CASE OF AKOPYAN v. UKRAINE
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
4. The applicant was born in 1953 and lives in Kharkiv. 5. In 1985 she got married and gave birth to her first daughter. In 1987 she gave birth to her second daughter. 6. The applicant’s relationship with her husband deteriorated and in August 1994 she and her daughters moved into a house rented by her husband in the village of Pisochyn. Her husband visited his daughters from time to time. 7. In late November or the beginning of December 1994 the applicant’s husband took the children back to Kharkiv. The applicant was left alone. 8. On 17 December 1994 the applicant was admitted to Kharkiv Regional Psychiatric Hospital (“the psychiatric hospital”), a State-run institution. According to the medical records, the applicant was brought by ambulance since she was in a reactive state and showed signs of mental disorder. 9. Soon after her admission to the psychiatric hospital, the applicant was diagnosed as suffering from paranoid schizophrenia and given treatment. 10. Between January 1995 and November 1997 the applicant unsuccessfully and repeatedly asked to be discharged from the psychiatric hospital and lodged complaints about her internment. During that time the applicant was provided with neuroleptic treatment. 11. On 7 November 1997 the applicant escaped from the psychiatric hospital and found shelter with some acquaintances. By that time she was divorced. 12. On 23 December 1997, at the applicant’s request, she was admitted to Kharkiv Municipal Psychiatric Hospital for in-patient psychiatric assessment. According to the medical records, during the applicant’s stay in the municipal hospital she did not take any medicine; discussions with psychiatrists were the only treatment. 13. On 4 February 1998 the applicant was discharged from that hospital with the conclusion that her mental health was normal. 14. Subsequently, the applicant re-established contact with her children and started living with them. 15. Following the applicant’s complaint, on 17 February 1998 the Kharkiv Regional Prosecutor’s Office instituted criminal proceedings against P., the applicant’s doctor, on suspicion of unlawful placement of the applicant in a psychiatric hospital, an offence under Article 123-2 of the Criminal Code of 1960. 16. On 21 July 1998 an expert panel conducted a forensic psychiatric examination and found that the applicant was not suffering from any mental illness. It further concluded that the applicant’s admission to the psychiatric hospital on 17 December 1994 might have been necessitated by her state of health; however, during her stay in the psychiatric hospital she had been wrongly diagnosed, she had not been assessed comprehensively, and she had not been provided with correct medical treatment from the outset, in December 1994. 17. On 9 October 1998 the expert panel additionally concluded that the applicant could have been discharged from the psychiatric hospital on 17 January 1995 on the basis of her discharge request, since her mental state had not suggested that she had posed a danger to herself or to the others. 18. On 24 February 1999 the applicant was recognised as a civil claimant within the framework of the criminal proceedings. 19. On 25 February 1999 the charges against P. were classified as negligence in the performance of official duties which resulted in grave consequences for the applicant. 20. On 9 April 1999 P. was committed to stand trial in the Kharkivskyy District Court. 21. On 20 June 2000 the case file was destroyed in a fire at the court house. 22. On 24 November 2000 the court remitted the case to the prosecutor’s office for supplementary investigation. 23. On 8 June 2001 the case was referred back to the court. 24. Between June 2001 and June 2002 some hearings were scheduled, but for various reasons none of them took place. 25. On 26 June 2002, in response to a complaint from the applicant, the Kharkiv Regional Department of Justice asked the President of the Kharkivskyy District Court to expedite the examination of the case, considering it to be unreasonably protracted. 26. On 24 February 2003 the Kharkivskyy District Court ordered the investigating authorities to carry out a further psychiatric assessment of the applicant. 27. On 14 April 2004 the investigating authorities ordered a psychiatric assessment of the applicant. 28. On 12 January 2005 the case was referred back to the court without this assessment having been carried out. 29. On 27 April 2005 the applicant, having regard to the fact that the case-file had been destroyed by fire in 2000, lodged another civil claim with the Kharkivskyy District Court seeking damages from P. and the psychiatric hospital for her unjustified psychiatric hospitalisation. 30. On 3 June 2005, at P.’s request, the Kharkivskyy District Court discontinued the criminal proceedings as time-barred. 31. The applicant appealed, alleging, in particular, that the impugned decision had been unlawful and that the examination of the case had been unreasonably protracted by the authorities. She further complained that the trial court had not examined her civil claim. 32. On 22 December 2005 the Kharkiv Regional Court of Appeal upheld the court decision of 3 June 2005. 33. On the same date the Court of Appeal delivered a separate ruling, drawing the attention of the Regional Council of Judges to the omissions by the Kharkivskyy District Court which had resulted in the protracted examination of the applicant’s case. It noted, in particular, that between 8 June 2001 and 3 June 2005 there had been an unjustifiable number of adjournments of the hearings and that there had been an unjustifiable two-year period of inactivity pending a forensic assessment which was never carried out. 34. The applicant appealed on points of law against the decision to discontinue the criminal proceedings, raising the same arguments as in her appeal. She asserted that the courts had failed to determine her civil claim. 35. On 13 May 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law. 36. In March 2006 the applicant instituted separate civil proceedings against P. and the psychiatric hospital, claiming 10,000 Ukrainian hryvnias (UAH) from P. and UAH 90,000 from the psychiatric hospital by way of compensation for the damage sustained as a result of her unjustified hospitalisation. She alleged, in particular, that the three-year stay in the psychiatric hospital had caused her severe mental and physical suffering. She argued that she had constantly felt debased and treated like a deficient human being, whose opinion was of no value. In addition, she had been subjected to involuntary medical interventions. Furthermore, the applicant’s private and family life had been ruined. 37. On 31 January 2007 the Chervonozavodsky District Court of Kharkiv found that on 17 December 1994 the applicant had been admitted to hospital lawfully given the signs of mental disorder. It further found that during her stay in hospital, the applicant’s medical doctor, P., had been at fault for breaching a number of legal provisions governing psychiatric assistance. The court established that the requisite procedures for involuntary hospitalisation had not been followed; by contrast, if the applicant had been hospitalised as voluntarily patient, she ought to have been discharged on the basis of her request (see paragraphs 48-50 below). The court also noted that the applicant had repeatedly asked to be discharged and concluded that she could have been discharged as early as 17 January 1995 on the basis of such a request. The court found that as a result of those breaches of domestic law, the applicant had been wrongly diagnosed and mistakenly treated for a considerable time in the psychiatric hospital. 38. The court further noted that during her wrongful stay in the psychiatric hospital the applicant had been unable to freely exercise her rights or manage her life. It therefore concluded that the applicant had sustained non-pecuniary damage which should be compensated by the psychiatric hospital employing P. In reaching that conclusion, the court also referred to the criminal case against P. and the evidence collected by the investigating authorities in that case. 39. The court awarded the applicant UAH 7,000 in respect of non-pecuniary damage noting that, in determining that amount, it had taken into account the length of the applicant’s unjustified stay in the psychiatric hospital, the nature and the scope of physical and mental suffering, the enforced changes in her lifestyle, and the restrictions imposed on her rights as a citizen to freely arrange her life and take care of her own health. 40. The applicant appealed, seeking a higher amount of damages from both defendants. 41. On 19 April 2007 the Kharkiv Regional Court of Appeal upheld the judgment of 31 January 2007. 42. The applicant did not lodge a further appeal before the Supreme Court.