In Červenka v The Czech Republic (Application no. 62507/12, decision of 13 October 2016), the ECtHR considered the position of Mr Jaroslav Červenka, who had alcoholic dementia and who was declared to lack legal capacity. His courtappointed guardian had consented on his behalf to his admission to a care home. The ECtHR held that he was deprived of his liberty there for the following reasons: 

103. In the present case, the applicant was declared fully incapacitated at the relevant time and the Government admitted that he could not leave the social care home on his own during the day without being accompanied or without the psychiatrist’s approval. He was compulsorily placed in the social care home on the basis of an agreement signed by his public guardian. While he did not show clear disagreement on the day of his admission to the social care home or shortly beforehand, from his subsequent conduct it was obvious that he had not consented to his placement there. The Court further notes that although the applicant was placed in a private social care institution (see paragraph 24 above), his confinement was requested by his public guardian, the Prague 11 Municipal Office, which had been appointed by the court (see paragraph 7 above). Therefore, the responsibility of the authorities for the situation complained of was engaged. 

Domestic law regarded the applicant as being at the care home voluntarily, because of the guardian’s consent. But the Court held that a procedure which merely required the public guardian’s consent to the care home admission did not provide a sufficient safeguard against arbitrariness, contrary to Article 5(1)(e) (para 110). The applicant contended that there ought to have been an automatic review under Article 5(4) but the ECtHR did not go that far. After repeating its well-established principles, the ECtHR emphasised that “The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness” (para 132). 

The ECtHR repeated that special procedural safeguards may be called for to protect the interests of those who, on account of their mental illness, are not fully capable of acting for themselves. The court referred back to Shtukaturov v. Russia (no. 44009/05, ECHR 2005), where it found that a remedy which could only be initiated through the applicant’s mother – who was opposed to his release – did not satisfy the requirements of Article 5(4). In the present case, the applicant’s detention lasted more than six months “which cannot be considered too short a period to initiate judicial review” (para 133). Given the domestically perceived voluntary nature of his care arrangements, there were no domestic proceedings to challenge their lawfulness, contrary to Article 5(4). 

Given the considerable anguish and distress which could not be made good by a mere finding of a Convention violation, the ECtHR awarded him EUR 15,000 in respect of non-peciunary damage.

Comment

That the ECtHR found that the circumstances amounted to a deprivation of liberty is perhaps not surprising, although it is a useful reminder that the fact a person is not accompanied on outings from a place is not enough to take them out of the scope of deprivation of liberty if their ability to come and go is under the control of another. 

It is also worth stressing that this was a private care facility, but there was the requisite element of State imputability by virtue of the court having appointed the public guardian that consented to the admission. The decision reinforces the need to use DoLS where a health and welfare deputy consents to the person’s admission to residential care. It also resonates with AJ v A Local Authority, by emphasising the importance of enabling a person to challenge their detention without being dependent upon a representative who opposes their release. Finally, the awarding of compensation for the anguish and distress ought not to go unnoticed.