CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .s8578A85B { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt }     Communicated on 19 June 2015   SECOND SECTION Application no. 66490/09 Neringa MOCKUTĖ against Lithuania lodged on 14 December 2009 STATEMENT OF FACTS The applicant, Ms Neringa Mockutė, is a Lithuanian national, who was born in 1973 and lives in Vilnius. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s placement in the Vilnius Psychiatric Hospital From May to December 2002, the applicant’s father became seriously ill. The applicant had a car accident and her employer, a private company, was put into liquidation. The applicant states that she was under much stress. In February 2003 the applicant visited Ojas Meditation Centre, a Lithuanian branch of a religious movement called Osho, and became involved in that religious movement. At about 8 p.m. on 7 May 2003, the applicant’s sister, her cousin and three men unknown to the applicant entered her home in Vilnius. Against her will, the applicant was taken to the Vilnius Psychiatric Hospital ( Respublikinė Vilniaus psichiatrijos ligoninė ), where she was injected with drugs and restraint measures were applied. In particular, from 10.10   p.m. until 1.10   a.m. she was tied to the bed three times, each time for a period of 30-40 minutes. The following day, the hospital’s psychiatrist, D.Š., saw the applicant. The doctor told the applicant that she would be treated for a long time and refused to let her out of the psychiatric institution. From 8 to 13 May, the applicant was placed under the strictest regime. She was supervised by a nurse 24 hours a day in a ward with 8 other patients. The applicant could not leave the ward without a nurse. From 13 May to 5 June, the applicant was under the strict care regime. She could leave the hospital building to have a walk within the hospital’s grounds, but only accompanied by a nurse. On 5 June 2003 the applicant’s regime was changed to a milder one. She could thus walk within the hospital grounds on her own. The applicant was released from the Vilnius Psychiatric Hospital on 26   June 2003, having spent there 51 day. 2.     The television broadcast ‘Srovės’ On 17 June 2003, while the applicant was still being held in the psychiatric institution, a television programme called ‘Srovės’ was broadcast. The programme showed an interview with D.Š., the psychiatrist at the Vilnius Psychiatric Hospital who was treating the applicant. The applicant states that the psychiatrist, without her consent, disclosed information that her patient had studied in the United States of America, and other information about the applicant’s personal life and medical history, from which the applicant could be identified. The applicant’s mother and sister, as well as the applicant’s apartment, were shown in that programme. 3.     Civil proceedings against the Vilnius Psychiatric Hospital for non-pecuniary damages In May 2006 the applicant sued the Vilnius Psychiatric Hospital for non-pecuniary damages. She relied on the European Convention on Human Rights and claimed a violation of her following rights: 1)   unlawful deprivation of liberty; 2)   violation of her right to inviolability of the body; 3)   violation of the right to religion; 4)   violation of the right to private life; 5)   failure to provide proper medical care; and 6) breach of the right to information. The hospital responded that on 7 May 2003 the applicant had been hospitalised since she posed a danger to herself and others because of her confused state of mind. The applicant’s behaviour had been acutely psychotic ( ūmios psichozės elgesys ). The hospital also argued that at that time the Osho religious community was acting outside the law, because the religious movement and meditation centre had been legally registered in Lithuania only on 12 April 2005 (also see ‘Further developments’, below). Lastly, the applicant herself had told the doctors about her life. The hospital maintained that it had not provided any information about the applicant [to the journalists]. (a)     The proceedings before the first instance court On 25 June 2008 the Vilnius Regional Court granted most of the applicant’s claims. (i)     As to the lawfulness of the applicant’s treatment in the Vilnius Psychiatric Hospital The court found that the applicant was held at Vilnius Psychiatric Hospital in breach of the domestic law. In particular, according to Articles   27 and 28 of the Law on Mental Health Care, a person could be hospitalised by force, if there was a clear and present danger that he or she could harm himself or herself or others. Even then, after two days a court order to keep that person in hospital was necessary. In the applicant’s case, the hospital never asked for a court order. The requirement that a patient should normally be able to express his or her consent to be hospitalised and treated had also been underlined by the Committee for the Prevention of Torture. The Vilnius Regional Court observed that the applicant did not deny that, because of her emotional state, on 7 May 2003 she might have required medical assistance. However, as of 8 May she no longer needed medical support. This was confirmed by the applicant’s medical file, in which on 8   May at 8.15   a.m. doctor D.Š. had indicated that ‘the patient responds to a meaningful contact, thinks in a right way ( pacientė prieinama prasmingam kontaktui, orientuota teisingai )’. The same day, at 8.30 a.m., A.G., another psychiatrist at the Vilnius Psychiatric Hospital, had written that ‘currently the patient is sleepy because of medication... her mind is clear, she orientates in place and time well ... the patient’s mental level is stable/she is not agitated ( pacientė š.m. mieguista dėl vaistų poveikio, sąmonė aiški, orientacija vietoje ir laike tiksli... šiuo metu afektas lygus )’. That notwithstanding, and even though the applicant had not consented to continuing the treatment, the doctors had held her in the hospital for 50   more days. Because of the drugs’ effect on her, she could not leave the hospital. The court also pointed out that, vis-à-vis the hospital and its personnel, the patient was always the weaker party. The Vilnius Psychiatric Hospital’s argument that the applicant had agreed to stay there by acquiescence was therefore null and void. Expert reports and the treating psychiatrist D.Š. also could not confirm that the applicant had posed any danger to herself from 8   May to 26 June. (ii)     As to the applicant’s right to freedom of religion As to the applicant’s complaint about freedom of religion, the Vilnius Regional Court had regard to Article 9 of the Convention. It also relied on Article 7 § 1 (6) of the Law on Mental Health Care (see ‘Relevant domestic law’ part below). The court found valid the applicant’s complaints that the doctors had tried to persuade her against ( atkalbėti ) meditating, attempted to alter her views towards non-traditional meditation religion and treated her against meditating and attending Ojas Meditation Centre. Such a conclusion was based on the applicant’s medical file, which contained the following records of 26   May and 20 and 23 June 2003: ‘there is no critical attitude towards attending [Ojas Meditation Center]’, ‘during psycho-correction expressed categorical opinion about attending Ojas [Meditation] Centre, argues, that ‘it is her personal matter’’, ‘when during psycho-correction it was tried to form [the applicant’s] critical attitude ( suformuoti kritiką ) towards non-traditional religious beliefs, [the applicant] for a long time remained uncritical and categorical’. The first instance court underlined that the psychiatric hospital had not provided any proof that by practising non-traditional religion the applicant would place herself or others in danger. The Vilnius Regional Court thus concluded that by attempting to alter the applicant’s attitude to non-traditional religion and meditation at Ojas Meditation Centre the hospital had breached the applicant’s right to freedom of religion. Lastly, the court rejected as legally irrelevant the hospital’s assertion that, at the time when the applicant was hospitalised, the meditation centre was operating ‘unlawfully’. The Vilnius Regional Court observed that at that time the religious movement had been party to court proceedings so that it could be registered, and it had been registered on 12   April 2005. (iii)     As to the applicant’s right to privacy The court then turned to the applicant’s complaint about a breach of her right to privacy. Relying on 14 of the Law on Mental Health Care and Article 2 § 1 of the Law on Legal Protection of Personal Data (see the ‘Relevant domestic law’ part below), the court noted the existence of evidence that psychiatrist D.Š., without having obtained the applicant’s consent and without disclosing her name, had nevertheless revealed to ‘Srovės’’ journalists the fact that the applicant had been diagnosed with acute psychosis ( ūminė psichozė ), that she had been treated at the Vilnius Psychiatric Hospital, and that she had studied in the United States of America. On 17 June 2003 the interview with doctor D.Š. had been shown during the television broadcast ‘Srovės’. The court noted that at the relevant time there were not many persons in Lithuania who had studied in the United States of America. This feature, therefore, was not common to many persons. The court also considered that the other information about the applicant, which the doctor had revealed to the journalists, had allowed the applicant’s identity to be established, although the court did not specify what that other information was. (iv)     As to the applicant’s right to be informed about the medical treatment and/or to refuse to be treated The Vilnius Regional Court lastly found a violation of the applicant’s right to information, because the psychiatric hospital had failed to comprehensively inform her about her health status, the diagnosis of her disease and the treatments methods and prognosis. (v)     The Vilnius Regional court’s Conclusion The Vilnius Regional Court thus fully granted the applicant’s civil claim and awarded her 110,000 Lithuanian litai (LTL, approximately 31,850 euros (EUR)) in non-pecuniary damages. (b)     The proceedings on appeal The Vilnius Psychiatric Hospital appealed. It argued, inter alia , that the lower court had erred in likening meditation to religion. The hospital underlined that the applicant did not deny that psycho-correction methods had been used on her correctly. The fact that as of February 2003 the applicant had attended meditations of ‘unknown origins and manner’ ( neaiškios kilmės ir pobūdžio meditacijas ) and that those could have been the reason behind her illness, had not been denied. The hospital insisted that in February 2003 the Ojas Meditation Center had been operating outside the law. Accordingly, the ‘fictitious’ ( tariama ) religious freedom of the applicant had not been breached. Furthermore, according to the Vilnius Psychiatric Hospital, there was no proof that it was doctor D.Š. who had disclosed confidential information about the applicant’s acute psychosis and her treatment in that hospital. The doctor had merely given her opinion about an unidentified person. Moreover, at the court hearing that doctor had pointed out that she had only told her views when answering the questions which the journalists had asked her. Witnesses, one of whom appears to be the applicant’s mother, confirmed that the television programme had been initiated by the applicant’s relatives, who had provided information about the applicant. The court’s reference about studies in the United States as a basis to identify a person was not sufficiently weighty either. The applicant responded by arguing that the right to privacy comprised the right not to reveal confidential information, such as that about her health status, not only to the journalists, but also to her mother. The applicant further submitted that when she was held in the psychiatric hospital, doctor D.Š. had persistently asked about the meditation practised by the applicant and spoken about them with contempt. Doctor A.G. would obstinately persuade her to denounce her religion and not to meditate. On 20 March 2009 the Court of Appeal partly granted the hospital’s appeal. (i)     As to the lawfulness of the applicant’s treatment in the Vilnius Psychiatric Hospital The appellate court confirmed the lower court’s finding that on 7 May 2003 on the basis of her health status the applicant had been lawfully placed in the Vilnius Psychiatric Hospital. However, as of 8 May the applicant’s stay in that hospital had had no basis in domestic law. (ii)     As to the applicant’s right to freedom of religion The Court of Appeal disagreed with the lower court’s conclusion about the breach of the applicant’s right to freedom of religion. There was no evidence in the file that the applicant had been forbidden from performing religious rites whilst she was in hospital. The appellate court thus concluded that ‘the doctors’ efforts to form [the applicant’s] critical attitude towards her religious beliefs do not mean that [the applicant’s] religious freedom was breached’. (iii)     As to the applicant’s right to privacy The Court of Appeal did not agree with the lower court’s conclusion that doctor’s D.Š. interview, as shown during the television broadcast of 17 June 2003, disclosed data revealing the applicant’s identity. The appellate court referred to the applicant’s open letter, of unknown date, to ‘Srovės’’ journalists, in which the applicant had acknowledged that the television programme had been initiated by her family members, that the applicant had not shown been in that programme in person, and that she had been named therein by another name. The Court of Appeal also considered that the fact that subject of the programme had studied in the United States was not sufficient to link her to the applicant. Lastly, the appellate court dismissed the applicant’s argument that her privacy had been breached by revealing confidential information to her mother. Due to mental health problems the applicant had earlier been treated in psychiatric institutions in Kaunas and Šiauliai. The applicant’s mother was aware of those previous hospitalisations. Moreover, providing information about the applicant’s health to her close relatives could not be regarded as a breach of the applicant’s right to privacy. (iv)     As to the applicant’s right to be informed about the medical treatment and/or to refuse to be treated The Court of Appeal confirmed the lower court’s findings that the applicant had not been properly informed about her medical treatment. (v)     The Court of Appeal conclusion Having dismissed part of the applicant’s complaints, the Court of Appeal lowered the non-pecuniary damage award to LTL   20,000 (approximately EUR   5,800). (c)     The proceedings on points of law On 17 June 2009 the applicant submitted an appeal on points of law. One of her arguments was that the lower courts had failed to properly apply the Convention norms on freedom of religion and the right to privacy. By a decision of 19 June 2009 the Supreme Court refused to admit the appeal for examination, holding that the applicant’s arguments were not sufficiently comprehensive. 4.     Further developments In an unrelated set of proceedings in Lithuania, the Ojas Meditation Centre requested a court order obliging the Ministry of Justice to register it as a religious community. The action was granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that Ojas propagated any controversial practices amongst its members. Ojas was registered as a religious community on 12 April 2005 (see Gineitienė v.   Lithuania , no. 20739/05, § 24, 27 July 2010). The applicant states that she continues practising meditation at Ojas Meditation Center to this day. B.     Relevant domestic law and practice The Law on Mental Health Care ( Psichinės sveikatos priežiūros įstatymas ) provides that hospitalised patients have the right to perform religious rites. The right may be restricted on the psychiatrist’s decision only in the event of a real threat to the patient himself or to others. The restrictions must be recorded in the patient’s medical records (Article 7 §   1   (6)). Patients also have the right to confidentiality with regard to information concerning their health. The psychiatrist, other medical doctor, nurse and other staff members and the administration of a health care facility must guarantee the above-mentioned right of the patient in compliance with the laws of the Republic of Lithuania and according to the requirements of medical ethics. Information concerning the patient’s state of health shall be furnished to other persons in compliance with the procedure established by the laws of the Republic of Lithuania (Article 14). The Law on the Legal Protection of Personal Data ( Asmens duomenų teisinės apsaugos įstatymas ) at the relevant time stipulated that personal data is any information relating to a natural person (data subject) who is known or who can be identified directly or indirectly by reference to such data as a personal identification number or one or more factors specific to his physical, physiological, mental, economic, cultural or social identity (Article 2 § 1). The Law on the Rights of Patients and Compensation for Damage to their Health ( Pacientų teisių ir žalos sveikatai atlyginimo įstatymas ) provides that patients have the right to receive information about their state of health, diagnosis, results of medical tests, and methods of treatment and prognosis. The information should not be provided to the patient against his or her will. However, such will must be clearly expressed and the history of his or her illness should contain a mention of such wish of the patient. According to the practice of the Supreme Court, it is the doctor or the hospital on whom rests the burden of proving that a patient agreed to receive certain treatment, for example, when medication was injected (14   November 2001 ruling no.   3K-3-1140/2001; 31   March 2003 ruling no.   3K-3-438/2003). COMPLAINTS Under Article 8 of the Convention, the applicant complains about a breach of her right to privacy. The applicant asserts that from the information presented in the television broadcast ‘Srovės’ it was possible to identify her. The broadcast did not have the applicant’s prior permission. In addition, the journalists relied on the information provided by the psychiatrist who was treating the applicant, which was against the rule that medical data is confidential. The applicant is also dissatisfied that her diagnosis, as well as the fact of her hospitalisation, were revealed by the psychiatrists to her mother. Relying on Article 9 of the Convention, the applicant further claims that during her stay at the Vilnius Psychiatric Hospital she was prevented from practising her religion. She could neither leave the hospital to attend meditation sessions at the Ojas Meditation Center, nor practise on her own, because of the strict regime and lack of privacy in that psychiatric institution. Her situation was further compounded by the psychiatrists’ pressure on her be critical towards the Osho religious movement, if she wished to get out of the psychiatric hospital. She notes that the domestic courts acknowledged her placement in that hospital to have been unlawful.   QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicant’s right to respect for her private life under Article 8 of the Convention, given that some of the information in the television broadcast ‘Srovės’ was based on the interview given by the applicant’s psychiatrist (see Biriuk v. Lithuania , no. 23373/03, §   43, 25   November 2008)?   Was the fact about the applicant’s stay at the Vilnius Psychiatric Hospital from 7 May to 26 June 2003 disclosed by that hospital to the applicant’s mother? If so, what was the legal basis and what was the interest in revealing such information, in the light of Article 8 requirements?   2.     Taking into the Lithuanian courts’ finding that the applicant’s stay at the Vilnius Psychiatric Hospital did not meet the requirements of the domestic law, has there been a violation of the applicant’s rights under Article 9 of the Convention on account of a)   the restrictive environment in the Vilnius Psychiatric Hospital; b)   the psychiatrists allegedly persuading the applicant to be critical towards her religion? REQUEST FOR INFORMATION 1.     The parties are requested to submit the recording and a transcript of the television broadcast ‘Srovės’, shown on 17   June 2003.   2.     The parties are requested to submit a copy of the applicant’s open letter to ‘Srovės’’ journalists, which the Court of Appeal referred to in its decision of 20 March 2009.