CASE OF M. v. UKRAINE
Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1964 and lives in Odessa. 6. In the period between 10 September and 13 October 1999 the applicant had in-patient treatment in the Odessa Region Psychiatric Hospital (“the hospital”) which is a State-run institution. In 2000 she was registered with the Odessa Region Psychoneurological Dispensary (“the psychoneurological dispensary”) as a person with potential mental problems. 7. On 24 September 2003 the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in-patient treatment for a serious mental disorder. However, the applicant ignored the referral and stayed at home with her mother. A report of the applicant’s assessment was provided to the hospital. 8. In the next few days the applicant’s condition worsened and her behaviour became aggressive towards her mother and neighbours. The mother and the housing maintenance authority therefore complained to the hospital about the applicant’s conduct. 9. In the morning of 28 September 2003 the applicant was taken to the hospital by ambulance and was assessed by a psychiatrist of the hospital, who concluded that she needed to be hospitalised for a serious mental disorder. The applicant was therefore kept in the hospital. 10. On 29 September 2003 a panel of three different psychiatrists of the hospital assessed the applicant once again and issued a report stating that she was a danger to society due to her serious mental disorder, which required in-patient psychiatric treatment. The psychiatrists specified in the report that the applicant’s manner of communication with her mother and neighbours was aggressive; she threatened them, threw glass jars, bottles and vases off the balcony, which was on the fifth floor, played loud music at night and damaged property in the apartment. 11. The hospital therefore lodged an application with a local court, seeking authorisation for compulsory admission to hospital in accordance with sections 14 and 16 of the Psychiatric Assistance Act. 12. On 30 September 2003 a judge at the local court conducted an onsite hearing of the applicant’s case in the administration wing of the hospital. The hearing was held in the presence of a prosecutor and one of the doctors who had assessed the applicant earlier. Following the hearing the court allowed the application and held as follows: “... having examined the case file and heard a representative of [the hospital] and a prosecutor, the court considers that the application in question should be allowed. It appears from the case file that the patient was taken from home to [the hospital] by the ambulance after showing signs of mental illness which suggested that she was a danger to society. A panel of psychiatrists [of the hospital] has concluded that the patient should have in-patient treatment. Relying on the Psychiatric Assistance Act and Article 202 of the Code of Civil Procedure, the court has decided that [M.] should be compulsorily hospitalised to undergo medical treatment. The decision shall not be subject to appeal. ...” 13. On 19 December 2003 the compulsory treatment was completed and the applicant was discharged from the hospital. 14. According to the applicant, the sanitary and hygienic conditions in which she was kept in the hospital were unsatisfactory. 15. On 15 July 2004 the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in-patient treatment for a serious mental disorder. The applicant refused the proposed treatment and stayed at home. A report of the assessment of the applicant was sent to the hospital. 16. After the assessment, the applicant’s condition worsened in a similar way as before the second hospitalisation and the neighbours and the housing maintenance authority complained to the hospital about her behaviour. 17. In the morning of 19 July 2004 the applicant was taken to the hospital by ambulance and assessed by a psychiatrist there, who concluded that she was suffering from a mental disorder and needed to be hospitalised. The applicant was therefore kept in the hospital. 18. On 20 July 2004 a panel of three psychiatrists of the hospital, including the psychiatrist who had assessed the applicant the previous day, issued a report stating that the applicant was a danger to society due to her serious mental disorder and that she needed in-patient treatment. The hospital therefore applied to the court for an order for compulsory admission. 19. On 21 July 2004 the local court allowed the application, following an on-site hearing held in the administration wing of the hospital. The hearing was attended by the prosecutor and one of the psychiatrists who had previously assessed the applicant. The court held as follows: “... having examined the case file and heard a representative of [the hospital] and a prosecutor, the court considers that the application in question should be allowed. It appears from the case file that on 19 July 2004 the patient was taken from home to [the hospital] by ambulance after showing signs of a serious mental disorder. For this reason a panel of psychiatrists found that the applicant was a danger to society and should be compulsorily admitted to [the hospital] for in-patient treatment. The representative of [the hospital] has submitted that the patient should be admitted to the hospital and treated for a serious mental disorder. Having regard to all the circumstances, the court comes to the conclusion that the patient’s compulsory hospitalisation is required. Relying on the Psychiatric Assistance Act and Article 202 of the Code of Civil Procedure, the court has decided that [M.] should be compulsorily hospitalised to undergo medical treatment. The decision shall not be subject to appeal. ...” 20. On 8 September 2004 the applicant was discharged from the hospital on completion of the treatment. 21. On 13 February 2006 the applicant was assessed by a doctor at the psychoneurological dispensary, who concluded that the applicant’s mental disorder had recurred. 22. On 17 February 2006 the applicant made a written application for admission to the hospital for treatment. The application was signed only by the applicant. According to the applicant, she had been compelled to do so under the threat of never being discharged from the hospital. She had been in poor health, mentally and physically, that day. 23. Subsequently, the application was marked and signed by a member of hospital staff, designating the department of the hospital to which the applicant was to be assigned. 24. According to the applicant, the regime under which she was kept in the hospital was strict, as she had to stay in the hospital for the whole day; her movements within the premises of the hospital were restricted; and her personal belongings were limited in number and inventoried. 25. On 19 April 2006 the applicant was discharged from the hospital. 26. On an unspecified date the applicant instituted civil proceedings in the Suvorovskyy District Court of Odessa against Odessa Regional Oncological Hospital, seeking reinstatement in the position of doctor and payment of salary arrears. 27. On 9 February 2005 the court rejected her claim as unsubstantiated. On 15 June 2005 the Odessa Regional Court of Appeal upheld that judgment. 28. On the expiration of the time-limit the applicant lodged an appeal on points of law with the Supreme Court against the judgment of 9 February 2005. The applicant did not request the Supreme Court to extend the timelimit. 29. On 28 October 2005 the Supreme Court declared the applicant’s appeal inadmissible as submitted out of time. 30. The relevant provisions of the Constitution 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.” 31. Article 202 of the Code of Civil Procedure of 18 July 1963 (in force until 1 September 2005) provided that a court decision had to be lawful and substantiated. The courts had to substantiate their decision with the pieces of evidence they had examined during the court hearing. 32. Article 248-1 of that Code provided that that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court. 33. The Code of Civil Procedure of 18 March 2004 provides in Section XI, “Final and transitional provisions”, as follows: “1. This Code shall enter into force on 1 September 2005 ... 3. [The following normative acts] shall be repealed with the entry into force of this Code: The Code of Civil Procedure of 18 July 1963 ...” 34. The relevant provisions of the Code read as follows: “1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ... 2. Any decisions, actions or inaction on the part of public authorities may be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...” “1. The terms listed below shall have the following meaning: 1) the administrative jurisdiction case (hereinafter ‘the administrative case’) – a public-law dispute, referred to an administrative court, in which one of the parties shall be a body of the executive power, local self-governance, its official or the other subject empowered to perform public administrative functions on the basis of legalisation, including those aimed at the exercise of delegated powers; ...” “1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by the subjects of public authority and [legal relationships arising] in the course of public formation of a subject of public authority by way of election or referendum. ...” 35. The relevant extracts from the Act read as follows: “A person shall be hospitalised in a mental health facility voluntarily, either at his or her request or with his or her conscious agreement. ... Consent to hospitalisation shall be included in the medical documentation following the signature of the person concerned or his or her legal representative and a psychiatrist.” “A person who is suffering from a mental disorder may be hospitalised in a mental health facility without his or her conscious agreement or without the agreement of his or her legal representative if the medical examination or treatment of that person is possible only within the mental health facility and if, as a result of the serious mental disorder, such a person: commits or expresses real intentions to commit acts which are directly dangerous to this person or to others; or is unable to meet his or her vital needs at the basic level.” “A person who has been hospitalised in a mental health facility upon a decision of a psychiatrist on the grounds provided for in section 14 of this Act, shall be assessed, within twenty-four hours, by a panel of psychiatrists of the mental health facility to determine whether the hospitalisation is required. If the hospitalisation is found to be unnecessary and the person concerned does not wish to stay in the mental health facility, he or she shall be immediately discharged. If compulsory hospitalisation of the person is required, a representative of the mental health facility in which the person is being kept shall apply, within twenty-four hours, to the court ... for compulsory hospitalisation of the person on the grounds provided for in section 14 of this Act. ...” A person shall be compulsorily retained in a mental health facility exclusively for the period when the grounds justifying his or her hospitalisation exist. A person, who has been compulsorily hospitalised in a mental health facility shall be assessed by a panel of psychiatrists at least once a month to determine whether the person should remain in hospital or be discharged. If compulsory hospitalisation is required for more than six months, a representative of the mental health facility shall apply to the court ... seeking an extension of the compulsory hospitalisation. A report of a panel of psychiatrists giving grounds for an extension of the hospitalisation shall be enclosed with the application... The person’s hospitalisation may subsequently be extended, on each occasion for a period which does not exceed six months. A person subjected to compulsory hospitalisation or his or her legal representative shall be entitled to lodge requests with a court for termination of the compulsory hospitalisation every three months, starting from the date of the court decision extending the hospitalisation.” “A person shall be discharged from a mental health facility when the assessment or expert examination of his or her mental state has been completed, or when he or she has recovered from the illness, or when his or her mental state has changed to the extent that any further in-patient treatment is no longer required. A person who was voluntarily admitted shall be discharged upon written application by that person or his or her legal representative or upon a decision of a psychiatrist. The discharge of a person who was voluntarily hospitalised may be refused if a panel of psychiatrists finds grounds for compulsory hospitalisation of the person as provided for in section 14 of this Act. In this event procedures for compulsory hospitalisation, continuation of the hospitalisation and discharge shall be conducted as provided for in sections 16, 17 and 22 (paragraphs 2 and 3) of this Act and paragraph 3 of this section. A person subjected to compulsory hospitalisation shall be discharged upon a decision of a panel of psychiatrists or a court decision refusing extension of the hospitalisation. ...” “... An application by a representative of a mental health facility for compulsory hospitalisation of a patient shall be examined by a court ... within twenty-four hours of receipt of the application. ... Cases concerning compulsory provision of psychiatric assistance shall be examined in the presence of the person concerned. A prosecutor, a legal representative of the person concerned and either a psychiatrist or a representative of the mental health facility shall participate in the hearing.” 36. The relevant provisions of the Act provide: “The public prosecutor shall examine applications and complaints of violation of rights of individuals and legal entities, except for those complaints which are within the competence of a court. ... A decision taken by a public prosecutor can be appealed against before a higher public prosecutor or a court.” 37. The relevant extracts of this international instrument provide as follows: 1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle. 2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on: (a) The diagnostic assessment; (b) The purpose, method, likely duration and expected benefit of the proposed treatment; (c) Alternative modes of treatment, including those less intrusive; (d) Possible pain or discomfort, risks and side-effects of the proposed treatment. 3. A patient may request the presence of a person or persons of the patient’s choosing during the procedure for granting consent. 4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle. The consequences of refusing or stopping treatment must be explained to the patient. ... ... 3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in principle 16 below, apply, and he or she shall be informed of that right. 1. A person may be admitted involuntarily to a mental health facility as a patient or, having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with principle 4 above, that that person has a mental illness and considers: (a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or (b) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative. In the case referred to in subparagraph (b), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs. 2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient’s personal representative, if any, and, unless the patient objects, to the patient’s family. ... 1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account. 2. The initial review of the review body, as required by paragraph 2 of principle 16 above, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law. 3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law. 4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law. 5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of principle 16 above are still satisfied, and, if not, the patient shall be discharged as an involuntary patient. 6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient. 7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility. ...” 38. The relevant extracts of the Recommendation provide as follows: 1. A person may be subject to involuntary placement only if all the following conditions are met: i. the person has a mental disorder; ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons; iii. the placement includes a therapeutic purpose; iv. no less restrictive means of providing appropriate care are available; v. the opinion of the person concerned has been taken into consideration. ... Decision 1. The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should: i. take into account the opinion of the person concerned; ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted. ... 3. Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article 25. ... 1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right: i. to appeal against a decision; ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; iii. to be heard in person or through a personal advocate or representative at such reviews or appeals. 2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals. 3. Member states should consider providing the person with a lawyer for all such proceedings before a court. Where the person cannot act for him or herself, the person should have the right to a lawyer and, according to national law, to free legal aid. The lawyer should have access to all the materials, and have the right to challenge the evidence, before the court. ... 7. A procedure to appeal the court’s decision should be provided. ...” 39. The CPT standards (document no. CPT/Inf/E (2002) 1-Rev. 2006, page 40) provide, in so far as relevant, as follows: “V. Involuntary placement in psychiatric establishments ... 41. Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. Of course, consent to treatment can only be qualified as free and informed if it is based on full, accurate and comprehensible information about the patient’s condition and the treatment proposed. ... Consequently, all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them. Relevant information (results, etc.) should also be provided following treatment. ... 52. The procedure by which involuntary placement is decided should offer guarantees of independence and impartiality as well as of objective medical expertise. ... 55. The CPT also attaches considerable importance to psychiatric establishments being visited on a regular basis by an independent outside body (eg. a judge or supervisory committee) which is responsible for the inspection of patients’ care. This body should be authorised, in particular, to talk privately with patients, receive directly any complaints which they might have and make any necessary recommendations. ... 56. Involuntary placement in a psychiatric establishment should cease as soon as it is no longer required by the patient’s mental state. Consequently, the need for such a placement should be reviewed at regular intervals. ...” 40. The relevant excerpts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 24 November to 6 December 2002 (CPT/Inf (2002) 19) read as follows: “D. Mental health establishments ... 2. Chernivtsi Regional Clinical Psychiatric Hospital f. safeguards offered to psychiatric patients ... 166. A few patients were officially admitted on a non-voluntary basis under a civil committal procedure. Nevertheless, as previously mentioned (cf. paragraph 146 above), a large number of the 510 adult patients in the secure wards had not consented to their admission to a psychiatric hospital and could not leave the hospital of their own free will. In practice, they did not have the slightest opportunity to benefit from the safeguards provided by the 2000 Law on Psychiatric Care, in particular the opportunity to contest their admission to hospital. In many cases, the files contained only a request for treatment made by a relative. Worse still, an examination of the patients’ files revealed that some of them had been admitted to hospital without their consent simply on the basis of a letter from a public prosecutor or at the request of the Militia, without an involuntary committal request having been submitted to the competent court. By letter of 15 April 2003, the Ukrainian authorities informed the CPT that instructions had been issued to put into practice at Chernivtsi the 2000 Law on Psychiatric Care. The CPT wishes to receive confirmation that this is currently the case. In addition, it recommends that the Ukrainian authorities immediately take all the necessary steps to ensure that the sections of the 2000 Law on Psychiatric Care concerning involuntary admission to hospital are scrupulously observed in all Ukrainian hospitals which admit non-voluntary patients. ...”