MS v Croatia (No 2)
SummaryIn a lengthy and detailed judgment in MS v Croatia (No 2)  ECHR 196, the ECtHR has emphasised the crucial importance of the need for the procedural safeguards provided for in Article 5(4) ECHR to be rendered effective for those with mental disabilities.
Before reaching Article 5, the Court considered the application of Article 3 in the context of physical restraint of a woman suffering from mental illness, where she was tied to a bed for 15 hours immediately upon her admission. It found that in the particular and distressing circumstances of her case (including where she was making repeated complaints of pain in her back, to which the hospital staff made no response, and where there was no proper evidence that restraint was necessary to calm the applicant down or to prevent her attacking others) that she had been subject to inhuman and degrading treatment contrary to Article 3. Whilst (we would hope) it is unlikely that Article 3 would be engaged in the course of psychiatric treatment in this country, we would note ZH v Commr of Police for the Metropolis where a breach of Article 3 was found – and upheld by the Court of Appeal – in the context of the disastrous intervention by the Police to move a young man with autism away from the side of a swimming pool.
In the context of Article 5, the ECtHR emphasised, first, that the proceedings leading to the involuntary placement of an individual in a psychiatric facility must necessarily provide clearly effective guarantees against arbitrariness given the vulnerability of individuals suffering from mental disorders and the need to adduce very weighty reasons to justify any restriction of their rights (paragraph 147).
The ECtHR then emphasised the signal importance of the provision of effective legal representation where a patient has been detained in paragraphs sufficiently significant to merit reproduction in full.
"152. […] the Court reiterates that in the context of the guarantees for a review of compliance with the procedural and substantive conditions which are essential for the "lawfulness", in Convention terms, of an individual's deprivation of liberty, the relevant judicial proceedings need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see, amongst many others, Stanev, cited above, § 171).
153. This implies, inter alia, that an individual confined in a psychiatric institution because of his or her mental condition should, unless there are special circumstances, actually receive legal assistance in the proceedings relating to the continuation, suspension or termination of his confinement. The importance of what is at stake for him or her, taken together with the very nature of the affliction, compel this conclusion (see Megyeri v. Germany, 12 May 1992, § 23, Series A no. 237-A). Moreover, this does not mean that persons committed to care under the head of "unsound mind" should themselves take the initiative in obtaining legal representation before having recourse to a court (see Winterwerp, cited above, § 66).
154. Thus the Court, having constantly held that the Convention guarantees rights that are practical and effective and not theoretical and illusory (see, inter alia, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002-IV), does not consider that the mere appointment of a lawyer, without him or her actually providing legal assistance in the proceedings, could satisfy the requirements of necessary "legal assistance" for persons confined under the head of "unsound mind", under Article 5 § 1 (e) of the Convention. This is because an effective legal representation of persons with disabilities requires an enhanced duty of supervision of their legal representatives by the competent domestic courts (see paragraph 45 above, Principle 18 of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care).
155. Accordingly, as to the way in which the applicant was represented in the proceedings, the Court is of the opinion that given what was at stake for her proper legal representation, contact between the representative and the applicant was necessary or even crucial in order to ensure that the proceedings would be really adversarial and the applicant's legitimate interests protected (see SÃ½kora v. the Czech Republic, no. 23419/07, §§ 102 and 108, 22 November 2012, with further references)."
In MS's case, the legal aid representative never met the applicant, made no submissions on her behalf and, although he attended the hearing, acted rather as a passive observer of the proceedings. Although the domestic authorities were well aware of these omissions (see paragraphs 28 and 29 above), they failed to react by taking the appropriate measure for securing the applicant's effective legal representation. Furthermore, although the judge conducting the proceedings visited the applicant in the hospital, the ECtHR found that documents submitted before the Court do not show that he made any appropriate accommodations to secure her effective access to justice (Strasbourg here making specific reference to Article 13 of the CRPD). In particular, there was no evidence that the judge informed the applicant of her rights or gave any consideration to the possibility for her to participate in the hearing. MS was thus not given an opportunity to comment on the expert's findings at the court hearing which resulted in the delivery of the decision on her involuntary retention in a psychiatric hospital. Her right to be heard was particularly pressing taking into consideration the applicant's clear and undisputed refusal to undergo any treatment and the domestic courts' awareness of this fact. The ECtHR found that there was no valid reason justifying the applicant's exclusion from the hearing, particularly since it noted that during her interview with the judge of the R. County Court, the applicant did not demonstrate that her condition was such as to prevent her from directly engaging in a discussion of her situation.
The Court therefore found (at paragraph 160) that the competent national authorities failed to meet the procedural requirement necessary for the applicant's involuntary hospitalisation, as they did not ensure that the proceedings were devoid of arbitrariness, as required under Article 5 § 1 (e) of the Convention.
CommentThis case makes particularly interesting reading in light of (1) the decisions in YA and AJ also discussed this month and the emphasis therein of the need – in different contexts – to ensure that Article 5(4) actually means something in the context of deprivation of liberty justified by reference to Article 5(1)(e); and (2) the question of whether P needs to be a party to all applications for judicial authorisation for deprivation of liberty, currently being considered by the Court of Appeal in Re X.
The judgment emphasises the importance of having legal – as opposed to generic advocacy or familial – assistance in Article 5(1)(e) proceedings. Moreover, the fact that those committed to care should not themselves have to take the initiative in obtaining such legal representation is another illustration of the positive obligation on detaining authorities to promote access to a lawyer in the absence of special circumstances.
We would also note in passing that, yet again, the Court has cited Article 14 of the CRPD (and, further, the reports of the Committee on the CRPD on Hungary and Austria and their comments upon Articles 14 and 15) without acknowledging that the Committee on the CRPD at least considers that Article 5(1)(e) is incompatible with Article 14 because it allows for detention on the basis of disability. This point was raised before, but not addressed by, the Supreme Court in Cheshire West, and will, we anticipate, have to be grappled with at some point (at which stage the rather different views of the UN Human Rights Committee, expressed in relation to the right to liberty in Article 9 of the ICCPR, will no doubt be prayed in aid: see, in particular, paragraph 19 of General Comment 35).