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FIFTH
SECTION
CASE OF TRAJČE STOJANOVSKI
v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application
no. 1431/03)
JUDGMENT
STRASBOURG
22
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Trajče
Stojanovski v. the former
Yugoslav Republic of Macedonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 29 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1431/03) against the former
Yugoslav Republic of Macedonia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Macedonian national,
Mr Trajče Stojanovski (“the applicant”),
on 18 December 2002.
- The
applicant, who had been granted legal aid, was represented by Mr N.
Garazov, a lawyer practising in Štip. The Macedonian
Government (“the Government”) were represented by their
Agent, Mrs R. Lazareska Gerovska.
- The
applicant alleged, in particular, that his continued confinement in a
psychiatric hospital had no longer been justified under Article 5 §
1 (e) of the Convention.
- By
a decision of 16 September 2008, the Court declared this complaint
admissible.
- The
applicant and the Government each filed further information (Rule 59
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Štip.
1. Background of the case
a) The applicant's conviction and his placement in a
psychiatric hospital
- On
10 July 1998 the Štip Court of First Instance (“the
trial court”) ordered an indefinite security measure against
the applicant, who was a deaf mute, of “compulsory psychiatric
treatment and confinement in a medical institution of a closed type”
(задолжително
психијатриско
лекување и
чување во здравствена
установа од
затворен тип)
(“the confinement order”) for causing “serious
bodily injury” and “endangering another with a dangerous
implement in a fight or quarrel”. The court established that on
23 October 1995 an incident had taken place in the court
building between Mr I., the applicant's father, and Mr D., as parties
summoned to attend a hearing scheduled for that day. The applicant
intervened in the quarrel and knocked Mr D. down. Mr D. sustained
severe head injuries and a brain haemorrhage as a result of the fall
and died seven days later. The applicant also hit a judge several
times. He was subsequently prevented from assaulting a third person.
The court found that the applicant was “slightly mentally
retarded” and considered aggressive and a danger to the public,
in particular villagers whom he had allegedly often assaulted. Two
medical reports drawn up by three psychiatric experts confirmed that
the applicant was mentally ill, and needed medical treatment in a
specialised psychiatric hospital.
-
The confinement order was enforced immediately. The applicant was
placed in the Negorci Hospital for Mental Diseases (hereafter “the
hospital”).
b) Previous review of the applicant's detention in the
hospital
- On
28 October 1999 the hospital requested the trial court to amend the
confinement order and release the applicant on condition that he
undergoes compulsory psychiatric treatment. It based its proposal on
the applicant's good behaviour in the past, the good relations he had
established with the staff and other patients and the absence of any
neurotic or psychiatric disorder since his confinement. The hospital
noted that the applicant was mentally ill, which was a permanent
state that could not be regarded as a disease. The public prosecutor
supported the hospital's proposal.
-
In submissions of 16 June 2000, the applicant's sister requested that
the trial court decide on the hospital's proposal. A petition signed
by over seventy villagers, indicating that the applicant had been
never dangerous and had been accepted in the village, was also
attached to the request.
-
The trial court, in a decision confirmed on appeal, dismissed the
hospital's proposal relying on a notification by police, according to
which the applicant had left the hospital several times and his
visits to the village had been perceived as a threat and a danger by
the local inhabitants. The police also referred to an incident of 1
January 2001 involving the applicant and Mr D.'s son. In a court
decision of 11 February 2002, confirmed on appeal, Mr D.'s son was
acquitted, as having acted in self-defence, of causing grievous
bodily injury to the applicant. The court also referred to another
petition signed by many villagers, which allegedly had been attached
to the notification.
2. The proceedings at issue (“the 2003 review”)
-
On 3 April 2003 the hospital lodged with the trial court a fresh
proposal for the applicant's conditional release, which was based on
similar grounds to those of the previous review: good relations with
the staff and other patients; no disturbance of order; mild drug
therapy. The proposal was made with the stated aim of a faster and
more efficient re-socialisation and reintegration of the applicant.
The applicant was transferred to an open ward of the hospital. The
public prosecutor supported the hospital's proposal.
-
In submissions of 25 April 2003, the applicant, who was represented
by Mr Garazov, informed the court that his father intended to change
residence and had consequently bought an apartment elsewhere.
-
On 24 September 2003 the trial court requested the police to make an
inquiry into whether the applicant had caused problems during his
stay in the village and whether he had been a danger to the local
inhabitants.
-
On 20 November 2003 the trial court dismissed the hospital's
proposal, relying on a police report of 13 October 2003. It stated,
inter alia, that:
“...the applicant left the hospital several times
and went to stay with his father...the last visit was in August
2003...after his arrival in the village, he started shouting out some
indistinct words...although he was noticed by the inhabitants, there
were no attacks on other persons...during the four-day stay in the
village, he was always with his father. His presence in the village
frightened, in particular, the immediate neighbours, who protected
themselves by shutting up their houses and barring them from inside.
Many inhabitants said that the applicant was under the psychological
influence of his father, who – when intoxicated – had
often provoked him by telling lies about the death of his mother and
had thus made him aggressive towards some people. Local inhabitants
therefore still feared the applicant's aggression...”
-
On 6 January 2004 the applicant left the hospital without consent and
remained at large until 8 June 2004, when the police returned
him.
-
On 9 February 2004 the applicant complained that the trial court had
not based its decision on relevant facts, arguing that the expert
opinions of the hospital and the responsible medical officer who had
treated him were the only evidence relevant for the court. He
maintained that in case of misgivings as to the validity of the
hospital's opinion, the court should have obtained an alternative
medical expertise. In submissions of 31 March 2004, the public
prosecutor supported the applicant's appeal and his request that the
case be remitted for fresh consideration.
-
On 13 April 2004 the Štip Court of Appeal dismissed the
applicant's appeal and stated that the hospital's proposal was
irrelevant since it was not binding on the court. It ruled that on
the basis of the results of the medical treatment it was free to
decide whether the applicant was fit to be discharged from the
hospital and treated on release. Lastly, it concluded that the
applicant had escaped from the hospital several times and had
presented a threat to the public. It was therefore too early to
consider him fit for release.
- No
further annual reviews were carried out until the hospital's fresh
proposal of 7 November 2008 (see paragraph 21 below).
3. The applicant's current situation
-
Since 14 February 2007 the applicant has been placed in a semi-open
ward of the hospital, where he is responsible for the maintenance and
hygiene of the ward. He cannot leave the hospital at will, unless
authorised by a doctor. His last unauthorised leave from the hospital
dates back to 11 September 2007. The police returned him
after 13 days. After that incident, a decision was taken that the
applicant be allowed to leave the hospital. Between October 2007 and
September 2008 the applicant was given leave on four occasions, each
time lasting not more than a month. During this so-called “therapy
probationary leave”, the applicant received the prescribed
therapy and his father took care of him. His mental health was stable
and required no special supervision.
-
On 7 November 2008 the hospital unsuccessfully applied for
replacement of the confinement order with the applicant's conditional
release, which was now to be accompanied by removal of his legal
capacity and appointment of a guardian (старател).
The latter was based on the hospital's view that the applicant's
father was unfit to take proper care of him. At a public hearing held
on 27 November 2008, and after consulting two doctors from the
hospital and a Social Care Centre representative, the trial court
found no one suitable to be appointed as the applicant's guardian, if
released. No information was provided as to whether the applicant
appealed against this decision.
II. RELEVANT DOMESTIC LAW
- The
relevant provision of the Criminal Proceedings Act (“the Act”)
reads as follows:
Section 483
A court which at first instance has ordered compulsory
psychiatric treatment and confinement in a medical institution may
discontinue the order and release the perpetrator from the medical
institution of its own motion or upon a proposal lodged by the
medical institution or the custodial institution and after hearing
the public prosecutor. It shall so decide if, after consulting the
medical officer, it finds that there is no need for medical treatment
and confinement of the perpetrator in the institution. It can order
his or her release on condition that he or she undergoes compulsory
psychiatric treatment.
- The
relevant provisions of the Criminal Code read as follows:
Article 63
Compulsory psychiatric treatment and confinement in a
medical institution
“(1) The court shall order the compulsory
psychiatric treatment and confinement in a medical institution of a
perpetrator who has committed an offence while of unsound mind or
with a substantial mental deficiency if it finds that, due to that
condition, he or she may reoffend and that medical treatment and
confinement in such an institution is warranted to prevent him or her
from doing so.
(2) The court shall discontinue the measure set forth in
paragraph 1 when it finds that there is no need for medical treatment
and confinement of the perpetrator in the medical institution.
...
(4) The court shall review the need for medical
treatment and confinement in a medical institution every year.”
Article 64
Compulsory psychiatric treatment on release
“(1) The court shall order compulsory psychiatric
treatment on release of a perpetrator who has committed an offence
while of unsound mind if it finds that, due to that condition, he or
she may reoffend and that medical treatment on release would be
sufficient to prevent him or her from doing so.
(2) The measure set forth in paragraph 1 may be imposed
on an offender who has already undergone compulsory psychiatric
treatment and confinement in a medical institution when, on the basis
of the results of the medical treatment, the court determines that
his or her treatment and confinement in a medical institution is no
longer necessary...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 of the Convention that his
continued confinement in the hospital, as confirmed in the 2003
review, had been unlawful since the courts had wrongly based their
decisions on police reports instead of on the findings of the
hospital, as the only reliable evidence concerning his mental health.
Article 5 § 1 of the Convention, in so far as relevant, reads as
follows:
“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 for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants...”
1. The parties' submissions
- The
applicant argued that the courts should not have ignored the
hospital's proposal, as their decisions should have been based on the
results of his medical treatment. He referred to the doctors'
unanimous opinion according to which his mental deficiency had not
been a result of an illness or psychosis, but of his handicaps which
could neither improve nor be cured. His further stay in the hospital
had therefore been pointless.
- The
Government stated that the confinement order had been given on the
basis of two medical reports confirming his mental deficiency. They
argued that the hospital had not established that the applicant had
completely recovered from his mental illness, but rather that his
health had improved. Furthermore, a possible risk of reoffending
could not be determined solely on the basis of psychiatric
observations; regard also had to be had to the objective
manifestations of the person concerned. In that connection, the trial
court's request for a police inquiry regarding the applicant's
behaviour had been justified. They maintained that the domestic
courts had carefully considered the hospital's proposal with a view
to securing the interests of the public and those of the applicant.
In that connection, they relied on the reasons for the applicant's
conviction, the incident of 1 January 2001 and the hospital's failure
to notify the trial court of his leaving.
2. The Court's assessment
- The
Court reiterates that the lawfulness of detention presupposes
conformity with the domestic law in the first place and also, as
confirmed by Article 18, conformity with the purpose of the
restrictions permitted by Article 5 of the Convention (see Winterwerp
v. the Netherlands, 24 October 1979, § 39, Series
A no. 33 and H.L. v. the United Kingdom, no. 45508/99, §§
114 and 115, ECHR 2004 IX). 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 (see Witold Litwa v. Poland,
no. 26629/95, § 78, ECHR 2000-III).
- In
the present case, the Court notes that the confinement order was
issued on 10 July 1998 in the light of the trial court's finding that
the applicant was of unsound mind when committing the offences of
which he was convicted. That the applicant's mental state required
compulsory confinement was established by two medical opinions. The
order was executed on the same date and the applicant has been in the
hospital since then.
- The
applicant was placed in different wards and was subject accordingly
to different regimes at different times. It did not however affect
his inability to leave the hospital on his own volition (see, mutatis
mutandis, Bollan v. the United Kingdom (dec.), no.
42117/98, 4 May 2000, in which the Court found that the imposition of
a more restrictive form of confinement in respect of a lawfully
detained person is regarded solely as a modification of the
conditions of detention). Even if he escaped, as he did on a number
of occasions, he would be brought back by the police. The applicant
is still detained in a semi-open ward which he can leave only with
prior authorisation from the responsible medical officer. In these
circumstances, the Court is satisfied that the applicant's
confinement in the hospital amounted to a “deprivation of
liberty” within the meaning of Article 5 § 1 of the
Convention.
- The Court further notes that the confinement order
followed and was dependent upon the applicant's “conviction by
a competent court”. It is therefore not in doubt that the
applicant's deprivation of liberty, initially, was to be regarded a
“lawful detention” within the meaning of Article 5 §
1 (a) of the Convention. However, the particular circumstances of
this case, and notably the reasons which the domestic courts advanced
for the applicant's continued detention, put into question the
continued applicability of sub-paragraph (a). In this connection, the
Court observes that, contrary to the Government's contentions, the
2003 review did not make any reference to the applicant's conviction
of 1998, but rather focused on his mental health with reference to
the interests of the public, if released. The Court finds that by the
time of the 2003 review, there was no longer a causal connection
between the applicant's conviction and his detention. Indeed, it has
not been disputed between the parties that the lawfulness of the
applicant's detention falls to be determined on the basis of
Article 5 § 1 (e) of the Convention (see, mutatis
mutandis, Johnson v. the United Kingdom, 24 October 1997,
§ 58, Reports of Judgments and Decisions 1997 VII).
The Court therefore has to verify whether the requirements of Article
5 § 1 (e) were fulfilled.
- The Court has outlined three minimum conditions for
the lawful detention of an individual on the basis of unsoundness of
mind under Article 5 § 1 (e) of the Convention: he must reliably
be shown to be of unsound mind, that is, a true mental disorder must
be established before a competent authority on the basis of objective
medical expertise; the mental disorder must be of a kind or degree
warranting compulsory confinement; and the validity of continued
confinement must depend upon the persistence of such a disorder (see
Winterwerp, cited above, § 39; Johnson, cited above,
§ § 60 and Shtukaturov v. Russia, no. 44009/05, §
114, 27 March 2008).
- The
Court notes that the 2003 review was initiated under section 483 of
the Criminal Proceedings Act by the hospital seeking his release on
condition that he undergo compulsory psychiatric supervision (see, a
contrario, Puttrus v. Germany (dec.), no. 1241/06, 24
March 2009, where the application for release was submitted by the
applicant and contested by the hospital which treated him). The
request was based on the applicant's good behaviour and his good
relations with the personnel and other patients in the hospital. The
hospital's opinion was that the applicant's mental deficiency was
permanent, that there had been no disturbance of order and had been
treated with mild drug therapy and that – subject to continuing
psychiatric supervision – he could be released.
- It
transpires, therefore, that the hospital's request was made with a
view to securing the applicant's conditional release since his mental
disorder no longer satisfied the second and/or third conditions
outlined above (see paragraph 31 above). The domestic courts
dismissed this request on the basis of information provided by the
police regarding the applicant's behaviour outside the hospital and
the local inhabitants' perceptions of him. They disregarded the
hospital's opinion as not binding on them.
- In
this connection, the Court recalls that 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
margin of appreciation since it is in the first place for the
national authorities to evaluate the evidence before them in a
particular case; the Court's task is to review under the Convention
the decisions of those authorities (see Luberti v. Italy, 23
February 1984, § 27, Series A no. 75). Whether or not recovery
from an episode of mental illness which justified a patient's
confinement is complete and definitive or merely apparent cannot in
all cases be measured with absolute certainty. It is the behaviour of
the patient in the period spent outside the confines of the
psychiatric institution which will be conclusive of this (see
Johnson, cited above, § 61). A requirement of continued
psychiatric supervision does not in itself justify continued
detention (see Johnson, § 65)
- The
Court notes that the 2003 review was carried out pursuant to Article
63 of the Criminal Code, in order to assess whether the applicant
still needed treatment and confinement. The query made by the trial
court aimed at securing information from the police about the
applicant's behaviour outside the hospital. However, the Court notes
that this review did not reveal any objective sign that the applicant
presented a threat or danger to the community (unlike the previous
review in which the trial court referred to the 2001 incident, see
paragraph 11 above). The domestic courts relied solely on the
perceived fears of the villagers. There was no evidence before the
court of a risk that the applicant would reoffend if released (see,
a contrario, X v. the United Kingdom, 5 November
1981, § 23, Series A no. 46, where the applicant was
recalled to the medical institution upon a complaint by his wife that
he had threatened her). It was only the villagers' fears that stood
against and prevailed over the applicant's conditional release from
the hospital. The domestic court noted that the applicant had visited
his village in August 2003, but did not find that he had demonstrated
any hostility or aggression (see, a contrario, Van
Droogenbroeck v. Belgium, 24 June 1982, § 14, Series A
no. 50, where each time the applicant was released, he yielded to
impulse and committed further offences). In addition, there was no
indication in the hospital's reports that the applicant was still
aggressive or would present, if released, a risk to the public (see,
a contrario, Hutchison Reid v. the United Kingdom,
no. 50272/99, § 19, ECHR 2003 IV). On the contrary, the
hospital described him as cooperative, having regularly received his
mild therapy (see, a contrario, Puttrus, cited above).
The applicant's loud utterances (see paragraph 15 above), even though
deaf and mute, cannot be regarded as decisive for restricting his
freedom. The events after the 2003 review did not add anything new in
this respect.
- In
the circumstances, the Court is not persuaded that the domestic
courts established that the applicant's mental disorder was of a kind
or degree warranting compulsory confinement, or that the validity of
the confinement could be derived from the persistence of such a
disorder. The applicant's continued confinement was therefore
manifestly disproportionate to his state of mind at that time.
- The
Court therefore considers that the applicant's continued confinement
in the hospital under the 2003 review has not been shown to have been
necessary in the circumstances and was, therefore, unjustified within
the meaning of Article 5 § 1 (e) of the Convention. There
has accordingly been a breach of that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 115,819 euros (EUR) in respect of pecuniary damage
for loss of income during the six years' unjustified detention in the
hospital. He argued that, due to the age and poor health of his
father, he would have been occupied with farming and cow rearing
during the relevant period. In this latter respect, he submitted a
certificate issued to his father attesting that the latter's annual
income from farming in 2007 amounted to 1,621 Macedonian denars
(approximately EUR 25). He further claimed EUR 90,000 in respect of
non-pecuniary damage.
- The
Government contested these claims as unsubstantiated and excessive.
They further argued that there was no causal link between the alleged
violation and the pecuniary damage claimed.
- The
Court, as the Government, finds the applicant's claim for pecuniary
damage unsubstantiated since he did not present any evidence that
farming and cow rearing had been his regular source of income before
being detained. In addition, the amount claimed was not supported by
any expert opinion or comparable estimation, both in terms of the
relevant time and place. The certificate submitted has no bearing on
the applicant's occupation as alleged. For these reasons, the Court
rejects this claim.
- On
the other hand, the Court considers that the applicant undoubtedly
suffered feelings of frustration and anxiety, which cannot be
compensated solely by the finding of a violation. Having regard to
the circumstances of the case and ruling on an equitable basis, as
required by Article 41, it awards him EUR 1,500 in respect of
non-pecuniary damage suffered in relation to the 2003 review, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed MKD 46,800 (approximately EUR 760) for the costs
and expenses incurred in the domestic proceedings. These included the
legal fees concerning the 2001 and 2003 review proceedings. He
further claimed MKD 110,100 (approximately EUR 1,800) for the costs
and expenses incurred in the proceedings before the Court. This
figure concerned the lawyer's fees for preparation of the application
and other submissions to the Court, as well as the mailing and
translation expenses. The applicant provided an itemised list of the
legal fees. No payment slip or other supporting document was provided
for the mailing and translation expenses.
- The
Government contested these claims as unsubstantiated and excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Editions Plon v. France, no.
58148/00, § 64, ECHR 2004-IV).
- Having
regard to the fee note submitted by the applicant, the Court finds
that only EUR 190 related to lawyers' fees which concerned the 2003
review and were expended with a view to seeking prevention before the
national courts of the violations found by the Court (see, mutatis
mutandis, Stoimenov v. the former Yugoslav Republic of
Macedonia, no. 17995/02, § 56, 5 April 2007). It
considers therefore that the applicant is entitled to be reimbursed
under this head EUR 190, plus any tax that may be chargeable to him.
- Lastly,
regard being had to the information in its possession and the above
criteria, the Court finds the amount claimed by the applicant in
respect of the costs and expenses incurred in the proceedings before
it to be excessive and partly unsubstantiated, and awards instead the
sum of EUR 1,350, plus any tax that may be chargeable to him,
less EUR 850 paid by the Council of Europe in legal aid.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Holds that there has been a violation of Article
5 § 1 (e) of the Convention;
- 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,
(i)
EUR 1,500 (one thousand and five hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage and
(ii)
EUR 1,540 (one thousand five hundred and forty euros), less EUR 850
paid by the Council of Europe in legal aid for costs and expenses,
plus any tax that may be chargeable to the applicant, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
