CASE OF TAM v. SLOVAKIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award
Nicolas Bratza
8. The applicant was born in 1943 and lives in Bratislava. 9. On 11 August 1993 the applicant consulted a doctor to whom he complained of health problems due to the fact that his neighbour had tried to poison him. The doctor sent the applicant to the hospital in Ružinov in an ambulance. The accompanying document established by the doctor indicated that the applicant suffered from paranoid schizophrenia. In it the doctor requested that the applicant be treated as an in-patient. According to the applicant, he stayed in the central reception unit of the hospital in Ružinov for about ten minutes and during this time two injections were administered to him. Subsequently the applicant was brought against his will to the mental hospital in Pezinok. The chief physician of that hospital ordered that the applicant be released on 26 August 1993. 10. On 19 August 1993 the Bratislava-vidiek District Court gave a decision in which it found that the applicant was held in a mental hospital lawfully. The reasons for this decision read as follows: “The psychiatric hospital in Pezinok admitted Karol Tám, as an ill person, without his consent. The court took evidence with a view to assessing whether the grounds for his admission were lawful and concluded that the person concerned has suffered from a mental illness requiring treatment in a mental hospital.” 11. The District Court’s decision of 19 August 1993 was served on the applicant on 20 September 1996. On 1 October 1996 the applicant appealed and claimed that he had been taken to the mental hospital unlawfully. 12. On 30 April 1998 the Bratislava Regional Court quashed the District Court’s decision of 19 August 1993. The Regional Court found that the first instance court had failed to establish the relevant facts and had committed errors of both a legal and procedural nature. In particular, the District Court had not taken formal decisions to bring proceedings concerning the lawfulness of the applicant’s examination in a mental hospital and to appoint a guardian for the applicant as required by Article 191b §§ 1 and 2 of the Code of Civil Procedure. Furthermore, the District Court had not heard the applicant and the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified. The case was sent back to the District Court for a new adjudication. 13. In a letter dated 21 January 1999 a judge of the Bratislava III District Court (which had taken over the cases pending before the former Bratislavavidiek District Court) informed the applicant that the case would not be proceeded with as proceedings concerning the lawfulness of his placement in a mental hospital had never been formally brought. 14. On 26 February 1999 the Bratislava Regional Court instructed the District Court to deliver a decision on the case. 15. On 6 July 1999 the Bratislava III District Court discontinued the proceedings. The decision stated that the applicant had been released on 26 August 1993 and, therefore, the reasons for proceeding further with the case had fallen away. The applicant appealed on 9 August 1999. He claimed that his deprivation of liberty had been unlawful and that he had not been informed that a guardian had been appointed to represent him. 16. On 31 May 2000 the Bratislava Regional Court upheld the District Court’s decision of 6 July 1999. 17. At the relevant time the following constitutional provisions were in force. 18. Pursuant to Article 11, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms. 19. Article 144(1) provides that judges are independent and bound only by law. 20. Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide. 21. The following relevant provisions of the Code of Civil Procedure were in force at the time when the applicant was deprived of liberty. 22. Article 191a (1) provided that medical institutions should inform a court, within twenty-four hours, that a person had been placed in their premises against his or her will. 23. Pursuant to Article 191b (1), the court in the district of which the medical institution was located should start proceedings, of its own initiative, with a view to establishing whether such a person’s deprivation of liberty was justified. 24. Paragraph 2 of Article 191b provided that the court should appoint a guardian for the person concerned unless he or she had a representative. 25. Under paragraph 3 of Article 191b, the court should hear the person concerned as well as the doctor treating him or her with a view to establishing whether the placement in the medical institution was lawful. 26. Paragraph 4 of Article 191b required that the court decide, within seven days after a person was brought to a medical institution against his or her will, whether such a measure was lawful. 27. Pursuant to Article 191c (1), such a decision was to be served, inter alia, on the person concerned unless the doctor indicated that that person was not able to understand its contents. 28. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. 29. Pursuant to Article 13 (1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. 30. Article 13 (2) provides that in cases when the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts should take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred. 31. Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings. 32. Section 18 (1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question. 33. Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation. 34. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner. 35. Act no. 514/2003 on Liability for Damage Caused in the Context of Exercise of Public Authority (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov) was adopted on 28 October 2003. It will become operative on 1 July 2004 and will replace, as from that date, the State Liability Act of 1969. 36. The explanatory report to Act No. 514/2003 provides that the purpose of the Act is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before the European Court of Human Rights. 37. Section 17 of the Act provides for compensation for pecuniary damage including lost profit and, where appropriate, also for compensation for damage of a non-pecuniary nature. 38. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration in a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). 39. In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed, from the Ministry of Justice, compensation for nonpecuniary damage on the ground that he had been acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969. 40. In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. The decision stated, inter alia, that the first instance court had not explained why the plaintiff should have first sought redress under the State Liability Act. The first instance court was instructed to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case. Reference was made also to Article 11 of the Constitution and to Article 3 of Protocol No. 7. 41. In decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court partially granted an action where a judge claimed protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to protection of his personal rights had been violated. 42. In judgment no. 7C 818/96-81 of 11 May 2000 the Žiar nad Hronom District Court granted compensation of 500,000 Slovakian korunas to a person whose son had been killed. The court noted that the defendant had been convicted of a murder by a criminal court and that his action grossly interfered with the personal rights of the plaintiff. 43. On 30 September 2003 the Banská Bystrica District Court delivered judgment no. 14C 112/02-229. The plaintiffs, a married couple, alleged to have suffered damage of both pecuniary and non-pecuniary nature in the context of criminal proceedings against them in which they had been discharged. One of the plaintiffs, who had been dismissed from the police and detained on remand in the context of the criminal proceedings, also claimed compensation for lost income. In the above judgment the District Court ordered the Ministry of Justice to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings. The decision to grant compensation for pecuniary damage was based on the relevant provisions of the State Liability Act of 1969. The District Court further granted the plaintiffs, with reference to Article 11 et seq. of the Civil Code, 7 and 5 million Slovak korunas respectively in compensation for damage of non-pecuniary nature. The relevant part of its judgment reads as follows: “The right to protection of one’s personal rights is an individual right of any natural person. When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately. It is not even required that an unjustified interference should produce any particular consequences. It suffices that an unjustified interference was capable of affecting or violating one’s personal rights. The fact that plaintiff A cannot exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [who is an advocate] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [with their personal rights]. That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them. There is no doubt that such interference is objectively capable of causing damage. As regards both plaintiffs, it affected their professional life, their position in the society, family life and their relations with neighbours... The interference with the plaintiffs’ [personal rights] is directly linked to the criminal proceedings [against them]... It follows from the above that there has been an interference with the plaintiffs’ personal rights which, in substance, still persists and that it is related to the criminal proceedings against the plaintiffs. The criminal proceedings were carried out by the Slovak Republic through its competent authorities. The defendant is therefore obliged to compensate for damage of a non-pecuniary nature. ... compensation for damage of a non-pecuniary nature has the character of a satisfaction. The purpose of compensation granted in the form of a sum of money is to “purify” the affected person in the eyes of other persons in all spheres of life where harm was caused... The amount of compensation granted should therefore be adequate to the interference and its circumstances... It is beyond any doubt that the plaintiffs were publicly known in the district of Považská Bystrica (in view of their professional positions) and that their reputation was affected in all spheres of life. The case was taken up by the media whereby their esteem in professional life was diminished over the whole country. The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs, but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public.”