MDAC challenges Czech defamation legislation used to justify forced treatment

The European Court of Human Rights is considering whether the Czech Republic violated Article 5 of the European Convention on Human Rights by unlawfully detaining an elderly woman, K.S., with a mental disability in a psychiatric hospital, and forcibly treating her against her will. With the support of barristers from Doughty Street Chambers in London, MDAC filed legal submissions with the Court challenging the arbitrary detention and forced treatment of Ms K.S., and arguing that 'forensic detention' is discriminatorily applied to people with mental disabilities. The Court allowed MDAC to file these submissions in order to provide its expertise on international law as a third-party intervenor. 

Background

K.S. wrote a blog post in which she mistook a practicing lawyer for an ex-member of the Secret Police (‘StB’) during the previous communist regime. As a result, she was charged and convicted for defamation. K.S. spent much of her life under the surveillance and intimidation of State security forces: her father was a political prisoner of the communist Czech authorities. Even the slightest inclination that one of these officers was now present in her daily life was enough to cause her significant trauma and anxiety.

As part of the proceedings, K.S. was hospitalised and forced to undergo an inpatient psychiatric examination so that a report could be drawn up on her mental health. Though this was contradicted by the testimony of four other mental health specialists and she had no history of mental health issues, the examining psychiatrist reported that she suffered from either a “personality disorder” or “delusional syndrome.” The Court thus concluded that K.S. was a danger to society and in need of treatment. It ordered that she be hospitalised indefinitely for “protective treatment”.

K.S. spent over 300 days in a psychiatric hospital before her protective treatment order was discontinued in May 2012. During this time, she was medicated against her will, restrained and treated very harshly. All of this was confirmed by a report of the Czech Ombudsperson, who concluded that the use of chemical and physical restraints against her was both unnecessary and unlawful. The hospital itself admitted fault in a letter of apology sent to K.S. in April 2012.

MDAC's Intervention

Whether it is referred to as forensic detention, forced treatment or protective treatment, MDAC is deeply concerned about vague and punitive laws targeting people with mental disabilities and resulting in arbitrary detention or forced treatment. In the case of K.S., it is particularly concerning that defamation laws carry the possibility of detention for anyone, let alone people with disabilities.

The current position means that Czech law allows for the deprivation of liberty on the basis of disability in contravention of Article 14 of the UN Convention on the Rights of Persons with Disabilities. It also permits detention in circumstances that are vague and undefined, in contravention of Article 5 of the European Convention on Human Rights and where other less restrictive options are available. It further allows hospitals to force psychiatric treatment on someone without this consent. This makes them vulnerable to abuse, ill-treatment and even torture.

MDAC is troubled by the use of criminal defamation as a way of punishing K.S. and subjecting her to forced treatment. Criminal defamation is a way of silencing individuals and curtailing the right to free speech. It cannot reasonably be said that detention is a necessary or proportionate sentence for defamation or that defamation presents a danger which justifies detention for the protection of society. Defamation does not present a significant risk of substantial harm, as is required by international law before detention can be justified.

MDAC’s intervention seeks to ensure that the judgment of the European Court promotes the liberty, dignity and well-being of people with mental disabilities.

Steven Allen, Campaigns Director of MDAC, said:

“Imprisoning people for what they say - no matter how careless - is a serious breach of the right to free speech. The situation in the Czech Republic is even more concerning, allowing for people with mental health issues to be arbitrarily detained on a discriminatory basis. The Czech Government should act to abolish these outdated provisions, and protect freedom of speech for all.”

MDAC would like to express its gratitude to Caoilfhionn Gallagher, Jude Bunting and Sophy Miles of Doughty Street Chambers for their assistance with the third-party intervention.