CASE OF N. v. ROMANIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione personae;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1959. He is currently detained at Săpoca Psychiatric Hospital, in a section of the hospital located in the municipality of Ojasca (Buzău County). 6. The applicant has been in receipt of a second-degree disability allowance since 1993. 7. On 29 January 2001, following the publication of an article in the national press and a programme broadcast on a national television channel, the police operating at Bucharest police station no. 20 initiated a criminal prosecution against the applicant. He was charged with incest and sexual corruption of his two under-age daughters, aged 15 and 16. He was alleged to have had sexual intercourse with his elder daughter and forced both his daughters to be present while he was having sexual intercourse with his wife. 8. On the same day the applicant was questioned by the police in the presence of an officially appointed lawyer regarding the charges against him, before being placed in police custody for twenty-four hours. 9. On 30 April 2001 the applicant, assisted by an officially appointed lawyer, was questioned by a prosecutor concerning the same charges. 10. On the same day the prosecution, with reference to Article 114 §§ 1 and 2 of the Penal Code (CP), ordered the applicant’s provisional detention in a psychiatric hospital with a view to conducting a medical examination to assess his capacity for discernment. The prosecution noted in that regard that a paranoid affective psychosis diagnostic had been posited on several occasions between 1994 and 1999. It stated the following: “... in the present case there is sufficient circumstantial evidence of the precarious state of health of the accused, who represents an extremely serious danger to society given that he is liable to commit further such antisocial acts.” 11. On the same day the applicant was admitted to the Alexandru Obregia Psychiatric Hospital in Bucharest. He underwent psychiatric examinations which found, inter alia, paranoid impulsive tendencies with high conflict potential. Furthermore, the applicant’s state was described as comprising irritability, suspicion, interpretative tendencies and potential aggression. 12. A forensic medical report was drawn up on 2 November 2001 establishing that the applicant suffered from chronic paranoid schizophrenia and lack of discernment. It recommended putting in place the compulsory medical treatment provided for by Article 113 CP. 13. A preliminary investigation was also instigated against the applicant for the rape of his wife. 14. The prosecution heard the applicant’s wife and two daughters. 15. By decision of 27 February 2002 the prosecution, in the absence of a medical certificate and since the applicant’s daughter had not confirmed the sexual relations with her father, ordered the closure of the criminal proceedings against the applicant for incest. Drawing on the statements of his two daughters, it also concluded that the applicant had forced them to be present while he was having sexual intercourse with his wife, thus committing offences of sexual corruption of minors, but decided to close the proceedings on that count owing to the applicant’s lack of discernment, as found in the forensic medical report of 2 November 2001 (see paragraph 12 above). The prosecution further dropped the rape charge on the grounds that the applicant’s wife had not lodged a criminal complaint against him. Lastly, it referred the case file to the competent court for confirmation of the preventive measure of medical detention. 16. By decision of 22 April 2002 Bucharest District Court 6 upheld the medical detention order. Listing the criminal charges against the applicant, the court stated the following: “In the light of the findings of the psychiatric forensic medical report that N. suffers from chronic paranoid schizophrenia and lacks discernment as regards the offences he committed, and having regard to the recommendations of the [reporting] committee that the preventive detention measure should be imposed on the accused, the court accedes to the [prosecution’s] request and, pursuant to Article 114 CP, confirms the provisional medical detention order and informs the Bucharest Health Department of the implementation of that order.” 17. The applicant did not attend the hearing, nor was he represented by a lawyer in court. 18. The decision was posted on the door to the applicant’s home and in the town hall of Bucharest District 6, where the applicant’s home was located. 19. From 30 January 2001 to 20 January 2003 the applicant was detained in the Alexandru Obregia Psychiatric Hospital. On 21 January 2003 he was transferred to the Poiana Mare Psychiatric Hospital, where he remained until 29 January 2006. The applicant was provided with a neuroleptic- and tranquilliser-based treatment. ... 32. In March 2007, after the entry into force of the amendments to the Code of Criminal Procedure (CPP) requiring periodic and automatic judicial review of the detention (see paragraph 90 below), the judge of Buzău District Court (“the delegated judge”) ordered a psychiatric forensic medical report. 33. In July 2007 the competent medical board drew up a report based on the results of an examination of the applicant, the medical documentation transmitted by the psychiatric hospital, the report by his GP, a social welfare inquiry concerning the applicant conducted on 3 May 2006, the 22 April 2002 decision of Bucharest District Court 6 and the forensic medical report of 2 November 2001. The board found that during his detention the applicant had expressed delusions of grandeur with transient psychotic relapses, had endeavoured to conceal his symptoms, had behaved in a calm, composed manner, had accepted his treatment, had refrained from stirring up trouble with the other patients and had shown little hostility during the treatment. It pointed out, however, that he had been hostile during the examination and had expressed delusional ideas of injustice and his intention to remedy the latter. It concluded that the applicant was suffering from chronic paranoid schizophrenia and that, having regard to the medical documentation, to the evolution in the patient’s condition during his detention and to the psychiatric examination in issue, the detention measure should remain in place. 34. On 15 August 2007 the delegated judge invited Buzău District Court to replace the detention measure provided for in Article 114 CP with the compulsory medical treatment measure provided for in Article 113 CP. 35. On 11 September 2007 the applicant, assisted by an officially appointed lawyer, was heard by the court. He requested his release, seconded by his lawyer. 36. By decision of the same day, Buzău District Court decided to order the applicant’s continued psychiatric detention. It reasoned as follows: “By Criminal Decision No. 588 of 22 April 2002, Bucharest District Court 6 ordered N.’s medical detention on the grounds that he had been charged with having committed the offence of incest, consisting of sexual relations with his 16-year-old daughter, in 2000, and the offence of sexual corruption on the grounds that on 21 January 2001 he had sexual intercourse with his wife in the presence of his two daughters. The psychiatric forensic medical report [of July 2007] shows that the patient suffers from chronic paranoid schizophrenia and points to the advisability of maintaining the preventive detention measure laid down in Article 114 CP. Having regard to the foregoing, the court ... decides to maintain the medical detention measure (Article 114 CP) imposed on patient N.” 37. The applicant took cognisance of that decision in summer 2008, when he underwent a further forensic medical examination. He appealed. 38. By final decision of 19 December 2008 Buzău County Court, referring to the reasoning of the Court of First Instance, dismissed the appeal as manifestly ill-founded after having heard the applicant, assisted by an officially appointed lawyer. 39. The applicant’s detention measure was made subject to several judicial reviews by Buzău District Court and Buzău County Court. It transpires from the decisions adopted, of which the Court has copies, that the applicant was heard by both courts during the different sets of proceedings. 40. He was assisted by various officially appointed lawyers, who, in the proceedings completed before 2016, had confined themselves to referring to the findings of the forensic medical assessments carried out, and had either left it to the discretion of the courts whether or not to maintain the measure or objected to the lifting thereof. 41. Apart from the decisions adopted after 2015, the case file does not indicate whether the prior decisions had been served on the applicant. 42. According to the forensic medical reports drawn up after each review, the applicant, who had not fully acknowledged the fact of his mental illness, had been calm, had not refused his treatment and had refrained from causing trouble with the other patients. On the other hand, the reports stated that he had vehemently denied having committed the criminal offences with which he had been charged, claiming that his former wife had been plotting against him. 43. By decision of 13 October 2008 Buzău District Court maintained the detention measure in respect of the applicant. The court referred to the 22 April 2002 decision and to a forensic medical report drawn up following an examination of the applicant in May 2008, which had recommended maintaining the measure. On 9 January 2009, on appeal from the applicant, Buzău County Court upheld that decision. 44. By decision of 18 February 2010 Buzău District Court dismissed a request submitted by the applicant for the lifting of the detention measure. The court referred to a forensic medical report drawn up after an examination of the applicant the same month, which had recommended maintaining the measure and described the applicant’s delusional ideas concerning the setting up of a new State, his lack of feasible future plans and the fact that he had not fully accepted his drug therapy. 45. By decision of 1 April 2010 Buzău District Court maintained the detention measure in respect of the applicant. It referred to the decision of 22 April 2002 to a forensic medical report drawn up after an examination of the applicant in December 2009, insofar as it recommended maintaining the measure and described the applicant’s delusional ideas concerning the setting up of a new State and his lack of realistic future plans. 46. Furthermore, although this aspect was not mentioned by the court, it transpires from that report that the applicant’s GP had noted an erotomaniac obsession with his former wife, which had indicated a total incapacity for social reintegration and would most likely have triggered conflicts or unforeseeable, potentially dangerous situations had he returned to the apartment where he had lived with his family. The report further noted that the applicant’s friend, who had attended most of the medical boards’ meetings, had come down emphatically in favour of the applicant’s release, claiming that he would accommodate him indefinitely in the apartment which he shared with his mother. However, the assessment board doubted the reality of such support proffered by someone who was himself suffering from psychiatric problems. On the other hand, the report mentioned that the applicant had been plainly rejected by his daughters and his former wife, and that despite the rejection by his former wife and the fact that he himself considered that his detention was the result of scheming on her part, he intended to get back together with her if he was released. 47. By decision of 22 April 2010 the Buzău Court of First Instance dismissed the applicant’s second application for release on the grounds that its decision of 18 February 2010 had meanwhile become final and was therefore res judicata. During the proceedings a forensic medical report had been drawn up on 9 March 2010, reaching conclusions similar to the findings of the report submitted in December 2009 (see paragraph 45 above). 48. In November 2010, May and November 2011 and April 2012 the delegated judge requested the Buzău Institute of Forensic Medicine to carry out psychiatric assessments with a view to periodic reviews of the need to maintain the applicant’s psychiatric detention. 49. The Institute of Forensic Medicine examined the applicant on the aforementioned dates but did not draw up or forward its reports until November 2013. The reports confirmed the diagnosis of the applicant’s condition and proposed maintaining the detention measure. 50. By four separate decisions adopted on 17 and 19 December 2013, the Court of First Instance, citing the case-law of the Court in matters of detention of persons suffering from mental disorders, maintained the detention measure. It referred to the findings of the above-mentioned forensic medical reports. In its decision of 17 December 2013 the court further had regard to a forensic medical report drawn up following an examination of the applicant carried out a few days previously, in December 2013. Furthermore, it referred, broadly, to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”, and concluded that the criteria set out in Article 434 § 1 CPP had been satisfied. 51. By three separate decisions adopted on 4 February 2014, Buzău District Court maintained the applicant’s detention measure on the basis of three psychiatric forensic medical reports drawn up following examinations of the applicant in November 2012, May 2013 and November 2013. The Court has not received copies of those reports and decisions. 52. On 1 July 2014 Săpoca Psychiatric Hospital applied to the courts to declare the applicant incapable and place him under guardianship (see paragraph 77 et seq. below for the conduct of the related proceedings). 53. By decision of 19 February 2015, citing the Court’s case-law in matters of detention of persons suffering from mental disorders, Buzău District Court maintained the detention measure in respect of the applicant. It referred to a forensic medical report drawn up after an examination of the applicant in September 2014, which recommended maintaining the measure and referred to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”. 54. The operative part of the decision was served on the applicant on 26 February 2015. 55. In April 2015 the applicant appealed to the Judicial Inspection Board of the Higher Council of the Judiciary against the alleged practice of Buzău District Court of conducting retrospective reviews of the need to maintain the detention measure. By decision of 15 June 2015 the Judicial Inspection Board dropped the applicant’s complaint. It confirmed the existence of the practice criticised by the applicant, but pointed out that it had been caused by the medical authorities’ delay in forwarding their expert reports and not in any breach by the judges of their attributions. 56. On 3 September 2015 the delegated judge requested the Buzău Institute of Forensic Medicine to conduct a further psychiatric expert assessment with a view to periodically reviewing the need to maintain the applicant’s psychiatric detention. The applicant filed a separate action seeking the replacement of the detention measure with a compulsory medical treatment measure. 57. On 23 September 2015 the Forensic Medical Board also examined the applicant. The applicant’s lawyer representing him in the present application before the Court sent a reasoned letter to the Board strongly advocating the replacement of the measure implemented in respect of his client. 58. On 1 October 2015 the Board drew up its forensic medical report recommending the replacement of the detention measure with a compulsory medical treatment measure. It emphasised that the persistence of the applicant’s delusional ideas concerning the setting up of a “new State” and his lack of social and family support, a factor conducive to social reintegration, supervision of his medical treatment and the management of the applicant’s daily needs relating to the purported “new State”, had justified maintaining the detention up until then. It noted that the applicant had not been aggressive to others or to himself during his detention. In that context, it welcomed the steps taken by Săpoca Hospital to place the applicant under guardianship, which it considered appropriate in the perspective of his release, given that the applicant had been rejected by his family (his brother, sister, former wife and daughters). Finally, the Board recommended that the social welfare services of the applicant’s district of residence should be informed that they had to take the necessary action with a view to releasing him. 59. On 22 October 2015 Buzău District Court, which was responsible for the review, ordered a fresh forensic medical report from the National Institute of Forensic Medicine (IFM) in Bucharest. 60. On 10 November 2015 the applicant underwent a medical examination at the IFM. 61. On 12 April 2016 the IFM submitted its expert report, which stated, in particular, that: – the applicant was suffering from chronic delusional disorder with no prospect of improvement, but rather with future aggravation of the illness due to aging; – the illness as manifested in the applicant did not point to any risk of a danger to society, but the lack of feasible plans for the future foreshadowed future conflicts, a risk of advanced social deterioration and the impossibility of monitoring the evolution of his illness; – the applicant lacked any social support from his family or other persons of trust. Under those conditions, the forensic medical board pointed out that the case presented a genuine psychiatric and deontological dilemma. Indeed, it considered that although, from the psychiatric point of view, the applicant could be released subject to compulsory medical treatment on the basis of Article 109 CP, that measure was inconceivable in the absence of social support. Consequently, it proposed provisionally maintaining the detention until the social welfare services could transfer the applicant to a specialised institution capable of providing him with appropriate living conditions and treatment. 62. By decision of 27 May 2016 the Buzău Court of First Instance, referring to the findings of the 12 April 2016 forensic medical rapport (see paragraph 61 above), ordered the maintenance of the detention measure. 63. The applicant appealed to Buzău District Court against that decision. He was represented by an officially appointed lawyer, who argued that the applicant’s wishes should be complied with. Questioned by the court, the applicant stated that he would live with his former wife and one of his daughters in their apartment. He added that he had a retirement pension. 64. By judgment of 29 August 2016 Buzău County Court upheld the 27 May 2016 decision. It held as follows: “Given the absence of improvement in the patient’s state of health and the fact that the members of his family cannot monitor his continued medical treatment, and having regard to the nature of the charges against him which had resulted in his medical detention, family members against whom [the applicant] has committed antisocial acts cannot be expected to cohabit with him. Nevertheless, the director of the establishment [where the applicant is detained] must inform the social welfare services responsible for transferring [the applicant] to a specialised institution capable of providing proper living conditions and treatment.” 65. On 6 September 2016 the Director of Săpoca Hospital invited the Directorate General of Social Assistance and Child Welfare (“DGASPC”) in Bucharest District 6 to adopt welfare measures in respect of the applicant pursuant to the instructions set out in the forensic medical report of 12 April 2016. 66. By letter of 29 September 2016 the DGASPC replied that the applicant’s former wife had informed it that she did not intend to be involved in any way in the process leading up to the applicant’s release. Furthermore, the DGASPC pointed out that it had contacted the social welfare services in the county of residence of the applicant’s sister with an eye to his possible placement with her. It also stated that the only centre in Bucharest District 6 which took in persons suffering from neuropsychiatric disorders could not admit the applicant owing to a lack of available places. Finally, it explained that it had also unsuccessfully attempted to contact other specialised and residential centres. 67. On 15 November 2016 the Director of Săpoca Hospital contacted the municipality of Unguriu, which had meanwhile been assigned the guardianship of the applicant .... The Director informed the municipal authorities the implementation of the preventive detention measure was temporary, and that they were required to act in the interests of the applicant, particularly with a view to his possible placement in a specialised institution after his release. 68. On 21 November 2016 Unguriu municipality replied that the guardianship order was not yet final and that it therefore could not act in respect of the applicant. 69. On 12 September 2016 the applicant underwent a further forensic medical examination. 70. The forensic medical report drawn up on 25 January 2017 recommended replacing the detention measure with a compulsory medical treatment order in view of the applicant’s “low level of dangerousness (while on treatment), compliance with the rules, absence of incidents, [and] the lengthy period of supervision”. The report mentioned in particular: – the existence of a single, strange and systematic delusionary theme concerning the creation of a “united Somali State”, which delusion did not however alter his compliance with hospital rules; – lack of conflict situations and of incidents pointing to potentially aggressive behaviour; – proper therapeutic cooperation during detention, despite his purely formal acquiescence in the reality of his illness and need for treatment; – absence of antisocial precedents – apart from the acts noted during his placement in detention – or consumption of psychoactive substances (drugs, alcohol); – negative effect of the extension of detention for social reasons on the development of the applicant’s illness and physiological state, and – the guardianship order. The report nevertheless emphasised the risk of decompensation of the illness, involving possible negative social consequences should the aftercare provided to the applicant by the body assigned guardianship prove inadequate. 71. On 21 February 2017 the applicant was heard by Buzău District Court. He was represented by an officially appointed lawyer, who advocated replacing the detention measure. 72. By final decision given on the same day, Buzău District Court ordered the replacement of the detention measure with a compulsory treatment order until the applicant had made a full recovery. It referred to the forensic medical report of 25 January 2017 (see paragraph 70 above) and to the “aim of the preventive measures, which was to put an end to a situation of danger and prevent the perpetration of acts punishable under criminal law”. 73. On 7 March 2017 the applicant asked to remain in psychiatric hospital until his social situation had been settled. 74. On 8 March 2017 the lawyer representing the applicant before the Court sent a letter to Săpoca Hospital recommending, in the framework of enforcement of the decision of 21 February 2017, the applicant’s ultimate reintegration into society rather than his placement in a residential centre. He emphasised that releasing the applicant without adequate support would condemn him to vagrancy, destitution and the deterioration of his physical and mental health. Lastly, he requested the setting up of an interdisciplinary commission responsible for identifying the action to be taken on the applicant, on the model of the efforts expended in other countries to deinstitutionalise persons in medical detention. 75. On 9 March 2017 the applicant was transferred to another section of the same hospital for persons suffering from chronic illnesses. 76. On 14 March 2017 the Director of Săpoca Hospital invited la DGASPC to implement assistance measures in respect of the applicant pursuant to the final decision ordering the replacement of the detention measure. It also attempted, unsuccessfully, to contact two foundations in Bucharest for the same purpose. ...