FOURTH SECTION
 
 
 
 
 
 
CASE OF O.G. v. LATVIA
 
(Application no. 66095/09)
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
 
23 September 2014
 
 
 
 
FINAL
 
23/12/2014
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of O.G. v. Latvia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 George Nicolaou, President,
 Ineta Ziemele,
 Ledi Bianku,
 Nona Tsotsoria,
 Zdravka Kalaydjieva,
 Paul Mahoney,
 Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 2 September 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 66095/09) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr O.G. (“the applicant”), on 10 December 2009. The President of the Third Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court). 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine, and subsequently by Mrs K. Līce. 3. The applicant alleged, in particular, that he had been illegally confined to a psychiatric hospital. 4. On 17 October 2011 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1965 and lives in Riga. A. The first set of criminal proceedings
6. On 3 March 2004 criminal proceedings were initiated against the applicant for Internet fraud. 7. In the course of the pre-trial investigation the applicant underwent two inpatient psychiatric examinations. On both occasions the applicant was found to have full mental capacity (pieskaitāms). 8. On 3 October 2006 the Riga City Vidzeme District Court found the applicant guilty and gave him a suspended six-month prison sentence. The applicant and his counsel appealed. 9. Taking into account that during the hearing of the appeal court of 9 January 2007 the applicant was said to have “behaved aggressively towards the advocate and the prosecutor [and] in the course of the subsequent hearings [had] made illogical and disjointed statements”, on 13 March 2007 the Riga Regional Court decided to request an outpatient psychiatric assessment. 10. On 27 April 2007 a psychiatrist found that the applicant was suffering from chronic paranoid schizophrenia and that his participation in court hearings was therefore “unhelpful” (nav lietderīga). The psychiatrist recommended that the applicant undergo outpatient treatment. 11. On 18 June 2007 a single judge of the Riga Regional Court decided to initiate proceedings with a view to applying a compulsory measure of a medical nature. Taking into account that “the nature of [the applicant’s] illness [did] not permit him to take part in court proceedings”, it was decided that the case would be examined in the applicant’s absence, with the participation of a prosecutor, defence counsel, a legal representative for the applicant and an expert psychiatrist. The applicant’s mother was named as his legal representative. 12. The applicant’s mother did not attend the following hearing on 19 September 2007. She had sent the court a letter stating that she would be unable to attend court hearings due to ill-health. She also expressed her belief that her son had legal capacity and was able to express his own point of view. During the hearing the prosecutor suggested that D.A., a psychiatrist responsible for the applicant’s medical treatment, could better serve as his legal representative, a suggestion which was approved by the court with the consent of the applicant’s counsel and the expert psychiatrist. 13. The subsequent hearing on 16 October 2007 was attended by D.A., who described the applicant as “chaotic”, “contemptuous” and as having “delirious fantasies”. She considered that he should be ordered to undergo involuntary outpatient psychiatric treatment. She explained that if the applicant did not take medication he did not become aggressive, but became “a burden on society”. At the conclusion of the hearing, the defence counsel, D.A. and the prosecutor all agreed that an additional inpatient psychiatric assessment ought to be carried out, which was ordered by the court. 14. The inpatient assessment was completed on 27 November 2007 and the applicant was diagnosed with episodic paranoid schizophrenia with increasing residual symptoms (paranoīda epizodiskas norises šizofrēnija ar pieaugošām reziduālām parādībām). It was concluded that at the time he had committed the incriminated acts, he had been unable to control his actions. It was therefore recommended that he be relieved of criminal liability. 15. On 18 February 2008 the Riga Regional Court decided to relieve the applicant of criminal liability and imposed a compulsory measure of a medical nature – outpatient treatment in a medical institution. It held that such a measure best corresponded to the non-violent nature of the applicant’s actions and to his state of health. It appears that this decision was not appealed against and entered into force on 11 March 2008. The Riga City Vidzeme District Court was named as the court responsible for supervising enforcement of the Regional Court’s order. B. The second set of criminal proceedings
16. On 1 March 2007 criminal proceedings were initiated against the applicant for fraud. On 15 March 2007 the police received information that he was registered (atrodas uzskaitē) as an outpatient of a psychiatric hospital. 17. On 8 October 2007 the applicant was informed that he was a suspect. On the same day, referring to the psychiatric assessment of 27 April 2007 (see paragraph 10 above), the police decided to request an additional forensic psychiatric assessment of him. 18. The applicant underwent such an assessment. A report dated 29 October 2007 established that he was suffering from chronic paranoid schizophrenia and was therefore unable to take responsibility for his actions or control them. Because of this he was deemed unable to participate in the pre-trial investigation of the criminal case against him or to give adequate statements during the investigation. The expert report recommended that a compulsory measure of a medical nature be ordered – outpatient psychiatric treatment in a medical institution. 19. The prosecutor in charge of the case against the applicant decided to pursue proceedings with a view to applying a compulsory measure of a medical nature. After receiving information from the psychiatric hospital that in the first set of proceedings the applicant’s legal representative was D.A., on 7 February 2008 the prosecutor decided to allow D.A. to again take on that role. 20. On 19 August 2008 a hearing of the applicant’s case was held in the Riga Regional Court. The panel consisted of judge I.Š. and two lay judges. The applicant was represented by a lawyer A.Ā. A prosecutor, an expert psychiatrist and D.A. also attended the hearing, but the applicant was not present. According to the applicant, he had not appointed A.Ā. or anyone else as his defence counsel. 21. D.A. stated to the court that the applicant had:
“obsessive thoughts concerning various acts of a legal nature. I believe that if he had an opportunity to arrive at any office, if he had an access to a computer, he would be capable of committing repeated criminal acts. ... I consider that [the applicant] could be a danger to society and that he should receive treatment”. 22. The court also heard the testimony of the expert psychiatrist G.S. who had produced the expert report of 29 October 2007 (see paragraph 18 above). G.S. explained to the court that at the time the expert report was drawn up she had not been aware that the applicant had previously been involved in other criminal proceedings in which he had been found to be in a state of mental incapacity (nepieskaitāms) and that he “was continuing [his] criminal activity”. She considered that nobody could control whether the applicant was taking medication and therefore recommended that he undergo involuntary inpatient treatment. 23. The applicant’s defence counsel indicated to the court that, given the applicant was continuing to commit crimes while ill and taking into account his mental state, it was necessary to order his inpatient treatment in a psychiatric hospital. The prosecutor agreed. 24. In a decision dated 20 August 2008 the court held that the applicant had to be relieved of criminal liability. It also considered that he posed a danger to society and ordered his inpatient treatment in a psychiatric hospital. A copy of the decision was sent to D.A. on 25 August 2008. 25. The decision was not appealed against in time and became final on 2 September 2008. 26. On 12 September 2008 the decision was sent to a psychiatric hospital in Riga for enforcement. 27. It is not clear when the applicant first received a copy of that decision. The Government provided copies of two not entirely legible handwritten pages, which allegedly came from the applicant’s medical records, and which appear to indicate that on 19 August 2008 (the day before the Regional Court’s decision was pronounced) the applicant had been informed of the court’s decision to order his involuntary inpatient treatment and had expressed his frustration with that decision. The applicant appears to claim that he never received a copy of the decision. 28. On 9 September 2008 the applicant requested the Riga Regional Court to revoke the compulsory measures of a medical nature imposed on him “in full”. However, the wording of his letter only referred to the decision of 18 February 2008 (see paragraph 15 above). In a response given on 16 September 2008 judge I.Š. observed that the applicant was not complaining about the decision of 20 August 2008, which had become final on 2 September 2008, and therefore returned his complaint letter to him. 29. On 13 March 2009 the applicant lodged an appeal with the Riga Regional Court against “the decision of 19 August 2008”. Since he received no reply, on 26 March 2009 he inquired as to its progress. In a letter of 9 April 2009 judge I.Š. “once again” explained to the applicant that he had been represented in court by D.A., who had not lodged an appeal. The decision had therefore become final. The letter further informed the applicant that he did not have the locus standi to lodge an appeal. On 14 April 2009 the applicant received a letter from another judge of the Riga Regional Court, D.T., who explained to him that only D.A. could lodge an appeal in his name. 30. On 9 April 2009 judge I.Š. sent the decision of 20 August 2008 to the police with a request that it be enforced. 31. On 2 October 2009 judge I.Š., acting pursuant to section 607(4) of the Criminal Procedure Law (see paragraph 46 below) requested an assessment of the applicant’s mental health in order to decide the question of whether to continue applying the compulsory measure of a medical nature. 32. On 8 October 2009 the director of the psychiatric hospital invited the Regional Court to examine whether it was necessary to continue applying the compulsory measure of a medical nature to the applicant and forwarded to it the report of a medical panel dated 20 August 2009. The panel had found that the applicant had regularly attended the hospital, but had done so “without any inner motivation and without any understanding of his illness or of the necessity to take medication”. It was concluded that the applicant suffered from paranoid schizophrenia and that despite treatment with medication, there was no evidence of any stable improvement to his psychiatric health or that he was in remission. It was recommended that the applicant be ordered to continue outpatient treatment. 33. It does not appear that the Regional Court took any decision pursuant to section 607(4) of the Criminal Procedure Law. 34. On the evening of 22 October 2009 several police officers entered the applicant’s flat and took him to a psychiatric hospital in Riga. According to the applicant, on 26 October 2009 doctors at the hospital informed him that he had been brought in on the basis of a decision of the Riga Regional Court. 35. On 29 October 2009 judge I.Š. sent a request to the psychiatric hospital for a report on the state of the applicant’s mental health, in order to examine the question of whether it was necessary to continue involuntary inpatient psychiatric treatment pursuant to section 607(4) of the Criminal Procedure Law. The letter indicated, inter alia, that the applicant had not been admitted to hospital any earlier than on 22 October 2009 “for reasons unknown to the court”. 36. On 31 October 2009 the applicant addressed a petition to the Supreme Court. He indicated that he had been undergoing outpatient psychiatric treatment in line with the recommendations of panels of medical specialists that had been adopted in September 2008 and in February and August 2009. He requested the Supreme Court to quash the decision which had apparently ordered his admission to the psychiatric hospital (the contents of which were unknown to him). Lastly, the applicant pointed out that he had not been present at the court hearing during which the question of the deprivation of his liberty had been decided and that he had had no lawyer representing him there. 37. The applicant received a reply dated 5 November 2009 from judge I.Š., who explained that his treatment as an outpatient between the adoption of the decision on 20 August 2008 and 22 October 2009 had been erroneous (nepamatota). As regards the decision of 20 August 2008 the judge explained that the applicant’s interests had been represented by D.A. and A.Ā., neither of whom had appealed against the decision. It had therefore become final. 38. In the meantime, on 3 November 2009 a panel of three medical specialists issued a report, finding that the applicant’s health had “changed notably, characterised by symptoms of delirium against a background of reduced affection”. The report recommended that the applicant be ordered to continue involuntary inpatient treatment in a psychiatric hospital. 39. On 15 November 2009 the applicant sent a complaint to the Supreme Court against the “decision” of judge I.Š. contained in her letter of 5 November 2009. He pointed out that after the decision of 20 August 2008 had been adopted in his absence and without him being represented by a lawyer, he had been complying with the terms of that decision by being treated in a psychiatric hospital from September 2008 onwards. The applicant asked the Supreme Court to quash the decision on the basis of which the police had detained him and taken him to the psychiatric hospital on 22 October 2009. He repeated his allegation that he was not and had never been represented by a lawyer. The response he received to the complaint again came from judge I.Š., which was sent on 23 November 2009, and was worded almost identically to the response she had sent previously. 40. On 28 December 2009 the Riga Regional Court decided to continue the applicant’s involuntary inpatient treatment. The decision was amenable to appeal. The applicant received it on 11 January 2010. No appeal was lodged. 41. The applicant was released from the hospital on 7 June 2010 on the basis of a decision of the Riga Regional Court of 27 May 2010 ordering his treatment as an outpatient. II. RELEVANT DOMESTIC LAW
42. Section 592(1) of the Criminal Procedure Law, as in force at the material time, provided, inter alia, that a compulsory measure of a medical nature could be imposed by a court on persons who had committed criminal offences, if such persons were a danger to society owing to the nature of the offences committed by them or their mental state. 43. Under section 594 of the Criminal Procedure Law the person with respect to whom the proceedings for applying a compulsory measure of a medical nature were being initiated or their representative had to be informed of the proceedings. Both the person in question and their representative had to be informed of their rights and obligations. If, further to an expert assessment, the person in question could not take part in the pre-trial proceedings, a prosecutor had to inform the person’s defence counsel and to adopt a decision concerning a legal representative’s participation in the criminal proceedings. 44. Pursuant to section 602 of the Criminal Procedure law a judge examining the question of applying a compulsory measure of a medical nature had to order that the person with respect of whom the proceedings were being conducted be brought before the court “if the nature of the person’s illness so permit[ted]”. 45. Under section 606(1) the person with respect to whom the proceedings for applying a compulsory measure of a medical nature were being carried out could only appeal against a decision taken by the court only if he had participated in the relevant hearing. 46. Section 607 of the Criminal Procedure Law regulated the way matters regarding the revocation or alteration of compulsory measures of a medical nature came before the courts:
“(1)  If the need to apply the compulsory measure of a medical nature ordered by a court has ceased to exist because the person to whom such a measure was applied has been cured or because [their] state of health has otherwise changed, the director of the medical institution where the person is being treated shall, on the basis of a report of a medical panel, request a court to revoke or alter the compulsory measure of a medical nature. (2)  A request to revoke or alter the ... compulsory measure of a medical nature may be lodged by the person to whom such a measure was applied ... In such cases the court shall request from the relevant medical institution a report about the state of health of the person with regard to whom the request has been lodged.
... (4)  The court which adopted the decision to order a compulsory measure of a medical nature or the first-instance court responsible for the enforcement of [that] decision shall decide, on its own initiative, whether to revoke or alter the [measure] if more than one year has elapsed since the [measure] was ordered or since the most recent examination of the question of altering or revoking the [measure] and within that time no request or suggestion to alter or revoke the [measure] has been lodged.”
47. Section 608 set down the procedure for examining matters regarding the revocation or alteration of a compulsory measure of a medical nature. In so far as is relevant, it provided:
“(1)  Matters concerning the revocation or alteration of a compulsory measure of a medical nature shall be decided within fourteen days by the court which took the decision to order [the measure] or by a court with territorial jurisdiction over the medical institution carrying out the compulsory treatment.
... (5)  The court shall take a decision concerning the revocation or alteration of the compulsory measure of a medical nature, or a refusal to do so. The decision shall be amenable to appeal in cassation only ...”
48. Section 635(1) of the Criminal Procedure Law provided that a decision to order a compulsory measure of a medical nature had to be implemented immediately after becoming final. If, however, that did not happen and more than six months had elapsed since the decision had become final and the decision had not been implemented in the meantime, section 635(3) provided that the person concerned “may be admitted” to hospital, yet the administration of medical treatment had to be postponed “until a fresh report of a medical panel had been received”. Section 635(4) clarified that medical treatment could be initiated after a medical panel had found that the person concerned had not recovered, their state of health had not changed significantly and that the compulsory medical treatment that had been ordered was necessary. THE LAW
I. ABUSE OF THE RIGHT OF INDIVIDUAL APPLICATION
49. On 15 May 2014 the Agent of the Government informed the Court that an e-mail received the previous day by one of the lawyers of her office and allegedly sent by the applicant had contained “direct threats towards the lawyer”. According to the Government, this constituted a clear abuse of the right of individual application. The Government therefore invited the Court to declare the application inadmissible in accordance with Article 35 § 3 (a) of the Convention and to reject it in accordance with Article 35 § 4. 50. The applicant was invited to comment on the Government’s submission, but did not do so within the time allotted for that purpose. 51. The Court reiterates that persistent use of insulting or provocative language by an applicant in communication with the Court may be considered an abuse of the right of application within the meaning of Article 35 § 3 of the Convention (see, for example, Manoussus v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002; Řehák v. the Czech Republic (dec.), no. 67208/11, 18 May 2004; and Apinis v. Latvia (dec.), no. 46549/06, 20 September 2011, § 15). 52. The Court considers that the threats contained in the e-mail received by the office of the Agent of the Government constitute a clear example of an unacceptable and uncivilised form of communication. However, irrespective of whether or not the e-mail in question was in fact sent by the applicant, it was sent directly to the Agent of the Government and not formally submitted to the Court. Taking also into account the applicant’s officially documented mental state and the symptoms associated with paranoid schizophrenia, the Court comes to the conclusion that the present situation is comparable to a recent case in which it rejected a similar request by the Estonian Government (see Rosin v. Estonia, no. 26540/08, §§ 40-44, 19 December 2013). 53. Considering all the circumstances of the case, the Court does not find it appropriate to declare the application inadmissible as abusive within the meaning of Article 35 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
54. The applicant complains that he was not able to challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention, which provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. Admissibility
55. The Government argued that the applicant’s Article 5 complaints were inadmissible for non-exhaustion of domestic remedies. 56. The Court considers that the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint under Article 5 § 4 of the Convention. It should therefore be joined to the merits. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. Appeal against the initial decision of 20 August 2008
57. The Government submitted that the applicant should have appealed against the Riga Regional Court’s decision of 20 August 2008 (with which he had been “introduced” on 19 August 2008; see paragraph 27 above) with the assistance of his legal representative D.A., a prosecutor or his defence counsel A.Ā. The Government argued that even though the applicant’s legal representative at the relevant time had been his doctor, he could have contacted a prosecutor or his mother in order to have the question of the legality of his detention reviewed by the courts. 58. The Government also pointed out that the Criminal Procedure Law had given the applicant a right to complain to a prosecutor about the appointment of a legal representative, yet he had not used it. Lastly, the applicant could have complained to the Bar Association about the services provided by his defence counsel. 59. The Government further indicated that the applicant had failed to appeal against the Riga Regional Court’s decision of 28 December 2009 (see paragraph 40 above). No other potentially effective remedies were invoked by the Government. 60. The applicant emphasised that, contrary to the requirements of the Criminal Procedure Law, he had never been issued with a copy of the decision of 20 August 2008 bearing the judge’s signature, and had never been explained the procedure for appealing such a decision. Judge I.Š. of the Riga Regional Court had not forwarded his complaints about his detention to the Supreme Court, but instead had rejected them herself. 61. The Court notes that, as clearly derives from section 606(1) of the Criminal Procedure Law (see paragraph 45 above), the applicant, having been absent from the hearing of 19 August 2008, was not entitled to lodge an appeal against the decision of 20 August 2008 himself and had to do so through an intermediary. Even assuming that he had a realistic opportunity to contact his legal representative, who was a doctor at the psychiatric hospital in which he was receiving outpatient treatment and in which he was eventually detained, or his State-appointed defence counsel or a prosecutor, a decision whether or not to appeal against the decision of the Riga Regional Court would have been entirely at their discretion. In other words, the applicant himself was deprived of the opportunity to directly complain about the legality of the order to admit him to a psychiatric hospital. 62. The Court reiterates that the existence of the remedy required by Article 5 § 4 of the Convention must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Hađi v. Croatia, no. 42998/08, § 41, 1 July 2010, with further references). In this regard, the Court has previously held that a patient compulsorily detained for psychiatric treatment must have the right to seek judicial review of his or her own motion (see Gorshkov v. Ukraine, no. 67531/01, § 44, 8 November 2005, Rakevich v. Russia, no. 58973/00, §§43-44, 28 October 2003 and Raudevs v. Latvia, no. 24086/03, § 82, 17 December 2013). More generally, the Court has indicated that it would be inconceivable that Article 5 § 4 of the Convention should afford procedural guarantees to a party whose detention matter is pending before a court without also protecting what makes it in fact possible to benefit from such guarantees – that is, the possibility to access the court by making an application to review the lawfulness of the detention (see Proshkin v. Russia, no. 28869/03, § 92, 7 February 2012). It is without doubt that situations can be envisaged where a detainee’s mental state or other circumstances would render his personal involvement in detention proceedings impossible. However, the Court has been unwilling to accept the state of mind of a detained person, on its own, as an implied and blanket limitation on his right to institute judicial review proceedings for the purpose of Article 5 § 4 of the Convention, particularly when no assessment of his ability to be personally involved in the proceedings leading to his detention has been performed by the court (ibid.). 63. In the present case, the domestic court decided that the applicant need not attend the hearing of 19 August 2008 since more than nine months previously, on 29 October 2007, it had been found in the course of an outpatient psychiatric assessment that he was suffering from chronic paranoid schizophrenia and was therefore unable to participate in the pre-trial investigation of the criminal case against him or to give adequate statements during the investigation (see paragraph 18 above). The experts had not assessed his ability to form an opinion about the need to hospitalise him and the Riga Regional Court did not address this particular issue. The applicant was unable to directly and effectively challenge the lawfulness of his detention in court. In the Court’s assessment, this situation amounted to a limitation of the applicant’s rights guaranteed by Article 5 § 4 of the Convention to have the lawfulness of his detention from 22 October 2009 reviewed speedily by a court. 64. The other avenues suggested by the Government, namely that the applicant could have complained to the Bar Association about the actions of his defence counsel or to a prosecutor about the appointment of a legal representative, have no evident link to the question of the deprivation of his liberty and therefore cannot be considered an effective procedure by which he could have challenged the lawfulness of his detention. 2. Subsequent appeals or requests
65. The Government argued that the applicant had had access to proceedings in which the lawfulness of his detention would have been decided by a court. For instance, he could have appealed against the decision of the Riga Regional Court of 28 December 2009 (see paragraph 40 above), which he had failed to do. 66. The applicant did not submit any comments in this regard, but focused instead on the fact that his complaints of 31 October and 15 November 2009 had not been examined by the Supreme Court (see paragraphs 36, 37 and 39 above), to which they had been addressed. 67. At the outset the Court notes that section 607(2) of the Criminal Procedure Law provided that the person subject to a compulsory measure of a medical nature could request a court to amend or revoke the measure imposed (see paragraph 46 above). Thus, in theory the applicant had a right to apply to court for his release. 68. The Court further notes that on 31 October and 15 November 2009 the applicant sent petitions, addressed to the Supreme Court, in essence challenging the legality of his detention. The requests did not contain an explicit reference to section 607(2) of the Criminal Procedure Law; however, it is clear from both requests that he was dissatisfied with being admitted to a psychiatric hospital, considered the deprivation of his liberty unlawful and wished to be released. Judge I.Š., the same judge who had ordered the deprivation of the applicant’s liberty in the first place, regarded the applicant’s requests as inadmissible appeals against the decision of 20 August 2008, even though the applicant, having been absent from the hearing, was not entitled to lodge such appeals (see paragraph 61 above). Be that as it may, the outcome for the applicant was that he could not access the court to review the lawfulness of his confinement. 69. Turning to the Government’s argument that an appeal against the Riga Regional Court’s decision of 28 December 2009 could have served as an avenue to determine the legality of the deprivation of the applicant’s liberty, the Court notes that previously the applicant was informed that he did not have the locus standi to lodge an appeal against court’s decision (see paragraph 29 above). In such circumstances and absent domestic case-law to the contrary, it is not sufficiently certain that indeed a possibility of appeal was available to the applicant in practice. The Court observes that the decision in question was taken by the Regional Court under section 607(4) of the Criminal Procedure Law on its own initiative. In that connection, Article 5 § 4 of the Convention requires that it should be the person deprived of his liberty who “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided” (see X. V Finland, no. 34806/04, § 170, 3 July 2012). As observed by the Court above, it emerges that the applicant did not have that possibility in practice. In such circumstances, the Court concludes that the requirements of Article 5 § 4 have not been met. 3. Conclusion
70. The Court finds that, in the circumstances of the present case, the applicant did not have the opportunity to bring proceedings by which the lawfulness of his detention would be decided speedily by a court and his release ordered if the detention was considered unlawful. He had no locus standi to independently appeal against the initial decision ordering his detention because he had been absent from the relevant court hearing. His subsequent requests to be released from detention were essentially left without examination on the merits by the same judge who had ordered his detention. Consequently, the Court dismisses the Government’s plea of non-exhaustion of domestic remedies.
71.

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