Α woman’s confinement with a psychiatric disorder in a psychiatric hospital after three expert reports. Non-infringement of personal freedom
JUDGMENT
P.W. v. Austria 21.06.2022 (app. no. 10425/19)
SUMMARY
Right to personal liberty. No deprivation of personal liberty is lawful unless it falls under the circumstances provided for in the Convention.
The applicant suffers from a schizophrenic disorder, a fact of which she was unaware. She was accused of resisting during her arrest by a police officer, whom she beat. The police officer had been called because the applicant refused to pay the taxi fare. The criminal court, taking into account three valid psychiatric reports, ordered her confinement in a psychiatric clinic for observation. She alledged a violation of the right to personal liberty, violation of fair trial because she was not examined by a fourth expert and for prohibited discrimination.
The Court reiterated its longstanding position that no deprivation of the personal liberty of a person deemed to have a psychiatric problem can be considered consistent with Article 5 § 1 (e) of the ECHR if it is ordered without consulting a medical expert. Any other approach falls short of the required protection against arbitrariness inherent in Article 5 of the Convention.
The ECtHR found that the applicant’s mental disorder had been established before a competent authority on the basis of objective medical opinions and was of a kind or degree that justified mandatory confinement and was unrelated to the nature or gravity of the offense she committed. Therefore, the applicant’s deprivation of liberty had proved necessary in the circumstances of her case and there was no violation of Article 5 § 1 (e).
It then ruled that there was no violation of the fair trial because the applicant had every opportunity to challenge the expert reports before the court.
Finally, it ruled that there was no discriminatory treatment because the specific offense she committed, resistance against the authority, could not be committed against a private person and rejected her appeal for Article 14 as manifestly unfounded.
PROVISIONS
Article 5
Article 6
Article 14
PRINCIPAL FACTS
The applicant, P.W., is an Austrian national who was born in 1964 and lives in Linz.
The case concerns her confinement in an institution for mentally ill offenders as a preventive
measure. She was charged with resisting arrest after she had struck a police officer who had been
called when she had been unable to pay a taxi fare.
Relying on Article 5 (right to liberty and security), Article 6 (right to a fair trial), and Article 14
(prohibition of discrimination) in conjunction with Article 5 of the European Convention on Human
Rights, Ms P.W. complains that her confinement in an institution for mentally ill offenders was not
proportionate or necessary, of not being allowed to consult an additional medical expert, and that
she would not have been confined had she slapped someone who was not a State official.
THE DECISION OF THE COURT…
Article 5 § 1 (e): The applicant had mainly contended that her confinement had been disproportionate to the underlying minor offence, and that there had been differing conclusions by the experts and therefore another, decisive, expert opinion had been called for. Three psychiatric experts, who were all medical specialists in psychiatry and neurology, had given their opinion concerning the applicant: two during the criminal proceedings and one in both the civil placement proceedings. Their opinions had thus been sufficiently recent in the circumstances of this case. The applicant had been diagnosed by all three experts, two of whom had been able to conduct face-to-face examinations of her, with a type of schizophrenic disorder. This was undoubtedly serious enough to be considered as a “true” mental disorder which might render treatment in an institution necessary. She had thus been reliably shown to be of unsound mind. Further, the applicant’s mental disorder had been established before a competent authority on the basis of objective medical expertise and had been of a kind or degree warranting compulsory confinement. The applicant’s deprivation of liberty had therefore been shown to have been necessary in the circumstances of her case. In this connection, the Court highlighted the Regional Court’s reliance above all on the detailed and lengthy opinion of one of the experts, who had conducted a face-to-face examination of the applicant, and his assessment of the danger she represented to others. During the trial that expert had discussed the other expert opinions and had explained the differences between them. Moreover, when deciding on the applicant’s confinement as opposed to outpatient treatment, the domestic courts had taken into account that the applicant had been described as lacking awareness of the fact that she suffered from a disorder, as displaying a negative attitude towards treatment, and as sometimes having refused to take medication in the past.
Furthermore, the Court of Appeal before confirming her continued confinement one year later, had reliably verified the persistence of her mental disorder on the basis of objective medical evidence. In particular, because of the lapse of time, it had sought a supplementary opinion from the expert whose report the Regional Court had relied on and who then held another face‑to‑face examination of the applicant. About two years later, the same regional court had ordered her conditional release from confinement.
While the Court was mindful of the fact that the applicant had been accused of attempted resistance to State authority, which the applicant considered an offence of a minor character and therefore not proportionate to the sanction of confinement as preventive measure imposed on her, it had already held that whether or not an offence was minor was not decisive when examining the compliance of a person’s deprivation of liberty with Article 5 § 1 (e). Indeed, the authorities were not required to take into account the nature of the acts committed by the individual concerned which gave rise to his or her compulsory confinement. Nonetheless, the Court took note of the currently ongoing discussion on a comprehensive reform of the system of preventive measures in Austria, in particular its aim to achieve compliance with the Court´s case-law, to strengthen the principle of proportionality in the system of preventive detention and to improve considerably the quality of the risk prognoses. This encompassed the aim of improving the quality of expert opinions produced in this context by, for example, establishing (minimum) quality standards for such expert opinions.
Conclusion: no violation (unanimously)
Article 14: It was evident from the definition in the Criminal Code of the offence of resistance to State authority that, while the use of “force” was a necessary requirement to establish that offence, its purpose was not to punish the fact that the applicant had hit a police officer but rather to punish (in this case) the attempt to prevent the police officer from performing an official act when the latter had been arresting her, contrary to the special protection the Austrian legislator had intended to confer on the enforcement and the exercise of State authority. The same provision could not come into play when the same action was done vis‑à‑vis a private citizen, so far as the latter were not entitled to perform an official act in the exercise of State authority. The applicant was therefore not in a relevantly similar situation with someone who had hit a private person.
Conclusion: manifestly ill-founded
