CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 juin 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s1DE04B9 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 10 July 2023   FIFTH SECTION Application no. 38239/22 M.B. against Spain lodged on 28 July 2022 communicated on 21 June 2023 SUBJECT MATTER OF THE CASE The application concerns the deprivation of liberty of the applicant, a woman with mental health problems. On 12   March 2018 the Salamanca Investigating Court no. 1 issued a decision pursuant to Articles 502 and 503 of the Spanish Code of Criminal Procedure to place the applicant in pre-trial detention in connection with the charge of having caused a fire involving threat to the life or physical integrity of persons (Article 351 of the Spanish Criminal Code). The applicant unsuccessfully appealed against the decision. On 24   February   2020 the Salamanca Audiencia Provincial found the   applicant responsible of the facts as charged, but acquitted her, considering that due to the state of her mental health she could not comprehend the criminal nature of her deeds. The Audiencia Provincial imposed on her a security measure of treatment in a closed centre for a period between five and fifteen years, which could be replaced by treatment in an open centre based on the progress of the treatment. The applicant appealed against this judgment and on 21   May 2020 the Audiencia Provincial extended the   applicant’s pre-trial detention under Article   504 of the Spanish Code of Criminal Procedure for a maximum of two additional years, during the appeal proceedings. On 15   October 2020 the Castile and Leon High Court dismissed the   applicant’s appeal and upheld the judgment of 24   February 2020. The cassation appeal lodged by the applicant was declared inadmissible by the Supreme Court on 13   May 2021. Accordingly, on 28   June 2021 the Audiencia Provincial declared final its judgment of 24 February 2020 and ordered its execution. In particular, it ordered the applicant to be transferred to a penitentiary centre adequate to cater to her condition. She was admitted to the penal psychiatric hospital of Alicante ( Hospital Psiquiátrico Penitenciario de Alicante) on 16   July 2021. The applicant lodged an amparo appeal alleging a violation of her right to liberty, of her right to legal protection and of the principle of legality (Articles   17, 24 and 25 of the Spanish Constitution). On 24   May 2022 the Spanish Constitutional Court declared the amparo appeal inadmissible. On 14   June 2022 the Audiencia Provincial , in view of the positive evolution of the applicant’s treatment, ordered the replacement of the security measure imposed on the applicant by her placement in a centre for persons with mental health problems ( Centro Específico de Enfermos Mentales de la Comunidad Valenciana ), which could be revoked in case of negative evolution of the applicant’s situation. The case materials before the Court show that by January 2023 the   applicant had not yet been transferred to a specialised centre. The applicant complains under Articles 5 §   1 and 7 of the Convention that the decision to subject her to a security measure lacked reasoning and was arbitrary as regards the duration of its application. She also complains under the same article of the unlawfulness of the decision to extend the term of her pre-trial detention despite her acquittal in the first instance. The   applicant further complains about the length of the pre-trial detention under Article   5   §   3 and about the lack of judicial review of the lawfulness of her detention under Article   5   §   4.     QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of her liberty in breach of Article   5 §   1 of the   Convention (see Wło ch v. Poland , no.   27785/95, ECHR 2000-XI; Sta nev v.   Bulgaria [GC], no. 36760/06, ECHR 2012; Gei sterfer v.   the   Netherlands , no.   15911/08, 9   December 2014; W.D . v.   Belgium , no.   73548/13, 6   September 2016; Iln seher v.   Germany [GC], nos.   10211/12 and 27505/14, 4   December 2018; Str azimiri v. Albania , no. 34602/16, 21   January 2020; Venken and Others v.   Belgium , nos. 46130/14 and 4 others, 6   April 2021)?   In replying to this question, the parties are requested to refer to the specific subparagraph(s) of Article 5 §   1 capable of justifying the   applicant’s deprivation of liberty (a) before the delivery of the first-instance judgment, (b) after its delivery and before the delivery of the appeal judgment, (c) after the delivery of the appeal judgment.   2.     Was the imposition of a security measure on the applicant in compliance with the requirements of Article 5 §   1 (e)? In particular, has it been reliably shown that the applicant was of unsound mind, and that her mental disorder was of a kind or degree warranting compulsory confinement (see Win terwerp v. the Netherlands , 24   October 1979, Series A no.   33; Stanev, cited above ; Ilnseher , cited above)?   3.     Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article   5 §   3 of the Convention (see Sco tt v.   Spain , 18   December 1996, Reports of Judgments and Decisions 1996-VI)? Having regard to the Court’s case law (see, for example, Buzadji v.   the   Republic of Moldova [GC], no. 23755/07, 5   July 2016), did the domestic courts provide “relevant and sufficient” reasons capable of justifying the applicant’s continued detention falling under Article 5 §   1 (c)?   4.     Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her detention, as required by Article   5 §   4 of the Convention (see X v . Finland , no. 34806/04, ECHR 2012; M.H . v.   the   United   Kingdom , no. 11577/06, 22 October 2013; Khl aifia and Others v.   Italy [GC], no. 16483/12, 15 December 2016; Venken and Others , cited above?   5. Did the security measure imposed on the applicant constitute a penalty within the meaning of Article 7 of the Convention (see M. v.   Germany , no.   19359/04, ECHR 2009, and Berland v.   France , no.   42875/10, 3   September 2015)? Was the measure and its duration provided for by law within the meaning of the Convention (see Del Río Prada v.   Spain [GC], no.   42750/09, ECHR 2013)?   The   Government are requested to submit copies of decisions of the domestic courts in the applicant’s case which have not been included in the materials submitted to the Court, if any, as well as the applicant’s statements of appeal against such decisions, if any. In particular, they are requested to submit a copy of the statement of appeal lodged by the applicant against the judgment of the Salamanca Audiencia Provincial of 24   February 2020.   The   Government are requested to submit the medical reports on the mental health situation of the applicant drawn up since March 2018 and the assessments made by the different penitentiary centres in which the   applicant was detained on the basis of those reports.   The   Government are further requested to submit documentation certifying the exact dates and places in which the applicant was deprived of her liberty and the mental health services available in those centres.   The   applicant is requested to inform the Court of any progress in the examination of the claim she submitted before the United Nations Working Group on Arbitrary Detentions.