CASE OF FYODOROV AND FYODOROVA v. UKRAINE
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 8;Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicants, husband and wife, were born in 1948 and 1960 respectively and live in Takhtaulove. 6. In June 2000 the first applicant had a fight with the Ls, his neighbours. As a result, Mrs L. sustained bodily injuries, for which the first applicant was eventually convicted on 20 January 2005 and sentenced to suspended restriction of liberty. The applicants were also involved with the Ls in several civil proceedings concerning land use and other issues. 7. On 10 June 2001 Mrs L. addressed a letter to V. T., the Chief Psychiatrist of the Poltava District Clinical Hospital (“the Poltava Hospital”), alleging that the first applicant suffered from a serious mental condition and needed psychiatric treatment. She noted that he had been harassing her family for some nine years. In particular, he had been calling them names, cursing, eavesdropping, photographing their activities, recording their conversations with him, threatening to throw them out of their house and put Mr L. in prison. In June 2000 the first applicant had also hit Mrs L. in the course of an argument, inflicting serious injuries on her, which were the subject of pending criminal proceedings. She further noted that he had been in conflict with a number of other villagers. In particular, he was suspicious of everybody’s conduct; he photographed various allegedly “unlawful” acts; he threatened, cursed and argued with the villagers; he wrote various complaints to the authorities; he punctured the tyres of the village mayor’s car, stole crops and hay and engaged in fights. Finally, she alleged that he was prone to sudden fits of anger, beat his wife and had killed a dog. Lastly, he owned two rifles and was generally dangerous. 8. On 15 June 2001 M. F., a hospital psychiatrist, arrived in the applicants’ yard in an ambulance car and started questioning the first applicant about his relations with the Ls, in particular about their complaints that he had taken photographs of them without their consent. According to the first applicant, this conversation lasted about five minutes, after which he attempted to photograph the psychiatrist, the driver, and the ambulance car. In response, M. F. ran from the yard, shouting “this is abnormal”. 9. On 18 June 2001 V. T. informed the Poltava District Court that the first applicant was suffering from chronic delusional disorder (хронічний маячний розлад) and needed to undergo a forensic expert assessment with a view to receiving in-patient treatment. 10. On 30 June 2001 V. V., the Chief of the Regional Health Department, dismissed a complaint lodged by the first applicant, in which he alleged that the examination had been unlawful and the diagnosis incorrect. 11. In August 2001 the first applicant instituted court proceedings against M. F., V. T and V. V., complaining that he had been subjected to an unlawful examination and diagnosis in violation of the applicable law and medical guidelines. 12. On 6 February 2002 the Oktyabrsky District Court of Poltava allowed the first applicant’s claim and ordered the medical authorities to remove the diagnosis from his record. It observed, in particular, that complaints by the Ls could not be deemed a sufficient basis for the examination of the first applicant without his consent. It also found that the examination had been carried out in violation of the applicable procedural standards. In particular, M. F. had not duly informed the applicant of the reason for his visit and made his conclusions after an extremely brief informal conversation. 13. M. F. appealed against this judgment. 14. At 10 a.m. on 30 April 2002 the Poltava Regional Court of Appeal opened the hearing on M. F.’s appeal. The court noted in the hearing minutes that the first applicant had requested that the case be heard in his absence and that there was no reason not to grant this request. It had then heard submissions from M. F., who had presented his version of events and noted, in particular, that his conversation with the first applicant had lasted at least twenty or twenty-five minutes. The court also allowed M. F.’s request to add an unspecified certificate to the case-file materials. The floor was then given to a representative of the Regional Health Department, who maintained that M. F. had acted in accordance with the provisions of section 11 of the Law “On Psychiatric Assistance”, which lays down the circumstances under which a patient may be psychiatrically examined without his or her consent. In particular, there had been a serious cause for concern about the first applicant’s state of health, as at the material time criminal proceedings were pending against him on charges of assault against Mrs L. The court then heard the manager of the local polyclinics, who alleged that it had not been possible at the material time to subject the first applicant to a more extensive in-patient assessment. The hearing ended at 11:30 a.m. 15. On the same day the Court quashed the judgment of 6 February 2002 and dismissed the first applicant’s claim. By way of reasoning, the court noted the following: “The conclusion of the first-instance court that ... M. F. infringed the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance” in examining V. G. Fyodorov is not supported by the evidence contained in the case file. The first-instance court did not give sufficient consideration to explanations by the witness Fyodorova T.S. – the plaintiff’s wife, who maintained at the court hearing that M. F., upon exiting the ambulance car, had introduced himself and begun asking questions. The witness also indicated that M. F. had visited them for more than ten minutes. The court did not give sufficient weight to the testimonies by Fyodorov V. G. himself ... that M. F. had spoken to him concerning the photographing of the neighbour, Mrs L., and repeated the latter’s words concerning this matter. Therefore, the conclusion of the court that M. F. had not introduced himself before the examination of Fyodorov V. G. and had not informed him of the grounds and purpose of his examination does not follow from the facts of the case. The court erred in concluding that M. F. examined Fyodorov V. G. without his consent and any request by the latter for such an examination. The Panel of Judges considers that the written application by Mrs L. gave sufficient grounds for a psychiatric doctor to conduct a psychiatric examination in accordance with the requirements of paragraph 3 of section 11 of the Law of Ukraine “On Psychiatric Assistance”. Without substantiation, the first-instance court declared as wrongful the diagnosis ... concerning the state of Fyodorov’s V. G.’s health, since at the time of consideration of the case the case file contained no evidence disproving that diagnosis. The Panel of Judges considers that the actions of psychiatric doctor M. F., Chief Psychiatrist ... V. T ... were compliant with the requirements of section 11 of the Law of Ukraine “On Psychiatric Assistance”. The judgment of the first-instance court shall be quashed as the court’ ...” 16. The first applicant sought leave to appeal in cassation. He maintained, in particular, that the Court of Appeal had unlawfully held a hearing in his and his lawyer’s absence, having failed to notify either of them of the date of the hearing. He noted that the case file contained an unsigned request to hold a hearing in his absence. However, the first applicant contended that this unsigned application was forged and that even if it were not, no application to hear the case in the absence of his lawyer had been submitted. The first applicant further contended that the judgment lacked reasoning. He noted, in particular, that, according to the applicable law, an individual could be subjected to a psychiatric assessment either (a) upon his (or his representative’s) consent or (b) following a court decision or (c) in the event of urgent necessity. As the first applicant’s examination had not been based either on his consent or on a court decision, the court of appeal should have substantiated the finding that there had been an urgent need for it. Lastly, the first applicant complained that the court of appeal had not addressed his arguments concerning a violation of the applicable medical guidelines for diagnosing chronic delusional disorder, which presupposed extensive observation of a patient. In the first applicant’s opinion, having based the conclusion concerning the correctness of the diagnosis on the lack of any evidence to the contrary, the court of appeal had infringed the legal provisions concerning the presumption of mental health. 17. On 23 May 2003 the Supreme Court dismissed the first applicant’s request for leave to appeal in cassation, generally endorsing the findings of the court of appeal. 18. In May 2003 V. T. notified the first applicant’s lawyer that the first applicant’s name was not on the register of individuals suffering from mental disorders. On 9 September 2003 the Psychiatrists’ Association informed the first applicant that, having studied his medical documents, they found no basis to consider that he suffered from any disorders. On 2 February 2004 the applicant was also examined at the Kyiv Institute of Psychiatry and found not to be manifesting any signs of disorder and not to require treatment. Subsequently, referring to these documents, the first applicant unsuccessfully attempted to obtain an extraordinary review of the judgment of 30 April 2002. 19. In January 2003 the Poltava Hospital received several complaints from the applicants’ fellow villagers requesting that he be admitted to a psychiatric facility on account of various incidents of hostile behaviour towards them. 20. Referring to these complaints, V. T. requested the Poltava District Court to authorise the first applicant’s confinement to the psychiatric clinic for assessment and, if necessary, for treatment. On 20 February 2003 the court discontinued the proceedings, having advised V. T. that this matter was within the discretion of the supervising psychiatrist. 21. On 4 March 2003 V. T. addressed a letter to the district police requesting assistance in the first applicant’s hospitalisation in view of the danger he posed to others. In his letter he noted, in particular that “at the present moment Fyodorov V. G. is a danger to society. In connection with his mental disorders, during hospitalisation Fyodorov V. G. may use a hunting weapon in self-defence.” 22. According to the first applicant, on 5 March 2003 V. T. signed a certificate testifying his psychiatric fitness for the purposes of extending his hunting rifle permit. 23. On 6 March 2003 M. F. and two police officers arrived at the applicants’ home in the ambulance car and discussed the procedures concerning the extension of the permit. According to the first applicant, they invited him to follow them to the police station to complete the necessary formalities; however, he refused, assuring them that he would do so later. 24. At about 10:00 a.m. on 7 March 2003 the applicants went to the police station and requested instructions concerning the formalities to be completed for the rifle permit extension. 25. At about 12:00 p.m. M. F. arrived in the ambulance car and announced to the applicants that the first applicant was to be hospitalised. Notwithstanding the applicants’ protests, four police officers escorted the first applicant to the ambulance car and took him to the Poltava Regional Psychiatric Clinic, where he underwent two psychiatric assessments on the same day. 26. On 8 March 2003 the first applicant was released from the Regional Clinic as he was not considered to be in need of in-patient treatment. Subsequently (on 17 March 2003) the first applicant’s lawyer was informed by N. N., the Chief Psychiatrist of the Regional Clinic, that the first applicant’s diagnosis of chronic delusional disorder, which had served as the basis for his hospitalisation, had not been confirmed. However, he had been found to be suffering from a “pathological behavioural personality disorder of the unstable epileptic type, in the sub-compensation stage” (патохарактерологічний розлад особистості по епілептоїднонестійкому типу в стадії субкомпенсації). In September 2003 the first applicant was informed by the Psychiatrists’ Association that the stated diagnosis did not feature in the international classification table. On 11 October 2007 the first applicant underwent a psychiatric assessment in the Kyiv Centre for Forensic Assessment. The panel of experts concluded that neither on 15 June 2001, nor on 7 March 2003 or at the time of the assessment had the first applicant suffered from any psychiatric disorders. 27. On 11 March 2003 the applicants complained to the Poltava District Prosecutors’ Office that they had been ill-treated by M. F. and the police officers on 7 March 2003. They noted, in particular, that the decision to hospitalise the first applicant had been arbitrary and taken in excess of V. T.’s power. They further complained that the police had applied excessive force in enforcing this decision, which had caused their injuries. The use of force had been excessive because the first applicant’s protests were limited to a request to contact his lawyer and a demand to see the chief of the police department, which measures were legitimate in the context of the situation. In response he was restrained by four police officers, who also punched and kicked him, and dragged him down the stairs and into the ambulance car. The second applicant attempted to intervene, but in vain. According to her, the police officers punched her hands, pushed her in the chest and pressed her against the door, keeping her away from the first applicant. 28. On the same day the applicants were examined by medical experts, who found that the first applicant had contusions of the soft head tissue, face, left leg and neck, cumulatively qualified as “light bodily injuries”, which could have been sustained on the date and under the circumstances described by him. The second applicant had contusions of the right hand, left arm, left knee and right leg, caused by blunt objects, possibly on the date and under the circumstances described by her. The second applicant’s injuries were also cumulatively qualified as “light”. 29. On 16 April 2003 the Poltava District Prosecutor’s Office refused to institute criminal proceedings, having found that in restraining the first applicant, who had objected to the lawful actions of M. F. and the police officers’ order to get into the ambulance car, the police officers had not acted in excess of the authority conferred on them by applicable law. 30. On 27 June 2003 the first applicant was X-rayed and found to have a fractured jaw. 31. In July 2003 the first applicant underwent an additional assessment by medical experts, who found that the fractured jaw could have been sustained during his placement in the ambulance car in March 2003, as he had described, and re-qualified the injuries sustained during this period as of “medium severity”. Based on these findings, the applicants again requested the initiation of criminal proceedings against M. F. and the police officers. 32. On numerous occasions (14 August, 11 November and 24 December 2003, 25 May 2004 and 4 March 2005) the District Prosecutor’s Office refused to institute criminal proceedings for want of evidence of criminal conduct on the part of the officers and M. F. All those decisions were subsequently annulled either by the supervising prosecuting authorities or by the Oktyabrsky District Court with reference to the insufficiency of the investigations and various procedural omissions. 33. On 18 November 2003 the Deputy Poltava Regional Prosecutor wrote to the Poltava District Prosecutor, reprimanding him for having failed to organise a thorough examination of the applicants’ complaints. He noted, in particular, that the District Prosecutor had failed to study the case-file materials and provide written instructions as to the inquiry; that eyewitnesses of the incident had not been identified and questioned; and that the measures taken had been perfunctory. The Deputy Regional Prosecutor also gave various instructions as to the further investigation of the case. 34. On 28 July 2005 the Poltava Regional Prosecutors’ Office initiated criminal proceedings to investigate the circumstances in which the first applicant had sustained injuries. 35. On 18 October 2005 the Oktyabrsky District Court of Poltava also instituted criminal proceedings concerning the second applicant’s injuries. 36. On numerous occasions (in particular, 25 December 2005, 10 June 2006 and 29 December 2007) the above criminal proceedings were discontinued for want of evidence of criminal actions on behalf of M. F. and the police officers. Those decisions were set aside by the superior prosecutorial or judicial authorities with reference to the inadequacy of the measures taken to investigate the applicants’ complaints. 37. On 22 May 2009 the prosecutors’ office discontinued the criminal proceedings. It noted, in particular, that the Poltava District Hospital had received numerous complaints from the applicants’ neighbours concerning the first applicant’s aggressive behaviour. In particular, one such complaint, signed by five villagers, had been received in February 2003. Having obtained a ruling from the local court that the decision to hospitalise the first applicant could be taken by the supervising psychiatrist, V. T. had asked the police for assistance in ensuring the hospitalisation. Neither M. F. nor the policemen had exceeded the authority vested in them by applicable law in demanding the first applicant’s hospitalisation. The force applied to the applicants had been proportionate and had not exceeded that which was necessary in order to overcome their resistance. In particular, according to expert assessments and reconstructions of the crime scene, the first applicant had apparently fractured his jaw when he accidentally banged his head against the ambulance vehicle while resisting the efforts of the police officers to place him inside. 38. By a decision of 14 September 2009, upheld on appeal on 29 October 2009, the Oktyabrsky District Court quashed that decision. The courts noted, in particular, that while the prosecution had conducted a reconstruction of the crime scene based on the police officers’ version of the events, they had failed to verify the applicants’ version of events. Likewise the medical assessment had verified the police’s version of events only. The police had also failed to identify any eye-witnesses of the incident in order to question them about their impressions and had not fulfilled various instructions, given, in particular, by the court in reviewing previous decisions to discontinue the proceedings. 39. According to the case-file materials the investigation of the applicants’ complaints about ill-treatment is still pending. 40. The relevant provision of the Constitution reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time ...” 41. The relevant provisions of the Code can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 40-42, 6 December 2007). 42. The relevant provisions of the Code concerning notification arrangements are summarised in the judgment in the case of Strizhak v. Ukraine (no. 72269/01, §§ 30-31, 8 November 2005) and the admissibility decision in the case of Shytik v. Ukraine (no. 2911/03 of 30 September 2008). 43. The relevant provisions of the Law of Ukraine “On Psychiatric Assistance” read as follows: “Each individual shall be considered as having no mental disorders unless the presence of such a disorder is established on the grounds of and according to the procedure established by this Law and other laws of Ukraine.” “A psychiatric examination shall be carried out for the purposes of establishing whether or not an individual suffers from a mental disorder, whether she or he requires psychiatric assistance, and determining of the type of such assistance and the procedure for providing it. A psychiatric examination shall be carried out by a psychiatric doctor at the request or with the conscious consent of the individual... A psychiatric examination may be carried out without the individual’s conscious consent ... where the information available provides sufficient grounds for a reasonable assumption that the individual suffers from a severe mental disorder, as a result of which she or he: - commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or - is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life; or - will cause significant harm to her or his own health ... in the event that psychiatric assistance is not provided. The decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by a psychiatric doctor upon an application [by any person], which contains information giving sufficient grounds for such an examination. ... In urgent situations ... the decision to carry out a psychiatric examination of an individual without her or his conscious consent ... shall be taken by the psychiatric doctor alone, and the psychiatric examination shall be carried out immediately. In [other] cases, ... a psychiatric doctor shall submit an application to the court ... A forcible psychiatric assessment shall be carried out by the psychiatric doctor following a court order. Data concerning the psychiatric examination and the conclusion concerning the individual’s state of mental health, and the reasons for the application to the psychiatric doctor, shall be recorded in medical documents.” “An individual suffering from a mental disorder may be hospitalised without her or his conscious consent ..., if examination and treatment are possible only on an in-patient basis, and in the event of a finding that the individual is suffering from a severe mental disorder, as a result of which she or he: - commits or manifests an actual intention to commit an act which constitutes an imminent danger to her or himself or others; or - is unable on her or his own to meet her or his basic vital needs at the level necessary to sustain her or his life.”