V.K. v. RUSSIA - 9139/08 (Judgment : Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)) [2017] ECHR 309 (04 April 2017)

In the case of V.K. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Helena Jäderblom, President,
          Branko Lubarda,
          Luis López Guerra,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 14 March 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 9139/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr V.K. (“the applicant”), on 1 February 2008.

2. The applicant was represented by Mr D. Bartenev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged that his involuntary placement in a psychiatric facility had been unlawful under Article 5 § 1 of the Convention due to the failure of the national authorities to meet the substantive requirements of that provision, and under Article 5 § 4 of the Convention because of procedural defects in the judicial authorisation of his admission to hospital.

4. On 11 March 2015 the application was communicated to the Government.

5. On 8 November 2016 the Court decided that the applicant’s name is not to be disclosed (Rule 47 § 4 of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1946 and lives in St Petersburg.

7. According to the applicant’s medical history he has suffered from various mental conditions since 1979 and has been admitted to hospital and treated in various psychiatric facilities several times. The applicant’s records contain information on alcohol abuse, suicide attempts, threats of violence against neighbours and medical professionals, and about a number of organic, psychiatric and personality disorders, including psychosis and paranoia.

8. Between 1998 and 2007 the applicant was taken to hospital at least six times following suicide attempts, alcohol-induced paranoia, claims of unspecified murder threats, claims about explosives planted in various public places and threats to neighbours that he would blow up a petrol canister.

9. According to a report issued on 29 March 2007 by the local ambulance service the applicant called for emergency assistance at his home twelve times in March 2007 (five times on 28 March 2007 alone). On each occasion there was no apparent reason for the call. The applicant behaved aggressively towards medical personnel, made sexual advances to female doctors and consumed alcohol in their presence. The service requested a police escort for further visits to his address. They stated that visits to the applicant meant there were delays in providing assistance to people who were in genuinely life-threatening situations and presented a danger to ambulance staff.

10. According to a police report of 2 April 2007 the applicant contacted the police three times in two days alleging that nomadic tribes had attacked him, that he had found an unexploded Second World War shell, and that explosives had been placed at an industrial facility. The applicant’s alerts were acted upon and found to be groundless.

11. On 3 April 2007 the applicant was admitted without his consent to St Petersburg Psychiatric Hospital no. 3 (Психиатрическая больница № 3 г. Санкт-Петербурга) (“the hospital”). The grounds for his admission were repeated, groundless telephone calls to the police about the presence of explosives at an industrial facility, a series of calls to the emergency medical services with offers of sexual services to female doctors, as well as threats of violence against ambulance staff. The applicant refused to be treated or admitted to hospital voluntarily.

12. On the same day a panel composed of the hospital’s resident psychiatrists examined the applicant and his medical history and diagnosed him with an organic mental disorder coupled with a psychiatric and paranoid personality disorder. The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the likely deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The relevant parts of the panel’s report read as follows:

“The patient had a habit of intoxicating himself heavily with alcohol, and suffered from a cranial trauma. Psychiatric disorders since 1979. Clinical history [shows] behavioural problems including affective instability, querulous ideas about his own relevance and persecution amounting to delusions. [He] has been frequently treated in psychiatric facilities owing to aggressive and auto-aggressive habits in the context of acute morbid emotional experiences. Admissions to hospital were, as a rule, ‘involuntary’.

In the course of clinical development the organic defects have become predominant manifesting themselves through circumstantiality, a coarsening of emotions, and the exacerbation of his querulous tendencies. The current admission is due to inappropriate behaviour: informed the police that explosives had been planted somewhere, conflicts with [nomadic tribes], called for emergency medical services and when they arrived threatened the personnel, behaved improperly towards women.

During examination - fully aware of his surroundings, answers questions in detail. ‘Ingratiating’. Believes that he is being persecuted by police because he is ‘a person of the Stalinist era, and they do not want to work’, shows an uncritical attitude towards [his] own behaviour, does not correct ideas of own relevance and persecution. Denies perceptual illusions.

Having regard to the lack of a critical attitude towards his improper behaviour, the presence of ideas about his own relevance and persecution, [it] can be concluded that he falls under section 29 (a) and (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens’ Rights Related to Its Administration of 1992 (“the Psychiatric Assistance Act 1992”).”

13. On 4 April 2007 the hospital applied for a court order for the involuntary placement of the applicant in a hospital under section 29 (a) and (c) of the Psychiatric Assistance Act 1992 as the applicant was a danger to himself and others and risked significant damage to his health from a likely deterioration or aggravation of his condition if there was no psychiatric treatment.

14. On 9 April 2007 the Primorskiy District Court of St Petersburg (Приморский районный суд г. Санкт-Петербурга) granted the application to admit the applicant to hospital without his consent. The hearing was attended by the applicant, a court-appointed lawyer, Mrs L., the psychiatrists, and the prosecutor. During the hearing the District Court examined the applicant’s medical history and heard the testimony of the psychiatrists, who referred to severe alcohol abuse, erratic behaviour, frivolous calls to the police, and threatening conduct towards medical personnel. The trial record indicates that during the hearing the applicant claimed that informing the police about the alleged presence of explosives at a factory was his civic duty, complained about hospital regime and facilities and referred to his friendship with certain media personas in Russia.

The relevant parts of the court order authorising the applicant’s treatment read as follows:

“... The recommendation for admission to hospital was issued ... due to the presence of a severe psychiatric disorder, which can cause significant damage to [his] health due to a deterioration or aggravation of the psychiatric condition in the absence of psychiatric help.

Mr V.K. did not consent to his admission to hospital since he refused treatment.

On 3 April 2007 he was examined by a panel of psychiatrists, who established that [he is] aware of his surroundings, answers questions in detail, believes that he is being persecuted by the police because he is ‘a person of the Stalinist era, and they do not want to work’, shows an uncritical attitude towards [his] behaviour, does not correct his ideas of his own relevance and persecution, denies perceptual illusions. On the basis of their observations the panel concluded that the treatment of Mr V.K. as an inpatient is necessary. The court has no grounds to doubt the conclusions of the panel’s report. There is no evidence to the contrary.

Having considered the evidence in the case, having heard the opinion of the doctors, of the lawyer, Mrs L., who considered inpatient treatment to be reasonable, and the opinion of the prosecutor ... the court concludes that the application of the Hospital’s chief physician is well-founded because Mr V.K. suffers from a severe disorder which indicates a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric help.”

15. On 20 April 2007 the applicant was formally discharged from hospital after an improvement in his mental health.

16. On 25 April 2007 the applicant, represented by Mr D. Bartenev, a lawyer practising in St Petersburg, lodged an appeal against the order of 9 April 2007, stating, inter alia, that the legal aid lawyer Mrs L. had failed perform her functions properly. On the same day the applicant left hospital.

17. On 2 August 2007 the applicant’s appeal was summarily dismissed in a short decision by the St Petersburg City Court (Санкт-Петербургский городской суд). The relevant parts read as follows:

“ ... In granting the application the [lower] court concluded that there were good reasons to place Mr V.K. in hospital against his will.

The court’s conclusion relied on the evidence that had been submitted to it ... [It is] proven by the report of the panel of the Hospital’s resident psychiatrists, which describes Mr V.K.’s condition and confirms the existence of a severe psychiatric disorder indicating a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance.

The arguments in the statement of appeal that legal aid lawyer Mrs L. did not duly discharge her professional functions may not serve as a ground for annulment of the order, which is lawful on the merits ... ”

18. Nothing in the materials available to the Court suggests that the applicant had ever been restricted in his legal capacity or appointed a legal guardian.

II. RELEVANT DOMESTIC LAW

19. The provisions of Russian legislation regulating involuntary hospitalisations can be found in Zagidulina v. Russia (no. 11737/06, §§ 21-30, 2 May 2013).

20. The Code of the Advocates’ Professional Ethics adopted on 31 January 2003 by the Plenary of the Advocates’ National Congress sets the ground rules for the lawyers’ professional ethics, corporate discipline and conduct. Section 1 stipulates that the advocates may follow the rules of the Code of Conduct for European Lawyers of 1988 insofar as they do not contradict the provisions of the Russian Code. The relevant parts of it read as follows:

Section 5

“1. Professional independence of an advocate, and the client’s conviction of his integrity, honesty, and propriety are the necessary conditions of trust.

2. An advocate shall avoid any action (inaction) aimed at undermining the trust.”

Section 9

“1. An advocate shall not...

...

2) maintain a position in a case contrary to the position of his client, act contrary to his client’s will, except cases when [a defence counsel in criminal proceedings] is convinced that [his clients commits perjury by incriminating himself]...”

21. The Code of Conduct for European Lawyers of 1988 provides in section 1.1. that “a lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is the lawyer’s duty not only to plead the client’s cause but to be the client’s adviser”. It further provides in section 2.7 that “subject to due observance of all rules of law and professional conduct, a lawyer must always act in the best interests of the client”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

22. The applicant complained under Article 5 § 1 of the Convention that his involuntary placement in a psychiatric facility had been unlawful owing to the failure of the national authorities to meet the substantive requirements for involuntary admission to a hospital and procedural defects in the judicial authorisation of his placement in hospital. The Article reads as follows in its relevant part:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ...”

23. The Government contested that argument.

A. Admissibility

24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25. The applicant argued that his involuntary admission to hospital had been based only on his diagnosis. He argued that the sole reason for his being placed in hospital had been his repeated calls to the police about explosives at an industrial facility and that those calls had not justified his deprivation of liberty, even if they “could irritate or cause additional work for State bodies”. In his opinion the national authorities had failed convincingly to establish substantive grounds for his being placed in hospital without his consent.

26. He further argued that while he had been formally provided with a court-appointed lawyer, Mrs L., for the first-instance hearing, her assistance to him had been ineffective. She had maintained a conflicting position during the hearing by effectively consenting to his being put in hospital. He further argued that the appeal proceedings had been tainted by various defects.

27. The Government disagreed with the applicant’s allegations. They stated that the national authorities, including medical professionals and judges, had given careful consideration to the applicant’s long medical history of organic and psychiatric disorders, had analysed his mental condition at the time of his admission and had arrived at a well-justified and reasoned decision that his placement in a psychiatric facility had been necessary.

28. They also contended that the applicant had been provided with effective legal assistance in the first-instance and appeal proceedings. They further stated that in general the judicial proceedings for his admission to hospital had been free from any arbitrariness and that the applicant’s rights had been secured by adequate guarantees.

29. The Court reiterates that a person’s physical liberty is a fundamental right protecting the physical security of an individual (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X). While Article 5 § 1 of the Convention sets out a list of exceptions which might restrict that right (Article 5 § 1 (a) to (f)), those exceptions must be interpreted narrowly, and in no circumstances may they allow arbitrary deprivation of liberty (see Vasileva v. Denmark, no. 52792/99, § 33, 25 September 2003).

30. The Court further notes that individuals suffering from a mental illness constitute a particularly vulnerable group and therefore any interference with their rights must be subject to strict scrutiny. Only “very weighty reasons” can justify a restriction of their rights (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010). In that regard the Court reiterates that the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest (see Karamanof v. Greece, no. 46372/09, § 42, 26 July 2011, with further references).

31. In the present case, the parties did not dispute that the applicant’s involuntary placement in a psychiatric facility had entailed a deprivation of liberty. The parties further agreed that the applicant’s enforced admission to hospital had complied with the formal procedural requirements of domestic law.

32. In Winterwerp v. the Netherlands (24 October 1979, § 39, Series A no. 33), the Court set out three minimum conditions which have to be satisfied for the “detention of a person of unsound mind” to be lawful within the meaning of Article 5 § 1 (e): except in emergency situations the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical evidence; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.

33. The Court has also consistently held that the notion of “lawfulness” in the context of Article 5 § 1 of the Convention may have a broader meaning than in the national legislation and that it presumes a “fair and proper procedure”, including the requirement “that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary” (ibid., § 45). In that context the domestic proceedings must themselves offer the applicant sufficient protection against a potentially arbitrary deprivation of liberty (see Shtukaturov v. Russia, no. 44009/05, § 113, 27 March 2008).

34. The Court will first examine whether the applicant’s detention was secured by the fair and proper procedure required by Article 5 § 1 (e) of the Convention. In this regard the crux of the applicant’s complaint rests in an alleged failure of a court-appointed lawyer, Mrs L., to provide him effective legal assistance during the first-instance hearing and arbitrary disregard of this fact by the domestic courts.

35. As a preliminary and contextual consideration the Court highlights that within the context of Article 6 § 3 (c) of the Convention it has previously held that the Convention is designed to guarantee rights that are not theoretical or illusory but practical and effective, and that assigning a lawyer does not in itself ensure the effectiveness of the assistance he or she may afford an accused. However, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter for the defendant and his lawyer, whether the lawyer is appointed under a legal aid scheme or privately financed. The competent national authorities are only required to intervene under Article 6 § 3 (c) if a failure by a legal aid lawyer to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Artico v. Italy, no. 6694/74, §§ 33-36, 13 May 1980, and Daud v. Portugal, 21 April 1998, § 38, Reports of Judgments and Decisions 1998-II, with further references).

36. The Court notes that the applicant was represented in the first-instance proceedings by the court-appointed lawyer Mrs L. From the documents in the case file it appears that her participation in the hearing was limited to stating that the placement of the applicant in hospital was “reasonable” (see paragraph 14 above).

37. The Court highlights that the conduct of Mrs. L, as a professional, and her ability to maintain a certain legal and factual position during the hearing must have been guided by the applicable provisions of the professional codes of conduct (paragraphs 20 and 21 above). These sets of corporate rules and principles maintain that the essential basis of a relationship between a lawyer and a client is trust and that a lawyer may refuse to follow a client’s instructions only in certain limited circumstances. Section 9 of the Code of the Advocates’ Professional Ethics of 2003, which is binding on all Russian advocates, explicitly prohibits a lawyer from maintaining “a position in a case contrary to the position of his client” and acting “contrary to his client’s will”.

38. The Court observes that the applicant had presumably enjoyed full legal capacity at the time of the relevant proceedings and there had been no legal guardian appointed for him. Accordingly, during the hearing of 9 April 2007 he could instruct his lawyer to act in any lawful way he considered coherent with his interests. The Court accepts that Mrs L. as a court-appointed lawyer might have concluded that it was in her client’s best interests to undergo treatment. However any effort to serve the interests of justice and discharge the duty to the court should not have resulted in unconditional endorsement of the hospital’s proposal without any reference to the client’s position. Therefore, her conduct could not have been reconciled with the requirements of effective representation.

39. Turning to the manner in which the domestic courts, as the ultimate guardians of fairness in the domestic proceedings, approached the above serious defect in the applicant’s legal representation, the Court considers it striking that the first-instance court not merely overlooked that conflict, but referred to Mrs L.’s consent as one of the factors for the applicant’s admission to hospital (see paragraph 14 above). Furthermore, even when presented with a distinct complaint concerning that defect the St Petersburg City Court found on appeal that the applicant’s arguments on that issue were insufficient for an annulment of the lower court’s decision, which was “lawful on the merits” (see paragraph 17 above).

40. Accordingly, the Court must conclude that in view of the flagrant defect in the applicant’s legal representation and the manifest failure of the domestic courts to consider that defect worthy of consideration, the proceedings leading to the applicant’s involuntary admission to hospital were not fair and proper as required by Article 5 of the Convention.

41. This conclusion obviates the need for the Court to examine whether the national authorities met the substantive requirement for the applicant’s involuntary hospitalisation by proving that his mental condition had necessitated the deprivation of liberty.

42. Giving due regard to the conclusions above, the Court finds that there has been a violation of Article 5 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

43. The applicant also lodged other complaints under Article 5 of the Convention. However, having regarding to the above finding of a violation of Article 5 § 1 of the Convention, the Court considers that it is not necessary to examine whether, in this case, the other complaints under Article 5 of the Convention are admissible and whether there have also been violations of that provision (see, for the approach, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014)..

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

45. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.

46. The Government stated that no compensation should be awarded to the applicant.

47. The Court, having regard to the circumstances of the case, the nature of the above violation, and acting on an equitable basis, awards the applicant EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

48. The applicant also claimed EUR 6,546 for costs and expenses incurred before the Court.

49. The Government stated that the amount claimed was excessive given the relative simplicity of the case and the limited number of questions examined. In any event they argued that no award should be made for such costs because there was no evidence that they had been actually and necessarily incurred by the applicant.

50. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

51. The Court notes that the applicant’s claim for costs and expenses refers to five lawyers practicising in St Petersburg and Budapest: Mr D. Bartenev, indicated in the application form and the authority form; Mrs B. Bukovska and Mr Y. Marchenco, indicated in the application form and having no authority forms; and Mrs A. Campbell and Mrs B. Méhes, who were neither indicated in the application form nor had any authority form. The Court observes that while the application form of fourteen pages was signed by the three lawyers indicated in it, the applicant’s written observations of twelve pages on the admissibility and merits of the case were signed by Mr D. Bartenev alone. Having regard to the nature of the issues raised by the application and the written submissions on behalf of the applicant, the Court does not discern any compelling proof of the necessity of expenses incurred by five lawyers practising in two countries.

52. In any event the Court notes that the applicant’s claim is not supported by any contract, receipt or other document which legally binds the applicant to cover the amounts claimed. The commission contracts supplied by the applicant were signed by Mr D. Bartenev and the Mental Disability Advocacy Centre (“MDAC”), a non-governmental organisation operating in Budapest. Those contracts concern legal consultancy and monitoring services provided by Mr D. Bartenev to MDAC in 2006-2009 and they neither explicitly nor implicitly refer to the representation of the applicant before this Court. None of the documents bears the applicant’s signature and the only document mentioning his name is a request for payment issued by MDAC. While the applicant’s representative states that all of the expenses that have been claimed were advanced by MDAC, the Court has no document in its possession which indicates the reason or the terms for that advance. Lastly, there is nothing in the case file to prove that the applicant consented to pay the amounts he requested or that he was legally bound to do so.

53. Accordingly, the Court rejects the claim for costs and expenses for the proceedings before the Court.

C. Default interest

54. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 5 § 1 of the Convention admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that it is not necessary to examine the admissibility and merits of the other complaints under Article 5 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, in respect of non-pecuniary damage EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable. The above amount is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> V.K. v. RUSSIA - 9139/08 (Judgment : Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)) [2017] ECHR 309 (04 April 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/309.html Cite as: ECLI:CE:ECHR:2017:0404JUD000913908, CE:ECHR:2017:0404JUD000913908, [2017] ECHR 309