The ECHR found a violation of the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 5 of the Convention for the Protection of Human Ri Сведения: 2018-08-29 14:38:14

The ECHR judgment of 28 November 2017 in the case "N. (N.) v. Romania" (application No. 59152/08).

In 2008, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Romania.

In the case, the applicant's complaint on the unreasonably long detention in custody, on the lack of any effective assistance was successfully considered. The case involved a violation of the requirements of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.



In January 2001, a criminal case was opened against N. on suspicion of incest and the corruption of his underage daughters (proceedings were discontinued in 2002). He was hospitalized in a psychiatric hospital, in April 2002 the court upheld the measure in the absence of the applicant. After changes in legislation aimed at strengthening the rights of persons with disabilities, the lawful continuation of the applicant's detention was periodically checked beginning in September 2007.

However, the applicant remained in a psychiatric hospital, as medical experts concluded that he was suffering from paranoid schizophrenia. In August 2016, the district court decided that, in principle, the applicant could have been discharged from the hospital, but he should continue to be kept temporarily until an institution suitable for him was found. In February 2017, the court of first instance instructed to replace the applicant with detention for compulsory treatment, but attempts to obtain his release did not work.


Concerning compliance with article 5, paragraph 1, of the Convention. The applicant's deprivation of liberty belonged to the scope of Article 5 § 1 (e) of the Convention, since his psychiatric disorders were confirmed by a number of forensic examinations.

(a) Continuation of detention after 2007. According to Romanian law, for mental health care a mental illness was to be a threat to society. In addition, subparagraph "e" of Article 5 § 1 of the Convention suggested that, if no treatment was provided for, the detention of a person with a mental disorder required special substantiation in view of the severity of the disorders and the need to protect the person or others.

In the present case, at the first examination of the applicant's detention, the court of first instance based its decision on two main aspects: the criminal charges initially brought against the applicant (incest and molestation of minors) and the presence of paranoid schizophrenia (according to the medical examination report issued in July 2007).

Concerning the applicant's accusations, the court only referred to the materials submitted by the prosecution. However, the prosecutor refused the accusation in connection with the lack of evidence. The indictment of the juvenile delinquency later led to the conclusion that the case was closed due to the lack of adequate self-assessment of the applicant. This conclusion was not verified by the court. In addition, the charges themselves were not examined by the court in the adversarial proceedings. Accordingly, the reference to them was not sufficient to establish the dangers of the applicant.

As for the applicant's mental illness, instead of assessing the danger that he represented, the court simply referred to the conclusions of the forensic medical examination (which recommended the continuation of his detention), an approach that had already been criticized by the European Court of Justice. In addition, neither the court nor the medical institutions reported any acts of violence by the applicant during his detention. On the contrary, during the examination in July 2007 the applicant behaved calmly, did not object to treatment, did not provoke conflicts with other patients and demonstrated a low level of hostility when receiving treatment.

Subsequent inspections did not establish whether the applicant represented a potential danger, since the same formal and superficial approach was used, and neither the applicant's complaints about the first-instance court's decisions nor the proceedings that he initiated did clarify this issue. In addition, neither the medical authorities nor the court itself considered whether alternative measures could be applied.

Accordingly, in the absence of an assessment of the danger posed by the applicant, his detention did not have a legal basis and was not justified in accordance with subparagraph (e) of paragraph 1 of Article 5 of the Convention. It also raised questions in the light of subparagraph (b) of article 14, paragraph 1, of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which states that the existence of a disability should not in any case become a ground for deprivation of liberty. Although subsequently the issue of whether the applicant posed a danger was the subject of verification, the authorities of the respondent State did not disclose the factual information that led to changes in the assessment of medical experts.

(b) Was it necessary to continue the detention of the applicant after a judicial decision to release him. In its decision of August 2016, stressing the need to terminate the applicant's detention, the district court took a measure without specifying the appropriate legal basis for it.

Furthermore, following the final decision of the applicant's release in February 2017 on the release of the applicant, the respondent Government did not indicate a procedure applicable to the applicant's situation that would allow, first of all, to assess his needs before being released or transferred to another center that meets those needs. The possibility of gradual or conditional release was not mentioned earlier. Although the applicant has agreed to remain in detention until the social services find an adequate solution to his situation, he must be provided with adequate safeguards to ensure the possibility of release without undue delay.

It can be assumed that the aforementioned decisions have been based on practices that are increasingly asserted at the international level, which supports the treatment and care of persons with disabilities within the community, if possible (see article 19 CRPD, Guidelines of the Committee on the Rights of Persons with Disabilities or the Council of Europe Disability Strategy 2017 - 2023 years). However, its implementation causes additional problems in accordance with Article 5, paragraph 1, of the Convention. In practice, the applicant was not actually released. In any case, a rigorous assessment of its specific needs and the adoption of appropriate measures in terms of social protection were required. In addition, the efforts of the domestic authorities proved useless due to the lack of an institution that could accept it. This state of affairs reflected the current realities in Romania, as previously indicated by other international bodies (such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) or the Council of Europe Commissioner for Human Rights).

Consequently, the applicant's continued detention after the decision of 29 August 2016 was arbitrary.


The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.

Concerning compliance with article 5, paragraph 4, of the Convention. The implementation of the relevant legislation of Romania, which entered into force in September 2006, was inadequate to secure the rights of the applicant.

(a) Periodic nature of inspections. The courts' checks of the need for the applicant's detention were separated by periods of 15 months (February 2015-May 2016), 16 months (October 2008-February 2010) and even three years and eight months (April 2010-December 2013) . There were no exceptional reasons for justifying such delays. In addition, these periods significantly exceeded the deadlines provided by the laws of the country (six months, and then 12 months from 2014).

The Court also noted with concern the retrospective assessment of the need to continue detention on the basis of medical information received long before (for example, more than one, two or three years earlier), which did not necessarily reflect the state of the detainee at the time of the decision. This delay between the forensic examination and the subsequent decision in itself could be contrary to the principle underlying Article 5 of the Convention, namely the protection of persons against arbitrariness.

Finally, as far as the aforementioned delays could be explained by the need to obtain the required forensic reports, the court did not appear to be interested in the work of the experts and did not use its authority to impose sanctions on experts not fulfilling the duty of presenting an opinion. Accordingly, the requirement of "immediate verification" was not granted.

(b) Legal assistance. The applicant, who suffered from mental illnesses that prevented him from satisfactorily conducting the trial, used the services of an officially appointed counsel. However, in every trial he was represented by various lawyers with whom he could not confer and meet before the trial. In most cases, his lawyers favored the continuation of his detention, or left the matter to the discretion of the courts. Without commenting on how lawyers should act in such cases when they represent a person with mental disorders, the Court concludes that there was no provision of any effective assistance.


The violation of the requirements of Article 5 of the Convention (unanimously) was committed in the case.

In the application of Article 46 of the Convention. Measures of an individual nature. To compensate for the consequences of the violation of the rights granted to the applicant under Article 5 of the Convention, the authorities must comply without delay with the District Court's final decision on his release in conditions that meet his needs.

Measures of a general nature. With regard to the deficiencies identified in the present case that might lead to the filing of other justified complaints in the future, the Court recommended that the respondent Government establish general measures to ensure that the detention of persons in psychiatric hospitals is lawful, reasonable and not arbitrary, and that any person could initiate proceedings by providing them with adequate safeguards to ensure an immediate judicial decision on the legality of their detention s.


In the application of Article 41 of the Convention. The Court awarded EUR 30,000 in respect of non-pecuniary damage to the applicant.


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