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CASE OF MIKLIĆ v. CROATIA
CASE OF MIKLIĆ v. CROATIA
JUDGMENT
STRASBOURG
7 April 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
MIKLIĆ v. CROATIA JUDGMENT
INTRODUCTION
1. The case concerns the applicant’s compulsory psychiatric internment
following his criminal conviction for intrusive behaviour and uttering threats,
which he was found to have committed while lacking mental capacity. The
applicant complains that the prolongation of his compulsory psychiatric
internment had been unlawful in that no fresh expert opinion had been
obtained in his case. He also complains that he was not served with the written
proposal and reasoned opinion of the psychiatric hospital prior to the hearing
in his case.
THE FACTS
2. The applicant was born in 1999 and lives in Dramalj. He was
represented by Ms I. Dedić, a lawyer practising in Rijeka.
3. The Government were represented by their Agent, Ms Š. Stažnik.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
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5. In 2015 a certain D.R., who was a minor at the time, lodged a criminal
complaint against the applicant, also a minor at the time, alleging that he had
persistently followed, harassed and stalked her since 2013, attempting to
establish unwanted contact with her. She stated that the applicant had on
many occasions addressed her with offensive words with sexual connotations.
On several occasions he had physically attacked her and had grabbed her by
her genitals.
6. On 6 September 2016 D.R.’s mother also lodged a criminal complaint
against the applicant alleging that during the summer of 2016, the applicant
had frequently visited the neighbourhood where they lived, often called them
and mentioned certain details from which it was clear that he had been
stalking them for a while. The applicant had also sent disturbing Facebook
messages from various profiles.
7. On 19 September 2016 the police informed the Rijeka Municipal State
Attorney’s Office that minor L.L. had also lodged a criminal complaint
against the applicant, alleging that he had sent her threatening Facebook
messages because she had refused to talk to him about D.R.
8. In the course of the ensuing criminal proceedings against the applicant,
on 7 December 2016 a psychiatrist D.P. and psychologist D.B. submitted an
expert report, which stated that the applicant suffered from paranoid
schizophrenia, a behavioural and mental disorder aggravated by taking drugs
or other harmful substances. At the time of the commission of the criminal
offences (tempore criminis) he was in a state of diminished mental capacity
and he could not understand the meaning of his actions or control them. The
expert report was based on the inspection of the case file, medical
documentation and personal examination of the applicant.
9. On 12 January 2017 D.P. produced a supplement to her expert report
submitting that the applicant had reduced capacity of standing trial and
recommending that the court provide a psychologist who would clarify the
questions put to him during court hearings. Furthermore, D.P. stated that the
applicant could pose a danger to others due to the unpredictability of his
behaviour, given that he was under the influence of psychopathological
experiences.
10. On 13 June 2017 the Rijeka Municipal Court found that the applicant,
as a minor, had committed criminal offences of two counts of intrusive
behaviour and one threat, while lacking mental capacity. Relying on the
psychiatric and psychological expert opinions obtained during the criminal
proceedings, it decided that the applicant should be placed in a psychiatric
hospital for a period of six months.
11. The applicant’s appeal against that judgment was dismissed by the
second-instance court on 18 August 2017.
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27. At a hearing held on 22 October 2018, the Rijeka County Court heard
V.T., and experts D.P. and K.R. Expert D.P. maintained that the applicant’s
compulsory internment should be continued considering that he was obsessed
with the victim at the level of insanity, from which he had not yet been
retrieved by previous methods. Expert K.R. submitted that the applicant’s
symptoms clearly indicated a dissocial personality disorder. The danger to
himself and to others stemmed from his persistence in achieving his goal, and
it was thus necessary to continue his treatment in a closed institution.
Outpatient treatment was not expected to reduce or eliminate his risky
behaviour. Representing the Rab Hospital, V.T. also stated that the applicant
suffered from a dissocial personality disorder and that he would pose a threat
to himself and others if he were to be released.
28. At the same hearing the applicant’s lawyer lodged a request for a fresh
psychiatric expert evaluation at the Vrapče Psychiatric Hospital. That request
was dismissed on the grounds that V.T. and two expert witnesses D.P. and
K.R. had all agreed on the applicant’s diagnosis and concluded that there had
been a need to continue his treatment in a closed institution. Thus, the court
extended the applicant’s compulsory internment until 4 March 2019.
29. The applicant’s appeal against that decision was dismissed by a
three-judge panel of the Rijeka County Court on 19 December 2018.
30. In the meantime, on 8 November 2018, the applicant requested that he
be released from the psychiatric hospital and continue his treatment at liberty.
He based his request on a privately commissioned expert witness evaluation
by doctor D.M., who recommended that the applicant’s out-of-hospital
treatment be considered, with regular reporting to a psychiatrist and the
involvement of the parents in the process.
31. On 31 January 2019 the judge forwarded the applicant’s request to the
Rab Hospital for comments and scheduled a hearing for 13 February 2019.
32. On 7 February 2019 the Rab Hospital filed a motion for the
continuation of the applicant’s hospital treatment, stating that he had still not
achieved a sufficient degree of criticism regarding his condition or the
committed criminal offences. The danger which he posed to others had
resulted from a disturbed personality structure and dynamics, he had been
uncritical and insufficiently aware of his condition, had only formally
verbalized remorse, while disobeying hospital rules, poorly tolerating
frustration and responding to warnings with aggression. That submission was
not forwarded to the applicant.
33. On 8 February 2019 the Rab Hospital submitted written observations
on the applicant’s motion for out-of-hospital treatment. The hospital refuted
certain statements contained in D.M.’s expert report, relying on relevant
medical theory and practice. It further stated that the applicant’s
resocialization process had begun by his second therapeutic leave in early
2019. However, he had not yet reached the level required for out-patient
treatment. While expert D.M. had ruled out the applicant’s violent behaviour,
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all psychological tests had confirmed his aggressiveness and he had recently
initiated physical conflict with another patient. That submission was not
forwarded to the applicant.
34. At the hearing held on 13 February 2019, the Rijeka County Court
served on the applicant’s lawyer the Rab Hospital’s written observations on
his proposal for release as well the Hospital’s counter proposal for the
continuation of his hospital treatment (see paragraphs 32 and 33 above). The
court began the hearing by reading out the applicant’s motion for release as
well as the Rab Hospital’s proposal for continuation of his compulsory
psychiatric internment. On behalf of the Rab Hospital, doctor V.T.
maintained that it had been necessary to continue the applicant’s treatment in
the hospital in order to eliminate the danger of committing further criminal
offences, since he had still been focused on the victim. According to the
applicant’s therapist, there had been no adequate response to the therapeutic
activities, the applicant’s vulgar and inappropriate behaviour towards
members and therapists having continued. The applicant’s lawyer contested
the hospital’s motion by noting that she had received it only at that hearing,
stressing that the applicant’s motion for outpatient treatment had been based
on an independent expert opinion by D.M. who should be heard in court and
reiterating her request to obtain a fresh expert opinion.
35. At the same hearing, the Rijeka County Court extended the applicant’s
compulsory internment until 4 March 2020, dismissing his motion for
outpatient treatment. The court found that the applicant had continued to
suffer from a severe mental disorder (dissocial personality disorder) and that
the course of treatment showed that he had remained focused on the victim
and insufficiently aware of his condition. The danger to others could not yet
be ruled out, thus reducing or eliminating risks by outpatient treatment could
not be expected in his current state. The court dismissed the applicant’s
request to obtain a fresh expert witness evaluation, deeming that the existence
of the requirements for the continuation of his compulsory internment had not
been called into question.
36. On 24 April 2019 a three-judge panel of the Rijeka County Court
dismissed the applicant’s appeal against the first-instance court’s decision.
As regard his complaint that the first-instance court should have
commissioned a fresh expert report, it pointed out that the applicant had
previously been subjected to an expert witness evaluation during his
treatment in the Rab Hospital by K.R. and D.P. Both experts had agreed on
the applicant’s diagnosis, as well as on the need to continue his compulsory
internment.
37. The applicant then lodged a constitutional complaint, claiming that his
rights to a fair trial and equality before the law had been violated and that his
freedom was disproportionately restricted because the domestic courts had
not duly considered replacing compulsory internment with a milder measure,
and they had failed to commission a new expert evaluation.
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Article 554
“(1) If the State Attorney has made a request in accordance with Article 550
paragraph 1 of this Code, and the court, upon completion of the trial, establishes that
the defendant committed the unlawful act in a state of mental incapacity and that the
conditions exist for ordering his or her confinement in a psychiatric hospital or
psychiatric treatment at liberty in accordance with the Protection of Individuals with
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Mental Disorders Act, it shall adopt a judgment determining that the defendant
committed the unlawful act in a state of mental incapacity and shall order [his or her]
involuntary internment in a psychiatric hospital for a period of six months. The
judgment shall also contain a warning to the accused that psychiatric treatment at liberty
will be replaced by compulsory internment in a psychiatric institution if he fails to start
treatment at liberty by the date specified in the ruling on referral to a psychiatric
institution.”
44. The relevant provisions of the Protection of Persons with Mental
Disorders Act (Zakon o zaštiti osoba s duševnim smetnjama, Official Gazette
no. 76/2014) provide:
Section 13
“(2) Proceedings conducted on the basis of this Act shall be considered urgent.”
Section 37
“(1) The compulsorily detained person, legal representative, lawyer, head of the
department and, if necessary, a person of trust and the social welfare centre shall be
invited to an oral hearing. ...
(2) For an oral hearing, the court may, and upon a reasoned request of the
compulsorily detained person or his or her lawyer, has to obtain written findings and
opinion of one of the psychiatrist expert witnesses who is not employed at the
psychiatric institution where the compulsorily detained person is placed on whether that
person has severe mental disorders due to which he or she seriously and directly
endangers his or her own or someone else’s life, health or safety...
(3) Exceptionally, if due to the impossibility of meeting the deadline referred to in
section 36(7) of this Act or other objective circumstances, it is not possible to act in the
manner specified in paragraph 2 of this section, the written findings and opinion may
be given by a psychiatrist expert witness employed by the institution where the
compulsorily detained person is staying, who had not previously decided on his/her
compulsory detention.
(4) A psychiatrist expert witness shall submit the written findings and opinion to the
court upon the personal examination of the compulsorily detained person.
...
(7) The court shall allow the compulsorily detained person, person of trust, legal
representative, lawyer and head of the department to state all the facts relevant to issuing
a decision on compulsory internment and to ask questions to the psychiatrist expert
witness and other persons heard at the hearing.”
Section 40
“(1) If a psychiatric institution determines that a compulsorily detained person should
remain in internment even after the expiration of the duration thereof determined by the
court decision, it is obliged to propose to the court an extension of internment no later
than seven days before its expiry.
(2) The court shall issue a decision on the extension of the internment in accordance
with the same procedure as the first decision on involuntary placement.
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(3) The court is obliged to issue a decision on the extension of the internment before
the expiry of the previously determined [period].
(4) With the decision referred to in paragraph 2 of this section, the court may extend
the involuntary placement of a person in a psychiatric institution for up to three months
from the expiration of the time set out by the decision on involuntary placement referred
to in section 39(3) of this Act.
(5) Any further involuntary placement may be extended by a court decision for a
period of up to six months.”
Section 47
“(1) A compulsorily detained person shall be released from a psychiatric institution
before the expiration of the time for which the internment was determined if it is
established that the reasons for involuntary placement referred to in section 27 of this
Act have ceased to exist. A reasoned decision on early release ... shall be issued by the
head of the department.
(2) The psychiatric institution shall be obliged to send the decision on early release
of a compulsorily detained person to the court that issued the decision on involuntary
placement without delay.
(3) The decision on early release of a compulsorily detained person may also be
issued by the court ex officio or at the proposal of the compulsorily detained person,
their legal representative or lawyer if it finds that the reasons for internment referred to
in section 27 of this Act have ceased to exist.
(4) In the procedure of early release referred to in paragraph 3 of this section, the
court shall apply mutatis mutandis the provisions of sections 34 to 39 and 41 to 44 of
this Act.”
Section 51
“(1) In criminal proceedings the court shall order the compulsory internment of a
person lacking mental capacity in a psychiatric institution for a period of six months if,
based on the opinion of a psychiatrist expert witness, it finds that the person could again
commit an aggravated criminal offence owing to severe mental disorders, causing the
lack of mental capacity, and that treatment in a psychiatric institution is necessary to
eliminate that danger.”
Section 58
“(1) The psychiatric institution shall lodge a reasoned motion for the extension of
compulsory internment in a psychiatric institution with the competent court at least
fifteen days before the expiry of the compulsory internment of a person lacking mental
capacity in a psychiatric institution if the reasons referred to in section 51(1) of this Act
still exist.
...
(3) A motion for release from a psychiatric institution or for the replacement of
compulsory internment with psychiatric treatment at liberty may be lodged with the
competent court by the psychiatric institution at any time, and a motion for release from
a psychiatric institution, for the replacement of compulsory internment with psychiatric
treatment at liberty or for the termination of psychiatric treatment at liberty may be filed
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by a person lacking mental capacity, his or her legal representative or lawyer, once
every six months.”
Section 59
“(1) The motion for the extension of compulsory internment or psychiatric treatment
at liberty, for the replacement of compulsory internment with psychiatric treatment at
liberty, for the release of a person lacking mental capacity from a psychiatric institution
or the termination of psychiatric treatment at liberty shall be decided by the court on
the basis of a hearing, applying in an appropriate manner the provisions of sections 37
to 41 of this Act.
(2) If, after the proceedings the court finds that the requirements for the compulsory
internment of a person lacking mental capacity referred to in section 51(1) of this Act,
or for ordering his or her psychiatric treatment at liberty referred to in section 51(2) of
this Act continue to exist, it shall issue a ruling extending compulsory placement or
extending psychiatric treatment at liberty for up to one year. Any further extension of
the compulsory internment or treatment at liberty may be for a period of up to one year
without exceeding the period referred to in section 56 of this Act.”
45. In the final proposal of the Protection of Persons with Mental
Disorders Act, dated May 2014, the relevant explanation concerning section
37 of the Act reads as follows:
“...It is also prescribed that the court may, and at the request of the person with mental
disorders or their lawyer in any event must, obtain an independent expert opinion.
Namely, the practice has shown shortcomings in the procedures of obtaining expert
opinions, especially in smaller communities where experts are usually employees of
psychiatric institutions. In these cases, the independence of the expert in the specific
expertise may be questionable. Therefore, it was necessary to stipulate that the court is
obliged to ensure the right of a person with mental disabilities to request independent
expertise, which is in accordance with Article 6 of the Convention, according to which
the quality of medical examination is decisive for the lawfulness of court proceedings,
and with Article 5 of the Convention which stipulates that it is necessary to ensure the
protection of persons with mental disabilities from arbitrary decisions on their
freedom.”
THE LAW
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A. Admissibility
48. The Court notes that the application is neither manifestly ill-founded
nor inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.
B. Merits
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disregarding the fact that those opinions had been obtained earlier in the
proceedings and not for the purpose of the hearing held on 13 February 2019.
52. Finally, the applicant stressed that the court had failed to communicate
to him, prior to the hearing of 13 February 2019, the Rab Hospital’s
comments on his request for out-patient treatment, as well as its
counter-proposal on prolongation of his psychiatric internment, thereby
breaching the principles of adversarial proceedings and equality of arms.
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66. The Court notes that the applicant was initially deprived of his liberty
by virtue of the Rijeka County Court’s judgment of 13 June 2017 ordering
his placement in a psychiatric hospital for a period of six months (see
paragraph 10 above). His detention could thus fall under Article 5 § 1 (a) as
being detention “after conviction” by a “competent court”, and/or under
Article 5 § 1 (e) as constituting detention of a person of “unsound mind”.
67. In view of the fact that his continued deprivation of liberty was
prolonged on two occasions, based on a finding by the domestic courts that
the applicant suffered from a mental disorder and was therefore of “unsound
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pointed out, the Rijeka County Court had ample time to obtain a fresh expert
opinion between the moment the applicant had submitted his proposal for
out-patient treatment on 8 November 2018, and the holding of the court
hearing on 13 February 2019. Instead, despite the fact that the proceedings
were considered urgent under domestic law (see section 13 of the Protection
of Persons with Mental Disorders Act, cited in paragraph 44 above), the
Rijeka County Court took no action on the applicant’s motion for release for
almost three months and forwarded it to the Rab Hospital for observations as
late as 31 January 2019 (see paragraph 31 above). None of the domestic
courts have sought to explain, nor does the Court see any justification for,
such an excessive delay in a situation involving urgent domestic procedures
and strict deadlines.
73. Furthermore, even assuming that the other conditions for applying the
exceptional procedure as prescribed in section 37(3) of the Protection of
Persons with Mental Disorders Act had been met, the court did not obtain an
opinion of a psychiatrist expert witness employed by the institution where the
applicant was staying, who had not previously decided on his internment.
Indeed, the only person who had given an opinion on the need for the
applicant’s continued internment on which the Rijeka County Court
ultimately based the impugned decision of 13 February 2019 was doctor V.T.,
acting on behalf of the Rab Hospital, who had been involved in previous
decisions concerning the prolongation of the applicant’s internment. Notably,
she had filed on behalf of the Rab Hospital the proposal for the applicant to
be released in February 2018, which she amended at the hearing held on
19 July 2018 proposing his continued internment (see paragraphs 15 and 22
above), and gave evidence on the applicant’s diagnosis and the need for his
continued internment at the hearing held on 22 October 2018 (see
paragraph 27 above).
74. The Court further notes that, having refused the applicant’s proposal
to obtain a fresh expert opinion, in addition to the hospital’s opinion, the
domestic courts based their decisions on expert evaluations of K.R. and D.P.
which were not only initially in disagreement about the applicant’s diagnosis,
but at the time of ordering his continued internment had been one and two
years old, respectively (see paragraphs 8, 9 and 17 above). In such
circumstances, the Court is not convinced that either of those expert opinions
could be considered both objective and recent within the meaning of the
Court’s case-law on Article 5 § 1 (e) (see Kadusic, cited above, § 55; and
Herz v. Germany, no. 44672/98, § 50, 12 June 2003).
75. Bearing in mind that the question whether medical expertise was
sufficiently recent cannot be answered in a static way but depends on the
specific circumstances of the case before it (see, among many other
authorities, M.B. v. Poland, no. 60157/15, § 64, 14 October 2021), the Court
would in addition note the following. Already when the applicant’s
internment was being prolonged for the first time, the appeal court had
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