open ward did not imply that she was held there voluntarily. She alleged that any attempt on her part to leave the hospital, while in the open ward, could result in her being brought back to the hospital by force and placed back in the closed ward, as in practice the transfer to the open ward constituted a privilege enjoyed by compliant patients. In this regard the applicant pointed out, relying on section 49 of the Health Services Act (see paragraph 58 below), that the legal basis for involuntary admission and treatment in a psychiatric hospital did not specify in which ward patients are to be placed. She also pointed out that psychiatric hospitals were not required to notify the competent courts of patients’ possible readmission to the closed ward in cases such as her own, where they had already been transferred to the open ward while the order of confinement was still in effect. In her opinion the provisions on involuntary confinement in a psychiatric hospital and the related procedure were still applicable and she was entitled to obtain a decision on the lawfulness of her earlier confinement. 54.     On 13 April 2006 the Supreme Court rejected the applicant’s appeal on points of law on the grounds that the applicant lacked legal interest, since the confinement proceedings had been terminated and she had been released from the hospital. 55.     On 6 July 2006 the applicant lodged a constitutional complaint against the Supreme Court’s decision to reject her appeal on points of law in connection with the Higher Court’s decision of 5 January 2006 and the Ljubljana Local Court’s decision of 12 December 2005 to terminate the proceedings regarding her involuntary confinement in the Ljubljana Psychiatric Hospital. She reiterated the complaints made regarding her stay in the open ward of the Ljubljana Psychiatric Hospital and those relating to the alleged breaches of procedural rules in the confinement proceedings. Further, she pointed out that she was entitled to obtain a decision on the merits with regard to her complaints, having regard to the importance of her constitutionally guaranteed right to personal liberty. 56.     On 27 February 2008 the Constitutional Court dismissed the applicant’s constitutional complaint against the Supreme Court’s decision as unfounded, and rejected her complaint against the Higher Court’s decision on the grounds that it had been lodged out of time. The court pointed out that the lodging of an inadmissible appeal on points of law had not suspended the time-limit for lodging the constitutional complaint. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant statutory provisions 1.     Health Services Act (as in force at the material time) 57.     As regards patients’ rights under domestic law, the relevant provisions of the Health Services Act provide as follows: Section 47 “In accordance with the law and under equal conditions, everyone has the right to the following: - a free choice of physician and healthcare institution; - a consultation with appropriate specialists of his or her own choice, or to a consultant review; - to be informed of his or her diagnosis, the extent, manner, quality and expected duration of treatment; - to give consent to any medical procedure, and to be notified in advance of all possible methods of diagnostics and treatment, as well as their consequences and effects; - to reject the proposed medical treatment; - to access his or her medical records, except if a physician assesses that such access would have a detrimental effect on the patient’s state of health; ... - to compensation for inappropriate treatment. ...” Section 48 “An emergency medical procedure may be performed without the prior consent of the patient only if a patient is unable to decide for themselves owing to their state of health.” 58.     According to the Health Services Act, clinics, clinical institutes and certain other specialist institutions, among which psychiatric hospitals, may only operate as public healthcare institutions. As regards the treatment of patients with mental illnesses and disorders, the relevant provision reads as follows: Section 49 “A patient who, owing to his or her mental illness, poses a danger to his or her own life or the lives or others, or is causing grave harm to himself or herself or to others, may be referred and admitted for treatment to a psychiatric hospital without his or her consent. An authorised person of the hospital must notify a competent court of the admission of a patient to the psychiatric hospital referred to in the previous paragraph within 48   hours of admission at the latest. The physician who refers the patient referred to in the first paragraph of this Article to a psychiatric hospital may request assistance from the competent authorities if he or she finds that the safety of others is directly at risk from the patient’s actions.” 2.     Non-Contentious Civil Procedure Act (as in force at the material time) 59.     The relevant provisions of this Act regulating the procedure for confining people to psychiatric hospitals read as follows: Section 5 “... The court has a duty to adopt, of its own motion, any measures aimed at protecting the rights and interests of minors and persons who, on account of their mental illness or other circumstances, lack capacity to look after their own rights and interests.” Section 70 “In the procedure for confining persons to psychiatric healthcare institutions and other institutions or their wards used for the treatment of mental patients (hereinafter healthcare institutions), a court decides on the confinement of a person in the closed ward of a health institution if the nature of the mental disorder or the person’s mental state renders it necessary that his or her freedom of movement be limited or that he or she be prevented from having contact with the outside world, because he or she poses a danger to his or her own life or the lives or others, or is causing grave harm to himself or herself or to others.” Section 71 “If the healthcare institution confines a person for treatment in a closed ward without his or her consent or without a court order, the authorised person of that institution must immediately, but within 48 hours at the latest, notify the court of local jurisdiction thereof. The notification of confinement must include information about the person confined, this person’s state of health, and the person who took the person to the healthcare institution. It is deemed that a person is involuntarily confined in a healthcare institution if it follows from the person’s behaviour, expert opinions on the person’s mental state or other circumstances that the person has capacity to express his or her wishes but is actually unwilling to consent to treatment in a healthcare institution; or if it follows from expert opinions on the confined person’s mental state that the person lacks capacity to express his or her wishes; or where the person is a minor or is legally incompetent.” Section 74 “In the confinement proceedings, the court shall promptly, but no later than three days after receiving the notification of confinement, visit the confined person in the healthcare institution and question him or her, except in cases where questioning would have a detrimental effect on the person’s treatment, or if questioning is impossible owing to the person’s state of health.” Section 75 “In the confinement proceedings, the court shall question the physicians treating the confined person as well as any other persons who may provide information about the mental state of the confined person. The court shall order that the confined person be examined by a psychiatric specialist from another healthcare institution.” Section 76 “The court shall decide, based on the evidence obtained, whether the confined person should remain in the healthcare institution or be released. When the court orders a person to be confined in the healthcare institution, it determines the period of confinement, which may not exceed one year. The court must issue the order referred to in the first paragraph without delay, but no later than 30 days after receiving the notification of confinement referred to in the first paragraph of section 71 of this Act. The healthcare institution may transfer a person from a closed ward to an open ward or release him or her from the institution even before the expiry of the period determined in the order of confinement, if it is established that the reasons for confinement have ceased to apply. In such cases, the healthcare institution is not required to notify the court of the return of the confined person to the closed ward until the expiry of the period determined in the order of confinement.” Section 77 “The court shall serve the order of confinement on the confined person, the person’s representative or guardian, the authorised social welfare body and the healthcare institution. The following may appeal against the order of confinement: the confined person, the person’s legal representative or guardian, the authorised social welfare body, the person’s spouse or person with whom the confined person cohabits in a long-term relationship, a relative, either in a direct or indirect line [of descent] up to or in the second degree, or the healthcare institution. The appeal must be lodged within three days. The appeal shall not suspend the execution of the order of confinement. The court of second instance shall decide on the appeal within three days. An appeal on points of law may be lodged against a decision of the court of second instance.” 3.     Civil-law remedies for breaches of personality rights 60.     Under Article 134 of the Code of Obligations, everyone has the right to request the termination or prevention of an infringement of their personality rights or the elimination of the consequences of the infringement. Such a request can be brought before the competent court of civil jurisdiction and an injunction may be sought in order to restrain the party responsible from committing or continuing the breach. A party who fails to comply with an injunction may be ordered by the court to pay damages to the injured party. 61.     Article 148 of the Code of Obligations regulates the liability of legal persons for damage inflicted by one of their subsidiary bodies, which also applies to the determination of the State’s liability for damage. It provides that a legal person is liable for damage inflicted on a third party by one of its subsidiary bodies in the exercise of its functions or in connection therewith. 62.     Under Article 179 of the Code of Obligations, which sets out the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded, inter alia , in the event that a person has suffered physical distress, mental distress owing to the reduction of life activities, or if his or her personality rights have been infringed, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify the award. B.     Relevant case-law 1.     The Constitutional Court’s decision on the constitutionality of the procedure for confining people to psychiatric hospitals 63.     In decision no. U-I-60/03 of 4 December 2003, the Constitutional Court examined the provisions of the Non-Contentious Civil Procedure Act on involuntary confinement procedure and found that they were inconsistent with the Constitution because of the lack of protection they afforded to involuntarily confined persons. The court emphasised that involuntary confinement was a measure that should only be used in cases where the danger to a patient’s life or the lives of others or harm to himself or to others could not be prevented by any other measures than admission to a closed ward. The court also emphasised that the question of whether it was necessary to restrict a patient’s freedom of movement and prevent contact with the outside world was a matter of judicial assessment carried out by the competent courts. 64.     Further, the Constitutional Court held that involuntarily confined patients were entitled to an effective judicial review of the question of lawfulness of their confinement. In this regard it considered that the thirty-day period for issuing the court order of confinement could be too long, particularly if it emerged that the confinement was unlawful. Accordingly, the court held that shorter time-limits ought to be set. Moreover, the hospitals’ notifications of confinement should include reasons which, in the view of their staff, necessitated a measure of involuntary confinement, as only on the basis of this information were the courts able to make an assessment of whether a specific measure was necessary in the circumstances of an individual case. 65.     Lastly, the Constitutional Court, while acknowledging that the measure of involuntary confinement was inherently related to medical treatment, which followed from the purpose and nature of the measure, considered that it did not mean unrestricted authorisation for carrying out any type of medical treatment without external supervision. It therefore imposed on the legislature the duty to, on the one hand, define those measures of treatment that followed from the purpose of the confinement itself and were logically connected therewith, and, on the other, to determine the measures which exceeded the necessary scope of treatment and for which explicit consent of a patient would be needed. 66.     In order to rectify the most pressing inconsistencies in the involuntary confinement procedure, the Constitutional Court imposed two provisional measures to apply until the established unconstitutional situation was remedied: – counsel must be appointed for an involuntarily confined person upon the commencement of proceedings; – the notification of confinement that the authorised healthcare institution is obliged to submit to the court must contain reasons substantiating the necessity of confinement.” The established inconsistencies were supposed to be remedied within six months of the date of publication of the decision in the Official Gazette (24   December 2003). Nevertheless, the involuntary confinement procedure as a whole (save the above-mentioned provisional measures) continued to apply until 2009, when the new Mental Health Act became effective, implementing the decision of the Constitutional Court. The Act established a comprehensive legal framework of mental healthcare, including a detailed procedure for confining persons to the closed wards of psychiatric hospitals. 2.     Decisions of the domestic courts on liability arising from involuntary confinement in psychiatric hospitals 67.     In judgment no. II Cp 1702/2009 of 14 October 2009, the Ljubljana Higher Court confirmed a first-instance judgment awarding a claimant 3,000 euros (EUR) as compensation for having spent thirty-one days in a psychiatric hospital in 2004 without a lawful court decision. The order of confinement at issue had been quashed on appeal owing to procedural irregularities, which was regarded by the civil courts to have rendered the entire measure of involuntary confinement unlawful. Although a claim was also brought against the psychiatric hospital on account of its late and incomplete notification of confinement to the competent court, no causal link was found to exist between these irregularities and the mental distress the claimant had sustained on account of the deprivation of his personal liberty. In this regard, the higher court pointed out that it was the courts that decided on involuntary confinement and that, accordingly, it was the court’s unlawful conduct that had caused damage to the claimant. 68.     In another case, no. II Cp 739/2012 of 16 May 2012, the Ljubljana Higher Court decided on appeal against an award of damages to a claimant who had been confined in the closed ward of a psychiatric hospital from 19   December 2002 until 3 January 2003. In the preceding involuntary confinement proceedings, the competent court, upon an examination of the claimant, ordered that she be released from the hospital because none of the statutory conditions for her confinement had been shown to exist. On 30   December 2002 the claimant had been transferred to the hospital’s open ward. She had unsuccessfully requested the return of her clothes and then attempted to leave the hospital in her pyjamas. The hospital staff had prevented her from leaving and returned her to the closed ward without a prior medical examination. Subsequently, the claimant had been released from the hospital on 3 January 2003. In the civil proceedings, the Ljubljana Higher Court reduced the claimant’s award of damages to EUR 1,000, taking the view that her admission to the hospital, which had been based on an assessment by the consultant psychiatrists, had not been unlawful. Only the period from 30   December 2002 until 3 January 2003 had therefore constituted an unlawful deprivation of her liberty. 69.     In judgment no. II Cp 1053/2011 of 31 August 2011, the Ljubljana Higher Court dismissed a claimant’s appeal against a judgment dismissing his claim for damages brought against the psychiatric hospital where he had been confined, based on an appointed expert’s opinion that the symptoms displayed by him on admission had necessitated his confinement and that the hospital staff had appropriately examined the existence of the statutory conditions for confinement in the light of the standards of the medical profession. 70.     On 22 February 2010 the Kranj District Court rendered interim judgment no. I P 509/2004, deciding on the merits of a claimant’s claims regarding her psychiatric confinement in 2000. It was found to have been unlawful because of numerous procedural irregularities. In the civil proceedings, the Kranj District Court examined, inter alia , the duration of the involuntary confinement and in this regard also found that the claimant’s stay in the open ward of the hospital had constituted a deprivation of liberty, as the circumstances in which she had been held were comparable to the circumstances in the closed ward. The claimant had been aware that she could be transferred back to the closed ward for inappropriate behaviour, as she had been transferred to the open ward on “a trial basis”; moreover, the court order for her confinement had still been in effect, which meant that the hospital had not been required to notify the court of her possible return to the closed ward. Lastly, there had been a practice of placing open ward patients who had been permitted to leave the hospital, but had not returned in due time, back to the closed ward, and the claimant had been witness to another patient being pushed through to the closed ward and forcibly injected with medication. The substance of the claimant’s claim regarding the second period of her involuntary confinement was confirmed by the Ljubljana Higher Court (judgment no. II Cp 1964/2011) and the Supreme Court (judgment no. II Ips 110/2012). The amount of compensation has not as yet been determined. C.     The Ombudsman’s reports concerning psychiatric confinement 1.     The Ombudsman’s Annual Report 1995 71.     In this Report the Ombudsman outlined a number of inadequacies in the Slovenian regulation of psychiatric confinement in force at the time (and which remained in force at the time of the applicant’s confinement), emphasising that this field of medicine, which interfered with the most intimate spheres of an individual’s private life, was insufficiently regulated by law and failed to provide for an impartial and independent external supervision of confinement. The Ombudsman noted that only involuntary confinement was subject to judicial supervision and that even this type of hospitalisation was under-regulated. Furthermore, the implementation of judicial supervision gave rise to doubts as to its effectiveness; the Ombudsman observed that in all the confinement cases under his consideration the courts had decided in accordance with medical opinion and therefore no more than confirmed the decisions made by hospitals or doctors. In the Ombudsman’s opinion, judicial supervision served to protect the medical staff instead of the confined individuals. 2.     The Ombudsman’s 1999 Special Report on the Treatment of People with Mental Disorders 72.     The Ombudsman noted, inter alia , that the laws determining conditions of confinement (in particular the Health Services Act) did not require that involuntary confinement only be used where absolutely necessary and was therefore disproportionate. In this connection, he also warned that the court orders of confinement were in most cases insufficiently reasoned, failing to justify the grounds for involuntary confinement. As no decisive factors were established that would necessitate the confinement, the court orders proved difficult to review and denied the patients’ right to a fair trial. 73.     Further, the legislation in force did not regulate the initial stage of the involuntary confinement procedure, as it only authorised physicians to send a patient to a psychiatric hospital, if necessary, with police assistance; however, it contained no other provisions regarding the referral and admission of individuals to healthcare institutions, such as a list of people entitled to request an individual’s involuntary confinement, instructions on how to act in cases where a patient resists, the powers of the police