Communicated on 12 May 2014
FOURTH SECTION
Applications nos. 3427/13, 74569/13 and 7157/14
Zuhra HADŽIMEJLIĆ, Marcel CREPULJA and Esad BUSOVAČA against Bosnia and Herzegovina
STATEMENT OF FACTS
THE FACTS
The applicants are citizens of Bosnia and Herzegovina. They were born in 1959, 1978 and 1958 respectively and are currently in Drin Social Care Home.
A. The circumstances of the present cases
The facts, as submitted by the applicants, may be summarised as follows.
1. The facts concerning Ms Zuhra Hadžimejlić
On 23 November 2006, at the request of the Visoko Social Work Centre, the Visoko Municipal Court deprived the applicant of legal capacity. It was established that she had been diagnosed with paranoid schizophrenia and that placement in a social care home would be in her best interest.
On 26 December 2006 the Visoko Social Work Centre placed the applicant under the guardianship of her sister.
On 23 January 2007 the Visoko Social Work Centre placed the applicant in Drin Social Care Home in accordance with the social care legislation.
On 13 June 2011 the applicant lodged a constitutional appeal concerning the lawfulness of her detention.
On 25 April 2013 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as she had been held in psychiatric detention without a decision of the competent civil court. It found also that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Visoko Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention. The relevant part of the decision reads:
“27. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11[...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision...
28. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the Social Care Home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable to live on his/her own and has no relative or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil court...thus her initial deprivation of liberty had not been in accordance with the Mental Health Act 2001... [T]herefore the court concludes that the deprivation of liberty in the appellant’s case had been unlawful and thus in violation of Article 5 § 1(e) of the Convention.
...
30. In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement...
...
32. There had been a violation of Article 5 § 1(e) of the Convention in the present case because the appellant was placed in the social care home under the Federal and Cantonal social care legislation, whereas the compulsory placement of mentally ill persons is regulated by the Mental Health Act 2001 which was not applied in this case. In view of that, her placement was not “lawful”. There had also been a violation of Article 5 § 4 of the Convention because the appellant’s placement and the prolongation of that placement had never been examined by the competent court...”
It would appear that the applicant’s case has not yet been examined by the civil court and that she has not yet been released from the social care home.
2. The facts concerning Mr Marcel Crepulja
At the recommendation of the Psychiatric Clinic in Sarajevo where the applicant was treated for schizophrenia, on 15 September 2004 the Vareš Social Work Centre placed him in Drin Social Care Home in accordance with the social care legislation. It was established that his illness rendered him incapable of living on his own and that his family circumstances did not warrant proper care at home.
On 25 March 2005 the Kiseljak Municipal Court deprived the applicant of his legal capacity.
On 21 April 2011 the applicant was placed under the guardianship of N.G., a director of the Vareš Social Work Centre.
On 2 September 2011 the applicant lodged a constitutional appeal concerning the lawfulness of his detention.
On 25 June 2013 the Constitutional Court held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It found also that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention. The Constitutional Court ordered the Vareš Social Work Centre to take measures to ensure respect for the applicant’s rights under Article 5 §§ 1 and 4 of the Convention and awarded him 3,000 convertible marks (BAM)[1]. The relevant part of the decision reads:
“34. The Constitutional Court recalls that it examined the same factual and legal situation in the decision no. AP 2472/11 [...]. Therefore, instead of a separate legal analysis in this case, it refers to the reasoning set out in that decision...
35. As regards Article 5 § 1 of the European Convention...the Constitutional Court concluded that the appellant was placed in the Social Care Home under the social care legislation of the Federation of Bosnia and Herzegovina and of the [Zenica-Doboj] Canton, which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes. That procedure is regulated in the sections 22-42 of the Mental Health Act 2001. Section 41 of that Act prescribes that a mentally ill person released from a hospital, who is incapable to live on his/her own and has no relative or others who are required by law to care for him/her, shall be placed in a social care home under the social care legislation of the Federation of Bosnia and Herzegovina. However, in that case, a hospital is under a duty to inform the competent court of such placement immediately ... [I]t is evident from the case-file that the appellant was detained without a decision of the competent civil...thus her initial deprivation of liberty had not been in accordance with the Mental Health Act 2001..[T]herefore the court concludes that the deprivation of liberty in the appellant’s case had been unlawful and thus in violation of Article 5 § 1(e) of the Convention.
36... In the above-mentioned decision, the Constitutional Court noted that the Federal and the Cantonal social care legislation, under which the appellant was placed in a social care home, do not envisage mandatory judicial control of the lawfulness of such placement...
37. Turning to the present case, the Constitutional Court notes that appellant was placed in the social care home at the recommendation of the Psychiatric Clinic in Sarajevo...It was established that he had been diagnosed with SCH, F23, a condition which requires constant supervision and regular therapy which he cannot have at home in view of his family’s circumstances (a mother was also deprived of her legal capacity due to mental illness, a father’s whereabouts are unknown, and his sister is placed under guardianship)...The court further notes that since 2004, when the appellant was placed in the social care home, the Social Work Centre revised his placement on three occasions, at the recommendation of the relevant Ministry and with the consent of his guardian Ms N.G. However, those revisions were focused on the financial aspect of the appellant’s placement without any consideration for his health condition and a potential release. The fact that the Social Work Centre was the only domestic body which ever examined the appellant’s placement...raises issues under Article 5 §§ 1(e) and 4 of the Convention.
38. Furthermore, although under the Mental Health Act 2001 a decision about compulsory admission of mentally ill persons must be made by a court, the appellant’s case has never been examined by the competent court...
39. Accordingly, as regards “deprivation of liberty”, the placement in the social care home and the review of the lawfulness of such placement, the court concludes, in view of the facts of the case and the reasons set out in the decision no. AP 2472/11 of 31 January 2013, that there had been a violation of Article 5 §§ 1(e) and 4 of the Convention in the present case.”
It would appear that the applicant’s case has not yet been examined by the civil court and that he has not yet been released from the social care home. It further appears that he did not receive the compensation awarded to him by the Constitutional Court.
3. The facts concerning Mr Esad Busovača
In December 1999 the Tuzla Social Work Centre placed the applicant in Drin Social Care Home. It would appear that the applicant’s placement has never been examined by a civil court.
B. Relevant domestic law
Under the social care legislation of the Federation of Bosnia and Herzegovina[2], placement in a social care home is a social benefit attributed to mentally ill persons. If the competent social work centre considers that the basic needs of a mentally ill person cannot otherwise be satisfied, it may place that person in a social care home. It may do so either of its own motion or at the request of the person concerned or his or her guardian. The decision is subject to appeal, but a legally incapable adult may lodge an appeal only through his or her guardian (see section 52 of the Administrative Procedure Act 1998[3]). Persons placed in social care homes under the social care legislation of the Federation of Bosnia and Herzegovina do not benefit from the procedural safeguards applicable to compulsory admission (as regards compulsory admission see sections 22-37 of the Mental Health Act 2001[4] and sections 45-59 of the Non-Contentious Proceedings Act 1998[5]; see also decisions of the Constitutional Court nos. AP 2472/11, AP 2440/11 and AP 3507/11 available at ). A social care home may be set up by the public authorities (like Drin Social Care Home which was set up by the Federation of Bosnia and Herzegovina) or charities. In the latter case, authorisation must be obtained from the competent Cantonal Ministry.
C. Relevant international law and practice
The relevant part of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) report on the visit to Bosnia and Herzegovina carried out from 19 to 30 March 2007 (see document no. CPT/Inf (2009) 25), reads as follows:
“128. The placement of a resident in a social care home is proposed by the guardian of the person concerned (either the social work centre in which the resident is registered or a family member). A social work centre may request to place a resident in any of the social care homes in the country, whether they be in the Federation or the Republika Srpska. The determining factors are the availability of places and cost, as each social work centre must pay a monthly fee per resident.
The prerequisites for placing a resident in a social care home is that the person be deprived of their legal capacity (that is, declared mentally incompetent), as well as having a psychiatric disorder and/or mental disability and having completed any hospital treatment.
If these requirements (and certain others) are met, an internal commission of the social care home examines the application and decides whether or not to accept the person. This process does not involve any on-site investigation or interviews by the social care home. Upon admission, the social work centre or the family (whichever is the guardian), signs a contract with the social care home whereby, in return for a monthly fee, the home will care for and treat the resident. The social care home also undertakes to submit a yearly report to the guardian.
129. In the context of Bosnia and Herzegovina, the CPT considers that all decisions to place a person in a social care home involuntarily or at the instigation of a guardian should be notified to a court, with a view to seeking the court’s approval for the placement. Such a safeguard will represent a necessary element in the elaboration of a comprehensive legislative framework (see paragraph 110 above). The CPT recommends that the relevant authorities take the necessary steps to ensure that such a safeguard is introduced in respect of all new placements in social care homes in Bosnia and Herzegovina.
130. The CPT is also concerned by the apparent lack of appropriate safeguards in place for persons who have been deprived of their legal capacity and subsequently placed in a social care home. The delegation met a number of residents in both homes, but particularly at ‘Drin’, who gave the impression of being competent. Yet there seemed to be no concerted efforts by the guardian or the relevant social work centre to find an alternative solution for these residents in the community. An independent review of each resident’s placement should be carried out at regular intervals, at which the resident should be offered the opportunity of expressing his/her views. The CPT recommends that the relevant authorities institute regular automatic reviews for residents placed in social care homes.
131. The yearly two-page reports drawn up for each resident at “Drin” provided minimal information, although staff stated that they were always willing to draw up ad hoc reports on demand and to meet with the guardians, if requested. At Višegrad, even such reports were not produced. It was evident from interviews with staff, social workers and the director of a social work centre that, once a person was placed in a social care home, there was generally no further interest in their care and treatment. Consequently, it appeared that few family members or guardians from social work centres ever wrote, visited or manifested an interest in their wards. The CPT recommends that the relevant authorities encourage the social work centres to fulfil their supervisory duties properly.
132. Civil society can play a very important role in the lives of residents in social care homes, not least through their regular visits, which increase residents’ contact with the outside world. The CPT noted that at ‘Drin’, contacts with the outside world were being developed, whereas at Višegrad there appeared to be no contacts with non-governmental organisations. The CPT encourages both institutions to develop their links with outside organisations.
In this context, the CPT would also emphasise the importance it attaches to social care homes being visited on a frequent basis by an independent outside body empowered to formulate recommendations to the authorities on ways to improve the care and conditions afforded to residents. Visits by such a body - which could also be competent to receive complaints from residents, their families or their guardians - would, in the Committee’s view, constitute an important safeguard for residents at both social care homes. The CPT recommends that the relevant authorities explore the possibility of instituting such a system of visits by an independent body.
133. The CPT was informed that at the Višegrad Institution, a governing board and a supervisory board composed of five and three members, respectively, would be appointed in the near future. Such oversight bodies can potentially perform an important role in the management and development of a social care home. However, the CPT was concerned that there was pressure upon the institution to pay the members appointed to these bodies a sizeable monthly salary instead of a per diem, based upon their attendance at meetings. The clinical care of the residents must be the priority and scarce resources should be allocated accordingly. The CPT would like to receive the comments of the relevant authorities in respect of this matter.
134. It would appear that no written information on residents’ rights was provided to residents or their guardians at either home, although preparations were underway at ‘Drin’ to produce an introductory brochure and a website.
The CPT recommends that an introductory brochure for residents and guardians be provided at all social care homes in Bosnia and Herzegovina, setting out each establishment’s routine and residents’ rights, including information about their right to lodge formal complaints and the modalities for doing so.
135. The delegation noted that all persons admitted to social care homes had their legal capacity removed by a court decision, and had a legal guardian appointed by the social work centre where they were registered. Most of the residents in the two social care homes visited were accommodated in locked wards or could apparently be restrained by the staff of the institution whenever it was considered necessary.
136. The procedures for the removal of legal capacity are the same in both Entities. The family of the person concerned or the relevant social work centre applies to the court for a decision on removal. A medical opinion on the person concerned is drawn up by a psychiatrist and submitted to the court, which holds a hearing to decide whether the legal capacity should be removed indefinitely or for a limited time period. The hearing is conducted in the presence of the initiator (family member or social work centre), a temporary guardian appointed by the social work centre and a representative of the social work centre, as well as the person concerned, if he or she is considered capable of understanding the proceedings. Further to a decision by the court, one of the parties may appeal the ruling within three days.
The CPT recommends that the relevant authorities take the necessary steps to ensure that all persons who are the subject of proceedings with a view to being deprived of their legal capacity are systematically:
- heard in person by the court;
- given a copy of the court decision;
- informed, verbally and in writing, of the possibility and modalities for appealing against a decision to deprive them of their legal capacity.
137. Within 30 days of the court’s decision, the social work centre should designate a permanent guardian, whose role should be to assist the person in regaining his/her mental capacity. It should be noted that once a person has had their legal capacity removed indefinitely by a court, there are no automatic reviews. The court may, upon its own motion or upon that of the person, who initiated proceedings to have the legal capacity removed originally, examine whether to revoke its decision. However, cases involving indefinite removal of legal capacity were apparently never reconsidered in practice, and the delegation heard that discharge from a social care home occurred rarely and usually in the face of opposition from the social work centre concerned.
Moreover, it appeared that guardians frequently neglected their responsibilities towards their wards once they had signed a contract with a social care home, effectively granting blanket consent for all treatment and measures applied by the home. Further, the guardians, in general, made little effort to visit their wards or to scrutinise the care being offered.
The CPT recommends that the relevant authorities take the necessary steps to ensure that legal guardians fulfil their duties responsibly and in the interests of their wards.
138. In this context, the CPT would like to remind the relevant authorities of Recommendation Rec(99)4 of the Committee of Ministers of the Council of Europe to member States on Principles concerning the Legal Protection of Incapable Adults. This Recommendation contains 28 governing principles concerning guardianship. The CPT considers that an institute of guardianship based upon these principles would be balanced, fair and, above all, proportionate. The CPT recommends that the authorities incorporate the Council of Europe’s Principles concerning the Legal Protection of Incapable Adults into the national legal norms governing guardianship.”
In its subsequent visit, in 2011, the CPT noted that the procedures for the placement of a resident in a social care home remained unchanged (see document no. CPT/Inf (2012) 15, §§ 125-127). It particularly noted that recommendations concerning the introduction of judicial review of placement and of regular automatic reviews, from 2007 report, had not been implemented.
COMPLAINTS
The applicants complain of the lawfulness and lack of judicial review of their detention in Drin Social Care Home. They do not rely on any particular Article of the Convention.
QUESTIONS TO THE PARTIES
1. (a). Could an appeal to the Constitutional Court of Bosnia and Herzegovina be considered an effective domestic remedy in respect of the applicants’ Convention complaints under Article 5 §§ 1 and 4, within the meaning of Article 35 § 1 of the Convention?
(b). If so, has this remedy been exhausted in respect of the third applicant, Mr Esad Busovača?
2. (a). Did the applicants’ placement in Drin Social Care Home amount to a “deprivation of liberty” for the purposes of Article 5 § 1 of the Convention (see, among other authorities, H.M. v. Switzerland, no. 39187/98, ECHR 2002‑II; H.L. v. the United Kingdom, no. 45508/99, ECHR 2004‑IX; and Shtukaturov v. Russia, no. 44009/05, 27 March 2008)?
(b). If so, was it “lawful” within the meaning of Article 5 § 1 of the Convention and did the applicants have at their disposal an effective procedure by which they could challenge its lawfulness, as required by Article 5 § 4 of the Convention (see H.L., cited above, and Shtukaturov, cited above)?
3. Did the second applicant, Mr Marcel Crepulja, have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 4, as required by Article 5 § 5 of the Convention?
[1] The convertible mark uses the same fixed exchange rate to the euro that the German mark had: EUR 1 = BAM 1.95583.
[2] Zakon o osnovama socijalne zaštite, zaštite civilnih žrtava rata i zaštite porodice sa djecom, Official Gazette of the Federation of Bosnia and Herzegovina nos. 36/99, 54/04, 39/06 and 14/09, and Zakon o socijalnoj zaštiti, zaštiti civilnih žrtava rata i zaštiti porodice sa djecom, Official Gazette of the Zenica-Doboj Canton nos. 13/07 and 13/11.
[3] Zakon o upravnom postupku, Official Gazette of the Federation of Bosnia and Herzegovina nos. 2/98 and 48/99.
[4] Zakon o zaštiti osoba sa duševnim smetnjama, Official Gazette of the Federation of Bosnia and Herzegovina nos. 37/01 and 40/02.
[5] Zakon o vanparničnom postupku, Official Gazette of the Federation of Bosnia and Herzegovina nos. 2/98, 39/04 and 73/05.
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