Violation of the Rights of Persons with Mental Illness in Bosnia and Herzegovina

Table of Contents

Abstract

1 Introduction to the Genesis of Violation of the rights of persons with mental illness caused by the national authorities

2 The violation of the Right to Liberty and Security of Persons with Mental Illness Determined by the Constitutional Court and the European Court of Human Rights
2.1 The Constitutional Court's Decisions on the Violation of the Appellants' Rights to Liberty and Security
2.2 The Europena Court's Judgment Regarding the Violation of the Applicant's Rights to Liberty and Security and the Applicable National and International Standards

3 Conclusion Regarding the Possible Shortcomings in the Implementation of the Judgement in the Case of Hadžimejlić and Others versus Bosnia and Herzegovina

Bibliography

Abstract

On 2 February 2016, the judgement of the European Court of Human Rights in the case of Hadžimejlić and Others against Bosnia and Herzegovina became final. By this judgement the violation of the applicants’ rights to security and liberty prescribed by the Article 5 of the Convention has been established to be caused by the unlawful detention of the applicants in the social care institutions. After more than a year passed from the date of the judgement becoming final, Bosnia and Herzegovina still faces difficulties in adopting an action plan on implementation of the measures posed by the judgement concerned.

1 Introduction to the Genesis of Violation of the rights of persons with mental illness caused by the national authorities

At the very beginning, it is necessary to define that mental illness is a recognized disability within the meaning of Article 1 of the Convention on the Rights of Persons with Disabilities which, among other things, clearly states that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments.¹ Accordingly, persons included under this definition enjoy all the rights and protections prescribed by various international treaties and conventions.

Persons with mental illness in Bosnia and Herzegovina have for a long period of time been deprived of legal capacity and placed under guardianship, which further led to their deprivation of liberty. More precisely, after the persons in question had been diagnosed a serious mental illness, the competent courts based on a proposal submitted by the authorised applicants decided, in accordance with the Non-contentious Act, to deprive them from legal capacity.² Consequently, the court decisions have been deliverd to the competent centres for social care who are authorised, according to the Family Law, to conduct an administrative procedure of placing the proteges (persons with mental illness) under the guardianship of a guardian who, depending on the assessment of the competent centre for social care, can be a person or the center itself represented by its director.³ Further, the competent centre for social care acting ex officio in an administrative procedure and in accordance with the Law on Social Protection, Protection of Civilian War Victims and Families with children placed these persons in social care institutions.⁴ Namely, the relevant part of the Article 41 of the Law on Social Protection, Protection of Civilian War Victims and Families with children prescribes that the right to placement in a social care institution can be realized by a person who needs a constant care and support in satisfaction of her/his life needs and she/he is not able to achieve them in their or other family, or in the other ways.⁵ This procedure has been usually proposed by the guardian of the person concerned or the social care institution in which the resident had been registered or a family member. As derives from the European Court's judgment in the case Hadžimejlić and Others versus Bosnia and Herzegovina, there is no dispute that the placement of the persons deprived from legal capacity in the social care institutions constituted a deprivation of liberty within the meaning of Article 5 Paragraph 1 (e) of the European Convention on Human Rights and Fundamental Freedoms.⁶ More precisely, they were held in the social care institutions against their will. In support of foregoing, the Committee for Prevention of Torture and Inhuman or Degrading Treatment or Punishment recorded in their Report on the visit to Bosnia and Herzegovina carried out from 19 to 30 March 2007 (hereinafter : the Report) that the most of residents in the two social care institutions visited were accommodated in locked departments or could easily be restrained whenever it was considered necessary.⁷ Furthermore, these persons have not had any legal mechanisms at their disposal which would provide them with the opportunity to approach the court to review their state of illness and legal capacity or if the social centre's administrative decisions still meets the legal prerequisites of their placement in the social care institutions. Bearing in mind that the placement of these persons in the institutions for social care have been conducted in accordance with the Law on Social Protection, Protection of Civilian War Victims and Families with children which do not prescribe an obligation for the competent authorities to subject their decision to any form of judicial review, it is more than evident that these persons have been deprived of any rights to be included in the process of their legal or medical treatment. Here it is important to emphasize that another Law is in force in Bosnia and Herzegovina and that is the Law on Protecting Persons with Mental Disorders which has not been applied to these particular cases. This law provides certain legal guarantees which meet international standards to the persons with mental illness in the process of their placement in the health care institutions.⁸ Among other things this law prescribes an obligation for the competent authorities to ask the permission of the competent court in order to place the mentall illness person in the health care institution. Also, there are other safeguards prescribed by this law. For example, the persons in question have to give their statement of consent to the decision on their placement in the health care institution, except in a situation where these persons are not capable to give such kind of statement which again is a subject of an expert psychiatric evaluation.⁹ In addition, if a person has been involuntary or by means of force placed in a health care institution, the competent court has to be informed within 24 hours from the moment of her/his detention.¹⁰ Moreover, if the competent court has decided to place a person in a health care institution, the prescribed estimated time of placement cannot be longer than 1 year, with a constant obligation for the institution to provide the medical care reports on the state of a person in question to the court whenever it has been asked.¹¹ Why this particular Law has not been applied by the competent authorities, still remains unclear.

2 The violation of the Right to Liberty and Security of Persons with Mental Illness Determined by the Constitutional Court and the European Court of Human Rights

2.1 The Constitutional Court's Decisions on the Violation of the Appellants' Rights to Liberty and Security

Two appellants of Bosnian nationality, at that time placed in the social care institutions, lodged the appellations before the Constitutional Court of Bosnia and Herzegovina allegedly claiming they had been unlawfully and against their will, placed in these institutions. Their respective names are Zuhra Hadžimejlić and Marcel Crepulja.

2.1.1 The Case of Zuhra Hadžimejlić

After the mental illness named paranoid schizophrenia was diagnosed to Zuhra Hadžimejlić, the competent court in the contentious procedure reached a decision by which Ms. Hadžimejlić was deprived from legal capacity and placed under guardianship of her sister.¹² Since the diagnosed mental illness was serious, the procedure of placement of Ms. Hadžimejlić in the social care institution was launched by the competent social care centre in accordance with the Law on Social Protection, Protection of Civilian War Victims and Families with children. Consequently, when all prerequisites prescribed by this Law were fulfilled, Zuhra Hadzimejlić was placed in the social care institution in 2007. Since any other legal instrument were not at her disposal, Ms. Hadžimejlić lodged the appeal before the Constitutional Court claiming that her mental state had been changed and that she does not need the guardianship anymore.¹³ In addition, she stated in her appeal that she wants to be released from the social care institution, the division for neuropsychiatry.¹⁴ Although the competent social care institution in her response stated that this institution is of a semi-opened type and that the state of illness of Ms. Hadžimejlić is very serious and demands the constant care, the Constitutional Court rendered a decision in which it ruled that there has been violation of Article II/3.d of the Constitution and of Article 5 paragraph 1.e. and paragraph 4 of the European Convention of Human Rights and Fundamental Freedoms.¹⁵ By the same decision the competent social institution was ordered to take appropriate measures in order to secure the appellant's rights deriving from relevant Articles of the Constitution and the European Convention.¹⁶

2.1.2 The Case of Marcelj Crepulj

This case is very similar to the case of Zuhra Hadžimejlić. After the serious mental illness named residual schizophrenia was diagnosed to Marcelj Crepulj and after the competent court, applying the Non-contentious Act, reached a decision by which Mr. Crepulje was deprived from legal capacity and placed under the ex officio guardianship of director of the competent social care centre, the competent centre launched the procedure of placement of Mr. Crepulj in the the social care institution in accordance with the Law on Social Protection, Protection of Civilian War Victims and Families with children.¹⁷ Consequently, he was placed in the social care institution in 2004. Since Mr. Crepulj, in accordance with the Law on Social Protection, Protection of Civilian War Victims and Families with children which was applied in both cases, did not also have at his disposal any legal instruments for protection of his rights, he lodged an appeal before the Constitutional Court claiming he was deprived from civil rights such as liberty, right to housing as well as right to speech.¹⁸ Additionally, he claimed non-pecuniary damage in the amount of 50.000,00 BAM (around 25.000,00 EURO). The competent centre for social care in its response to the appellant claims stated before the Constitutional Court that the state of mental illness of the appellant at the time of his placement in the social care institution was urged.¹⁹ Despite the fact that he showed aggressiveness, the centre for social care stated that the appellant was in the constant need of social and medical care. Also he did not have the needed funds for independent living neither a home to live in. Bearing in mind all the national and international legal standards which apply to both presented cases and which will be evaluated in following paragraphs in more detail, the Constitutional Court rendered a decision establishing the violation of the appellant's rights prescribed by the Article II/3.d of the Constitution and Article 5 paragraph 1.e. and paragraph 4 of the European Convention.

2.1.3 The Law and the international standards applied in the process before the Constitutional Court

In both presented cases the Constitutional court in its decision on meritum stressed several important legal provisions and international standards on which its decisions were based. Firstly, it reiterated the importance of the Article II/3.d of the Constitution and Article 5 of the European Convention and stressed out that there is no sufficient place for the arbitrary application of these articles.²⁰ In addition, it emphasized that the procedural guaranties prescribed by these articles by no means cannot be disregarded.²¹ The failure of the competent authorities to comply with the procedural guaranties enshrined in the domestic laws can easily lead to a violation of the rights of appellants.²² Further, and in accordance with the case law of the European Court of Human Rights with special emphasize on the case of Winterwerpen versus the Netherlands, the Constitutional Court cited the leading principles which provide guaranties that a detention is not arbitrary and consequently unlawful.²³ Firstly, the mental illness has to be reliably determined before the competent authorities and in accordance with impartial medical expertise.²⁴ Secondly, the mental illness has to be of such a type and degree to justify detention of a person.²⁵ Thirdly, detention can be of such a length in correspondence with the length of mental illness or the strength of that illness.²⁶ Lastly, where the length of detention is potentially unlimited, the detention has to be periodically subjected to the court revisions.²⁷ Since the competent social care institution's main defending stand in the procedure before the Constitutional Court was that the appellants had not been deprived from liberty because their detention had been of a limited influence, the Court stated out that the difference between deprivation of liberty and limitation of freedom is only in its level of intensity and not in its nature and substance.²⁸

[...]

¹ The UN Convention on the Rights of Persons with Disabilities signed on 30 March 2007 and entered into force on 3 May 2008 protects the rights of persons mental illness.

² According to the Articles 30 and 31 of the Non-contentious Act ("Official Gazette FBiH" number 2/98), the competent courts act as it is described.

³ According to the Articles 205, 206, 207 of the Family Law ("Official Gazette FBiH" no. 35/05, 41/05 i 42/14), a guardian can be a person or the centre itself represented by its director.

⁴ The Articles 41, 42, 43 of the Law on Social Protection, Protection of Civilian War Victims and Families with children ("Official Gazette FBiH" number 39/2006) prescribes the provisions in accordance to which the competent centres are obliged to act.

⁵ The Article 41 of the Law on Social Protection, Protection of Civilian War Victims and Families with children prescribes the list of potential right holders of placement in a social care institution ("Official Gazette FBiH" number 39/2006).

⁶ The Paragraph 54 of the Europan Court's judgment in the case of Hažimejlić and Others versus Bosnia and Herzegovina confirms that the applicants's placement in the social care institutions constituted a deprivation of liberty (Applications nos. 3427/13, 74569/13 and 7157/1)..

⁷. . . the most of residents in the two social care institutions visited "were accommodated in locked departments or could easily be restrained whenever it was considered necessary" (Report on the visit to Bosnia and Herzegovina, carried out from 19 to 30 March 2007, paragraph 135).

⁸ The Law on Protecting Persons with Mental Disorders ("Official Gazette FBiH" number 37/01) more precisely defines all the guarantees meeting the international standards.

⁹ The Paragraph 9 of the Article 3 of the Law on Protecting Persons with Mental Disorders prescribes when it is considerd that the consent to a placement in a medical institution is given freely("Official Gazette FBiH" number 37/01).

¹⁰ The Article 27 of the Law on Protecting Persons with Mental Disorders prescribes the behaviour of the competent authorities of a medical institution when a person has been involuntary placed in that institution. ("Official Gazette FBiH" number 37/01).

¹¹ The Article 33 of the Law on Protecting Persons with Mental Disorders prescribes the detention time of a person in question respecting all others procedures intended to secure the rights of the person("Official Gazette FBiH" number 37/01).

¹² The Part III - the Statements of Facts of the Constitutional Court's Decision in the Case of Zuhra Hadžimejlić decribes the decision reached by the competent court (Appelation number AP 2440/11).

¹³ The Part IV – the Quotes from the Appeal of the Constitutional Court's Decision in the Case of Zuhra Hadžimejlić are describing the circumstances of the placement of Ms. Hadžimejlić in the social care institution and her reasons for lodging the appellation (Appelation, number AP 2440/11).

¹⁴ Ibid.

¹⁵ The Article II/3.d of the Constitution of Bosnia and Herzegovina prescribes all the protected sets of rights among which are the rights prescribed by the European Convention on Huma Rights.

¹⁶ According to the Preamble of the Constitutional Court's Decision in the Case of Zuhra Hadžimejlić, Appellation number AP 2440/11, the competent social institution was ordered to take appropriate measures in order to secure the appellant's rights deriving from Article II/3.d of the Constitution of Bosnia and Herzegovina and Articles 5 paragraphs 1.e and 4 of the European Convention on Human Rights and Fundamental Freedoms.

¹⁷ The Part III - the Statement of Facts of the Constitutional Court's Decision in the Case of Marcelj Crepulj describes the decision reached by the competent court in the case of his placement under the guardianship of the of director of the competent social care centre (Appellation number AP 3507/11).

¹⁸ The Part IV – the Quotes from the Appeal of the Constitutional Court's Decision in the Case of Marcelj Crepulj describes all the appellant’s complaints concerning alleged violation of his rights (Appellation number AP 3507/11).

¹⁹ According to Paragraph 19 of the Constitutional Court's Decision in the Case of Marcelj Crepulj describes the respond of the competent social care centre to the allegation of violation of the appellant’s rights (Appellation number AP 3507/11).

²⁰ The Article II/3.d of the Constitution of Bosnia and Herzegovina prescribes the rights to liberty and security of person and the Article 5 of the European Convention of Human Rights also prescribe the cases when someone can be lawfully deprived from liberty (Constitution of Bosnia and Herzegovina).

²¹ According to Paragraph 31 of the Constitutional Court's Decision in the Case of Marcelj Crepulj, number AP 3507/11 and Paragraph 25 of the Constitutional Court's Decision in the Case of Zuhra Hadžimejlić, number AP 2440/11, the Constitutional Court emphasised the importance of the respect for the prescribed procedure in this kind of cases.

²² Ibid.

²³ The European Court's Judgment in the case of Winterwerpen against the Netherlands is the leading case of the European Court case-law where all the leading principles are explained that provide guaranties that a detention is not arbitrary (Winterwerpen against the Netherlands, Application no. 6301/73).

²⁴ The Paragraph 32 of the Constitutional Court's Decision in the Case of Marcelj Crepulj and Paragraph 26 of the Constitutional Court's Decision in the Case of Zuhra Hadžimejlić quotes the four leading principles providing the guarantees to a mentally ill person that his/her detention is not unlawful (Appellations nus. 3507/11 and 2440/11).

²⁵ Ibid.

²⁶ Ibid.

²⁷ Ibid.

²⁸ Ibid.