Communicated on 30 June 2014
FIRST SECTION
Application no. 28932/14
Šemso HODŽIĆ
against Croatia
lodged on 8 April 2014
STATEMENT OF FACTS
The applicant, Mr Šemso Hodžić, is a national of Bosnia and Herzegovina and Croatia, who was born in 1952 and lives in Lovran. He is represented before the Court by Mr A. Ademović, a lawyer practising in Sarajevo.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 May 2012 the applicant was arrested and detained in connection with a suspicion of making serious threats.
In the course of the investigation the Zagreb Municipal State Attorney’s Office (Općinsko državni odvjetništvo u Zagrebu) commissioned a psychiatric expert report concerning the applicant’s mental status.
On 28 June 2012 psychiatric expert E.S. submitted her report indicating that the applicant had paranoid schizophrenia and that he posed danger to others, which warranted his psychiatric internment. The expert witness noted that she had not inspected any medical documents concerning the applicant’s previous psychiatric treatment.
On 10 July 2012 the Zagreb Municipal State Attorney’s Office indicted the applicant in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of making serious threats.
On 27 July 2012 a three-judge panel of the Zagreb Municipal Criminal Court found that the indictment was flawed as it had been based on an expert report which had been incomplete since it had not taken into account all the applicant’s medical records.
The psychiatric expert E.S. supplemented her report on 24 August 2012. She stated that for her the applicant’s diagnosis had been fully clear after the first examination, and that she had not needed any medical documentation to give a diagnosis. Thus, after she had inspected the applicant’s medical records which she had obtained in the meantime, she reiterated her previous opinion.
Meanwhile the applicant was released from detention because the maximum period for his pre-trial detention expired.
On 28 August 2012 the Zagreb Municipal State Attorney’s Office submitted new indictment against the applicant in the Zagreb Municipal Criminal Court. This indictment was confirmed and accepted on 3 October 2012.
At the hearing before the trial court, the applicant motioned to have his psychiatrist V.G., an university professor, heard, as well as his general practitioner V.P. and several other witnesses, his neighbours, who could all give evidence as to his mental status. He also argued that he had had previous conflicts with the victims and asked that the police be requested to submit the relevant information in that respect.
During the proceedings the trial court heard the expert witness E.S., who reiterated her previous opinion, and several prosecution witnesses. It dismissed all the applicant’s requests for evidence on the grounds that they were irrelevant. In particular, as to the general practitioner V.P., the trial court held that she was not an expert in the field of psychiatry and that her documentation had been taken into account by the expert E.S. The trial court also considered that the same arguments apply to the psychiatrist V.G.
On 23 January 2013 the Zagreb Municipal Criminal Court found that the applicant had committed the offence of making serious threats in the state of insanity and decided that he should be internment in the psychiatric hospital for six months.
The applicant appealed against this judgment before the Zagreb County Court (Županijski sud u Zagrebu) alleging numerous substantive and procedural flaws. In his appeal he referred to a report of the psychiatrist V.G. of 13 December 2012 indicating that there were no grounds for his psychiatric internment and that any such decision could have severe consequences for his health.
On 9 July 2013 the Zagreb County Court dismissed the applicant’s appeal on the grounds that all revenant facts had been sufficiently and correctly established.
In the meantime, the applicant went to Sarajevo, Bosnia and Herzegovina, where he underwent another medical treatment by a concilium of two experts in forensic psychiatry, A.K., A.B.M..; and a psychologist S.P. In their report of 10 August 2013 the experts indicated that the applicant had certain mental disorders of a histrionic type, but that he did not have paranoid schizophrenia. They also stated that he was fully conscious of his acts and critical towards his conduct.
On 21 October 2013 a single judge of the Zagreb County Court ordered that the applicant be sent to the psychiatric hospital.
The applicant appealed against this decision referring, inter alia, to the expert report drafted on 10 August 2013.
On 23 October 2013 the applicant also lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the decisions of the lower courts.
On 7 November 2013 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal on the grounds that nothing had put into doubt the decision of the Zagreb Municipal Criminal Court under which the applicant should be placed in a psychiatric hospital.
On 27 November 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.
COMPLAINTS
The applicant complains, under Article 5 §§ 1 (e) and 4 of the Convention, about the procedure and decisions on his internment in the psychiatric hospital.
The applicant also complains about the lack of fairness of the criminal proceedings against him, in that all his evidence by which he attempted to refute the expert report indicating his psychiatric internment had been dismissed.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 (e) of the Convention? In particular, has it been reliably shown that the applicant was of unsound mind, and that his mental disorder was of a kind or degree warranting compulsory confinement (see Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012)?
2. Did the applicant have at his disposal an effective procedure by which he could challenge the decisions on his psychiatric internment, as required by Article 5 § 4 of the Convention? In particular, was the principle of equality of arms respected?
3. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the admission of the psychiatric expert reports into evidence in the criminal proceedings against the applicant on charges of making serious threats?
The Government are requested to submit copies of all relevant documents in the applicant’s case.
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