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<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> <html xmlns="http://www.w3.org/1999/xhtml"> <head> </head> <body> <div style="font-family:Verdana, Geneva, sans-serif; font-size:12px; text-align:justify"> <table width="800" border="0" style="border:1px solid #ccc;padding:5px;" align="center" cellpadding="6" cellspacing="0"> <tr> <td align="left" valign="top"> A person’s physical liberty is a fundamental right protecting physical security of an individual - (06 Dec 2016) </td> </tr> <tr> <td align="left" valign="top">In the case of Trutko v. Russia</td> </tr> <tr> <td align="left" valign="top" style="background-color:#FDEDCE">Present case originated in an application against Russian Federation lodged with Court under Article 34 of Convention for the Protection of Human Rights and Fundamental Freedoms/Convention by Applicant. Applicant alleged, in particular, that she had been unlawfully deprived of her liberty for purpose of undergoing a forensic psychiatric examination and compulsory medical treatment. Applicant claimed that, Town Court’s order of 4 November, 2003 had been unfair and unlawful. She alleged that she had been deprived of opportunity to participate in relevant hearing, and that, in any event, there had been no grounds to order her involuntary psychiatric examination. Applicant was charged with contempt of Court and criminally insulting presiding judge and parties at a hearing in which she had acted as a Defendant’s representative.

A person’s physical liberty is a fundamental right protecting the physical security of an individual. While Article 5 § 1 of Convention sets out a list of exceptions which might restrict this right (Article 5 § 1 (a) to (f)), these exceptions must be interpreted narrowly, and in no circumstances may they allow arbitrary deprivation of liberty. In present case, parties did not dispute that, enforcement of Court order for forensic psychiatric examination of Applicant had involved a deprivation of liberty.

Notion of “lawfulness” in context of Article 5 § 1 of Convention may have a broader meaning than in national legislation and that it presumes a “fair and proper procedure”, including the requirement “that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary”

In present case, Applicant was neither notified of nor afforded the opportunity to take part in or be represented at hearing of 4 November 2003 before Town Court regarding authorisation of her internment in a psychiatric facility. Domestic Court granted investigator’s application, without finding it necessary to summon applicant or give any consideration to such an evident consequence of order as deprivation of liberty.

A Court could not issue an order under Article 203 of Code of Criminal Procedure, without affording a suspect and/or his representative an opportunity to be heard. Proceedings leading to the applicant’s five-day internment in Forensic Psychiatry Centre did not meet the lawfulness requirement of Article 5 of Convention, since her detention was arbitrary. While Article 165 of Code of Criminal Procedure does indeed provide for ex parte hearings regarding relevant orders, nothing in parties’ submissions indicates that, Russian courts would have been prevented from summoning the applicant if they considered her presence necessary. Moreover, opinion of Constitutional Court of Russian Federation states clearly that domestic law - Article 203 of the Code - provides for the participation of suspects in hearings.

In present case, not only was the applicant unable to present her arguments against internment before the relevant order was made, but the domestic courts chose to neglect the deprivation of liberty aspect of that order even after the issue of her absence during the first-instance hearing was raised on appeal. These considerations lead the Court to conclude that, applicant’s detention was arbitrary within the meaning of Article 5 § 1 of Convention. Court held that, there has been a violation of Article 5 § 1 of the Convention on account of unlawful deprivation of liberty for the purpose of providing compulsory medical treatment.</td> </tr> <tr> <td align="left" valign="top" ></td> </tr> <tr> <td align="left" valign="top" >Tags : Psychiatric examination, Involuntary, Validity</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr>  <td align="left" valign="top">Source : newsroom.manupatra.com</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> <tr> <td align="left" valign="top">Regards</td> </tr> <tr> <td align="left" valign="top">Team Manupatra</td> </tr> <tr> <td align="left" valign="top">&nbsp;</td> </tr> </table> </div> </body> </html>