FIRST SECTION
\nCASE OF HOD\u017dI\u0106 v. CROATIA
\n(Application no. 28932\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n4 April 2019<\/p>\n
This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Hod\u017ei\u0107 v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/p>\n Linos-Alexandre Sicilianos, President, Having deliberated in private on 5 March 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 28932\/14) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a national of Bosnia and Herzegovina and Croatia, Mr \u0160emso Hod\u017ei\u0107 (\u201cthe applicant\u201d), on 8 April 2014.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Ademovi\u0107, a lawyer practising in Sarajevo. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms\u0160. Sta\u017enik.<\/p>\n 3.\u00a0\u00a0The applicant alleged a lack of fairness in the procedure and decisions for his internment in a psychiatric hospital. He relied on Article 5 \u00a7\u00a7 1 (e) and 4 and Article 6 \u00a7 1 of the Convention.<\/p>\n 4.\u00a0\u00a0On 30 June 2014 the application was communicated to the Government.The President of the Section to which the case was allocated decided, under Rule 54 \u00a7 2 (c) of the Rules of Court, to invite the parties to submit further observations in respect of the issues raised under Article 6 \u00a7\u00a01 of the Convention.<\/p>\n 5.\u00a0\u00a0The Government of Bosnia and Herzegovina did not make use of their right to intervene in the proceedings (Article 36\u00a0\u00a7\u00a01 of the Convention).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1952.<\/p>\n A.\u00a0\u00a0Proceedings before the criminal courts<\/strong><\/p>\n 7.\u00a0\u00a0On 30 May 2012 the applicant was arrested and detained in connection with a suspicion of making two threats by telephone against certain M.S. and \u0160.O.<\/p>\n 8.\u00a0\u00a0In the course of the investigation, the Zagreb Municipal State Attorney\u2019s Office (Op\u0107insko dr\u017eavni odvjetni\u0161tvo u Zagrebu) commissioned a psychiatric expert report on the applicant\u2019s mental health at the time of the offence, including, if appropriate, the existence of a need for his psychiatric internment.<\/p>\n 9.\u00a0\u00a0On 28 June 2012 the psychiatric expert, E.S., submitted her report, which stated that the applicant suffered from paranoid schizophrenia. She found that he was incapable of understanding and controlling his actions and that he posed a danger to others, which warranted his psychiatric internment. The expert noted that she had not inspected any medical documents concerning the applicant\u2019s previous psychiatric treatment, but she had interviewed him, examined the criminal case file and a medical report from the prison administration.<\/p>\n 10.\u00a0\u00a0On 10 July 2012 the Zagreb Municipal State Attorney\u2019s Office indicted the applicant in the Zagreb Municipal Criminal Court (Op\u0107inski kazneni sud u Zagrebu) on charges of making serious threats. It asked that the measure of involuntary psychiatric internment be ordered in respect of the applicant, as provided under the Protection of Individuals with Mental Disorders Act.<\/p>\n 11.\u00a0\u00a0On 27 July 2012 a three-judge panel of the Zagreb Municipal Criminal Court found that the indictment was flawed as it had been based on an incomplete expert report, which had not taken into account all the medical documentation concerning the applicant\u2019s previous psychiatric treatment. The indictment was thus returned to the Zagreb Municipal State Attorney\u2019s Office with an instruction to commission an additional expert report.<\/p>\n 12.\u00a0\u00a0On 24 August 2012 E.S. produced a supplement to her report, which she prepared with a psychologist. She explained that she had obtained the applicant\u2019s medical record from his general practitioner, V.P., but had not obtained anything from his psychiatrist, V.G. (a university professor), who had in the meantime retired and could not be reached. The expert also stated that,in her view,the applicant\u2019s diagnosis had already been clear after the first examination and that she did not need further documents to provide a diagnosis.She thus reiterated her previous opinion on the basis of the new records she had obtained.<\/p>\n 13.\u00a0\u00a0On 28 August 2012 the Zagreb Municipal State Attorney\u2019s Office submitted a new indictment against the applicant in the Zagreb Municipal Criminal Court. This indictment was confirmed and accepted on 3 October 2012 and the case was sent to trial.<\/p>\n 14.\u00a0\u00a0Meanwhile, on 30 August 2012, the applicant was released from pre\u2011trial detention because the maximum period had expired (see paragraph\u00a031 below).<\/p>\n 15.\u00a0\u00a0At a hearing before the Zagreb Municipal Criminal Court on 4\u00a0December 2012, the applicant asked that his psychiatrist V.G., his general practitioner V.P. and several other witnesses, including his neighbours, be heard. He said they could all give evidence as to his mental state. He also argued that he had had previous conflicts with the victims and asked that the police be requested to submit relevant information about those incidents.<\/p>\n 16.\u00a0\u00a0At the same hearing, several prosecution witnesses and the expert witness E.S. were questioned. E.S. reiterated the findings and opinion she had previously given. She also argued that the evidence concerning the applicant\u2019s mental state at the moment of the commission of the offence could not be given by his general practitioner or his psychiatrist.<\/p>\n 17.\u00a0\u00a0In the meantime, on 11 September and 13 December 2012 the applicant submitted medical reports by his psychiatrist V.G. according to which he suffered from chronic stress and maladaptation to the environment. This was a behavioural disorder which needed further psychological treatment. V.G. also stressed that the applicant\u2019s psychiatric internment could create adverse effects for his treatment. He pointed out that the applicant participated in an outpatient psychiatric treatment for years and that there were positive developments in his behaviour, in particular related to the abstinence from alcohol.<\/p>\n 18.\u00a0\u00a0At a hearing on 18 December 2012, the Zagreb Municipal Criminal Court heard further witnesses for the prosecution. It dismissed all the applicant\u2019s requests for the taking of evidence on the grounds that they were irrelevant. In particular, the trial court held that the general practitioner V.P. did not have sufficient expertise to give evidence on the applicant\u2019s mental capacity and that her documents had been taken into account by E.S. The trial court considered that the same arguments applied to V.G.<\/p>\n 19.\u00a0\u00a0At a hearing on 23 January 2013 the parties gave their closing arguments. The applicant argued that E.S.\u2019s expert opinion was flawed and incomplete as it had not taken into account the existing medical documentation related to his treatment but only the medical record held by his general practitioner. At the same time, her opinion was contrary to the findings of his psychiatrist V.G.<\/p>\n 20.\u00a0\u00a0On the same day the Zagreb Municipal Criminal Court found that the applicant had committed the offence of making serious threats while lacking mental capacity. Relying on E.S.\u2019s report,it decided that he should be placed in a psychiatric hospital for a period of six months. The Zagreb Municipal Criminal Court found the medical reports produced by V.G. (seeparagraph 17 above) unreliable on the grounds that they contradicted the findings of the expert witness E.S. and that they had been produced by a doctor whom the applicant had paid privately.<\/p>\n 21.\u00a0\u00a0The applicant appealed against the judgment to Zagreb County Court (\u017dupanijski sud u Zagrebu), alleging numerous substantive and procedural flaws. He pointed out that his psychiatrist V.G., whohad treated him for six\u00a0years, had not been consulted in the course of the proceedings. He also referred to a report by V.G.,which found that there were no grounds for his being placed in a psychiatric institution and that any such decision could have severe consequences for his health.<\/p>\n 22.\u00a0\u00a0On 9 July 2013 the Zagreb County Court dismissed the applicant\u2019s appeal on the grounds that all the relevant facts had been correctly established. It stressed that the expert witness E.S. had taken into account the applicant\u2019s medical record held by his general practitioner V.P., which also included the findings of his psychiatrist V.G. The Zagreb County Court therefore considered that it had not been necessary to question V.P. and V.G., particularly since they were not certified court experts as was the case with E.S. The Zagreb Municipal Criminal Court judgment thereby became final.<\/p>\n 23.\u00a0\u00a0On 23 October 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining that the proceedings had been unfair.<\/p>\n 24.\u00a0\u00a0On 27 November 2013 the Constitutional Court declared the applicant\u2019s constitutional complaint inadmissible as manifestly ill-founded. It considered that the applicant was simply repeating his arguments from the proceedings before the lower courts challenging their decisions although those decisions did not disclose any arbitrariness or unfairness.<\/p>\n B.\u00a0\u00a0Proceedings for the applicant\u2019s placement in a psychiatric hospital<\/strong><\/p>\n 25.\u00a0\u00a0After the Zagreb Municipal Criminal Court\u2019s judgment became final (see paragraph 22 above) it was sent for implementation to a single judge ofthe Zagreb County Court, as provided for under the Protection of Individuals with Mental Disorders Act (see paragraph 32 below).<\/p>\n 26.\u00a0\u00a0In the meantime, the applicant went to Sarajevo, Bosnia and Herzegovina, where he was examinedby two experts in forensic psychiatry, A.K. and A.B.M., and a psychologist, S.P. In a report of 10 August 2013 the experts stated that the applicant had various mental disorders of a histrionic type, but did not have paranoid schizophrenia. They also stated that he was fully conscious of his acts and could adopt a critical attitude towards his own conduct.<\/p>\n 27.\u00a0\u00a0On 21 October 2013 a judge of the Zagreb County Court ordered that the applicant be sent to the psychiatric hospital.<\/p>\n 28.\u00a0\u00a0The applicant appealed against that decisionto a three-judge panel of the Zagreb County Court, referring, inter alia, to the expert report drafted on 10 August 2013 (see paragraph 26 above).<\/p>\n 29.\u00a0\u00a0On 7 November 2013 a three-judge panel of the Zagreb County Court dismissed the applicant\u2019s appeal on the grounds that there had been nothing in his argumentsto raise any doubtsabout the necessity for his committal to the hospital as established by theZagreb Municipal Criminal Court.<\/p>\n 30.\u00a0\u00a0According to the available information, the applicant is still at large as he could not be located by the relevant authorities in order to execute the psychiatric internment order.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 31.\u00a0\u00a0The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette no. 152\/2008, with further amendments) read:<\/p>\n Duration of pre-trial detention \u201c(1)\u00a0\u00a0Until the adoption of a first-instance judgment, pre-trial detention may last for a maximum of:<\/p>\n …<\/p>\n 2.\u00a0\u00a0three months for offences carrying a sentence of up to three years\u2019 imprisonment;<\/p>\n …\u201d<\/p>\n Witnesses \u201c(1)\u00a0\u00a0Persons for whom it is probable that they could give information on the criminal offence, perpetrator or other important circumstances are heard as witnesses.\u201d<\/p>\n Article 285<\/p>\n \u201c(1)\u00a0\u00a0The following persons enjoy testimonial privilege:<\/p>\n …<\/p>\n 5)\u00a0\u00a0… doctors, … psychologists, … with regard to the information they had learned fromthe defendant in the performance of their duties …\u201d<\/p>\n Expert evidence \u201cExpert report shall be commissioned when, in order to determine or assess the relevant facts, it is necessary to obtain findings and the opinion of a person who has the necessary expert knowledge.\u201d<\/p>\n Article 309<\/p>\n \u201c(2)\u00a0\u00a0If a specialised institution exists for a certain type of expertise, or the expert evidence may be given from a state authority, such expert report, particularly a complex one, shall as a rule be assigned to such an institution or such an authority. The institution or the authority shall appoint one or more experts who shall produce the expert report.<\/p>\n …<\/p>\n (4)\u00a0\u00a0If for certain expert report, permanent expert witnesses are appointed, other expert witnesses may be appointed only when there is a danger of delay, or when permanent expert witnesses are not available or if other circumstances so require.\u201d<\/p>\n Article 311<\/p>\n \u201c(1)\u00a0\u00a0Any person who … enjoys the testimonial privilege … may not be appointed as an expert witness, and if such a person wasappointed, his or her findings and opinion may not be used as evidence in the proceedings.\u201d<\/p>\n Article 317<\/p>\n \u201cIf the findings of the expert witness are unclear, incomplete or contradictory in themselves or contrary to other examined circumstances, and these omissions cannot be removed by a re-examination of the expert witness, the same or other expert witness shall provide new expert report.\u201d<\/p>\n Article 318<\/p>\n \u201cIf the opinion of the expert witness contains contradictions or other omissions, or if grounds for suspicion arise that the opinion is inaccurate, and these omissions or suspicion cannot be removed by a re-examination of the expert witness, the opinion of another expert witness shall be requested.\u201d<\/p>\n Article 325<\/p>\n \u201c…<\/p>\n (3)\u00a0\u00a0If an expert report has been commissioned in order to establish the mental capacity of the accused [at the moment of the commission of the offence], the expert shall establish whether at the moment of the commission of the offence the accused suffered from a mental illness, temporary mental disturbance, insufficient mental development or some other mental derangement and shall determine the nature, type and degree of any such mental derangement and shall give his or her opinion on the effects of that condition on the accused\u2019s capacity to understand the meaning of his or her actions and to control his or her will.<\/p>\n (4)\u00a0\u00a0If the expert finds that at the moment of the commission of the offence the accused was unable to understand the meaning of his or her actions and to control his or her will, [the expert] shall give his or her opinion on the degree of possibility that [the accused], due to the mental derangement in question, could commit a serious offence …\u201d<\/p>\n Proceedings concerning mentally ill defendants \u201c(1)\u00a0\u00a0The provisions of this Code … shall also apply in proceedings against persons lacking mental capacity at the time of the commission of the unlawful act, unless otherwise provided in this Chapter.\u201d<\/p>\n Article 550<\/p>\n \u201c(1)\u00a0\u00a0If a defendant lacked mental capacity when committing the unlawful act, the State Attorney shall request in the indictment that the court establish that the defendant has committed an unlawful act while lacking mental capacity and that he or she be interned [in a psychiatric hospital] under the Protection of Individuals with Mental Disorders Act.\u201d<\/p>\n Article 551<\/p>\n \u201c(1)\u00a0\u00a0Save for the grounds on which the pre-trial detention may be ordered against an accused, such detention shall be ordered in respect of the accused against whom the indictment under Article 550 \u00a7 1 has been lodged if there is a possibility that due to the serious mental derangement that person might commit a serious offence. Before ordering the per-trial detention, an expert opinion on the existence of the danger referred to shall be obtained. If the pre-trial detention has been ordered [under this provision] the prison administration shall be informed in order to transfer that person to [an adequate institution].<\/p>\n (2)\u00a0\u00a0The pre-trial detention under paragraph 1 of this Article can last as long as there is need for it but not longer than provided under Article 133 of this Code.\u201d<\/p>\n Article 554<\/p>\n \u201c(1)\u00a0\u00a0If the State Attorney has made a request in accordance with Article 550 paragraph 1 of this Code, and the court, upon completion of the trial, establishes that the defendant has committed the unlawful act while lacking mental capacity and that the conditions exist for ordering his or her internment in a psychiatric hospital in accordance with the Protection of Individuals with Mental Disorders Act, it shall adopt a judgment determining that the defendant has committed the unlawful act while lacking mental capacity and shall order [his or her] involuntary internment in a psychiatric hospital for a period of six months.<\/p>\n (2)\u00a0\u00a0The court shall, when adopting the judgment under paragraph1 of this Article, order or extend the pre-trial detention under Article 551 \u00a7 1 of this Code.<\/p>\n …\u201d<\/p>\n Article 555<\/p>\n \u201c(5)\u00a0\u00a0The president of the [trial] panel shall, immediately upon the decision ordering internment [in the psychiatric hospital] becoming enforceable, forward all the necessary documents to the relevant court for the procedure under the Protection of Individuals with Mental Disorders Act.\u201d<\/p>\n 32.\u00a0\u00a0The relevant provisions of the Protection of Individuals with Mental Disorders Act (Zakon o za\u0161titi osoba s du\u0161evnim smetnjama, Official Gazette no. 11\/1997, with further amendments) provide:<\/p>\n General provisions \u201cThis Act regulates the basic principles, organisation and enforcement of the protection of individuals with mental disorders, as well as the conditions for the application of measures and treatment.\u201d<\/p>\n Involuntary admission and involuntary retention in a psychiatric institution \u201c(1)\u00a0\u00a0The proceedings for the involuntary admission of a mentally ill person to a psychiatric institution shall be in the competence of a single judge of the [relevant] County Court.<\/p>\n (2)\u00a0\u00a0The proceedings for the involuntary placement in a psychiatric institution are non-contentious [civil] proceedings.<\/p>\n …\u201d<\/p>\n Procedure for the internment [in a psychiatric hospital] of persons lacking mental capacity [when committing an unlawful act] and convicted persons \u201c(1)\u00a0\u00a0The court shall order involuntary psychiatric internment of a mentally ill offender if, on the basis of an expert report, it finds that the person in question has serious mental disorder and that he or she is dangerous for his or her environment.<\/p>\n (2)\u00a0\u00a0A mentally ill offender shall be considered dangerous for his or her environment if there is a high probability that due to his or her mental disorder leading to his lack of mental capacity [at the moment of the commission of the offence] could again commit a criminal offence punishable by at least three years\u2019 imprisonment.\u201d<\/p>\n Section 44.a<\/p>\n \u201c(1)\u00a0\u00a0The procedure for internment [in a psychiatric hospital] in accordance with sections 44-50.a of this Act shall be conducted in respect of persons whose internment has been ordered by a court in criminal proceedings.<\/p>\n (2)\u00a0\u00a0In the proceedings for involuntary psychiatric internment of mentally ill offenders sections 44-50a of this Act shall apply and, if something is not provided in those provisions, other provisions of this Act shall apply.<\/p>\n (3)\u00a0\u00a0The involuntary psychiatric internment starts by the finality of the decision on psychiatric internment adopted in the criminal proceedings …<\/p>\n (4)\u00a0\u00a0After the expiry of the period for the maximum possible sentence for the offence for which the mentally ill offender was found to be responsible, his or her release from the hospital shall be governed by the provisions of this Act [applicable to mentally ill non-offenders].\u201d<\/p>\n Section 45<\/p>\n \u201c(1)\u00a0\u00a0The first-instance court which conducted the criminal proceedings where internment was ordered for a person lacking mental capacity shall forward copies of the [relevant documents]to the court competent for the procedure of internment (hereinafter: the court).<\/p>\n …<\/p>\n (3)\u00a0\u00a0The court shall without delay forward to the Ministry of Health a copy of the [criminal court\u2019s] judgment, including the report of the expert witness, and other information necessary for the selection of the institution where the individual is to be interned. Within three days of receipt of the [criminal court\u2019s judgment], the Ministry of Health shalldesignate the psychiatric hospital …<\/p>\n (4)\u00a0\u00a0After the receipt of the decision of the Ministry of Health referred to in paragraph 3 of this section, the court shall, within three days, order the committal of the person to the psychiatric hospital for the enforcement of the decision on his or her internment.<\/p>\n …<\/p>\n (7)\u00a0\u00a0Appeal against the decision on the committal of the person to the hospital does not have suspensive effect.\u201d<\/p>\n 33.\u00a0\u00a0In the context of the proceedings concerning mentally ill offenders, after the first part of the proceedings has been concluded before the criminal court, the Protection of Individuals with Mental Disorders Act envisages that the single judge of the County Court assumes further responsibility to ensure that the mentally ill offender is kept in the psychiatric hospital only if, and as long as, he or she is dangerous within the meaning of section 44 of that Act, but no longer than the maximum penalty for the relevant offence as provided under section 44a of that Act. Further relevant provisions of the Protection of Individuals with Mental Disorders Act related to the involuntary admission and involuntary retention in a psychiatric institution of persons with a mental illness are set out in the case of M.S. v. Croatia (no. 2), (no. 75450\/12, \u00a7 36, 19 February 2015).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 34.\u00a0\u00a0The applicant complained of a lack of fairness in the proceedingsleading to the decisions on his internment in a psychiatric hospital. He relied on Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing …\u201d<\/p>\n 35.\u00a0\u00a0For the same reasons, the applicant invoked Article 5 \u00a7\u00a7 1 (e) and 4 of the Convention.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Article 5 \u00a7\u00a7 1 (e) and 4 of the Convention<\/em><\/p>\n 36.\u00a0\u00a0The Court notes that the applicant was not detained following the adoption of the decisions on his internment in the psychiatric hospital as the relevant authorities could not reach him in order to execute the psychiatric internment order. That being so, the Court does not find that Article 5 of the Convention is applicable to his complaints (see, for instance, Guliyev v.\u00a0Azerbaijan (dec.), no. 35584\/02, 27 May 2004, and Lazoroski v.\u00a0the\u00a0former Yugoslav Republic of Macedonia, no. 4922\/04, \u00a7\u00a7 65-66, 8\u00a0October 2009). Accordingly, the applicant\u2019s complaint under Article 5 \u00a7\u00a7\u00a01 (e) and 4 of the Convention is incompatible ratione materiaewith the provisions of the Convention and should be rejected pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n 2.\u00a0\u00a0Article 6 of the Convention<\/em><\/p>\n 37.\u00a0\u00a0The fact thatArticle 5 is inapplicable does not present an obstacleto the applicability of Article 6 of the Convention to the proceedings concerning issues of personal liberty in the present case (see Reinprecht v.\u00a0Austria, no. 67175\/01, \u00a7\u00a7 51-52, ECHR 2005\u2011XII, and Lazoroski, cited above, \u00a7 66).Thus, the Court will next examine the question of whether in the circumstances of the present case Article 6 is applicable in its criminal or civil limb.<\/p>\n 38.\u00a0\u00a0The applicant\u2019s complaints in the present case concern the entirety of the domestic proceedings leading to the adoption of the decisions on his internment to the psychiatric hospital. The Court notes that in accordance with the relevant domestic law, the procedure for internment of a mentally ill offender in a psychiatric hospital is a two-tier procedure. First, the criminal proceedings are conducted before a criminal court in order to determine whether the accused has committed an act constituting a criminal offence while lacking mental capacity and, if that proves to be the case, whether there is a high degree of probability that due to the reasons leading to his or her lack of mental capacity that person could commit a serious offence in the future. If all this is proven, the criminal court then imposes a psychiatric internment order which may last at most as long as the maximum possible sentence for the relevant offence. In the second stage of the procedure, on the basis of the internment order issued by the criminal court, a special procedure is instituted and conducted before a single judge of the relevant County Court for the adoption of the decision on the person\u2019s actual placement in the appropriate institution(see paragraphs 31-32 above).<\/p>\n 39.\u00a0\u00a0In these circumstances, in order to determine the issue of applicability of Article 6 to the applicant\u2019s complaints, the Court considers it appropriate, first, to review its case-law concerning the proceedings conducted againstmentally ill offenders and their internment, and then its case-law concerning the internment of persons of unsound mind in general (non-offenders) in the psychiatric hospital.<\/p>\n (a)\u00a0\u00a0Case-law relevant to the proceedings against mentally ill offenders<\/p>\n 40.\u00a0\u00a0In some cases concerning the proceedings for involuntary placement of mentally ill offenders in the psychiatric hospital, the Court did not consider that Article 6 \u00a7 1 of the Convention applied under its criminal head (see Antoine v. the United Kingdom (dec.), no. 62960\/00, ECHR 2003, andKerr v. the United Kingdom ((dec.), no. 63356\/00, 23 September 2003).<\/p>\n 41.\u00a0\u00a0These cases concerned first a finding by a court that the applicants were unfit to plead and stand trial. This led to the discontinuation of the criminal trial against them, and the opening of a new set of proceedings before a fresh jury whose essential purpose was to consider whether the applicant had committed an act the dangerousness of which would require a hospital order in the interests of the protection of the public. In these circumstances, in view of the fact that following the finding of unfitness to plead no conviction or punitive sanction was possible and that the decision on the placement in a psychiatric hospital pursued preventive purposes, the Court considered that these proceedings did not concern the determination of a criminal charge within the meaning of Article 6 \u00a7 1 of the Convention (seeJuncal v. the United Kingdom (dec.), no. 32357\/09, \u00a7 34, 17 September 2013).<\/p>\n 42.\u00a0\u00a0By contrast, in cases where the internment of mentally ill offenders in the psychiatric hospital was ordered by the criminal courts in the proceedings whose task was, in substance, to establish whether the applicant had committed a wrongful act and whether at that time he could be held criminally liable for his act, the Court considered that Article 6 \u00a7 1 applied under its criminal limb (see Valeriy Lopata v. Russia, no. 19936\/04, 30\u00a0October 2012, and Vasenin v. Russia, no. 48023\/06, 21 June 2016).<\/p>\n 43.\u00a0\u00a0In these cases, the Court noted the differences in practical operation of the proceedings in question as opposed to those in Antoine and Kerr (both cited above). The Court was mindful of the fact that in accordance with the relevant domestic law the practical situation of the applicants as persons who had committed a wrongful act in a state of mental incapacity was essentially similar to a suspect or accused in criminal proceedings.In particular it laid emphasis on the fact that the applicants had been remanded in custody and awaited the conclusion of the proceedings against them as any other defendant in an ordinary criminal case (see Valeriy Lopata, cited above, \u00a7 120, and Vasenin, cited above, \u00a7 130).Furthermore,in Vasenin (cited above, \u00a7 130), the Court was mindful of the position in the domestic law according to which a person in the applicant\u2019s situation should benefit fully from the guarantees afforded to an accused or defendant in the criminal proceedings.<\/p>\n (b)\u00a0\u00a0Case-law relevant to the internment of persons of unsound mind (non\u2011offenders) in the psychiatric hospital<\/p>\n 44.\u00a0\u00a0In severalcases concerning the internment of persons of unsound mind (non-offenders) in the psychiatric hospital, the Court found that Article 6 \u00a7 1 of the Convention applied under its civil limb.<\/p>\n 45.\u00a0\u00a0In Aerts v. Belgium (30 July 1998, \u00a7 59, Reports of Judgments and Decisions 1998 V) the applicant had been detained under Article 5 \u00a7 1 (e) as a person of unsound mind. Following his release, he instituted proceedings to review the lawfulness of his detention and sought compensation. The Court found that Article 6 \u00a7 1 applied under its civil head to the proceedings because \u201cthe right to liberty is a civil right\u201d.<\/p>\n 46.\u00a0\u00a0In two subsequent cases which also concerned proceedings relating to the lawfulness of detention in psychiatric institutions, the Court found Article 6 to be applicable under its civil head with reference to Aerts. It explicitly dismissed the Government\u2019s objection of incompatibility ratione materiae, despite the fact that some of the proceedings in issue concerned only the lawfulness of the detention without involving any related pecuniary claims (see Vermeersch v. France (dec.), no. 39277\/98, 30 January 2001, and Laidin v. France (no. 2), no. 39282\/98, \u00a7\u00a7 73-76, 7 January 2003).<\/p>\n 47.\u00a0\u00a0While these cases concerned instances in which the applicants challenged their placement in psychiatric institutions after they had been released, the Court is of the view that, as a matter of principle, there is no reason to consider that Article 6 should not apply in the context of the proceedings where an applicant who is at liberty challenges the decisions that should lead to his or her placement in a psychiatric institution. Should it be otherwise, an applicant would be required to offer up his or her physical liberty in order to trigger applicability and thus exercise of his or her Article\u00a06 rights (see, mutatis mutandis, Sanader v. Croatia, no. 66408\/12, \u00a7\u00a070, 12 February 2015), which would be difficult to reconcile with the principle of practical and effective nature of rights guaranteed under the Convention (see, amongst many others, Al-Dulimi and Montana Management Inc.v. Switzerland [GC], no. 5809\/08, \u00a7 127, 21 June 2016).<\/p>\n (c)\u00a0\u00a0Application of the above case-law in the present case<\/p>\n 48.\u00a0\u00a0In the present case, having regard to the specific features of the domestic proceedings and the manner of their operation in practice and the above case-law, the Court is of the view that there is little doubt as to the applicability of Article 6 \u00a7 1 in its criminal limb to the first set of proceedings conducted before the criminal courts.<\/p>\n 49.\u00a0\u00a0The essential aim of those proceedings, which were regulated in the relevant criminal law legislation (see paragraph 31 above, Article 554 of the Code of Criminal Procedure),was to establish whether the applicant had committed the acts constituting a criminal offence of making serious threats while lacking mental capacity and if so to assess whether his present mental condition required the application of a measure of psychiatric internment.<\/p>\n 50.\u00a0\u00a0Thus, the criminal court was not called upon to decide exclusively on the matters related to the applicant\u2019s \u201cright to liberty\u201d, but it was called to decide on whether the applicant had committed the acts constituting a criminal offence and upon his criminal responsibility, which both are elements of the determination of the criminal charge (see paragraph 31 above). Furthermore, the assessment of the need for application of this measure was regulated by special provisions distinct from those that applied to mentally ill in general and the execution of the measure was separately regulated. Moreover, its maximum is limited to maximum possible imprisonment for the offence in question (see paragraphs 31-32 above). Indeed, throughout the domestic proceedings, including in the proceedings before the Constitutional Court (see paragraph 24 above), the \u201ccriminal\u201d nature of the proceedings before the criminal courts was never put to doubt.<\/p>\n 51.\u00a0\u00a0In view of the above, the Court finds that Article 6 \u00a7 1 of the Convention is applicable under its criminal limb to the proceedings conducted before the criminal courts.<\/p>\n 52.\u00a0\u00a0As to the subsequent set of proceedings for the applicant\u2019s actual placement in a psychiatric institution conducted before the relevant County Court, the Court notes that at this stage there was no longer a criminal case pending against the applicant and the County Court was not concerned with establishing the nature and scope of his criminal responsibility but, in essence, with finding the modalities for his placement in a psychiatric institution and assuming further responsibility to ensure that he is kept in the psychiatric institution only if, and as long as, he is dangerous within the meaning of section 44 of that Act, but no longer than the maximum penalty for the relevant offence as provided under section 44a of that Act (seeparagraph 33 above). Before the applicant as a person of unsound mind could actually be placed in a psychiatric institution,the County Court needed to make the relevant order to that effect. It thus follows that the County Court was called upon to decide exclusively on the matters related to the applicant\u2019s \u201cright to liberty\u201d, which, as already stressed above, falls under the civil head of Article 6 \u00a7 1 of the Convention (see paragraphs\u00a044\u201147 above).<\/p>\n 53.\u00a0\u00a0The Court therefore finds that Article 6 \u00a7 1 applies in its civil limb to the proceedings for the applicant\u2019s actual placement in a psychiatric institution conducted before the relevant County Court.<\/p>\n 54.\u00a0\u00a0The Court also notes that the applicant\u2019s complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/em><\/p>\n 55.\u00a0\u00a0The applicant contended that all his arguments and proposals to examine evidence had been dismissed in the course of the relevant proceedings. In particular, the courts in question had failed to take into account his proposal for the examination of his psychiatrist V.G. and for the admission into evidence of the expert report produced by a team of experts in Sarajevo. They had thereby prevented him from effectively challenging the findings of the prosecution expert E.S. in order to show that his internment in a psychiatric hospital would be damaging to his health.The applicant also pointed out that his case had not concerned the application of criminal sanctions but rather specific measures applied with regard to individuals with mental disorders. In his view, such measures could not be applied automatically. Moreover, the applicant stressed that the relevant courts ordering his internment in a psychiatric hospital had failed to reassess his condition in the light of new findings, in particular those of the team of experts from Sarajevo. Instead, they had ordered his internment on the basis of an expert report that was out of date.<\/p>\n 56.\u00a0\u00a0The Government pointed out that the order for the applicant\u2019s internment in a psychiatric hospital had been a special form of \u201csanction\u201d applied in criminal proceedings against a person lacking mental capacity when committing an unlawful act. The further order on his actual committal had been adopted in a special non-contentious procedure. In the Government\u2019s view, the internment order had been adopted on the basis of areport by the relevant experts (a psychiatrist and a psychologist) and the decisions of the relevant courts in that regard had not been arbitrary or unreasonable. The expert report had been prepared on the basis of all the available information concerning the applicant\u2019s mental health and there had been no need to examine further evidence. Moreover, the applicant had had all the relevant procedural guarantees in the proceedings leading to the adoption of the internment order and the committal order, including the possibility to propose and examine the relevant evidence. The fact that the Zagreb County Court had not taken into account the report of the team of doctors from Sarajevo was irrelevant. That was because it had no longer been possible to adduce evidence and challenge the findings on the applicant\u2019s metal capacity at that stage of the proceedings. The applicant should have adduced that evidence in the criminal proceedings before the Zagreb Municipal Criminal Court. The Government also stressed that the expert report obtained in the criminal proceedings could not be considered as being out of date for the determination of the need for the applicant\u2019s internment in a psychiatric hospital.<\/p>\n
\nKsenija Turkovi\u0107,
\nAle\u0161 Pejchal,
\nKrzysztof Wojtyczek,
\nArmen Harutyunyan,
\nTim Eicke,
\nJovan Ilievski, judges,
\nand Abel Campos, Section Registrar,<\/p>\n
\nArticle 133<\/p>\n
\nArticle 283<\/p>\n
\nArticle 308<\/p>\n
\nArticle 549<\/p>\n
\nSection 1<\/p>\n
\nSection 29<\/p>\n
\nSection 44<\/p>\n