CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 janvier 2020

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text-align:justify } .s636BD389 { width:12.04pt; font:7pt 'Times New Roman'; display:inline-block } .s12B939F1 { width:9.38pt; font:7pt 'Times New Roman'; display:inline-block } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sFB95DF04 { width:189.96pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s7C2088F3 { font-family:Arial; text-decoration:underline; color:#000000 }   SECOND SECTION CASE OF STRAZIMIRI v. ALBANIA (Application no. 34602/16)   JUDGMENT   Art 3 • Inhuman treatment • Degrading treatment • Poor conditions of detention and inadequate medical treatment of a mentally ill person subject to a court-ordered compulsory medical treatment • “Therapeutic abandonment” Art 5 § 1 (e) • Lawful arrest or detention • Detention in penal facility of mentally ill individual who had been exempted from criminal responsibility • Authorities’ longstanding failure to set up a special medical institution integrated into health system, in breach of domestic law • Structural problem Art 5 § 4 • Speediness of review • Three years’ delay in appeal proceedings entirely attributable to the authorities Art 5 § 5 • Compensation • Absence of enforceable right to compensation in respect of the specific violations of Articles 5 §§ 1 and 4   STRASBOURG 21 January 2020 FINAL   21/05/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Strazimiri v. Albania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Marko Bošnjak,   Valeriu Griţco,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Darian Pavli, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 10 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 34602/16) against the Republic of Albania lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Arben Strazimiri (“the   applicant”), on 11 June 2016. 2.     The applicant was represented by Ms E. Skendaj of the Albanian Helsinki Committee. The Albanian Government (“the Government”) were represented by their then Agent, Ms A. Hicka of the State Advocate’s Office. 3.     The applicant complained that the conditions of his detention and inadequacy of the medical treatment received had been contrary to Article 3 of the Convention. He also complained that (i) his confinement in prison had not been ordered “in accordance with a procedure prescribed by law” and had not been “lawful”, within the meaning of Article 5 § 1 of the Convention, (ii) he had not been given the possibility of having the lawfulness of his detention reviewed “speedily” by a court as required by Article 5 § 4, and (iii) he did not have an enforceable right to compensation in respect of the alleged breaches under Article 5, as required by Article   5   §   5 of the Convention. Lastly, he complained of a lack of an effective remedy and about having been discriminated against on the grounds of his mental illness, contrary to Articles 13 and 14 of the Convention, respectively. 4.     On 5   October 2016 notice of the complaints under Articles 3, 5 § 1, 4 and 5, Articles 13 and 14 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1973. When he lodged his application he was being detained in the Tirana Prison Hospital (“the Prison Hospital”). He has been diagnosed with paranoid schizophrenia. Judicial proceedings concerning the applicant’s compulsory medical treatment First set of proceedings 6.     The applicant was arrested in April 2008 in flagrante delicto while attempting to commit murder. He was subsequently committed for trial for attempted premeditated murder. 7.     On 25   March   2009 the Tirana District Court found that the applicant, who had committed the criminal offence of attempted premediated murder, was to be exempted from criminal responsibility on account of his mental illness and ordered the applicant’s “compulsory medical treatment in a medical institution” ( trajtim i detyruar në një institucion mjekësor) , in accordance with Article 46 of the Criminal Code. The decision was based on a medical expert report of 23 May 2008, which had found that “the applicant [had] committed the offence under the influence of his illness, as a result of which he could not be held accountable for his actions, and the applicant needed compulsory inpatient treatment as he was considered ‘a   person of high social risk’”. 8.     The Tirana District Court’s decision took into consideration the fact that: “1. The Tirana District Court [had] ordered the applicant’s compulsory outpatient medical treatment under the care of his family in a decision of 13 January 2006; 2. The Tirana District Court [had] ordered the applicant’s temporary hospitalisation in the Prison Hospital’s psychiatric wing in a decision of 8 March 2007; 3. The Tirana District Court [had] ordered his release from prison in a decision of 27   December 2007.” 9 .     On 8 April 2009, based on the writ of execution of the Tirana District Court’s decision of 25 March 2009, the applicant was sent to Kruja Prison. Second set of proceedings 10.     On an unspecified date in 2010 the applicant requested the revocation of the decision of 25 March 2009. The Tirana District Court ordered another medical examination of the applicant’s state of mental health. A medical report of 7 July 2010 found that: “1. The applicant suffered from paranoid schizophrenia; 2. His condition was not stable. 3. It is recommended to continue with the applicant’s compulsory inpatient medical treatment.” 11.     On 27 October 2010, on the basis of the aforementioned medical report, the Tirana District Court ordered the continuation of the compulsory inpatient medical treatment. The court further stated that the applicant’s family members had not demonstrated that they could offer conditions which would be appropriate considering the applicant’s societal risk on account of his illness. On 11 March 2011 the Tirana Court of Appeal upheld that decision. 12 .     On 30 March 2011 the prosecutor issued a writ of execution of the courts’ decisions. 13 .     On 20 June 2011 the applicant was transferred to the Prison Hospital, where he was being detained when he lodged his application. Third set of proceedings 14 .     On 16 January 2013 the Tirana District Court reviewed proprio   motu, in accordance with Article 46 of the Criminal Code, the applicant’s compulsory inpatient medical treatment. After considering two different medical reports, the court ordered the continuation of the applicant’s compulsory inpatient treatment on the ground that it was justified by the applicant’s state of health, the inability of his family to ensure conditions appropriate to his state of health as well as the applicant’s failed attempts to commit suicide. That decision was upheld on appeal on 3   April and 30 May 2013 by the Tirana Court of Appeal and the Supreme   Court, respectively. 15 .     On 15 April 2013 the prosecutor issued a writ of execution of the Court of Appeal’s decision of 3 April 2013. Fourth set of proceedings 16 .     On an unspecified date the applicant’s representative applied to the Tirana District Court to have the applicant’s inpatient treatment revoked, arguing that his condition had improved, and for it to be replaced with outpatient treatment. The Tirana District Court accepted a request on the applicant’s representative’s part to add two independent experts to the team of experts from the Forensic Medical Institute which was tasked with providing a medical report to the court. The team of experts provided two different medical reports. 17.     The first medical report of 9   December 2013 stated, inter alia , the following: “1. Mr Strazimiri still suffers from paranoid schizophrenia. 2. His current mental health is not stable, he demonstrates uncontrolled psychotic symptoms. 3. The best treatment for him, keeping in mind the protection of his life and of the life and health of others, is compulsory inpatient medical treatment. 4. Based on his current mental health and the current level of risk that he represents for society, such a measure is still necessary”. 18.     The second medical report of 12 December 2013 drawn up by the two independent experts proposed by the applicant’s representative provided, inter alia , the following: “1. Mr Strazimiri still suffers from paranoid schizophrenia.   ... 3. Given his current state of health, Mr Strazimiri cannot yet be discharged for voluntary treatment ( mjekim të lirë ). The best treatment for him, however, is compulsory outpatient medical treatment ... 4. Based on his current psychiatric condition and the level of risk for society, compulsory medical treatment in a psychiatric institution, namely at the Prison Hospital, is no longer necessary.” 19 .     The Tirana District Court examined both medical reports and, on 3   February 2014, it ordered the continuation of inpatient treatment, stating the following: “Mr Strazimiri used to be subject to compulsory outpatient treatment ... which resulted in being ineffective, as he attempted to murder A.R ... On the basis of the expert reports drawn up throughout these years, the documents submitted during this set of proceedings and the evidence available in the case file, the court finds that this offence was committed as a result of the medication non-adherence ( transkurimit të mjekimit ) on the part of Mr Strazimiri ... Consequently, compulsory outpatient treatment does not provide any assurance that Mr Strazimiri will not commit other criminal offences against third parties and/or suicidal acts. The experts appointed by Mr Strazimiri highlighted the necessity of medication adherence and the provision of family care to treat the illness; otherwise his state of health will deteriorate. The court notes that, at the hearing of 3 February 2014, in spite of his being calm, Mr Strazimiri punched the prison police officer who was escorting him in the face for no apparent reason. This action demonstrates that Mr Strazimiri continues to be violent and dangerous to third parties even though he is supervised by specialised personnel. ... In 2012 Mr Strazimiri attempted suicide, even though he had been under strict medical supervision and in special conditions appropriate for his mental health which his family would not have been able to afford. Mr Strazimiri has stated that he is eagerly awaiting his release in order to use alcohol and narcotic substances. ... The applicant’s family members have not proved that they could afford proper medical treatment proportionate to the level of risk he poses to society due to his mental health.” 20.     The Tirana District Court concluded that compulsory medical treatment in a medical institution was the only measure commensurate with the risk the applicant posed, the need for continuous attention to his life and health, and the protection of his family members and members of the community. 21.     That decision was upheld on appeal on 11 June and 25   September   2014 by the Tirana Court of Appeal and the Supreme Court, respectively. 22 .     On 20 June 2014 the prosecutor ordered the enforcement of the Court of Appeal’s decision of 11 June 2014. (a)    Fifth set of proceedings 23 .     On 17 September 2014, the applicant, relying on Articles 3 and 5 of the Convention, the Constitution, the Criminal Code, the Code of Criminal Procedure and the Mental Health Act, lodged a complaint with the Tirana District Court requesting that the latter end his degrading and inhuman treatment and his confinement in the Prison Hospital, and place him for treatment in a special medical institution under the Ministry of Health. He claimed that his conditions of detention as well as the medical treatment afforded to him in the prison facilities had been considered by the European   Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) as inhuman and degrading. He referred to a protocol on the diagnostics and therapeutic care of schizophrenia adopted by the Ministry of Health, according to which his illness would be treated in an effective way by combining medication with other supporting therapies. 24.     On 20   November 2014 the Tirana District Court found that, based on the evidence before it, the applicant’s lawyer had not pointed to any particular instances of inhuman or degrading treatment, other than the lack of provision of medical treatment, or that the applicant had been deprived of his freedom unlawfully. It dismissed the complaint as manifestly ill ‑ founded, stating the following: “Drawing from the evidence obtained during this set of proceedings, and in particular from a letter of the General Directorate of Prisons (“the Prisons Service”), it transpires that: - On 23 September 2009 Mr Strazimiri, owing to the reconstruction of the Prison Hospital, was sent to Kruja Prison to serve the compulsory medical treatment. Kruja Prison is a specialised institution, offering around-the-clock health services (provided by doctors and nurses) ... - Since 26 June 2011Mr Strazimiri has been transferred to a specialised wing set up for the treatment of mentally ill persons at the Prison Hospital. - The group of patients to which Mr Strazimiri belongs should be dependent on the Ministry of Health. The Ministry of Justice and the Prisons Service have been negotiating for their transfer to the Ministry of Health. Actually, the majority of this group of patients who are subject to a medical measure have been accommodated at Kruja Prison and 20% of them have been accommodated at the Prison Hospital. According to a letter from the Prison Hospital it transpires that ‘Mr Strazimiri has been hospitalised and continues to receive specialised treatment at the Prison Hospital, including the respective therapy according to the diagnosis ... we wish to inform you that the Prison Hospital has placed all persons subject to compulsory treatment in a special wing. This has been so, because this category of patients cannot stay with other patients who are hospitalised on health grounds and would stay temporarily until their rehabilitation or improvement of the state of health. Even though this category of patients has been placed in a special wing, the administration of the Prison Hospital has taken all measures to ensure respect of their rights deriving from the Prison Hospital regulation, as approved by the Ministry of Justice. It is worth mentioning their right to outdoor exercise ..., to group and individual counselling, to inclusion in various socio-cultural activities, to lodge a complaint; those interested can get involved at the library; and the right to legal advice.’ ... It is true that the Mental Health Act (law no. 44/2012) states that persons who are subject to court-ordered compulsory medical treatment should undergo this measure in specialised health institutions which are part of the integrated health system. However, it does not state that such institutions should be answerable to the Ministry of Health. According to section 29, the Ministry of Health is obliged to provide specialised assistance. It is equally true that such institutions do not exist in the Republic of Albania. Still, the State has taken necessary measures to remedy such situation until the construction of specialised institutions. Cooperation amongst the Prisons Service, the Ministry of Justice and the Ministry of Health has been ongoing to address this problem. ... The court finds that Mr Strazimiri’s complaint is unfounded on evidence and law. It therefore decides to dismiss it.” 25 .     On 22 December 2015 the Tirana Court of Appeal upheld the Tirana District Court’s decision of 20 November 2014. 26.     On 11 January 2016 the applicant appealed against both decisions to the Supreme Court. It appears that the case is still pending before the Supreme Court. Proceedings against the enforcement of court decisions ordering the applicant’s compulsory medical treatment 27 .     On 17 July 2014 the applicant challenged the prosecutor’s execution order of the Court of Appeal’s decision of 11 June 2014 (see paragraph 22 above). The applicant argued that, since he was neither a convict nor detained pending trial, his placement in a penal institution, such as the Prison Hospital which was dependent on the Prisons Service, was contrary to domestic law, namely Article 46 of the Criminal Code and section 45 of the Execution of Criminal Judgments Act, and also contrary to the court’s decisions ordering his placement in a special medical institution. He submitted that such placement had been found to be in breach of domestic law by the CPT and the People’s Advocate. 28.     On 20 October 2014 the Tirana District Court dismissed his complaint as manifestly ill-founded, finding that the enforcement order had been issued in accordance with domestic law. On 14   April 2015 the Tirana Court of Appeal upheld that decision. 29.     On 21 April 2015 the applicant appealed against both decisions to the Supreme Court. It appears that this set of proceedings is still pending before that court. The applicant’s criminal complaints First set of proceedings 30.     On 24 July 2014 the applicant lodged a criminal complaint with the Tirana prosecutor’s office claiming that the prosecutor’s orders, which had placed him first in Kruja Prison and then in the Prison Hospital, had been in breach of the law (see paragraphs 9, 12, 15 and 22 above). In addition, the applicant requested that the prosecutor’s office open a case and start criminal proceedings against the public officials who had been responsible for the above-mentioned violation. He further alleged that his inadequate treatment in those institutions, as supported by the CPT findings, was inhuman and degrading. 31 .     On 30 September 2014 the prosecutor’s office responded that, as there was no special medical institution in the country catering for individuals suffering from mental disorders who were subject to court ‑ ordered compulsory medical treatment, the placement of the applicant in the said institutions had not been contrary to law. Further to its response, on 29   October 2014 the prosecutor’s office provided the applicant with information it had received from the Prisons Service, which had explained that a number of individuals subject to court-ordered compulsory medical treatment had been placed in Kruja Prison by a prosecutor’s decision of 23   September 2009 owing to refurbishment work taking place at the Prison Hospital. The Prisons Service stated that this category of people should depend on the Ministry of Health and negotiations were underway between the Ministry of Justice and the Prisons Service for their transfer to the Ministry of Health. 32.     Following a complaint to the Prosecutor General, the prosecutor’s office registered a criminal complaint based on the instructions provided by the Directorate for the Review of Investigation and Prosecution ( Drejtoria e Kontrollit te Hetimit dhe Ndjekjes Penale ) of the Prosecutor General’s Office. On 26 January 2015 the prosecutor’s office decided not to institute any criminal proceedings in connection with the applicant’s complaint, finding that he was not subjected to inhuman or degrading treatment or to an unlawful deprivation of his liberty. The prosecutor acknowledged that no specialised institutions existed in the country to cater to the needs of mentally ill persons who were subject to court-ordered compulsory medical treatment. Mentally ill persons would continue to undergo this measure in establishments which the authorities had adapted for this purpose, until the construction of a specialised institution. 33.     On 10 June 2015 the Tirana District Court, following the applicant’s appeal against the prosecutor’s decision, rejected the appeal. It appears that the proceedings are pending before the Court of Appeal. Second set of proceedings 34.     On 23 July 2015 the applicant lodged a complaint with the prosecutor’s office, asking the latter to open criminal proceedings against the administrators and managers of the Prison Hospital and Kruja Prison for the alleged commission of arbitrary actions, the alleged failure to take measures to end unlawfulness, the alleged detention in custody without a decision, and the alleged violation of the equality of citizens under Articles   250-253 of the Criminal Code. 35.     On 3 September 2015 the prosecutor decided not to institute criminal proceedings for these offences. It does not appear that the applicant has lodged an appeal against the prosecutor’s decision. Medical expert reports concerning the applicant’s state of health Report of 11 September 2015 36.     As part of his observations, the applicant submitted a medical expert report of 11 September 2015 which had been ordered by the Tirana District Court in accordance with Article 46 of the Criminal Code in order to review the applicant’s medical situation. The medical experts were asked to respond to the following questions: “1.     Does Mr Strazimiri still suffer from any mental disorders? 2.     If yes, which? 3.     What is the mental condition of Mr Strazimiri at this time? 4.     If he still suffers from any mental disorders, what is the best way to treat him, bearing in mind the protection of his life and health and that of others: a) compulsory outpatient treatment b) compulsory inpatient treatment in a medical institution? 5.     Is the compulsory medical treatment ordered by the Tirana District Court in its decision of 25 March 2009 still necessary?” 37 .     The findings of the medical experts were the following: “The patient still suffers from paranoid schizophrenia, a chronic disease, without any remission in his case. There is a high risk of violence due to the illness. Active psychotic symptoms are still visible, although positive change is noticeable compared to the last medical report. The fact that his thinking process depends on, and alters as a result of, internal and external factors bears a high risk of unpredictable behaviour. Based on his medical file, he frequently manifests dysphoric behaviour, at least every two months, requiring urgent injections, and in the meantime he is being treated with a combination of anti-psychotics at a high dosage. Apart from the psychosis that he currently manifests and his history of aggressiveness and unpredictable behaviour, he also manifests non-adherence to and non-compliance with his medical treatment schedule, therefore presenting difficulties in his treatment as an outpatient. Therefore, compulsory inpatient medical treatment is recommended.” Report of 14 February 2017 38.     As part of his observations, the applicant submitted a medical report of 14 February 2017 which had been ordered by the Tirana District Court in accordance with Article 46 of the Criminal Code in order to review the applicant’s medical situation as part of a separate set of proceedings, the outcome of which has not been disclosed to the Court. The medical experts were tasked with responding to the same questions indicated in paragraph 36 above. 39.     The findings of the forensic experts were the following: “Mr Strazimiri has suffered for many years from paranoid schizophrenia. This illness has conditioned his judgment and behaviour, engendering a high risk of unpredictable behaviour. According to a HCR-20 (historical, clinical, risk management) evaluation, which is a tool to measure risk of violent behaviour ... this patient has met the three components of HCR and was classified as a high social risk. In this examination, following the Tirana District Court decision, it was found out that, thanks to a high and multi-therapeutic dose (of anti-psychotics) ( u konstatua se me doza të larta dhe politerapeutike ) the clinical management of the illness had ensured neither relapses nor exacerbation. Considering that there has been a manifest change in one of the three components [of HCR], we leave it to the court to decide on the appropriate medical measure. Conclusions 1. Arben Strazimiri suffers from mental illness. 2. Arben Strazimiri suffers from paranoid schizophrenia. 3. Arben Strazimiri presently manifests attenuated symptoms of the illness. 4. In view of the present progress of the illness, despite the positive aspects, we cannot recommend mandatory outpatient treatment, leaving it to the court to assess the imposition of the medical measure. 5. Being of the opinion that one of the three components has displayed changes, we leave it to the court’s assessment to decide on the medical measure.” Report of 27 March 2017 40 .     The applicant’s representative commissioned an independent forensic expert to carry out an assessment of the applicant’s medical condition. The expert was tasked with conducting a comparative assessment of the applicant’s medical treatment during his years of compulsory confinement in prison medical centres. The expert report made reference to the World Health Organization Protocol on Medical treatment of Paranoid Schizophrenia and pointed out that deinstitutionalisation and several forms of psychotherapy represented the standard practice in respect of the effective treatment of this type of pathology. Regarding the applicant’s condition on the date of the visit (27 March 2017) the expert observed that he had presented with mental disorders. Furthermore, the expert report stated that almost all the medication set out in the protocol had been prescribed to the patient, while he had undergone none of the psychotherapies deemed as essential for his recovery (such as group therapy, family therapy, social and vocational rehabilitation, and so forth). The Prison Hospital lacked the very basic medical conditions and trained medical personnel to carry out that treatment. Therefore, the application to the patient of almost all types of medication available in the plan for the treatment of this pathology, coupled with a total lack of psychotherapy and the prison regime (which also involved significant periods of isolation), largely risked becoming counterproductive and reducing significantly the chances of a potential recovery of the patient. The forensic expert urged that the applicant be transferred to a proper medical centre where he could undergo indispensable psychotherapy and also have his treatment plan thoroughly reviewed. Correspondence with State institutions 41 .     On 12 January 2015 the General Directorate for Strategic Planning and Audit of Justice Affairs of the Ministry of Justice sent a letter to the applicant’s representative, stating, amongst other things, the following: “The problems concerning the treatment of (mentally ill) persons subject to court ‑ ordered compulsory medical treatment have been inherited and remained unaddressed for a period of more than 10 years, owing to the absence of a “specialised institution” in the health system, which would offer compulsory treatment to this category of people in accordance with the Mental Health Act (law no. 88/2012) and the Execution of Criminal Decisions Act (law no. 8331/1998).” A memorandum of understanding, entered into between the Ministry of Justice and the Ministry of Health, had been appended to the letter, enlisting the undertakings of each institution for the treatment of mentally ill persons. 42 .     On 28 April 2016, following a request from the applicant’s representative, the Prison Hospital provided some information on the conditions in that institution. The letter stated, inter alia , the following: “1. One hundred and six people currently receive inpatient treatment, of whom forty-four are subject to compulsory medical treatment and twenty-two are subject to temporary hospitalisation. All individuals, who have been deprived of their freedom and who suffer from health problems, are hospitalised in this institution. 2. The capacity of the institution is ninety-nine [patients] as approved by order of the Director General of the Prisons Service no. 303, dated 23 March 2016. 3. The number of medical personnel is forty-six. ... 4. Individuals who are subject to compulsory medical treatment receive health care service to the best possible standards. They are accommodated together with individuals belonging to the same category, while respecting the general principles. They are under the care of a psychiatrist who works full time for the institution. ... Their treatment with medication is in line with the medication protocol for psychotropic drugs of different classes. ... As regards the general infrastructure, despite continuous improvement, it is not possible to do more owing to the limited number of beds and an ever-increasing demand. The ultimate solution would be to create standards following the example of other more developed countries and ... to establish a special forensic institution. 5. Persons having mental health problems are treated with individual treatment programmes for persons with psychological and psychiatric disorders aimed at improving the psycho-emotional state ... Amongst the rehabilitating and therapeutic activities, it is worth mentioning: individual and group counselling, social-cultural activities...outdoor exercise...and board games ...” RELEVANT DOMESTIC LAW AND PRACTICE Legislative framework on mentally ill people Constitution 43.     The Constitution provides, in so far as relevant, as follows: Article 25 “No one may be subjected to torture, cruel, inhuman or degrading punishment or treatment.”   Code of Criminal Procedure (“the CCP”) 44.     The Code of Criminal Procedure provides, in so far as relevant, as follows: Article 46 Compulsory medical treatment “1. Whenever the mental conditions of the defendant warrant that he or she should undergo medical treatment, the court shall order, even proprio motu, the hospitalisation of the defendant in a psychiatric institution. 2. When compulsory medical treatment has been ordered or when it must be imposed on the defendant, the court shall order that the defendant be placed in a psychiatric institution. 3. The prosecutor can apply to the court to decide on the hospitalisation of the defendant in a psychiatric institution during preliminary investigations and, if any delay gives rise to risks, the prosecutor shall order temporary hospitalisation until the court takes a decision.” Chapter V – Compensation for unjust imprisonment Article 268 Requirements for application “1. Whoever is acquitted by a final decision is entitled to compensation for the pre-trial detention time served, unless it has been proven that the wrongful decision or failure to discover an unknown fact in due time was caused, wholly or in part, by the person him- or herself. 2. The same right belongs to a person who was placed in pre-trial detention, if a final decision states that the [decision] by which the security measure was imposed was in breach of the requirements provided in Articles 228 and 229 [of the CCP]. 3. The provisions of paragraphs 1 and 2 shall also apply to individuals in respect of whom the proceedings have been discontinued ( pushuar ) by the courts or a prosecutor. 4. When a court decides that the fact does not constitute a criminal offence by law, because the criminal provision has been repealed, the right to compensation is not recognised for the time served before the repeal of the said provision.” Article 269 Request for compensation “1. An application for compensation must be lodged within three years of the date on which the decision of acquittal or discontinuation ( pushimi ) became final; otherwise it shall not be accepted. 2. The amount of compensation and its assessment, as well as compensation in the event of house arrest, are prescribed by a specific Act.” Criminal Code 45.     The Criminal Code provides, in so far as relevant, the following: Article 46 Medical and educational measures “The court may impose medical measures on individuals who were not criminally responsible who have committed criminal offences ... Medical measures shall be the following: 1. Compulsory outpatient medical treatment; 2. Compulsory inpatient medical treatment in a medical institution; .... The court decision on the imposition of medical ... measures can at any time be revoked if the circumstances under which they were imposed cease to pertain. In any case, the court shall reconsider its decision one year after the date of its adoption. The rules relevant to revoking the court decision imposing the medical ... measures are provided for in the Code of Criminal Procedure.” Compensation for Unlawful Detention Act (Law no. 9381 of 28   April   2005) 46.     Under section 3 of this Act unlawful detention is considered the period of: (1) pre-trial detention if the prosecution has stopped the investigation or the court has acquitted the accused or dismissed the case; (2) detention after conviction by a court when later on the conviction has been quashed, an acquittal decision has been rendered or the case has been dismissed by a final decision; (3) extra time served than that ordered in a final decision; (4) pre-trial detention when, by a final decision, it has been proven that the decision was issued in breach of Articles 228 and 229 of the CPC; (5) pre-trial detention beyond the statutory time-limit; (6) unlawful detention due to a mistake in the writ of execution, and (7) house arrest as laid down under points (1), (3), (4) and (5). Rights and Treatment of Prisoners and Individuals in Pre-trial Detention Act (Law no. 8328, dated 16 April 1998, as amended – hereinafter “the Rights and Treatment of Prisoners Act”) 47.     The Rights and Treatment of Prisoners Act initially applied to all individuals sentenced to imprisonment by a final court decision. The 2014 amendments, which entered into force on 29 May 2014, extended its application to individuals in pre-trial detention. As relevant to the case before the Court, the Rights and Treatment of Prisoners Act, as amended in 2014, provides as follows: Section 10 – Personalised treatment “Treatment of prisoners [or individuals in pre-trial detention] shall be administered in accordance with the individualisation criteria and by having regard to the individual characteristics and situation of each prisoner [or person in pre-trial detention]. Bespoke treatment shall be administered by assessing individual psychological and social needs, age, gender, health status, sexual orientation or gender identity, social and economic situation, and the environment where the person in pre-trial detention or prisoner has lived, risk factors and motivation of the person to become involved in activities organised in [the] penal institution. The monitoring [process] shall commence at the start of treatment and the results shall be continuously assessed during its implementation, by making necessary adjustments in consultation with the prisoner [or person in pre-trial detention]. Section 11 – Treatment plan and its implementation “Following assessment, a treatment plan shall be drawn up in consultation with the person in pre-trial detention or the prisoner. A reintegration plan shall be drawn up for each person in pre-trial detention or prisoner, while an individual treatment plan, regard being had to their specific needs, shall be drawn up for special categories of people in pre-trial detention or prisoners. Special emphasis shall be placed on [providing] psycho-social treatment to ... individuals with mental-health disorders. ... Monitoring, planning and implementation of treatment is administered by the personnel of the [penal] institution in consultation with relevant State institutions. ...” Section 16 – Special medical institutions and special medical sections “Special medical institutions [placed] outside of the penal institutions and special medical wings [found] within the penal institutions serve the purpose of providing treatment for individuals in pre-trial detention and prisoners with mental-health disorders. The placement of individuals in special medical institutions [placed] outside the penal system is carried out in application of a court decision. The placement of individuals in special medical wings [within the penal institutions] shall be carried out in application of a court decision or of a prosecutor’s execution order. In urgent cases, the director of the [penal] institution, in which a person in pre-trial detention or prisoner is found, may, upon immediately informing the prosecutor, order his or her placement [in special medical sections]. Upon a proposal of the director of the [penal] institution, a request of the person in pre-trial detention or prisoner, or his or her legal guardian, or on the court’s own initiative, the court may, by observing the one-year time-limit for the re-evaluation of the person’s condition, order the discharge of the person concerned from the special medical institution. The person in pre-trial detention, the prisoner, his or her legal representative or guardian shall have the right to appeal against the placement, refusal of placement, discharge or refusal of discharge from special medical institutions to a court within five days of receiving notice. Treatment in special medical wings [found] within the penal institutions shall be administered for as long as the court does not order treatment in a special medical institution, as defined in the Mental Health Act. As guaranteed by this Act, the rights of individuals in pre-trial detention and prisoners placed in special medical institutions and special medical wings, as well as their patients’ rights, shall be respected. The Minister of Justice and the Minister of Health [may], through a joint instruction, determine the manner of implementing procedures related to the treatment of this category of individuals.” Section 33/1 – Health care for special categories “Health care in penal institutions is administered without discrimination ... Treatment of individuals suffering from mental-health disorders is administered in accordance with the Mental Health Act. Individuals in pre-trial detention and prisoners who are held in penal institutions and suffer from mental-health disorders have the right to special health care at the special medical wings of penal institutions or at the Prison Hospital. ... The Prisons Service shall take measures to ensure the administration of necessary health services in penal institutions and, failing that, in specialised institutions outside of the penal system.” Mental Health Act 48.     The Mental Health Act, which came into force in 1996 (Law   no.   8092 of 21   March 1996), did not have any provisions about the treatment of mentally ill prisoners or individuals who were exempted from criminal responsibility on account of mental-health disorders. 49 .     The Mental Health Act 1996 was replaced by a new Mental Health Act which entered into force on 31 May 2012 (Law no. 44/2012). As relevant to the case before the Court the Mental Health Act 2012 provides as follows: Section 28 Special medical institutions “1. Special medical institutions are institutions catering for the treatment of individuals with mental-health disorders who have committed a criminal offence, in respect of whom the competent court has ordered compulsory [medical] treatment in a medical institution, of individuals in pre-trial detention or prisoners who manifest mental-health disorders during the execution of their penalty, and for the treatment of individuals in respect of whom the court has decided [to impose] temporary placement in a special medical institution, under Article 239 of the Code of Criminal Procedure. 2. The individuals placed in special medical institutions are treated in the same way as the other patients manifesting mental-health disorders. The special medical institutions, defined in paragraph 1 of this section, are part of the integrated health system. The parameters for the establishment and operation of these special medical institutions and security measures to ensure their safety [and security] are determined by a decision of the Council of Ministers.” Section 29 Mental health in penal institutions “1. Prisoners and individuals in pre-trial detention, who are placed in penal institutions and suffer from mental-health disorders, have the right to receive special medical treatment in these institutions or in the Prison Hospital. 2. Mental-health treatment and care, as laid down in paragraph 1 of this section, is provided in a non-discriminatory way and in accordance with health standards applied to other categories of people suffering from mental-health disorders. 3. In application of paragraph 1 of this section, the Ministry of Health, through mental-health services, provides all the necessary assistance to diagnose, treat and rehabilitate individuals suffering from mental-health disorders, as required.” The Execution of Criminal Decisions Act (law no. 8331/1998 as amended by law no. 10024/2008) 50.     Section 13 of the Execution of Criminal Decisions Act provides that the prosecutor issues a writ of execution of criminal decisions. Section 46 states that “medical measures relating to compulsory treatment are executed at a specialised medical institution as determined by the Ministry of Health upon the prosecutor’s request”. Facilities for persons having mental disorders 51 .     According to the action plan for the d