Failure to allow a psychiatric detainee to attend her mother’s funeral violates her right to family life.

JUDGMENT

Solcan v. Romania 08.10.2019  (no. 32074/14)

see here  

SUMMARY

Failure to permit a schizophrenic criminal detainee at a psychiatric clinic to attend her mother’s funeral violated her right to family life.

Restrictions on the rights and freedoms of the individual.

The applicant, who is suffering from schizophrenia, is involuntarily detained in a psychiatric clinic for committing a violent murder. After eight years of detention,  she applied to attend her mother’s funeral, but the domestic court finally rejected her request without seeking a recent diagnosis for her health.

In the Court’s view, the unconditional refusal of the domestic courts to grant her  leave  or other solution that would allow the applicant to attend her mother’s funeral is incompatible with the State’s duty to assess each individual request as to its merits. Whereas the restriction of the right of the person to attend the funeral of his/her relative was “necessary in a democratic society”, in combination with the fact that the state authorities did not handle the applicants request speedily, but one month after the funeral,  held that there is a violation of Article 8 of the Convention.

PROVISION 

Article 8

PRINCIPAL FACTS

The case concerned the authorities’ refusal to allow a person being held in a psychiatric facility to
attend her mother’s funeral.

The applicant, Luminiţa Zamfira Solcan, is a Romanian national who was born in 1969 and is
currently in a psychiatric facility in Pădureni-Grajduri (Romania). She committed a murder in France
in 2005 and, diagnosed with paranoid schizophrenia, has been held since then in psychiatric
facilities, first in France and as of 2012 in Romania.

Her mother died in 2013 and she lodged a request with the district court for leave to attend the
funeral. The court refused because she posed a danger to the public on account of her mental
health. In a final decision the County Court dismissed her appeal on points of law as there were no
legal provisions allowing detention in a psychiatric facility to be interrupted.

Relying on Article 8 (right to respect for private and family life), she complained about the refusal to
allow her to attend her mother’s funeral, also pointing out that the decisions in her case had only
been taken after the funeral had actually taken place.

THE DECISION OF THE COURT…

According to the Courts case-law, Article 8 of the Convention does not guarantee a detained person an unconditional right to leave to attend a relatives funeral. At the same time the Court emphasises that even if a detainee by the very nature of his situation must be subjected to various limitations of his rights and freedoms, every such limitation must be nevertheless justifiable as necessary in a democratic society. The State can refuse an individual the right to attend his or her parents funerals only if there are compelling reasons and if no alternative solution can be found. In addition, the Court reiterates that perpetrators of criminal acts who suffer from mental disorders and are placed in psychiatric facilities are in a fundamentally different situation than other detainees, in terms of nature and purpose of their detention. Consequently, the Court accepts that there are different risks to be assessed by the authorities when the request for temporary release is made by a detainee from a psychiatric facility.

The Court observes that the applicant was involuntarily admitted to a psychiatric facility because she had committed a violent crime in 2005. Seven years later, in 2013, the domestic courts dismissed her request to attend her mothers funeral without any apparent assessment of her condition at that time. In particular, when considering the request on its merits, the first-instance court referred only to her initial diagnosis and in general to the danger she might pose to the public because of her illness. There is no evidence that the applicants situation was assessed either by medical experts or by the court itself in relation to the request to attend the funeral.

Furthermore, in the final decision of 22 October 2013, the applicant was eventually denied the right to attend her mothers funeral on the sole grounds that the domestic law did not provide for such a possibility. Her individual situation was not assessed at all by the Iaşi County Court.

Taking into account the seriousness of what was at stake in this case, namely refusing an individual the right to attend her mothers funeral, even if the applicant could be seen as posing a threat to public safety at the relevant time, the domestic courts should have explored alternative ways of ensuring her attendance at the funeral and only dismissed her request for leave if none could be found. The Court observes, for instance, that one patient in a similar situation was able to have escorted leave . In the applicants case the domestic courts did not even consider that as an option.

In the Courts opinion the unconditional denial by the domestic courts of compassionate leave or another solution to enable the applicant to attend her mothers funeral is not compatible with the States duty to assess each individual request on its merits and demonstrate that the restriction on the individuals right to attend a relatives funeral was “necessary in a democratic society”.

Lastly, the Court notes that the State authorities did not handle the applicants request for leave diligently and speedily; her request was examined by the first-instance court a month and a half after her mothers funeral had taken place , thus depriving a possible decision to grant leave of any useful effect.

In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention.

The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. She submitted that the inability to attend her mothers funeral had caused her lasting suffering.

The Government submitted that the applicants claim was excessive and asked the Court to rule that the finding of a violation constituted in itself sufficient just satisfaction.

In the circumstances of this particular case and deciding on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.

The applicant did not claim any costs and expenses. The Court is therefore not called upon to make any award under this head.echrcaselaw.com.


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