THIRD SECTION
DECISION
Application no. 44914/09
Svetlana Aleksandrovna NEDOROSTKOVA
against Russia
The European Court of Human Rights (Third Section), sitting on 7 June 2016 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 3 August 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Svetlana Aleksandrovna Nedorostkova, is a Russian national, who was born in 1958 and lives in St Petersburg. She was represented before the Court by Mr D. Bartenev, a lawyer practising in St Petersburg.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Placement of the applicant in a psychiatric hospital
4. On 1 May 2007 the applicant was taken to a psychiatric hospital under the involuntary admission procedure. On 4 May 2007 the Gatchina Town Court of the Leningrad Region (Гатчинский городской суд Ленинградской области) authorised the applicant’s involuntary hospitalisation.
5. On 13 July 2007 the applicant was discharged from the hospital.
6. On an unspecified date, the applicant brought appeal proceedings against the judgment of 4 May 2007. On 29 November 2007 the Leningrad Regional Court (Ленинградский областной суд) set aside this judgment because of “serious violations” related to the applicant’s representation in trial proceedings. The appeal court ordered a re-examination of the case; however it did not acknowledge that the applicant’s deprivation of liberty had been unlawful.
7. On 14 December 2007 the Town Court held a hearing and examined the hospital’s application for hospitalisation. During the hearing the psychiatrists stated that presently the applicant did not need to be hospitalised, while previously she had been in need of treatment. They further stated that they neither maintained nor withdrew their application of 2 May 2007. The Town Court examined the available materials and refused the hospital’s application for involuntary hospitalisation. On 28 February 2008 the Regional Court upheld the judgment. It stated in particular that in December 2007 when the application was re-considered by the Town Court there were no grounds for examination, since the applicant had been already discharged from the hospital and the psychiatrists had not been aware of her current mental health status. Neither the Town Court nor the Regional Court acknowledged that the applicant’s deprivation of liberty had been unlawful.
8. Thereafter, the applicant sued the hospital administration claiming damages caused by the allegedly unlawful deprivation of liberty from 1 to 13 July 2007 when she had been kept in the hospital against her will.
9. On 7 October 2008 the Town Court rejected her claim for damages, considering that the applicant had been admitted and kept in the hospital on the basis of a court decision valid at the material time. On 5 February 2009 the Regional Court upheld the judgment and, according to the applicant’s representative, its full text was made available to her on 27 February 2009.
B. Proceedings before the Court
10. On 3 August 2009 the applicant’s representative Mr D. Bartenev sent a letter to the Court expressing an intention to lodge an application on behalf of the applicant in relation to a violation of her right under Article 5 § 5 of the Convention. After providing summary of the relevant facts and arguments in respect of the applicant’s failed claim for damages (see paragraph 9 above) the letter stated that “the applicant’s representative submits the present application considering that the above mentioned actions of the domestic authorities had violated her rights guaranteed by paragraph 5 of Article 5 of the Convention”. The lawyer also indicated that the detailed complaint, together with an authority form, would be submitted on a later date.
11. On 26 August 2009 the Court acknowledged receipt of this correspondence and indicated that the completed application form should be dispatched by 21 October 2009 at the latest.
12. On 21 October 2009 Mr D. Bartenev dispatched to the Court the completed application form dated 7 October 2009 and an authority form of the same date. In the application form the representative re-stated the above complaint under Article 5 § 5 of the Convention and for the first time set out complaint under Article 5 § 1 of the Convention regarding the applicant’s hospitalisation in 2007.
COMPLAINTS
13. The applicant complained under Article 5 § 1 of the Convention that her involuntary hospitalisation in 2007 had been unlawful and that she had been refused compensation for an unlawful deprivation of liberty in violation of Article 5 § 5 of the Convention.
THE LAW
14. The Government in their submissions on the merits of the case stated that the applicant’s involuntary hospitalisation had been lawful and that she had no right to obtain compensation under Article 5 § 5 of the Convention. In the submissions on admissibility they raised two points. First, the Government alleged that the date of Mr D. Bartenev’s letter of 3 August 2009 should not be taken as an introduction date, since in the absence of a duly completed authority form there was no possibility to establish whether the applicant had an intention to lodge a complaint at that time. Second, they contended, referring to the decision Kaur v. the Netherlands ((dec.), no. 35864/11, 15 May 2012), that the introduction date for the applicant’s complaint under Article 5 §§ 1 and 5 of the Convention was the date on the application form of 7 October 2009 (posted on 21 October 2009). Therefore the complaints were inadmissible as lodged out of time.
15. The applicant’s representative in his submissions on the merits of the case alleged that the applicant was denied compensation under Article 5 § 5 of the Convention despite her deprivation of liberty in violation of Article 5 § 1 of the Convention. In the submissions on admissibility of the case he countered the Government’s objections. He claimed that the complaint under Article 5 § 1 of the Convention “was first raised in essence in the letter dated 3 August 2009”. In his opinion the reference to “above mentioned actions” (see paragraph 10 above) provided sufficient factual and legal basis for this complaint. He further stated, referring to the decision Post v. Netherlands ((dec.), no. 21727/08, 20 January 2009) that the introduction date for all the complaints was the date on the first letter, since the authority form was submitted along with the application form without undue delay.
16. Having regard to the parties’ submissions, the Court must consider whether the complaints under Article 5 §§ 1 and 5 were lodged within the six months time-limit prescribed by Article 35 § 1 of the Convention.
17. The Court notes at the outset that it has already examined cases where the complaints were lodged on the applicants’ behalf by their representatives having no authority forms at the time of the first communication. In these cases the Court stressed that in order to institute and pursue the Convention proceedings on behalf of purported applicants their representatives must not fail to provide the Court with authority forms for an unexplained and unlimited length of time or after repeated requests to supply these forms (see Fitzmartin and Others v. the United Kingdom (dec.), no. 34953/97, 21 January 2003; Post, cited above; and Kaur, cited above).
18. In the Court’s opinion no similar issue arises in the present case, since Mr D. Bartenev’s first letter of 3 August 2009 clearly indicated that the authority form would be submitted along with the duly completed application form, which indeed reached the Court in less than three months. Accordingly, the Court accepts that the first letter in the present case was capable of interrupting the six months time-limit.
19. However, the Court reiterates that for the purposes of the six months rule an application is considered submitted for European supervision if it satisfies two criteria: 1) a temporal criterion setting the final calendar date when a communication may be sent to the Court; and 2) a substantive criterion obliging the applicant to indicate the relevant facts and the nature of an alleged violation (see Zverev v. Russia (dec.), no. 16234/05, § 14, 3 July 2012). The case-law is clear that the complaint is characterised not merely by the legal grounds or arguments relied on, but also by the facts alleged in it and that the mere mentioning of an Article of the Convention may not be regarded as a complaint (see Zverev, cited above, §§ 12-13 with further references).
20. The Court must determine the dates on which the applicant’s representative submitted the complaints under Article 5 §§ 1 and 5 of the Convention indicating the relevant facts and the nature of the alleged violation, and whether these dates are within the six months time-limit prescribed by Article 35 § 1 of the Convention.
21. As regards the complaint under Article 5 § 5 of the Convention concerning the applicant’s inability to obtain compensation for an allegedly unlawful deprivation of liberty, the parties do not dispute that the relevant facts and legal grounds was indicated with sufficient clarity in the letter of 3 August 2009. The Court sees no reason to rule otherwise and considers that this complaint complied with the six months rule.
22. As regards the complaint under Article 5 § 1 of the Convention, the Government considered that it was first raised in the application form of 7 October 2009 (posted on 21 October 2009) and, accordingly, lodged out of time. The applicant’s representative considered that the “above mentioned actions” reference in the first letter of 3 August 2009 (see paragraph 10 above) provided sufficient factual and legal basis for this complaint. That letter, presented by a professional lawyer, clearly and unambiguously stated the facts and complaints under Article 5 § 5 of the Convention, while did not refer in a similar manner to the facts and complaints under Article 5 § 1 of the Convention. Accordingly, it is not possible to rule that that reference satisfied the requirement of indicating the factual basis of the complaint and the nature of the alleged violation. In the Court’s opinion this complaint was first raised in the application form of 7 October 2009 (posted on 21 October 2009), which was more than six months after either the final judgment of 28 February 2008 dismissing the application for involuntary hospitalisation as unsubstantiated or the final judgment of 5 February 2009 dismissing the applicant’s claim for damages. Therefore, the applicant’s complaint under Article 5 § 1 of the Convention must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
23. Lastly, it falls to be examined whether the applicant’s complaint under Article 5 § 5 of the Convention is admissible within the meaning of Article 35 of the Convention.
24. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 14, § 38). At the same time it is an established principle that the right to compensation set forth in Article 5 § 5 presupposes that a violation of one of the other paragraphs had been established, either by a domestic authority or by the Convention institutions (see N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002‑X).
25. The Court observes that no such violation had been established in the present case by the domestic authorities, which by the final decision of 5 February 2009 dismissed the applicant’s claim for damages in connection with her placement to a psychiatric facility in 2007. Further, having regard to the conclusions above regarding admissibility of the complaint under Article 5 § 1 of the Convention, the Court is precluded from considering whether there has been a violation of Article 5 §§ 1-4 of the Convention requisite for examination of any Article 5 § 5 claim.
26. Therefore, since in the present case no violation of Article 5 §§ 1-4 had been established either by the domestic authorities or this Court, the applicant’s complaint under Article 5 § 5 must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 June 2016.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy