CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 janvier 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s780F5245 { border:0.75pt solid #000000; clear:both } .s2ECC6C88 { margin-top:0pt; margin-bottom:0pt; padding-top:1pt; padding-right:4pt; padding-left:4pt } .s4C0F7460 { margin-top:0pt; margin-bottom:0pt; padding-right:4pt; padding-left:4pt; padding-bottom:1pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3F7C0F1 { margin-top:6pt; margin-bottom:6pt; text-indent:7.1pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7876111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:11pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sDE1FCA9C { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s28BDCFEA { width:6.53pt; display:inline-block } .s103B994B { width:182.22pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sDC434588 { width:212.56pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FIRST SECTION         CASE OF L.R. v. NORTH MACEDONIA   (Application no. 38067/15)             JUDGMENT   Art 34 • Standing of non-governmental organisation to lodge application on behalf of mental patient Art 3 • Inhuman treatment • Degrading treatment • Inadequate care and treatment of a mentally disabled eight-year-old child placed over a year and nine months in an inappropriate institution • Child frequently tied to his bed to prevent him from running away • Lack of effective investigation   STRASBOURG   23 January 2020     FINAL   23/05/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of L.R. v. North Macedonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Armen Harutyunyan,   Pere Pastor Vilanova,   Pauliine Koskelo,   Jovan Ilievski,   Raffaele Sabato, judges, and Abel Campos, Section Registrar, Having deliberated in private on 3 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 38067/15) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Helsinki Committee for Human Rights in Skopje (“the HCHR”) on behalf of a Macedonian/citizen of the Republic of North Macedonia, L.R. (“the applicant”), on 27 July 2015. The President of the Section acceded to the HCHR’s request not to have the name of the applicant disclosed (Rule 47 § 4 of the Rules of Court). 2.     The HCHR authorised Mr S. Dukoski, a lawyer practising in Skopje, to represent the applicant on its behalf. The Government of North Macedonia (“the Government”) were represented by their Agent, Mr   K.   Bogdanov, succeeded by their current Agent, Ms D. Djonova. 3.     The applicant alleged in particular that the care and treatment which the applicant had received while in a State-run institution had violated his rights under Article 3, and that the subsequent response by the respondent State had not been compatible with its procedural obligations under that provision. 4.     On 22 August 2016 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 5.     The applicant was born on 21 November 2004 to parents who suffered from a mental disability. He was abandoned at birth and at his grandmother’s request he was placed in B. Orphanage at the age of three months. B. Social Welfare Centre was appointed as his guardian. Symptoms of growth delay were detected when he was one year old. According to a diagnosis given when he was two years old, his physical development had stalled and he had a speech disability. On 14 April 2008 a team of doctors from B. Hospital diagnosed that the applicant had been suffering from a moderate mental disability, the most severe ( најтешко ) form of physical disability (cerebral palsy), and a speech disability (alalia) since birth. 6.     On 8 November 2008 the applicant’s guardian placed him in B. Rehabilitation Institute, a State-run institution for people with hearing and speech disabilities. During his stay in the institute, the applicant was diagnosed as suffering from mental, physical and speech disabilities. He was discharged in June 2012 on the basis of findings made by the medical personnel in the institute which concluded that his continued stay and treatment there would not be justified. B.     The applicant’s placement and treatment in the Rehabilitation Institute B.B.S. 7.     On 21 June 2012 the applicant’s guardian contacted the Rehabilitation Institute B.B.S. (“the RIBBS”), an open-type State-run institution for physically disabled people with no mental disabilities, asking it to accept the applicant. The competent ministry granted that request. In a reply received by the applicant’s guardian on 29 June 2012, the RIBBS stated, inter alia : “The expert panel ... decided unanimously that [the applicant] cannot be placed in our institution, for the following reasons: On the basis of [medical material], it was established that we cannot educate and rehabilitate [the applicant] because he is unable to speak; nor can we communicate with him or understand his needs, because we have no qualified staff to understand and work with him. Our primary activity is accommodating [and] providing care ... to people with severe physical disabilities [who are] mentally fit ...” 8.     On the same date (29 June 2012), the applicant’s guardian decided that he should be placed in the RIBBS. No appeal against that decision was submitted, notwithstanding the clear instruction on available legal remedies contained in the decision. Such an appeal would not have had suspensive effect, under section 181(3) of the Social Care Act. The guardian also requested that the applicant’s state of health be reclassified ( рекатегоризација ). However, the applicant was not transferred to B. Hospital for examination. 9.     By a letter of 12 July 2012, the RIBBS notified the applicant’s guardian that it had no qualified staff to care for the applicant. It further stated: “All members of staff hold [the applicant] by the hand all the time in order to prevent him from running away. Our institution is an open-type institution, and in accordance with internal rules, we can neither lock him in a room nor apply any other restrictive measure. If we don’t hold him by his hand, he runs away ... He could put himself in danger, because beyond the entrance door is a high-speed road ... We draw your attention to this in good faith, in order to find a solution for [the applicant] and avoid things for which we would all be responsible.” 10.     The RIBBS’ records about the applicant stated that his continued stay there would worsen his condition. It was reiterated that its staff could not communicate with him because he was deaf and unable to speak. The applicant had also started injuring himself (biting himself). Whenever possible, he escaped from the institution. It was therefore recommended that he be transferred to a more appropriate institution. In this regard, meetings were held with the applicant’s guardian and other competent authorities. The RIBBS also raised the inappropriateness of the applicant’s placement with the competent ministry and inspectorate. In a letter of May 2013 the RIBBS told the relevant inspectorate, inter alia , “L.R. was categorised as suffering from the most severe form of physical disability, and he is in fact a schoolboy who is deaf and unable to speak”. 11.     On 6 November 2013 the Ombudsman visited the RIBBS, where the applicant was found tied to his bed by his leg. In a special report about the RIBBS of 16 November 2013, the Ombudsman stated: “2. Inhuman or degrading treatment of residents in the RIBBS A deaf child who cannot speak was found in the RIBBS, who had been tied [to a bed] for safety reasons; he cannot communicate with members of staff and the staff do not know sign language [so cannot] provide him with adequate care ... Holding that it is inhuman to place people with special disabilities in institutions that are inappropriate for them and have no adequate safeguards [to prevent] those people and other residents [from being] put at risk, ... it has to be established whether the rights of this group of people with special needs were violated. ESTABLISHED FACTS ... Negative events People with special disabilities, for whom there are no adequate safeguards [at the institution], are placed in the RIBBS. The institution cannot provide these people with adequate care, nor does it have qualified staff to work with them. The Ombudsman considers that the inappropriate placement [of these people] constitutes, in itself, inhuman treatment.” 12.     In reply to the Ombudsman’s request for information, the RIBBS stated that the applicant’s placement there had been in contravention of all its internal regulations, a fact which it had brought to the attention of the competent ministries and social welfare centres. 13.     Following a request by the applicant’s guardian on 4 March 2014, B. Hospital examined the applicant and reached the same findings as those made in its earlier report, namely that he suffered from a moderate mental disability, the most severe form of physical disability (cerebral palsy), and a speech disability (alalia) (see paragraph 5 above). 14.     On 15 April 2014 the guardian placed the applicant in the S.   Rehabilitation Institute, where he is at present. 15.     At a press conference on 25 June 2014 the Ombudsman presented its annual report and revealed that the applicant had been placed in the RIBBS and tied to his bed. Following that conference, on 30 June 2014 the HCHR visited the applicant at the S. Rehabilitation Institute. C.     HCHR’s criminal complaint on behalf of the applicant 16.     On 17 July 2014 the HCHR lodged a criminal complaint, accusing the director of the RIBBS and other (unidentified) employees of “torture and other cruel, inhuman or degrading treatment or punishment” and “ill ‑ treatment in the performance of [their] duties”, punishable under Articles 142 and 143 of the Criminal Code (see paragraphs 34 and 35 below). It was alleged that not only had the applicant been tied to the bed by his leg with a rope described as being long enough to enable him to “reach the corridor”, he had also not been provided with adequate care and treatment, which had amounted to complete neglect. Furthermore, the RIBBS had had no qualified personnel to give the applicant treatment which was appropriate for his needs, which had resulted in his health deteriorating. The HCHR submitted several newspaper articles and a copy of the Ombudsman’s annual report as evidence. 17.     The S. public prosecutor’s office obtained a great deal of documentary material from the RIBBS, the Ombudsman and other competent authorities. It also examined the director of the RIBBS (J.G.D.) and four of its employees (V.M., Z.K., N.G. and S.I.). 18.     J.G.D. stated, inter alia : “... the RIBBS is an open-type institution ... all residents are easy to communicate with ... I immediately told [the director of B. Social Welfare Centre] that our institution had no qualified staff to treat [the applicant] and that we could not accommodate him ... [it was not just that the applicant] was deaf and unable to speak and that it was impossible to establish communication with him, he was also hyperactive and took every opportunity to leave the institution ... he attempted to jump from the window of his room ... In order to ensure his safety, we removed the handles from the window. I was also informed by employees that he had run away from the institution, so we looked for him in the [nearby] village. I constantly informed the competent authorities about the problems we had with [the applicant] and the fact that our institution was inappropriate and had no qualified staff to care for children like this. All my attempts were futile ... ... [regarding the Ombudsman’s visit] I informed the Ombudsman that [the applicant] created problems owing to his mental health and hyperactivity. For his safety, namely to prevent him from injuring or harming himself when employees were occupied [with other residents], employees were obliged to tie him to the bed for a while with cotton straps ( медицински завој ). When they were finished with their [other] duties, [the applicant] was untied and provided with all the requisite care, like other residents ...” 19.     Relevant parts of statements by the RIBBS’ employees read as follows: “[the applicant] had no visible physical disabilities; on the contrary, he was a very active child ... Owing to his temperament, we avoided leaving him alone without any supervision ... because whenever he was alone, [he] would escape ... I do not think that he was aggressive, but he needed to be under [the RIBBS’] employees’ constant supervision. For those reasons, at night we tied him lightly to his bed with cotton straps ( памучен завој ). We did that strictly for safety reasons, to prevent him from escaping ... I tied [the applicant] to his bed at night, but I did not do it in order to ill ‑ treat him, [I did it] to protect him from harming himself by leaving the institution, where he would be exposed to danger ...” (Statement of V.M.) “... [the applicant] was ... a hyperactive child ... at night we tied him to the bed on which he was sleeping for safety reasons only ... if we didn’t secure him, there was a risk that he would escape and go out of the institution onto the street, where there were people, animals and traffic that could put him in danger. That was particularly necessary after 8 p.m., during the night shift, when there were only two members of staff for sixty to seventy residents ... I know that during the day, usually during the midday break, not only I, but also other members of staff would tie [the applicant] to his bed for safety reasons ... All [the RIBBS] employees knew that, the director included, but I think that that was the only way to ensure [the applicant’s] safety. Our institution is an open-type institution: doors are open; windows have no bars. Given the lack of staff, ... the only way to prevent [the applicant] from harming himself or exposing himself to risk while we were occupied with other things was to tie him up during certain parts of the day ...” (Statement of Z.K.) “... despite the fact that, according to medical reports, [the applicant] was regarded as suffering from the most severe form of physical disability, [he had] no visible physical disabilities when he was admitted to the institution. [The applicant] walked without any problems; he ran, so I can say that he was hyperactive and constantly moving ... I consider that the RIBBS is not [an] appropriate [place] to accommodate a child with such disabilities, because our institution does not have [suitably] qualified staff ...” (Statement of N.G.) 20.     On 24 November 2014 the S. (first-instance) public prosecutor’s office notified, under section 288 of the Criminal Proceedings Act (see paragraph 33 below), the HCHR that by a decision of the same date it had rejected the criminal complaint against those accused of crimes, namely the director of B. Social Welfare Centre, the director of the RIBBS and five carers from the RIBBS (V.M., Z.K., V.B., P.M. and K.D., all identified by their full names). The decision found that their actions had not contained any elements of the alleged crimes or any other crime subject to State prosecution. The public prosecutor established: that the RIBBS was responsible for persons with physical disabilities, but in practice also accommodated mentally disabled people; that it had sought the applicant’s transfer to an appropriate institution, since its staff had not been adequately trained to provide him with the requisite care; that the applicant, notwithstanding his medical diagnosis, had not had any physical disability, but had instead been a very active child who had required constant care from the staff; that the applicant had received the daily care he required, but the results of the work with him had been limited, owing to his speech disability; that there had been incidents where the applicant had left the RIBBS; and that occasionally the applicant had been tied to his bed with a rope. The prosecutor held that the aim of that measure had not been to ill ‑ treat or degrade him, but to prevent him from running away from the RIBBS and putting himself in danger or harming himself. In those circumstances, the public prosecutor concluded that the act of tying the applicant to his bed could not be considered an act of unlawful use of force or threats intended to extract a confession or cause suffering. The prosecutor found that there had been a lack of intent on the part of the suspects to subject the applicant to inhuman or degrading treatment, a subjective element of the reported crimes. The applicant had been tied to his bed in order to prevent him from harming himself. Furthermore, L.R. could not be regarded as falling within any category of victims specified under Article   142 of the Criminal Code (see paragraph 34 below). A copy of the decision (containing an instruction on legal remedies) was served on B. Social Welfare Centre, the applicant’s guardian. The guardian did not appeal against the decision. 21.     On 30 December 2014, under the Public Prosecution Act (section   26(2)), the HCHR requested that the higher public prosecutor take over the prosecution. In that request, it reiterated that the applicant’s inappropriate placement and treatment in the RIBBS had amounted to inhuman and degrading treatment in violation of domestic and international law. It further added that the applicant’s guardian, although aware of his situation, had failed to take appropriate action. The findings of the first ‑ instance prosecutor’s office that the applicant had been tied to a bed for “safety reasons” were “unacceptable and absurd”. According to the HCHR, that amounted to unprofessional ( непрофесионално и нестручно ) exercise of office by the S. public prosecutor. 22.     In a letter of 27 January 2015 (received by the HCHR on 2   February 2015), the higher public prosecutor informed the HCHR that it had inspected the case file and had noted that the lower prosecutor had undertaken many investigative measures and had obtained a great deal of evidence regarding the complaint. The higher public prosecutor’s office referred to the Ombudsman’s report, according to which “[the applicant] had been tied up for safety reasons” (see paragraph 11 above). It endorsed the facts and reasoning provided by the first-instance public prosecutor. It also upheld the findings that the applicant had been tied to his bed for safety reasons and that there had been a lack of intent on the part of the suspects to debase the applicant. 23.     For the same reasons outlined above (see paragraph 21 above), the HCHR requested that the State Public Prosecutor take over the prosecution. By a letter of 1 June 2015 (received by the HCHR on 13 July 2015), the State Public Prosecutor confirmed the findings of the lower prosecutors’ offices. D.     Other relevant information 1.     Medical report about the applicant’s state of health following his discharge from the RIBBS 24.     On 10 July 2014 a psychiatric hospital in S. drew up a medical report about the applicant, the relevant parts of which state as follows: “... [the applicant] has a low level of functionality; [he has] communication difficulties ... [his] walking is stable, with synchronised movements; he keeps his balance properly ... Owing to [his] undeveloped communication skills, ... no two-way communication can be established ... I consider that [the applicant] suffers from autism ... accompanied by a mental disability and a speech disability. Owing to insufficient stimulation and early treatment, the child has a very low level of development and he is practically incapable of caring for himself.” 2.     Proceedings before the B. public prosecutor 25.     On 27 February 2015 the S. public prosecutor notified the B. public prosecutor about the HCHR’s criminal complaint, stating: “... it was established that the reported event [the applicant being tied to his bed] had been as a result of [the applicant’s] inappropriate placement in the RIBBS ... notwithstanding the fact that [the applicant] had no physical disabilities, in the medical report of 14 April 2008 he was classified as a person with multiple disabilities ... [including] the most severe form of physical disability ... He was classified in a similar way ... in 2014 ... Given the fact that medical reports about [the applicant] in 2008 and 2014, [prepared] by B. Hospital, ... did not reflect his real state of health ... we bring this information to your attention, as the competent prosecutor’s office, [so that you may] take measures regarding any crimes within your jurisdiction ...” 26.     Soon afterwards the B. public prosecutor’s office requested and obtained a copy of the medical material concerning the applicant from B.   Hospital. It also obtained relevant material from the applicant’s guardian and the competent inspectorate, which had found no shortcomings in B.   Hospital’s work. No information was submitted as to the outcome of the proceedings before the B. public prosecutor. 3.     Disciplinary proceedings 27.     By a decision of 22 August 2014, the director of the RIBBS found no grounds to reprimand (the measure proposed to her by the disciplinary commission of the institute) V.N., P.R.V., S.I. and E.J. – employees in the RIBBS who had allegedly failed to comply with the rules on keeping medical records ( неизготвување на потребната стручна документација ). There is nothing to suggest that the HCHR was informed about the institution and completion of those proceedings. 4.     Other actions taken by the HCHR regarding the applicant 28.     In the second half of 2014 the HCHR brought the allegedly incorrect medical diagnosis of the applicant and his subsequent neglect to the attention of the Ministry of Labour and Social Policy, the Ministry of Health, the competent inspectorate, B. Hospital and the Ombudsman. It also enquired as to whether any measures had been taken against the staff at the RIBBS and B. Hospital. The inspectorate replied that B. Hospital had not identified any shortcomings. The HCHR also reported the applicant’s case in its annual reports of 2014 and 2015. II.     RELEVANT DOMESTIC LAW A.     Criminal Proceedings Act of 2010 29.     Section 57 of the Criminal Proceedings Act sets out the rights of victims in criminal proceedings including, inter alia , the right to a representative ( полномошник ). 30.     Section 59(1) entitles a statutory custodian ( законски застапник ) to submit private criminal charges on behalf of a minor or a person divested of his or her legal capacity. 31.     Under section 66(1) of the Act, if the victim is a minor or a person divested of legal capacity, his or her statutory custodian takes the actions which are at the disposition of the victim. The private prosecutor and the victim, as well as their statutory custodians, can be assisted in the proceedings by a representative (section 67). 32.     Under section 273(3), every person can report a crime subject to State prosecution. 33.     The victim is served with a copy of a decision by which the public prosecutor rejects his or her criminal complaint (with an instruction on legal remedies). The person who reported a crime is only informed about the reasons for rejection (section 288). B.     Criminal Code 34.     Article 142 of the Code punishes acts of torture and other cruel, inhuman or degrading treatment. It provides that a person who, in the performance of his or her official duties, uses force, threat or other means with the aim to extort a confession or other statement from the accused, witness, expert or other person, or inflicts serious bodily or causes mental suffering in order to punish him or her for a criminal offence which that or another person has committed or is accused of, is to be punished by a term of imprisonment of three to eight years. 35.     Article 143 of the Criminal Code provides that a person who, in the performance of his or her official duties, mistreats, intimidates, insults or generally treats another in such a manner that his or her human dignity or personality is humiliated is to be punished by a term of imprisonment of one to five years. III.     RELEVANT INTERNATIONAL MATERIAL A.     The United Nations 1.     Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17   December 1991) 36.     The relevant provisions of the United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care read as follows : Principle 1 Fundamental freedoms and basic rights “... 2.     All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.” Principle 9 Treatment “1.     Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others. ... 3.     Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused. ...” Principle 11 Consent to treatment “... 11.     Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient’s medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient. ...” Principle 12 Notice of rights “1.     A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with the present Principles and under domestic law, and the information shall include an explanation of those rights and how to exercise them. 2.     If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient’s interests and willing to do so. 3.     A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility. ” 2.     Convention on the Rights of Persons with Disabilities, A/RES/61/106, 24 January 2007 37.     The relevant part of the United Nations Convention on the Rights of Persons with Disabilities provides: Article 15 Freedom from torture or cruel, inhuman or degrading treatment or punishment “1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation. 2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” 3.     Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/22/53, of 1   February 2013, 38.     In his report on the issues of abusive practices in health-care settings, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, made the following submission: 2. Absolute ban on restraints and seclusion “63. The mandate has previously declared that there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint may constitute torture and ill-treatment (A/63/175, paras. 55-56). The Special Rapporteur has addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment (A/66/268, paras. 67-68, 78). Moreover, any restraint on people with mental disabilities for even a short period of time may constitute torture and ill ‑ treatment. It is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions. The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures. ” 3. Domestic legislation allowing forced interventions “64. The mandate continues to receive reports of the systematic use of forced interventions worldwide. Both this mandate and United Nations treaty bodies have established that involuntary treatment and other psychiatric interventions in health ‑ care facilities are forms of torture and ill-treatment. Forced interventions, often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged ‘best interest’ of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment (A/63/175, paras. 38, 40, 41). Concern for the autonomy and dignity of persons with disabilities leads the Special Rapporteur to urge revision of domestic legislation allowing for forced interventions. ... ” 5. Persons with disabilities “80. Persons with disabilities are particularly affected by forced medical interventions, and continue to be exposed to non-consensual medical practices (A/63/175, para. 40). ... ” V. Conclusions and recommendations B. Recommendations “ 85. The Special Rapporteur calls upon all States to: .. (c) Conduct prompt, impartial and thorough investigations into all allegations of torture and ill-treatment in health-care settings; where the evidence warrants it, prosecute and take action against perpetrators; and provide victims with effective remedy and redress, including measures of reparation, satisfaction and guarantees of non-repetition as well as restitution, compensation and rehabilitation; ... ” 4. Persons with psychosocial disabilities “89. The Special Rapporteur calls upon all States to: (a) Review the anti-torture framework in relation to persons with disabilities in line with the Convention on the Rights of Persons with Disabilities as authoritative guidance regarding their rights in the context of health-care; (b) Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation; ...” B.     Council of Europe 1.     Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine of 4   April 1997 (CETS 164, Oviedo Convention) 39.     The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, in its relevant parts provides: Article 6 – Protection of persons not able to consent ”1.     Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. ... 3.     Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. 4.     The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. 5.     The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.” Article 7 – Protection of persons who have a mental disorder ”Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.” 2.     Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders of 22 September 2004 40.     The relevant parts of this Recommendation read as follows: Chapter V – Specific situations Article 27 – Seclusion and restraint ”1.     Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed. 2.     Such measures should only be used under medical supervision, and should be appropriately documented. 3.     In addition: i. the person subject to seclusion or restraint should be regularly monitored; ii. the reasons for, and duration of, such measures should be recorded in the person’s medical records and in a register.” 3.     Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 17 October 2014, CPT/Inf (2016) 8, Strasbourg, 17 March 2016 41.     The relevant parts of the above Report read as follows: Social care establishments ”... representatives of the social work centres still did not visit regularly the persons under their care nor act effectively in their interests. Steps need to be taken to address these matters ...” THE LAW I.     ALLEGED VIOLATIONS OF THE CONVENTION 42.     The applicant complained that he had been wrongly diagnosed as early as 2008, which had led to his being placed in an inappropriate institution (the RIBBS), where he had not received adequate care and treatment, and that that had culminated in his being tied to his bed. The inadequate care and treatment had led to his neglect and the violation of his rights under Article 3 of the Convention. Furthermore, the investigation into the allegations that the applicant had been subjected to inhuman and degrading treatment had been ineffective. Lastly, with respect to his complaints under Article 3, the applicant had no effective remedy as required under Article 13. Articles 3 and 13 of the Convention read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     Admissibility 1.     Compatibility ratione personae (a)     The parties’ submissions (i)     The Government 43.     The Government contended that the HCHR did not have locus standi to lodge the present application on behalf of the applicant. In that connection, they argued that it had had no contact with him before the Ombudsman had published the 2003 report, and had not engaged subsequently in improving his situation. Accordingly, it had not had sufficient direct contact with the applicant, nor did it have sufficient personal interest to file the present application. Furthermore, the applicant’s parents were alive; he also had other relatives who could have acted on his behalf before the national authorities, besides his legal guardian and the Ombudsman. There was nothing to suggest that the HCHR had attempted to contact any of them and obtain authority to represent the applicant before the national authorities and the Court. Furthermore, the HCHR had not been either a party or the applicant’s representative in any of the proceedings before the national authorities. That was also true as regards the proceedings before the prosecuting authorities, where no procedural rights, including the right to appeal, had been conferred on the HCHR. The case was therefore inadmissible as incompatible ratione personae with the provisions of Article 34 of the Convention. (ii)     The applicant 44.     The applicant maintained that he had been abandoned at birth and that there was no evidence that his parents or any other relative had ever visited him in an institution where he had been in foster care. His guardian could not be expected to bring the case on his behalf, since the director of B. Social Welfare Centre, as the person in charge, had been charged by the HCHR and had failed to appeal against the decision of the first-instance public prosecutor. The work of social welfare centres was a systemic problem, which the CPT had confirmed in its 2016 report about the respondent State (paragraph 36 above). The Ombudsman, although entitled to do so, had failed to initiate proceedings before the public prosecutor. 45.     The applicant stated that the HCHR had the requisite capacity to represent him before the Court, given the actions which it had taken on his behalf before the national authorities, which proved that it had been regarded as his de facto representative. Furthermore, it was a watchdog civil society organisation with extensive experience in providing social protection to people at risk (including those at risk as regards their health). In this context, it provided free legal aid to vulnerable groups and monitored conditions in State-run institutions, including institutions for people with disabilities, in relation to which it published reports. The fact that it had not contacted the applicant before the publication of the Ombudsman’s report was irrelevant. Its subsequent (three) visits to the applicant and the steps which it had taken to inform the public about the situation of people with disabilities in State-run institutions (such a report had last been published in 2012) and the applicant’s case (paragraph 28 above) were factors weighing in favour of its capacity to represent him. (b)     The Court’s assessment 46.     The Court notes that the HCHR lodged the application on the applicant’s behalf without producing a power of attorney or written authority from the applicant himself, his legal guardian or any other competent person. In this regard, the Court reiterates that it is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim, within the meaning of Article 34, on whose behalf they purport to act in the proceedings before the Court (see Post v. the Netherlands , no 21727/08 (dec.), 20 January 2009). 47.     In the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, §§ 104-111, ECHR 2014), the Grand Chamber identified the following “exceptional circumstances” which can justify an association being recognised as having standing as a de facto representative of the direct victim of the alleged violations: the victim’s vulnerability; the nature of the allegations brought before the Court; whether the direct victim has next of kin or a legal guardian likely to lodge an application with the Court; whether there has been contact between the direct victim and the representative; whether the representative was involved in any relevant domestic proceedings and recognised as having standing in those proceedings. The Court considers that these elements are determinative as to whether the HCHR can be recognised as having locus standi to act as the applicant’s de facto representative in the present case. 48.     It is undisputed that the applicant was the direct victim, within the meaning of Article 34 of the Convention, of the circumstances complained of before the Court. Given his disabilities as established by the national authorities (see paragraphs 5, 11 and 20 above) and not contested by the Government, he is to be considered a highly vulnerable person who is manifestly incapable of expressing any wishes or views regarding his own needs and interests, let alone wishes and views on whether to pursue any remedies. Furthermore, the allegations brought before the Court raise serious issues under Article 3 of the Convention. 49.     It is common ground between the parties that the applicant was abandoned at birth and has been in the care of State-run institutions since he was three months old. There is nothing to suggest that the applicant’s parents, who also suffer from a mental disability, or any other relative, contacted or visited him or showed any interest in his situation during the entire time he was placed in public institutions. It does not appear that any next of kin sought contact with the applicant after the Ombudsman had informed the public about his situation (see Comité Helsinki Bulgare c.   Bulgarie , nos. 35653/12 and 66172/12, § 54, 28 June 2016). 50.     The Court notes that, unlike in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu (cited above, § 111), the applicant has a legal guardian (B. Social Welfare Centre) appointed by the State to take care of his interests. It would normally be for the guardian to provide the HCHR with the requisite authority to represent the applicant before the Court. However, the Court attaches particular importance to the fact that the applicant’s guardian was accused, both before the domestic authorities and before the Court, of having failed in its responsibility to protect the applicant’s interests. Accordingly, it cannot be expected that the person suspected of having been part of the applicant’s alleged overall neglect in violation of his rights under Article 3 of the Convention would make a complaint on those grounds before the Court. In this regard, the Court notes that B. Social Welfare Centre did not challenge the decision of the first-instance public prosecutor rejecting the HCHR’s criminal complaint notwithstanding the fact that it contained a clear instruction on legal remedies (see paragraphs 20 and 33 above). Furthermore, the Court has not been informed that the respondent State appointed another guardian for the applicant instead of B. Social Welfare Centre after the above allegations had been brought to the attention of the authorities. 51.     On the other hand, the Court takes note of the fact that only shortly after the applicant’s case had been revealed in public by the Ombudsman, the HCHR visited him at S. Rehabilitation Institute and contacted different competent authorities about his situation, with a view to elucidating the relevant circumstances and attributing responsibility. Similarly, it submitted the criminal complaint to the competent public prosecutor without delay and pursued the matter, taking it up to the State Public P