- Judgment date: 2010-04-22
- Communication date: 2018-12-14
- Application number(s): 3124/16
- Country: NLD
- Relevant ECHR article(s): 8, 8-1, 8-2, 13
Violation of Art. 5-1
Pecuniary damage - claim dismissed
Non-pecuniary damage - award
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.638074
- Prediction: No violation
Communication text used for prediction
The applicant, Burando Holding B.V., is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid), with its seat in Rotterdam.
It is represented before the Court by Mr M.A.D.
Bol and Mr H.A.
Bravenboer, lawyers practising in Rotterdam.
The applicant company is active in the Rotterdam port region.
It is one of several companies in that area whose business includes the collection of waste liquids (or “slops”) from seagoing ships for disposal.
The circumstances of the case 3.
The facts of the case, as submitted by the applicant company, may be summarised as follows.
Background to the case 4.
The Information and Investigation Service (Inlichtingen- en Opsporingsdienst) of the Ministry of Housing, Spatial Planning and the Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer) began an investigation into another collector of waste liquid from ships, I., suspected of mixing polluted waste liquids with bunker oil in contravention of legislation for the protection of the environment.
Between February 2007 and April 2007 telephone conversations made by the management of I. were intercepted, recorded and then either transcribed or summarised in the course of these investigations.
Among the conversations so recorded were conversations between I.’s managing director and the managing director of the company Ships Waste Oil Collector B.V. (applicant in case no.
2799/16) from which it appeared that the two companies were engaged in price-fixing.
The transfer of criminal data 6.
An official record dated 21 April 2008 by an official of the Ministry of Housing, Spatial Planning and the Environment records several of these telephone conversations.
It is stated that that record is to be forwarded to the Netherlands Competition Authority (Nederlandse Mededingingsautoriteit, “NMA”) through the intervention of the public prosecutor (officier van justitie).
There being indications that companies other than I. and Ships Waste Oil Collector B.V. were involved, the NMA transmitted a set of search terms to the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment with which to identify telephone conversations relevant to the investigation to be undertaken by the NMA.
On 21 October 2008 the public prosecutor gave permission for the official record to be forwarded to the NMA by adding “transfer to NMA approved (akkoord verstrekking aan NMA)”, dated and signed, in handwriting.
The official record was transferred to the NMA on 29 June 2009.
The NMA subsequently sent the Ministry of Housing, Spatial Planning and the Environment a request for complete sound recordings to be transferred to it.
Further transcripts and recordings of intercepted telephone conversations were forwarded to the NMA on 26 November 2009, 7 July 2010 and 2 September 2010.
On each occasion the public prosecutor gave permission in summary form without reasoning for transmission to take place.
The decision by the NMA to impose fines and the administrative review proceedings 11.
An NMA report of 28 December 2010 found that the applicant company, together with the company I., Port Invest B.V. and others, was accountable for an infringement of section 6(1) of the Competition Act (Mededingingswet).
This report quoted extensively from transcripts of telephone conversations.
Following an exchange of arguments in writing and a hearing held on 15 April 2011, the Governors (Raad van Bestuur) of the NMA gave a decision on 16 November 2011.
As relevant to the case, they found that the transcripts and recordings had been lawfully forwarded to them by decision of the public prosecutor under the authority of the Board of Procurators General (College van procureurs-generaal).
In terms of Article 8 of the Convention, it was “in accordance with the law” in that it had a statutory basis and was foreseeable, and it met a “pressing social need”, to wit, the enforcement of competition law.
There was no suggestion that the interceptions themselves had been unlawful, or that the competing interests had been wrongly weighed by the public prosecutor.
They found the applicant company and the other companies involved in the proceedings to have violated the prohibition set out in section 6 of the Competition Act (Mededingingswet).
They imposed a collective fine on the company I., Port Invest B.V. and the applicant company in an amount of 1,861,000 euros, the applicant company being jointly and severally liable for EUR 621,000 of this.
The company I., the applicant company and Port Invest B.V. lodged a joint written objection (bezwaarschrift).
They protested against the lack of any judicial control of the transfer to the NMA of the telephone interceptions in issue, arguing that the authority of the public prosecutor, even if delegated by the Board of Procurators General, could not substitute for that of an independent court.
It also protested against the apparent absence of any weighing of competing interests.
Relying on, inter alia, section 6(3) of the Competition Act, they further denied any wrongdoing.
With the consent of the NMA, the objection (bezwaar) phase was bypassed and the applicant companies submitted their objection directly to the Rotterdam Regional Court (rechtbank) by way of appeal (beroep).
Appeal proceedings before the Rotterdam Regional Court 15.
The NMA lodged a written defence statement.
As relevant to the case before the Court, the NMA stated that the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment had intercepted telephone conversations from which it appeared that the company I. and the applicant company were engaged in illegal price fixing; summary transcripts of these were transferred to the NMA, through the intermediary of the public prosecutor.
Further summary transcripts of intercepted telephone conversations had been transferred to the NMA at its request with the permission of the public prosecutor.
These had been existing summary transcripts; the NMA had had no involvement in the criminal investigation carried out by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment under the guidance of the public prosecution service (openbaar ministerie).
The extensive transcripts had been elaborated by the NMA itself, not by the public prosecution service at the NMA’s request.
The legal basis for such transfer was section 39f of the Judicial Information and Criminal Data Act (Wet justitiële en strafvorderlijke gegevens), which so permitted in pursuance of a “compelling general interest” – an expression which encompassed “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” as referred to in Article 8 of the Convention.
The public prosecutor was a functionary eminently suited to that responsibility.
As to the telephone interceptions themselves, there was neither information to suggest nor reason to believe that they had been unlawful; in this matter, the NMA was dependent on the public prosecution service.
As regards the substance of the case against the applicant company, the telephone conversations themselves were relied on (with other items of evidence) as proof of price-fixing.
Having held a hearing, the Regional Court gave a decision on 11 July 2013 deciding the appeal of the applicant company jointly with the appeals of three other ships’ waste disposal companies (Ships Waste Oil Collector B.V., Port Invest B.V. and the company I.)
suspected of price-fixing.
As relevant to the case before the Court, its decision included the following: “13.
It follows from [the Regional Court’s own] decision of 13 June 2003 [ECLI:NL:RBROTT:2013;CA3079] that the transfer of criminal data requires a weighing of interests by the public prosecutor in person that is knowable and can be reviewed by the court, that has led to the conclusion that there is a need for the provision of criminal data because of a compelling public interest.
In addition, the public prosecutor must consider whether such provision is in accordance with the principles of proportionality and subsidiarity.
In this connection, the Regional Court has stressed the need to respect the requirements of Article 8 of the Convention, on the ground of which everyone has the right to respect for his or her private life.
Section 39 [the Court takes this to mean section 39f] of the Judicial Information and Criminal Records Act, which provided a statutory basis for the provision of criminal data to third parties, guarantees that these requirements are met.” Since the public prosecutor had merely granted permission for the transfer of the transcripts to the NMA, in handwriting on the official record of 28 October 2010 and on pre-printed forms without reasoning subsequently, the Regional Court found that no reviewable weighing of interests had been recorded.
From this it followed that the transcripts were to be excluded as evidence.
Since the NMA had previously had no indication of price-fixing and would not have begun an investigation without the information given by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment, and since the NMA’s decision depended entirely on the intercepted telephone conversations and on documents handed over or statements made by persons after they had been confronted with these telephone conversations, the Regional Court quashed the NMA’s decision in its entirety.
Further appeal proceedings before the Administrative High Court for Trade and Industry 18.
The Consumer and Market Authority (Autoriteit Consument en Markt, “ACM”), the successor body to the NMA by this time, lodged a further appeal (hoger beroep) with the Administrative High Court for Trade and Industry (College van Beroep voor het bedrijfsleven).
As relevant to the case before the Court, it argued that the transfer of criminal data by the public prosecution service to another entity would only be contrary to domestic law or to Article 8 of the Convention if it could not be considered necessary with a view to a compelling general interest or if it did not comply with the requirements of proportionality and subsidiarity.
That assessment fell to be made, according to the Judicial Information and Criminal Data Act, by the civil courts in the shape of an ex post facto judicial review, as had taken place in the case [leading to application no.
In addition, the transfer of criminal data to a third party on the basis of section 39f(1) of the Judicial Information and Criminal Data Act was a factual act, not a decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht), and therefore not amenable to judicial review by the administrative courts.
Such a transfer by a public prosecutor required neither reasoning nor an ex ante review of its lawfulness.
According to the ACM, use in evidence of the criminal data received was admissible as there were no indications that the data had been obtained unlawfully or that, even if it that were the case, the manner of that obtainment ran counter to the proper behaviour expected of authorities to such an extent that its use could not be considered permissible under any circumstances (verkregen op een wijze die zozeer indruist tegen hetgeen van een behoorlijk handelende overheid mag worden verwacht dat het gebruik hiervan onder alle omstandigheden ontoelaatbaar moet worden geacht).
The ACM’s further appeal was joined by the Board of Procurators General.
Ships Waste Oil Collector B.V., Burando Holding B.V., Port Invest B.V. and the company I. lodged a cross-appeal.
In these further appeal proceedings, they presented a joint position.
They submitted that the intercepted telephone conversations fell outside the scope of the criminal investigation and therefore were not properly in the case file.
They further argued, inter alia, that data, obtained in a criminal investigation and by means of an interference with the right to private life, could not be transferred to third persons without a balancing of interests – set out in a reasoned manner – having taken place prior to any such transfer.
On the basis of a set of search terms transmitted to the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment, the NMA had listened electronically to intercepted telephone conversations, which could not be considered as the provision of data within the meaning of the Judicial Information and Criminal Data Act.
Moreover, it was for the administrative courts to examine, in proceedings against the imposition of a fine, the lawfulness of the manner in which evidence, on the basis of which that fine had been imposed, had been obtained.
Ships Waste Oil Collector B.V., Burando Holding B.V., Port Invest B.V. and the company I. maintained their prior position as to the merits of the case.
On 14 April 2014 the Administrative High Court for Trade and Industry gave a decision (ECLI:NL:CBB:2014:151) rejecting the appeal of the Board of Procurators General.
It found that since the merits of the case concerned not criminal law but the enforcement under administrative procedure of competition law, the Board of Procurators General had no legal interest of its own and hence no locus standi.
Having held a hearing on 20 November 2014, the Administrative High Court for Trade and Industry gave its decision on 9 July 2015 (ECLI:NL:CBB:2015:192).
Holding that the appeal of the ACM was well‐founded, it quashed the decision of the Regional Court and remitted the case to it for rehearing.
It dismissed the applicant company’s cross‐appeal.
As relevant to the case before the Court, its reasoning included the following: “4.6.
The first matter to be decided in this connection is whether the provision of criminal data, consisting in the present case of intercepted telephone conversations, based on section 39f of the Judicial Information and Criminal Data Act is contrary to Article 8 of the Convention.
An interference with the right to privacy is only permitted under Article 8 § 2 of the Convention in so far as it is in accordance with the law and necessary in a democratic society in the interest of, among other things, the economic well-being of the country.
The starting point in considering this issue is that the interception of the telephone conversations from which the intercepted data were obtained took place after the investigating judge gave permission to do so.
The arguments presented by the company I., Port Invest B.V. and Burando Holding B.V. do not constitute grounds to find that the intercepted telephone conversations have not been obtained in accordance with the requirements of criminal procedure in force by the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment.
The public prosecutor’s competence to provide the intercepted telephone conversations is statutorily grounded in the Judicial Information and Criminal Data Act.
Moreover, as regards the lawfulness of this obtainment, the law provides for a judicial procedure attended by sufficient guarantees, both under civil law within the framework of the provision of the data and under administrative law within the framework of the review of the decision to impose the fine for which these data have served as a basis.
It appears from the report in these cases that the ACM has extensively reviewed the evidence, including the intercepted telephone conversations, within the framework of establishing whether there has been a transgression of section 6(1) of the Competition Act.
After the report was issued and before a decision was taken by the ACM to impose a fine, the appellants were offered the opportunity to submit their views in writing of that report, of which opportunity they have availed themselves.
Finally, the Administrative High Court for Trade and Industry finds that a sufficient case has been made out that the information about the alleged price-fixing arrangements could not in reason have been obtained by the ACM in a different, less intrusive way, since such arrangements are not, as a rule, committed to paper.
In the judgment of the Provisional Measures Judge of the Regional Court of The Hague of 26 June 2009 (ECLI:NL:RBSGR:2009:BJ0047), to which the parties also refer, the Provisional Measures Judge in a matter comparable with that here in issue gave a provisional decision on the legality of the provision of intercepted telephone conversations by the public prosecution service to the ACM and came to the same finding as regards the proportionality of such provision.
In view of the above, the Administrative High Court for Trade and Industry sees no reason to find that the provision of the intercepted telephone conversations to the ACM based on section 39f of the Judicial Information and Criminal Data Act is contrary to Article 8 of the Convention.
4.7 Within the framework of the care to be taken under section 3.2 of the General Administrative Law Act (Algemene wet bestuursrecht) in preparing a decision, the ACM is obliged to consider the lawfulness of the evidence to be used by it.
In paragraphs 180 and following of the decision imposing the fine the ACM has gone into the use of the intercepted telephone conversations in evidence.
It considered in so doing whether in obtaining the intercepted telephone conversations the principles of due process had been violated, or whether the rights of the defence had been disregarded.
In this connection the ACM stressed that the legislature limited the (active) powers of the ACM to collect data, but not the data which the ACM might receive.
The ACM came to the conclusion that there was no ground for it to find that the intercepted telephone conversations provide to the ACM by the public prosecution service should not be used in evidence.
4.8 The arguments presented by [the applicant companies] do not constitute a reason for the Administrative High Court for Trade and Industry to find that this conclusion by the ACM is wrong.
It should be stressed in this connection that the ACM was entitled to assume, based on the [Provision of Criminal Records for Purposes Other than Criminal Law Enforcement (Designation) Order (Aanwijzing verstrekking van strafvorderlijke gegevens voor buiten de strafrechtstoepassing gelegen doeleinden (aanwijzing wet justitiële en strafvorderlijke gegevens), that the evidence concerned had been provided to it lawfully.
In the present case it concerns provision to an administrative organ.
Provisions to administrative organs with a view to the exercise of supervision of compliance with legislation are considered to be standard cases of provision pursuant to chapter IV.4.c of that Order.
The circumstance that the ACM itself does not have the competence to intercept telephone conversations does not constitute ground for the finding that the use of the intercepted telephone conversations by the ACM should be considered unacceptable.
The Judicial Information and Criminal Data Act provides precisely for the possibility that such data, obtained using coercive measures under criminal procedure (strafvorderlijke dwangmiddelen) may be provided to, among others, administrative organs that do not themselves have the competence to make use of such coercive measures.
Contrary to the argument made by the company I., Port Invest B.V. and Burando Holding B.V., the circumstance that the ACM – in consultation with the Information and Investigation Service of the Ministry of Housing, Spatial Planning and the Environment – had, after having [taken cognisance of transcripts and recordings of intercepted telephone conversations], made a selection from the bulk of the data that were available and provisionally considered relevant by the Information and Investigation Service, does not, in the given situation, lead the Administrative High Court for Trade and Industry to find that the provision took place contrary to the Judicial Information and Criminal Data Act.” B.
Relevant domestic law, Council of Europe instruments and European Union law 24.
Reference is made to the statement of facts in Janssen de Jong Groep B.V. and Others v. the Netherlands, no.
2800/16, for a summary of the relevant domestic statutes, delegated legislation and case-law (the latter including the decisions given in that particular case), and the relevant Council of Europe instruments and European Union law.
The applicant company complains under Article 8 of the Convention that the exchange between authorities of information obtained by the interception of telephone conversations which was not relevant to the criminal investigation for the purpose of which those telephone conversations were intercepted was not in accordance with the law.
In particular, the applicant company complains that: (a) It was not foreseeable that the NMA was in a position to receive such information; (b) It was not foreseeable that the NMA could select the information which it wished to receive; (c) It was not foreseeable that the information could be transmitted to the NMA without any prior knowable weighing of interests; (d) It was not foreseeable that such weighing of interests could be effected ex post facto by the courts; (e) There was no provision in law for any weighing of interests by an independent authority prior to transmission (at least, not in the case of information irrelevant to the investigation for the purpose for which it was obtained).
The applicant company complains under Article 13 of the Convention that there was no effective remedy available to it capable of preventing the transmission of the information in question to the NMA.
CASE OF BIK v. RUSSIA
(Application no. 26321/03)
22 April 2010
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bik v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,Nina Vajić,Anatoly Kovler,Elisabeth Steiner,Khanlar Hajiyev,Giorgio Malinverni,George Nicolaou, judges,and Søren Nielsen, Section Registrar,
Having deliberated in private on 25 March 2010,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 26321/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Yefimovich Bik (“the applicant”), on 5 August 2003. 2. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, Mr A. Savenkov, First Deputy Mnister of Justice of the Russian Federation, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The applicant alleged, in particular, that his committal to a psychiatric hospital against his will had been unlawful. 4. On 19 June 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). 5. The Government objected to the joint examination of the admissibility and merits of the application. The Court examined and dismissed their objection. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1972 and lives in Moscow. 7. On 27 May 2002 the applicant's mother requested Psychiatric Outpatient Clinic No. 21 (Психоневрологический диспансер N 21) (the “Clinic”) to examine her son, expressing concern about a change in his behaviour. He was afraid to leave the flat where he lived, had cut out all social contacts and was frightened by noises or the sound of the telephone ringing. 8. The applicant refused to be examined by the doctors at the Clinic and on 29 May 2002 Dr N., a psychiatrist from the Clinic, applied for a court order authorising the applicant's psychiatric assessment without his consent. She noted, on the basis of the information submitted by the applicant's mother, that the applicant might be suffering from a severe mental disorder that impaired his ability to meet the ordinary demands of life, and that his condition might deteriorate should he be left without psychiatric treatment. 9. On 31 May 2002 the Cheremushkinskiy District Court of Moscow authorised the psychiatric assessment. According to the applicant, he was informed of that decision at a later date. 10. On 5 June 2002 Dr N. examined the applicant at his home. The applicant's mother was present. The applicant was agitated, he shouted at the doctor and his mother and threatened them. He refused to talk and made them both leave. Dr N. concluded that the applicant suffered from paranoid schizophrenia and that his condition warranted committal to a psychiatric hospital for further assessment and treatment. At 7.20 p.m. the applicant was admitted to Psychiatric Hospital No. 15 (Психиатрическая клиническая больница N 15) (the “Hospital”). According to the applicant, he was first taken to a police station and then to the hospital. 11. On 7 June 2002 the applicant consented to treatment in the Hospital until 14 June 2002. 12. On Friday 14 June 2002 the applicant refused to stay in hospital any longer. At noon he was examined by three psychiatrists who provisionally diagnosed him as suffering from depressive syndrome and schizophrenia. They noted that the applicant was solitary and antisocial; he was unaware of his condition and expressed delusional ideas about his mother trying to manipulate him. They concluded that his mental disorder was serious enough to require inpatient treatment. 13. On Monday 17 June 2002 the Hospital administration applied to the court seeking an extension of the applicant's stay there. According to the medical report submitted, the applicant was suffering from a severe mental disorder and might cause serious harm to himself or others. On the same day the Nagatinskiy District Court of Moscow provisionally authorised the applicant's further hospitalisation pending consideration of the case. The court stated no reasons in its decision. 14. On 21 June 2002 the Nagatinskiy District Court of Moscow authorised the extension of the applicant's stay in the Hospital. The hearing was held on the Hospital's premises. The applicant attended the hearing but was not represented. In particular, the court noted:
“After having heard [the applicant], the hospital's representative..., and the prosecutor who considered that the [hospital's] request should be granted, and after having studied the materials [in its possession], the court considers that the [hospital's] request to commit the applicant to the [hospital] against his will is well-substantiated and should be granted.”
15. On 27 June 2002 the applicant consented in writing to further treatment in hospital. 16. Once the applicant's condition improved, he was discharged from hospital on 4 July 2002. 17. On 23 January 2003 the applicant lodged an appeal against the decision of 21 June 2002. He submitted, in particular, that the court had failed to verify the lawfulness of his committal to hospital
18. On 20 March 2003 the Moscow City Court upheld the decision of 21 June 2002. Both the applicant and his lawyer attended the hearing. The court noted that the applicant's hospitalisation had been in accordance with the applicable laws. The court further indicated that the applicant's committal to hospital against his will had been necessary in view of his severe psychiatric disorder which made him dangerous to himself and others. Lastly, the court observed that it had been open to the applicant to ask for legal representation before the court at first level of jurisdiction. However, he had failed to do so and the decision of 21 June 2002 should not be quashed on that ground. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The involuntary admission of a patient to a psychiatric facility
1. Psychiatric Assistance Act of 2 July 1992 as amended (the “Act”)
19. A person may be subject to an involuntary psychiatric assessment if his or her behaviour gives reasonable grounds to believe that he or she may be suffering from a serious mental disorder and, because of the mental disorder, he or she (a) is likely to cause serious harm to himself or herself or another person or (b) does not have the capacity to take basic care of himself or herself or (c) is likely to suffer serious physical impairment or mental deterioration in the absence of psychiatric treatment (Article 23 of the Act). 20. In the event of (b) or (c) above, a psychiatrist may decide to conduct psychiatric assessment without the person's consent, subject to prior judicial approval (Article 24 of the Act). 21. In the event of (a), (b), or (c) above, a person may be admitted to a hospital against his or her will if he or she is suffering from a severe mental disorder and requires psychiatric examination and treatment in a psychiatric hospital (Article 29 of the Act). 22. A person admitted against his or her will should be assessed within 48 hours by a psychiatric panel. Should the panel decide to keep the person in hospital, they should file a request to that effect with the judge within 24 hours, together with a supporting medical report (Article 32 of the Act). 23. The judge must then consider the request within 5 days (Article 34 § 1 of the Act). He or she must also authorise the person's continued hospitalisation pending the consideration of the matter by the court (Article 33 § 3 of the Act). 2. The Russian Code of Civil Procedure of 11 June 1964 as amended (the “old CCP”)
24. The old CCP did not set forth special rules governing committal to a psychiatric hospital. B. Computation of periods of time established by law or prescribed by civil courts
25. A period of time expressed as a number of years shall expire on the relevant day and month of the last year of that period. A period of time expressed as a number of months shall expire on the relevant day of the last month of that period. If the last day of the period of time falls on a non-working day, the next closest working day shall be considered as the last day of that period (Article 101 of the old CCP and Article 108 §§ 1 and 2 of the new Code of Civil Procedure of 1 February 2003 as amended). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (e) OF THE CONVENTION
26. The applicant complained that his committal to the psychiatric hospital from 14 to 27 June 2002 against his will had been unlawful. The Court considers that the complaint falls to be examined under Article 5 § 1 (e) of the Convention, which 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 of unsound mind.... .”
27. The Government contested that allegation. They considered that the applicant's placement in the psychiatric hospital had been in full compliance with the applicable domestic laws. When the applicant refused, on 14 June 2002, to stay voluntarily in hospital, at noon the same day a psychiatric panel had examined him and found that his condition warranted further hospitalisation. According to the Government, the hospital administration had been unable to file the application for judicial authorisation for the applicant's continued hospitalisation on the same day because of the substantial amount of time necessary to prepare such an application. As 14 June 2002 was a Friday, it had not been possible to apply to the court during the weekend since it was closed. Accordingly, the application had been filed on 17 June 2002, that is the first working day after the weekend of 15 and 16 June 2002. The Government opined that the hospital had acted in accordance with the applicable rules of civil procedure, notably Article 108 of the Code of Civil Procedure of the Russian Federation, which permitted such a delay in lodging an application should the prescribed time-limit expire on a non-working day. 28. The applicant maintained his complaint. A. Admissibility
29. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. General principles
30. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to domestic law; they state the need for compliance with the relevant procedure under that law. However, the domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein. The notion underlying the term in question is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see Winterwerp v. the Netherlands, 24 October 1979, § 45, Series A no. 33). 31. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can, and should, exercise a certain power of review of such compliance (see Benham v. the United Kingdom, 10 June 1996, § 41, Reports of Judgments and Decisions 1996‐III). 32. The Court further reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp, cited above, § 39; Luberti v. Italy, 23 February 1984, § 27, Series A no. 75; Johnson v. the United Kingdom, 24 October 1997, § 60, Reports of Judgments and Decisions 1997‐VII; and Hutchison Reid v. the United Kingdom, no. 50272/99, § 48, ECHR 2003-IV). 2. Application of the principles to the present case
33. The Court observes that under Russian law, once a patient is committed to a psychiatric hospital against his or her will, he or she should be assessed by a psychiatric panel within 48 hours. Furthermore, a psychiatric hospital must apply for judicial authorisation to keep the patient against his or her will within twenty-four hours following his examination and assessment (see paragraph 22). 34. Turning to the circumstances of the present case, the Court notes that on 14 June 2002 the applicant withdrew his consent to remain in the psychiatric hospital. The hospital therefore had to examine him and, if it was decided that he should remain in hospital against his will, it had to apply within twenty-four hours for court authorisation to keep him there. 35. The Court accepts that the domestic authorities complied with the domestic procedure in so far as the applicant's examination was concerned. On 14 June 2002 the medical panel examined the applicant at noon and concluded that his further hospitalisation was necessary. It was then incumbent on the hospital administration, within twenty-four hours following his examination, that is no later than noon on 15 June 2002, to apply to the court for authorisation to keep the applicant in hospital. However, the application was filed two days later, on 17 June 2002. As a result, the applicant was kept in a hospital for three days in the absence of a court order. 36. The Court cannot subscribe to the Government's opinion that it was possible under domestic law to delay application for a court order authorising committal to a psychiatric hospital without the person's consent if the end of the time-limit prescribed by law for such an application fell on a non-working day. The domestic rules of civil procedure referred to by the Government govern only the computation of time-limits expressed in days, months and years and are obviously not applicable to the procedure for applying for judicial authorisation for committing a person to a psychiatric facility, where the time-limits are established in hours. 37. The Court does not consider it relevant that, as the Government pointed out, 15 and 16 June 2002 were non-working days and consideration of the applicant's case could not proceed until the beginning of the ensuing working week. Where the issue of a person's liberty is at stake, the States must ensure that their courts remain accessible, even during a vacation period or a weekend, to ensure that urgent matters are dealt with speedily and in full compliance with a procedure prescribed by law. However, no such provisions appear to have been made in the circumstances of the present case. 38. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities did not comply with the procedure prescribed by domestic law when applying for judicial authorisation for the applicant's committal to a psychiatric hospital. There has accordingly been a violation of Article 5 § 1 of the Convention. 39. In view of the above finding, the Court does not consider it necessary to examine separately the question of whether the applicant had been reliably shown to have been suffering from a mental disorder of a kind or degree warranting his compulsory confinement which persisted during his detention between 14 and 27 June 2002 (see Storck v. Germany, no. 61603/00, § 113, ECHR 2005‐V). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
40. The applicant alleged that he had not been provided with an opportunity to appeal against the decision of 31 May 2002, in contravention of Articles 3, 5 and 6 of the Convention. He further complained under Article 8 of the Convention that Dr. N's visit to his flat on 5 June 2002 had been an interference with his right to respect for his private life and that, on the basis of her decision of 5 June 2002 to admit him to hospital, he had been arrested and taken to a police station. He complained under Article 1 of Protocol No. 1 that his involuntary placement in a psychiatric hospital might warrant the restriction of his legal capacity, in which case he would be unable to sell or buy property. Lastly, without providing further detail, the applicant alleged a violation of his rights provided for in Articles 2, 4, 7 to 10, 13, 17, and 18 of the Convention. 41. However, having regard to all the material in its possession, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
42. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
43. The applicant claimed 350,000 euros (EUR) and 1/13 cents in respect of pecuniary and non-pecuniary damage. 44. The Government submitted that the applicant's allegations should not give rise to an award of any compensation for pecuniary or non-pecuniary damage. In any event, they noted that the applicant had failed to justify or substantiate the amount claimed. 45. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it accepts that the applicant suffered distress and frustration resulting from his unlawful detention in a psychiatric hospital. Accordingly, the Court considers that the applicant should be compensated for the non-pecuniary damage sustained However, the Court finds the amount claimed by the applicant excessive. Making its assessment on an equitable basis, it awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses
46. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head. C. Default interest
47. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the applicant's involuntary confinement in a psychiatric hospital between 14 and 27 June 2002 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 22 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren NielsenChristos RozakisRegistrarPresident