CASE OF D.R. v. LITHUANIA (European Court of Human Rights)

FOURTH SECTION
CASE OF D.R. v. LITHUANIA
(Application no. 691/15)

JUDGMENT
STRASBOURG
26 June 2018

FINAL
26/09/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of D.R. v. Lithuania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Paulo Pinto de Albuquerque,
Egidijus Kūris,
Iulia Motoc,
Carlo Ranzoni,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 29 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 691/15) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms D.R. (“the applicant”), on 23 December 2014. The Court decided that the applicant’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of Court).

2.  The applicant was represented by Mr D. Domikas, a lawyer practising in Tauragė. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

3.  The applicant alleged that the deprivation of her liberty for the purpose of conducting a psychiatric assessment and her involuntary psychiatric hospitalisation had breached Article 5 § 1 of the Convention.

4.  On 29 June 2017 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1958 and lives in Tauragė region.

6.  Since 1999 she has been diagnosed with several mental disorders, such as schizo-affective disorder, depression, mania, and panic disorder. She has been admitted to psychiatric hospitals multiple times. However, during the events described below, she retained full legal capacity (see paragraph 37 below).

7.  FromFebruary to September 2014 the applicant was given administrative penalties for insulting another person in a public place (minor hooliganism under Article 174 of the Code of Administrative Offences), for threatening a teenager with an electroshock deviceand for scaring a minor (infringement of children’s rights under Article 1813 of the Code of Administrative Offences).

A.  Proceedings concerning the applicant’s compulsory treatment

1.  Pre-trial investigation

8.  In 2013 the applicant bought a tear-gas dispenser. According to her, she had done so in order to defend herself against some inhabitants of her village who often insulted her because of her mental illness. On 16 November 2013, at around 7.30 p.m., the applicant sprayed tear gas at a fifteen-year-old called E. It appears that the tear gas caused E. physical pain but she did not suffer any injuries.

9.  The Tauragė police opened a pre-trial investigation against the applicant for breach of public order under Article 284 § 1 of the Criminal Code. Between November 2013 and January 2014 the police interviewed E. and several other teenagers who had been with her on the evening of 16 November 2013. They all stated that on that evening they had been “hanging out” near one of the residential buildings in the village when E. had decided to go toanother friend’s house. When she had started walking, the applicant had suddenly appeared from around the corner, quickly approached E. and sprayed her in the eyes with tear gas. E. herself and the other interviewed teenagers stated that although E. had had some verbal conflicts with the applicant in the past, on that evening she had not done anything to provoke the applicant.

10.  On 18 December 2013 the police asked a court psychiatric centre in Klaipėda whether, in the light of the applicant’s history of mental illness, it was necessary for her to undergo a psychiatric assessment in order to determine whether she could be held criminally responsible for the offence. A psychiatric expert, having examined the applicant’s medical file, concluded that such an assessment was necessary.

11.  On 10 January 2014 the applicant was served with an official notice that she was suspected of having committed the offence provided under Article 284 § 1 of the Criminal Code.She was given State‑guaranteed legal aid. She was interviewed on that same day and admitted to having sprayed tear gas at E. However, she claimed to have done so in self‑defence – she stated that on the evening of 16 November 2013 E. had kicked the door of her apartment and had thrown a stone at her window.

2.  Seizureby the police and psychiatric assessment

12.  On 28 March 2014 the Tauragė district prosecutor informed the applicant and her lawyer that, in line with Article 209 of the Code of Criminal Procedure (see paragraph 42 below), it was necessary for the applicant to undergo a psychiatric assessment. The prosecutor appended a list of questions to be submitted to the psychiatric expert and informed the applicant and her lawyer that they had the right to submit additional questions and material for the assessment, as well as to ask for the appointment of a particular expert. The applicant and her lawyer did not respond.

13.  On 3 April 2014 the Tauragė District Court ordered a psychiatric assessment of the applicant. A copy of that order has not been provided to the Court. The applicant later submitted to the domestic courts that she had not been notified of it (see paragraph 22below).

14.  It transpires from the parties’ submissions that on the morning of 15 April 2014 the applicant was present at the Tauragė police station for unspecified reasons, when two police officers handcuffed her, took her to a police car and drove her to the court psychiatric centre in Klaipėda, approximately 110 kilometres from Tauragė.

15.  A report drawn up on that same day by one of the officers who had seized the applicant read as follows:

“I hereby inform that on 15 April 2014 during the general morning meeting of the Prevention Sub-division, an oral instruction was received from [the chief] to execute the order of the Tauragė District Court, which ordered that [the applicant] be brought (atvesdinti) to the Klaipėda court psychiatric centre where she was to undergo a psychiatric assessment, in connection with an ongoing pre‑trial investigation. [The chief] announced that [the applicant] was waiting outside the Operative Management Division.

At around 8.40 a.m., together with [Officer D.P.], we ordered [the applicant to] go with the police officers into a police car, so that she could be taken to the Klaipėda court psychiatric centre to undergo a psychiatric assessment. However, [the applicant] mockingly responded that police officers did not have the right to take her anywhere, and threatened to have everyone who touched her fired. It was repeated several times [to the applicant] that coercion and special measures could be used against her for refusing to comply with lawful orders of police officers. As [the applicant] was not paying attention to these warnings, I took her hand, but [she] tried to bite my left palm; she did not succeed, so I did not need medical help. [The applicant] began to resist by jostling, stiffening her hands, and trying to get away. By doing so [she] resisted and disobeyed lawful orders. As [the applicant] continued disobeying officers’ lawful orders, with the help of [three other officers] [she] was handcuffed and taken to a [police] car.”

One of the other officers who had participated in the applicant’s seizure submitted a report with essentially the same wording.

16.  It is not clear when the applicant was released from the court psychiatric centre and how she returned to her home. The Government submitted that the psychiatric assessment had been completed on the same day and the applicant had not been detained any longer (see paragraph 64 below).

17.  According to the applicant, the police officers did not explain to her why she was being seized and did not draw up a record of provisional arrest (see paragraph 61 below).

18.  On 15 April 2014 the applicant was examined by two court‑appointed psychiatrists. The report of the assessment, drawn up on that same day, stated the following:

“The patient was brought to the assessment by police officers. At the beginning of the assessment she was hostile, outraged by the behaviour of the police, she spoke in a raised voice and refused to provide her anamnestic data. Having calmed down, she provided information about the main events of her life but her narration was characterised by strong emotional reactions(afektas)[which were] inappropriate to the situation, elevated mood and overestimation of herself. She had no complaints about her health, she thought that she was healthy and did not need any help.

The patient’s mental state during the assessment. [She had] a complete grasp of the time, the place and herself (orientuota pilnai laike, vietoje ir savyje). [She was wearing] bright make-up and clothes. At the beginning of the assessment [she was] outraged and loudly expressed dissatisfaction that police officers had brought her to the assessment by force, without her consent. She understood the purpose of the assessment. She stated that she did not have any illnesses and did not require treatment. She actively expressed discontent with the law-enforcement authorities and the inhabitants of her area. The patient’s mental condition is characterisedby angry mania: joyful moods [which are] not appropriate to the situation, accelerated [mental] associations, excessive activity, at the same time expressions 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.”

19.  The report concluded that the applicant had a chronic mentaldisorder ‑ schizo-affective disorder with a type of mania (lėtinis psichikos sutrikimas ‑ šizoafektinis sutrikimas, manijos tipas), 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 assessment. The psychiatrists recommended that the applicant not be called before a court, nor subjected to any procedural measures, and that she be admitted toRokiškisPsychiatric Hospital for compulsoryinpatient treatment.

20.  On 22 April 2014 an administrative-violation report was drawn up against the applicant for having violently resisted police officers on 15 April 2014 (see paragraph 14 above). The Tauragė District Court held an oral hearing on 2 June 2014 in which the applicant was present. Relying on the abovementioned psychiatric assessment (see paragraphs 18 and 19above), the court discontinued the administrative proceedings on the grounds that the applicant could not be held liable for the offence.

3.  Court proceedings

21.  On 3 June 2014 the prosecutor referred the case to the Tauragė District Court and asked the court to order compulsory medical treatment for the applicant (taikyti priverčiamąsias medicinos priemones).

22.  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 in them. She also stated that she had not been notified of any court order to take her for a psychiatric assessment against her will (see paragraph 13 above) and asked to be provided with a copy of such an order. The following day the applicant received a response from the court informing her of the proceedings concerning compulsory medical treatment (see paragraph 21 above). The court also stated that the file of that case did not contain any order to take her for a psychiatric assessment against her will.

23.  On 17 June 2014 the applicant sent another letter to the Tauragė District Court. In it she asked to be given an opportunity to attend the court’s hearing in the case concerning compulsory medical treatment which would be held on 30 June 2014. She did not receive any response from the court.

24.  On 26 June 2014 the applicant was voluntarily admitted to a psychiatric hospital in Klaipėda.

25.  On 30 June 2014 the Tauragė District Court held a hearing in the case against the applicant concerning compulsory medical treatment. The applicant was absent from the hearing but her lawyer was present.

26.  The court heard one of the psychiatrists who had examined the applicant (see paragraphs 18 and 19 above). He gave the following responses to the questions submitted to him by the judge and the applicant’s lawyer (the questions were not included in the minutes of the hearing):

“I stand by my responses given in the assessment report.”

“As of this moment, I cannot say if procedural steps can be conducted with [the applicant]. As I understand from [the documents provided by the court], she is currently undergoing treatment … I understand that she underwent treatment already in May … at a psychiatric hospital. The treatment was not effective because [later] she was hospitalised again. I think that it is necessary to order compulsory medical treatment.”

“Right now I cannot say precisely if inpatient treatment at Rokiškis Psychiatric Hospital is necessary because she is currently being treated at [Klaipėda hospital]. [It appears] that that treatment is not sufficiently effective. I recommend inpatient treatment.”

The psychiatrist also stated that the treatment provided to the applicantat the Klaipėdahospital constituted “psychiatric supervision” (psichikos priežiūra) which was different from compulsory treatment; the applicant had undergone outpatient treatment before and it had not been effective. Hefurther considered that compulsory treatment was necessary because the applicant lived alone and refused to take medication, and there was nobody to take care of her ifher mental health deteriorated.

27.  The applicant’s lawyer argued before the court that since the psychiatric assessment the applicant’s mental health had improved considerably because she was undergoing treatment (see paragraph 24 above). He submitted that it would not be appropriate to order compulsory treatment without examining the effects of that treatmentand that it was therefore necessary to conduct a fresh psychiatric assessment.

28.  On 1 July 2014 the Tauragė District Court adopted a one-and-a-half pagedecisionordering the applicant’sinpatient treatment under general supervision at Rokiškis Psychiatric Hospital (see paragraph 46 below). The court held that the applicant’s guilt inrespect of the criminal offence had been proved by witness testimonies and the applicant’s own statements (see paragraphs 9 and 11 above). It then referred to the findings of the psychiatric assessment that the applicant had a chronic mental disorder which renderedher incapable of understanding and controlling her actions, unable to participate in the pre-trial investigation and the hearing, andfor which she required hospitalisation(see paragraphs 18 and 19 above). The court also cited the statements of the psychiatric expert given during the hearing, who also recommended compulsory inpatienttreatment for the applicant (see paragraph 26 above). It concluded that at the time of the offence, as well as at the time of the decision, the applicant could not be held criminally responsible (buvo ir šiuo metu yra nepakaltinama). The court exempted the applicant from criminal responsibility and ordered her hospitalisation at the psychiatric hospital in Rokiškis.

29.  The applicant lodged an appeal against that decision. She submitted that she had been informed of the possibility to subject her to compulsory treatment only on 12 June 2014 (see paragraph 22 above) and complained that she had not been summoned to the hearing, despite having expressed a wish to attend (see paragraph 23 above). She complained that the first‑instance court had not adequately assessed her mental condition because it had not examined her in person, had not heard evidencefrom the doctor treating her and had not ordereda fresh psychiatric assessment, despite the fact that since June 2014 she had been voluntarily undergoing psychiatric treatment.The applicant pointed out that the psychiatrist interviewed by the court had acknowledged that he had been unable to comment on her mental condition at the time of the hearing (see paragraph 26 above). The applicant further complained about the court’s decision to hospitalise her rather than order outpatient treatment. She submitted that the court had not assessed whether she had posed a danger to society – the applicant submitted that the offence which she had committed had not been serious and that she had committed it because of the pre‑existing conflict between E. and herself and not because of her mental disorder, so the disorder had not made her a danger to others. The applicant also complained about the court’s decision to commit her to a hospital in Rokiškis (more than 200 kilometres from Tauragė)and not one which was closer to her home.

30.  In the appeal the applicant also raised complaints about being taken for a psychiatric assessment without her consent on 15 April 2014.She submitted that she had not been informed that a psychiatric assessment had been ordered and had not been provided with a court order to that effect, that a record of provisional arrest had not been drawn up, a lawyer had not been present during the assessment, and she had not been informed about her right to request the removal of experts. She also submitted that the experts’ conclusions had not indicated what kind of assessment had been performed and that they had not been adequately reasoned.

31.  On 26 September 2014 the Klaipėda Regional Court held a hearing in which the applicant was absent but her lawyer was present.

32.  On that same day the Klaipėda Regional Court adopted a decision which was slightly over two pages long and 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 court considered that the danger posed by the applicant to society had been proved by the conclusions of the psychiatric assessment (see paragraphs 18 and 19 above) and the psychiatrist heard by the first-instance court (see paragraph 26 above). It also observed that the applicant had been previously treated in psychiatric hospitals seventeen times, which demonstrated that the treatment had not led to any long-term improvement of her mental health. The court concluded:

“All the aforementioned circumstances demonstrate that [the applicant] is a danger to society, her actions present 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 presented 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).”

The court did not address the arguments presented in the applicant’s appeal (see paragraphs 29 and 30 above) any further.

33.  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.

4.  The applicant’s hospitalisation

34.  On 13 November 2014 the applicant was taken by the police to the psychiatric hospital in Rokiškis for compulsory treatment. On 22 May 2015 the Rokiškis District Court ruled, on the basis of the information provided by the hospital, that her mental health had not sufficiently improved, and extended the hospitalisation; the applicant did not appeal against that decision.On 6 November 2015 that same court found that the applicant’s mental health had sufficiently improved, ended her hospitalisation and ordered compulsory outpatient treatment. On 25 April 2016 the Tauragė District Court, relying on the recommendation of the doctor in charge of the applicant’s treatment, ended her compulsory outpatient treatment.

B.  Subsequent proceedings concerning the applicant

35.  On 27 September 2016 the Klaipėda Psychiatric Hospital asked a court to order the applicant’s hospitalisation. It submitted that the applicant had been taken to the hospital by the police, at the referral of a psychiatrist in Tauragė, because her mental health had deteriorated. On that same day the Šilutė District Court ordered the applicant’s hospitalisation for thirty days.

36.  On 28 November 2016 the Tauragė District Court found the applicant guilty of terrorising others and breaching public order, but considered that she could not be held criminally responsible and thus ordered her psychiatric hospitalisation. However, on 13 April 2017 the Klaipėda Regional Court quashed that decision. It found that those offences had not been committed, and discontinued the proceedings against the applicant.

37.  In May 2017 the social-care authorities of the Tauragė municipality applied to a court to restrict the applicant’s legal capacityin certain areas, relying on her mental disorder and her inability to take proper care of herself. The applicant objected to that request. On 10 August 2017 the Tauragė District Court, in a hearing in which the applicant and her lawyer were present, declared the applicant legally incapacitated in certain areas, and partly restricted her legal capacity in certain other areas.

According to the information submitted to the Court, the applicant appealed against that decision and at the time of the present judgment the appellate proceedings were pending.

C.  Other related proceedings

38.  On 17 November 2014 the Tauragė District Court found E. (see paragraph 8 above) guilty of hitting the applicant in the face and causing her minor bodily harm. The court found that on 3 April 2014 the applicant had tried to take E.’s mobile phone from her and had scratched her face, and E. had then hit her. The court considered that E.’s actions could not be characterised as self-defence but as a deliberate attempt to injure the applicant. E. was sentenced to four months’ deprivation of liberty. The applicant was awarded 300 Lithuanian litai (LTL – approximately 87 euros (EUR)) in respect of non-pecuniary damage.

II.  RELEVANT DOMESTIC LAW

A.  General provisions

39.  Article 20 of the Constitution provides, in its relevant part:

“Human liberty shall be inviolable.

No one may be arbitrarily apprehended or detained. No one may be deprived of his or her liberty otherwise than on the grounds and according to the procedures established by law.

…”

40.  Article 3 of the Law on Mental Health Care provides that individuals with mental disorders have all the political, economic, social and cultural rights, and cannot be discriminated against on the grounds of their mental health.

B.  Psychiatric assessment during criminal proceedings

41.  Article 208 of the Code of Criminal Procedure (hereinafter “the CCP”) provides that when a pre-trial-investigation judge or a court decides that the examination of the case requires scientific, technical, artistic or other specialist knowledge, it can order an expert examination.

42.  At the material time, Article 209 of the CCP read:

Article 209. Ordering an expert examination

“1.  When a prosecutor decides that it is necessary to order an expert examination, he or she must notify in writing the suspect, his or her lawyer and other individuals who have an interest in the results of the examination, setting a time-limit during which such individuals can propose questions to be submitted to the expert, request the appointment of a particular expert, and provide additional material for the examination. Afterwards the prosecutor submits the request for an expert examination to the pre-trial investigation judge. The requests submitted by the participants to the proceedings are appended to the prosecutor’s request, or it is noted that no such requests have been received.

2.  If a pre-trial-investigation judge decides that it is necessary to order an expert examination, he or she adopts a ruling ordering such an examination, and if the judge decides that an expert examination is not necessary, he or she adopts a ruling refusing to order an examination.

3.  A ruling ordering an expert examination must include the following: the circumstances of the criminal offence; the grounds for ordering the examination; the examining institution or expert; the questions to be submitted to the expert; [and] the material to be submitted to the expert.

4.  The ruling ordering an expert examination is forwarded to the examining institution or expert. Expert examinations are conducted in examining institutions in line with the regulations of those institutions.”

43.  Paragraph 4 of the Internal Regulations of the National Forensic Psychiatry Centre under the Ministry of Health, approved on 29 December 2010 by order no. 12 P-40 of the Head of that Centre, reads:

“4.  A [psychiatric] assessment of a person is carried out on the basis of an orderof a pre-trial-investigation judge or a court. Individuals who need to undergo an assessment must appear at an office of the [Centre] at the time allocated to them. Individuals who refuse to appearcan, in accordance with the law, be brought to the [Centre] by police officers, except when the consent of the person or his or her representative is obligatory (for example, in order to conduct an assessment of the defendant in civil proceedings, witnesses in civil or criminal proceedings, and so forth).”

C.  Coercive measures in criminal proceedings

44.  Article 141 of the CCP 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 a danger to the public, the court may order an 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.”

45.  The relevant domestic law concerning provisional arrest is summarised in §§ 30-33 of Žekonienė v. Lithuania (no. 19536/14, 12 July 2016).

D.  Compulsory medical treatment

46.  Article 98 of the Criminal Code provides:

Article 98. Compulsory medical treatment

“1.  Individuals who, as per court ruling,cannot be held criminally responsible in full or in part, as well as individuals who, after committing a criminal act or having received a penalty, develop a mental disorder rendering them incapable of understanding or controlling their actions may be subject to a court order for the following compulsory medical treatment to be applied:

1)  outpatient observation under the conditions of primary mental‑health‑care;

2)  inpatient treatment under general observation at a specialised mental‑health‑care establishment;

3)  inpatient treatment under increased observation at a specialised mental‑health‑care establishment;

4)  inpatient treatment under strict observation at a specialised mental‑health‑care establishment.

2.  A court shall order outpatient observation where it is not necessary to subject the person in question to observation and inpatient treatment owing to the dangerousness of the committed act and his or her mental state, or where the person may continue outpatient treatment after his or her mental state improves following inpatient treatment.

3.  A court shall order inpatient treatment under general observation where a person needs to be under observation and undergo treatment at a specialised inpatient treatment establishment due to a mental disorder.

4.  A court shall order inpatient 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 inpatient 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 or her owing 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 or her mental state improves and he or she 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 or her relatives or other individuals and may concurrently be subject to medical observation.”

47.  Article 393 § 1 of the CCPprovides that regular criminal proceedings can be transformed into proceedings for compulsory treatment if during the pre-trial investigation or the examination of the case by a court it is established that the person cannot be held criminally responsible in full or in part (nepakaltinamas ar ribotai pakaltinamas), or that after the commission of the criminal offence he or she developed a mental disorder due to which he or she cannot understand or control his or her actions.

48.  Article 395 of the CCP provides, in relevant parts:

“During the proceedings concerning an offence committed by a person who cannot be held criminally responsible in full or in part … the following circumstances need to be proved:

3)  whether the person who has committed the criminal offence has had mental illnesses in the past; the seriousness and nature of the mental disorder which that person had at the time when the offence was committed, at the time of the pre-trial investigation, [or] at the time of the examination of the case by a court…;

4)  [that person’s] actions before and after the commission of the offence;

…”

49.  Article 400 § 2 of the CCP provides that in proceedings concerning compulsory treatment the court holding a hearing must question 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 can be held criminally responsible, and examine other important circumstances relevant for the decision whether to order compulsory treatment.

50.  Article 399 § 2 of the CCP provides that in proceedings concerning compulsory treatment the judge examining the case has the right to request the presence of the person concerned if, according to the conclusion of a psychiatric expert, that is not precluded by his or her mental disorder (jei tam nekliudo ligos pobūdis).

III.  RELEVANT INTERNATIONAL MATERIALS

A.  United Nations

51.  Article 14 of the United Nations Convention on the Rights of Persons with Disabilities, which was ratified by Lithuania on 27 May 2010 and entered into force on 17 September 2010, reads:

Article 14. Liberty and security of person

“1.  States Parties shall ensure that persons with disabilities, on an equal basis with others:

(a)  Enjoy the right to liberty and security of person;

(b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

2.  States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”

B.  Council of Europe

52.  The relevant parts of the Council of Europe Parliamentary Assembly Recommendation 1235(1994) on psychiatry and human rights, adopted on 12 April 1994, read:

“7.  The Assembly therefore invites the Committee of Ministers to adopt a new recommendation based on the following rules:

7.1.  Admission procedure and conditions:

a.  compulsory admission must be resorted to in exceptional cases only and must comply with the following criteria:

– there is a serious danger to the patient or to other persons;

– an additional criterion could be that of the patient’s treatment: if the absence of placement could lead to a deterioration or prevent the patient from receiving appropriate treatment;

b.  in the event of compulsory admission, the decision regarding placement in a psychiatric institution must be taken by a judge and the placement period must be specified …”

53.  The relevant parts of the Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders, adopted on 22 September 2004, read:

Article 17. Criteria for involuntary placement

“1.  A person may be subject to involuntary placement only if all the following conditions are met:

i.  the person has a mental disorder;

ii.  the person’s condition represents a significant risk of serious harm to his or her health or to other persons;

iii.  the placement includes a therapeutic purpose;

iv.  no less restrictive means of providing appropriate care are available;

v.  the opinion of the person concerned has been taken into consideration.

2.  The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if:

i.  his or her behaviour is strongly suggestive of such a disorder;

ii.  his or her condition appears to represent such a risk;

iii.  there is no appropriate, less restrictive means of making this determination; and

iv.  the opinion of the person concerned has been taken into consideration.”

Article 20. Procedures for taking decisions on involuntary placement and/or involuntary treatment

Decision

“1.  The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should:

i.  take into account the opinion of the person concerned;

ii.  act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted.

3.  Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article 25.

…”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION ON ACCOUNT OF DEPRIVATION OF LIBERTY FOR THE PURPOSE OF CONDUCTING A PSYCHIATRIC ASSESSMENT

54.  The applicant complained that she had beenunlawfully deprived of her liberty on 15 April 2014 when the police took her to Klaipėda for a psychiatric assessment against her will. She invokedArticle 5 § 1 of the Convention, the relevant parts of which read:

“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:

(b)  the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;…”

A.  Admissibility

1.  The parties’ submissions

55.  The Government submitted that the applicant had failed to exhaust domestic remedies available to her under criminal and civil law. They firstly submitted that the applicant could havechallenged the prosecutor’s request for a psychiatric assessment (see paragraph 12 above) and could have complained to the prosecutor about the actions of the police officers who had seized her (see paragraph 14 above).

56.  The Government further argued that the applicant could have instituted civil proceedings against the State, claiming non-pecuniary damage for her allegedly unlawful seizure by the police. They submitted that the Court had acknowledged the effectiveness of that remedy in its judgments in Venskutė v. Lithuania (no. 10645/08, 11 December 2012) and Varnas v. Lithuania (no. 42615/06, 9 July 2013). The Government providedseveral examples of cases from 2005-2010 in which compensation had been awarded to individuals for unlawful or excessively long detention on remand, one case from 2015 in which compensation hadbeen awarded for unlawful and lengthyinvoluntary psychiatric hospitalisation, and one case from 2004 in which an individual hadbeen awarded compensation for being placed in a psychiatric hospital against his will despite not having been diagnosed with a mental illness.The Government submitted that domestic courts, when assessing the lawfulness of detention, relied on the principles established in the Court’s case-law under Article 5 § 1 of the Convention.

57.  The applicant submitted that she had complained of the unlawful deprivation of her liberty to the Klaipėda Regional Court (see paragraph 30 above) but that court had dismissed her complaint (see paragraph 32 above). She therefore argued that the requirement to also exhaust civil-law remedies was excessive.

2.  The Court’s assessment

58.  The Court observes that the applicant complained about the deprivation of her liberty in her appeal against the Tauragė District Court’s decision ordering compulsory treatment (see paragraph 30 above). Although the Klaipėda Regional Court, which examined the applicant’s appeal, did not address that complaint, nothing in the text of its decision indicates that it did so because of the applicant’s failure to raise that same complaint at an earlier stage of the proceedings (see paragraph 32 above), nor did the Government argue otherwise. The Court therefore considers that the applicant made proper use of the available domestic remedy under criminal law.

59.  In this connection, the Court reiterates that if more than one potentially effective remedy is available, the applicant is only required to have used one remedy of his or her choice (see Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 37, 17 January 2017). Having found that the applicant properly raised her complaint in the court proceedings concerning compulsory treatment, it concludes that she was not required to use any other remedies, which had essentially the same objective. It therefore dismisses the Government’s objection concerning exhaustion of domestic remedies.

60.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

61.  The applicant arguedthat on 15 April 2014 she had been unlawfullyseized by the police and deprived of her liberty in order to be taken to the court psychiatric centre in Klaipėda. She submitted that she had not been informed of the reasons for her seizureand that a record of provisional arrest had not been drawn up.

62.  The Government did not dispute that the applicant’s seizure by the police on 15 April 2014 had amounted to deprivation of liberty. They submitted that the applicant had been taken to the court psychiatric centre in Klaipėda on the basis of the Tauragė District Court’s order of 3 April 2014 (see paragraph 13 above). That order had been adopted in line with Articles 208 and 209 of the CCP (see paragraphs 41 and 42 above), whereas the legal provisions concerning provisional arrest, invoked by the applicant (see paragraph 61 above), were not relevant. They further argued that the applicant had been aware of the necessity to undergo a psychiatric assessment because she had been informed of the prosecutor’s request for such an assessment to takeplace (see paragraph 12 above). The Government submitted that “in all probability” on the morning of 15 April 2014 the Tauragė police officers, being aware of the court order concerning a psychiatric assessment, “decided to assist the applicant” and “benevolently proposed” to take her to Klaipėda(about 110 kilometres from Tauragė).The Governmentstated that the internal regulations of the National Forensic Psychiatry Centre provided for the possibility that a person who refused to appear for a psychiatric assessment on his or her own free will could be brought by the police (see paragraph 43 above). However, they acknowledged that domestic law did not establish a mechanism of coercion with regard to individuals who refused to undergo a psychiatricassessment ordered by a court, and stated that the deprivation of the applicant’s liberty “should not have taken place”.

63.  Nonetheless, the Government argued that that deprivation of liberty had been in line with Article 5 § 1 (b) of the Convention because its purpose had been to secure the fulfilment of the applicant’s obligation to undergo a psychiatric assessment ordered by a court.

64.  They lastlysubmitted that the applicant’s seizure had been recorded in police officers’ reports (see paragraph 15 above) and the report of the psychiatric assessment (see paragraphs 18 and 19 above),and that she had been released as soon as the assessment had been completed, so she had not been deprived of her liberty any longer than necessary to secure the fulfilment of her obligation (see paragraph 16 above).

2.  The Court’s assessment

(a)  General principles

65.  The Court reiterates that Article 5 of the Convention enshrines a fundamental right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. In proclaiming the “right to liberty”, paragraph 1 of Article 5 contemplates the physical liberty of the person; its aim is to ensure that no one should be deprived of that liberty in an arbitrary fashion (see Creangă v. Romania [GC], no. 29226/03, § 84, 23 February 2012).

66.  The Court further reiterates that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub‑paragraphs (a)‑(f) of Article 5 § 1 of the Convention, be “lawful”. Where the “lawfulness” of detention is in issue, including the question of whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, 29 January 2008). This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002‑IV; and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008). “Quality of law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness (see Jėčius v. Lithuania, no. 34578/97, § 56, ECHR 2000‑IX;Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009; and Kakabadze and Others v. Georgia, no. 1484/07, § 62, 2 October 2012).

(b)  Application of the above principles in the present case

67.  There was no dispute between the parties in the present case that on 15 April 2014 the applicant had been deprived of her liberty. In the Court’s view, the existence of the deprivation of liberty was also clearly demonstrated by the circumstances under which the applicant was taken to the court psychiatric centre in Klaipėda–she resisted the police officers,was handcuffed and taken there in a police car (see paragraphs14 and 15above; see, mutatis mutandis, Foka v. Turkey, no. 28940/95, § 78, 24 June 2008;Čamans and Timofejevav. Latvia, no. 42906/12, §§ 111‑12, 28 April 2016;and Leonid Petrov v. Russia, no. 52783/08, § 56, 11 October 2016).

68.  The documents in the Court’s possession do not indicate the exact period during which the applicant was deprived of her liberty for the purpose of conducting a psychiatric assessment. It transpires from the police officers’ reports that she was seized at the police station at around 8.40 a.m. (see paragraph 15 above).It also appears that she was released that same day, after the psychiatric assessment had been completed (see paragraph 18 above), although the exact time and circumstances of her release have not been provided to the Court (see paragraph 16 above). It will therefore proceed on the assumption that the applicant was deprived of her liberty from the morning until the evening of 15 April 2014 (see Creangă, cited above, § 90, and Fatma Akaltun Fıratv. Turkey, no. 34010/06, § 34, 10 September 2013).

69.  The Government argued that the deprivation of the applicant’s liberty had been in line with Article 5 § 1 (b) of the
Convention – specificallyin order to secure the fulfilment of her obligation to undergo a psychiatric assessment ordered by the Tauragė District Court (see paragraph 63 above). The Court has previously accepted that deprivation of liberty for the purpose of conducting a psychiatric assessment ordered by a court fell to be examined under that provision (see Trutko v. Russia, no. 40979/04, § 33, 6 December 2016). However, in the circumstances of the present case, the Court considers that it is firstly necessary to examine whether the deprivation of the applicant’s liberty was “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention (see the references in paragraph 66 above). It will therefore proceed with that analysis.

70.  The Government submitted that the legal basis for the deprivation of the applicant’s liberty had been the Tauragė District Court’s order of 3 April 2014, authorising a psychiatric assessment under Articles 208 and 209 of the CCP (see paragraphs13and 62above; compare and contrast Liuiza v. Lithuania, no. 13472/06, § 59, 31 July 2012, in which a psychiatric assessment was authorised under Article 141 of the CCP – see paragraph 44 above). A copy of that order has not been provided to the Court and it is therefore unable to examine its text. However, the information in the Court’s possession allows it to conclude that that order, while authorising a psychiatric assessment,did notauthorise the deprivation of the applicant’s liberty. Firstly, Articles 208 and 209 of the CCP do not contain any provisions allowing a court toauthorise deprivation of liberty for the purpose of conducting a psychiatric assessment (see paragraphs 41 and 42 above;compare and contrastX v. Finland, no. 34806/04, § 152, ECHR 2012 (extracts), andPetukhova v. Russia, no. 28796/07, § 52, 2 May 2013). Secondly, the Tauragė District Court in a letter sent to the applicant on 12 June 2014 informed her that the file of the case concerning compulsory treatment did not contain any order to take her for a psychiatric assessment against her will (see paragraph 22 above). Thirdly, the Government in their observations stated that no “mechanism of coercion with regard to individuals who refused to undergo a psychiatric assessment ordered by a court” was provided in domestic law (see paragraph 62 above).

71.  With regard to the latter point, the Court observes that the Government’s arguments were somewhat contradictory. On the one hand, they submitted that the domestic law did not provide for the possibility to deprive someone of their liberty for the purpose of conducting a psychiatric assessment ordered under Articles 208 and 209 of the CCP. On the other hand, they also referred to the internal regulations of the National Forensic Psychiatry Centre which stated thatindividuals who refused to appear for a psychiatric assessment could be brought by the police (see paragraph 62 above). The Court does not consider it necessary in the present case to examine whether such internal regulations could constitute an appropriate legal basis for deprivation of liberty (see also O.G. v. Latvia (no. 2), no. 69747/13, §§ 41-42, 30 June 2016).It suffices to point out that the Government provided an incomplete citation of those regulations, omitting the part which states that the bringing of a person for an assessment by the police must be “in accordance with the law” (see paragraph 43 above). In the light of the foregoing considerations, the Court concludes that the deprivation of the applicant’s liberty for the purpose of conducting a psychiatric assessment, which assessment had been ordered by a court under Articles 208 and 209 of the CCP, did not have a basis in domestic law.

72.  Accordingly, that deprivation of the applicant’s liberty was not “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention. There has therefore been a violation of that provision.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S INVOLUNTARY PSYCHIATRIC HOSPITALISATION

73.  The applicant complained that she had been unlawfully committed to a psychiatric hospital against her will, in particular because the domestic courts which had ordered her hospitalisation had not examined her in person. She relied on Article 5 § 1 of the Convention, the relevant parts of which read:

“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 …”

A.  Admissibility

1.  The parties’ submissions

74.  The Government submitted that the applicant had failed to exhaust domestic remedies because she had not instituted civil proceedings against the State, claiming non-pecuniary damages. They provided the same examples of domestic case-law as in their preliminary observation to the previous complaint (see paragraph 56 above).

75.  The applicant did not comment on this point.

2.  The Court’s assessment

76.  The Court reiterates that applicants are only obliged to exhaust domestic remedies which are available in theory and in practice at the relevant time – that is to say, remedies that are accessible, capable of providing redress in respect of their complaints and offering reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II).

77.  The Court also reiterates that where lawfulness of deprivation of liberty is concerned, an action for damages against the State is not a remedy which has to be used, because the right not to be deprived of one’s liberty “save in accordance with a procedure prescribed by law” and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights. Paragraph 1 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter (see L.M.v. Slovenia, no. 32863/05, § 84, 12 June 2014, and the cases cited therein). In the present case, a civil claim for damages, as a remedy of a purely compensatory nature, could not have led to the termination of the applicant’s involuntary hospitalisation. It was therefore not an effective remedy which she was obliged to exhaust under Article 35 § 1 of the Convention. The Government’s objection is thus dismissed.

78.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

79.  The applicant argued that she had been unlawfully committed to a psychiatric hospital against her will. She submitted that the domestic courts had not adequately examined her mental condition, in particular because she had not been summoned to the hearings and had not been examinedby courts in person (see paragraphs 25 and 31 above). She also argued that the decision to admit her to a psychiatric hospitalhad not been adequately reasoned, especially as at that time she had been undergoing treatment voluntarily (see paragraph 24 above). The applicant lastlysubmitted that by hospitalising her for a minor criminal offence the domestic courts had discriminated against her on the grounds of her mental health.

80.  The Government argued that the deprivation of the applicant’s liberty had been justified under Article 5 § 1 (e) of the Convention. They submitted that the decision to hospitalise her had been taken on the basis of a psychiatric assessment carried out by experts in accordance with domestic law. The Government stated that that assessment had been ordered upon a recommendation of a psychiatrist who had examined the applicant’s medical file (see paragraph 10 above), and the applicant and her lawyer had been given an opportunity to submit questions and additional material for the assessment (see paragraph 12 above). The psychiatric assessment, carried out by two experts, had shown that the applicant had had a chronic mental disorder – schizo‑affective disorder with a type of mania, as a result of which she had been incapable of understanding and controlling her actions (see paragraphs 18 and 19 above). The Government pointed out that theTauragė District Court at a hearing had interviewed one of the experts who had examined the applicant, and the expert had confirmed that the applicant had had to be hospitalised, as previous outpatient treatment had not been effective (see paragraph 26 above). They also submitted that the measure imposed on the applicant – inpatient treatment under general observation ‑had been among the more lenient compulsory treatment measures provided in domestic law (see paragraph 46 above).

81.  The Government further submitted that domestic law on court proceedings concerning compulsory treatment did not make the applicant’s participation at a hearing mandatory – the judge hearing the case could request such participation if it was not precluded by the applicant’s state of health (see paragraph 50 above). They stated that the psychiatrists who had examined the applicant had recommended not calling her toappear before a court, nor subjecting her to any other procedural measures (see paragraph 19 above). The Government submitted that they “would not speculate” on why the Tauragė District Court had not replied to the applicant’s letter of 17 June 2014, in which she had expressed a wish to attend the hearing (see paragraph 23 above); however, they pointed out that the aforementioned findings of the psychiatric assessment must have been known to that court by then. The Government underlined that in the proceedings before the first‑instance and appellate courts the applicant had been represented by a lawyer who had been representing her since she had become a suspect in the criminal investigation (see paragraphs 25 and 31 above). The Government also submitted that the case before the Tauragė District Court had been heard by the same judge who had previously heard an administrative case against the applicant and had seen her in person (see paragraph 20 above), and “most probably could have formed a personal opinion” about the applicant’s mental health.

82.  The Government lastly submitted that the need to continue the applicant’s compulsory treatment had been reviewed periodically and she had been released when her mental health had sufficiently improved (see paragraph 34 above).

2.  The Court’s assessment

(a)  Relevant general principles

83.  The Court reiterates that the term “persons of unsound mind” in sub‑paragraph (e) of Article 5 § 1 does not lend itself to precise definition, since its meaning continually evolves as research in psychiatry progresses (see Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33;Rakevich v. Russia, no. 58973/00, § 26, 28 October 2003; andAnatoliy Rudenko v. Ukraine, no. 50264/08, § 102, 17 April 2014). An individual cannot be deprived of his or her liberty on the basis of being of “unsound mind” unless the following three minimum conditions are fulfilled: firstly, he or she must reliably be shown to be of unsound mind, that is to say a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39; Shtukaturov v. Russia, no. 44009/05, § 114, ECHR 2008; and Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012).

84.  A mental disorder may be considered to be of a degree warranting compulsory confinement if it is found that the confinement of the person concerned is necessary as the person needs therapy, medication or other clinical treatment to cure or alleviate his or her condition, but also where the person needs control and supervision to prevent him or her, for example, causing harm to him or herself or other individuals (see Witold Litwa v. Poland, no. 26629/95, § 60, ECHR 2000‑III; Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003-IV; andBergmann v. Germany, no. 23279/14, § 97, 7January 2016).

85.  In deciding whether an individual should be detained as a person “of unsound mind”, the national authorities are to be recognised as having a certain discretion, in particular regarding the merits of clinical diagnoses, since it is in the first place for the national authorities to evaluate the evidence adduced before them in a particular case (seeBergmann, cited above, § 98, and the cases cited therein). It is not the Court’s task to reassess various medical opinions, but rather to ascertain for itself whether the domestic courts, when taking the contested decision, had at their disposal sufficient evidence to justify the detention (see Herz v. Germany, no. 44672/98, § 51, 12 June 2003; and Mifobova v. Russia, no. 5525/11, § 52, 5 February 2015).

86.  For the requirements of sub-paragraph (e) of Article 5 § 1, the relevant time at which a person must be reliably established to be of unsound mind is the date on which the measure depriving that person of his or her liberty as a result of that condition is adopted (seeYaikov v. Russia, no. 39317/05, § 63, 18June 2015; andPetschulies v. Germany, no. 6281/13, § 63, 2 June 2016).

87.  The Court has also consistently held that the notion of “lawfulness” in the context of Article 5 § 1 of the Convention may have a broader meaning than in the national legislation and that it presumes a “fair and proper procedure”, including the requirement “that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary” (see Winterwerp, cited above, § 45). In that context the domestic proceedings must themselves offer the applicant sufficient protection against a potentially arbitrary deprivation of liberty (see Shtukaturov, cited above, § 113).

88.  The Court lastly reiterates that individuals suffering from a mental illness constitute a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny, and only “very weighty reasons” can justify a restriction of their rights (seeAlajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010;Zagidulina v. Russia, no. 11737/06, § 53, 2May 2013; andAnatoliy Rudenko, cited above, § 104). The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (seeSaadi, cited above, § 70;O.G.v. Latvia, no. 66095/09, § 81, 23 September 2014; andLazariu v. Romania, no. 31973/03, § 125, 13 November 2014).

(b)  Application of the above principles in the present case

89.  The Court has no reason to doubt that the applicant was reliably shown to be of unsound mind within the meaning of Article 5 § 1 (e) of the Convention. She was examined by two psychiatric experts at a specialised institution, and they found that she had a chronic mental disorder ‑ schizo‑affective disorder with a type of mania (see paragraphs 18 and 19 above). The Court has no grounds to question that conclusion, which was also consistent with the applicant’s earlier medical history (see paragraph 6 above). That being said, it considers that in the present case it is not necessary to examine whether all the requirements of Article 5 § 1 (e) (see the references in paragraph 83 above) were complied with, because in any event the domestic authorities failed to ensure that the proceedings concerning the applicant’s involuntary hospitalisation were devoid of arbitrariness, as required under Article 5 § 1 of the Convention.

90.  In that regard, the Court firstly observes that the applicant was not examined in person by either the Tauragė District Court or the Klaipėda Regional Court (see paragraphs 25 and 31 above). Indeed,her presence at the hearing was not mandatory under Lithuanian law (see paragraph 50 above) and the psychiatrists who had assessed her mental condition recommended that she not be summoned (see paragraph 19 above). It is, however, the Court’s established case-law that in proceedings concerning compulsory confinement of individuals of unsound mind the individual concerned must be allowed to be heard either in person or, where necessary, through some form of representation (see Winterwerp, § 60; Shtukaturov, § 71; and Stanev, § 171, all cited above). The Court notes that in the present case the applicant’s lawyer was present at both hearings and submitted arguments and made applications on the applicant’s behalf, and that there is no indication that he did not properly represent her interests (compare and contrast M.S. v. Croatia (no. 2), no. 75450/12, § 156, 19 February 2015).

91.  Nonetheless, the Court underlines that the proceedings in question concerned the assessment of the applicant’s mental condition, and thus she was not only an interested party, but also the main object of the court’s examination. Her participation was therefore necessary not only to enable her to present her own case, but also to allow the judge to form a personal opinion about her mental capacity (see, mutatis mutandis, Shtukaturov, cited above, § 72; Mifobova,cited above, § 57; and A.N.v. Lithuania, no. 17280/08, § 96, 31 May 2016; see also the Recommendation of the Committee of Ministers in paragraph 53 above). It further notes that there is no indication that at the relevant time the applicant’s mental condition was of such a degree that her personal participation in the proceedings would have been meaningless (see D.D. v. Lithuania, no. 13469/06, § 122, 14 February 2012). The Court finds it particularly important to note that the applicant sent a letter to the Tauragė District Court, asking to be given an opportunity to attend the hearing in her case (see paragraph 23 above). However, she did not receive any response from that court. No reasons ‑ medical or otherwise – for disregarding the applicant’s wish to participate at the hearing were provided in the Tauragė District Court’s decision (see paragraph 28 above; see also Mifobova, cited above, § 62). The Government were unable to provide an explanation as to why the Tauragė District Court had not replied to the applicant’s letter (see paragraph 81 above).

92.  The Government nonetheless argued that the same judge who had examined the case concerning compulsory treatment had previously seen the applicant in person in other court proceedings and thus had formed a personal opinion about her mental condition (see paragraph 81 above). The Court finds this argument unconvincing. It firstly notes that the said other proceedings concerned the applicant’s administrative liability for refusal to obey police officers’ orders (see paragraph 20 above) and not the need to hospitalise her because of her mental condition. It is therefore not persuaded that the judge in question had been sufficiently familiar with the applicant’s mental condition for the purpose of ordering her compulsory treatment. The Court also cannot accept that it would have been appropriate for the judge to base her decision concerning the applicant’s hospitalisation on an opinion which she had formed in different proceedings. In any event, the Court underlines that the Tauragė District Court did not indicate in its decision that that was the reason why the applicant’s wish to attend the hearing had been ignored (see paragraph 28 above), and thus finds the Government’s argument purely speculative. In such circumstances, the Court considers that no valid reasons were provided by the domestic court to justify the applicant’s exclusion from the proceedings (see M. v. Ukraine, no. 2452/04, § 60, 19 April 2012, and Anatoliy Rudenko, cited above, § 114).

93.  The Court further observes that during the hearing before the Tauragė District Court the applicant’s lawyer informed that court that since June 2014 the applicant had been voluntarily undergoing psychiatric treatment and that it had therefore been necessary to assess her mental condition anew (see paragraph 27 above). Likewise, in her appeal to the Klaipėda Regional Court the applicant asked the court to order a fresh psychiatric assessment (see paragraph 29 above). The Court further notes that one of the experts who had conducted the psychiatric assessment of the applicant in April 2014 and who was examined by the Tauragė District Court could not definitively confirm that the applicant’s mental condition at the time of the proceedings still warranted ordering compulsory treatment (see paragraph 26 above). However, the domestic courts in their decisions did not address the issue of the applicant’s subsequent treatment at all and did not provide any reasons for dismissing the request for a fresh psychiatric assessment (see paragraphs 28 and 32 above). In such circumstances, the Court considers that the domestic courts in their decisions did not adequately demonstrate that at the time when the decision to hospitalise the applicant was adopted, her condition was such as to require compulsory treatment (see the references in paragraph 86 above; see also M. v. Ukraine, cited above, § 80).

94.  Moreover, the domestic courts in their decisions did not give any indication that they had considered any other, less severe measures, before committing the applicant to a psychiatric hospital (see the references in paragraph 88 above; see also the relevant international materials in paragraphs 52 and 53 above). In particular, neither the conclusions of the psychiatrists, nor the decisions of the courts directly addressed the question whether the applicant’s mental condition presented a danger to herself or others, even though the analysis, and not a mere statement, of the “particular dangerousness” and “the seriousness and nature of [her] mental disorder” was explicitly required under Lithuanian law as well (see paragraphs 46 and 48 above). The Court is aware of the fact that, in the domestic proceedings in question, the applicant admitted to having sprayed tear gas at a teenager, and that she has also been held liable for administrative offences (see paragraphs 7 and 11 above). However, the domestic courts did not make any reference to those – or indeed any other – circumstances when deciding to commit the applicant to a psychiatric hospital (see, mutatis mutandis, Gajcsi v. Hungary, no. 34503/03, § 21, 3 October 2006; Mihailovs v. Latvia, no. 35939/10, § 149, 22 January 2013; andX v. Russia, no. 3150/15, §§ 41-42, 20 February 2018).

95.  In this connection, the Court cannot fail to notice that the decisions of the Tauragė District Court and the Klaipėda Regional Court were each only a few pages long (see paragraphs 28 and 32 above). They essentially reiterated the conclusions of the psychiatric assessment, without providing any independent analysis of the necessity of the applicant’s hospitalisation.The Court finds it especially disconcerting that the domestic courts did not in substance address any of the applicant’s and her lawyer’s arguments. In particular, the Klaipėda Regional Court stated that “the arguments in [the applicant’s] appeal confirm[ed] that she [could not] critically assess her disorder [and did] not understand the danger posed by her mental condition, nor the need for treatment” (see paragraph 32 above). In the Court’s view, such circular reasoning – according to which a person’s reluctance to undergo psychiatric hospitalisation demonstrates his or her inability to appreciate his or her condition and thereby yields yet another reason for involuntary hospitalisation – is incompatible with the principle of effective protection of Convention rights (see Plesó v. Hungary, no. 41242/08, § 67, 2 October 2012).

96.  The Court has previously held that, with all respect to the professional expertise of the psychiatrists, the broad powers vested in health-care professionals are to be counterbalanced by procedures aimed at preventing indiscriminate involuntary hospitalisation (seeL.M. v. Latvia, no. 26000/02, § 51, 19 July 2011; andI.N.v. Ukraine, no. 28472/08, § 81, 23 June 2016). In the light of the materials in its possession, the Court is unable to conclude that sufficient safeguards against arbitrary psychiatric hospitalisation were provided in the applicant’s case.

97.  All of the foregoing considerations taken together enable the Court to conclude that the applicant’s involuntary psychiatric hospitalisation was ordered in proceedings which were arbitrary, and was thus not “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. There has therefore been a violation of that provision.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

98.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

99.  The applicant claimed 7,500 euros (EUR) in respect of non‑pecuniary damage.

100.  The Government submitted that that amount was excessive and unsubstantiated.

101.  The Court considers that the applicant must have suffered distress and frustration as a result of the violations of her rights under Article 5 § 1 of the Convention found in the present case. It therefore grants the applicant’s claim for non-pecuniary damage in full and awards her EUR 7,500 under this head.

B.  Costs and expenses

102.  The applicant did not submit any claim in respect of costs and expenses. The Court therefore makes no award under this head.

C.  Default interest

103.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declaresthe application admissible;

2.  Holdsthat there has been a violation of Article 5 § 1 of the Convention on account ofthe deprivation of the applicant’s liberty for the purpose of conducting a psychiatric assessment;

3.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s involuntary psychiatric hospitalisation;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 26 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli                                                                  Ganna Yudkivska
Registrar                                                                              President

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1 comment for “CASE OF D.R. v. LITHUANIA (European Court of Human Rights)

  1. Izabella
    July 18, 2019 at 1:20 pm

    Bravo to Mr. D. Domikas que vous avez aidé à défendre !!

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