CASE OF TRAJCE STOJANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Art. 5-1-e;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
6. The applicant was born in 1973 and lives in Štip. 7. On 10 July 1998 the Štip Court of First Instance (“the trial court”) ordered an indefinite security measure against the applicant, who was a deaf mute, of “compulsory psychiatric treatment and confinement in a medical institution of a closed type” (задолжително психијатриско лекување и чување во здравствена установа од затворен тип) (“the confinement order”) for causing “serious bodily injury” and “endangering another with a dangerous implement in a fight or quarrel”. The court established that on 23 October 1995 an incident had taken place in the court building between Mr I., the applicant's father, and Mr D., as parties summoned to attend a hearing scheduled for that day. The applicant intervened in the quarrel and knocked Mr D. down. Mr D. sustained severe head injuries and a brain haemorrhage as a result of the fall and died seven days later. The applicant also hit a judge several times. He was subsequently prevented from assaulting a third person. The court found that the applicant was “slightly mentally retarded” and considered aggressive and a danger to the public, in particular villagers whom he had allegedly often assaulted. Two medical reports drawn up by three psychiatric experts confirmed that the applicant was mentally ill, and needed medical treatment in a specialised psychiatric hospital. 8. The confinement order was enforced immediately. The applicant was placed in the Negorci Hospital for Mental Diseases (hereafter “the hospital”). 9. On 28 October 1999 the hospital requested the trial court to amend the confinement order and release the applicant on condition that he undergoes compulsory psychiatric treatment. It based its proposal on the applicant's good behaviour in the past, the good relations he had established with the staff and other patients and the absence of any neurotic or psychiatric disorder since his confinement. The hospital noted that the applicant was mentally ill, which was a permanent state that could not be regarded as a disease. The public prosecutor supported the hospital's proposal. 10. In submissions of 16 June 2000, the applicant's sister requested that the trial court decide on the hospital's proposal. A petition signed by over seventy villagers, indicating that the applicant had been never dangerous and had been accepted in the village, was also attached to the request. 11. The trial court, in a decision confirmed on appeal, dismissed the hospital's proposal relying on a notification by police, according to which the applicant had left the hospital several times and his visits to the village had been perceived as a threat and a danger by the local inhabitants. The police also referred to an incident of 1 January 2001 involving the applicant and Mr D.'s son. In a court decision of 11 February 2002, confirmed on appeal, Mr D.'s son was acquitted, as having acted in self-defence, of causing grievous bodily injury to the applicant. The court also referred to another petition signed by many villagers, which allegedly had been attached to the notification. 12. On 3 April 2003 the hospital lodged with the trial court a fresh proposal for the applicant's conditional release, which was based on similar grounds to those of the previous review: good relations with the staff and other patients; no disturbance of order; mild drug therapy. The proposal was made with the stated aim of a faster and more efficient re-socialisation and reintegration of the applicant. The applicant was transferred to an open ward of the hospital. The public prosecutor supported the hospital's proposal. 13. In submissions of 25 April 2003, the applicant, who was represented by Mr Garazov, informed the court that his father intended to change residence and had consequently bought an apartment elsewhere. 14. On 24 September 2003 the trial court requested the police to make an inquiry into whether the applicant had caused problems during his stay in the village and whether he had been a danger to the local inhabitants. 15. On 20 November 2003 the trial court dismissed the hospital's proposal, relying on a police report of 13 October 2003. It stated, inter alia, that: “...the applicant left the hospital several times and went to stay with his father...the last visit was in August 2003...after his arrival in the village, he started shouting out some indistinct words...although he was noticed by the inhabitants, there were no attacks on other persons...during the four-day stay in the village, he was always with his father. His presence in the village frightened, in particular, the immediate neighbours, who protected themselves by shutting up their houses and barring them from inside. Many inhabitants said that the applicant was under the psychological influence of his father, who – when intoxicated – had often provoked him by telling lies about the death of his mother and had thus made him aggressive towards some people. Local inhabitants therefore still feared the applicant's aggression...” 16. On 6 January 2004 the applicant left the hospital without consent and remained at large until 8 June 2004, when the police returned him. 17. On 9 February 2004 the applicant complained that the trial court had not based its decision on relevant facts, arguing that the expert opinions of the hospital and the responsible medical officer who had treated him were the only evidence relevant for the court. He maintained that in case of misgivings as to the validity of the hospital's opinion, the court should have obtained an alternative medical expertise. In submissions of 31 March 2004, the public prosecutor supported the applicant's appeal and his request that the case be remitted for fresh consideration. 18. On 13 April 2004 the Štip Court of Appeal dismissed the applicant's appeal and stated that the hospital's proposal was irrelevant since it was not binding on the court. It ruled that on the basis of the results of the medical treatment it was free to decide whether the applicant was fit to be discharged from the hospital and treated on release. Lastly, it concluded that the applicant had escaped from the hospital several times and had presented a threat to the public. It was therefore too early to consider him fit for release. 19. No further annual reviews were carried out until the hospital's fresh proposal of 7 November 2008 (see paragraph 21 below). 20. Since 14 February 2007 the applicant has been placed in a semi-open ward of the hospital, where he is responsible for the maintenance and hygiene of the ward. He cannot leave the hospital at will, unless authorised by a doctor. His last unauthorised leave from the hospital dates back to 11 September 2007. The police returned him after 13 days. After that incident, a decision was taken that the applicant be allowed to leave the hospital. Between October 2007 and September 2008 the applicant was given leave on four occasions, each time lasting not more than a month. During this so-called “therapy probationary leave”, the applicant received the prescribed therapy and his father took care of him. His mental health was stable and required no special supervision. 21. On 7 November 2008 the hospital unsuccessfully applied for replacement of the confinement order with the applicant's conditional release, which was now to be accompanied by removal of his legal capacity and appointment of a guardian (старател). The latter was based on the hospital's view that the applicant's father was unfit to take proper care of him. At a public hearing held on 27 November 2008, and after consulting two doctors from the hospital and a Social Care Centre representative, the trial court found no one suitable to be appointed as the applicant's guardian, if released. No information was provided as to whether the applicant appealed against this decision. 22. The relevant provision of the Criminal Proceedings Act (“the Act”) reads as follows:  Section 483 A court which at first instance has ordered compulsory psychiatric treatment and confinement in a medical institution may discontinue the order and release the perpetrator from the medical institution of its own motion or upon a proposal lodged by the medical institution or the custodial institution and after hearing the public prosecutor. It shall so decide if, after consulting the medical officer, it finds that there is no need for medical treatment and confinement of the perpetrator in the institution. It can order his or her release on condition that he or she undergoes compulsory psychiatric treatment. 23. The relevant provisions of the Criminal Code read as follows: Article 63 Compulsory psychiatric treatment and confinement in a medical institution “(1) The court shall order the compulsory psychiatric treatment and confinement in a medical institution of a perpetrator who has committed an offence while of unsound mind or with a substantial mental deficiency if it finds that, due to that condition, he or she may reoffend and that medical treatment and confinement in such an institution is warranted to prevent him or her from doing so. (2) The court shall discontinue the measure set forth in paragraph 1 when it finds that there is no need for medical treatment and confinement of the perpetrator in the medical institution. ... (4) The court shall review the need for medical treatment and confinement in a medical institution every year.” Article 64 Compulsory psychiatric treatment on release “(1) The court shall order compulsory psychiatric treatment on release of a perpetrator who has committed an offence while of unsound mind if it finds that, due to that condition, he or she may reoffend and that medical treatment on release would be sufficient to prevent him or her from doing so. (2) The measure set forth in paragraph 1 may be imposed on an offender who has already undergone compulsory psychiatric treatment and confinement in a medical institution when, on the basis of the results of the medical treatment, the court determines that his or her treatment and confinement in a medical institution is no longer necessary...”