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Ombudsman recommends recompense for delay in judicial review of mental health case

An administrative court took over three months to deal with a complaint about a patient having been committed involuntarily for psychiatric hospital care.

Ombudsman Petri Jääskeläinen takes the view that, as a result of the delay, the complainant did not receive an effective legal remedy so that the legality of his deprivation of liberty could be examined.

What is of paramount importance in systems of legal remedies relating to deprivation of liberty is swift and thorough scrutiny of the legality of the decision by an independent court of law, which must have the possibility of deciding to end the deprivation of liberty immediately.

Precise time limits on how long judicial review of how long deprivation of liberty on mental health grounds may last can not be deduced from case law concerning the European Human Rights Convention. The European Court of Human Rights has ruled that the time taken to handle matters was unduly long in some cases where the time was less than a month. If judicial review of deprivation of liberty takes longer than a month, special grounds for the delay must be presented.
In the Ombudsman's view, the administrative court had violated the complainant's right to have his deprivation of liberty judicially reviewed without delay. He considered it probable that the result would have been the same if the events had been referred to the European Court of Human Rights for evaluation.

Ombudsman Jääskeläinen is of the opinion that protection under the law should be implemented primarily on the national level and that breaches of rights should above all be prevented from happening. Recompense for breaches that have occurred must be made afterwards in such a way and on a level that does not lag behind the European Human Rights Convention system.

Finland still lacks national legislation covering recompense for delays in legal proceedings in an administrative court. However, the European Human Rights Convention system constitutes a legal foundation for recompense also in such a case.

The Ombudsman has asked the Ministry of Justice to consider how recompense could be made to the complainant for the suffering caused by the rights violation and to inform him, by 31.12.2011, of any measures in the matter.
The Act should take better account of matters that require expeditious handling

Ombudsman Jääskeläinen has made a submission on a Government Bill to amend the legislation on recompense for delays in court proceedings.  Under the amendment, the scope of application of the legislation will be broadened to include also administrative courts. At present, it applies only to delays in general courts.

The Ombudsman draws attention to, inter alia, the fact that the compensation amounts recommended for delays are based on the delay estimated on an annual basis. The compensation is a priori €1,500 per year of delay.
In the opinion of the Ombudsman, the system does not take account of cases that demand very expeditious handling, and in which an acceptable handling time is at most a few months or weeks, such as in complaints concerning involuntary committal for psychiatric treatment. In such a case, the level of compensation would be too low if the compensation amount were to be reduced in fractions from €1,500.

The Ombudsman has asked the Ministry of Justice to consider whether the Bill should be revised to take better account of cases of this kind that require expeditious handling.

Additional information will be provided by Legal Officer Pasi Pölönen, tel. + 358 (0)9 4321