CASE OF ZAICHENKO v. UKRAINE (No. 2)
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1956 and lives in Dnipropetrovsk. 6. He instituted numerous sets of proceedings before the domestic courts at various times. 7. In July 2009 the Dnipropetrovsk Regional Administrative Court received several letters from the applicant, which contained extremely rude remarks about the judges involved in his cases (including calling one of the judges “a louse [whose recusal was] warranted by his basic knowledge of parasitology”). 8. On 23 July 2009 the court drew up an administrative offence report in respect of the letters, stating that the applicant was in contempt of court. The case was sent to the Krasnogvardiyskyy District Court of Dnipropetrovsk (“the Krasnogvardiyskyy Court”) for examination. 9. On the same day the Krasnogvardiyskyy Court, sitting in a single-judge formation, held a hearing with the applicant’s participation. According to the minutes of the hearing, the applicant insisted on his vision of the situation as presented in his letters, which he did not consider to be rude. Having studied the case file and heard the applicant, the court ordered an in-patient forensic psychiatric examination of the applicant with a view to establishing whether he could be held legally accountable. The examination in question was to be carried out by the Forensic Psychiatric Examinations Department of the Dnipropetrovsk Regional Psychiatric Hospital (“the psychiatric hospital”). The judge relied on Article 20 of the Code of Administrative Offences and section 21 of the Psychiatric Assistance Act (see paragraphs 60 and 63 below). The ruling stated that it was not amenable to appeal. 10. The applicant was taken by the police from the hearing room to the Krasnogvardiyskyy District police station, where he was held for about three hours. He was then taken to the psychiatric hospital. 11. On the following day, 24 July 2009, the psychiatric hospital informed the Krasnogvardiyskyy Court that it would be unable to conduct a forensic psychiatric examination of the applicant, as ordered by the court, because there were no documents about his collateral history or personality in the case file. The applicant was discharged from the hospital without any documents having been issued concerning his psychiatric condition. 12. On 31 July 2009 the applicant lodged an appeal against the ruling of 23 July 2009. He submitted, in particular, that it had been in breach of his right to the presumption of good mental health and that such a ruling was not mentioned in the list of rulings a court was entitled to deliver under the Code of Administrative Offences. The applicant also referred to the statement contained in the impugned ruling that it was not amenable to appeal as another indication of its unlawfulness and arbitrariness. 13. On 4 August 2009 the President of the Krasnogvardiyskyy Court instructed the police to collect information on the applicant’s personality, which was required for the psychiatric hospital to establish his mental state. The police were instructed, in particular, to collect any documentation relating to psychiatric treatment or drug therapy received by the applicant, as well as character references for him from his relatives, neighbours and colleagues. 14. On the same day two of the applicant’s neighbours wrote quite positive character references about him for the police. 15. On 6 August 2009 the local hospital informed the police that the applicant had no psychiatric medical history and was not under psychiatric monitoring. 16. On 14 August 2009 the Dnipropetrovsk Regional Court of Appeal dismissed the applicant’s appeal against the ruling of 23 July 2009 without examining it on the merits. It noted that the contested ruling concerned a procedural issue and was not amenable to appeal. 17. On 2 September 2009 the Krasnogvardiyskyy Court requested the police to ensure that the applicant attended for his in-patient forensic psychiatric examination. 18. On 14 September 2009 the police took the applicant back to the psychiatric hospital. The circumstances of the apprehension are unclear. 19. On 21 September 2009 a senior expert at the forensic psychiatric examinations department of the psychiatric hospital wrote a letter to the Krasnogvardiyskyy Court in which he noted that some additional documents were required in connection with the applicant’s examination: a character reference from his former employer and detailed information about his mental state from his cousin and ex-wife. Without that information it was considered impossible to carry out his examination. 20. On 2 October 2009 the applicant’s cousin explained the applicant’s character and behaviour, without noting any particularities. He also stated that the applicant had never been married. 21. On 8 October 2009 the board of experts delivered its report, according to which, “given the complexity of the case and lack of clarity of the clinical picture”, it was impossible to establish a diagnosis and to give an expert conclusion regarding the applicant’s mental state. It was therefore recommended that he undergo another examination. 22. On the same date the applicant was discharged from the hospital without having received the expert report. According to him, one of the experts had assured him that he was in good mental health. 23. On 6 November 2009 an official from the psychiatric hospital wrote to the applicant, in reply to his request for a copy of the report of 8 October 2009, stating that he should ask the Krasnogvardiyskyy Court for a copy of the report, as it had been sent there. 24. On the basis of the material in the case file, on 19 November 2009 the Krasnogvardiyskyy Court ordered that the applicant undergo another in-patient forensic psychiatric examination. The applicant attempted to challenge that decision on appeal but was unsuccessful. 25. On 1 December 2009 the psychiatric hospital returned the case file to the Krasnogvardiyskyy Court without having conducted the psychiatric examination in question. Referring to the respective order of the Public Health Ministry, it said that the Kyiv City Centre of Forensic Psychiatric Examinations or the Ukrainian Research Institute of Social and Forensic Psychiatrics should carry out any further forensic psychiatric examinations required in such complex cases. 26. On 18 January 2010 the Krasnogvardiyskyy Court adjourned its hearing with a view to organising the applicant’s further psychiatric examination and its financing. 27. On 20 January 2010 the Deputy President of the Krasnogvardiyskyy Court enquired with the local Territorial Department of the State Judicial Administration whether the latter could pay for the applicant’s further psychiatric examination. The reply sent on 22 January 2010 was that no such payment would be possible until the annual budget had been approved. 28. On 25 January 2010 the court ordered the applicant’s outpatient psychiatric examination to be carried out by the Zaporizhzhya Regional Psychiatric Hospital. 29. Following numerous unsuccessful attempts to ensure the applicant’s attendance, on 16 July 2010 the hospital returned the case file to the Krasnogvardiyskyy Court without having complied with its order. 30. On 9 August 2010 the Krasnogvardiyskyy Court discontinued the administrative offence proceedings against the applicant as time-barred. 31. The applicant appealed against that ruling. He sought the termination of the proceedings on the ground that no administrative offence had been committed. 32. On 17 September 2010 the Dnipropetrovsk Regional Court of Appeal, following a hearing with the applicant’s participation, rejected his appeal by a final ruling. 33. It appears from the case-file materials that on 9 November 2009 the applicant instituted administrative proceedings in the Zhovtnevyy District Court of Dnipropetrovsk (“the Zhovtnevyy Court”) against the psychiatric hospital. He sought that his hospitalisation and confinement in that hospital be declared unlawful and claimed 500,000 Ukrainian hryvnias (UAH, at the time equivalent to about 41,000 euros) in respect of non-pecuniary damage. The applicant has not submitted a copy of that claim to the Court. 34. On 7 June 2011 the Zhovtnevyy Court allowed the applicant’s claim in part. Relying, in particular, on Article 5 of the Convention, the court concluded that the applicant’s admission to hospital on 23 July and 14 September 2009, as well as his psychiatric confinement from 23 to 24 July and from 14 September to 8 October 2009, had been unlawful. More specifically, the court considered that the defendant had acted in breach of the presumption of the good mental health of the applicant. Furthermore, the hospital in question was only entitled to conduct forensic psychiatric examinations of detainees, whereas the applicant had not been in detention at the time of the events. The court also noted that, even though the applicant’s examination had been ordered by a judicial decision, the hospital could have refused to carry it out. The applicant’s claim for compensation in respect of non-pecuniary damage was, however, rejected. 35. On 1 September 2011 the Dnipropetrovsk Administrative Court of Appeal quashed the aforementioned judgment and terminated the proceedings on the ground that the case did not fall to be examined under the administrative procedure. 36. On 11 October 2011 the Higher Administrative Court dismissed the applicant’s appeal on points of law against the ruling of 1 September 2011 as belated. 37. On 14 November 2011 the Higher Administrative Court informed the applicant that it remained open for him to lodge a new appeal on points of law together with a request for renewal of the time-limit. 38. The case file before the Court does not contain copies of the applicant’s appeals on points of law or his requests for renewal of the time-limits for lodging those appeals. 39. It appears from the case file that on 25 January 2010 the applicant brought another administrative claim against the psychiatric hospital before the Zhovtnevyy Court. He requested that the court recognise as unlawful the hospital’s refusal to provide him with a copy of the examination report of 8 October 2009 (see paragraphs 21-23 above). The applicant also claimed UAH 10,000 (at the material time equivalent to about EUR 880) in respect of non-pecuniary damage. The applicant has not provided the Court with a copy of that claim. 40. On 5 July 2011 the Zhovtnevyy Court allowed the applicant’s claim in part. It recognised as unlawful the hospital’s refusal to provide him with a copy of the examination report of 8 October 2009 and awarded him UAH 500 (equivalent of about EUR 40) in respect of non-pecuniary damage. 41. Both the applicant and the defendant appealed. The applicant claimed a higher award. The hospital argued, in particular, that the case did not fall to be examined in the administrative courts. 42. On 17 October 2011 the Dnipropetrovsk Administrative Court of Appeal upheld the ruling of the first-instance court. It noted that the hospital was a public health establishment and that the administrative courts were thus competent to deal with the case. The appellate court also stated that its ruling could be challenged on points of law before the Higher Administrative Court. 43. The applicant has not informed the Court whether he appealed on points of law against the ruling. 44. On 25 January 2010 the applicant brought a civil claim against the psychiatric hospital before the Zhovtnevyy Court, seeking compensation for non-pecuniary damage. He has not submitted a copy of his claim to the Court. 45. On 12 February 2010 the Zhovtnevyy Court returned that claim to the applicant on the ground that it had no territorial jurisdiction to deal with it. It informed the applicant that he should lodge his claim with the Samarskyy District Court of Dnipropetrovsk, the district in which the respondent hospital was located. 46. The applicant appealed against the above ruling. He has not submitted to the Court a copy of his appeal. 47. On 25 May 2010 the Dnipropetrovsk Regional Court of Appeal upheld the ruling of 12 February 2010. 48. The applicant lodged an appeal on points of law. 49. On 22 June 2010 the Supreme Court noted that the applicant had failed to pay the court fees and gave him until 29 July 2010 to rectify that omission. 50. On an unspecified date in July 2010 the applicant requested that the Supreme Court exempt him from the court fees. He has not submitted a copy of his request to the Court. According to a summary of the request in the respective ruling of the Supreme Court (see below), the applicant referred to the Court’s judgment on his earlier case (no. 29875/02, 22 November 2007), in which a violation of Articles 6 and 13 of the Convention, as well as Article 1 of Protocol No. 1, had been found on account of the lengthy non-enforcement of an unrelated final domestic judgment in his favour. 51. On 10 August 2010 the Supreme Court rejected the aforementioned request and dismissed the applicant’s appeals on points of law. 52. On 30 November 2009 the applicant complained to the Krasnogvardiyskyy District Prosecutor’s Office against some judicial officials involved in his cases and against the police officers involved in his taking him to hospital for psychiatric examination. The applicant did not provide the Court with a copy of the complaint. 53. On 29 December 2009 the prosecutor refused to open a criminal case in respect of the applicant’s complaint. The case file does not contain a copy of that ruling. 54. On 23 March 2010 the Dnipropetrvosk Regional Prosecutor’s Office quashed the prosecutor’s refusal and ordered an additional investigation. 55. On 9 April 2010 the Krasnogvardiyskyy Prosecutor’s Office once again refused to open a criminal investigation into the matter. It was noted in its ruling, in particular, that the applicant had disregarded numerous written summonses and telephone calls by the investigator. 56. The applicant alleged that while he had been in hospital, some money had been stolen from his flat. When he had returned home he had allegedly discovered a briefcase there containing personal documents belonging to a person unknown to him. The applicant complained to the police. 57. On 16 December 2009 the police opened a criminal case in respect of the alleged theft of the applicant’s property. 58. There is no further information on that investigation in the case file.