CASE OF DAVID v. MOLDOVA
Violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award
Nicolas Bratza
5. The applicant was born in 1943 and lived in Chişinău. He did not have a family and lived alone. 6. In 1987 the applicant was found guilty of criticising the Soviet authorities and of expressing the view that Moldova had been occupied by the Soviet Union and that it should reunite with Romania. On the basis of a medical report ordered by the Soviet courts, he was declared mentally unsound and sent for forced treatment in a psychiatric hospital in eastern Ukraine. He was held there for one year, after which he was released and obliged to continue out-patient treatment in Chişinău. 7. In 1990 the sentence against the applicant was quashed and he was acquitted. 8. On an unspecified date the applicant learned that he could obtain compensation for his illegal conviction and detention in a psychiatric hospital and that there was no time-limit for filing such an action. 9. In September 2004 he initiated civil proceedings against the Ministry of Finance, claiming compensation. He argued, inter alia, that after the forced medical treatment administered to him in 1987-1988 he had started to experience health problems, in particular he had lost his memory, had become emotionally frozen and unstable and therefore had been forced to live on a very small disability allowance. 10. During the proceedings the Ministry of Finance questioned his fitness to plead before courts in view of his medical background. 11. The applicant disagreed with the defendant, but fearing that his action would not be examined, agreed to submit to a medical examination in order to prove the contrary. 12. On an unspecified date the applicant underwent a medical examination by a specialised commission; however, the commission could not reach a conclusion. In a document dated 25 February 2004 it concluded that it would be impossible to reach a conclusion without a thorough examination of the applicant under conditions of hospitalisation. 13. On 14 March 2005 Judge V.G. of the Râşcani District Court examined the possibility of committing the applicant for an in-patient examination. As the applicant agreed to be hospitalised, the court ordered on the same date an in-patient medical examination to be conducted by the Central Psychiatric Hospital, Department of Judicial Investigations. 14. On 4 April 2005 the applicant went to the hospital, where, to his surprise, he was deprived of all his belongings and hospitalised together with persons of unsound mind with limited freedom of movement. According to him, the hospital was no longer heated in April, and since the clothes he was provided with were too thin for the season, he caught a cold and developed acute bronchitis. Two days after his hospitalisation he asked to be released in order to go home, change clothes and buy medicines for his cold. However, the doctors did not authorise him to leave the ward in which he was hospitalised. 15. It appears from the applicant's medical record that during his stay in the hospital he was not visited by anyone. According to him he could not complain to anyone about his detention and could not even make a telephone call or complain by other means to persons outside the hospital. 16. He was seen by doctors for only several minutes per day, during the routine morning round. The rest of the day he was at the mercy of the paramedical staff who usually forced patients to carry out public utility work around the hospital. He was not obliged to work because of his age and poor physical condition. 17. On 29 April 2005 the applicant was released from the hospital. According to him, it took a long time to recover but he preferred not to complain immediately for fear of adverse consequences. He submitted that he feared being placed in detention again or that the results of the examination would be falsified. 18. On 16 May 2005 the psychiatric hospital issued a report in which it concluded that the applicant was suffering from a mental condition, but that his reasoning was unaffected and that he was fit to plead before courts. 19. On 9 June 2005 the applicant lodged a criminal complaint with the Prosecutor's Office of the Centru District, asking it to prosecute the doctors who had held him in detention against his will. He described the conditions in which he had been detained and named two doctors who had refused his requests to be allowed to leave the hospital. He argued that those doctors had committed an offence under Article 166 of the Criminal Code – illegal deprivation of liberty – and asked for compensation. 20. On 30 June 2005 the Prosecutor's Office dismissed the applicant's complaint. The applicant challenged the dismissal before the Centru District Court. 21. On 21 July 2005 Judge A.B. of the Centru District Court upheld the applicant's appeal and found, inter alia, that the Prosecutor's Office had failed to clarify the conditions under which the in-patient medical examination was initially intended to be carried out, and also the conditions in which it had in fact been carried out. The Prosecutor's Office had also failed to examine the applicant's written request by which he had expressed his consent to be hospitalised and the manner of hospitalisation to which he had consented. Judge A.B. ordered a new investigation into the applicant's complaint. 22. On 12 October 2005 the Prosecutor's Office dismissed the applicant's complaint, again without giving any new arguments. It only stated that the instructions of the Centru District Court had been followed, but that this did not influence the initial decision not to institute criminal proceedings. The applicant again challenged the dismissal. 23. On 9 November 2005 Judge A.B. of the Centru District Court dismissed the applicant's appeal, finding that his detention had been carried out in accordance with the court order of 14 March 2005. 24. The Code of Civil Procedure provides for only one possibility for a person to be submitted to a psychiatric examination against his or her will. Chapter 28 of the Code deals with the proceedings intended to limit the legal capacity of a person. According to Article 302 such proceedings can be initiated by the State, by a prosecutor or by the family of a person of unsound mind or who makes abusive use of alcohol or drugs. Article 305 provides that a judge examining an action to limit a person's legal capacity can order the person concerned to undergo a psychiatric medical examination. If the person does not comply with the order, the judge can decide, during a hearing at which a psychiatrist is present, to oblige the person to undergo a psychiatric examination despite his or her opposition. 25. Section 11 of the Law on Psychiatric Assistance provides that a person can be hospitalised in a psychiatric hospital for treatment against his or her will only in accordance with the provisions of the Criminal Code or in accordance with the provisions of section 28 of that law. In both cases, except for reasons of urgency, the hospitalisation must be ordered on the basis of a decision taken by a commission of psychiatrists. Section 28 of the same law sets out the reasons which can be relied upon for hospitalising a person for treatment against his or her will. It provides that a person suffering from a mental disorder can be hospitalised against his or her will, before a court judgment for that purpose has been issued, when the mental disorder is particularly serious and constitutes a risk to himself or herself or to others, when the mental disorder is of such a nature that the person is incapable of meeting his or her vital needs alone, and if left untreated, the mental disorder could cause serious harm to the health of the individual concerned. Pursuant to section 32 of the law the compulsory hospitalisation for treatment of a person in accordance with section 28 must be decided by a court. The hospital must apply to the court for permission, indicating in the application the reasons for which the hospitalisation is sought and attaching a copy of the decision of a commission of psychiatrists. Pursuant to section 33, the court examining the application must take a decision within three days from the date on which the application was lodged and the person concerned has the right to participate in the hearing. If the person's condition is serious and he or she cannot come to the court, the judge is obliged to hold the hearing at the hospital. The judgment issued at the end of the hearing constitutes the basis for compulsory hospitalisation. Section 39 of the same law provides, inter alia, that a patient hospitalised in a psychiatric hospital with his consent can leave the hospital upon his or her request. On the other hand, a patient hospitalised against his or her will can leave the hospital only upon the decision of a commission of psychiatrists or on the basis of a court judgment.