After a municipality official lodged a defamation claim against the applicant, Ms. Beiere, criminal proceedings were instituted against her. A lawyer was appointed to represent her, although she claimed she was never informed of that appointment. After hearing representations from the prosecutor and the applicant’s lawyer and noting that the applicant had refused to submit to a residential psychiatric examination voluntarily, a judge ordered her placement in a psychiatric hospital. Ms. Beiere learned about the court order only several days later when she was escorted by the police to the hospital. Her appeal against the order was unsuccessful and she was kept in the hospital for about twenty days. The criminal proceedings against her were ultimately discontinued in view of her mental incapacity.
Ms. Beiere argued that her confinement in the psychiatric hospital had been unlawful and that she had been unable to challenge its lawfulness.
The Court stated that deprivation of liberty is a measure of last resort and can be used only where other, less severe, measures are insufficient. The Court stated that Article 5(1)(b) of the Convention allows to arrest or detain a person for ‘non-compliance with a lawful order of a court’. For order to be lawful it must not only have basis in law but it also must be issued following fair and proper procedures.
It was not disputed in the present case that the order was not based on law. However, the Court found several issues regarding the procedural aspects of the order. Firstly, the person before the arrest or detention must have had an opportunity to comply with the order. Ms. Beiere was informed of the existence of a court order only after she had been brought to the psychiatric hospital and was therefore never given a chance to comply voluntarily. Furthermore, the domestic court had ordered her detention in her absence, without summoning her to a hearing or informing her that a hearing would take place. Ms. Beiere was never informed that a lawyer had been appointed to represent her and did not meet him. Thus in the Court’s view the detention order issued in those proceedings could not be regarded as a ‘lawful order of a court’. Therefore, the Court ruled that there has been a violation of Ms. Beiere’s right to liberty.