CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juin 2016

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LATVIA (No. 2)   (Application no. 69747/13)                   JUDGMENT     STRASBOURG   30 June 2016     FINAL   30/09/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of O.G. v. Latvia (no.   2), The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Khanlar Hajiyev,   Erik Møse,   André Potocki,   Faris Vehabović,   Síofra O’Leary,   Mārtiņš Mits, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 7 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   69747/13) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr O.G. (“the applicant”), on 21   October 2013. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47   §   4 of the Rules of Court). 2.     The President of the Section granted the applicant leave to present his own case in the proceedings before the Court. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce. 3.     The applicant alleged, in particular, that his involuntary detention in a psychiatric hospital between 17 and 19   June 2013 had constituted an unlawful deprivation of his liberty, contrary to Article 5   §   1. 4.     On 16   April 2015 the above complaint was communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54   §   3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1965 and lives in Riga. A.     Compulsory measures imposed on the applicant in two sets of criminal proceedings against him 1.     Compulsory measure in the first set of criminal proceedings 6.     On 18   February 2008, in the course of a first set of criminal proceedings against the applicant for fraud in relation to means of payment, the Riga Regional Court decided to relieve him of criminal liability, and imposed on him a compulsory measure: outpatient medical treatment. 7 .     On 7   May 2009 the applicant signed an information sheet – drawn up and certified by the Riga psychiatric hospital ( VSIA “Rīgas psihiatrijas un narkoloģijas centrs” , hereafter “the psychiatric hospital”) – regarding the rights and obligations of people receiving compulsory outpatient medical treatment. Among other things, this information sheet stated that a patient had to visit a doctor once a month and attend a panel meeting of doctors every six months, on the date indicated by the relevant doctor. It also stated that if a patient missed more than three doctor’s appointments in a row, that patient would be reported to the police so that he could be taken to the doctor. 8 .     The necessity of continuing the applicant’s compulsory treatment was reviewed on several occasions, and on 8   April 2013 the Vidzeme District Court, having examined the medical panel’s conclusion of 25   February 2013 in relation to his state of health, decided to continue the treatment. The applicant was summoned, but did not attend the hearing, and on 10   April 2013 the decision was sent to him. 9.     On 21   April and 24   June 2013 the applicant sent letters to the Vidzeme District Court, asking it to revoke the compulsory measure. On 2   July 2013 the court informed him that, following his requests, it had asked the medical experts concerned to report on his medical condition. 2.     Compulsory measure in the second set of criminal proceedings 10.     On 20   August 2008, in the course of a second set of criminal proceedings against the applicant for social benefit fraud, the Riga Regional Court decided to relieve him of criminal liability, and imposed on him a compulsory measure: inpatient psychiatric treatment in a psychiatric hospital, which on 13   April 2010 was changed to compulsory outpatient medical treatment. 11 .     On 28   May 2012 the Riga Regional Court decided to continue the applicant’s outpatient medical treatment. It relied on a medical report filed on 28   March 2012, which, among other things, noted that he was regularly attending appointments with a doctor, was not showing stable improvement, did not accept that he had health issues and had no remorse regarding the offence he had committed. The applicant was represented by a State ‑ appointed defence lawyer, and on 10   April 2013 the decision was sent to the applicant. 12 .     On 10   May 2013 the Riga Regional Court, relying on section 607(4) of the Criminal Procedure Law (see paragraph 22 below), asked the psychiatric hospital to send a report on the applicant’s state of health, so that the court could decide whether it was necessary to continue the compulsory medical treatment. B.     Applicant’s admission to the psychiatric hospital between 17 and 19   June 2013 13 .     According to the information the Riga psychiatric hospital submitted to the Government, since 2005 the applicant had been admitted to the psychiatric hospital for inpatient treatment on eight occasions, including on an emergency basis. Since 2010 he had visited doctors every two to three months. In 2013 he had voluntarily visited his doctor on 24   January and 15   April, and had missed an appointment on 24   April. On 28   May 2013 the applicant’s doctor at the psychiatric hospital had telephoned him to ask the applicant to comply with the compulsory treatment measure, and had warned him that police assistance would be sought. Observing that the applicant had not attended a doctor’s appointment, and considering that a longer period without treatment could cause his health to deteriorate, on 10   June 2013 the Head of Unit at the psychiatric hospital asked the police to bring the applicant to the outpatient section of the hospital, relying on section   11 of the Law on Police. That request referred to the court’s decision of 18   February 2008 in the first set of criminal proceedings. 14.     On 17   June 2013 several police officers arrived at the applicant’s home and took him to the outpatient section of the Riga psychiatric hospital. 15 .     According to information submitted by the Riga psychiatric hospital, on 17   June 2013, in the outpatient section of the Riga psychiatric hospital the applicant declared that he would only visit a doctor if given a written summons. In line with a doctor’s decision, the applicant was put under observation as an inpatient ( novērošana stacionārā ). The applicant, accompanied by police officers, was taken to the inpatient section of the hospital, where he displayed dissatisfaction and anger and refused to admit himself to hospital voluntarily. On the same day he was involuntarily admitted for inpatient treatment, as provided for by section   68(1) of the Medical Treatment Law (see paragraph 25 below), where he received medication and on 18   June 2013 asked a doctor to be released. He was informed that he would be examined by a medical commission, as provided for by section   68(3) of the Medical Treatment Law (see paragraph   26 below). 16.     On 19   June 2013 the medical commission drew up a report, which stated that the applicant did not display any psychotic symptoms, therefore there was no need for inpatient treatment. In the afternoon he was discharged from hospital. C.     Further developments in the criminal proceedings 17 .     On 19   June 2013 the medical commission informed the relevant court that the applicant was not completely well, but his condition was stable and he was not socially dangerous, therefore it was recommended that the court revoke the compulsory outpatient treatment measure which had been imposed on him. 18 .     Having examined the above report, on 20   August 2013 the Riga Regional Court and, at a later date the Vidzeme District Court, revoked the compulsory outpatient treatment measures which had been imposed on the applicant in both sets of criminal proceedings. D.     Complaints regarding the applicant’s admission to the psychiatric hospital 19 .     On 19   July 2013 the Internal Security Office of the State Police ( Valsts policijas Iekšējās drošības birojs ) dismissed a complaint by the applicant that police officers had taken him to the psychiatric hospital unlawfully. In its decision, it stated that the police officers in question had acted in accordance with section   11 of the Law on Police following the request received from the psychiatric hospital. 20 .     The applicant appealed that decision to the Office of the Prosecutor General, which on 16   August 2013 upheld it, stating that on 28   May 2012 the Riga Regional Court had decided to continue the applicant’s compulsory medical treatment. As the applicant had failed to comply with the measure, representatives of the psychiatric hospital had had grounds to ask for police assistance in executing it. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal Procedure Law 21.     The relevant parts of the Criminal Procedure Law pertaining to compulsory medical measures are summarised in the case of O.G. v. Latvia , no.   66095/09, §§ 42-48, 23   September 2014. 22 .     In addition, at the material time, section 607(4) provided that a court controlling the execution of a compulsory medical measure should, on its initiative, examine whether the measure should be revoked or changed, if no requests to change or revoke the measure had been received in the year following the last decision. B.     Law on Police 23 .     Section 11 lists the duties of police officers, inter alia : “Police officers, within the scope of their competence, have a duty to assist: (...) 3) medical institutions, medical personnel, public health service epidemiologists and State health inspectors in the forcible conveyance for monitoring or treatment of persons suffering from alcohol, narcotic, psychotropic or toxic substances addiction or venereal diseases, persons who are mentally ill and a danger to the public ... if they avoid coming to a medical institution.” C.     Medical Treatment Law 24.     The relevant parts of the Medical Treatment Law have been summarised in the case of O.G. v. Latvia (dec.), no.   6752/13, 30   June   2015. 25 .     Section   68(1) provides an exhaustive list of situations in which involuntary psychiatric treatment may be administered, and authorises involuntary treatment in cases where: “[the patient] has threatened or is threatening, has attempted or is attempting to inflict bodily injuries on himself or on another person, or has been or is violent towards other persons, and if a medical specialist concludes that the patient has a mental health disorder, which might result in serious bodily injury to the patient himself or to another person”. 26 .     Section   68(3) provides that, in the event of involuntary admission to hospital, a medical panel should examine a patient within seventy-two hours and adopt a decision on whether to continue inpatient treatment. D.     Other information regarding the execution of compulsory medical measures in Latvia 27 .     In the 2011/2012 case-law review of criminal proceedings in which compulsory medical measures had been applied, the Supreme Court of the Republic of Latvia recognised a legal ‘gap’ in relation to the execution of such measures where people had been ordered to receive outpatient medical treatment, but had refused to comply with the measures. According to the Supreme Court, without filling the statutory lacuna, it would not be possible for national courts to ensure the execution of compulsory measures or receive medical reports about people’s health conditions in order to decide whether the measures should be revoked or amended. The Supreme Court suggested that an execution procedure is defined and the measures to be taken by courts are set out in relation to cases when a person evades from complying of the compulsory medical measures. 28.     On 25   June 2014 amendments to section 607(2) of the Criminal Law Procedure came into force. Under the amended provisions, if a person does not comply with a compulsory medical measure, the head of the medical institution supervising the person’s treatment may, on the basis of a report drawn up by a medical commission, recommend to a court that a less lenient compulsory medical measure be imposed. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5   §   1 OF THE CONVENTION 29.     The applicant complained that his involuntary detention in a psychiatric hospital between 17 and 19   June 2013 had constituted an unlawful deprivation of his liberty contrary to Article 5   §   1 of the Convention, the relevant parts of which read: “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: ... (b)     the lawful arrest or detention of a person for non-compliance with the lawful order of a court ... ...” 30.     The applicant submitted in particular that, with regard to the police officers’ actions in arriving at his home and taking him to the psychiatric hospital, he had not been informed of any reasons or decisions relating to those actions. According to the applicant, there had been no court decision authorising the police officers to take him to the psychiatric hospital, nor a court decision ordering him to have inpatient treatment there. 31.     The Government contested that argument. A.     Admissibility 32.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35   §   3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Arguments of the parties 33.     The applicant maintained his initial submissions, according to which on 17   June 2013 the police officers had not showed him any decisions requiring him to be taken to the psychiatric hospital and admitted for inpatient treatment. He also contested the lawfulness of the adoption of court orders issued in the course of the criminal proceedings. In substance, the applicant argued that the Riga psychiatric hospital had had no lawful basis to order his detention. In this respect, he submitted that in 2010 a doctor had threatened to ask for police assistance if he failed to visit the outpatient unit of the Riga psychiatric hospital, and that in any case on 17   June 2013 he had not demonstrated a mental state warranting hospitalisation at a psychiatric hospital. 34.     The Government argued that the applicant’s deprivation of liberty had been justified under Article 5   §   1   (b) of the Convention as a result of “non-compliance with the lawful order of a court”. Namely, in the framework of two separate sets of criminal proceedings, the domestic courts had imposed on the applicant a compulsory outpatient treatment measure, which had regularly been reviewed with his participation (unlike in the case of Beiere v. Latvia , no. 30954/05, §   49, 29 November 2011, and in the applicant’s previous case O.G. v. Latvia , no. 66095/09, 23   September 2014). At the material time, decisions regarding his compulsory treatment had still been enforceable, and the applicant had been well aware of them and of the consequences in the event of non-compliance. According to the Government, this could be proved by the fact that in May 2009, when the compulsory outpatient treatment measure had first been imposed, the applicant had signed the information leaflet provided by the Riga psychiatric hospital, which had explained his rights and obligations (see paragraph 7 above). Moreover, on 28   May 2010 the doctor had contacted the applicant and reminded him that he had to attend appointments with his doctor and that the police would be informed in the event of non-compliance (see paragraph 13 above). In any event, police officers had clearly informed the applicant about the court orders. Next, the Government contended that the applicant had not evidenced any restrictions preventing him from complying with the compulsory measure. They emphasised that, against this background, the doctors at the psychiatric hospital had had concerns that, as a result of a prolonged period in 2013 where he had failed to visit a doctor, the applicant’s health might have deteriorated. 35.     Furthermore, the Government submitted that the applicant had been hospitalised on several occasions since 2005, including on the basis of an emergency procedure prescribed under section   68 of the Medical Treatment Law. They emphasised that, in the present case, his stay at the hospital had been less than the seventy-two hours permitted under the above provision (see paragraphs 25-26 above). The Government also emphasised that, during the applicant’s brief admission to the hospital, the medical commission had complied with the request of the Riga Regional Court and had drawn up a medical report on his state of health. The compulsory measure had been revoked on the basis of the medical report soon after the report had been considered (see paragraphs 17-18 above). 2.     The Court’s assessment 36.     The Court reiterates that, by laying down a requirement that any deprivation of liberty must be “lawful” and effected “in accordance with a procedure prescribed by law”, Article 5   §   1 does not merely refer back to domestic law. Like the expressions “in accordance with the law” and “prescribed by law” in the second paragraphs of Articles 8 to 11, Article 5 §   1 also relates to the “quality of the law”, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. “Quality of the law” in this sense implies that, where a national law authorises deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). 37.     At the outset the Court notes that upon a request made by the Riga psychiatric hospital, on 17   June 2012 police officers arrived at the applicant’s home and took him to the Riga psychiatric hospital against the applicant’s will. The parties do not dispute that the involuntary taking of the applicant to the outpatient department of the Riga psychiatric hospital and his admission to the inpatient department of that hospital between 17 and 19   June 2013 constituted a deprivation of liberty, and that Article   5 of the Convention is applicable. 38.     The Government argued that the applicant’s deprivation of liberty was justified under Article 5   §   1   (b) as a result of “non-compliance with the lawful order of a court”. In this regard the Court observes that at the material time there were two court orders in force, namely the Vidzeme District Court’s decision of 8   April 2013 and the Riga Regional Court’s decision of 28   May 2012, whereby the applicant was ordered to undergo compulsory outpatient medical treatment (see paragraphs 8 and 11 above). The applicant’s duty to visit a doctor and to attend meetings with a medical commission implicitly derived from statutory provisions (see paragraphs   21 ‑ 22 above). The Court will assess in turn the justification for the applicant’s deprivation of liberty in relation to non-compliance with these duties. (a)     Visits to a doctor 39.     It is not disputed that soon after the court decided to impose a compulsory outpatient medical treatment on the applicant, the Riga psychiatric hospital made him aware of an internal procedure in relation to rights and obligations of persons receiving compulsory outpatient medical treatment at the hospital (see paragraph 7 above). According to the procedure, if a patient missed more than three doctor’s appointments in a row, that patient would be reported to the police so that he could be taken to the doctor. 40.     The Court observes that the applicant had visited his doctor sporadically over an extended period (see paragraph 13 above). This had nevertheless been held to be consistent with the applicable measure (see paragraph 11 above). However, in June 2013 police intervention was sought after the applicant had missed two medical appointments. 41.     The Court further observes that the court orders were of a declaratory nature and did not provide for modalities for its execution. The Court in particular notes the conclusions of the Supreme Court of the Republic of Latvia according to which the domestic legislation did not set out an enforcement procedure to be followed by domestic courts and medical institutions in those cases where people did not comply with compulsory outpatient medical treatment measures (see paragraph 27 above). In this regard the Court emphasises that if a practice develops in response to statutory lacuna, it must provide sufficient guarantees against arbitrary application and satisfy the principle of legal certainty, which is implied in the Convention and which constitutes one of the basic elements of the rule of law (see, mutatis mutandis, Baranowski v. Poland , no. 28358/95, § 56, ECHR 2000 ‑ III). 42.     In the present case, the Court cannot agree that the practice, which was set out in an information leaflet drawn up and certified by the Riga psychiatric hospital, constituted a "law" of sufficient "quality" within the meaning of the Court’s case-law, which requires adequate legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see Amuur v. France , 25 June 1996, §   53, Reports of Judgments and Decisions 1996 ‑ III). The information leaflet made no reference to any legal basis authorising the hospital to rely on measures leading to deprivation of liberty for reasons provided under Article   5 of the Convention. 43.     Section   11 of the Law on Police establishes a high threshold which must be met for the authorities to rely on it. It derives from the wording of that provision that the hospital could seek police assistance when seeking to take to hospital persons who are “mentally ill and a danger to the public” (see paragraph 23 above, and contrast with the case of O.G. v. Latvia (dec.), no.   6752/13, §   29, 30   June 2015, brought by the same applicant, where the applicant’s state of health warranted emergency intervention by police assistance in 2012). The Court observes that disregarding the applicant’s earlier mental health troubles, it is not disputed that at the material time he did not show any medical symptoms posing danger to the public that warranted his involuntary taking to a doctor. 44.     In addition, the Court notes that, in the present case, police intervention was sought after the applicant had missed two medical appointments in a row, even though, according to the information leaflet, such a measure was prescribed if a patient missed “more than three medical appointments in a row”. It therefore adds to the state of uncertainty to which the applicant was subject and points to the risk of arbitrariness in deploying the practice of involuntary taking to a doctor by the medical practitioners. 45.     In the light of the above the Court concludes that the applicant’s detention was not based on a concrete legal provision or a specific judicial decision; his detention with an aim of bringing him before a doctor was based on a practice which did not satisfy the test of the “quality of the law” for the purposes of Article 5 § 1 of the Convention. (b)     Visits to a medical commission 46.     The Government further emphasised that, during the applicant’s brief admission to hospital, the medical commission had complied with the request of the Riga Regional Court and had drawn up a medical report (see paragraph 12 above). 47.     The Court observes that on 28   March 2012 the medical commission drew up a medical report which was on 28   May 2012 assessed by the Riga Regional Court in order to decide on continuing the applicant’s outpatient medical treatment. Pursuant to the domestic law, the next assessment of whether the measure should be modified was to take place not earlier than 28   May 2013 (see paragraph 22 above). The applicant was taken to a psychiatric hospital and was admitted to the inpatient section of the Riga psychiatric hospital. 48.     The Court accepts that the applicant’s irregular visits to a doctor in 2013 might have negatively affected the medical institution’s ability to comply with the court order to furnish a recent medical report about the applicant’s health. However, as the Court has observed before, neither the court orders nor the information leaflet referred to any enforcement procedure regarding a person’s failure to attend a meeting with the medical commission (see paragraph 7 above). 49.     As stated above, a high threshold needed to be met for deploying the mechanism under the Law on Police. A similar approach was enshrined in section   68 of the Medical Treatment Law which made involuntary hospitalization subject to state of a patient’s mental health causing imminent danger to the public (see paragraphs 25 and 26 above). As already observed, the conduct of the applicant at the material time did not warrant any emergency intervention. In the present case, by taking the applicant to a psychiatric hospital and admitting him to the inpatient section of that hospital it seems that the authorities in fact filled the statutory lacuna with a procedure applicable in case of emergency intervention based on state of health. 50.     The Court reiterates that deprivation of liberty may be unlawful if its apparent purpose differs from the real one (see Bozano v. France , 18   December 1986, Series A no. 111, §   60). The observations that there were no grounds for the applicant’s emergency admission to the hospital are corroborated by the medical report of 19   June   2013 and the domestic courts’ decisions to revoke the compulsory outpatient medical treatment measures soon after (see paragraphs 17-18 above). Consequently, the applicant’s detention with the aim of bringing him before a medical commission did not have a sufficient legal or judicial basis. (c)     Conclusion 51.     The foregoing considerations lead the Court to conclude that the applicant was not deprived of liberty “in accordance with a procedure prescribed by law” under Article 5   §   1   (b) of the Convention. Taking into account that the Government have not argued that such detention was justified under any of the remaining sub-paragraphs of Article 5   §   1, there has accordingly been a violation of that Article. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 52.     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.” A.     Damage 53.     The applicant claimed 1,546 euros (EUR) in respect of pecuniary and EUR 4,300 in respect of non-pecuniary damage. 54.     The Government disagreed with the claim. 55.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Deciding on an equitable basis, it awards the applicant EUR   4,300 in respect of non-pecuniary damage. B.     Costs and expenses 56.     The applicant also claimed EUR   53 for costs and expenses incurred before the Court in relation to postal expenses and internet services used in preparing his submissions. 57.     The Government disagreed with the claim. 58.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR   10 to cover postal expenses relating to the proceedings before the Court. C.     Default interest 59.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 5 § 1 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts: (i)     EUR 4,300 (four thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 10 (ten euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 30 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia Westerdiek   Angelika Nußberger   Registrar   President