Article 5 of the European Convention on Human Rights (ECHR) protects the personal liberties and fundamental freedoms of those who have been deprived of liberty. Scope of application of Article 5 covers deprivation of liberty in criminal, as well as in civil proceedings, extending to the following subjects:
1) arrest and detention of a person (Article 5(1));
2) informing the person of the reasons of his arrest and the charges against him (Article 5(2));
3) right to trial within a reasonable time (Article 5(3));
4) right to access to court and court authorisation (Article 5(4));
5) right to compensation (Article 5(5)).
Scope of application of Article 5 of ECHR partially coincides with the scope of Article 6 (right to fair hearing in court). Since Article 5 also covers the right to a fair trial for the detained, the ECHR case law states those people are not subject to additional application of Article 6 of ECHR.
European Court of Human Rights (ECtHR) explained in its case Winterwerp v. Holland:
“The judicial proceedings referred to in Article 5 para. 4 need not … always be attended by the same guarantees as those required under Article 6 para 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty”. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.”
Article 5(3) of ECHR – Entitlement to a trial within a reasonable time or a release pending trial.
ECtHR made a decision in Malkov v. Estonia where the petitioner claimed the state of Estonia breached the right stated in Article 5(3) of ECHR – the entitlement to a trial within a reasonable time, as well as the right stated in Article 6(1) of ECHR – the entitlement to a fair and public hearing within a reasonable time.
The investigative action in the criminal case at hand began for the petitioner when he was heard as a witness on August 10th, 1999. The petitioner was arrested as a suspect on December 1st, 2003. Viru County Court reached the decision in the case on September 4th, 2008. Tartu Circuit Court reached its decision on January 27th, 2009 and thereby reduced the penalty given by Viru County Court. Tartu Circuit Court established that the proceedings in the criminal case lasted 10 years and 6 months in its entirety and concluded that the proceedings in the criminal case were not carried out within a reasonable time. The court also established that the fact that the accused spent 5 years and 2 months in custody pending trial as inconsequential.
The ECtHR established that the State of Estonia breached the petitioner’s entitlement to trial within a reasonable time as stated in Article 5(3).
The court pointed out the following circumstances.
- The petitioner attempted to be released during the trial repeatedly and without consequences. According to the law the rulings of the court of first instance do not have the right to appeal. The Court also stated that the petitioner was also not able to contest his detainment in an appeal as the court was still discussing his case (point 38 of the court judgment).
- Contrary to the claims of the Government of Estonia the petitioner never lost his status as a victim, since Tartu Circuit Court never expressly stated in its judgment of January 27th, 2009 that Viru County Court had in its earlier judgment breached Article 5(3) of ECHR; neither did the Tartu Circuit Court connect the significant reduction of petitioner’s sentence with the breach of this article (point 41 of the court judgment).
- The Government’s claims that the proceedings are particularly complicated are unfounded.
- Care must be taken that criminal proceedings are carried out with special care (p. 49). In this case it did not happen (p. 50) the non-permissible length of the proceedings was due to constant suspension of the process, the inability to ensure the presence of the witnesses, the illness of the parties to the process, the death of the judge who commenced the proceedings and the backing down of the two consecutive judges (p. 51)
The Court did not allow the petitioner’s appeal regarding the alleged breach of fair trial stated in Article 6(1), finding that Tartu Circuit Court did refer to Article 6(1) of ECHR when it reduced the petitioner’s penalty.
Detainment for the purpose of conducting an expert analysis.
In the summer of 2010 a case received general attention, where the Harju County Court applied compelled attendance to bring the person before an expert, as well as placement of the person in a medical institution against his will for observation for a month. This took place in a civil dispute of determining a residence for a child.
Since the object of the examination did not appear before an expert at a determined date the experts pursued the compelled attendance and the placement of the person in a medical institution for observation. The purpose of the examination was to determine the person’s active legal capacity and the active civil procedural legal capacity. The person in question did not have a psychiatric diagnosis nor had he ever been subject to psychiatric treatment; he was not filed a petition against with the court for appointment of guardianship and/or for placing him in a closed institution.
The court substantiated the application of compelled attendance and the placement in a closed institution with a procedural provision that regulates placement in a closed institution. The law states that if a person refuses examination for verification of the existence of the passive civil procedural legal capacity and active civil procedural legal capacity of the participant in a proceeding, the court shall initiate proceedings for appointing a guardian for the participant in the proceeding (Code of Civil Procedure § 204(2)). The same provision does not state application of compelled attendance and examination in a closed institution against the person’s will. Code of Civil Procedure states that a person may be placed in a closed institution based on a petition by the rural municipality or the city government of the place of residence of the person (§533(1)) or in some instances by the petition of the guardian (§ 533(2)).
The person himself must be heard (§ 536(1)) along with the rural municipality or the city government, the spouse of the person and other family members who live with the person, the guardian of the person, the trustee appointed by the person etc (§ 536(2)).
The court may place a person in a closed institution only based on an expert opinion prepared by an expert who has personally examined or questioned the person (§537(1)). The court may order placement of the person in a medical institution for observation if there is not sufficient material to conduct an examination (§ 522(3) and § 537(4)). It must also to be noted that the Code of Civil Procedure only imposes compelled attendance on instances prescribed by law, whereas the person must be warned in advance (§ 47(4)). Therefore the court cannot apply discretion in this question.
According to the law the person may be placed in a medical institution for observation only in the context of prescribing a guardian (§ 522 (3)) and in the context of placing in a closed institution (§ 537(3) and (4)).
In this case the person was hospitalised without a warning of compelled attendance and in a proceeding where the Code of Civil Procedure does not prescribe the option of compelled attendance. The court thus placed the person in a situation where it was difficult for him to protect his rights due to being in a closed institution.
Tallinn Circuit Court decided in its ruling of June 18th, 2010 that applying compelled attendance and placing the person in a medical institution for observation was unlawful, because the County Court was not processing an appeal from a municipality or a city government for placing a person in a medical institution against his will, but an appeal regarding a child’s custody. Tallinn Circuit Court was of the position that the need for limitation of a person’s active legal capacity must be considered extremely carefully also in a civil proceeding. In no case may such limitation excessively limit a person’s right to autonomy and self-determination. The court also assumed the position that limitation of a person’s active legal capacity, especially in court proceedings, must be an extreme measure, which is applied on the condition that there is no other way to guarantee the person’s fundamental rights and freedoms.
Consistency with Human Rights
Article 5(1) of Convention for the Protection of Human Rights (ECHR) and Fundamental Freedoms as well as § 20 of the Constitution of the Republic of Estonia state the principle of security of a person – that freedom can only be taken in instances stated in law, according to lawful procedure.
Even though Article 5 of ECHR linguistically contains criminal law terminology, it also protects the rights of persons placed in closed institutions in the course of civil procedure.
ECtHR determined in its classic case of Winterwerp v. Holland, what constitutes lawfulness in detention of a person of an “unsound mind”.
- The person must be reliably established to have an “unsound mind”, whereas his mental state is such as to justify his compulsory hospitalisation. Moreover, the lawfulness of detention depends on persistence of such a disorder.
- The authorities have a certain discretion in deciding upon criteria of an “unsound mind”.
- In the case where the doctor’s opinion is based on medical information, which does not express the person’s condition at the time of making the opinion, then the delay between the clinical examination and the drawing up of the medical opinion may in itself be in contradiction of the basic principle of Article 5 of ECHR (protection against arbitrary detainment).
- The national civil law must be in accordance with the ECHR, including the general principles stated or implied within.
The opinion that the ECHR has a wider application than just criminal law was explained by ECtHR in 1990 in its judgment Van der Leer v. Holland:
“The Court is not unmindful of the criminal-law connotation of the words used in Article 5(2). However, it agrees with the Commission that they should be interpreted “autonomously”, in particular in accordance with the aim and purpose of Article 5, which are to protect everyone from arbitrary deprivations of liberty.”
Therefore Article 5 of ECHR is undeniably applicable in civil law procedures of assigning persons with mental disorders into closed institutions.
ECtHR repeated the principles that Article 5(1) primarily demands that the detention be lawful in its recent case of Gatt v. Malta. This primarily means that detention is carried out in accordance with national law. However, the court draws attention to the fact that any detention must also be consistent with the purpose of Article 5 of ECHR, to protect individuals from arbitrariness.
The aforementioned Harju County Court decision of May 21st, 2010 breached the right to freedom stated in § 20 of the Constitution and Article 5(1) of ECHR as well as the important principle of legality stated in those provisions.
Action justifying detention
1) the person has a severe mental disorder which restricts his or her ability to understand or control his or her behaviour;
2) without inpatient treatment, the person endangers the life, health or safety or himself or herself or others due to a mental disorder;
3) other psychiatric care / other welfare institution measures are not sufficient or their use is not possible.
Rules of procedure for placing a person in closed institution are stated in chapter 54 of Code of Civil Procedure.
The legislator has not specifically described what is understood by endangering and what the criteria for measuring danger are.
Therefore parties to the proceeding of placing persons in a closed institution as well as the court lack a clear understanding as to what is considered dangerous. The definition of ‘dangerous’ has so far been defined by the Supreme Court and its decisions. This year the Tallinn Circuit Court has expressed an understanding towards human nature and conceded that in certain circumstances irritability and instability may be a sign of a normal human reaction.
To be precise, the Tallinn Circuit Court said the following in its decision of August 18th, 2010:
“The Circuit Court hereby agrees with the view of the petitioner that in a situation where a person has been placed in a psychiatric clinic against his will and is therefore clearly irritated and instable, the aforementioned behaviour cannot be interpreted as a mental disorder or as being dangerous to himself or others. Such behaviour may, according to the petitioner, even be justified and considered normal, if a person has been unjustifiably and unfoundedly placed in a closed institution against his will.”
The Tallinn Circuit Court said in its ruling of October 12th, 2010, which annulled Harju County Court’s earlier ruling regarding involuntary emergency psychiatric care:”It cannot be inferred that a person is a danger to himself or those around him from the fact that the person is singing, running around or dancing or making ridiculous demands.”
These are important rulings as courts of first instance consider the practice of the circuit courts in their decision-making.
Application of less restrictive measures
“Letting dangerous crazy people loose?” – such media reaction was caused by a draft concluded by Ministry of Justice in 2010, which reached the second reading in Riigikogu in February of 2010. The need for a change in the system of coercive treatment grew apparent when the survey of 2008, conducted by Ministry of Justice, was published.
The survey titled “Analysis of speed and organisation of coercive treatment for people with psychological disorders” also contained the suggestions:
“…to create a “conditional” option for application of the coercive treatment, so that persons whose condition has improved need not be kept on the coercive treatment, but if the person commits a new act or becomes dangerous, an easier process would be employed to send him or her back into treatment; to create a system for ensuring the quality of examinations; to create support system for those who have been noted to have more sever mental disorders or who at least has been applied coercive treatment to.”
The daily paper Postimees presented an overview of opinions of various parties to the question of coercive treatment in its article, which stated as its title that the draft allows some of the mental patients who have committed an offence to be let loose.
The head of The Estonian Patient Advocacy Association (EPAA) Pille Ilves has stated that more harmless mental patients would need to visit a psychiatrist once or twice a month, get the so-called behavioural injection, and they could lead a rather normal life with this treatment. Deputy secretary general of Ministry of Justice Heili Sepp stated that the advantage of the ambulatory coercive treatment is that it is very flexible and allows for better opportunities for handling offenders and for re-associating them. The President of Estonian Psychiatric Association Andres Lehtmets is of the following opinion:
“Coercive treatment is not a regular health service. Whereas normally a patient turns to a doctor as a client, coercive treatment is obligatory. Persons treated by ambulatory coercive treatment need to be supported by psychiatrists with special training. The contingent subjected to coercive treatment needs specialised help for the system to work. This cannot be trusted with just any psychiatrist. Forensic psychiatry is treated as a special field in Europe.”
The adoption of the law amendment by Riigikogu is a welcome development, which legalises ambulatory coercive psychiatric treatment as it is a substantially less restrictive measure than stationary treatment. The adopted law preserved what had been set out in the draft act, according to which the ambulatory coercive psychiatric treatment will be regulated by § 17 of the Mental Health Act and the implementing provisions of the Minister of Social Affairs that specify the requirements made to the provider of coercive treatment, the requirements of the treatment and the organisation of work for the health service provider. Although the current act does not yet state who will be carrying out the surveillance over ambulatory and stationary coercive psychiatric treatment (if at all), this surveillance will be carried out by the Health Board as of September 1st. The amendments pertaining to the coercive treatment in the Code of Criminal Procedure nor the Mental Health Act provide an explanation how the state plans on ensuring the surveillance system of the persons subject to ambulatory coercive treatment, the timely access to consultation of the persons subject to coercive treatment and the necessary training for the psychiatrists. Nor does it appear from the draft who is responsible for the damage, which occurs in the course of the ambulatory coercive treatment. Is it the state or the health service provider? The Supreme Court found in its resolution of April 17th, 2009 in the case of M. V v. The State of Estonia and The North Estonia Medical Centre that regardless the intent determined in civil court procedure or administrative court procedure the coercive treatment constitutes a relationship based on law of obligations and damages occurred in this relationship are not the responsibility of the state.
This opinion of the Supreme Court contradicts the practice of ECtHR where the court found in the case of Storck v. Germany that the state is responsible for coercive psychiatric treatment in a private medical institution.
National legislation should be applicable in a way that coincides with the practice of ECtHR.
The Member States, primarily their courts, must apply national law in the spirit of the rights of the Convention. Failure to do that may qualify as a breach of a ECHR provision by the state.
Compensation for unlawful detention
The object of regulation of Article 5 of ECHR is also the compensation for unlawful arrest or detention. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation (Article 5(5)). The Constitution states that everyone has the right to compensation for moral and material damage caused by the unlawful action of any person (§ 25 of the Constitution).
In criminal cases the damage caused to a person detained unlawfully is compensated according to the Compensation for Damage Caused by State to Person by Unjust Deprivation of Liberty Act (The Compensation Act). The compensation is paid in a determined amount, not considering the aforementioned constitutional regulation. This regulation did apply in criminal cases until V. Õiglane who had been under arrest unlawfully for 171 days filed a complaint with the Administrative Court, which found that paragraph 5 subsections 1, 2 and 4 of the Compensation Act have to be declared contradicting the paragraphs 11, 12 and 25 of the Constitution. The Administrative Law Chamber of The Supreme Court conceded that the current law does not contain clear regulations, which would allow for solving claims regarding compensation for damages of unlawful detention.
The Supreme Court en banc took the view that since it also has to adopt a position on whether paragraph 5 subsections 1, 2 and 4 of the Compensation Act are in accordance with the principle of equal treatment and compensation for damages stated in paragraphs 12 and 25 of the Constitution as well as the constitutionality of paragraph 15 subsection 1 of the State Liability Act in so far as it sets limits to compensating for damages in course of unlawful arrest, it also includes the Riigikogu, Chancellor of Justice and the Minister of Justice in the proceedings of the cassation appeal of V. Õiglane.
The Chancellor of Justice stated in his reply to the Supreme Court that paragraph 5 subsections 1, 2 and 4 of the Compensation Act are in contravention of the Constitution in so far as the payment of a standard compensation is considered to be the compensation for the revenue forgone because of unfounded detention.
The Compensation Act provides a regulation for criminal proceedings, which allows compensation for damages for those who have been deprived of liberty unjustly, however, for those who have been unjustly detained in a civil court proceeding, as in the aforementioned case, the law does not provide any measures for compensation. Yet, the state of Estonia did sign an agreement on July 11th, 2008 regarding a case before ECtHR, M.V. v. Estonia, by which it was decided that the Ministry of Justice will compose a draft for an act, which provides provisions for compensation for damages for persons who have been unjustly detained in psychiatric hospitals or social welfare institutions in the course of civil court proceedings.
The fact that this promise made by the Government has still not yet been fulfilled and that there is no compensation mechanism for compensation for damages incurred in the course of civil court proceedings was pointed out by the Estonian Patient Advocacy Association and the Mental Disability Advocacy Centre in the shadow report on the implementation of the International Covenant of Civil and Political Rights by Estonia in 2010. The UN Human Rights Committee didn’t consider this important enough to include in the concluding observations on Estonia made on August 4th, 2010.
The ECtHR continued its criticism regarding unreasonably long duration of court proceedings in 2010, which in this case meant detention of a person for a large extent of the proceedings and his fruitless attempts to stop the detention. This criticism is especially regrettable considering that Estonia has been criticised about this for years. An unfulfilled promise given by the Ministry of Justice in 2008 regarding drawing up of a draft act allowing persons to be compensated for being placed in a social welfare institution in the process of civil proceeding came to the fore in 2010,
The offhanded decision of the Harju County Court to place a person in a psychiatric hospital in the course of a family law case is regrettable as well as completely without a legal basis. However, court decisions made in two other cases, where Tallinn Circuit Court in the course of defining the term ‘dangerous’ stated that irritability and instability of a person in a condition where he has been placed in a psychiatric hospital against his will does not necessarily remark dangerousness, can be considered a positive development. This behaviour is rather a normal reaction to a situation of groundless detention.
Amendments to the legislation enabling ambulatory coercive psychiatric treatment can be considered yet another positive development. As a result, socially harmless persons who need psychiatric treatment, do not have to stay in institutions permanently, but may go receive treatment as per prescription.
– Review regulation regarding court proceedings and analyse the reasons why Estonia is unable to fulfil the obligation stemming from ECHR regarding entitlement to a trial within a reasonable time or the inability to release the person for the duration of court proceedings.
– Analyse reasons that made possible the Harju County Court decision to place a person in a psychiatric hospital on illegal grounds and in a way that made protection of his rights difficult.
– Implement the agreement that Estonia signed in connection with the ECtHR case M.V. v. Estonia 11 July 2008 taking on the obligation to compose an act, which provides compensation for damages for persons who have been unjustly detained in social welfare institutions in the course of civil court proceedings.
 See for example ECtHR, 4 February 2010 judgment Malkov v. Estonia. Application no. 31307/07.
 ECtHR, 24 October 1997 judgment Winterwerp v. the Netherlands. Application no. 6301/73, § 60.
 Malkov v. Estonia.
 European Convention on Human Rights (ECHR). Adopted in Rome 4 November 1950. Estonia signed it 14 May 1993 and ratified it 16 April 1996. Article 5(3) states: “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
 Article 6(1) states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
 Code of Criminal Procedure (RT I 2003, 27, 166 … RT I, 23.02.2011, 2) § 385(6)¹ states that an appeal shall not be filed against a ruling on verification of the reasons for the arrest.
 Harju County Court, Civil case number 2-09-66820 (21.05.2010).
 Article 537(3) and (4) of Code of Civil Procedure (RT I, 30.12.2010, 2) state:
“(3) If a person is ordered to undergo an examination, such person is required to appear before an expert. If the person fails to appear before an expert, the court may, after hearing the opinion of the expert, impose compelled attendance to bring the person before the expert.
(4) After hearing the expert, the court may order placement of the person in a medical institution for observation for up to one month if this is necessary for conduct of an examination. Before a decision is made, the person shall be heard. Where necessary, the court may extend, by a ruling, the time for placement of a person in a medical institution to up to three months and apply compelled attendance with respect to the person.”
 Tallinn Circuit Court, civil case number 2-09-66820 (18.06.2010).
 The closed institutions in this case are psychiatric and/or communicative diseases’ hospitals and the closed wards of social care institutions.
 Winterwerp v. the Netherlands.
 In the context of Estonian law this means, depending on the measure taken, a psychiatric opinion or an opinion of an expert appointed by the court.
 In the context of Estonian law the term “psüühilise erivajadusega inimene” (a person of psychiatric special needs) is used.
 ECtHR. 21 February 1990 judgment Van der Leer v. The Netherlands. Application no. 11509/85, § 27.
 ECtHR. 27 July 2010 judgment Gatt v. Malta. Application no. 28221/08, §40.
 Mental Health Act. RT I 1997, 16, 260 … RT I, 23.02.2011, 2.
 Social Welfare Act. RT I 1995, 21, 323 … RT I 2010, 41, 240.
 See for example The Civil Chamber of Supreme Court. Judgment in a civil matter no. 3-2-1-145-06 (2.03.2007).
 Tallinn Circuit Court case in a civil matter no. 2-10-26582 (18.08.2010).
 Tallinn Circuit Court case in a civil matter no. 2-10-29892 (12.10.2010).
 Kriminaalmenetluse seadustiku ja sellega seonduvate seaduste muutmise seadus [Act amending the Code of Criminal Procedure and other connecting acts]. RT I, 23.02.2011, 1.
 § 1(2) and (3) of the State Liability Act state:
(2) This Act does not regulate the restoration of rights or compensation for damage in private law relationships. (3) Causing damage in a private law relationship means a public authority causing damage in the following circumstances:
1) upon the violation of a prestation, including providing transport services, health services or other services as a person in private law
 The Supreme Court, resolution of Administrative Law Chamber 17.04.2009. in the civil case no. 3-3-1-16-09, paras 14-15.
 ECtHR. 16 June 2005 judgment Storck v. Germany, § 93. Application no. 61603/00.
 § 5(1) of the Compensation Act (RT I 1997, 48, 775 … RT I 2004,46,329) states that the damage is compensated in an amount of seven daily rates (days’ wages) for each twenty-four hour period during which the person was unjustly deprived of liberty.
 The Supreme Court, resolution of Administrative Law Chamber in administrative case no. 3-3-1-69-09, (15.03.2010) § 23.
 The Supreme Court en banc, resolution in the civil case no. 3-3-1-69-09 (15.06.2010), § 24(2).
 Chancellor of Justice (2010). Arvamus põhiseaduslikkuse järelevalve kohtumenetluses [Constitutional review in court proceedings]. No. 9-2/101471/1005395. 10.09.2010. Available at: http://www.oiguskantsler.ee/public/resources/editor/File/ERIMENETLUSED/Arvamused_Riigikohtule_2010/Riigikohus_arvamuse_edastamine_AVVKHS___5_lg_1_ja_2_ning_lg_4_ls_1_p_hiseadusp_rasus.pdf
 ECHR. 7 October 2008 judgment M.V. v. Estonia. Application no. 21703/05.