CASE OF I.N. v. UKRAINE
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 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev
6. The applicant was born in 1963 and lives in the town of Severodonetsk, Ukraine. 7. According to the applicant, in 1996 he brought criminal proceedings for libel before the Severodonetskyy Town Court, complaining that it had been noted in his employment record that he had been dismissed because he had committed theft. The applicant alleged that, following his numerous complaints to a prosecutor’s office about the failure to investigate the above case, in 2000 the prosecutor’s office had requested his placement in a psychiatric facility. 8. According to case-file materials, on 18 March 2000 the principal of the Severodonetsk Territorial Medical Association (Северодонецьке територіальне медичне об’єднання, hereinafter the “Severodonetsk Hospital”) received a letter from the Severodonetsk Town Prosecutor’s Office asking for an opinion on the state of the applicant’s mental health. The parties did not submit a copy of that letter to the Court. 9. Psychiatrists Ma. and K. studied the applicant’s letters at the prosecutor’s office and decided that the applicant should be examined, since the letters contained evidence of a “high probability of socially dangerous behaviour”. The parties did not submit copies of those letters to the Court either. 10. On 19 March 2000, Ma., assisted by a team of paramedics and two police officers, visited the applicant at home. The applicant stated that he had been visited by seven persons in total. 11. The parties differed on the circumstances of this visit. According to the applicant’s testimonies given before the court in civil proceedings (see paragraph 29 below), he opened the door only after the police had threatened to break it. Once the applicant had opened the door, Ma. said that they should go to a hospital to examine the applicant there. A police officer, P., was shouting at the applicant and threatening him with criminal prosecution for resisting the police. The applicant replied that he would “submit to force”. He was subsequently taken by his arms and put in an ambulance. 12. The Government submitted that there was no evidence that any pressure had been applied to the applicant. According to Ma.’s testimonies given in the same court proceedings, the applicant opened the door and let Ma. and the police officers in. Ma. introduced himself and had a conversation with the applicant. It was then proposed that the applicant accompany them to a hospital for further examination. The applicant agreed, collected his belongings, closed the door and got into the ambulance. Upon arrival in the Severodonetsk Hospital it was decided that the applicant needed hospitalisation. 13. On 20 March 2000 the applicant was examined by a panel of four doctors, including Ma. and K., which confirmed the necessity of his urgent hospitalisation. On the next day the applicant was examined by an assistant of the psychiatric medicine department of the Lugansk State University Hospital in the presence of Ma., and was offered hospital treatment. Since he refused, he was further examined by three doctors of the Lugansk Regional Psychoneurological Hospital (Луганська обласна клінічна психоневрологічна лікарня, hereinafter the “Lugansk Hospital”), who concluded that he should be urgently admitted for treatment because he had written threatening letters to various authorities. 14. Between 21 March and 7 September 2000 the applicant was a patient in the Lugansk Hospital. He was allegedly examined on 21 April, 22 May, 23 June and 22 August 2000 by a panel of three psychiatrists. Each time it was decided that his treatment had to be continued. On 26 July 2000 the applicant was examined by a regional medico-social expert commission, which established that he had a second-degree disability. 15. On 7 September 2000 the applicant was transferred to the Svatove Regional Psychiatric Hospital (Сватівська обласна психіатрична лікарня, the “Svatove Hospital”) to continue his treatment there. He was discharged from the hospital on 4 December 2000. 16. The applicant also stayed in a hospital between 31 May and 26 June 2001. 17. In July and August 2001 the applicant requested that the medical establishments where he had stayed in 2000 allow him to study his medical file and inform him on what legal basis he had been subjected to psychiatric treatment. According to the applicant, he received an answer only from the Lugansk Hospital but the answer was not satisfactory. 18. On 26 September 2001 the applicant brought proceedings before the Severodonetskyy Town Court against the Severodonetsk Hospital, complaining of its failure to reply to his request. The case file contains a copy of the applicant’s complaint dated 26 September 2001. There are two handwritten notes on it: “received on 28 September 2001” and “received on 2 October 2001”. The Severodonetskyy District Court issued a note on the progress of the applicant’s case stating that the applicant had instituted the proceedings on 2 October 2001. In October 2001 the applicant lodged a similar complaint against the Lugansk Hospital. 19. On 15 November 2001 the court stayed the proceedings in the case pending examination of the issue of the applicant’s legal capacity. On 26 December 2001 the request to recognise the applicant as legally incapacitated was left without consideration, so the proceedings were resumed on 1 February 2002. 20. On 29 April 2002 the court rejected the applicant’s claims as unsubstantiated. On 21 November 2002 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for fresh consideration. 21. On 6 February 2003 the applicant modified his claims. In addition to his initial claims, he complained, inter alia, that his committal to the psychoneurological department of the Severodonetsk Hospital on 19 March 2000 and his confinement there until 21 March 2000 had been unlawful. He also complained that he had been unlawfully transferred to the Lugansk Hospital and the Svatove Hospital, where he had been confined until 4 December 2000. The applicant also claimed damages. 22. Between 23 February 2003 and 23 March 2004 ten court hearings took place and three hearings were postponed. In particular, on two occasions the defendants and/or their representatives failed to appear in court, and one hearing did not take place because the court recording equipment was not available. 23. Following a request by one of the defendants, on 23 March 2004 the court ordered a forensic psychiatric examination of the applicant. On 14 July 2004 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for examination on the merits. 24. In their observations the Government provided a list of scheduled court hearings which had taken place in the applicant’s case. The case file also contains a note on the progress of the applicant’s case issued by the Severodonetskyy District Court. Those two descriptions of the progress of the proceedings in the applicant’s case contain some contradictory information. 25. According to the Government’s submissions, between 3 September 2004 and 14 June 2005 eleven court hearings were scheduled but only five took place because either the defendants, the applicant or their representatives failed to appear. According to the domestic court record, seven hearings took place. 26. On 14 June 2005 the term of office of the judge in the applicant’s case expired. The next hearing scheduled for September 2005 allegedly with a new judge did not take place because the court recording equipment was not available. 27. Between 3 November 2005 and 13 August 2007 forty-eight court hearings were scheduled. According to the Government, all of them took place; according to the domestic court record, ten of them did not take place because the defendants, the applicant or their representatives failed to appear. The number of such failures to appear was almost equal for both parties. 28. On 13 August 2007 the court partially allowed the applicant’s claims. It summarised his submissions as follows. On 19 March 2000 Ma., with the assistance of the police, had the applicant unlawfully committed to a psychoneurological department, where he stayed for two days. On 21 March 2000 the applicant was transferred to the Lugansk Hospital without his consent; he stayed there until 7 September 2000. He was then transferred to the Svatove Hospital, where he stayed until 4 December 2000. The applicant claimed that Ma. had acted unlawfully, had breached the applicant’s right to respect for his home, had examined the applicant against his will and had deprived him of his liberty. The applicant further complained that he had been unlawfully confined in all three hospitals, and that the principals of those institutions had failed to respond to his requests for information. The applicant claimed 100,000 Ukrainian hryvnas (UAH) in compensation for non-pecuniary damage. 29. The court further noted that in a court hearing the applicant had submitted that he had not challenged his diagnosis but considered that the doctors’ actions had been unlawful. He gave his version of the events of 19 March 2000 (see paragraph 11 above). The applicant also submitted that force had been used against him in the Severodonetsk Hospital; he had been administered with injections and had been kept behind bars in a locked room. He had been transferred to the Lugansk and Svatove Hospitals without his consent. Information about his state of health had been provided to his employers and to the relevant prosecutor’s office. He had been discharged from the Svatove Hospital having been advised not to lodge any official complaints, otherwise he would be hospitalised again. He had not lodged any complaints since he had been “afraid for his future”. The applicant stated that he had sustained non-pecuniary damage caused by his involuntary hospitalisation, the administering of unknown medication by means of injection, poor nutrition, fear for his life, unsanitary conditions and a breach of his right to respect for his home. 30. In court hearings Ma., and police officers Sh. and G. testified that no pressure had been brought to bear on the applicant at the time of the visit to his home. Witness Mb. testified that he did not remember the circumstances of that visit and witness Z. testified that she had seen “a doctor entering [the applicant’s house?] alone, followed several minutes later by a police officer”. She had then seen the applicant getting into an ambulance. Ma. also submitted that the applicant’s hospitalisation had been in compliance with temporary instructions nos. 16 and 17 “On procedure for the conduct of preliminary psychiatric examination of citizens” and “On procedure for urgent hospitalisation of mentally ill persons” (“Instructions nos. 16 and 17”) appended to Order no. 225 of the Ministry of Health of the USSR of 25 March 1988 “On actions for further improvement of psychiatric assistance” (“Order no. 225”), in particular, paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2, 5 and 6 of the Instruction no. 17 (see relevant domestic law below). 31. The court found that the visit to the applicant’s home on 19 March 2000 when the applicant had been examined and later taken to the Severodonetsk Hospital had been performed in compliance with paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2 (b), 5 and 6 of Instruction no. 17. Referring to the “testimonies of Ma., Mb. and G.”, the court held that the applicant had failed to prove that any force had been used against him. The decision of 19 March 2000 on the applicant’s admission to hospital had also been adopted in compliance with paragraphs 1 and 2 of Instruction no. 17. The subsequent decision of 21 March 2000 to hospitalise the applicant had also been taken in compliance with paragraph 2 (b) of Instruction no. 17. However, the applicant’s transfer to the Svatove Hospital on 7 September 2000 had been in breach of section 16 of the Psychiatric Medical Assistance Act, which was in force as of 4 April 2000. The applicant’s requests for access to information had been rejected as a result of a decision to limit his access to his medical file, which he had not challenged. Such information could have been provided to the applicant’s relatives if he so wished. The court awarded the applicant UAH 2,000 to be paid by the Svatove Hospital (approximately 286 euros (EUR) at the material time) in compensation for non-pecuniary damage. 32. The applicant appealed, stating, in particular, that by Order no. 81 of 18 April 1996 of the Ministry of Health of Ukraine (“Order no. 81”), Order no. 225 had been declared “not applicable on the territory of Ukraine”. 33. On 29 November 2007 the Lugansk Regional Court of Appeal upheld the decision of 13 August 2007. The court held that the first-instance court had correctly applied the law in force at the material time. The court rejected the applicant’s arguments about the invalidity of Order no. 225 as unsubstantiated without giving any further details. It did not comment on the validity and/or legal effect of Order no. 81. 34. The applicant lodged an appeal on points of law, reiterating his arguments. 35. On 12 February 2008 the Supreme Court of Ukraine dismissed the applicant’s appeal on points of law as unsubstantiated. 36. On 23 November 2010 the applicant complained to the Severodonetskyy Town Court that he had not received a writ of enforcement. In reply, the court informed him that he could receive the writ of enforcement from the court’s secretariat upon a written request. 37. It is unclear whether the applicant received the compensation awarded to him.