Published: 2 Oct 2019 | By Tim Mosk
Fernandes de Oliveira v Portugal [GC]
Forum: ECtHR (GC)
Case No.: 78103/14
Judgment date: 31 January 2019
The applicant’s son (“A.J.”) committed suicide while voluntarily hospitalized in the Hospital Psiquiátrico Sobral Cid (the “HSC”), a state-run psychiatric hospital.
A.J. suffered from several mental illnesses, combined with an addiction to alcohol and prescription drugs. A.J. had been hospitalised in the HSC on eight occasions between 1984 and 2000. The HSC was aware of A.J.’s prior suicide attempts. On 1 April 2000, A.J. attempted to commit suicide. On 2.4.00, A.J. was voluntarily admitted to the HSC where he was first placed under a restrictive regime. When his condition improved he was allowed a less restrictive regime, but was not allowed to leave the HSC without permission. During a permitted period, on 25 April 2000, A.J. drunk a large amount of alcohol. His doctor did not consider this a suicide attempt, but rather reckless behaviour. On 26.4.00, A.J. stayed in bed and only got up to eat and receive phone calls and a visit from his sister. On 27.4.00 A.J. left the HSC and jumped in front of a train on the nearby train line.
The applicant started domestic civil proceedings against the HSC which lasted eleven years over two levels of jurisdiction.
Following the Fourth Section’s unanimous decision on 28.3.17 finding substantive and procedural violations of Art. 2, the Court referred the case to the Grand Chamber, at the Government’s request.
The Grand Chamber differed from the Chamber’s decision, finding no violation of the substantive aspect of Art. 2 (the State’s positive obligation to protect A.J.’s right to life) by 15 votes to 2. The manner in which the regulatory framework was implemented (means of treatment, environment, regime, surveillance, emergency procedure and judicial procedure to determine accountability) did not give rise to a violation of Art. 2. Further, it was not established that the authorities knew or ought to have known of a real and immediate risk to A.J.’s life and it was not therefore necessary for the Court to assess whether the authorities had taken preventive operational measures.
However, like the Fourth Section, the Grand Chamber unanimously found a violation of the procedural aspect of Art. 2 (that court proceedings into possible negligence be completed within a reasonable time). Length of proceedings is a strong indication of defective proceedings, particularly in the case of an individual’s death in a hospital setting (Lopes de Sousa Fernandes v Portugal [GC] No. 56080/13, 19.12.17, para. 219). The Government conceded that the proceedings were excessively long, but failed to provide convincing and plausible reasons justifying their length. The Court reiterated that the passage of time might influence a witness’s memory, and promptness was important to remedy deficiencies or errors.
The applicant was awarded €10,000 in non-pecuniary damage on account of the distress and frustration caused by the protracted domestic proceedings.
This case confirms the Court’s jurisprudence that states have a positive operational obligation to take reasonable steps to prevent the real and immediate risk of suicide of persons who are under state control, such as prisoners (Keenan v. United Kingdom, No. 27229/95, 03.04.01), administrative detainees (Slimani v France, No. 57671/00, 27.10.04), military conscripts (Perevedentsevy v Russia, No. 39583/05, 24.04.14) and involuntary psychiatric patients (Hiller v. Austria, No. 1967/14, 22.11.16). In this case, the Court applied this obligation to voluntary inpatients for the first time.
The partly concurring, partly dissenting opinion of Judge Pinto de Albuquerque joined by Judge Harutyunyan is fierce, holding that the Court should also have found a substantive violation of Art. 2: the “majority’s opinion was written for a country other than Portugal” and the “judgment is the result of a creative exercise of judicial adjudication for an imagined country”. They argue that Portugal failed to comply with its regulatory framework which, amongst other things, did not reflect international standards, that at the time of A.J’s death there was no legislation on applicable regimes, no legal framework on the state obligation to protect the life of voluntary psychiatric in-patients, no guidelines on the use of restraint measures and no rules regulating surveillance. Further, the dissenting judges consider that A.J.’s suicide was foreseeable, that preventive operational measures should have been taken (applying Osman v. the United Kingdom No. 23452/94, 28.10.98) and that the measures taken were woefully inadequate.