CASE OF ANATOLIY RUDENKO v. UKRAINE
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);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 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1955 and lives in Kryvyy Rig. 6. In 2005-2006 the applicant created a local non-governmental organisation, as well as several newspapers. 7. On 16 November 2006 the Kryvyy Rig Transport Prosecutor’s Office instituted criminal proceedings against him on suspicion of interfering with gas pipeline repairs in July 2006. 8. On 17 May 2007 the Kryvyy Rig City Prosecutor’s Office opened another criminal case in respect of the applicant, on suspicion of extortion from a local politician, Ms B. As noted in the ruling, on 4 January 2006 the applicant had sent a letter to Ms B., demanding 20,000 Ukrainian hryvnias (the equivalent of about 3,000 euros) under the threat of dissemination of some discrediting information about her. He had also threatened her with physical violence in the presence of several witnesses. 9. The two aforementioned criminal cases were joined. 10. On 4 June 2007 the applicant was detained. 11. On 6 June 2007 the Dzerzhynskyy District Court of Kryvyy Rig (“the Dzerzhynskyy Court”) ordered that he remain in pre-trial detention. It referred to complaints by the victim, as well as her representative, about numerous telephone calls from the applicant during which he had made threats of violence. The court also noted that the applicant had refused to comply with the investigator’s summonses and had stated that he was considering absconding. 12. On 11 June 2007 an outpatient forensic psychiatric expert examination of the applicant was carried out in the Kryvyy Rig Psychoneurological Dispensary. The expert discerned indications of a paranoid personality disorder with a tendency towards “forming fixed ideas”. An inpatient examination was recommended for a more precise diagnosis. 13. On 14 June 2007 the Dzerzhynskyy Court ordered an inpatient forensic psychiatric examination of the applicant at Dnipropetrovsk Psychoneurological Centre with a view to establishing his ability to stand trial in the extortion case. The court referred to the expert’s recommendation of 11 June 2007. It also noted that the applicant had been showing “inadequate behaviour”. Furthermore, the case file contained copies of threats and clearly slanderous statements he had made to the victim and certain third parties. 14. On 15 June 2007 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against the detention order of 6 June 2007. 15. On 20 June 2007 another case was opened against him on suspicion of extortion. This time the applicant was suspected of having threatened Mr S. and his family and of having extorted 3,000 US dollars from Mr S. in May 2007. 16. On 27 June 2007 the applicant was taken to the Dnipropetrovsk Regional Psychiatric Hospital for an inpatient forensic psychiatric examination in the framework of the criminal case regarding the charge of extortion from Ms B. 17. On 25 July 2007 the investigator in charge applied to the Dzerzhynskyy Court for an extension of the applicant’s pre-trial detention (which was to expire on 4 August 2007) till 17 August 2007, because more time was required to complete the investigation. In particular, the following investigative measures were still to be carried out: completion of the applicant’s forensic psychiatric examination, a confrontation between the applicant and Mr S., and the questioning of a number of witnesses. 18. On the same date the Dzerzhynskyy Court granted the aforementioned application and endorsed its reasoning. 19. On 26 July 2007 the inpatient forensic psychiatric examination of the applicant (see paragraph 16 above) was completed. The experts examined, in particular, the applicant’s personal history and the case-file materials, including the wording of his alleged threats to Ms B. They also carried out a psychological and psychiatric evaluation. The commission worded its conclusions as follows: “Mr Rudenko has never suffered, and is not suffering now, from any chronic psychiatric illness. He has showed in the past, and presently shows, a paranoid personality disorder. This conclusion is confirmed by his medical history, the materials of the criminal case file, and the results of the present clinical psychiatric examination which discloses that throughout his life the applicant has manifested such personality traits as egocentrism, extremely high self-esteem, tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, subjectivism, rigidity of opinions and emotions, a tendency to be tendentious and contrived in forming judgments, and tenacity in the defence and implementation of his ideas. The aforementioned personality characteristics are not manifested to a large degree, are not accompanied by serious abnormalities of memory, thinking, critical abilities or psychotic symptoms and would not have undermined his ability to be aware of and to control his actions at the time of the offence he has been charged with. [...] The present psychiatric condition of [the applicant] is such that he is aware of and can control his actions (or inactivity). He does not require involuntary medical treatment.” 20. On 9 August 2007 the investigator declared the pre-trial investigation complete and provided the applicant with access to the case file. 21. On 14 August 2007 the case was referred to the court for trial. 22. On 9 September 2007 the applicant requested the Dzerzhynskyy Court to replace his detention with release on bail in the amount of 20,000 Ukrainian hryvnias (at the time, equivalent to about 2,900 euros). He submitted that he had no criminal record, was well integrated socially and that remanding him in custody had been an unjustified preventive measure. 23. On 17 September 2007 the court held a preparatory hearing for the trial. It rejected the aforementioned request and decided to keep the preventive measure in respect of the applicant unchanged. The court noted that the considerations advanced by him had already been duly examined prior to his remand in custody. Furthermore, given the fact that the victim, Ms B., was a well-known local politician, the court decided to conduct the hearings in camera. 24. On 25 December 2008 the Dzerzhynskyy Court ordered another in-patient forensic psychiatric examination of the applicant, with a view to establishing his ability to stand trial in the criminal cases regarding the charges of extortion from Mr S. and the interference with the gas pipeline repairs (see paragraphs 7 and 15 above). 25. From 30 January to 26 February 2009 the applicant underwent an examination in the Dnipropetrovsk Regional Psychiatric Hospital. 26. On 26 February 2009 a commission of six experts (with the involvement of the three experts who had prepared the previous report of 26 July 2007) delivered its report on the basis of a psychological and psychiatric evaluation of the applicant and the case-file materials. The experts also heard several witnesses. In particular, they questioned a person who had worked with the applicant in the 1990s and who described him as an intelligent but impulsive person who had some strange ideas and liked to be the centre of attention. The applicant’s former wife gave a similar description, having also noted that he was a kind person despite his difficult character. The applicant’s current wife refused to be questioned. A general practitioner who had treated the applicant for some unspecified condition in 2007 submitted that he remembered the applicant for his emotionally-expressed nationalist ideas. A lawyer who had often encountered the applicant in court when acting as a representative described him as a bold and provocative person with a tendency to insult others. A circuit police officer, who had inspected the gas pipeline repairs site, submitted that he remembered the applicant on account of certain “hysterical outbursts” and that he had had the impression that the applicant had some mental issues. The general conclusions of the commission were worded as follows: “At the time of the events [...] Mr Rudenko was suffering, and is suffering presently, from a chronic psychiatric illness in the form of a paranoid personality disorder with delusional inclusions (“параноидное расстройство личности с бредовыми включениями”). This conclusion is confirmed by the anamnestic data, the materials of the criminal case file, the results of the present clinical psychiatric and experimental-psychological evaluation, which has disclosed that throughout his life the applicant has manifested such personality characteristics as egocentrism, rigidity in his attitudes, extremely high self-esteem, arrogance and extreme self-confidence, irrational feelings of injustice, a tendency to make categorical and subjective judgments, susceptibility and extreme sensitivity to failure and situations infringing on his personal interests, a tendency towards a distorted perception of reality and the attitudes of those around him, militant and persistent assertion of his rightness and importance, rigidity of opinions and emotions, bluntness, a tendency to be tendentious and contrived in forming judgments, tenacity in the defence and implementation of his ideas coupled with a tendency towards inertia and philosophising, and, as a result of all the aforementioned and against the background of what he perceives as the difficult and unfavourable development of the criminal investigation and trial, he has formed some fixed and delusional ideas about being persecuted. The aforementioned personality characteristics of [the applicant] manifest themselves to such a high degree that they can be considered to have undermined his ability to be aware of and to control his actions at the time of the offences he has been charged with. [...] The present psychiatric condition of [the applicant] does not enable him to be aware of his actions (or inactivity) or to control them. He requires involuntary medical treatment by way of admission to a psychiatric hospital with ordinary supervision. As to the [similar] questions regarding [the charge of extortion from Ms B.], they were already resolved in the report of 26 July 2007.” 27. On 3 June 2009 the Dzerzhynskyy Court found the applicant guilty of extortion from Ms B. As to the charge of extortion from Mr S., the court held that there was insufficient evidence of the applicant’s guilt. It also established that the applicant had impeded the gas pipeline repairs. The court noted that the applicant could not be held accountable for the criminal offences in question and required involuntary medical treatment in a mental facility. It stated, in particular: “It has been established that, at the time the offences were committed, Mr Rudenko behaved in a bold manner and without respect for the victims and others involved, that he made threats to the health and lives of the victims, and that he took deliberate steps to impede the gas pipeline repairs, thus endangering the health and lives of the public. Although Mr Rudenko has not made a direct attempt on anybody’s life, his present mental condition warrants his involuntary admission to a psychiatric hospital, because he is a dangerous person ...” 28. On 23 December 2009 the Court of Appeal quashed the decision of the first-instance court of 3 June 2009 as it had been delivered in the applicant’s absence. It stated that his presence had been obligatory unless he had expressly refused to attend or had been prevented from attending by the nature of his illness. The appellate court also noted that although the Dzerzhynskyy Court had found that the applicant’s guilt had not been proven in respect of the charge of extortion from Mr S., no decision had been taken as regards the termination of that part of the proceedings. The case was therefore remitted to the first-instance court for fresh examination. The appellate court also decided to keep the preventive measure in respect of the applicant (detention) unchanged, without explanation. 29. On 29 June 2010 the Dzerzhynskyy Court allowed the applicant’s waiver of the services of several lawyers who had been representing him. Instead, it appointed a lawyer from the local bar association to represent his interests in the proceedings. 30. On 11 October 2010 the Dzerzhynskyy Court, at a hearing attended by the applicant and his appointed lawyer, ordered another forensic psychiatric examination of the applicant, with a view to answering the following questions: (1) whether the applicant was suffering from any mental illnesses at the time; (2) whether he was aware of and able to control his actions; and (3) whether the nature of his illness could be regarded as an impediment to his participation in court hearings. The applicant did not object in principle to such an examination, as long as it was carried out by an independent expert. 31. From 19 November to 16 December 2010 an examination was carried out at the Dnipropetrovsk Regional Psychiatric Hospital. According to the ensuing report, the applicant was suffering, at the time of the examination, from a “chronic paranoid personality disorder with delusional inclusions”. His psychiatric condition was deemed to prevent him from participating effectively in court hearings. As noted in the part of the report entitled “Psychological examination”, the applicant behaved in a free and friendly manner, demonstrating an advanced intellect and good memory and analytical skills, but also demonstrating a certain superiority and rigidity in his opinions. The overall findings of the report were practically identical to those of 26 February 2009. 32. On 5 April 2011 the prosecutor dropped the charges against the applicant as regards the interference with the gas pipeline repairs and the extortion from Mr S. 33. On 8 April 2011 the Dzerzhynskyy Court discontinued the proceedings against the applicant in so far as the aforementioned charges were concerned. 34. On the same date the court, following a hearing at which the lawyer earlier appointed for the applicant, but not the applicant himself, had been present, found the applicant guilty of extortion from Ms B. Relying on the medical reports concerning the applicant’s mental health, the Dzerzhynskyy Court held that, although the applicant had been aware of his actions when he had committed the offence in question, his mental health had subsequently deteriorated to an extent warranting involuntary medical treatment. The court therefore ordered that the applicant be admitted to a psychiatric hospital for treatment under ordinary supervision. The proceedings were stayed until the applicant’s recovery. 35. The applicant’s son (who had joined the proceedings as his representative) appealed. He complained, in particular, that the applicant had wrongly been denied his right to participate in the hearing. He also complained that the applicant’s right to be presumed to be of sound mind had been violated. He noted in this regard that the experts had reached opposite conclusions about the applicant’s mental health, without any explanation for such a change in their position. Furthermore, the applicant’s son submitted that neither the applicant nor his family had agreed to the appointed lawyer representing the applicant and that the lawyer had been acting contrary to the applicant’s interests. 36. On 16 August 2011 the Court of Appeal upheld the decision on the involuntary medical treatment of the applicant. It noted that, as the medical experts had found, the nature of his illness had been an impediment to his participation in the court hearings. The appellate court also held that the application of the chosen measures in respect of the applicant was justified by the fact that he had committed a “socially dangerous” crime and that he was suffering from a mental illness. 37. On 14 September 2011 the applicant was transferred from the SIZO to the Geykivska Psychoneurological Hospital in the Dnipropetrovsk region (“the Geykivska Hospital”). 38. On 4 October 2011 the applicant was examined by a panel of three doctors from the Geykivska hospital who concluded that his condition had stabilised and that he was not in need of any involuntary inpatient treatment. More specifically, the doctors observed that despite his chronic paranoid personality disorder with “delusional inclusions”, the applicant had been demonstrating orderly behaviour and a stable mood, with no aggressive tendencies. He regretted his earlier behaviour and had submitted that he understood that it had been wrong. The panel therefore sought the lifting of the involuntary medical treatment order imposed by the court, and an order for outpatient psychiatric treatment to replace it. 39. On 14 October 2011 the Kryvyy Rig Court allowed the application of the Geykivska Hospital specialists. 40. On 19 October 2011 the same panel of the Geykivska Hospital specialists issued another report, in which they noted a drastic deterioration in the applicant’s mood and behaviour: he had become irritated, angry and aggressive and had conflicts with other patients. Accordingly, the doctors retracted their earlier conclusion of 4 October 2011 as premature and asked the court to order that the applicant continue to be treated on an involuntary basis. 41. On 29 November 2011 the Court of Appeal quashed the decision of the Kryvyy Rig Court of 14 October 2011, with reference to the medical report of 19 October 2011. 42. On 20 December 2011 the Kryvyy Rig Court decided that the involuntary medical treatment of the applicant ordered on 8 April 2011 should be continued. 43. On 22 March 2012 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s cassation appeal (submitted via his son) against the lower courts’ decisions of 8 April and 16 August 2011. 44. On 26 April 2012 the applicant was examined again by a panel of three specialists from the Geykivska Hospital (one member had been replaced). They noted that he was well oriented and gave adequate replies to questions, was brief and monotonic, expressed some delusional ideas about being persecuted by criminals, and remained self-confident and categorical in his judgments. As a result, they considered that the applicant’s involuntary medical treatment should be continued. 45. On 11 May 2012 the Kryvyy Rig Court ruled accordingly. Although the applicant, who was present at the court hearing, objected to that decision and submitted that he was in perfect health, the court considered, on the basis of the aforementioned medical report, that he was not able to critically assess his condition. 46. On 14 September 2012 the panel of doctors from Geykivska Hospital (in the same composition as on 26 April 2012) examined the applicant again. Their conclusions were similar to those set out in the report of 4 October 2011 (see paragraph 38 above). 47. On 8 October 2012 the Kryvyy Rig Court granted the specialists’ request and lifted the order for involuntary medical treatment in respect of the applicant. 48. On 26 October 2012 the applicant was discharged from the hospital. There is no information in the case file on the resumption of or any developments in the proceedings that had been stayed earlier (see paragraph 34 above). 49. On 25 April 2013 he was examined by the Kharkiv Regional Bureau of Forensic Medical Examinations at his own request. 50. On 20 May 2013 the Bureau issued its report. It noted that the only condition the applicant had been diagnosed with in the course of his previous forensic psychiatric examinations was a paranoid personality disorder. Such a diagnosis could not be regarded as fully grounded as it did not comply with the diagnostics criteria of the international statistical classification of illnesses. In particular, while that diagnosis implied a lack of social integration, the applicant had always been well adapted socially and had run a successful business. The wording “delusional inclusions” also raised questions as to its clinical accuracy. The applicant’s excessive personal involvement in various situations, as well as the fact that he had been overly emotional and made peculiar statements, did not imply delusion. 51. Generally, it was concluded that there was nothing in the case file to show that the applicant had suffered from any serious psychiatric disorder rendering him unaccountable for his actions. Even if, presumably, the applicant’s behaviour in the stressful situation of his criminal prosecution and detention had disclosed some peculiarities, the report concluded that, given his sufficient social adaptation prior to the criminal proceedings and the absence of a record of any psychiatric issues in the past, the applicant had not suffered from a psychiatric disorder between January 2006 and July 2007 and between August 2007 and November 2012 which would have warranted his involuntary treatment and prevented him from participating in court hearings. 52. Furthermore, the Bureau expert criticised the report of 19 October 2011 as having reversed the earlier conclusion of 4 October 2011 that the applicant had not been in need of involuntary psychiatric treatment without any persuasive grounds. This reversal had been made even though the description of the applicant’s psychiatric condition had remained the same. 53. On 13 June 2013, following a request by the applicant’s lawyer, an independent forensic psychiatric expert with thirteen years of work experience issued a report regarding the applicant’s examinations of 26 July 2007, 26 February 2009 and 16 December 2010 (see paragraphs 19, 26 and 31 above). The expert considered only the first-mentioned report to be scientifically grounded. He criticised the other two for their incompliance with the rules of diagnostics and the absence of any explanation as to why the same behaviour of the applicant, which had earlier been regarded as normal, had later been considered as disclosing a psychiatric disorder. The expert also concluded that the applicant’s right to attend court hearings in person had been restricted without any valid medical reason.