CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 juin 2017

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9E10B953 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-after:avoid } .sAB0FFF87 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-after:avoid }   Communicated on 29 June 2017   FOURTH SECTION Application no. 691/15 D.R. against Lithuania lodged on 23 December 2014 STATEMENT OF FACTS The applicant is a Lithuanian national who was born in 1958 and lives in Tauragė region. The Court decided that the applicant’s identity should not be disclosed to the public (Rule   47   §   4). She is represented before the Court by Mr D. Domikas, a lawyer practising in Tauragė. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. Since 1999 the applicant has been diagnosed with several mental disorders, such as schizoaffective disorder, depression, mania, and panic disorder. She has been admitted to psychiatric hospitals multiple times, however, she retains full legal capacity. The applicant was often the target of verbal abuse by some inhabitants of her village, including teenager E. In order to defend herself, in 2013 the applicant bought a tear gas dispenser. On 16   November   2013, at around 7.30 p.m., E. kicked the door of the applicant’s apartment and threw a stone at her window. The applicant sprayed E. with tear gas. On the same day the Tauragė police opened a pre-trial investigation against the applicant for breach of public order under Article 284 § 1 of the Criminal Code. On 10 January 2014 the applicant was served with the official notice that she was a suspect and she was provided with State ‑ guaranteed legal aid. When interviewed, the applicant admitted to having sprayed tear gas at E. but she claimed to have done so in self ‑ defence. On an unspecified date the police received information from a hospital in Tauragė that the applicant was included in that hospital’s register of psychiatric patients ( įrašyta į Tauragės psichikos sveikatos centro psichiatrinę įskaitą ). According to the applicant, keeping such a register is contrary to Lithuanian law. On 3 April 2014 the Tauragė District Court authorised a psychiatric examination of the applicant. On 15 April 2014, at around 9 a.m., the police apprehended the applicant at her home and took her to a court psychiatric centre in Klaipėda. According to the applicant, the police did not explain to her the reasons why she was apprehended and did not draw up a record of provisional arrest. The applicant was examined by three court-appointed psychiatrists. They found the following: “The patient’s mental condition is dominated by characteristics of angry mania: joyful mood [which is] not appropriate to the situation, accelerated associations, excessive activity, at the same time expression of anger, irritation, short temper. When talking about the major events in her life, she overestimates herself, underlines her achievements in her former professional life, her significant role in educating children at school. She expresses anger at the lifestyle of asocial families in the neighbourhood and the wider area [and says that] she is ready to not put up with it and to fight against it. [She does not display] a critical view of her illness ( be esminės kritikos susirgimo atžvilgiu ). She speaks loudly about the criminal allegations against her, denies them [and] blames the victim, her parents and the surroundings.” The experts concluded that the applicant had a chronic mental disorder – schizoaffective disorder with a type of mania ( lėtinis psichikos sutrikimas – šizoafektinis sutrikimas, manijos tipas ) and that because of that disorder she had been incapable of understanding and controlling her actions at the time of the alleged criminal offence and that those circumstances persisted at the time of the examination. They recommended that the applicant should not be called before a court, nor subjected to any procedural actions and that she should be admitted to a psychiatric hospital. On 22 April 2014 a protocol of an administrative violation was drawn up against the applicant for having violently resisted the police officers who had apprehended her on 15   April 2014. However, on 2 June 2014 the Tauragė District Court, relying on the abovementioned psychiatric examination, discontinued the administrative proceedings on the grounds that the applicant had been of unsound mind ( nepakaltinamumo būsenoje ) at the time that offence was committed. On 3 June 2014 the prosecutor referred the case to the Tauragė District Court and asked the court to order compulsory medical treatment of the applicant ( taikyti priverčiamąsias medicinos priemones ). On 11 June 2014 the applicant sent a letter to the Tauragė District Court, stating that she was not aware whether there were any ongoing criminal proceedings against her and asking the court to inform her of any such proceedings and of her procedural status therein. She also asked the court to provide her with a copy of the court’s order authorising that she be taken for psychiatric examination against her will. The following day she received a response from the court informing her about the proceedings concerning compulsory medical treatment. The court also stated that the file of that case did not contain a court’s order to take her for a psychiatric examination. On 23 June 2014 the applicant sent a letter to the Tauragė District Court and asked to be given an opportunity to attend the court hearing in the criminal case against her. She did not receive a response from the court. On 30 June 2014 the Tauragė District Court held a hearing in which the applicant was absent but her lawyer was present. The court heard one of the psychiatrists who had examined the applicant and he reiterated the conclusions of that examination. The applicant’s lawyer asked the court to order a new psychiatric examination of the applicant, stating that she had been voluntarily undergoing psychiatric treatment and thus her mental condition had improved. The court denied the lawyer’s request. In its judgment of 1 July 2014 the Tauragė District Court held that, at the time that the criminal offence had been committed, the applicant had been of unsound mind ( nepakaltinama ) and incapable of understanding and controlling her actions and that those circumstances persisted at the time of issuing the court’s judgment. The court exempted the applicant from criminal liability and ordered compulsory psychiatric treatment by admitting her to a psychiatric hospital in Rokiškis. The applicant appealed against that judgment. She submitted that she had not been informed in advance about the possibility to subject her to compulsory treatment and that she had not been summoned to the hearing, despite having previously expressed her wish to attend. She also complained that the first-instance court had not adequately examined her mental condition because it had not examined her in person and had dismissed her lawyer’s request for an additional psychiatric examination, despite the fact that since June   2014 she had been voluntarily undergoing psychiatric treatment in a hospital in Klaipėda. The applicant also complained about the court’s decision to admit her to a hospital rather than to order outpatient treatment. She submitted that the court had not assessed whether she had posed a danger to society – the applicant submitted that she had committed the criminal offence (sprayed tear gas at E.) because of the pre-existing conflict between E. and herself and not because of her mental disorder, so the disorder did not make her a danger to others. The applicant also complained about the court’s decision to admit her to a hospital in Rokiškis (more than 200   km away from Tauragė) and not one which was closer to her home. Furthermore, the applicant complained about her arrest on 15   April   2014 – she submitted that she had not been informed that a psychiatric examination had been ordered, had not been provided with a court’s decision to that effect, a record of provisional arrest had not been drawn up, a lawyer had not been present during the examination, and she had not been informed about her right to request the removal of experts. Lastly, the applicant submitted that the experts’ conclusions had not indicated what kind of examination had been conducted on her and that their conclusions had not been adequately reasoned. On 26 September 2014 the Klaipėda Regional Court held a hearing in which the applicant was absent but her lawyer was present. The court dismissed the applicant’s appeal. It held that the first-instance court had correctly established all the essential circumstances of the case and had adequately reasoned its findings. The Klaipėda Regional Court also reiterated the conclusions of the psychiatric examination and observed that the applicant had been previously treated in psychiatric hospitals seventeen times, which indicated that the treatment had not led to any long-term improvement of her mental state. The court concluded: “All the aforementioned circumstances demonstrate that [the applicant] is dangerous to the society, her actions pose a threat to others, [and] she cannot ensure adequate medical treatment and care for herself because she lives alone, so outpatient treatment would not be sufficient. The appellate court considers that the arguments in [the applicant’s] appeal confirm that she cannot critically assess her disorder [and] does not understand the danger posed by her mental condition, nor the need for treatment ( apeliaciniame skunde nurodomi argumentai patvirtina, jog ji nėra kritiška savo ligos atžvilgiu, nesuvokia savo psichinės būklės pavojingumo ir poreikio gydytis ).” On 31 October 2014 the Supreme Court refused to examine an appeal on points of law submitted by the applicant on the grounds that it raised no important legal questions. At the time of submitting the present application (23 December 2014), the applicant was hospitalised at the Rokiškis psychiatric hospital. B.     Relevant domestic law 1.     Rights of persons with mental disorders Article 3 of the Law on Mental Healthcare provides that persons with mental disorders have all the political, economic, social and cultural rights, and cannot be discriminated against on the grounds of their mental health. 2.     Compulsory medical treatment Article 98 of the Criminal Code provides: Article 98. Compulsory medical treatment “1.     Persons who are recognised by a court as being fully or partly of unsound mind as well as persons who, after committing a criminal act or having received a penalty, develop a mental disorder rendering them incapable of understanding the nature of their actions or controlling them may be subject to a court order for the following compulsory medical treatment measures to be applied: 1)     out-patient observation under the conditions of primary mental health care; 2)     in-patient treatment under general observation at a specialised mental health care establishment; 3)     in-patient treatment under increased observation at a specialised mental health care establishment; 4)     in-patient treatment under strict observation at a specialised mental health care establishment. 2.     A court shall order out-patient observation where it is not necessary to subject the person in question to observation and in-patient treatment due to the dangerousness of the committed act and his mental state, or where the person may continue out-patient treatment after his mental state improves following in-patient treatment. 3.     A court shall order in-patient treatment under general observation where a person needs to be under observation and undergo treatment at a specialised in-patient treatment establishment due to a mental disorder. 4.     A court shall order in-patient treatment under increased observation at a specialist establishment where a person has committed a dangerous act and has a mental disorder warranting such a measure. 5.     A court shall order in-patient treatment under strict observation at a specialist establishment where a person has made an attempt on a person’s life or health and is particularly dangerous to those around him due to a mental disorder. 6.     A court shall not set any period of time for compulsory medical treatment. It shall be applied until the person is cured or his mental state improves and he no longer poses a threat to others. At least once every six months, a court must decide, on the basis of a report by a health-care establishment, on the extension of compulsory medical treatment, change of type thereof or discontinuation thereof. 7.     Where it is not necessary to subject a person to compulsory medical treatment, or where a court orders that such treatment be discontinued, the person may be transferred by the court into the custody or guardianship of his relatives or other persons and may concurrently be subject to medical observation.” 3.     Psychiatric examination during criminal proceedings Article 141 of the Code of Criminal Procedure provides: Article 141. Committal of a suspect to a medical institution “1.     Where during the investigation or hearing of a criminal case there is a need for a medical or psychiatric expert examination of a suspect, he or she shall be committed by a court decision to the examining institution until a medical report is submitted to a prosecutor or the court. The time spent at the institution shall be included in the detention term. 2.     If a psychiatric expert establishes that the suspect, because of his or her mental disorder, may be dangerous to the public, the court may order extension of his or her stay at the examining institution or the suspect may be transferred to another institution until the court decides upon the issue of compulsory medical treatment. 3.     A suspect shall be committed to an examining institution and his or her period of stay at the institution shall be determined and extended following the same procedure for ordering, extending or appealing against detention. 4.     During the pre-trial investigation the detained suspect shall be committed to an examining institution by the decision of a prosecutor. 5.     An accused may also be committed to an examining institution.” Article 396 § 3 of the Code of Criminal Procedure provides that, where regular criminal proceedings are transformed into proceedings for compulsory treatment, the presence of a defence counsel is obligatory from the moment of issuing an order to conduct a psychiatric examination of the suspect or accused. 4.     Court proceedings in cases concerning compulsory treatment Article 392 § 3 of the Code of Criminal Procedure provides that proceedings concerning compulsory treatment are conducted in accordance with the general rules set out in that Code, unless it explicitly provides otherwise. Article 246 § 1 of the Code of Criminal Procedure, which sets out a general rule in criminal proceedings, provides that the presence of the accused is obligatory during the examination of a criminal case before the first-instance court. Article 400 § 2 of the Code of Criminal Procedure provides that in proceedings concerning compulsory treatment the court holding a hearing must question the victims and witnesses, examine other evidence that the accused person has committed a criminal offence, hear the expert’s conclusion as to whether that person is of unsound mind, and examine other important circumstances relevant for the decision whether to order compulsory treatment. COMPLAINTS The applicant complains under Article 5 § 1 of the Convention that on 15   April 2014 she was taken against her will for a psychiatric examination without being informed of the reasons for her apprehension, and that a record of provisional arrest was not drawn up. The applicant also complains under Articles 5 § 1, 6 § 1 and 14 of the Convention that she was unlawfully subjected to compulsory treatment at a psychiatric hospital, following unfair court proceedings. She complains that the domestic courts did not adequately examine her mental condition because she was not summoned to the hearing before the first-instance court and that court did not examine her in person. She argues that the decision to admit her to a psychiatric hospital, thereby depriving her of her liberty, was not adequately reasoned, especially as at that time she was undergoing treatment voluntarily. The applicant submits that by hospitalising her for a minor criminal offence the domestic courts discriminated against her on the grounds of her mental health. QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of her complaint that she was unlawfully deprived of liberty on 15 April 2014?   2.     Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention on 15 April 2014? In particular, was that deprivation of liberty ordered “in accordance with a procedure prescribed by law” (see, mutatis mutandis , Venskutė v. Lithuania , no. 10645/08, §   80, 11   December 2012, and the cases cited therein)?   3.     Has the applicant been deprived of her liberty in breach of Article   5   §   1 of the Convention as a result of the domestic courts’ decision to admit her to a psychiatric hospital? In particular, was that deprivation of liberty ordered “in accordance with a procedure prescribed by law” (see Liuiza v. Lithuania , no. 13472/06, §§ 54-57, 31 July 2012, and, mutatis mutandis , A.N. v.   Lithuania , no. 17280/08, §§   95-97, 31   May   2016, and the cases cited therein)?