Application no. 9293/14
The European Court of Human Rights (Fourth Section), sitting on 3 September 2019 as a Committee composed of:
Paul Lemmens, President,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 23 January 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Ms J.J., is a Hungarian national, who was born in 1974 and lives in Budapest. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). She was represented before the Court by Mr A.K. Kádár, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant was admitted to a psychiatric hospital on 3 August 2013. At the hospital’s proposal, proceedings were put in place the next day, in order to evaluate if the legal requirements for ordering her mandatory institutional treatment were met.
5. On the basis of section 199 (5) of Act no. CLIV of 1997 on Health Care (“the Act”), the court ordered the applicant’s mandatory institutional treatment (kötelezőintézetigyógykezelés) on 6 August 2013, after hearing the applicant who was assisted by a guardian ad litem. The court was moreover satisfied that the applicant’s initial committal to the institution had been justified as a matter of urgency (sürgősségigyógykezelésbevétel) (section 199(1) of the Act).
6. The applicant appealed on 13 August. Her appeal was received by the second-instance court on 15 August 2013.
7. On 18 September 2013 the second-instance court partly found for the applicant. It shared the first-instance court’s position that the applicant’s initial admission to the psychiatric institution had been justified as a matter of urgency under section 199(1). However, it held that the statutory conditions for mandatory institutional treatment (section 199(5)) were not met in the applicant’s case, since there had been no unequivocal proof of her representing a danger.
8. The applicant did not file a petition for review with the Kúria; nor did she pursue a constitutional complaint.
9. In the meantime, on 24 August 2013 the applicant was released from the hospital.
B. Relevant domestic law
10. Article IV of the Fundamental Law provides as follows:
“(1) Everyone shall have the right to liberty and personal security.
(2) No one shall be deprived of his or her freedom, except on the grounds and in accordance with the procedures specified by an act of Parliament. ….
(4) Any person whose freedom has been wrongly or unlawfully restricted shall be entitled to appropriate compensation.”
11. The applicant complained under Article 5 § 1 of the Convention that her psychiatric detention was not justified.
12. The applicant complained that her involuntary treatment in a psychiatric institution amounted to a breach of Article 5 § 1 of Convention, which provides as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention … of persons of unsound mind, …”
13. The Government submitted that the applicant had not exhausted domestic remedies in that she had neither filed a petition for review with the Kúria nor pursued a constitutional complaint under section 27 of the Constitutional Court Act. Furthermore, they pointed out that the second‑instance court had partly found for the applicant and had acknowledged that the mandatory institutional treatment had not been lawful (see paragraph 7 above) – a finding that removed the applicant’s victim status. In the Government’s view, in the latter respect the applicant could not rely on the absence of redress, since she had failed to claim damages for the actual period of time spent in the hospital.
14. The applicant disagreed with these propositions, being of the view that these remedies would not have been effective in her case. She argued in particular that, to the extent that the second-instance had upheld her complaints, she retained her victim status, since material redress would have been very difficult to obtain: she would have had to prove a causal link between any damage sustained and a blatant and flagrant error of application of the law.
15. As regards the question of admission as a matter of urgency, that is to say, the aspect of the case where the second-instance court found against the applicant (see paragraph 7 above), the Court has already held that a petition for review with the Kúria under the Code of Civil Procedure is an effective remedy to be exhausted (see Index.hu Zrt v. Hungary (dec.), no. 57005/09, 2 February 2010). However, the applicant has not availed herself of this legal avenue.
16. Moreover, the Court also held that a constitutional complaint under section 27 of the Constitutional Court Act is an effective remedy normally to be exhausted for the purposes of Article 35 § 1 of the Convention in situations where the application concerns Convention rights equally protected by the Fundamental Law of Hungary (see Szalontay v. Hungary (dec.), no. 71327/13, 12 March 2019).
17. In the present case, the applicant’s complaint concerns an alleged breach of the right to liberty which is enshrined in Article 5 § 1 of the Convention and Article IV of the Fundamental Law (see paragraph 10 above). It follows that the constitutional complaint would have been an effective remedy to exhaust in the circumstances, which the applicant did not use.
18. It follows that this part of the application must be rejected for non‑exhaustion of domestic remedies, according to Article 35 §§ 1 and 4 of the Convention.
19. As regards the issue of mandatory institutional treatment between 6 August (see paragraph 5 above) and 24 August 2013 (see paragraph 9 above), the Court observes that the second-instance court found for the applicant and declared that the statutory conditions for imposing the measure were not met (see paragraph 7 above). It reiterates that it falls, firstly, to the national authorities to redress any violation of the Convention; in this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention; a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010).
20. In the present case, the Court is satisfied that the second-instance court, by holding that the legal requirements for the impugned mandatory treatment had not been in place, expressly acknowledged a breach of the applicant’s right to liberty. While it is true that no redress directly ensued, the Court notes that the applicant did not make any such claim before the domestic authorities. For the Court, however, the applicant’s mere doubts as to the prospects of success of a tort claim based on the finding of unlawfulness are not sufficient to defy the Government’s argument about the loss of victim status (see Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014).
21. It follows that the applicant can no longer claim to be a victim of a violation of her Convention rights in this regard and this part of the application must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 26 September 2019.
Andrea Tamietti Paul Lemmens
Deputy Registrar President