CASE OF HADŽIĆ AND SULJIĆ v. BOSNIA AND HERZEGOVINA
Violation of Art. 5-1;Non-pecuniary damage - award
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
A. The facts concerning Mr Hadžić 5. The applicant was born in 1959. He is currently serving a prison sentence in Zenica Prison. 6. On 1 May 2002 the applicant killed three people. He was remanded in custody on the same day. 7. On 23 September 2002 the Tuzla Cantonal Court found the applicant guilty of manslaughter, as well as of possessing a firearm without a licence, and sentenced him to twenty-one years’ imprisonment. In view of the applicant’s diminished responsibility at the time the offences were committed, it imposed a concurrent hospital order, pursuant to Article 63 of the Criminal Code 1998 (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi). 8. On 21 February 2003 the applicant was placed in the Psychiatric Annex. 9. On 30 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina increased the prison sentence from twenty-one to twenty-four years and upheld the remainder of the first-instance judgment of 23 September 2002. 10. On 17 March 2004 the applicant lodged his first application with this Court, complaining, among other things, that his detention in the Psychiatric Annex was unlawful. On 11 October 2005 the Court struck it out of its list of cases following a friendly settlement between the parties (see Hadžić v. Bosnia and Herzegovina (dec.), no. 11123/04, 11 October 2005). The Government undertook as part of that settlement to move all patients held in the Psychiatric Annex (including the applicant) to an adequate facility by 31 December 2005 and to pay ex gratia 9,000 euros (EUR) to the applicant. The applicant, in return, waived any further claims against Bosnia and Herzegovina in respect of the matters giving rise to that application. On 27 February 2006 the Government paid the amount due, but the applicant continued to be detained in the Psychiatric Annex despite the Government’s undertaking mentioned above. 11. On 21 December 2006 the Constitutional Court of Bosnia and Herzegovina found a breach of Article 5 §§ 1 and 4 of the Convention in the applicant’s case. It held, among other things, that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients. It ordered certain general measures, such as the establishment without further delay of an adequate health care institution. Furthermore, it held that those who complained that their detention in the Psychiatric Annex was unlawful did not have an effective remedy at their disposal after 1 August 2003 other than an appeal to the Constitutional Court itself. The applicant was not awarded any compensation. 12. On 20 August 2007 the applicant instituted civil proceedings seeking damages from the State for a breach of the right to liberty and security under the Civil Obligations Act 1978. He referred to the Constitutional Court decision of 21 December 2006 mentioned above. It would appear that the case is pending before the Tuzla Cantonal Court. On 21 August 2007 the applicant instituted similar proceedings against the Federation of Bosnia and Herzegovina. It would appear that the case is pending before the Sarajevo Cantonal Court. 13. Pursuant to a proposal of the Psychiatric Annex, on 31 March 2008 the Tuzla Cantonal Court established, on the basis of a report prepared by the Sarajevo Psychiatric Hospital, that the applicant’s mental condition no longer required his confinement in that Annex. It relied on Article 63 § 2 of the Criminal Code 1998 and Article 480 § 2 of the Code of Criminal Procedure 1998 (although they were no longer in force). The applicant failed to appeal in due time. On 13 August 2008 he was transferred from the Psychiatric Annex to the general section of Zenica Prison pursuant to that decision. B. The facts concerning Mr Suljić 14. The applicant was born in 1956. 15. On 23 November 2002 the applicant killed his girlfriend. He was remanded in custody on the same day. 16. On 20 January 2003 the Tuzla Cantonal Court found the applicant guilty of manslaughter and sentenced him to eight years’ imprisonment. In view of the applicant’s diminished responsibility at the time of committing the offence, it imposed a concurrent hospital order, pursuant to Article 63 of the Criminal Code 1998 (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi). 17. On 16 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the first-instance judgment of 20 January 2003. 18. On 5 May 2003 the applicant was placed in the Psychiatric Annex. 19. At the request of the Psychiatric Annex, on 4 July 2008 the Tuzla Cantonal Court established, on the basis of a report prepared by the Sarajevo Psychiatric Hospital, that the applicant’s mental condition no longer required his confinement in that Annex. It relied on Article 63 § 2 of the Criminal Code 1998 and Article 480 § 2 of the Code of Criminal Procedure 1998 (although they were no longer in force). The applicant did not appeal. On 21 July 2008 he was transferred from the Psychiatric Annex to the general section of Zenica Prison in accordance with that decision. 20. On 28 April 2010 the Constitutional Court of Bosnia and Herzegovina found a breach of Article 5 §§ 1 and 4 of the Convention in the applicant’s case. It held, among other things, that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients. The applicant was awarded compensation of 2,000 convertible marks (BAM, approximately EUR 1,000). 21. There are two legal regimes applicable to psychiatric detention. 22. First of all, the relevant civil court can order the compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm (see sections 22(1), 29(1) and 31(1) of the Mental Health Act 2001, Zakon o zaštiti osoba sa duševnim smetnjama, published in the Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 37/01 of 15 August 2001, amendments published in OG FBH no. 40/02 of 21 August 2002). 23. Secondly, the relevant criminal court can impose a hospital order (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi) on an offender who, at the time of committing a criminal offence, was suffering from a mental disorder affecting his or her mental responsibility, if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence. However, there is an important difference in this regard between the old and new criminal legislation (the latter entered into force on 1 August 2003). While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility (such as the present applicants), it can no longer be imposed against those who have been found not guilty by reason of insanity (see Article 74 § 1 of the Criminal Code 2003, Krivični zakon Federacije Bosne i Hercegovine, published in OG FBH no. 36/03 of 29 July 2003, amendments published in OG FBH nos. 37/03 of 31 July 2003, 21/04 of 17 April 2004, 69/04 of 7 December 2004, 18/05 of 23 March 2005 and 42/10 of 21 July 2010). If a hospital order has indeed been imposed on an offender with diminished responsibility, he or she can now apply once a year to have the application of the hospital order discontinued under Article 427 of the Code of Criminal Procedure 2003 (Zakon o krivičnom postupku Federacije Bosne i Hercegovine, published in OG FBH no. 35/03 of 28 July 2003, amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004, 28/05 of 11 May 2005, 55/06 of 20 September 2006, 27/07 of 18 April 2007, 53/07 of 8 August 2007, 9/09 of 11 February 2009 and 12/10 of 15 March 2010). 24. The law of tort is regulated by the Civil Obligations Act 1978 (Zakon o obligacionim odnosima, published in Official Gazette of the Socialist Federal Republic of Yugoslavia (“OG SFRY”) no. 29/78, amendments published in OG SFRY nos. 39/85, 45/89 and 57/89, Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92 of 11 April 1992, 13/93 of 7 June 1993 and 13/94 of 9 June 1994, and OG FBH no. 29/03 of 30 June 2003). The main remedy for a tort is an action for damages, but in some cases permanent injunction can be obtained to prevent repetition of the injury (see sections 157, 199 and 200 of this Act). Section 172 of this Act prescribes, among other things, that a legal person should be liable for the torts committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions. 25. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides non-judicial preventive machinery for the protection of individuals deprived of their liberty. It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). The CPT periodically draws up reports on individual States, which are strictly confidential. Nevertheless, if a State fails to cooperate or refuses to improve the situation in the light of the CPT’s recommendations, the CPT may decide to make a public statement. The State itself may at any time request publication of the CPT’s report, together with its comments. 26. The relevant part of the report on the visit to Bosnia and Herzegovina carried out from 27 April to 9 May 2003 reads as follows: “84. Zenica Prison Forensic Psychiatric Annexe opened as a temporary accommodation for forensic psychiatric patients in 1996. It is the only closed forensic psychiatric unit on the territory of the Federation. With an official capacity of 64 beds, it is located on the first floor of Pavilion IV; at the time of the visit, it was accommodating 69 patients. All patients were admitted to the Annexe following a court order for ‘mandatory psychiatric treatment and placement in an institution of a closed type’ and had been diagnosed as suffering from chronic psychosis, acute psychotic episodes, alcohol psychoses, epilepsy or organic psycho-syndromes. Most of them had committed homicides/attempted homicides and would stay in the Annexe for 4 to 5 years (on average). 85. According to the Prison Director, himself a doctor and psychiatrist, the Forensic Psychiatric Annexe is ‘a huge problem which remains unsolved since 1996’. The Director explained that ‘this temporary facility offered conditions which are worse than the conditions for the ordinary prisoners in the other parts of the establishment’, a situation that he described as ‘absurd’. He stated that, ‘on principle, the Forensic Psychiatric Annexe should not be located within a high security prison’. ... 96. The delegation was informed that there was unanimous agreement within the psychiatric and prison system, as well as at a political level, that ‘this group of forensic psychiatric patients required hospital conditions and that the treatment and conditions in the Zenica Prison Forensic Psychiatric Annexe were not acceptable’. The delegation was further informed that the Ministry of Justice of the Federation had allocated 3,000,000 convertible marks in 2002 to allow relocation of the forensic psychiatric annexe and provision of proper facilities. However, this decision was not implemented, as no municipalities within the Federation were ready to accept such a facility on their territory. At the time of the visit, the situation was still unresolved. 97. At the final talks held in Sarajevo in May 2003, the delegation clearly indicated that ‘placing mentally disordered patients in 30-bed, overcrowded dormitories in an essentially custodial environment can no longer be tolerated’ and expressed its support for the initiative taken by the authorities in 2002 to finance the renovation and relocation programme aimed at remedying the situation, and involving the health authorities to a much greater extent. The delegation asked to receive within three months further information on this issue, including realistically achievable objectives to resolve this urgent matter. 98. On 1 October 2003, the authorities provided the following information to the CPT. After the CPT’s visit, an expert team was set up under the Ministry of Health, which carried out an inspection at Zenica Prison Forensic Psychiatric Annexe. Its findings fully confirm the observations of the CPT’s delegation (overcrowded dormitories and lack of space in general, lack of nursing staff, no adequate treatment for the patients, very poor hygiene and deficient heating, etc.). The expert team came to the conclusion that ‘conditions for patients [were] extremely inhuman and untenable’ and that measures had to be taken urgently to remedy the situation. In response to this report, the Ministry of Justice and the Ministry of Health of the Federation decided to implement the following urgent measures until a new place is found to relocate the forensic psychiatric institution: improvement of hygiene; reduction of the number of beds in the dormitories; drafting of specific house rules for the Annexe; setting up a register on cases of use of force/restraint; ‘self-defence’ training for staff. 99. The CPT welcomes the efforts made by the authorities to solve, on an urgent basis, some serious deficiencies observed during the visit of its delegation and would like to receive updated information on the progress made in this domain. However, as the authorities themselves acknowledge, this state of affairs cannot be prolonged further. The Committee therefore recommends that the authorities provide within three months a workable strategy to facilitate the relocation of the Forensic Psychiatric Annexe to a site which could offer the potential to remedy the numerous shortcomings observed by the CPT’s delegation. ...” 27. In preliminary observations on a visit to Bosnia and Herzegovina carried out from 19 to 30 March 2007, the CPT noted that although the Psychiatric Annex was less crowded than during previous visits, the physical conditions had continued to deteriorate and remained wholly unacceptable for a health care institution.