FIFTH SECTION
 
 
 
 
 
 
 
CASE OF L.M. v. SLOVENIA
 
(Application no. 32863/05)
 
 
JUDGMENT
 
 
 
 
 
 
STRASBOURG
 
12 June 2014
 
 
 
 
FINAL
 
12/09/2014
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of L.M. v. Slovenia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Mark Villiger, President,
 Angelika Nußberger,
 Boštjan M. Zupančič,
 Ganna Yudkivska,
 Vincent A. De Gaetano,
 André Potocki,
 Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 20 May 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 32863/05) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mrs L.M. (“the applicant”), on 6 September 2005. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). 2. The applicant was represented by Mr D. Šilc, a lawyer from Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney. 3. The applicant alleged, in particular, under Article 5 of the Convention that her involuntary confinement in the closed wards of the Idrija and Ljubljana Psychiatric Hospitals had not been necessary or conducted in accordance with the law, and that her stay in the open wards of these hospitals had not been voluntary. She further complained that she had not been informed about the reasons for her confinement, and that she had been deprived of effective legal protection in respect of both periods of confinement, as well as of any possibility of obtaining compensation for the unlawful deprivation of her liberty. Invoking Article 8, she alleged that the forced administration of medication and other therapeutic procedures to which she had been subjected had amounted to ill-treatment or had at least interfered with her physical and mental integrity. Furthermore, she had not been afforded a remedy whereby she could have challenged this forced medical treatment. 4. On 12 December 2012 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1971 and lives in Ljubljana. She has suffered from a psychotic disorder for a number of years and has been admitted to psychiatric hospitals for treatment several times since 2000. The present case concerns two consecutive periods of confinement in such hospitals between July 2005 and January 2006. A. The applicant’s confinement in the Idrija Psychiatric Hospital
6. On 10 July 2005 the applicant’s family physician received a telephone call from the local police informing him that the applicant had broken into an unoccupied house, apparently with the intention of sleeping there, and that they were having trouble communicating with her. He referred her to the Idrija Psychiatric Hospital, a public healthcare institution, indicating that she was disturbing the environment and behaving psychotically. 7. On the same day the applicant was admitted to the closed ward of the Idrija Psychiatric Hospital. On admission, she signed a consent form for confinement and psychiatric treatment. In her exchange with the hospital staff, the applicant said that she was “possessed by energetic and physical people sent to her through the lens of cameras operated by President Bush”. The psychiatrists treating her diagnosed her with schizophrenia and noted that she exhibited “delusional interpretations and perceptual anomalies as well as features of depersonalisation and derealisation”. The applicant was started on medication consisting of 10 mg of Moditen three times a day, three Akineton tablets a day, 5 mg of Apaurin three times a day, and an ampoule each of Haldol and Akineton a day. No mention was made in her medical records of her having refused to take any medication. 8. On 11 July 2005 the applicant started to ask how long she would have to stay in the hospital and told the psychiatrists that she would resist. The hospital notified the Idrija Local Court of her confinement, indicating the reasons given by the family physician for referring her to the hospital. 9. On 13 July 2005 the Idrija Local Court appointed a lawyer, I.R.P., to represent the applicant in proceedings it had commenced in her respect. It also scheduled a confinement hearing for 15 July. A notification of the hearing, addressed to the applicant, was sent to the hospital; however, it is not clear when or whether it was received by the applicant. 10. On 15 July 2005 a hearing was held regarding the applicant’s confinement. The applicant and one of the psychiatrists treating her were heard. The psychiatrist stated that the applicant had apparently been living in a garage and had broken into a house, and that she had been found wandering around and had been psychotic and uncontrollable. The applicant stated that she would rather be at home, that she did not understand why she had been taken to the hospital, but that other people she named, including a former politician, might have more of an idea. She provided an account of the events which had taken place prior to her confinement, in which she made no mention of having broken into a house. She also stated that she missed her father, and that she had been taking medication while at home. 11. In the weeks that followed, the applicant continued her treatment and, according to the medical records, also continued to agree to therapy. On 4 August 2005 the Haldol was replaced with Leponex and the dosage of Apaurin was reduced to 5 mg a day. Eventually, the applicant was taken off the Apaurin altogether. 12. Meanwhile, on 30 July 2005 the applicant gave D.P., a lawyer from Ljubljana, power of attorney. She told the representative that she was receiving treatment against her will, but was afraid to refuse it for fear that medication would be administered to her by force. 13. On 2 August 2005 the applicant’s representative D.P. notified the hospital that the applicant did not consent to her medical treatment and requested the Idrija Psychiatric Hospital to inform the applicant of her treatment and its side effects. She also pointed out that the applicant had the right to express her own free will and to refuse the treatment if she so wished. 14. On 5 August 2005 the applicant, through her representative D.P., lodged a constitutional complaint against the “material act” of her involuntary confinement and an application for a review of the constitutionality of section 49 of the Health Services Act, and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. She alleged, inter alia, that she was unable to effectively enforce her right to judicial review in the involuntary confinement proceedings, as no formal decision had been rendered until that time. She therefore argued that the Constitutional Court should examine the alleged violations of her human rights committed through the “material act” of her confinement, as any other interpretation would constitute a breach of her right to judicial review within the meaning of Article 5 § 4 of the Convention. In addition, she requested that the disputed legislation be repealed with immediate effect, and that she be released from the hospital pending a decision on her confinement. 15. On 6 August 2005 D.P. wrote to the hospital again, asking it to stop forcibly administering medication to the applicant. 16. On 8 August 2005 the applicant was transferred from the closed to the open ward of the Idrija Psychiatric Hospital. On the same date the Idrija Local Court was informed of the applicant’s transfer and terminated the proceedings regarding her confinement. 17. On 12 August 2005 the applicant was discharged from the Idrija Psychiatric Hospital at her own request. In this regard, it was noted by her psychiatrists that she no longer exhibited any manifestly psychotic symptoms, but that she should continue medical treatment to prevent herself from having a psychotic relapse with violent outbursts. The final diagnosis listed in the applicant’s medical records was disorganised (hebephrenic) schizophrenia. 18. On 15 September 2005 the Constitutional Court rejected the applicant’s constitutional complaint of 5 August 2005 against her involuntary confinement in the Idrija Psychiatric Hospital for failure to exhaust the available remedies. It also rejected a further constitutional complaint she had lodged on 21 August 2005 relating to her confinement in the Ljubljana Psychiatric Hospital on the same grounds (see paragraph 19 below). It found that these complaints had been lodged even before the first-instance decisions on the involuntary confinement were rendered. As regards the applicant’s application for a review of the provisions of the Non-Contentious Civil Procedure Act, the Constitutional Court reiterated its findings in an earlier decision (no. U-I-60/03) that the thirty-day time-limit for issuing a court order for confinement could be too long (see paragraph 64 below). However, it was not possible to repeal the disputed legislation with immediate effect, as that would leave a sizeable gap in the legal system, so the application was dismissed. B. The applicant’s confinement in the Ljubljana Psychiatric Hospital
19. On 15 August 2005 the applicant was taken to the emergency medical services by the police. On arrival, she stated that she was being “raped by the police, the emergency medical technicians, everybody”. The emergency physician referred her to the Ljubljana Psychiatric Hospital, a public healthcare institution, where she was taken by ambulance. It was noted in her admission record that her speech was dissociated and that she exhibited signs of paranoia and megalomaniac delusions. Under the heading “the degree of the patient’s rejection of hospitalisation” the emergency psychiatrist circled the statement that the applicant “accepted hospitalisation owing to the situation (the staff being present)”. Under the heading “the need to use compulsory measures on patients rejecting hospitalisation” the psychiatrist circled the statement “negative attitude, no compulsory measures necessary”. It is evident from the applicant’s medical records that during the first days of her admission, she was restless, talkative and unable to follow the activity programme. She spent the first two days of her treatment in the admission ward. 20. As of 17 August 2005 the applicant was placed in the closed ward. Based on her medical records, it appears that she remained talkative but found it somewhat difficult to engage in meaningful discussion. She still exhibited delusions of persecution and was convinced that her father had bribed the doctors and the police to keep her in the hospital. She was also convinced that the garage where she had been living was bugged by the CIA. On 19 August 2005 the applicant was visited by her representative D.P. 21. The applicant was given thirty drops of Haldol three times daily, three Akineton tablets a day and 2 mg of Lorsilan three times a day. The Haldol was subsequently replaced with 10 mg of Moditen three times a day. In the latter stages of her treatment, the applicant received Lorsilan and 100 mg of Leponex three times a day. Eventually, the applicant was only treated with Leponex. During the treatment she often complained of various physical pains and discomfort, in particular painful muscle spasms and toothache. 22. On 21 August 2005 the applicant informed the Ljubljana Local Court of her confinement and lodged an application for an interlocutory order that her medical treatment be discontinued and that she be released from the hospital pending a final decision on the matter. On the same day the applicant also lodged a constitutional complaint against the “material act” of her confinement and an application for a review of the constitutionality of section 49 of the Health Services Act and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. The applicant’s notification of involuntary confinement was received by the local court on 22 August 2005. 23. On 23 August 2005 the Ljubljana Local Court appointed a lawyer, P.C., to represent the applicant in the involuntary confinement proceedings. On the same day a hearing was held which took twenty-five minutes. The applicant’s court-appointed representative was present, but, according to the applicant, did not participate actively. At the hearing, the applicant was examined by an expert from another healthcare institution, who immediately upon examination submitted an opinion stating that the applicant’s narrative showed signs of a paranoid delusional system which had probably lasted for a long time and to which she was uncritical. She considered that the applicant needed treatment in a closed ward for up to one month. 24. Based on this expert opinion, the Ljubljana Local Court ordered that the applicant be confined in the closed ward of the Ljubljana Psychiatric Hospital until 23 September 2005. 25. On 24 August 2005 the applicant’s application for an interlocutory order was dismissed by the Local Court on the grounds that personality rights could not be protected by injunctive relief. 26. On 27 August 2005 the applicant was visited by her court-appointed lawyer P.C., who wanted her to give him the power of attorney. According to the applicant’s medical records, the psychiatrist on duty was informed of the visit and gave his consent for the applicant to sign the document. 27. On 2 September 2005 the applicant appealed against the Ljubljana Local Court’s order regarding her continued confinement and the dismissal of her application for an interlocutory order. 28. On 3 September 2005 the applicant spoke to the then head of the hospital, complaining that there was no reason for her to remain there. She also stated that she did not understand why she was on medication, although she did confirm that she was taking Akineton as part of her outpatient treatment. 29. According to the Government, which relied on her medical records, later that day the applicant was transferred to the open ward of the Ljubljana Psychiatric Hospital. The applicant, however, maintained that the transfer took place on 4 September 2005. On 6 September 2005 the applicant’s representative D.P. notified the Ljubljana Local Court of the applicant’s transfer. 30. During the course of her stay in the open ward of the hospital, on 7 September 2005 the applicant was allowed by her psychiatrist to withdraw some of the money she had received as social assistance. In addition, on 13 September she was permitted to recover her clothes. She was allowed to leave the hospital premises for a few hours several times during her stay, on 20, 23 24, 27 and 28 October, and 9, 11, 13 and 30 November 2005. Her psychiatrists noted that she was disciplined in her outings and always returned to the hospital at the designated time. 31. On 9 September 2005 the Ljubljana Higher Court allowed the applicant’s appeal against the Ljubljana Local Court’s decisions of 23 and 24 August 2005 and remitted the case to the first-instance court. The higher court pointed out that the court’s reasoning lacked reference to the decisive factors which would indicate that it was necessary to deprive the applicant of her liberty. As regards the dismissal of the applicant’s application for an interlocutory order, the higher court rejected the lower court’s interpretation that no legal basis existed for an interlocutory order for the protection of the applicant’s personality rights. The court also pointed out that the applicant’s request for her medical treatment to be stopped warranted separate consideration. 32. On the same day the applicant lodged a constitutional complaint against the Ljubljana Higher Court’s decision and a request for a procedure to be initiated for the review of the constitutionality of section 49 of the Health Services Act and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. She insisted that remitting her case to the first-instance court without ordering her release from the hospital had violated her right to personal freedom. 33. As already stated (see paragraph 18 above), on 15 September 2005 the Constitutional Court rejected the applicant’s constitutional complaints of 5 and 21 August 2005 against both periods of her confinement. 34. On 22 September 2005 the applicant lodged a supervisory appeal with the Ministry of Justice regarding the proceedings before the Ljubljana Local Court. On 5 October the Ministry informed the applicant that the local court had set the date of the hearing for 11 October 2005. The summons to the hearing was sent to the applicant’s home address. 35. On 7 October 2005 the father of the applicant, I. M., informed the local court that he had been served a summons addressed to the applicant for a hearing scheduled for 11 October 2005. The judge agreed to allow the applicant’s father to attend the scheduled hearing. 36. On 10 October 2005 the applicant’s representative D.P. informed the local court that the summons to the hearing of 11 October was unclear as to whether the representative herself had been summoned, or whether the applicant had been summoned by way of her representative. In addition, she proposed that a new summons be served in which the reasons for the hearing be set out. 37. The next day the applicant’s court-appointed representative P.C., the applicant’s father I.M. and her chosen representative D.P. were present at the hearing. D.P. proposed that the hearing be rescheduled since the applicant had not been properly summoned. She also informed the local court that the applicant was being held in the open ward of the Ljubljana Psychiatric Hospital but that the hospital was refusing to release her, or to discontinue her medical treatment. On the same date the local court appointed another expert to give an opinion on the applicant’s condition. 38. On 12 October 2005 the Ljubljana Local Court again ruled on the applicant’s application for an interlocutory order concerning the termination of her medical treatment and her immediate release from the psychiatric hospital. Contrary to the reasoning of the Ljubljana Higher Court’s decision of 9 September 2005, the application was again dismissed on the grounds that no legal basis existed for an interlocutory order for the protection of a person’s personality rights. The applicant appealed against this decision. 39. On 14 October 2005 the applicant requested that the judge sitting on the case be removed on the grounds, inter alia, that he had refused to adjourn and reschedule the hearing of 11 October despite the fact that she had not been properly summoned. Furthermore, she alleged that the judge had violated her right to privacy by allowing her father to attend the hearing. She also requested that the appointed expert be withdrawn. She further requested the court to decide on her immediate release and to exclude her father from the proceedings. On 26 October 2005 the applicant’s request for the withdrawal of the judge was dismissed. 40. On 2 November 2005 the Ljubljana Local Court amended its decision of 12 October 2005 by also including in its operative part the dismissal of the applicant’s application that her father be prevented from participating in the hearing. 41. On 10 November 2005 the Ljubljana Higher Court again allowed the applicant’s appeal against the decision of 12 October 2005 and remitted the case to the first-instance court. It reiterated that a valid legal basis did exist for an interlocutory order for the applicant’s release from the psychiatric hospital and that her request for her medication to be stopped deserved separate consideration. Moreover, the court took note of information in the case file that the applicant had meanwhile been transferred to the open ward. Accordingly, it pointed out that the rules of non-contentious procedure regarding involuntary confinement only applied to closed wards of psychiatric hospitals. It ordered the lower court to examine the question of whether the conditions for continuing the non-contentious proceedings still applied. Otherwise, the applicant was supposed to apply for injunctive relief against infringement of her personality rights. 42. On 14 November 2005 the applicant, through her representative D.P., lodged an appeal against the decision of 2 November 2005 on the dismissal of the application concerning her father’s participation in the hearing. The court-appointed representative P.C. responded to the appeal lodged by D.P., arguing that it should be dismissed. On 21 November 2005 the Ljubljana Higher Court upheld the decision of 2 November 2005. 43. On 30 November 2005 the Ljubljana Local Court sent a letter to the Ljubljana Psychiatric Hospital, requesting information about when the applicant had been transferred to the open ward. 44. On 8 December 2005 the local court received a reply from the hospital stating that the applicant had been transferred to the open ward on 3 September 2005. 45. On 12 December 2005 the Ljubljana Local Court terminated the proceedings regarding the applicant’s involuntary confinement in the psychiatric hospital because of her transfer to the open ward. 46. Meanwhile the applicant renewed contact with her father, who arranged for her to spend some weekends at his home. Arrangements were subsequently made for the applicant to move in with him after her release from the hospital. 47. On 12 December 2005 the applicant and her father visited the Sežana Social Work Centre, where the applicant declared that she wished her father to act as her guardian in financial and health matters, and her father declared himself willing to provide her with a home and to assume responsibility for her medical treatment and finances. A record was made of the applicant and her father’s declarations and they were informed that they could address any possible disagreements regarding the arrangement to the centre. 48. On 15 December 2005 the Constitutional Court rejected the applicant’s constitutional complaint against the decision of 9 September 2005 and her application for constitutional review (see paragraph 32 above) for lack of legal interest. It observed that the applicant was no longer confined in the closed ward of the psychiatric hospital. 49. On 22 December 2005 the applicant lodged an appeal against the decision of 12 December, stressing, inter alia, that her transfer to the open ward of the hospital did not change the fact that she was confined there against her will. She also complained about the lack of an effective remedy. Moreover, she pointed out that no decision had been made regarding the necessity of her confinement and that she had not been informed of the grounds on which her continuing confinement was based. She further lodged an application for her court-appointed representative P.C. to be taken off the case for failure to act in her interests. 50. On 5 January 2006 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that, since the applicant had been placed in an open ward, the rules of non-contentious procedure were no longer applicable. The court referred the applicant to the rules of contentious procedure, under which it was possible to apply for injunctive relief against infringement of personality rights. 51. On 19 January 2006 the applicant was released from the Ljubljana Psychiatric Hospital. The diagnosis listed on her release form was paranoid schizophrenia. 52. On 23 January 2006 the Ljubljana Local Court rejected the applicant’s application for an interlocutory order owing to the fact that the proceedings on the merits had been terminated. 53. On 14 February 2006 the applicant lodged an appeal on points of law against the decision of 5 January 2006. She invoked, inter alia, Article 5 of the Convention, and maintained that the fact that she had been placed in the open ward did not imply that she was held there voluntarily. She alleged that any attempt on her part to leave the hospital, while in the open ward, could result in her being brought back to the hospital by force and placed back in the closed ward, as in practice the transfer to the open ward constituted a privilege enjoyed by compliant patients. In this regard the applicant pointed out, relying on section 49 of the Health Services Act (see paragraph 58 below), that the legal basis for involuntary admission and treatment in a psychiatric hospital did not specify in which ward patients are to be placed. She also pointed out that psychiatric hospitals were not required to notify the competent courts of patients’ possible readmission to the closed ward in cases such as her own, where they had already been transferred to the open ward while the order of confinement was still in effect. In her opinion the provisions on involuntary confinement in a psychiatric hospital and the related procedure were still applicable and she was entitled to obtain a decision on the lawfulness of her earlier confinement. 54. On 13 April 2006 the Supreme Court rejected the applicant’s appeal on points of law on the grounds that the applicant lacked legal interest, since the confinement proceedings had been terminated and she had been released from the hospital. 55. On 6 July 2006 the applicant lodged a constitutional complaint against the Supreme Court’s decision to reject her appeal on points of law in connection with the Higher Court’s decision of 5 January 2006 and the Ljubljana Local Court’s decision of 12 December 2005 to terminate the proceedings regarding her involuntary confinement in the Ljubljana Psychiatric Hospital. She reiterated the complaints made regarding her stay in the open ward of the Ljubljana Psychiatric Hospital and those relating to the alleged breaches of procedural rules in the confinement proceedings. Further, she pointed out that she was entitled to obtain a decision on the merits with regard to her complaints, having regard to the importance of her constitutionally guaranteed right to personal liberty. 56. On 27 February 2008 the Constitutional Court dismissed the applicant’s constitutional complaint against the Supreme Court’s decision as unfounded, and rejected her complaint against the Higher Court’s decision on the grounds that it had been lodged out of time. The court pointed out that the lodging of an inadmissible appeal on points of law had not suspended the time-limit for lodging the constitutional complaint. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant statutory provisions
1. Health Services Act (as in force at the material time)
57. As regards patients’ rights under domestic law, the relevant provisions of the Health Services Act provide as follows:
Section 47
“In accordance with the law and under equal conditions, everyone has the right to the following:
- a free choice of physician and healthcare institution;
- a consultation with appropriate specialists of his or her own choice, or to a consultant review;
- to be informed of his or her diagnosis, the extent, manner, quality and expected duration of treatment;
- to give consent to any medical procedure, and to be notified in advance of all possible methods of diagnostics and treatment, as well as their consequences and effects;
- to reject the proposed medical treatment;
- to access his or her medical records, except if a physician assesses that such access would have a detrimental effect on the patient’s state of health;
...
- to compensation for inappropriate treatment.
...”
Section 48
“An emergency medical procedure may be performed without the prior consent of the patient only if a patient is unable to decide for themselves owing to their state of health.”
58. According to the Health Services Act, clinics, clinical institutes and certain other specialist institutions, among which psychiatric hospitals, may only operate as public healthcare institutions. As regards the treatment of patients with mental illnesses and disorders, the relevant provision reads as follows:
Section 49
“A patient who, owing to his or her mental illness, poses a danger to his or her own life or the lives or others, or is causing grave harm to himself or herself or to others, may be referred and admitted for treatment to a psychiatric hospital without his or her consent. An authorised person of the hospital must notify a competent court of the admission of a patient to the psychiatric hospital referred to in the previous paragraph within 48 hours of admission at the latest. The physician who refers the patient referred to in the first paragraph of this Article to a psychiatric hospital may request assistance from the competent authorities if he or she finds that the safety of others is directly at risk from the patient’s actions.”
2. Non-Contentious Civil Procedure Act (as in force at the material time)
59. The relevant provisions of this Act regulating the procedure for confining people to psychiatric hospitals read as follows:
Section 5
“... The court has a duty to adopt, of its own motion, any measures aimed at protecting the rights and interests of minors and persons who, on account of their mental illness or other circumstances, lack capacity to look after their own rights and interests.”
Section 70
“In the procedure for confining persons to psychiatric healthcare institutions and other institutions or their wards used for the treatment of mental patients (hereinafter healthcare institutions), a court decides on the confinement of a person in the closed ward of a health institution if the nature of the mental disorder or the person’s mental state renders it necessary that his or her freedom of movement be limited or that he or she be prevented from having contact with the outside world, because he or she poses a danger to his or her own life or the lives or others, or is causing grave harm to himself or herself or to others.”
Section 71
“If the healthcare institution confines a person for treatment in a closed ward without his or her consent or without a court order, the authorised person of that institution must immediately, but within 48 hours at the latest, notify the court of local jurisdiction thereof. The notification of confinement must include information about the person confined, this person’s state of health, and the person who took the person to the healthcare institution. It is deemed that a person is involuntarily confined in a healthcare institution if it follows from the person’s behaviour, expert opinions on the person’s mental state or other circumstances that the person has capacity to express his or her wishes but is actually unwilling to consent to treatment in a healthcare institution; or if it follows from expert opinions on the confined person’s mental state that the person lacks capacity to express his or her wishes; or where the person is a minor or is legally incompetent.”
Section 74
“In the confinement proceedings, the court shall promptly, but no later than three days after receiving the notification of confinement, visit the confined person in the healthcare institution and question him or her, except in cases where questioning would have a detrimental effect on the person’s treatment, or if questioning is impossible owing to the person’s state of health.”
Section 75
“In the confinement proceedings, the court shall question the physicians treating the confined person as well as any other persons who may provide information about the mental state of the confined person. The court shall order that the confined person be examined by a psychiatric specialist from another healthcare institution.”
Section 76
“The court shall decide, based on the evidence obtained, whether the confined person should remain in the healthcare institution or be released. When the court orders a person to be confined in the healthcare institution, it determines the period of confinement, which may not exceed one year. The court must issue the order referred to in the first paragraph without delay, but no later than 30 days after receiving the notification of confinement referred to in the first paragraph of section 71 of this Act. The healthcare institution may transfer a person from a closed ward to an open ward or release him or her from the institution even before the expiry of the period determined in the order of confinement, if it is established that the reasons for confinement have ceased to apply. In such cases, the healthcare institution is not required to notify the court of the return of the confined person to the closed ward until the expiry of the period determined in the order of confinement.”
Section 77
“The court shall serve the order of confinement on the confined person, the person’s representative or guardian, the authorised social welfare body and the healthcare institution. The following may appeal against the order of confinement: the confined person, the person’s legal representative or guardian, the authorised social welfare body, the person’s spouse or person with whom the confined person cohabits in a long-term relationship, a relative, either in a direct or indirect line [of descent] up to or in the second degree, or the healthcare institution. The appeal must be lodged within three days. The appeal shall not suspend the execution of the order of confinement. The court of second instance shall decide on the appeal within three days. An appeal on points of law may be lodged against a decision of the court of second instance.”
3. Civil-law remedies for breaches of personality rights
60. Under Article 134 of the Code of Obligations, everyone has the right to request the termination or prevention of an infringement of their personality rights or the elimination of the consequences of the infringement. Such a request can be brought before the competent court of civil jurisdiction and an injunction may be sought in order to restrain the party responsible from committing or continuing the breach. A party who fails to comply with an injunction may be ordered by the court to pay damages to the injured party. 61. Article 148 of the Code of Obligations regulates the liability of legal persons for damage inflicted by one of their subsidiary bodies, which also applies to the determination of the State’s liability for damage. It provides that a legal person is liable for damage inflicted on a third party by one of its subsidiary bodies in the exercise of its functions or in connection therewith. 62. Under Article 179 of the Code of Obligations, which sets out the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded, inter alia, in the event that a person has suffered physical distress, mental distress owing to the reduction of life activities, or if his or her personality rights have been infringed, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify the award. B. Relevant case-law
1. The Constitutional Court’s decision on the constitutionality of the procedure for confining people to psychiatric hospitals
63. In decision no. U-I-60/03 of 4 December 2003, the Constitutional Court examined the provisions of the Non-Contentious Civil Procedure Act on involuntary confinement procedure and found that they were inconsistent with the Constitution because of the lack of protection they afforded to involuntarily confined persons. The court emphasised that involuntary confinement was a measure that should only be used in cases where the danger to a patient’s life or the lives of others or harm to himself or to others could not be prevented by any other measures than admission to a closed ward. The court also emphasised that the question of whether it was necessary to restrict a patient’s freedom of movement and prevent contact with the outside world was a matter of judicial assessment carried out by the competent courts. 64. Further, the Constitutional Court held that involuntarily confined patients were entitled to an effective judicial review of the question of lawfulness of their confinement. In this regard it considered that the thirty-day period for issuing the court order of confinement could be too long, particularly if it emerged that the confinement was unlawful. Accordingly, the court held that shorter time-limits ought to be set. Moreover, the hospitals’ notifications of confinement should include reasons which, in the view of their staff, necessitated a measure of involuntary confinement, as only on the basis of this information were the courts able to make an assessment of whether a specific measure was necessary in the circumstances of an individual case. 65. Lastly, the Constitutional Court, while acknowledging that the measure of involuntary confinement was inherently related to medical treatment, which followed from the purpose and nature of the measure, considered that it did not mean unrestricted authorisation for carrying out any type of medical treatment without external supervision. It therefore imposed on the legislature the duty to, on the one hand, define those measures of treatment that followed from the purpose of the confinement itself and were logically connected therewith, and, on the other, to determine the measures which exceeded the necessary scope of treatment and for which explicit consent of a patient would be needed. 66. In order to rectify the most pressing inconsistencies in the involuntary confinement procedure, the Constitutional Court imposed two provisional measures to apply until the established unconstitutional situation was remedied:
– counsel must be appointed for an involuntarily confined person upon the commencement of proceedings;
– the notification of confinement that the authorised healthcare institution is obliged to submit to the court must contain reasons substantiating the necessity of confinement.”
The established inconsistencies were supposed to be remedied within six months of the date of publication of the decision in the Official Gazette (24 December 2003). Nevertheless, the involuntary confinement procedure as a whole (save the above-mentioned provisional measures) continued to apply until 2009, when the new Mental Health Act became effective, implementing the decision of the Constitutional Court. The Act established a comprehensive legal framework of mental healthcare, including a detailed procedure for confining persons to the closed wards of psychiatric hospitals. 2. Decisions of the domestic courts on liability arising from involuntary confinement in psychiatric hospitals
67. In judgment no. II Cp 1702/2009 of 14 October 2009, the Ljubljana Higher Court confirmed a first-instance judgment awarding a claimant 3,000 euros (EUR) as compensation for having spent thirty-one days in a psychiatric hospital in 2004 without a lawful court decision. The order of confinement at issue had been quashed on appeal owing to procedural irregularities, which was regarded by the civil courts to have rendered the entire measure of involuntary confinement unlawful. Although a claim was also brought against the psychiatric hospital on account of its late and incomplete notification of confinement to the competent court, no causal link was found to exist between these irregularities and the mental distress the claimant had sustained on account of the deprivation of his personal liberty. In this regard, the higher court pointed out that it was the courts that decided on involuntary confinement and that, accordingly, it was the court’s unlawful conduct that had caused damage to the claimant. 68. In another case, no. II Cp 739/2012 of 16 May 2012, the Ljubljana Higher Court decided on appeal against an award of damages to a claimant who had been confined in the closed ward of a psychiatric hospital from 19 December 2002 until 3 January 2003. In the preceding involuntary confinement proceedings, the competent court, upon an examination of the claimant, ordered that she be released from the hospital because none of the statutory conditions for her confinement had been shown to exist. On 30 December 2002 the claimant had been transferred to the hospital’s open ward. She had unsuccessfully requested the return of her clothes and then attempted to leave the hospital in her pyjamas. The hospital staff had prevented her from leaving and returned her to the closed ward without a prior medical examination. Subsequently, the claimant had been released from the hospital on 3 January 2003. In the civil proceedings, the Ljubljana Higher Court reduced the claimant’s award of damages to EUR 1,000, taking the view that her admission to the hospital, which had been based on an assessment by the consultant psychiatrists, had not been unlawful. Only the period from 30 December 2002 until 3 January 2003 had therefore constituted an unlawful deprivation of her liberty. 69. In judgment no. II Cp 1053/2011 of 31 August 2011, the Ljubljana Higher Court dismissed a claimant’s appeal against a judgment dismissing his claim for damages brought against the psychiatric hospital where he had been confined, based on an appointed expert’s opinion that the symptoms displayed by him on admission had necessitated his confinement and that the hospital staff had appropriately examined the existence of the statutory conditions for confinement in the light of the standards of the medical profession. 70. On 22 February 2010 the Kranj District Court rendered interim judgment no. I P 509/2004, deciding on the merits of a claimant’s claims regarding her psychiatric confinement in 2000. It was found to have been unlawful because of numerous procedural irregularities. In the civil proceedings, the Kranj District Court examined, inter alia, the duration of the involuntary confinement and in this regard also found that the claimant’s stay in the open ward of the hospital had constituted a deprivation of liberty, as the circumstances in which she had been held were comparable to the circumstances in the closed ward. The claimant had been aware that she could be transferred back to the closed ward for inappropriate behaviour, as she had been transferred to the open ward on “a trial basis”; moreover, the court order for her confinement had still been in effect, which meant that the hospital had not been required to notify the court of her possible return to the closed ward. Lastly, there had been a practice of placing open ward patients who had been permitted to leave the hospital, but had not returned in due time, back to the closed ward, and the claimant had been witness to another patient being pushed through to the closed ward and forcibly injected with medication. The substance of the claimant’s claim regarding the second period of her involuntary confinement was confirmed by the Ljubljana Higher Court (judgment no. II Cp 1964/2011) and the Supreme Court (judgment no. II Ips 110/2012). The amount of compensation has not as yet been determined. C. The Ombudsman’s reports concerning psychiatric confinement
1. The Ombudsman’s Annual Report 1995
71. In this Report the Ombudsman outlined a number of inadequacies in the Slovenian regulation of psychiatric confinement in force at the time (and which remained in force at the time of the applicant’s confinement), emphasising that this field of medicine, which interfered with the most intimate spheres of an individual’s private life, was insufficiently regulated by law and failed to provide for an impartial and independent external supervision of confinement. The Ombudsman noted that only involuntary confinement was subject to judicial supervision and that even this type of hospitalisation was under-regulated. Furthermore, the implementation of judicial supervision gave rise to doubts as to its effectiveness; the Ombudsman observed that in all the confinement cases under his consideration the courts had decided in accordance with medical opinion and therefore no more than confirmed the decisions made by hospitals or doctors. In the Ombudsman’s opinion, judicial supervision served to protect the medical staff instead of the confined individuals. 2. The Ombudsman’s 1999 Special Report on the Treatment of People with Mental Disorders
72. The Ombudsman noted, inter alia, that the laws determining conditions of confinement (in particular the Health Services Act) did not require that involuntary confinement only be used where absolutely necessary and was therefore disproportionate. In this connection, he also warned that the court orders of confinement were in most cases insufficiently reasoned, failing to justify the grounds for involuntary confinement. As no decisive factors were established that would necessitate the confinement, the court orders proved difficult to review and denied the patients’ right to a fair trial. 73. Further, the legislation in force did not regulate the initial stage of the involuntary confinement procedure, as it only authorised physicians to send a patient to a psychiatric hospital, if necessary, with police assistance; however, it contained no other provisions regarding the referral and admission of individuals to healthcare institutions, such as a list of people entitled to request an individual’s involuntary confinement, instructions on how to act in cases where a patient resists, the powers of the police in this regard, and so forth. The Ombudsman also noted that the only type of procedure regulated by law was the so-called “emergency procedure” whereby a person was first confined to the hospital against his or her will on the basis of a decision made by psychiatrists, and the courts initiated the non-contentious confinement proceedings thereafter. However, the law did not provide for a “regular” procedure enabling the individuals under review to remain at liberty pending a decision on the necessity of their confinement. 74. Moreover, the Ombudsman warned that the legal position of the patients confined against their will was completely unregulated and that their rights, such as visits and correspondence, were not set out in law. 75. Lastly, the Ombudsman emphasised that the Slovenian legislation did not regulate the medical treatment of psychiatric patients against their will. Although treatment was implicit in the admission to a psychiatric hospital, it constituted a considerable limitation of the right to voluntary treatment and should be regulated as such. The Ombudsman pointed out that patients hospitalised against their will did not automatically lack capacity to express their wishes about medical treatment or at least take part in the decision. In this regard, he also noted that medical treatment against patients’ will was also taking place in open wards of psychiatric hospitals and was thus not subject to any judicial supervision. 3. The Ombudsman’s Annual Reports 1999, 2000, 2004, 2006, 2007
76. The Ombudsman repeatedly noted that the involuntary confinement procedure was often not followed correctly, as psychiatric hospitals failed to notify the courts of individual cases, or did so only upon the patients’ insistence or outside the statutory time-limit of forty-eight hours after admission. The competent courts, on their part, failed to visit confined persons in hospital and question them, and nor did they obtain information about their mental state from the independent experts or any other relevant people, such as members of their family. Moreover, they failed to serve their decisions on the initiation of the confinement procedure, on confinement and on the termination of proceedings, thereby violating the individuals’ right to appeal. 77. In its Annual Report 2000, the Ombudsman raised the question of involuntary confinement in open wards of psychiatric hospitals. It was noted that patients hospitalised against their will were also found in these wards and were therefore confined involuntarily or at least without legally recognised consent, but these cases were not reported to the competent courts, as only confinement in closed wards was subject to judicial supervision (see section 71 of the Non-Contentious Civil Procedure Act, paragraph 59 above). The Ombudsman noted that during his visit to the Idrija Psychiatric Hospital its director had explained that the open ward admitted patients who could be trusted not to escape, although they were in the hospital against their will. In this regard, the Ombudsman pointed out that the position of patients who were placed in open wards, but were not free in terms of deciding whether to leave the hospital whenever they wished or to refuse treatment was – at the very least – very similar to involuntary confinement in closed wards and that therefore this type of hospitalisation ought to be subject to the same statutory regulation as confinement in closed wards. THE LAW
I. THE GOVERNMENT’S OBJECTION OF NON-EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
78. With regard to the applicant’s complaints under Articles 5 and 8 of the Convention (see paragraph 3 above), the Government objected that she had failed to exhaust domestic remedies. Firstly, as to her confinement in the Idrija Psychiatric Hospital and in the closed ward of the Ljubljana Psychiatric Hospital, they pointed out that she had been released from there before she lodged her application before the Court. They therefore took the view that as any alleged breaches of the Convention arising from the involuntary confinement and medical treatment had been terminated upon the applicant’s release, she could have only claimed damages in respect of a violation of her personality rights. In the Government’s opinion, the applicant should have therefore brought an action against the State for compensation in respect of non-pecuniary damage caused by the State authorities under Article 179 of the Code of Obligations. According to the Government, any unlawful conduct on the part of the authorities might constitute a violation of an individual’s personality rights. In support of their submissions, they cited a number of decisions adopted by the domestic courts showing that the State had been found by the domestic courts to be liable for damages caused by its employees in the course of their employment and exercise of their functions. Moreover, as regards specifically infringements of personal liberty resulting from psychiatric confinement and medical treatment, the Government relied on the four domestic decisions outlined in paragraphs 67-70 above to conclude that the courts regularly awarded compensation to individuals in positions comparable to that of the applicant. 79. Secondly, as regards the applicant’s stay in the open ward of the Ljubljana Psychiatric Hospital, the Government referred to Article 134 of the Code of Obligations (see paragraph 60 above), arguing that she could have requested termination of the alleged breaches of her personal liberty and private life and obtained injunctive relief by virtue of the Enforcement and Securing of Civil Claims Act, which provided that such an order could be issued either before the institution of civil proceedings or during them. The Government emphasised that the applicant had twice been informed of this possibility by the Ljubljana Higher Court (see paragraphs 41 and 50 above). They added that they were unable to submit any case-law relating to this remedy, but believed that it should not be to the detriment of a Contracting State if the applicant had failed to act upon the advice of a higher court. 80. The applicant challenged the Government’s arguments, observing that a civil action for damages was not an appropriate remedy for preventing the violations complained of in the present case, as she could not have obtained a finding that her Convention rights had been violated, and the entire burden of proof would have been imposed on her. She would thus have been required to prove all four elements of the State’s liability, the unlawfulness of her confinement, the existence of damage, the causal link, and negligence or fault on the part of the State in order to obtain compensation. Further, the applicant submitted that by the time her claim had become time-barred, no compensation had been awarded or paid by the State in relation to the involuntary confinement in any other case. She therefore maintained that at the material time, a civil action for damages had not constituted an effective remedy. Moreover, according to the applicant the damages awarded in the domestic cases relied on by the Government had been unreasonably low and that civil proceedings usually lasted an unreasonably long time. 81. As to the request for termination of an infringement of personality rights and the possibility of obtaining an interlocutory order to this effect, the applicant first pointed out that the Government had failed to submit one single domestic decision where such termination had been ordered with regard to involuntary confinement in an open ward or the medical treatment related thereto. Secondly, she asserted that as this remedy was civil in nature and accordingly subject to the general rules of civil procedure, which did not set time-limits for conducting procedural actions, it did not satisfy the requirement that judicial review of the lawfulness of the involuntary confinement be conducted in a prompt manner. Also, the applicant would not have benefited from a court-appointed lawyer in such proceedings. 82. Lastly, as regards the possibility of obtaining injunctive relief in accordance with the Enforcement and Securing of Civil Claims Act, the applicant emphasised that the Government had, again, failed to submit any case-law demonstrating that the remedies under this Act could be successfully used in cases involving involuntary confinement and forced medical treatment. She also pointed out that she herself had been unsuccessful in her application for an interlocutory order that she be released from the hospital and that her medical treatment be discontinued (see paragraphs 25 and 38 above). B. The Court’s assessment
83. The general principles on the exhaustion of domestic remedies are set out in Sejdovic v. Italy [GC], no. 56581/00, §§ 43-46, ECHR 2006‑II). The Court will apply these principles to the legal avenues relied upon by the Government. 84. In relation to their argument that the applicant had failed to bring a civil action for damages against the State with regard to her involuntary confinement in the Idrija Psychiatric Hospital and the closed ward of the Ljubljana Psychiatric Hospital, the Court reiterates that where lawfulness of deprivation of liberty is concerned, an action for damages against the State is not a remedy which has to be used, because the right not to be deprived of one’s liberty “save in accordance with a procedure prescribed by law” and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see, inter alia, Khadisov and Tsechoyev v. Russia, no. 21519/02, § 151, 5 February 2009; Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 49, ECHR 2011 (extracts); and Raudevs v. Latvia, no. 24086/03, § 62, 17 December 2013). Paragraph 1 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter. The same is true of the relationship between the right to be informed promptly of the reasons for the deprivation of liberty under Article 5 § 2 and the right to compensation. Moreover, being a remedy of purely compensatory nature, a civil action for damages could not have secured the applicant’s release if her confinement was unlawful, as required by Article 5 § 4 (see Weeks v. the United Kingdom, 2 February 1987, § 61, Series A no. 114, and, more recently, Aden Ahmed v. Malta, no. 55352/12, § 114, 23 July 2013 and the references cited therein). For the same reason, it could not have led to the termination of the applicant’s medical treatment. Accordingly, the Court considers that a civil action for damages has no bearing on the question of exhaustion of domestic remedies in respect of the applicant’s complaints under Article 5 §§ 1-4 and Article 8. 85. Moreover, the Government claimed that during her stay in the open ward of the Ljubljana Psychiatric Hospital, the applicant should have requested termination of an infringement of personality rights pursuant to Article 134 of the Code of Obligations and injunctive relief under the Enforcement and Securing of Civil Claims Act. The Court has already dismissed a similar Government’s objection in the context of prison conditions, considering that the absence of any case-law indicated the uncertainty of requests for the termination of an infringement of personality rights in practice (see Štrucl and others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 126-127, 20 October 2011, and Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 113-114, 20 October 2011, and the references cited therein). It is true, as pointed out by the Government, that in the present case the applicant was advised by the Ljubljana Higher Court to use this remedy to obtain her release from the open ward. However, such advice cannot in itself imply that the remedy at issue would have effectively addressed her complaints. Having regard to the fact that her predicament required prompt judicial review, and that the request under Article 134 of the Code of Obligations does not appear to be subject to any time-limits, the Court considers that more persuasive evidence would be required in order to conclude that the remedy in question was appropriate and effective in the circumstances of the applicant’s case. The Government having submitted no domestic case-law showing how the remedy operated in practice, the Court considers that its finding in Štrucl and others and Mandić and Jović applies also in the circumstances of the present case. Furthermore, as regards the possibility of injunctive relief, the Court considers that, given the Ljubljana Local Court’s view that no legal basis existed for an interlocutory order for the protection of the applicant’s personality rights, there is nothing to show that she could have had more success if her application had been based on the Enforcement and Securing of Civil Claims Act instead of the Non-Contentious Civil Procedure Act. 86. The Government’s objection of non‑exhaustion must therefore be dismissed. 87. Furthermore, the Court considers that the applicant’s complaints under Articles 5 and 8, including the issue of the applicability of Article 5, raise serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The complaints under these two provisions must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
88. The applicant complained that her involuntary confinement in both the Idrija and Ljubljana Psychiatric Hospitals was in breach of Article 5 § 1 of the Convention, which, in so far as relevant, reads as follows:
 “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
... (e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
...”
A. Whether the applicant was deprived of her liberty within the meaning of Article 5 § 1 during her stay in the Idrija and Ljubljana Psychiatric Hospitals
1. Closed wards
89. The parties agreed that the applicant’s confinement in the closed wards of the two psychiatric hospitals had constituted a deprivation of her liberty within the meaning of Article 5 § 1, regardless of whether her initial attitude towards hospitalisation might have been more receptive. The Court sees no reason to hold otherwise, observing that the applicant was opposed to her confinement (see paragraphs 10, 13 and 22 above) and attempted to obtain release from the closed wards. 2. Open wards
90. The parties took opposite views as to whether also the applicant’s placement in in the two psychiatric hospitals’ open wards had constituted a deprivation of her liberty within the meaning of Article 5 § 1. (a)  The parties’ submissions
(i)  The applicant
91. The applicant submitted that her transfer to the open ward of the Ljubljana Psychiatric Hospital had not changed her status as a confined person, as the competent courts had continued with the confinement proceedings until 12 December 2005 (see paragraph 45 above), which had made her position equivalent to that of patients confined in closed wards. She asserted that a transfer to an open ward constituted a privilege to be earned by following the instructions of the psychiatrists and other staff, and stated that she had only been transferred upon the insistence of her representative D.P. that she be released from the hospital. 92. Further, the applicant referred to the Ombudsman’s Annual Report 2000 where mention was made of a practice adopted by psychiatric hospitals whereby patients who were not at risk of escaping were placed in open wards, although they were in the hospitals against their own free will (see paragraph 77 above). The applicant claimed that if she had actually attempted to leave the hospital, she could have been compelled to return and placed in the closed ward, adding that she had been taken to a psychiatric hospital by the police a few times previously, and had believed that this could happen again. In support of her arguments, the applicant referred to judgments no. II Cp 739/2012 of 16 May 2012 (see paragraph 68 above) and I P 509/2004 of 22 February 2010 (see paragraph 70 above), adding that patients in open wards of psychiatric hospitals were in reality prevented from leaving, by force if necessary, particularly while the court order for their confinement was still in effect. 93. As regards the daily routine in the open ward, the applicant acknowledged that it had differed somewhat from the closed ward regime, especially as regards restrictions on her movement. She had been able to go outside and take walks on the hospital lawn, but had been required to obtain the staff’s permission each time she had wished to leave the hospital grounds. Also, her clothes had only been returned to her ten days after she had been transferred (see paragraph 30 above). Relying on the two judgments cited in the previous paragraph, the applicant pointed to the psychiatric hospitals’ practice of keeping patients in their hospital pyjamas in order to prevent them from leaving the hospital. Further, as to her weekend outings, the applicant maintained that she had only been granted weekend leave if her father had offered to take her home and supervise her medication, which she had been required to take throughout the period spent in the open ward of the Ljubljana Psychiatric Hospital. Moreover, her discharge from the hospital had been made conditional upon her agreeing to live with her father or go into supported accommodation. (ii)  The Government
94. The Government claimed that a person’s stay and treatment in the open ward of a psychiatric hospital were voluntary and that, under domestic law, any consent to treatment in such a ward, where no emergency medical procedures were involved, could be revoked at any time. Accordingly, hospitals were required to respect such a decision and patients were free to leave the hospital if they so wished. As regards the applicant’s stay in the open ward of the Ljubljana Psychiatric Hospital, the Government alleged that during her entire stay, she had enjoyed regular afternoon leave and had regularly gone home at weekends and during the Christmas holidays, always returning by the time stipulated in the agreement made with her physicians. According to the Government, if the applicant had no longer wished to stay in the Ljubljana Psychiatric Hospital, she could have simply not returned. Regarding the return of the applicant’s clothes, the Government claimed that although her medical records confirmed that she could collect her clothes on 13 September 2005, there was no record that any previous request for her clothes to be returned had been denied. 95. Moreover, in the Government’s opinion, the applicant had never refused medical treatment while in the open ward of the Ljubljana Psychiatric Hospital. On the contrary, she had accepted it, and as a result had become pleasant, conversational, in a good mood and content; she had also re-established contact with her father. According to the Government, the applicant’s treatment had only been hindered by her representative D.P., who had visited her in the hospital on numerous occasions, confusing her with questions as to whether she wished to be there and “informing” her of her rights, which were supposed to have been violated. D.P. had encouraged the applicant not to cooperate with her physicians, who had suspected D.P. of abusing a vulnerable person. The applicant had been living in a garage, with no access to water or sanitation, and the psychiatrists had intended to help her manage her basic human needs. With treatment, the applicant’s condition had improved and the representative’s influence over her had weakened. She had reconnected with her father, begun to trust him and allowed him to become involved with her treatment. In view of this, the Government believed that the applicant had not been deprived of her personal liberty while in the open ward of the Ljubljana Psychiatric Hospital. (b)  The Court’s assessment
96. The general principles concerning the circumstances constituting a deprivation of liberty within the meaning of Article 5 § 1 of the Convention and therefore attracting the protection of this provision are set out in Stanev v. Bulgaria ([GC], no. 36760/06, §§ 115-120, ECHR 2012). (i)  Open ward of the Idrija Psychiatric Hospital
97. The applicant was transferred to the open ward on 8 August 2005 and remained there for four days. She was discharged and left the hospital on 12 August 2005 at her request. The Court notes that she did not provide any detailed statement to the effect that the Idrija Psychiatric Hospital prevented her from leaving the open ward. Although some of the applicant’s general arguments to the effect that her stay in the open wards had constituted a deprivation of liberty – for example that the transfer to the open ward constituted a privilege for good behaviour, or that she could only leave the hospital grounds with her psychiatrists’ permission – may be regarded as applying to both psychiatric hospitals in question, her specific complaints in this regard, as well as the arguments and evidence in their support all related to the Ljubljana Psychiatric Hospital. 98. Moreover, the Court observes that the involuntary confinement proceedings were terminated upon the applicant’s transfer to the open ward and that, accordingly, no legal basis existed for her return to the closed ward (see paragraph 16 above). Neither, in the Court’s opinion, is the fact that she was discharged at her own request four days following the transfer indicative of the hospital’s intent to prevent her from leaving. Lastly, although the Ombudsman’s Annual Report 2000 and the domestic case-law relied on by the applicant support her view that the regime applied in open wards may entail deprivation of a person’s liberty, the Court considers that these documents alone, in the absence of a detailed substantiation of her own specific situation while in the open ward of the Idrija Psychiatric Hospital, do not serve as sufficient evidence that she was deprived of her liberty during the four-day period she spent there. 99. Accordingly, the Court finds that the applicant’s stay in this ward in the period between 8 and 12 August 2005 does not fall within the scope of Article 5 § 1 of the Convention. 100. (ii)  Open ward of the Ljubljana Psychiatric Hospital
101. The parties disagreed on whether the applicant was transferred to the open ward on 3 or 4 September 2005. The Government relied on a record made of the applicant’s transfer in the doctors’ notes on her treatment, indicating that she was transferred on 3 September 2005. The Court finds no reason to doubt the credibility of this record and therefore agrees with the Government’s submission that the transfer took place on 3 September 2005. Having been discharged from the hospital on 19 January 2006, the applicant spent four months and sixteen days in the open ward of the Ljubljana Psychiatric Hospital. 102. The Court notes that the applicant’s submissions regarding this second period spent in the open wards depicted her specific situation in much more detail. First of all, the applicant’s clothes were only returned to her ten days after she had been transferred to the open ward, and until then she wore hospital pyjamas. In this regard, while the Court is mindful of the Government’s argument that no evidence was shown that the applicant had previously been denied a request for the return of her clothes, it observes that neither were the clothes returned to her without such a request. Moreover, while the applicant was able to leave the hospital grounds for shorter periods of time quite often in the later stages of her treatment in the open ward (see paragraph 30 above), she did not do so without seeking the express permission of the staff. It was not disputed by the Government that such permission had been required and within the staff’s discretion. Neither did the Government dispute that the applicant’s weekend outings had been conditional upon an arrangement with her father to take her home and supervise her medication. Lastly, it is noted that on at least one occasion, the applicant asked – and received – her psychiatrist’s permission to withdraw some of her social assistance money. Thus, the Court observes that the general setting of control exercised by the hospital staff exceeded considerably the measures required to monitor the applicant’s comings and goings. In this regard, the Court reiterates that the applicability of Article 5 does not depend solely on whether the applicant was held in a “locked” ward but whether the healthcare professionals treating her exercised complete and effective control and supervision over her care and movements (see H.L. v. the United Kingdom, no. 45508/99, § 91, ECHR 2004-IX). 103. Moreover, the Court notes that at the time of the applicant’s transfer to the open ward, the order of confinement was still in effect, meaning that she could have been returned to the closed ward without there being any requirement for the hospital to notify the competent court (see section 76(3) of the Non-Contentious Civil Procedure Act, paragraph 59 above). Although on 9 September 2005 the order was quashed for lack of reasoning as to the grounds for confinement, the applicant was not ordered to be released. Instead, the case was remitted to the local court which continued to examine the necessity of the applicant’s confinement until 12 December 2005. The applicant stated in this regard that she could not have predicted the consequences of her possibly leaving the hospital, while the Government made no comment about this issue. The Court, observing that her placement in the open ward should have resulted in the termination of the involuntary confinement proceedings (see section 70 of the Non-Contentious Civil Procedure Act, paragraph 59 above; also see paragraph 41 above), agrees that this continuation of proceedings justifiably gave the applicant the impression that she was not allowed to leave the hospital, or that she might be brought back by force. 104. The cumulative effect of these circumstances, in the Court’s opinion, constitutes significant restrictions on the applicant’s personal liberty (see Stanev, cited above, § 126). 105. Given that the notion of deprivation of liberty within the meaning of Article 5 § 1 also comprises an additional subjective element, namely that a person has not validly consented to the confinement in question (see Storck v. Germany, no. 61603/00, § 74, ECHR 2005‑V), it remains to be ascertained whether the applicant did in fact consent – at least by implication – to her stay in the open ward of the Ljubljana Psychiatric Hospital. 106. Having regard to the undisputed submissions of the Government, such consent was presumed by domestic law, as patients were supposedly free to leave the hospital at any time. Moreover, the applicant allegedly accepted treatment in the open ward, which resulted in a considerable improvement in her mental health. 107. The Court cannot agree with the Government’s view on this issue. It is noted in this connection that the applicant continuously requested to be released from the hospital throughout the course of the non-contentious proceedings (see paragraphs 32, 38, 39 and 49 above). Even after her discharge from the hospital she maintained her complaints that she had not consented to her stay in the open ward, first in her appeal on points of law (see paragraph 53 above) and subsequently in her constitutional complaint (see paragraph 55 above). 108. Based on these considerations, the Court is unable to conclude that the applicant consented to her stay in the open ward of the Ljubljana Psychiatric Hospital. 109. Accordingly, it finds that, in the special circumstances of the present case, the applicant’s stay in the open ward of the Ljubljana Psychiatric Hospital in the period between 3 September 2005 and 19 January 2006 amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. B. Whether the applicant’s involuntary confinement in the Idrija and Ljubljana Psychiatric Hospitals was compatible with Article 5 § 1
1. The parties’ submissions
(a)  Closed wards
(i)  The applicant
110. The applicant alleged that her mental state at the material time had not been such as to require an involuntary admission to a psychiatric hospital. She also pointed out that she had not consented to either period of confinement. The fact that she had signed a consent form in the Idrija Psychiatric Hospital could not be regarded as an expression of her own free will and informed consent, as she had been administered high doses of strong psychoactive medication. As regards her confinement in the Ljubljana Psychiatric Hospital, the applicant emphasised that she had not signed a consent form and that even her admission papers had indicated that she had exhibited a negative attitude towards hospitalisation and had only accepted it because the staff had been present. 111. Moreover, the applicant claimed that the rules of domestic procedure, which at the material time had provided for a thirty-day time-limit for issuing a court order of confinement, could not be considered fair, as they had allowed for an arbitrary deprivation of her liberty, as already established by the Constitutional Court in its decision no. U-I-60/03 (see paragraph 64 above). 112. Lastly, as regards the compliance of the involuntary confinement proceedings with the applicable domestic law, the applicant submitted that the statutory conditions for her involuntary confinement had not been shown to have been met on either of the two occasions at issue. In the first set of involuntary confinement proceedings, regarding the Idrija Psychiatric Hospital, no decision had been rendered on account of her having been transferred to the open ward. Furthermore, in the period between 10 July 2005 and 8 August 2005, when the involuntary confinement proceedings had been terminated, the Idrija Local Court had not even appointed an expert from another health-care institution in order to obtain an independent opinion on her mental state, as required by the Non-Contentious Civil Procedure Act. 113. The applicant emphasised that the court order issued regarding her confinement in the Ljubljana Psychiatric Hospital had been quashed on appeal for lack of grounds justifying the necessity of the confinement. However, no new decision had been rendered establishing whether the conditions for involuntary confinement had been met in the three months that followed. In this regard, the applicant criticised the Ljubljana Higher Court’s decision to remit the case to the lower court instead of deciding on the applicant’s appeal itself. As to this second period of confinement, the applicant also submitted that the hospital had failed to notify the competent court of her confinement within the prescribed 48-hour time-limit (see section 71 of the Non-Contentious Civil Procedure Act in paragraph 59 above). Lastly, the applicant complained that her father was allowed to participate in the proceedings in breach of the domestic procedure, as the hearings in her case should have been conducted in private. (ii)  The Government
114. The Government, relying on the medical records of the applicant’s long history of illness and numerous hospitalisations, affirmed their belief that the applicant had been of an unsound mind and that the periods of confinement at issue had been necessary. 115. With regard to the question whether the involuntary confinement proceedings had been conducted in accordance with the applicable domestic law, the Government emphasised, at the outset, that the applicant’s argument that the proceedings had been unconstitutional, as they had been conducted in accordance with the provisions of the Non-Contentious Civil Procedure Act which had been declared unconstitutional in 2003, was unfounded. The domestic courts were in fact required to interpret the law in a manner ensuring, to the fullest extent possible, consistency with the Constitution (and the Convention), and, moreover, the Constitutional Court had itself eliminated the most pressing deficiencies of that Act. 116. Nevertheless, the Government agreed that the applicant had been denied effective judicial supervision, as in both periods of her confinement she had been transferred to the open wards before the competent courts had issued the respective orders of confinement. However, they argued that the proceedings regarding the applicant’s confinement in the Idrija Psychiatric Hospital had been conducted in accordance with domestic law. The Idrija Local Court had assigned a representative to the applicant and questioned the applicant and her physician, all within the statutory time-limits. However, before an expert from another healthcare institution could have been examined, the hospital had notified the court that the applicant had been transferred to the open ward and the proceedings had been terminated. 117. Further, as regards the applicant’s admission to the Ljubljana Psychiatric Hospital, the Government pointed out that she had not resisted hospitalisation, and that the courts were only notified of cases where confinement had been considered to be against the patient’s wishes. When the applicant herself had notified the Ljubljana Local Court of her confinement, a court-appointed representative had duly been appointed for her, the court had held a hearing, and it had sought an expert opinion from a psychiatrist from another healthcare institution. The Government also argued that the procedural errors committed by the Ljubljana Local Court in its order of confinement (see paragraph 31 above) had been rectified in the appellate proceedings, as the Ljubljana Higher Court had not only quashed the order, but had also quashed two decisions of the lower court dismissing the applicant’s application for an interlocutory order that she be released from the hospital. 118. In conclusion, the Government alleged that both sets of involuntary confinement proceedings had been conducted in accordance with the then applicable domestic law. (b)  Open ward of the Ljubljana Psychiatric Hospital
(i)  The applicant
119. The applicant pointed out that at the time of her confinement in the open ward of the Ljubljana Psychiatric Hospital, there had been no statutory provisions regulating admission to these wards. In her opinion, however, a regulatory framework was necessary in view of the fact that a person who had been transferred to an open ward while the court order for his or her confinement was still in effect could have been returned to the closed ward at any time before the order expired. As regards her own case, the applicant alleged that an order had been made allowing the hospital to confine her until 23 September 2005. However, as the involuntary confinement proceedings had continued after that date, her position had been no different to that of patients in closed wards, as she could have been returned to that ward had she attempted to leave the hospital while the proceedings had been pending with regard to her involuntary confinement. (ii)  The Government
120. The Government, acknowledging that admission to and treatment in open wards of psychiatric hospitals had not been regulated by law, argued that a specific statutory basis was not required, as patients were treated in these wards voluntarily. They added that a possible failure to obtain consent for admission to and/or medical treatment in an open ward of a psychiatric hospital had entailed a violation of section 47(1) (4) of the Health Services Act (which provided that consent should be given to any medical procedure), as well as a deprivation of an individual’s liberty. However, as regards the present case, the Government maintained that the applicant had not been deprived of her liberty. 2. The Court’s assessment
(a)  General principles
121. The Court reiterates that in order to comply with Article 5 § 1 of the Convention, the deprivation of liberty must first of all be “lawful” and “in accordance with a procedure prescribed by law”. In this regard, the Convention essentially refers back to domestic law and lays down the obligation to conform to the substantive and procedural rules thereof. However, the requirement of lawfulness is not satisfied merely by compliance with the relevant domestic law; the Court must in addition be satisfied that the deprivation of liberty was consistent with the purpose of Article 5 § 1, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Stanev, cited above, § 143, and the references cited therein). 122. Moreover, domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein, notably the principle of legal certainty. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000‑III; Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000‑IX; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). 123. Lastly, the Court has outlined three minimum conditions for the lawful detention of an individual on the basis of unsoundness of mind under Article 5 § 1 (e) of the Convention: he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement must depend upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Johnson v. the United Kingdom, 24 October 1997, § 60, Reports 1997‑VII; and, more recently, Stanev, cited above, § 145). (b)  The applicant’s confinement in the closed wards
(i)  Idrija Psychiatric Hospital
124. As regards the applicant’s hospitalisation in the Idrija Psychiatric Hospital, her main complaint concerned the time-limit for deciding on the confinement. In the Court’s opinion, also her other complaints regarding the lack of a second expert opinion and any decision on confinement place themselves within this context of time-limit. It is noted in this connection that the domestic courts were required to decide on the necessity of an individual’s confinement “without delay, but no later than thirty days” after receiving the notification of confinement (see section 76(2) of the Non-Contentious Civil Procedure Act, paragraph 59 above). Another forty-eight hours had to be added to this maximum thirty-day period, to allow for time to pass between an individual’s involuntary admission and the notification to the competent court thereof. Already in 2003, this period for issuing the decision on confinement had been criticised by the Constitutional Court as possibly being too long (see paragraph 64 above). However, as it was not possible for the Constitutional Court to repeal the provisions regulating the involuntary confinement procedure with immediate effect (see paragraph 18 above), this period still applied at the material time (see paragraph 66 above). 125. The Government offered no explanation for the absence of any procedural steps on the part of the Idrija Local Court between 15 July and 8 August 2005. Still, they argued that the twenty-eight day delay in obtaining a second opinion and making an appropriate order – neither of which had eventually taken place – had been in accordance with the rules of domestic procedure. However, even assuming that the rules of domestic law were complied with, the Court considers that the legislation allowing for such an extensive amount of time to pass before a decision was made on confinement raises serious concerns under Article 5 § 1, as it implies a lack of procedural safeguards. The Court has already recognised that an inadequate legal framework allowing a hospital’s healthcare professionals to assume full control of the liberty and treatment of a vulnerable individual solely on the basis of their own clinical assessments deprives an individual of sufficient protection against arbitrary deprivation of liberty (see H.L. v. the United Kingdom, cited above, §§ 121 and 124; and Storck, cited above, §§ 104-106). 126. The Court observes that in the applicant’s case, the full control assumed by the hospital staff was, unlike in the case of H.L. v. the United Kingdom, limited in time. Moreover, it is true that the Court has accepted as reasonable certain intervals between the expiry of one order allowing for a deprivation of liberty and the issuing of a new one (see Winterwerp, cited above, § 49; and Rutten v. the Netherlands, no. 32605/96, §§ 39-41, 24 July 2001). However, in the present case not even an initial assessment was conducted by the competent authority, the Idrija Local Court, of whether the deprivation of the applicant’s liberty was justified in the circumstances of the case. Consequently, the applicant’s twenty-eight day confinement in the closed ward, from the beginning and throughout, had no valid substantive legal basis. In this connection, the Court considers that while the applicant’s mental condition might have justifiably been considered by the hospital staff to necessitate urgent hospitalisation, the initial decision made by them to confine her should have been replaced by a decision of the competent authority, that is, the local court, in the shortest possible time. 127. Moreover, the fact that the rules of the involuntary confinement procedure ceased to apply to the applicant’s case once she was transferred to the open ward and the proceedings were consequently terminated (see paragraphs 41 and 59 above) raises another point of concern. As a consequence no assessment was ever made by the local court whether it had in fact been necessary to deprive the applicant of her liberty. The absence of such an assessment was all the more poignant because the measure of involuntary confinement appears to have entailed an automatic authorisation for medical treatment of the applicant, even against her will (see section 49 of the Health Services Act, paragraph 58 above). In this regard the Court considers that the sole fact that the measure of involuntary confinement had ceased to apply, should not have deprived the applicant from obtaining a decision of the competent authority as to whether the confinement had been necessary in the circumstances, given the gravity of the measure of psychiatric confinement (see, mutatis mutandis, Herz v. Germany, no. 44672/98, § 68, 12 June 2003). 128. In the light of the above considerations, the Court considers that the procedure prescribed by domestic law did not in the present case provide adequate safeguards against arbitrariness. The combined effect of the excessive time-limit allowed for making a decision on confinement and the termination of involuntary confinement proceedings without such a decision in the Court’s opinion allowed for possible abuses of psychiatric confinement. The domestic law and, in particular, the manner in which it was applied in the applicant’s case, thus failed to satisfy the requirements of Article 5 § 1 of the Convention. (ii)  Ljubljana Psychiatric Hospital
129. As to the applicant’s confinement in the closed ward of the Ljubljana Psychiatric Hospital, the Court notes, firstly, that the Ljubljana Local Court was notified of her confinement on 21 August 2005, six days after she had been admitted to the closed ward. Secondly, it was the applicant herself who made this notification, although the psychiatric hospital was required to notify the local court, within forty-eight hours at the latest, of all cases of confinement where patients did not consent or lacked capacity to consent to treatment (see section 71 of the Non-Contentious Civil Procedure Act, paragraph 59 above). 130. In this regard, the Court is unable to accept the argument that the applicant’s admission to the closed ward of the Ljubljana Psychiatric Hospital was voluntary. As pointed out by the applicant, her admission record shows that she only accepted hospitalisation because the staff were present, but exhibited a negative attitude towards it. It was therefore acknowledged on the record that an element of coercion was in fact involved in her admission to the hospital. Moreover, it was not disputed by the Government that the applicant had not signed a consent form for the admission and treatment. In so far as consent was not even sought on account of the hospital having considered the applicant to lack the capacity to validly express her wishes (an argument was made to this effect in the context of the applicant’s complaint under Article 5 § 2, see paragraph 141 below), her confinement should have automatically been regarded as involuntary by virtue of section 71(3) of the Non-Contentious Civil Procedure Act. 131. Thus, the Ljubljana Psychiatric Hospital failed to notify the Ljubljana Local Court of the applicant’s admission to the closed ward in violation of a procedure prescribed by law. The hospital being a public healthcare institution (see paragraphs 19 and 58 above), this breach of domestic procedure can be attributed to the State. It is, moreover, a sufficient ground in itself for the Court to conclude that the applicant’s confinement did not comply with the requirements of Article 5 § 1. 132. Nevertheless, the Court wishes to address one more point with regard to the course of the involuntary confinement proceedings conducted in respect of the applicant’s confinement in the Ljubljana Psychiatric Hospital. It is noted that in the course of involuntary confinement proceedings, the applicant was transferred to the open ward on 3 September 2005 (see paragraph 29 above). Her stay in that ward was considered voluntary under domestic law (see paragraph 94 above) and should have resulted in the termination of involuntary confinement proceedings (see paragraph 41 above). However, after the initial order of confinement was quashed on 9 September 2005 for lack of grounds justifying the necessity of the applicant’s confinement (see paragraph 31 above), the remitted proceedings continued for three more months, until 12 December 2005 (see paragraph 45 above), on the erroneous premise that the applicant was still confined in the closed ward. As with the earlier set of proceedings concerning the Idrija Psychiatric Hospital (see paragraph 127 above), the Court notes that these proceedings terminated without a decision on whether the statutory conditions for the applicant’s confinement had been met. In this regard, it does not follow from the provisions of the Non-Contentious Civil Procedure Act or the Government’s submissions that, after remittal, the Ljubljana Local Court was bound by any time-limit for making a new decision on confinement. In the absence of such a time-limit, the applicant was confined without a valid substantive legal basis or clear rules governing the maximum duration of this situation, which is incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see Baranowski v. Poland, no. 28358/95, § 56, ECHR 2000‑III; and Ječius v. Lithuania, no. 34578/97, § 62, ECHR 2000‑IX). The domestic law at the material time therefore fell short of the “quality of law” standard required under the Convention. 133. In the light of the foregoing considerations the Court considers that the applicant’s confinement in the closed ward of the Ljubljana Psychiatric Hospital was not “lawful” within the meaning of Article 5 § 1 of the Convention. (c)  The applicant’s confinement in the open ward of the Ljubljana Psychiatric Hospital
134. The Court has already examined the period of the applicant’s confinement in the open ward between 3 September and 12 December 2005, in which the applicant was erroneously considered by the domestic authorities to be in the closed ward (see paragraph 132 above); it thus remains to examine whether the remaining period of her confinement in the open ward (from 13 December 2005 to 19 January 2006) complied with the requirements of Article 5 § 1. 135. The Court notes that the parties were in agreement as to the absence of any formal procedure for admissions to and medical treatment in open wards of psychiatric hospitals at the material time. There existed no regulatory framework, written or unwritten, which would determine the conditions of the applicant’s confinement in the open ward, such as the reasons for which it could be ordered, the medical evidence that should be obtained in this regard, the time-limits of confinement, or which authority was competent to decide thereupon, and nor was there any regulation of the medical treatment administered during confinement. This absence of any legal provision justifying the applicant’s confinement was, again, clearly at variance with the requirements of legal certainty and the protection from arbitrariness. (d)  Conclusion
136.

Article of the Convention at issue: Article 5
Outcome: violation