CASE OF ČERVENKA v. THE CZECH REPUBLIC
Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo
5. The applicant was born in 1956 and lives in Prague. 6. In a judgment of 25 January 2005 the Prague 4 District Court (obvodní soud), relying on Article 10 § 1 of the Civil Code, deprived the applicant of legal capacity. Based on an expert opinion and the testimony of the applicant’s father, the court concluded that the applicant was suffering from alcoholic dementia, which was a permanent mental disability, and that he was unable to perform any legal acts on his own. The applicant was represented by a guardian ad litem and was therefore not heard by the court, which found that it appeared from the expert opinion that he was unable to understand the relevance of the proceedings. For the same reason, the court dispensed with the delivery of the judgment to the applicant. 7. In a decision of 21 April 2009, which became final on 21 July 2009, the District Court appointed the Prague 11 Municipality Office (městská část) as the applicant’s public guardian (veřejný opatrovník). 8. The applicant has attempted to regain his legal capacity several times, but his requests have always been refused. On 4 March 2010, refusing another request to restore legal capacity to the applicant, the District Court banned him from lodging further requests for one year because there was no possibility of his condition changing within that period. It relied on an expert opinion of 5 January 2010, which stated, inter alia: “[the applicant] presents a picture of a chronic alcoholic in the terminal stage of alcoholism, with complete loss of control over drinking, complete lack of awareness of his illness, severe and irreversible damage to his health fully or partially caused by alcohol abuse and social and economic downfall which, in addition to his complete lack of awareness, also indicates serious personality changes objectively caused by detected brain atrophy. ... [I]t is a long-lasting disorder which cannot be completely repaired even by treatment that is fully successful. ... [L]oss of control over drinking and complete lack of awareness regarding alcohol abuse and its consequences result in a high probability of the repetition of previous relapses and, therefore, in behaviour which could, for similar reasons, pose a threat to the financial, social and personal stability of the person examined.” 9. In a judgment of 16 October 2012 the District Court, having examined an expert report and heard the expert and the applicant, decided to limit the latter’s legal capacity to act. It restricted his legal capacity so that he was not entitled to dispose of funds and conclude contracts exceeding 500 korunas (CZK) (18 euros (EUR)) per month. The court noted that according to the expert report, the applicant was suffering from mixed organic dementia up to intermediate level and with a continued lack of awareness of his state of health. In addition, he was unable to make more complex legal decisions independently. The applicant lodged appeals on 1 and 13 November 2012. 10. The Prague Municipal Court (městský soud) scheduled a hearing for 4 April 2013 and summoned the applicant. However, his lawyer was not informed about the hearing because his public guardian had refused to sign the power of attorney and so none of the courts recognised the lawyer as the applicant’s legal representative. The court subsequently cancelled the hearing and remitted the case to the District Court, which on 3 June 2013 assigned a new guardian to the applicant. The new guardian granted the power of attorney to a lawyer to represent the applicant in the proceedings on legal capacity. 11. On 8 August 2013 the Municipal Court quashed the judgment of 16 October 2012 and sent the case back to the District Court which in a judgment of 12 June 2014 decided to limit the legal capacity of the applicant, for a period of twelve months, so that he was not entitled to dispose of funds exceeding 1,500 CZK (EUR55) per week. 12. On 30 July 2015 the District Court initiated ex officio the proceedings on legal capacity and guardianship. At the same time, it ordered an expert opinion in psychiatry. It appears that the proceedings are still ongoing. 13. The applicant was admitted to the Prague-Bohnice psychiatric hospital seven times: in 2004 (for two weeks); in 2005 (for two weeks); in 2006 (for four and a half months); in 2007 (for two months); in 2008 and 2009 (for six and a half months); in 2009 (for three weeks); and during 2009 and 2010 (for thirteen months). 14. The applicant’s hospital discharge report of 11 October 2010 stated, inter alia, that he had been suffering from a mental and behavioural disorder caused by alcohol, that he was an alcoholic and that he had repeatedly experienced deliria tremens. 15. In the record of a telephone conversation between the applicant’s public guardian and a neighbour on 11 November 2011 it was noted, inter alia, that complaints about the applicant had been escalating, as he had been causing disturbance at night as a result of his excessive drinking and had been urinating on the stairs. 16. Another record of a telephone conversation between the public guardian and the applicant on 6 December 2010 stated, in particular, that the applicant had confirmed that he had not taken any of the medication prescribed to him by the psychiatrist. 17. During a conversation with the applicant’s public guardian on 10 January 2011 the applicant’s son said that his father had always kept many animals and that his treatment of them was bordering on cruelty because he did not feed them. He also allowed them in his bed, and as a result the bed was drenched and smelled foul. Moreover, the carpets and other furnishings in the flat were dirty and badly damaged. 18. On 17 January 2011 the public guardian urged the applicant not to yell at passers-by. The applicant replied that he was a psychologist and teacher, and practised communication with people in that way. 19. On 19 January 2011 Dr M.P. mentioned that the applicant was suffering from repeated alcohol abuse, alcohol-related cognitive impairment and alcoholic dementia. He was an alcoholic who did not cooperate and was unaware of his alcohol abuse. 20. On 21 January 2011 the applicant’s neighbours complained to the public guardian that the applicant was disturbing them at night, that an unbearable smell was exuding from his flat, that he had been urinating on the stairs and kept falling down when drunk, and that the situation was continuously getting worse. 21. On 31 January 2011 the public guardian received another telephone call from the applicant’s neighbour complaining about the behaviour of the applicant, who had been drunk, towards herself and her child. The neighbour said that she was afraid of him. On the same day, the applicant’s parents visited his public guardian to try to resolve the problematic situation relating to the applicant’s inappropriate behaviour. They expressed the view that the best solution would be their son’s placement in a specialised institution, such as the social care home in Letiny, as other institutions in Terezín or Sýrovice were not available. The social care home in Letiny is a private institution. 22. On the same day, the applicant, in a state of drunkenness, visited his public guardian. From the record of the visit it appears that the applicant was unable to express himself coherently. 23. In his report of 4 February 2011 the treating psychiatrist noted, in particular, that the applicant was suffering from a psychosomatic disorder, namely alcoholic dementia. 24. On 7 February 2011 the applicant’s guardian accompanied the applicant to the social care home in Letiny, a limited liability company. There she signed an agreement on the provision of residential social services to the applicant for an unlimited period of time and the applicant was admitted to the home. 25. The applicant’s guardian noted on the same day that the applicant’s parents could no longer take care of him; his mother had apparently talked to her son about his placement in the institution in advance, and after some hesitation, the applicant had agreed to be transferred there. It was noted, however, that he did not want to go to the institution, but having talked with his guardian about rehabilitation and medical care, he eventually agreed. 26. In a letter of the same date received by the District Court on 10 February 2011, the Municipal Office informed the court about the applicant’s placement in the social care home. They maintained that the placement had been necessary because he had been spending most of his money on alcohol, he had spent most of his time sitting on a bench in front of his house verbally harassing passers-by, he had been unable to dress appropriately and sometimes he had been too drunk to receive his lunch, which had been brought to his door every day. Moreover, he had been making an excessive number of visits to doctors, requesting various examinations of his brain, thumb, knee, eyes and so on. He had also been sending confusing allegations to various institutions, such as courts, ministries and animal rights organisations. 27. The applicant disagreed with his placement and contacted a number of authorities, including his public guardian. On 28 March 2011 he also called an emergency line and contacted the police, who dismissed his complaint, not finding any unlawfulness. 28. On an unspecified date the District Court telephoned the Municipal Office for more information about the applicant’s placement in the social care home. The Municipal Office answered by letter on 2 May 2011, repeating the reasons set out in its submission of 7 February 2011 and informing the District Court that the applicant had been placed there for an indefinite period as he was no longer able to live on his own. 29. On 11 February, 6 May and 1 June 2011 the applicant informed the District Court that he was being held in the social care home against his will and demanded his release. In his application to the court of 5 May 2011 he complained against his public guardian and asked that she be replaced by another person living near his domicile. The District Court did not react to any of his requests. 30. On 19 May 2011 the applicant sent a letter to the director of the social care home and to his public guardian alleging that he had been placed in the social care home involuntarily. The applicant’s guardian did not react to the letter. The director replied that given that the public guardian and the doctor had consented to his placement in the social care home, he had to remain there. 31. On 21 July 2011, after having been contacted by the applicant, a lawyer from the Mental Disability Advocacy Centre (Centrum advokacie duševně postižených) (hereinafter “the MDAC”) in Brno visited him in the social care home. The applicant signed a power of attorney authorising the lawyer to act on his behalf. On 25 July 2011 the lawyer sent a request for the applicant’s immediate release to the director of the social care home and to the public guardian. The director replied on 28 July 2011 that the applicant’s placement was legal as he had been deprived of legal capacity and his guardian had given consent to it. On 3 August 2011 the applicant received a similar answer from his public guardian, who considered the power of attorney signed by the applicant as invalid, given that he had been deprived of his legal capacity. 32. On the same date, the applicant’s lawyer requested the Plzeň-jih District Court (okresní soud) to issue a decision on the lawfulness of his client’s involuntary hospitalisation under Article 191a of the Code of Civil Procedure. As the court did not react, on 16 August 2011 the applicant’s lawyer lodged a request with the Plzeň Regional Court (krajský soud) to set a time-limit for a procedural measure under section 174a of the Courts and Judges Act (no. 6/2002). 33. From 2 to 16 August 2011 the applicant was hospitalised at the Mulačova hospital in Plzeň for planned orthopedic surgery. 34. The public guardian’s records of 17 and 18 August 2011, respectively, indicated the following: “I talked on the phone with [the senior nurse]. She stated that she would try to transfer [the applicant] to a rehabilitation institution but afterwards they do not want to take him back. She informed me about it in order to give us the possibility to look intensively for another institution.” “The director of the [social care] institution ... informed me on the phone that he had been in touch with the legal department about how to cancel the agreement and he had established that it was not possible. He is therefore sending me a letter informing me that [the applicant] is unhappy and that they want to discharge him. He stated that they were worried that [the applicant] might jeopardise the functioning of the whole institution because he lied and verbally attacked employees and constantly annoyed them by sending sms. In answer to the question what the position of the psychiatrist is..., he said that she had not allowed [the applicant] to go for walks without assistance and she considered his state of health poor.” 35. On 23 August 2011 the applicant was transferred to the Horažďovice Convalescent Home – Long-term Care Hospital (Nemocnice následné péče – Léčebna dlouhodobě nemocných). 36. On 23 August 2011 the applicant’s lawyer lodged a request with the Municipal Court through the Prague 4 District Court arguing that the guardianship court, namely the Prague 4 District Court, had been inactive in the matter of his client’s detention and had not initiated guardianship proceedings (opatrovnické řízení) seeking to solve the conflict of interests between the applicant and his public guardian. He argued that the guardianship court should have informed the relevant court, namely the Plzeň-jih District Court, about the applicant’s involuntary hospitalisation so that proceedings on its lawfulness could have been instituted. Furthermore, the guardianship court itself should have instituted proceedings to supervise the applicant’s public guardian under Articles 178 § 1 and 193 § 3 of the Code of Civil Procedure. 37. On the same day, the applicant lodged a constitutional appeal (ústavní stížnost) alleging that his rights to respect for his private life, to liberty, freedom from discrimination and a fair trial had been violated by the procedure pursued by the Municipal Office and the Prague 4 District Court on account of his detention in the social care home. He argued that the Municipal Office had violated those rights by placing him in the social care home without his consent and the District Court by remaining inactive in the face of the situation. He also requested the Constitutional Court (Ústavní soud) to issue an interim order for his release from detention. 38. On 19 September 2011 the Municipal Court decided not to undertake any action on the applicant’s request of 23 August 2011 because the power of attorney submitted by his lawyer was invalid on account of the applicant’s lack of legal capacity to sign it and because his public guardian had informed the court, on 16 September 2011, that she would not join the proceedings. 39. On 27 September 2011 the public guardian terminated the agreement with the social care home. The applicant was not informed about this in advance. The applicant, who was at that time hospitalised in the Horažďovice Convalescent Home – Long-term Care Hospital (see paragraph 35 above), was discharged from the hospital on the same day. The discharge report issued by the hospital also contained information about his mental state: “Current mental state: ... Suspicion – but in his case legitimate – indicated paranoia in respect of his guardian and her behaviour, or family members ... [His] mood reactively depressive, ... Intellect abilities [are] entirely without signs of degradation, humiliation let alone a sign of dementia! ... From the current mental state of the applicant, it does not appear that there is any need to continue limiting him in his fundamental human rights and limiting his capacity to act. Conclusion: Behaviour disorder when using alcohol – psychotic residual disorder and later on ethylic encephalopathy, dementia ... The 55 year old patient, who has a history of behavioural disorders when drinking alcohol, was admitted for rehabilitation after surgery to his right foot. ... As he repeatedly demands a review of his situation and refuses to stay in Letiny, a psychiatric consultation was carried out. The problems were discussed with his guardian ... according to whose recommendation [the applicant] told workers in Letiny, upon [their] information, his discharge is planned with home care, and psychiatric supervision is ensured. ...” 40. On 4 October 2011 the Regional Court rejected the applicant’s request of 16 August 2011, holding that his lawyer had not been authorised to lodge such a request. The applicant’s signature on the power of attorney was invalid as he had been deprived of legal capacity (see also paragraph 32 above). The court added: “Even if there were not those reasons to reject the claim, it would not be possible to grant [it]. ... It is not possible to set a time-limit to carry out an act – the issuance of a decision on the commencement of the proceedings – if that act depends on the discretion of a court which is not obliged to decide on the commencement of proceedings but is doing so on the basis of a motion. ...” 41. On 12 October 2011 the Ombudsman (Veřejný ochránce práv) issued a report in response to a letter from the applicant dated 29 April 2011. The report stated, inter alia: “The applicant was also prescribed psychiatric medication, both regular and in the event of ‘unease’ ... It appears however that the medication ‘in the event of unease’ has not yet been administered to the applicant. In answer to a question concerning medication in general, the applicant stated that before his admission to the institution, he had not taken any medication. In reply to a question as to what would happen if he refused to take the medication, he answered that he had asked this question to a male nurse, who had said that in that case the medication would be administered to him by injection. For this reason the applicant did not refuse the medication. Only on one occasion did he express the wish not to take a certain medicine and the doctor of the institution prescribed him another drug, which he had not taken before either. ... The public guardian ... made a mistake when she ‘placed’ the applicant in the institution without having previously received the approval of the guardianship court. ... If the court does not approve an act as legal, the act is void ab initio. In respect of some acts that have already been carried out, a subsequent ‘disapproval’ by the court could not lead to an effective reparation, and it is evident that [those acts] require the approval of the court before [their accomplishment] ... In my opinion, legal acts connected with the involuntary placement of an incapacitated person in a social care institution are of such character and thus require prior approval, provided that there is enough time. ... Apart from the fact that the provisions of the civil law require that the legal act – the conclusion of the contract on provision of residential social services – be approved by the court, another requirement of generally binding rules, or more precisely the commitments of the Czech Republic under international law, cannot be overlooked, i.e. Article 5 § 4 of the Convention ... ... [In the applicant’s case], in order to comply with the Convention, the Czech Republic ... guarantees ... the right to institute proceedings in which the court would speedily decide on the lawfulness of the deprivation of liberty and order the [applicant’s] release if the deprivation of liberty is unlawful. ... Accordingly, in the case of admission of a person who is deprived of legal capacity to a medical institution, which he is not allowed to leave, the detention procedure should be initiated as provided for by Article 191a of the Code of Civil Procedure, despite the possible approval of the guardian. ...” 42. On 25 October 2011 the Prague 11 Municipal Office, in reaction to the findings of the Ombudsman, requested the District Court to approve the agreement signed by the public guardian on the provision of residential social services of 7 February 2011. 43. In a judgment of 10 November 2011 the District Court approved ex post facto the agreement signed by the public guardian and the termination of the applicant’s confinement in the social care home. The reasoning merely stated that the approval of those legal acts was in accordance with the law and in the interests of the applicant. The decision became final as the guardian ad litem, the Prague 4 Municipal Office, waived its right of appeal. The applicant was not summoned to appear before the court in those proceedings, which lasted only ten minutes; nor was he informed about them. 44. On 28 November 2011 the applicant lodged a second constitutional appeal challenging the decisions of the Prague Municipal Court of 19 September 2011 and the Plzeň Regional Court of 4 October 2011, the procedural measures taken by the Prague 4 District Court and the Plzeň-jih District Court and, lastly, the practice of the Prague 11 Municipal Office. He developed, in the reasoning of the constitutional appeal, his complaints regarding the alleged interference with his rights to respect for his private life, home and correspondence during his stay in the social care home without, however, mentioning them in his final plea (žalobní petit). 45. On 28 March 2012 the Constitutional Court rejected the applicant’s first constitutional appeal. Regarding his request for an interim order, it held that as he was no longer being detained, it had no power to assess the alleged violations because they had already ceased. The same applied in respect of the procedural steps taken by the Prague 11 Municipal Office and by the Prague 4 District Court, as the District Court, in its judgment of 10 November 2011, had approved the agreement concluded with the social care home by the public guardian and the latter’s termination of the agreement. The Constitutional Court referred to a previous decision (no. IV. ÚS 1348/09) in which it had declared manifestly ill-founded a complaint that a court had not carried out a review of lawfulness under Article 191a of the Code of Civil Procedure when a legally incapacitated person had been detained with the consent of his guardian. The Constitutional Court’s decision was notified to the applicant’s lawyers on 30 March 2012. 46. In a report of 4 April 2012 by I.K., the psychiatrist treating the applicant, it is noted, inter alia, that since the applicant’s discharge from the social care home he had not been attending for regular check-ups and had refused to take any medication with the exception of hypnotics. He had been visited by a nurse who had occasionally found him drunk. According to the psychiatrist, the applicant had behaved inappropriately, the neighbours had complained about him because he shouted at them and threatened them, at night he played loud music, he was meeting with the homeless, he soiled the common premises – he poured water on them and urinated there – and he drank alcohol. The psychiatrist concluded that the applicant was dangerous to others and was not able to lead an independent life. 47. On 17 April 2012 the Constitutional Court declared inadmissible also the applicant’s second appeal. It held that the applicant had failed to challenge both decisions addressed in his constitutional appeal by lodging a plea of nullity under Article 229 § 1(c) of the Code of Civil Procedure. It added that as he was no longer detained, it was not appropriate to apply section 75(2) of the Constitutional Court Act by which it could waive the obligation to exhaust other effective remedies if the significance of the appeal extended substantially beyond the personal interests of the appellant. 48. In a letter of 4 December 2012 the Prague 11 Municipal Office, having sumarised the legal situation, stated that: “On the basis of the aforementioned documents, the public guardian considers unsubstantiated your allegation that your rights were violated on 7.2.2011 and, therefore, the filing of an action for protection of your personal rights by a lawyer of your choice ... [is found] irrelevant. For this reason, the public guardian will not conclude a contract on your legal representation in order to introduce the action for protection of your personal rights with an attorney-in-law [Ch.]. [Taking into account the judgment of 16 October 2012] and provided that your agreement with the lawyer ... will not exceed CZK 500 per month you can conclude it on your own. ...” 49. On 13 February 2013, in reply to a letter from the Government Agent, the Municipal Office informed him that the public guardian had talked to the applicant about his placement. She had also informed his family, staff of the Prague-Bohnice psychiatric hospital and his psychiatrist. 50. The Government stated that the regime in the social care home allowed patients to leave the institution either accompanied by a staff member, family member or guardian, or alone on the approval of a psychiatrist. According to the institution’s psychiatrist, the applicant never asked to leave the premises as he had problems with his knee. Visits to patients were not limited. 51. The applicant’s personal belongings were deposited in a lockable cupboard in his room. Since his arrival, he had had a mobile phone, which was repeatedly recharged. A coin-operated phone box was also accessible without any restrictions. Any post was sent to the applicant’s guardian, who always forwarded it to the addressee according to the applicant’s instructions. The applicant received pocket money on request. 52. The social care home provided accommodation, meals and health care, including care provided by specialist doctors, assistance with ordinary self-care, and assistance with personal hygiene or provision of conditions for personal hygiene. It also provided educational, training and stimulation activities, mediation of contact with the social environment, social and therapeutic activities and other services. 53. According to the applicant, the social care home provided residential social services primarily for patients with Alzheimer’s disease and dementia. Most of the patients were elderly and severely physically and mentally disabled. It was a closed institution, which he could not leave. The only possibility for outdoor activities was in a small garden with a high fence. Patients shared rooms. The applicant could not send any correspondence independently, but had to do so through employees of the home who sent some letters to his public guardian instead of to the address indicated by him, based on an assessment of whether it was official or private correspondence. Some letters that the applicant received had been opened. Furthermore, his state of health was allegedly not assessed before admission to the social care home or on his arrival. Once there, he was prescribed medication. When he refused to take it, he was threatened that it would be administered by injection. 54. According to the Government, the medication that had been prescribed to the applicant on his discharge from the Prague-Bohnice psychiatric hospital was modified by the institution’s psychiatrist on the basis of repeated examinations. The applicant’s medical check-ups performed by the psychiatrist took place on 1 March, 5 April and 31 May 2011. Moreover, his psychiatrist was informed about his health on 4 and 24 March, 9 May, 28 June and 29 July 2011. 55. From the information provided by the applicant’s psychiatrist, which was confirmed by the director of the institution, it appears that during his stay in the social care home, the applicant took the medication voluntarily. 56. On 27 March 2012 the applicant lodged a claim for damages against the State under the State Liability Act (no. 82/1998). He alleged that his rights had been violated by his public guardian on account of his unlawful detention. The Ministry of Justice rejected his claim. 57. On 30 March 2012 the applicant lodged a similar claim, arguing that the Plzeň-jih District Court and the Plzeň Regional Court had erred in not instituting proceedings to determine the lawfulness of his detention under Article 191b of the Code of Civil Procedure and that the Prague 4 District Court and the Prague Municipal Court had remained inactive despite his numerous submissions describing his detention. 58. On 27 September 2012 the Ministry of Justice rejected the applicant’s second claim, holding that under the State Liability Act, the State was liable only for damage caused either by a final unlawful decision, which had been later quashed, or by irregular official conduct. Regarding the latter, it held that the alleged shortcomings in the proceedings did not constitute irregular official conduct for which the State could be held responsible because the conduct had resulted in a decision. The former situation did not arise in the present case either, as there had been no final decision that was later quashed as illegal. Furthermore, the Ministry did not find that the applicant had suffered any damage. It considered that his own behaviour had been at the origin of the facts, because of his excessive drinking. It added that in any case the applicant’s lawyer had no right to submit those claims to the Ministry, as the applicant had been deprived of his legal capacity and a guardian had been appointed to act on his behalf. 59. On 28 September 2012, following the rejection of his claim for damages by the Ministry of Justice, the applicant brought an action against the Czech Republic seeking damages for the incorrect procedure followed by the courts. He argued in particular that the courts had refused to institute proceedings following his claims concerning his detention and that the court procedure on guardianship had been erroneous. 60. In letters of 8 April 2013 the Prague 2 District Court informed the applicant’s representatives that given that the applicant had been deprived of his legal capacity, he could not have granted them power of attorney. Accordingly, the court had decided not to accept them as the applicant’s legal representatives. On the same day, the court appointed a guardian ad litem, the Prague 2 Municipal Office, to represent the applicant. 61. In a letter of 28 June 2013 the Prague 2 Municipal Office informed the Prague 2 District Court that as the Prague 4 District Court had approved the agreement with the social care home, they would not join the proceedings for damages. 62. In a decision of 11 July 2013 the District Court discontinued the proceedings for damages on the grounds that, as the applicant was fully legally incapacitated, the power of attorney that he had given to his representatives was null and void, and that in a letter of 28 June 2013 the guardian ad litem had informed the court that it would not join the proceedings. According to the applicant, he was unaware of the court’s decision as his guardian ad litem failed to inform him. Consequently, the statutory period to file an appeal lapsed to no effect, and the decision became final.