CEDH · CASELAW;CLIN;ENG — 3 septembre 2013

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Turkey - 22398/05 Judgment 3.9.2013 [Section II] Article 5 Article 5-1 Deprivation of liberty Procedure prescribed by law Twenty-one day confinement of remand prisoner in psychiatric hospital for observation: violation   Facts – In December 2002 the applicant was placed in pre-trial detention for thirty-five days in the context of criminal proceedings against him for contempt of court. In the meantime, the Ministry of Justice requested the public prosecutor’s office to take the necessary steps with a view to examining the applicant’s mental health and, if necessary, making him subject to an adult protection measure. In July 2002 the public prosecutor’s office requested the District Court to make a guardianship order in respect of the applicant on grounds of his impaired mental capacity. On 2   January 2003 the applicant was taken from the prison where he was being detained to a psychiatric hospital, where he was placed under observation. He was brought before the medical board on 20   January and taken back to the prison on 23 January 2003. The medical board’s report dated 21   January 2003 found no disturbance of the applicant’s mental faculties or of his ability to exercise his civil rights. On 7   February 2003 the District Court, basing its findings on that report, refused the application for a guardianship order. Law – Article   5 §   1: The applicant had been placed in a psychiatric hospital and had stayed there for twenty-one days, during a period of pre-trial detention ordered in the context of several sets of criminal proceedings. The order placing him under observation which constituted the legal basis for his detention in the psychiatric hospital had been unconnected to his pre-trial detention and had not been aimed at altering the conditions of the deprivation of liberty already ordered in the context of a different set of proceedings. Furthermore, at the time the order was made the applicant had not yet been remanded in custody. The replacement of detention in prison by confinement in a psychiatric institution had significantly altered the nature of the applicant’s detention and his situation during the relevant period. Notwithstanding the fact that his placement in pre-trial detention had been lawful, the issue of the compatibility with domestic law and with the Convention of the applicant’s transfer to and confinement in the psychiatric hospital concerned not just his conditions of detention but also the lawfulness of the deprivation of his liberty for the purposes of Article   5 §   1. The statutory provisions on which the applicant’s placement under observation had been based related to the compulsory psychiatric admission, with a view to treatment, of mentally ill persons who presented a danger to society. However, the applicant did not fall into that category. It had not been established that he suffered from a mental disorder requiring treatment, still less that he presented a danger to society. His compulsory admission had been designed to establish whether or not he suffered from a disorder which rendered him incapable of protecting his own interests and which required his placement under guardianship. The legislative provisions in question could not therefore constitute a legal basis for the applicant’s compulsory admission. Furthermore, under a provision of civil law the courts could not rule in favour of a guardianship application without a medical report stating the need for such a measure. The provision in question did not indicate which authority had the power to decide on such deprivation of liberty or what procedure was applicable. In addition, it did not require a doctor to be consulted prior to any decision to detain a person with a view to a compulsory psychiatric examination. The provision therefore lacked the requisite clarity. Thus, even assuming that it could have served as the basis for the applicant’s compulsory admission, the provision in question fell short of the required level of protection against arbitrariness. In sum, the applicant’s placement under observation in a psychiatric hospital in January 2003 had lacked any legal basis for the purposes of the Convention. Conclusion : violation (unanimously). Article   10: The applicant had been found guilty of contempt of court. There had been interference with the exercise of his right to freedom of expression. The interference had been prescribed by law and had pursued the legitimate aim of “maintaining the authority of the judiciary”. The applicant’s remarks, which had been particularly caustic, virulent and offensive towards several members of the judiciary, had been recorded only in writing and had not been made public. Accordingly, their impact on public confidence in the administration of justice had been very limited. Moreover, the applicant was not a member of the legal profession, a fact which had undoubtedly had a bearing on the tone and terms he used and his lack of familiarity with the conventions used in court documents. In addition, the expert reports ordered in the context of the various sets of proceedings in question had established that the applicant was suffering at the time of the events with mental problems which made him incapable of discernment, a fact which explained the content and form of his remarks. The Court could accept that the authorities had considered it necessary to take criminal proceedings against the applicant on account of some of his remarks which had been a direct affront to the dignity of members of the judiciary. While it was true that the applicant had not received a sentence, he had been remanded in custody and detained in a psychiatric hospital from the beginning of the proceedings, for a period of thirty-five days. Moreover, the public prosecutor’s office which had sought his detention had participated in the proceedings concerning his placement under guardianship and had therefore been aware, when requesting his detention, that his mental state was at the very least open to question and might have been the reason for his actions. Consequently, however legitimate the concern to preserve the dignity of members of the judiciary and a calm environment for judicial activity, in the circumstances of the case the measures taken against the applicant, including his placement in detention and his compulsory psychiatric admission, had amounted to interference that was disproportionate to the aims pursued. That interference could not therefore be regarded as “necessary in a democratic society”. Conclusion : violation (unanimously). Article   41: No claim made in respect of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes