CASE OF GORSHKOV v. UKRAINE
Violation of Art. 5-4;Not necessary to examine under Art. 13
Zoryana Bortnovska
8. The applicant was born in Orenburg, Russia, in 1954. He currently resides in Simferopol, the Crimea. 9. In 1984 the applicant was convicted of attempted rape. However, he was exempted from serving his sentence on the grounds of diminished responsibility and underwent compulsory medical treatment in a psychiatric hospital from 1984 to 1986. 10. On 9 September 1990 the applicant again attempted to commit rape. 11. On 9 April 1991 the Zheleznodorozhny District Court of Simferopol (the “Zheleznodorozhny Court”) ordered the applicant to undergo compulsory medical treatment in a psychiatric hospital under close supervision. This decision was not appealed and became final. He was detained in the Dnepropetrovsk Specialised Psychiatric Hospital. 12. On 24 November 1997 the psychiatric commission recommended that the applicant be transferred to a hospital with strict supervision (a higher level than the previous one). 13. On 2 December 1997 the Krasnogvardejsky District Court of Dnepropetrovsk allowed the petition lodged by the chief psychiatrist of the Dnepropetrovsk Regional Health Department. It quashed the decision of 9 April 1991, but decided that the applicant should continue to undergo compulsory medical treatment under close supervision. This resolution was not appealed and became final. 14. From 11 September to 14 December 1997 the applicant remained in detention in the Dnepropetrovsk Specialised Psychiatric Hospital under close supervision. 15. From 15 December 1997 until 20 January 1999 the applicant was under compulsory medical treatment with close supervision in the Crimean Republican Psychiatric Hospital (the “CRPH”). 16. On 17 December 1998 the CRPH lodged a request with the Zheleznodorozhny Court that the applicant’s regime be reduced to ordinary supervision. 17. On 6 January 1999 the Zheleznodorozhny Court decided that the applicant should be placed under ordinary supervision in the psychiatric hospital since his behaviour had improved. 18. On 12 July 1999 the Zheleznodorozhny Court refused an application by the Chief Psychiatrist of the Ministry of Health of the Crimea (the “Chief Psychiatrist”), based on a medical report dated 3 June 1999, to terminate the applicant’s compulsory medical treatment since his state of health had improved. In particular, it referred to the gravity of the offence committed by the applicant. 19. On 19 August 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court of the Crimea. On 30 August 1999 this court upheld the decision of 12 July 1999. In particular, it ruled that the requests for release were unsubstantiated as the applicant had not fully recovered from his mental illness. 20. On 14 March 2000 the Zheleznodorozhny Court rejected a further application by the Chief Psychiatrist lodged on the basis of the conclusions of the applicant’s medical examination on 13 January 2000, as being unsubstantiated. 21. On 20 March 2000, the applicant’s lawyer lodged an appeal in cassation with the Supreme Court of the Crimea. On 4 April 2000 the court upheld the decision. 22. On 10 July 2000 the Chief Psychiatrist lodged another application with the Central District Court of Simferopol (the “Central Court”) seeking to quash the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision. On 1 September 2000 the Central Court rejected this application for lack of substantiation and, on 31 October 2000, the Supreme Court of the Crimea upheld that decision. 23. On 15 March 2001 the psychiatrist of the CRPH lodged an application with the Zheleznodorozhny Court seeking to quash the compulsory medical treatment imposed on the applicant. He also requested that the court order the applicant’s transfer to an ordinary supervisory regime. On 7 May 2001 the Central Court rejected this application as unsubstantiated. In particular, it noted the gravity of the crime committed by the applicant and the fact that he was a repetitive offender. The court further held that the conclusions of the medical commission were insufficient to quash the compulsory treatment measure. 24. On 21 September 2001 the Head of the Medical Department of the CRPH lodged an application with the Zheleznodorozhny Court, seeking to end the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision. 25. On 23 October 2001 the Zheleznodorozhny Court allowed the application and decided that treatment could be given to the applicant under ordinary supervision, since his state of health had improved. The resolution of 23 October 2001 was not appealed and became final. 26. The applicant was released from the psychiatric hospital on 8 November 2001. 27. The relevant provisions of the Constitution of Ukraine read as follows: “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” 28. The relevant provisions of the Criminal Code read as follows: “... 2. A person, who, during the commission of an act generally deemed to be dangerous by the present Code, was not criminally responsible, that is, not able to account for himself or his own actions (omissions) as a consequence of chronic mental illness, temporary disturbance of mental activity, feeble-mindedness, or other mental disorder, shall not be liable to criminal sanctions. ...” “1. A person deemed by a court to be of diminished responsibility, so that, at the time of committing an offence, he was not fully capable of accounting for and controlling his own actions (or omissions) as a consequence of a mental disorder ..., shall be subject to criminal sanctions. 2. The fact that a person has been held to be of diminished responsibility shall be taken into account by a court when deciding on the imposition of a penalty and may be a ground for the application of compulsory measures of a medical character.” “1. A person who has committed a crime shall be exempted from criminal responsibility in the instances provided for by the present Code, and also on the basis of an amnesty law ... or a pardon. 2. Exemption from criminal responsibility in the instances provided for by the present Code shall be ordered exclusively by a court. The procedure for exemption from criminal responsibility shall be established by law.” “Compulsory measures of a medical character shall be: the provision of outpatient psychiatric assistance; the placement of a person who has committed a socially dangerous act, falling within the scope of the Special Part of the present Code, in a specialised institution for the purpose of compulsory treatment, and the prevention of the commission of socially dangerous acts by a person.” “Compulsory measures of a medical character may be applied by a court to persons who have ... (2) committed offences in a state of diminished responsibility; ...” “1. Depending on the character and gravity of the illness, the gravity of the act committed, and taking into account the degree of danger a mentally ill person presents to himself or to other persons, a court may apply the following measures of a medical character: (1) compulsory provision of outpatient psychiatric assistance; (2) hospitalisation in a psychiatric institution under ordinary observation; (3) hospitalisation in a psychiatric institution under close observation; (4) hospitalisation in a psychiatric institution under strict observation. 2. Compulsory provision of outpatient psychiatric assistance may be ordered by a court with respect to a person suffering from a mental disorder who has committed a socially dangerous act if the person, by reason of his mental state, does not require confinement in a psychiatric institution. 3. Hospitalisation in a psychiatric institution under ordinary observation may be ordered by a court with respect to a mentally ill person who, on account of his mental state and the nature of the socially dangerous act committed, requires confinement and compulsory treatment. 4. Hospitalisation in a psychiatric institution under close observation may be ordered by a court with respect to a mentally ill person who committed a socially dangerous act not connected with an attempt on the life of other persons and who, on account of his mental state, does not represent a threat to society but requires confinement in a psychiatric institution and treatment under conditions of close observation. 5. Hospitalisation in a psychiatric institution under strict observation may be ordered by a court with respect to a mentally ill person who has committed a socially dangerous act connected with an attempt on the life of other persons, and also with respect to a mentally ill person who, on account of his mental state and the nature of the socially dangerous acts committed, represents a special danger to society and requires confinement in a psychiatric institution and treatment under conditions of strict observation. 6. If the application of compulsory measures of a medical character to a mentally ill person is not deemed to be necessary, and, likewise, in the event of the termination of the application of such measures, a court may place him in the care of relatives or guardians under compulsory medical observation.” “1. The extension, modification or termination of the application of compulsory measures of a medical character shall be ordered by a court upon an application by a representative of the institution (or a psychiatrist) providing the treatment, to which application shall be appended the opinion of a commission of psychiatrists substantiating the need to extend, modify or terminate the application of such compulsory measures. 2. Persons subject to compulsory measures of a medical character shall be examined by a commission of psychiatrists not less than once every 6 months in order to decide whether there are grounds for applying to a court to terminate or modify the application of such measures. If there are no grounds for terminating or modifying the application of a compulsory measure of a medical character, the representative of the institution (or the psychiatrist) rendering psychiatric assistance to the person shall send to the court an application, to which shall be appended the opinion of the commission of psychiatrists substantiating the need to extend the compulsory measures. If it is necessary to extend the application of a compulsory measure of a medical character for more than 6 months, the representative of the [competent] institution (or the psychiatrist) ... must apply to the court in the place where the institution is located for that extension. To the application shall be appended the opinion of the commission of psychiatrists substantiating the need to continue the provision of psychiatric assistance to the person. Thereafter, the application of a compulsory measure of a medical character shall be extended each time for a term which may not exceed 6 months. 3. If the application of compulsory measures of a medical character is terminated because of an improvement in the person’s mental state, a court may transfer him to the care of relatives or guardians under compulsory medical observation.” “1. Compulsory treatment may be ordered by a court irrespective of the sentence given to persons who have committed crimes and suffer from an illness representing a danger to the health of other persons. 2. If the sentence takes the form of a deprivation or limitation of liberty, compulsory medical treatment shall be provided at the place where the sentence is being served. If other types of penalties are imposed, compulsory treatment shall be provided in specialised institutions.” 29. The prolongation or termination of the compulsory medical treatment of internees in mental hospitals, in the period from 11 September 1997 to 4 April 2000, were regulated by the Soviet legislation in force at the material time (the Decree of the Verkhovna Rada of Ukraine of 12 September 1991 “on the temporary operation of certain legislative acts of the USSR in the territory of Ukraine”). Under the Decree of 5 January 1988 of the Presidium of the Supreme Council of the USSR that approved the Regulation “on the conditions and procedure for providing psychiatric medical assistance”, and the Order of 25 March 1988 No. 225 of the Ministry of Health of the USSR which approved a Temporary Instruction “on the procedure for applying compulsory medical treatment to mentally ill persons who have committed socially dangerous acts”, such compulsory patients were, in practice, unable to have any judicial review of the lawfulness of their detention instituted on their own initiative. However, the head of the competent psychiatric hospital was obliged to lodge a request for the prolongation or termination of the compulsory psychiatric treatment within ten days from the date of the examination of the internee by a medical commission recommending that approach (paragraph 31 of the Temporary Instruction). The commission had to review the state of health of the internees every six months (paragraph 33 of the Temporary Instruction). Since the Psychiatric Medical Assistance Act 2000 (paragraph 30 below), the Ukrainian domestic law provides for frequent judicial review of the internees’ continued detention, at least every six months, on the initiative of the responsible medical officers. Extracts of the relevant legislation are reproduced below. 30. The relevant extracts from the provisions of the Psychiatric Medical Assistance Act read as follows: “Measures of compulsory medical treatment shall be applied by a court decision in accordance with the procedure laid down in the Criminal Code, the Code of Criminal Procedure, this law and other laws. In accordance with the decision of the court, the following measures of compulsory medical treatment may be applied: (1) compulsory provision of outpatient psychiatric assistance; (2) hospitalisation in a psychiatric institution under ordinary supervision; (3) hospitalisation in a psychiatric institution under close supervision; (4) hospitalisation in a psychiatric hospital under strict supervision. Continuation, modification or termination of the compulsory medical treatment shall be ordered by the court on the basis of an application by a representative (psychiatrist) of the psychiatric hospital that provides medical treatment to the person. Persons subject to measures of compulsory medical treatment shall be examined by a commission of psychiatrists not less than once every 6 months to determine whether there are grounds for applying to the court to terminate or modify the application of such measures. If there are no grounds for [such] termination or modification ..., the representative of the psychiatric institution ... shall send the court an application, to which shall be appended an opinion of the commission of psychiatrists substantiating the need to continue the application of the compulsory measures... If it is necessary to continue the application of the measures of compulsory medical treatment for more than six months, the representative of the psychiatric institution ... shall apply to the court in the place where the psychiatric institution is located to continue the compulsory measures. The application shall be supplemented with the conclusions on the patient’s examination by the psychiatrists who consider it necessary to continue the application of such measures. Thereafter, the application of such measures may be extended for a term that may not exceed six months. A decision whether to modify or terminate the application of compulsory measures of medical treatment shall be given by the court if there is a change in the state of health of the person which necessitates a change in the applicable measures.” “An assessment of the person’s mental state (including medico-social assessments of any loss of the ability to work, military medical examination, etc.) shall be conducted on the basis of, and in accordance with, the procedure established by legislation and other legal instruments adopted in accordance with legislation.” “Psychiatric examinations in administrative, criminal and civil cases shall be ordered and conducted on the basis and in the manner prescribed by law.” 31. The relevant extracts from the provisions of the Code of Criminal Procedure read as follows: “The compulsory measures of medical treatment, laid down in Article 94 of the Criminal Code, shall be applied to those persons specified in Article 93 of that Code. The compulsory measures of medical treatment shall be applicable only to persons who are socially dangerous.” “Termination or modification of compulsory measures of medical treatment may take place only on the basis of a ruling by the court or a resolution of the judge who applied these measures, or by the court at the place where treatment is provided. Termination or modification of the applicable compulsory measures of medical treatment may take place [regarding] a person who committed a socially dangerous act ... if, as a result of changes in his state of health, the need to apply the ... measures ... has disappeared. Consideration of whether to apply the compulsory measures of medical treatment shall be conducted in accordance with Article 419 of this Code on an application by the chief psychiatrist of the health-protection body that is supervising the relevant medical institution where the person concerned is held. The conclusion of the commission of psychiatrists shall be attached to the application.” “An appeal or cassation appeal or an appellate or cassation petition by the prosecutor (апеляційне чи касаційне подання прокурора) against the ruling or resolution adopted by a judge or a court in the manner laid down by this Chapter, shall be introduced in the ordinary manner.” 32. The relevant extracts from the provisions of Decree no. 397 of the Ministry of Health read as follows: “... 14. If there is a substantial improvement in the state of a person’s mental health, or if he recovers, or if the results of a psychiatric examination reveal doubts as to the existence of the mental illness, the commission of psychiatrists of the relevant institution shall issue conclusions to that effect, that shall be sent by the director of the psychiatric hospital, before the end of the six-month term, to the court that delivered a decision in the case, for consideration in its review in accordance with the applicable legislation. 15. The continuation, modification or termination of the applicable compulsory measures of medical treatment shall be ordered by the court on an application by the representative of the psychiatric hospital ... that provides medical treatment to the person. ... 16. ... the application of the psychiatrist shall be sent to the court, together with the record of psychiatric examinations, not later than ten days from the adoption of the relevant court decision....” 33. The relevant extracts from the instruction of the Ministry of Health Protection provide as follows: “1. The compulsory measures of medical treatment, provided for by legislation shall be applied on the basis of a ruling by a court or a resolution of a judge to persons with mental illnesses who have committed socially dangerous acts (hereinafter – persons), and shall be implemented by the health protection institutions. ... 8. Compulsory measures of medical treatment shall be applied where it is established that a mentally ill person constitutes a danger to society, on the basis of: (1) legal criteria - the fact of committing a socially dangerous act, specified by the criminal legislation; and (2) medical criteria - the presence in a person of a mental illness that precludes the person’s ability to understand his actions and to control them at the time at which the case is considered on its merits. In the absence of one of the above criteria, the imposition of compulsory measures of medical treatment shall not be possible. ... 43. Issues pertaining to the continuation, modification or termination of the application of compulsory measures of medical treatment shall be decided by a court on an application by a representative of the relevant psychiatric institution, to which the substantiated conclusions of the commission of doctors shall be attached. ... 48. The termination or modification of compulsory measures of medical treatment may be ordered on the basis of information as to positive changes in a person’s mental state or the person’s recovery, as reflected in the “Record of Psychiatric Examination”, as a result of which the danger of the person to society has decreased or disappeared, and there is no longer any need to keep and treat him in a psychiatric institution. The final decision shall be taken by the court. The gradual annulment of a compulsory measure by way of a change from a stricter measure to a lighter one shall not be necessary. ...”