Постановление Европейского суда по правам человека от 22.04.2010 «Дело Бик (Bik) против России» [англ.]

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

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