Am 10.01.2019 hat der EGMR in der Sache ČUTURA v. CROATIA (Application no. 55942/15)  entschieden, dass die Menschenrechte eines psychisch Kranken in einem Unterbringungsverfahren verletzt sind, wenn ein ihm beigeordneter Prozesskostenhilfeanwalt keine effektive Vertretung gewährleistet hat. In dem Fall hat der Prozesskostenhilfeanwalt nur die Rolle eines schweigenden Prozessbeobachters angenommen, weder mit seinem Mandanten gesprochen noch Fragen gestellt. Für eine 1 jahrige Unterbringung bekam der Betroffene 10.000 € Entschädigung. 

Auszüge:

THE FACTS
The applicant was born in 1980 and lives in Vrbovec.
In January 2014 the criminal court found that Mr Čutura had made verbal threats to his neighbours in a state of mental derangement. Seen as a threat to others and already being held in Zagreb Prison hospital, a court ordered that he be committed to a psychiatric institution. His appeals were unsuccessful. In April 2014 Zagreb Country Court ordered that Mr Čutura be committed to Vrapče Psychiatric Hospital for six months, effective from May 2014. In July of the same year the hospital asked for his confinement to be extended. The judge handling the request visited Mr Čutura in the hospital, accompanied by the applicant’s court-appointed legal aid lawyer. The Country Court held a hearing in August 2014, with representatives from the hospital, the State Attorney’s Office and the legal aid lawyer. The court ordered that Mr Čutura’s involuntary confinement be extended by one year. Mr Čutura’s father, acting on his son’s behalf, appealed. He submitted that the family had had no idea that Mr Čutura could be kept in the hospital, had not been not aware of the court proceedings, and that the lawyer had been ineffective. The appeal was rejected and the father lodged a constitutional complaint, alleging that the lawyer had acted as an arm of the institutions rather than as his son’s defender. The Constitutional Court dismissed the complaint. Mr Čutura was given a conditional release in August 2015.
The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

The applicant claimed, LEGAL AID LAWYER had been completely passive in the proceedings and had not sought to protect his rights by taking any action in his favour. In particular, she had never consulted him nor sought his instructions and she had not asked that an expert report be ordered in order to verify whether the hospital’s request for extension of the confinement was well-founded. At the same time, she should have been aware that throughout the criminal proceedings he had opposed his involuntary placement in a psychiatric hospital and that he had later expressed a wish to be released from the hospital. In this connection, he also pointed out that the hospital had failed to take any action or to respond to the request sent to it by his chosen lawyer.
The Court’s assessment
The Court refers to the general principles for the assessment of complaints of involuntary confinement in a psychiatric hospital under Article 5 § 1 (e) of the Convention, as set out in the case of M.S. v. Croatia (no. 2) (no. 75450/12, §§ 139-147, 19 February 2015).
The Court stresses that Article 5 § 1 (e) of the Convention affords, amongst other things, procedural safeguards related to judicial decisions authorising an applicant’s involuntary hospitalisation (ibid., § 114). Thus, in order to comply with Article 5 § 1 (e) of the Convention, the proceedings leading to the involuntary placement of an individual in a psychiatric facility must necessarily provide clearly effective guarantees against arbitrariness given the vulnerability of individuals suffering from mental disorders and the need to adduce very weighty reasons to justify any restriction of their rights (see Rudenko v. Ukraine, no. 50264/08, § 104, 17 April 2014).
In this context, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see M.S. (no. 2), § 152). This implies, inter alia, that an individual confined in a psychiatric institution because of his or her mental condition should, unless there are special circumstances, actually receive legal assistance in the proceedings relating to the continuation, suspension or termination of his confinement. The importance of what is at stake for him or her, taken together with the very nature of the affliction, compel this conclusion. Moreover, this does not mean that persons committed to care under the head of “unsound mind” should themselves take the initiative in obtaining legal representation before having recourse to a court (ibid., §§ 152-153, with further references).
However, the mere appointment of a lawyer, without him or her actually providing legal assistance in the proceedings, cannot satisfy the requirements of necessary “legal assistance” for persons confined under the head of “unsound mind”, under Article 5 § 1 (e) of the Convention. This is because the effectiveness of legal representation of persons with mental disorders requires an enhanced duty of supervision by the competent domestic courts (ibid., § 154).
The only instance where the LEGAL AID LAWYER met the applicant was when she attended the meeting which the judge conducting the proceedings held with him in the hospital on 30 July 2014 (see paragraph 23 above). There is no indication in the case file that on that occasion LEGAL AID LAWYER asked any questions or otherwise addressed the applicant or the judge during the meeting. There is also no indication that LEGAL AID LAWYER or the judge explained to the applicant his particular procedural situation and rights in the proceedings, nor that they contacted and informed members of the applicant’s family of the developments in his case.
In these circumstances, the Court finds that the LEGAL AID LAWYER acted essentially as a passive observer of the proceedings. Although the domestic courts were well aware of her passive attitude in the proceedings, they failed to react by taking appropriate measures to secure the applicant’s effective legal representation (compare M.S. (no. 2), cited above, § 156). In this connection, it is worth reiterating that effective legal representation of persons with disabilities requires an enhanced duty of supervision by the competent domestic courts of the effectiveness of their legal representation (see paragraph 49 above). In the present case, the Court is not satisfied that the County Court complied with that duty.
Bearing in mind the ineffectiveness of the applicant’s legal representation in the proceedings, and the need to have his views on the matter of psychiatric confinement heard by the relevant court (see paragraph 48 above), the Court observes that there is nothing to suggest that the judge conducting the proceedings made appropriate allowances to ensure the applicant’s participation in the proceedings.
Although the judge visited the applicant in the hospital, there is no evidence, as already observed above, that she informed the applicant of his rights or gave any consideration to the possibility of him participating in the hearing (see paragraph 53 above). He was thus not given an opportunity to comment on the hospital’s request for the extension of his confinement nor was he and/or members of his family informed of the hearing and allowed to express their views on the matter, even though they had clearly opposed an extension of the involuntary hospitalisation (see paragraphs 11, 14, 25 and 28 above; see also paragraph 36 above, section 49 of the Protection of Individuals with Mental Disorders Act).
In the absence of a convincing explanation by the domestic courts, the Court is unable to accept that there was a valid reason justifying the applicant’s exclusion from the hearing, particularly since it notes that during his interview with the judge in the hospital, he did not demonstrate that his condition was such as to prevent him from directly engaging in a discussion of his situation (see paragraph 23 above, and compare M.S. (no. 2), cited above, § 159, with further references).
In the light of the findings above, the Court concludes that the competent national authorities failed to meet the procedural requirements necessary for the applicant’s further involuntary hospitalisation, as required under Article 5 § 1 (e) of the Convention.
This is sufficient to enable the Court to conclude that there has been a violation of Article 5 § 1 of the Convention.
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
Having regard to the facts of the case, the submissions of the parties and its above finding under Article 5 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; see also Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).

Damage
Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there is no need to rule separately on the complaint under Article 6 § 1 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,730 (one thousand seven hundred and thirty euros), in respect of costs and expenses to be paid directly to the applicant’s representative’s bank account;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

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