CASE OF HADŽIMEJLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
6. The applicants were born in 1959, 1978 and 1958, respectively, and are currently in the Drin social care home (“Drin”). 7. On 23 November 2006, at the request of the Visoko Social Work Centre, the Visoko Municipal Court deprived the applicant of legal capacity. It was established that she had been diagnosed with paranoid schizophrenia and that placement in a social care home would be in her best interest. 8. On 26 December 2006 the Visoko Social Work Centre placed the applicant under the guardianship of her sister. 9. On 23 January 2007 the Visoko Social Work Centre placed the applicant in Drin in accordance with the social care legislation. 10. On 13 June 2011 the applicant lodged a constitutional appeal concerning the lawfulness of her detention. 11. On 25 April 2013 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as she had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Visoko Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. The relevant part of the decision reads: “27. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11[...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision... 28. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable of living on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus her initial deprivation of liberty was not in accordance with the Mental Health Act 2001... [T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention. ... 30. In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement... ... 32. There has been a violation of Article 5 § 1(e) of the Convention in the present case because the appellant was placed in the social care home under the Federal and Cantonal social care legislation, whereas the compulsory placement of mentally ill persons is regulated by the Mental Health Act 2001 which was not applied in this case. In view of that, her placement was not ‘lawful’. There has also been a violation of Article 5 § 4 of the Convention because the appellant’s placement and the prolongation of that placement was never examined by the competent court...” 12. On 3 June 2014 the Visoko Social Work Centre asked the Kiseljak Municipal Court to examine the necessity of the applicantʼs placement in Drin in accordance with the Mental Health Act 2001 and the Constitutional Courtʼs decision of 25 April 2013. 13. On 8 September 2014 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin. That decision became final on 26 September 2014. 14. The applicant has not yet been released from Drin. 15. At the recommendation of the Psychiatric Clinic in Sarajevo where the applicant was treated for schizophrenia, on 15 September 2004 the Vareš Social Work Centre placed him in Drin in accordance with the social care legislation. It was established that his illness rendered him incapable of living on his own and that his family circumstances did not allow proper care at home. 16. On 25 March 2005 the Visoko Municipal Court deprived the applicant of his legal capacity. 17. On 21 April 2011 the applicant was placed under the guardianship of N.G., a director of the Vareš Social Work Centre. 18. On 2 September 2011 the applicant lodged a constitutional appeal concerning the lawfulness of his detention. 19. On 25 June 2013 the Constitutional Court held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Vareš Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention and awarded him 3,000 convertible marks (BAM). The relevant part of the decision reads: “34. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11 [...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision... 35. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the social care home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable to live on his/her own and has no relatives or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately ... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus his initial deprivation of liberty had not been in accordance with the Mental Health Act 2001..[T]herefore the court concludes that the deprivation of liberty in the appellant’s case was unlawful and thus in violation of Article 5 § 1(e) of the Convention. 36... In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement... 37. Turning to the present case, the Constitutional Court notes that the appellant was placed in the social care home at the recommendation of the Psychiatric Clinic in Sarajevo...It was established that he had been diagnosed with SCH, F23, a condition which requires constant supervision and regular therapy which he cannot have at home in view of his family’s circumstances (a mother was also deprived of her legal capacity due to mental illness, a father’s whereabouts are unknown, and his sister is placed under guardianship)...The court further notes that since 2004, when the appellant was placed in the social care home, the Social Work Centre revised his placement on three occasions, at the recommendation of the relevant Ministry and with the consent of his guardian Ms N.G. However, those revisions were focused on the financial aspect of the appellant’s placement without any consideration for his health condition and a potential release. The fact that the Social Work Centre was the only domestic body which ever examined the appellant’s placement...raises issues under Article 5 §§ 1(e) and 4 of the Convention. 38. Furthemore, although under the Mental Health Act 2001 a decision about compulsory admission of mentally ill persons must be made by a court, the appellant’s case has never been examined by the competent court... 39. Accordingly, as regards “deprivation of liberty”, the placement in the social care home and the review of the lawfulness of such placement, the court concludes, in view of the facts of the case and the reasons set out in the decision no. AP 2472/11 of 31 January 2013, that there had been a violation of Article 5 §§ 1(e) and 4 of the Convention in the present case.” 20. On 25 September 2013 the applicant received BAM 3,000 awarded to him by the Constitutional Court. 21. On 29 November 2013 the Kiseljak Municipal Court concluded, on the basis of the expert medical report, that the applicantʼs current state of health did not warrant continued confinment in Drin. 22. On 18 March 2014 the Novi Travnik Cantonal Court upheld the decision of 29 November 2013 and it thus became final. 23. On 6 May 2014 the Vareš Social Work Centre informed the Visoko Municipal Court that it considered that the applicant’s continued placement in Drin was in his best interest for reasons of social protection. 24. The applicant had not yet been released from Drin. 25. In different intervals in 1997, 1998 and 1999 the applicant was treated for schizophrenia at the Psychiatric Clinic in Tuzla. 26. On 8 October 1999 the Tuzla Municipal Court deprived the applicant of his legal capacity. 27. On 8 December 1999 the Tuzla Social Work Centre placed him in Drin. 28. On 2 March 2000 the applicant was placed under the guardianship of A.B., his cousin. On 10 June 2010 he was placed under the guardianship of S.P., his sister.