CASE OF GOROBET v. MOLDOVA
Violation of Art. 5-1;Violation of Art. 3 (substantive aspect);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
5. The applicant was born in 1966 and lives in Costeşti. 6. On 25 February 2008 at approximately 9 p.m. the applicant was visited at his home by two police officers, who invited him to the police station. The applicant refused in the beginning, but after being threatened with criminal prosecution for refusing to comply with legitimate police orders, he conceded. 7. Instead of being taken to the police station, the applicant was taken by the two police officers to the psychiatric hospital in Bălţi, where he was hospitalised against his will for a period of forty-one days. 8. During the first few days the applicant was kept in a room with persons suffering from serious mental disorders, some of whom could not attend to their basic needs and who intimidated him on a regular basis. He requested on several occasions that he be allowed to contact a lawyer or his family, but to no avail. Later he was transferred to a ward with patients with less serious conditions. 9. Throughout his stay in the psychiatric hospital the applicant was administered injections which provoked in him a state similar to paralysis and as a result of which he lost consciousness. He was also forced to take a large amount of tablets on a daily basis. He attempted to refuse to take medication; however, he changed his mind after being threatened with a straitjacket and with being tied to his bed. According to the medical records from the hospital, the applicant received treatment against paranoid depression. The records do not contain any information concerning any risks for the applicant or for other persons posed by the applicant’s condition. The records contain a consent form filled in with the applicant’s name and allegedly signed by him. The applicant denied having signed such a form and submitted that it was a forgery which first appeared in his medical file after the criminal investigation had been initiated (see paragraph 13 below). 10. After being released from hospital, the applicant made official inquiries with the Rascani District Court to find out whether it had authorised his forced hospitalisation. In two letters dated 27 July and 26 December 2008, the Rascani District Court denied having ever received any official request for the applicant’s involuntary confinement in a psychiatric hospital. 11. On 13 June 2008 the applicant obtained from the Rascani hospital two medical reports confirming that he had not been addicted to alcohol or drugs, and that he had not suffered from any psychiatric disorders. The report concerning the applicant’s mental health was issued following his examination by a commission of eight doctors and was signed, inter alia, by a psychiatrist, A.G. 12. The applicant also requested and obtained from his local hospital a document stating that he had not been registered as a person suffering from mental disorders before 25 February 2008. 13. On 29 August 2008 the applicant lodged a criminal complaint with the Prosecutor’s Office, asking it to investigate his case and to prosecute the persons responsible for his illegal forced hospitalisation in a psychiatric hospital and for subjecting him to medical treatment against his will. He described in detail the conditions of his hospitalisation and the medical treatment which he had received, and argued that it amounted to inhuman and degrading treatment. He submitted that his hospitalisation had been possible owing to an official document referring him for compulsory treatment issued by Doctor A.G. from the Rascani hospital. Doctor A.G. had issued that document without ever having seen the applicant in person. The document was not dated, contained the wrong social security number as regards the applicant, and stated that he was in possession of medical insurance, which was not true because he was not in fact medically insured. 14. In the course of the investigation, the Prosecutor’s Office heard the applicant’s family doctor, who stated that before the events of 25 February 2008 she had been told by the applicant’s sister and mother that they had often had disputes with him and that he had threatened them with violence and even with death, and in general displayed very strange behaviour. The family doctor told the applicant’s mother to see the psychiatrist A.G. from the Rascani hospital. In February 2008 the applicant’s mother told the family doctor that she had an official document from A.G. referring the applicant for psychiatric treatment. The family doctor told the applicant’s mother that that document was sufficient to compulsorily confine the applicant in a psychiatric hospital. 15. The applicant’s mother told the prosecutors that starting in December 2007, when the applicant had returned from a long stay in the Russian Federation where he had been employed, he began to have drinking problems and to behave inappropriately. It was the applicant’s sister who went to the Rascani hospital and obtained from A.G. an official document referring the applicant for psychiatric treatment. 16. The applicant’s sister told the prosecutors that the applicant had drinking problems and exhibited very bad behaviour. She saw A.G. from the Rascani hospital and asked him for an official document referring the applicant for psychiatric treatment. A.G. refused to issue such a document without first seeing the applicant. Then she started crying and A.G. conceded. He provided her with the document and told her to contact the family doctor in order to organise the hospitalisation. 17. The two police officers who transported the applicant to the Bălţi psychiatric hospital stated that on 25 February 2008 they had been contacted by the applicant’s family doctor, who presented them with an official document referring the applicant for treatment. They took the applicant directly to the Bălţi psychiatric hospital and left him there. 18. The Prosecutor’s Office also heard psychiatrist A.G., who declared that at the beginning of February 2008 he had been visited by a woman complaining about the aggressive behaviour of her brother, the applicant. Later the applicant was brought in for consultation by a police officer (one of the police officers who had arrested the applicant) and, after a brief conversation, the doctor determined that the applicant was suffering from a delusional belief that his relatives were intending to sell his house. The doctor considered that the applicant represented a risk to his relatives and ordered his hospitalisation. The police officer took the applicant to the Bălţi psychiatric hospital. A.G. was asked why he had issued the applicant with a document in June 2008 stating that he was mentally healthy. A.G. answered that he had issued the applicant with such a document because the applicant had told him that he was healthy and had never received psychiatric treatment. 19. During the investigation, the Prosecutor’s Office requested the applicant to undergo psychiatric evaluation, in order to determine whether he was actually suffering from the mental disorder which had led to his hospitalisation. The applicant agreed in the beginning; however, he changed his mind after learning that he had to commit himself for a three-week long in-patient examination in a psychiatric hospital. 20. On 12 June 2009 the Prosecutor’s Office dismissed the applicant’s criminal complaint on the ground that his hospitalisation had been duly ordered by Doctor A.G., and that as a result of the applicant’s refusal to undergo a medical examination, it was impossible to determine whether the diagnosis as established by Doctor A.G. had been correct or not. In so far as the consent form allegedly signed by the applicant is concerned, it appears that it was disregarded and that no one during the proceedings questioned the fact that the applicant had been hospitalised against his will. 21. The applicant appealed against the above decision to the hierarchically superior Prosecutor’s Office; however, his appeal was dismissed on 13 July 2009. 22. On 23 July 2009 the applicant appealed to the Rascani District Court. He argued, inter alia, that the same psychiatrist, A.G., had issued him in June 2008 with a medical report stating that he did not suffer from any mental disorders and that he had not been registered as a mentally ill patient with his local hospital before 25 February 2008. He also submitted that there had been no court orders committing him to a psychiatric hospital against his will, and that his hospitalisation had therefore been unlawful and arbitrary. 23. On 23 November 2009 the Rascani District Court dismissed the applicant’s appeal on the ground that he had refused to be hospitalised for an in-patient examination. 24. After the communication of the present case to the Government, new criminal proceedings were opened by the General Prosecutor’s Office on 23 April 2010 concerning the alleged unlawful actions of the Bălţi psychiatric hospital’s medical personnel in respect of the applicant. That investigation is still pending. It does not appear from the material submitted by the Government that the investigation had progressed in any way between April 2010 and June 2011, when the Government submitted their final observations in the case. 25. Section 11 of the Law on Psychiatric Assistance (“the Law”) provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of the Criminal Code or in accordance with the provisions of section 28 of that Law. In both cases, except for reasons of urgency, the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists. 26. Section 28 of the Law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will. It provides that a person suffering from a mental disorder can be hospitalised against his or her will, before a court judgment for that purpose has been issued, when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others; when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone; or if left untreated, the mental disorder could cause serious harm to the health of the individual concerned. 27. Pursuant to section 32 of the Law, compulsory hospitalisation for treatment of a person in accordance with section 28 must be decided by a court. The hospital must apply to the court for permission, indicating in the application the reasons for which hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists. Pursuant to section 33, the court examining the application must take a decision within three days from the date on which the application was lodged, and the person concerned has the right to participate in the hearing. If the person’s condition is serious and he or she cannot come to the court, the judge is obliged to hold the hearing at the hospital. The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation. 28. Section 39 of the Law provides, inter alia, that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request. On the other hand, a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment.