CASE OF LIUIZA v. LITHUANIA
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
5. The applicant was born in 1981 and lives in Rokiškis. He suffers from hebephrenic schizophrenia. 6. In 1998, the Kaunas City District Court established that the applicant had committed six thefts from apartments while in a state of criminal irresponsibility. He was relieved from serving his sentence and placed in a psychiatric hospital for “general observation” (atidavimas į psichiatrinę ligoninę bendrojo stebėjimo sąlygomis). 7. On 23 April 2004 the Vilnius City First District Court found that the applicant, who had in the meantime been released, had been involved in several more robberies. The medical experts testified in court that the applicant was suffering from hebephrenic schizophrenia and recommended that he be treated in a psychiatric hospital under general observation. On the court’s order, the applicant was placed under the above regime. 8. On 26 May 2004 the applicant ran away from the psychiatric hospital. 9. In June 2004 a pre-trial investigation was opened in respect of thefts committed earlier that month by a group of people. 10. On 15 June 2004 the applicant was apprehended and detained by the police. He presented himself under the false name of Mr Linas Jatkonis. The temporary arrest record states that “the applicant was suspected of having committed a crime enumerated in Article 178 § 2 of the Criminal Code [theft]”. The applicant signed the record without any further remarks. As it transpires from the investigator’s report of the same day, the applicant asked the authorities not to inform his relatives about his arrest. 11. On 17 June 2004 the applicant was questioned by a police investigator in connection with the thefts. The applicant was served with a “notice of suspicion” (pranešimas apie įtarimą), where multiple episodes of theft attributed to him were explained on half a page. The document listed each single allegedly stolen item, its value and owner. The time and location of the crimes were also mentioned. The applicant did not have his passport with him, maintained his false identity and did not confess to the thefts. The lawyer for the applicant, V.B., was present at the questioning. In the record of his questioning, which the applicant signed, he wrote “I understand the charges against me. I do not confess”. 12. At a hearing of 17 June 2004 at the Jonava District Court, the applicant continued to present himself as Mr Linas Jatkonis. The judge explained the applicant that he was suspected of thefts but the applicant did not confess to having committed them. The court granted the prosecutor’s request that the applicant be detained for a period of ten days, on the ground that he might evade investigation and influence witnesses. The court noted that the applicant did not have a job or source of income and that he was suspected of a rather serious crime. The applicant’s lawyer was also present at that hearing. 13. Later on, and on the basis of the applicant’s fingerprints, the authorities established that the applicant’s true name was Mr Laimutis Liuiza. 14. At a hearing on 25 June 2004 at the Jonava District Court, the applicant confessed that he had earlier lied about his true identity. At the request of a prosecutor, the court extended the applicant’s pre-trial detention by two months. The pre-trial detention was further extended by court orders of 25 August, 24 September and 25 October 2004, where the court noted, inter alia, that the applicant was suspected of having committed “a crime of medium severity” (apysunkį nusikaltimą), had been in a possession of an unauthorised firearm and had disguised his true identity at the beginning of the criminal investigation. 15. By a ruling of 5 August 2004 the Jonava District Court, at the request of a prosecutor, ordered a forensic medical examination of the applicant. The court noted that the applicant had a history of mental illness. It was important to establish whether he could stand trial. The court also ordered the experts from the Žiegždriai Psychiatric Hospital, where the applicant had been treated a number of times, to determine “what medical measures would be appropriate” in respect of the applicant. The following day the applicant was transferred to that hospital. 16. The applicant challenged the appointment of the experts of the Žiegždriai Psychiatric Hospital to examine him. He submitted that earlier he had had conflicts with the administration of that hospital. However, on 24 August 2004 the Jonava district prosecutor dismissed the applicant’s claim that the experts of the Žiegždriai Psychiatric Hospital were biased as unfounded. 17. When questioned by an investigator on 25 August 2004 and in the presence of his lawyer V.B., the applicant partly confessed to having fraudulently used a bank card. He denied the charges of theft and unlawful possession of a firearm. On the same day the investigator informed the applicant in writing that he was suspected of theft, fraud and unlawful possession of a firearm. The applicant signed the document (i.e. the notice of suspicion). 18. On 10 September 2004 the psychiatrists from Žiegždriai Psychiatric Hospital concluded that the applicant “was not able to understand the actions taken within the framework of the pre-trial investigation and no investigative actions could be carried out with his participation”. The doctors deemed that the applicant was thus unfit to stand trial and that it was appropriate to keep him under “strict observation in Rokiškis Psychiatric Hospital”. In report no. 354 the doctors noted that the applicant had already been treated in psychiatric hospitals on six occasions. In particular, in 1997-1998 he had been treated in Žiegždriai Psychiatric Hospital after a court had established that he had committed several thefts. Later on the applicant had been released; however, subsequent observations revealed unpredictable behaviour. The applicant’s mental state would often worsen. When not in in-patient care he would not visit the doctors or take medicine. In January 2004, and in connection with the [fresh] criminal proceedings, the applicant had been placed in Lukiškės prison hospital, where the diagnosis of hebephrenic schizophrenia had been confirmed. The psychiatrists also noted that at the time of their examination the applicant did not demonstrate a negative view of his illness or the [criminal] acts; he was often antisocial. 19. On 28 October 2004 the Jonava District Court ordered the applicant’s committal to psychiatric care under “strict observation” (stebėjimas ir gydymas griežto stebėjimo sąlygomis). The detention was ordered until the end of the criminal proceedings against him, which were expected to be terminated on account of the application of compulsory medical measures in respect of the applicant. The court relied on the conclusions of report no. 354 compiled by the medical experts. 20. On 4 November 2004 the applicant was placed in the Rokiškis Psychiatric Hospital. 21. As it transpires from the notice of suspicion provided by the Government, on 17 January 2005 the applicant was informed of and charged with theft, unlawful possession of a firearm and fraudulent use of a bank card. The facts were described in two full pages. The applicant did not sign the document; however, it bears the signature of his lawyer, V.B. 22. On 6 April 2005 another lawyer, A.V., was appointed to represent the applicant. 23. On 20 July 2005 the Jonava District Court received a written response from the Rokiškis Psychiatric Hospital to that court’s inquiry of 7 July into the applicant’s mental state. The doctors’ recommendation was that the applicant be held under strict observation, because he was a threat to others and lacked critical thinking. 24. The applicant’s psychiatric confinement under strict observation was extended – pending trial – by the Jonava District Court on 6 April 2005 and 21 September 2005. The court relied on the Rokiškis Psychiatric Hospital doctors’ opinion that the applicant could not think clearly, was aggressive and habitually wrote complaints about the doctors and law-enforcement officers. The court also noted that the applicant was charged, inter alia, with unlawful possession of a firearm, and stated that “there was no evidence that [psychiatric confinement under strict observation] should not be applied”. Officially-appointed defence counsel was present at the hearings. 25. On 16 January 2006 the applicant lodged a complaint before the Kaunas Regional Court, alleging that the experts had been biased and that report no. 354 was flawed. However, the court dismissed the complaint as unsubstantiated. 26. On 27 January 2006 the Jonava District Court found that the applicant had been in possession of an unauthorised gun, and had been involved in several episodes of theft and unauthorised payment with a bank card belonging to another person. In setting out its reasons the court relied on witness testimonies, material evidence and expert reports. Expert S.Š., one of the four experts who had signed report no. 354, testified in court that at the time the crimes were committed the applicant had been suffering from hebephrenic schizophrenia and could not understand or control his actions. She deemed it appropriate that the applicant be placed in the Rokiškis Psychiatric Hospital under strict observation. On the basis of that testimony and the conclusions of report no. 354, the court held that the applicant had committed those offences while in a state of lacking criminal responsibility and relieved him from serving his criminal sentence. In accordance with Article 98 of the Criminal Code, the court ordered that the applicant be confined in the Rokiškis Psychiatric Hospital for observation and treatment under strict conditions. The applicant was not present before the court, but was represented by officially-appointed defence counsel. 27. The applicant appealed, arguing that a new expert examination of his mental state was necessary and that the regime of strict observation was too severe a measure, given that he had been charged only in connection with crimes which were not particularly serious. The applicant also confessed to the appellate court that he had fraudulently used another person’s bank card twice, but wrote that he regretted that. He denied having committed the other criminal acts. 28. In a report of 23 February 2006 the experts from the Rokiškis Psychiatric Hospital concluded that the applicant had behavioural problems. In particular, he was egocentric, always considered himself right in every situation, and was uncritical of the criminal acts he was charged with. He was also angry, agitated and would terrorise other patients and take their pre-paid telephone cards from them. The applicant also threatened retribution against prosecutors and judges. The doctors also noted that on 12 April 2005 the applicant had attacked a nurse. The doctors recommended that the applicant be treated in a psychiatric hospital under strict observation. 29. On 16 March 2006 the Rokiškis District Court extended the applicant’s confinement until the decision of the Jonava District Court of 27 January 2006 came into force. It noted that the applicant still represented a threat to others. The applicant appealed against that measure, requesting that the conditions of his pre-trial confinement be changed. However, his action was later dismissed as unsubstantiated by the Panevėžys Regional Court. The court noted that there were no procedural irregularities in the detention order. 30. On 6 April 2006 the Kaunas Regional Court dismissed the applicant’s appeal in respect of the criminal charges against him. The applicant’s lawyer was present at the hearing. The court held that there was no reason to request a fresh expert examination as to the applicant’s mental health. Expert report no. 354 was based on long-term observation of him, and the diagnosis of schizophrenia had already been established in 1998. In the court’s view, the expert who was questioned at the appellate court hearing also did not say anything that could cast doubt on the reliability of that report. 31. The Kaunas Regional Court also dismissed the applicant’s plea that a milder regime at a psychiatric hospital should be applied to him. Whilst acknowledging that the crimes the applicant had been charged with were not particularly grave, the court nonetheless held that it was appropriate to place the applicant under strict observation because of his aggressive behaviour, as attested by the expert, expert report no. 354 and the data provided by the Rokiškis Psychiatric Hospital. The appellate court lastly observed that the regime could always be varied, provided the applicant’s health condition and behaviour ameliorated. 32. On 14 September 2006 the Rokiškis District Court extended the applicant’s placement under strict observation. In setting out its reasons, the court relied on the report by the Rokiškis Psychiatric Hospital of 24 August 2006, to the effect that the applicant suffered from hebephrenic schizophrenia. He was still unstable and uncritical of his earlier behaviour as well as remained dangerous to others. The applicant’s lawyer was present at the hearing and did not object to the recommendation by the hospital. 33. By a ruling of 16 January 2007 the applicant’s appeal on points of law was dismissed. The Supreme Court shared the view of the appellate court to the effect that it was necessary to keep the applicant under strict observation owing to his state of mind and his behaviour; there was no doubt as to the appropriateness of that regime. The Supreme Court also observed that, in accordance with Article 98 § 6 of the Criminal Code, a court should assess the appropriateness of the compulsory medical measures every six months (see “Relevant domestic law” below). Moreover, pursuant to Article 405 of the Code of Criminal Procedure, it was the court of a person’s place of residence which decided such questions. It followed that the Supreme Court did not have jurisdiction to change the applicant’s hospitalisation regime. The applicant’s lawyer took part in the hearing. 34. On 26 March 2007 the Rokiškis District Court extended the applicant’s in-patient treatment under strict observation. It relied on the report by the doctors of the Rokiškis Psychiatric Hospital of 1 March 2007. The report read that the applicant suffered from hebephrenic schizophrenia, his behaviour was unpredictable and unstable. The applicant was constantly threatening to hang himself or to kill himself with a knife. The applicant’s lawyer took part in the hearing and did not oppose the measure. 35. On 19 September 2007 the Rokiškis District Court again extended the applicant’s in-patient treatment under strict observation. The court based its decision on a psychiatrists’ report dated 30 August 2007 attesting to the destructive behaviour of the applicant. His lawyer was present at the hearing and requested that a milder regime, “increased observation” (sustiprinto stebėjimo sąlygos), be applied to his client. The applicant was present when his appeal was examined and dismissed as unfounded by a higher court. 36. On the basis of a ruling of 31 March 2008 by the Rokiškis District Court, the applicant was placed under the increased observation regime. The court relied on a psychiatrists’ report dated 28 February 2008, which stated that the applicant’s mental health had improved to a certain extent. 37. By a ruling of 1 October 2008, the Rokiškis District Court granted a request by the Rokiškis Psychiatric Hospital that a milder measure, the “general observation” regime (bendro stebėjimo sąlygos), be applied to the applicant. The court noted the psychiatrists’ conclusion to the effect that the applicant’s mental state had improved, that he had started planning his future, and was critical of the criminal acts he had committed. 38. On 18 May 2009 the Rokiškis District Court changed the applicant’s hospitalisation regime to one of “increased observation”. The court relied on a doctors’ report that the applicant was argumentative and behaved aggressively towards other patients. Furthermore, the stricter regime was justified because of four incidents that had taken place in the reference period. In particular, since 18 November 2008 the applicant had attempted to regurgitate his prescribed medicine, threatened another patient with physical violence, pushed another patient out of the smoking room and grabbed yet another patient by the throat in the canteen. According to the doctors’ report, there was a tendency for the applicant’s violent behaviour to increase. 39. On 19 June 2010 the Rokiškis District Court extended the applicant’s detention under increased observation, on the basis of a doctors’ report of 13 May 2010 according to which the applicant continued to show aggression towards others. That ruling was upheld by a higher court. 40. The Criminal Code, insofar as relevant to this case, provides as follows: “1. A person shall be considered legally incapacitated where, at the time of commission of an act forbidden under this Code, he was unable to understand the dangerous nature of the act or to control his behaviour as a result of a mental disorder. 2. A person found legally incapacitated by a court shall not be held liable under this Code for having committed a dangerous act. The court may order that compulsory medical treatment as provided for in Article 98 of this Code be applied.” “1. Persons who are recognised by a court as being legally incapacitated or of diminished capacity as well as persons who, after committing a criminal act or having received a penalty, develop a mental disorder rendering them incapable of understanding the nature of their actions or controlling them may be subject to a court order for the following compulsory medical treatment measures to be applied: 1) out-patient observation under the conditions of primary mental health care; 2) in-patient treatment under general observation at a specialised mental health care establishment; 3) in-patient treatment under increased observation at a specialised mental health care establishment; 4) in-patient treatment under strict observation at a specialised mental health care establishment. 2. A court shall order out-patient observation where it is not necessary to subject the person in question to observation and in-patient treatment due to the dangerousness of the committed act and his mental state, or where the person may continue out-patient treatment after his mental state improves following in-patient treatment. 3. A court shall order in-patient treatment under general observation where a person needs to be under observation and undergo treatment at a specialised in-patient treatment establishment due to a mental disorder. 4. A court shall order in-patient treatment under increased observation at a specialist establishment where a person has committed a dangerous act and has a mental disorder warranting such a measure. 5. A court shall order in-patient treatment under strict observation at a specialist establishment where a person has made an attempt on a person’s life or health and is particularly dangerous to those around him due to a mental disorder. 6. A court shall not set any period of time for compulsory medical treatment. It shall be applied until the person is cured or his mental state improves and he no longer poses a threat to others. At least once every six months, a court must decide, on the basis of a report by a health-care establishment, on the extension of compulsory medical treatment, change of type thereof or discontinuation thereof. 7. Where it is not necessary to subject a person to compulsory medical treatment, or where a court orders that such treatment be discontinued, the person may be transferred by the court into the custody or guardianship of his relatives or other persons and may concurrently be subject to medical observation.” 41. The Code of Criminal Procedure provides: “1. Where during the investigation or hearing of a criminal case there is a need for a medical or psychiatric expert examination of a suspect, he or she shall be committed by a court decision to the examining institution before a medical report is submitted to a prosecutor or the court. The time spent at the institution shall be included in the detention term. 2. If a psychiatric expert establishes that the suspect, because of his or her mental disorder, may be dangerous to the public, the court may order extension of his or her stay at the examining institution or the suspect may be transferred to another institution until the court decides upon the issue of employing coercive medical measures. 3. A suspect shall be committed to an examining institution and his period of stay at the institution shall be determined and extended following the same procedure for ordering, extending or appealing against detention. 4. During the pre-trial investigation the detained suspect shall be committed to an examining institution by the decision of a prosecutor. 5. An accused may also be committed to an examining institution.” 42. In accordance with Article 405 of the Code of Criminal Procedure, the court shall at least once every six months determine the issue regarding the extension of the maximum period of application of the compulsory medical treatment measure, changing the type of measure or discontinuing its application. A representative of the medical institution that submitted a report about the appropriateness of one or another measure must take part in the hearing. The court may also request that the hospitalised person be present at the hearing, unless his mental state does not allow for it. 43. Article 7 of the Law on Mental Health Care provides that hospitalised patients have a right to communicate with others.