FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23968/05
by Mirsad HALILOVIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 23 June 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mirsad Halilović, is a citizen of Bosnia and Herzegovina who was born in 1968. He is in Zenica Prison Forensic Psychiatric Annex.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 August 1997 the applicant married Š.B. The couple had one child, E.H. born in 1998. In a judgment of 24 June 2002, the Tešanj Municipal Court granted Š.B. a divorce and awarded her custody of E.H. The judgment entered into force on 29 November 2002. After having obtained permission from the Social Work Centre in Tešanj, Š.B. took E.H. to Norway in January 2003. It would appear that the applicant has never seen E.H. again.
On 11 October 2004 the applicant attempted to kill O.A. under the delusion that he was persecuting him. On the same day, having surrendered himself to the police, the applicant was remanded in custody.
On 29 December 2004 he was charged with attempted murder.
On 29 March 2005 the Zenica Cantonal Court found the applicant not guilty by reason of insanity (paranoid schizophrenia). Pursuant to Article 410 § 1 of the Code of Criminal Procedure, it referred the case to the Social Work Centre in Tešanj.
On 12 May 2005 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the first-instance judgment of 29 March 2005.
On 17 May 2005 the Zenica Cantonal Court detained the applicant for 30 days in Zenica Prison Forensic Psychiatric Annex (pending a decision of the Social Work Centre in Tešanj) pursuant to Article 410 § 3 of the Code of Criminal Procedure. He was transferred from the remand section of Zenica Prison to the Forensic Psychiatric Annex on 18 May 2005.
On 16 June 2005 the Social Work Centre in Tešanj detained the applicant in Zenica Prison Forensic Psychiatric Annex for an indefinite period under the Mental Health Act. The applicant appealed to the Cantonal Ministry for Social Affairs in Zenica pursuant to the instructions of the social work centre.
On 31 October 2005 the Cantonal Ministry for Social Affairs in Zenica transferred the file to the Ministry of Social Affairs of the Federation of Bosnia and Herzegovina.
On 23 November 2005 the Ministry of Social Affairs of the Federation of Bosnia and Herzegovina transferred the file to the Ministry of Justice of the Federation of Bosnia and Herzegovina. It would appear that the latter Ministry has not yet examined the appeal.
On 21 December 2006 the Constitutional Court of Bosnia and Herzegovina dismissed the applicant's complaint of the unfairness of the criminal proceedings against him as out of time because it had been submitted more than 60 days from the date of delivery of the Supreme Court's judgment of 12 May 2005.
On 14 July 2008 the Constitutional Court of Bosnia and Herzegovina dismissed the applicant's complaints under Articles 3 and 8 of the European Convention on Human Rights because of his failure to submit requested additional information and documents.
It would appear that the applicant is still in Zenica Prison Forensic Psychiatric Annex pursuant to the administrative decision of 16 June 2005.
B. Relevant law and practice
1. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
This Convention provides non-judicial preventive machinery to protect persons deprived of their liberty. It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”).
The CPT periodically draws up reports on individual States, which are strictly confidential. Nevertheless, if a country fails to cooperate or refuses to improve the situation in the light of the CPT's recommendations, the CPT may decide to make a public statement. The State itself may at any time request publication of the CPT's report, together with its comments.
On 21 December 2004 the Report on the visit to Bosnia and Herzegovina carried out by the CPT from 27 April to 9 May 2003 was published, further to the request of Bosnia and Herzegovina. The relevant part reads as follows:
“...
84. Zenica Prison Forensic Psychiatric Annexe opened as a temporary accommodation for forensic psychiatric patients in 1996. It is the only closed forensic psychiatric unit on the territory of the Federation [of Bosnia and Herzegovina]. With an official capacity of 64 beds, it is located on the first floor of Pavilion IV; at the time of the visit, it was accommodating 69 patients...
85. According to the Prison Director, himself a doctor and psychiatrist, the Forensic Psychiatric Annexe is 'a huge problem which remains unsolved since 1996'. The Director explained that 'this temporary facility offered conditions which are worse than the conditions for the ordinary prisoners in the other parts of the establishment', a situation that he described as 'absurd'. He stated that, 'on principle, the Forensic Psychiatric Annexe should not be located within a high security prison'.
...
87. With regard to material conditions, the 69 patients held in the Annexe at the time of the visit were accommodated in two large rooms (some 110 m² each, respectively with 35 and 31 beds, including bunk beds) and one small room (19 m²; 6 beds, 2 of them bunk), the latter holding 'privileged' patients. It is clear from the above that living space per patient was grossly insufficient at the time of the visit and several patients routinely asked the staff to be transferred into the isolation/seclusion room (8 m²) to gain some private space. Over and above the issue of overcrowding, the CPT must stress that large capacity dormitories are not conducive to the health needs of patients. Provision of accommodation structures based on small groups is a crucial factor in preserving/restoring patients' dignity, and also a key element of any policy for the psychological and social rehabilitation of patients.
88. Bedding, access to natural light and ventilation were globally satisfactory. There was also a relatively large dining area, used as a television/day room. However, the general level of maintenance and hygiene in the Annexe was poor. The patient's bathroom area (only one shower, two floor toilets and one long basin) was particularly filthy and unhygienic. Further, the delegation was informed, both by patients and staff, that the heating system in winter was deficient.
To sum up, the material conditions within which the patients were held did not meet hospital standards, in particular as regards hygiene. In addition, the very nature of the facilities in the Annexe left no scope for grouping patients with similar problems/strengths (e.g. acute ward, rehabilitation, etc.) or organising occupational activities, a situation the delegation found detrimental to the patients' treatment, a conclusion fully shared by both the visiting psychiatrist and the Prison Director.
89. At the time of the visit, staff at the Annexe consisted of one visiting psychiatrist (three mornings - 3 to 4 hours - a week), one head nurse and four nurses (the latter on 12 hour shifts), as well as one occupational therapist (in the absence of appropriate facilities for occupational therapy activities, the 'occupational therapist' assisted the nurses on the morning shift). The head nurse, another nurse, the occupational therapist and a prison officer were present in the Annexe during the morning shift on weekdays, and a nurse and a prison officer at night and weekends (at night and during weekends, the nurse was also responsible for covering the prison medical unit). The delegation was further informed that posts for one full-time psychiatrist, one psychologist and one social worker were vacant.
In the CPT's opinion, such staffing levels are totally inadequate to provide an appropriate quality of care to some 70 chronic psychiatric patients, some of whom were disturbed or requiring constant nursing care (geriatric patients/incontinent patients). In addition, nursing staff cover as low as that observed during the visit rendered vulnerable patients even less able to protect themselves, in particular against episodes of inter-patient violence.
90. A very limited number of patients had access to some organised activity; they regularly visited the Prison's training facility (e.g. Information Technology) and followed language courses. In contrast, the vast majority of patients spent their day in total idleness, with no activities apart from cleaning duties, watching television, playing chess or reading. On a more positive note, patients had the exclusive use of a large walled garden/walking area equipped with seats and benches (though no shelter against inclement weather). Patients whose state of health permitted were allowed two hours outdoor exercise every day, plus one additional hour in the main prison 'hard surface' recreation ground.
91. Treatment was limited to pharmacotherapy. Haloperidol and fluphenazine depot were mostly used. Clozapine was also available; in this context, the delegation noted that there was no facility for routine blood monitoring of the patients on clozapine. This facility should be guaranteed in order to safeguard the patient's physical safety. As for [electroconvulsive therapy], the delegation was informed that it had been abandoned a long time ago.
Medical files were kept for each patient and medical confidentiality was guaranteed. However, it was clear that no individualised treatment plans supported by a multidisciplinary team were implemented at the Annexe.
...
94. Facilities offered to patients for contacts with the outside world were very good. Nearly all patients received visits in a dedicated visit area and access to a telephone was available. The delegation noted that unsupervised visits (including with spouses) were also possible.
...
96. The delegation was informed that there was unanimous agreement within the psychiatric and prison system, as well as at a political level, that 'this group of forensic psychiatric patients required hospital conditions and that the treatment and conditions in the Zenica Prison Forensic Psychiatric Annexe were not acceptable'. The delegation was further informed that the Ministry of Justice of the Federation had allocated 3,000,000 convertible marks in 2002 to allow relocation of the forensic psychiatric annexe and provision of proper facilities. However, this decision was not implemented, as no municipalities within the Federation were ready to accept such a facility on their territory. At the time of the visit, the situation was still unresolved.
97. At the final talks held in Sarajevo in May 2003, the delegation clearly indicated that 'placing mentally disordered patients in 30-bed, overcrowded dormitories in an essentially custodial environment can no longer be tolerated' and expressed its support for the initiative taken by the authorities in 2002 to finance the renovation and relocation programme aimed at remedying the situation, and involving the health authorities to a much greater extent. The delegation asked to receive within three months further information on this issue, including realistically achievable objectives to resolve this urgent matter.
98. On 1 October 2003, the authorities provided the following information to the CPT.
After the CPT's visit, an expert team was set up under the Ministry of Health, which carried out an inspection at Zenica Prison Forensic Psychiatric Annexe. Its findings fully confirm the observations of the CPT's delegation (overcrowded dormitories and lack of space in general, lack of nursing staff, no adequate treatment for the patients, very poor hygiene and deficient heating, etc.). The expert team came to the conclusion that 'conditions for patients [were] extremely inhuman and untenable' and that measures had to be taken urgently to remedy the situation.
In response to this report, the Ministry of Justice and the Ministry of Health of the Federation decided to implement the following urgent measures until a new place is found to relocate the forensic psychiatric institution: improvement of hygiene; reduction of the number of beds in the dormitories; drafting of specific house rules for the Annexe; setting up a register on cases of use of force/restraint; 'self-defence' training for staff.
99. The CPT welcomes the efforts made by the authorities to solve, on an urgent basis, some serious deficiencies observed during the visit of its delegation and would like to receive updated information on the progress made in this domain.
However, as the authorities themselves acknowledge, this state of affairs cannot be prolonged further. The Committee therefore recommends that the authorities provide within three months a workable strategy to facilitate the relocation of the Forensic Psychiatric Annexe to a site which could offer the potential to remedy the numerous shortcomings observed by the CPT's delegation.
100. Until this relocation becomes a reality, and in addition to the measures already announced above (cf. paragraph 98), the CPT recommends that the authorities take the following immediate steps:
- to fill the three vacant posts (full time psychiatrist, psychologist and social worker);
- to substantially reinforce the nursing team with properly trained staff;
- to considerably increase the number of patients benefiting from occupational activities;
- to establish an individual treatment plan for each patient, based on a multidisciplinary approach;
- to provide a facility for routine blood monitoring of patients on clozapine, with a view to guaranteeing their physical safety;
- to establish a written policy on the use of isolation/means of restraint in accordance with the criteria set out by the CPT (CPT/Inf (98) 12, paragraphs 47-50).
As regards material conditions, the CPT recommends that the Annexe be provided with adequate heating in the winter and that supplementary shower facilities be at the patients' disposal. The outdoor exercise facility should also offer, as far as possible, shelter from inclement weather.
...”
On 16 July 2007 the CPT published its Preliminary observations made by the delegation of the CPT which visited Bosnia and Herzegovina from 19 to 30 March 2007, further to the request of Bosnia and Herzegovina. Its relevant part reads as follows:
“...
[L]et me stress that co-operation also entails making concerted efforts to comply with the recommendations made by the CPT following its previous visits. In this respect, the delegation was concerned to find that no fundamental measures had been taken to improve the situation in the prisons visited or as regards forensic psychiatric patients. This clear lack of co-operation means that, if there is no prompt reaction by the authorities, the Committee may have no other choice than to consider initiating the procedure for making a public statement under Article 10, paragraph 2, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
...
The delegation re-visited Sokolac Psychiatric Hospital, in particular the forensic wards and the male acute ward, as well as the forensic psychiatric annexe in Zenica Prison.
...
As regards Zenica Prison forensic psychiatric annexe, although it was less crowded than during previous visits, the material conditions have continued to deteriorate and remain wholly unacceptable for a health care institution.
The treatment for patients on all the wards visited relied virtually exclusively upon pharmacotherapy. There was an almost total lack of meaningful activity, which is particularly serious for those patients confined to their wards.
Regarding staffing levels, the delegation noted that, at Sokolac, there had been some increase on the forensic psychiatric wards. However, on all the wards visited the level of staff-patient interaction remains inadequate for meaningful therapeutic engagement and there is still a lack of a multi-disciplinary clinical treatment approach and individualised treatment plans.
...”
2. Relevant domestic law and practice
(a) As regards psychiatric detention
As from 1 August 2003 (when the new criminal legislation entered into force) an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm (see paragraph immediately below). Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure (see Article 410 § 1 of the Code of Criminal Procedure 2003; Zakon o krivičnom postupku Federacije Bosne i Hercegovine; published in the Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 35/03 of 28 July 2003; amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004, 28/05 of 11 May 2005, 55/06 of 20 September 2006, 27/07 of 18 April 2007 and 53/07 of 8 August 2007). If the offender concerned is already in detention, the criminal court will extend it for a further period of up to 30 days to allow the social work centre to comply with Article 410 § 1 of the Code of Criminal Procedure (see Article 410 § 3 of this Code). No further extension is allowed.
The competent civil court can order compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm (see sections 22(1), 29(1) and 31(1) of the Mental Health Act 2001; Zakon o zaštiti osoba sa duševnim smetnjama; published in OG FBH no. 37/01 of 15 August 2001; amendments published in OG FBH no. 40/02 of 21 August 2002). The patient concerned must be summoned by the court, where this is possible, and must be examined in person by a psychiatrist (see sections 30(3) and 31(2) of the Mental Health Act). Proceedings must be concluded within seven days and a court decision must be issued within next three days (see sections 45(2) and 53(1) of the Non-Contentious Proceedings Act 1998; Zakon o vanparničnom postupku; published in OG FBH no. 2/98 of 20 January 1998; amendments published in OG FBH nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005). A court decision ordering civil psychiatric detention must always indicate the duration of such detention; that period cannot be longer than one year, but is renewable (see sections 33-35 of the Mental Health Act). The patient concerned, among other authorised persons and bodies, has the right to appeal within eight days (see section 37 of the Mental Health Act). The competent second-instance court must give a decision within three days (ibid.). A civil psychiatric detainee has the right to seek judicial review of his or her detention at any time (see section 40 of the Mental Health Act).
(b) As regards the non-custodial parent's rights
Under section 142(4) of the Family Act 2005 (Porodični zakon; published in OG FBH no. 35/05 of 20 June 2005; amendments published in OG FBH no. 41/05 of 13 July 2005) the non-custodial parent may raise an objection to an action of the custodial parent concerning their child before the competent court. Pursuant to section 315(3) of this Act, the presence of all parties to the proceedings is not required.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention about the conditions of his detention in Zenica Prison Forensic Psychiatric Annex. He also complains under Article 5 of the Convention of the unlawfulness of his detention.
2. Furthermore, the applicant believes that O.A. (whom he attempted to kill), together with a number of other individuals, secretly listened to his telephone conversations and induced him to use cannabis. In this connection, he complains about a failure of the authorities to prosecute and punish those individuals. He relies on Articles 2 and 6 of the Convention.
3. Lastly, the applicant complains about his lack of news concerning his son since he was taken to Norway by the applicant's former wife.
THE LAW
1. The Court considers that it cannot, on the basis of the case file, determine the admissibility of the applicant's complaints about the conditions and lawfulness of his detention in Zenica Prison Forensic Psychiatric Annex and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. In so far as the applicant complains about a failure of the domestic authorities to prosecute and punish certain individuals, the Court recalls that Article 6 does not guarantee a right, as such, to have criminal proceedings instituted against third persons or to have such persons convicted (see, among many authorities, Dziedzic v. Poland, (dec.) no. 50428/99, 25 November 2003). Furthermore, the Court considers that in the circumstances of the present case no positive obligation to prosecute arises under Article 2 or any other Article of the Convention.
This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.
3. In connection with the applicant's last complaint, the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system (the general principles concerning this rule were outlined in Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006). The applicant failed to submit this complaint to domestic courts pursuant to section 142(4) of the Family Act 2005. Since there is no indication that the remedy in question was for any reason inadequate or ineffective, this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints about the conditions and lawfulness of his detention in Zenica Prison Forensic Psychiatric Annex; and
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy