Hadzic and Suljic v. Bosnia and Herzegovina

Application Nos. 39446/06 and 33849/08
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Mr. Hadzic and Mr. Suljic were detained in the Psychiatric Annex of Zenica Prison. Each claimed that their detention was unlawful under Article 5, section 1 of the European Convention on Human Rights (“Convention”), which protects the right to liberty and security of person They argued that the Annex was not an appropriate institution for the detention of mental health patients.

In 2003, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Zenica Prison. The CPT issued a report outlining the poor conditions of the Psychiatric Annex, both in comparison to the rest of the prison facility and to what is expected of a health care institution. The Annex had overcrowded dormitories, inadequate nursing staff, inadequate treatment for the patients, poor hygiene, and deficient heating. The Psychiatric Annex opened in 1996 as temporary accommodation for psychiatric patients in the prison, but, due to resource constraints, it continued to be used as the main psychiatric ward. A follow-up visit by the CPT in 2007 found that the conditions in the Annex continued to deteriorate.

In 2005, the Government of Bosnia and Herzegovina undertook to move all patients from the Psychiatric Annex to an adequate facility by the end of the year. However, both Mr. Hadjic and Mr. Suljic remained in the Annex until 2008 when a regional court ruled that the mental condition of each applicant no longer required their confinement in the Psychiatric Annex.

In 2006 and 2010, Constitutional Court of Bosnia and Herzegovina held that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients and that the applicants’ detention breached Article 5 of the Convention.

The court held that, although the confinement of applicants in a psychiatric facility was lawful under the domestic criminal law of Bosnia and Herzegovina, the inadequate conditions in the Psychiatric Annex of the Zenica Prison made the applicants’ detention in the Annex unlawful under Article 5, section 1 of the Convention.

The Court emphasized the general principle that the lawfulness of deprivation of liberty under mandatory confinement depends upon the appropriateness of the institution. The Court deferred to the earlier decisions by the Constitutional Court of Bosnia and Herzegovina and the CPT’s findings to conclude that the applicants’ rights under Article 5 had been violated and that their confinement in the Psychiatric Annex had been unlawful.

“The Court observes that the present case should be distinguished from Tokić and Others (cited above) and Halilović v. Bosnia and Herzegovina (no. 23968/05, 24 November 2009), because unlike the applicants in those cases (who were found not guilty by reason of insanity and could therefore no longer be held in psychiatric detention after 1 September 2003 unless it had been so decided by the relevant civil court), the present applicants were found guilty (a hospital order was imposed on them, concurrently with a prison sentence, because of their diminished responsibility at the time they committed the offences). Accordingly, their detention in the Psychiatric Annex imposed by a hospital order of the relevant criminal court was lawful under the new criminal legislation. The main issue in the present case is whether the Psychiatric Annex is an appropriate institution for the detention of mental health patients.” Para. 39.

“[One of the] general principles in relation to the unlawfulness of detention … [is that] there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the ‘detention’ of a person as a mental health patient will only be ‘lawful’ … if effected in a hospital, clinic or other appropriate institution. Turning to the present case, the Court notes that the Constitutional Court and the CPT have established that the Psychiatric Annex is not an appropriate institution for the detention of mental health patients and that it was an interim solution which has become permanent only because of lack of resources (see paragraphs 11, 20, 26 and 27 above). The Court does not see any reason to depart from these findings.” Paras. 40-41 (citations omitted).

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