Viktor Petrovich GORSHKOV v Ukraine - 67531/01 [2004] ECHR 726 (15 June 2004)

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The European Court of Human Rights (Second Section), sitting on 15 June 2004 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr L. Loucaides,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr M. Ugrekhelidze, judges,

Having regard to the above application lodged with the European Court of Human Rights on 23 September 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Viktor Petrovich Gorshkov, is a Ukrainian national, who was born in Orenburg, Russia, on 1 October 1954. He currently resides in Simferopol, the Crimea. The respondent Government are represented by their Agents, Mrs Valeriya Lutkovska, succeeded by Mrs Zoryana Bortnovska.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1984 the applicant was convicted of attempted rape. However, he was exempted from serving his sentence on the grounds of diminished responsibility and underwent compulsory medical treatment in a psychiatric hospital from 1984 to 1986.

On 9 April 1991 the Zheleznodorozhny District Court of Simferopol (the “Zheleznodorozhny Court”) ordered the applicant to undergo compulsory medical treatment in a psychiatric hospital under close supervision. This decision was not appealed and became final.

From 16 May till 14 December 1997 the applicant remained in detention in the Dnepropetrovsk Specialised Psychiatric Hospital under close supervision.

On 24 November 1997 the psychiatric commission recommended that the applicant be transferred to a hospital with strict supervision (a higher level than the previous one).

On 2 December 1997 the Krasnogvardejsky District Court of Dnepropetrovsk allowed the petition lodged by the chief psychiatrist of the Dnepropetrovsk Regional Health Deparment. It also quashed the decision of 9 April 1991 and decided that the applicant should continue to undergo compulsory medical treatment under close supervision. This resolution was not appealed against and became final.

As from 15 December 1997 until 20 January 1999 the applicant was under compulsory medical treatment with close supervision in the Crimean Republican Psychiatric Hospital (the “CRPH”).

On 17 December 1998 the CRPH lodged a request with the Zheleznodorozhny Court that the applicant’s regime of supervision be changed to ordinary.

On 6 January 1999 the Zheleznodorozhny Court decided that the applicant should be transferred to the psychiatric hospital under ordinary supervision, since his behaviour had improved.

On 12 July 1999 the Zheleznodorozhny Court refused an application by the Chief Psychiatrist of the Ministry of Health of the Crimea (the “Chief Psychiatrist”), based on a medical report dated 3 June 1999, to terminate the applicant’s compulsory medical treatment since his state of health had improved. In particular, it referred to the gravity of the offence committed by the applicant.

On 19 August 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court of the Crimea. On 30 August 1999 the Supreme Court of the Crimea upheld the decision of 12 July 1999. In particular, the court ruled that the requests for release were unsubstantiated as the applicant had not fully recovered from his mental illness.

On 14 March 2000 the Zheleznodorozhny Court rejected a further application by the Chief Psychiatrist lodged on the basis of the conclusions of the applicant’s medical examination on 13 January 2000, as being unsubstantiated.

On 20 March 2000, the applicant’s lawyer lodged an appeal in cassation with the Supreme Court of the Crimea. On 4 April 2000 the Supreme Court of the Crimea upheld that decision.

On 10 July 2000 the Chief Psychiatrist lodged another application with the Central District Court of Simferopol (the “Central Court”) seeking to quash the compulsory medical treatment of the applicant and his transfer to a regime of ordinary supervision. On 1 September 2000 the Central Court rejected this application for lack of substantiation and, on 31 October 2000, the Supreme Court of the Crimea upheld that decision.

On 15 March 2001 the psychiatrist of the CRPH lodged an application with the Zheleznodorozhny Court seeking to quash the compulsory medical treatment applied to the applicant. He also requested that the court order the applicant’s transfer to an ordinary supervisory regime. On 7 May 2001 the Central Court rejected this application as unsubstantiated. In particular, it noted the gravity of the crime committed by the applicant and the fact that he was a repetitive offender. The court further held that the conclusions of the medical commission were not sufficient for quashing the compulsory medical treatment measures.

On 21 September 2001 the Head of the medical department of the CRPH lodged an application with the Zheleznodorozhny Court seeking to quash the compulsory medical treatment of the applicant and to transfer him to an ordinary supervisory regime.

On 23 October 2001 the Zheleznodorozhny Court allowed this third application and decided that treatment could be given to the applicant under ordinary supervision, since his state of health had improved. The resolution of 23 October 2001 was not appealed and became final.

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.”

“... 2. A person who, during the commission of an act generally deemed to be dangerous by the present Code, was not criminally responsible, that is, not able to account for himself or his own actions (omissions) as a consequence of chronic mental illness, temporary disturbance of mental activity, feeble-mindedness, or other mental disorders, shall not be liable to criminal sanctions. ...”

“1. A person deemed by a court to be of diminished responsibility, such that at the time of committing an offence he was not fully capable of accounting for and controlling his own actions (or omissions) as a consequence of mental disorder ..., shall be subject to criminal sanctions.

2. The fact that a person has been held to be of diminished responsibility shall be taken into account by a court when deciding on the imposition of a penalty and may be a ground for the application of compulsory measures of a medical character.”

Article 44
Legal grounds and the procedure for relief from criminal responsibility

“1. A person who has committed a crime shall be exempted from criminal responsibility in the instances provided for by the present Code, and also on the basis of an amnesty law ... or a pardon.

2. Exemption from criminal responsibility in the instances provided for by the present Code shall be ordered exclusively by a court. The procedure for exemption from criminal responsibility shall be established by a law.”

“Compulsory measures of a medical character shall be: the provision of outpatient psychiatric assistance; the placement of a person who has committed a socially dangerous act falling within the scope of the Special Part of the present Code in a specialised institution for the purpose of compulsory treatment, and the prevention of the commission of socially dangerous acts by a person.”

Article 93
Persons to whom compulsory measures of a medical character are applied

“Compulsory measures of a medical character may be applied by a court to persons who have

“1. Depending on the character and gravity of the illness, the gravity of the act committed, and taking into account the degree of danger a mentally ill person presents to himself or to other persons, a court may apply the following measures of a medical character:

2. Compulsory provision of outpatient psychiatric assistance may be ordered by a court with respect to a person suffering from a mental disorder and who has committed a socially dangerous act if the person, by reason of his mental state, does not require confinement in a psychiatric institution.

3. Hospitalisation in a psychiatric institution under ordinary observation may be ordered by a court with respect to a mentally ill person who, on account of his mental state and the nature of the socially dangerous act committed, requires confinement and compulsory treatment.

4. Hospitalisation in a psychiatric institution under close observation may be ordered by a court with respect to a mentally ill person who committed a socially dangerous act not connected with an attempt on the life of other persons and who, on account of his mental state, does not represent a threat to society but requires confinement in a psychiatric institution and treatment under conditions of close observation.

5. Hospitalisation in a psychiatric institution under strict observation may be ordered by a court with respect to a mentally ill person who has committed a socially dangerous act connected with an attempt on the life of other persons, and also with respect to a mentally ill person who, on account of his mental state and the nature of the socially dangerous acts committed, represents a special danger to society and requires confinement in a psychiatric institution and treatment under conditions of strict observation.

6. If the application of compulsory measures of a medical character to a mentally ill person is not deemed to be necessary, and, likewise, in the event of the termination of the application of such measures, a court may place him in the care of relatives or guardians under compulsory medical observation.”

Article 95
Extension, modification or termination of the application of compulsory measures of a medical character

“1. The extension, modification or termination of the application of compulsory measures of a medical character shall be ordered by a court upon an application by a representative of the institution (or a psychiatrist) providing the treatment, to which application shall be appended the opinion of a commission of psychiatrists substantiating the need to extend, modify or terminate the application of such compulsory measures.

2. Persons subject to compulsory measures of a medical character shall be examined by a commission of psychiatrists not less than once every 6 months in order to decide whether there are grounds for applying to a court to terminate or modify the application of such measures. If there are no grounds for terminating or modifying of the application of a compulsory measure of a medical character, the representative of the institution (or the psychiatrist) rendering psychiatric assistance to the person shall send to the court an application, to which shall be appended the opinion of the commission of psychiatrists substantiating the need to extend the compulsory measures. If it is necessary to extend the application of a compulsory measure of a medical character for more than 6 months, the representative of the [competent] institution (or the psychiatrist) ... must apply to the court in the place where the institution is located for that extension. To the application shall be appended the opinion of the commission of psychiatrists substantiating the need to continue the provision of psychiatric assistance to the person. Thereafter, the application of a compulsory measure of a medical character shall be extended each time for a term which may not exceed 6 months.

3. If the application of compulsory measures of a medical character is terminated because of an improvement in the person’s mental state, a court may transfer him to the care of relatives or guardians under compulsory medical observation.”

“1. Compulsory treatment may be ordered by a court irrespective of the sentence given to persons who have committed crimes and suffer from illness representing a danger to the health of other persons.

2. If the sentence takes the form of a deprivation or limitation of liberty, compulsory medical treatment shall be provided at the place where the sentence is being served. If other types of penalties are imposed, compulsory treatment shall be provided in specialised institutions.”

“Measures of compulsory medical treatment shall be applied by a court decision in accordance with the procedure laid down in the Criminal Code, the Code of Criminal Procedure, this law and other laws.

In accordance with the decision of the court, the following measures of compulsory medical treatment may be applied:

Continuation, modification or termination of the compulsory medical treatment shall be ordered by the court on the basis of an application by a representative (psychiatrist) of the psychiatric hospital that provides medical treatment to the person.

Persons subject to measures of compulsory medical treatment shall be examined by a commission of psychiatrists not less than once every 6 months to determine whether there are grounds for applying to the court to terminate or modify the application of such measures. If there are no grounds for [such] termination or modification ..., the representative of the psychiatric institution ... shall send the court an application, to which shall be appended an opinion of the commission of psychiatrists substantiating the need to continue the application of the compulsory measures... If it is necessary to continue the application of the measures of compulsory medical treatment for more than six months, the representative of the psychiatric institution ... shall apply to the court in the place where the psychiatric institution is located to continue the compulsory measures. The application shall be supplemented with the conclusions on the patient’s examination by psychiatrists who consider it necessary to continue the application of such measures. Thereafter, the application of such measures may be extended for a term that may not exceed six months.

A decision whether to modify or terminate the application of compulsory measures of medical treatment shall be given by the court if there is a change in the state of health of the person which necessitates a change in the applicable measures.”

“An assessment of the person’s mental state (including medico-social assessments of any loss of the ability to work, military medical examination, etc.) shall be conducted on the basis of, and in accordance with, the procedure established by legislation and other legal instruments adopted in accordance with legislation.”

“Psychiatric examinations in administrative, criminal and civil cases shall be ordered and conducted on the basis and in the manner prescribed by law.”

Article 22
Procedure for consideration of applications for the compulsory provision of psychiatric assistance

“... Applications by representatives of psychiatric institutions for the continuation of compulsory hospitalisation shall be considered by the court at the place where the psychiatric institution is situated within ten days of its receipt.

Cases concerning the provision of compulsory psychiatric assistance shall be considered in the presence of the person in respect of whom such assistance is being considered. The participation of the prosecutor, psychiatrist or the representative of the psychiatric institution that lodged the application, and the legal representatives of the person concerned, is compulsory.”

Article 416
Grounds for the application of measures of compulsory medical treatment

“The compulsory measures of medical treatment, laid down in Article 94 of the Criminal Code, shall be applied to those persons specified in Article 93 of that Code.

The compulsory measures of medical treatment shall be applicable only to persons who are socially dangerous.”

Article 422
Termination or modification of the applicable compulsory measures of medical treatment

“Termination or modification of compulsory measures of medical treatment may take place only on the basis of a ruling by the court or a resolution of the judge who applied these measures, or by the court at the place where treatment is provided.

Termination or modification of the applicable compulsory measures of medical treatment may take place [regarding] a person who committed a socially dangerous act ... if, as a result of changes in his state of health, the need to apply the ... measures ... has disappeared.

Consideration of whether to apply the compulsory measures of medical treatment shall be conducted in accordance with Article 419 of this Code on an application by the chief psychiatrist of the health-protection body that is supervising the relevant medical institution where the person concerned is held. The conclusion of the commission of psychiatrists shall be attached to the application.”

Article 424
Appeals against the ruling, resolution of the judge or the court on the application, termination or modification of the compulsory measures of medical treatment or the introduction of a petition by the prosecutor

“An appeal or cassation appeal or an appellate or cassation petition by the prosecutor (апеляційне чи касаційне подання прокурора) against the ruling or resolution adopted by a judge or a court in the manner laid down by this Chapter, shall be introduced in the ordinary manner.”

5. Decree No. 397 of the Ministry of Health of 8 August 2001 on the procedure for applying compulsory measures of medical treatment in psychiatric hospitals to persons who have mental illnesses and who have committed socially dangerous acts (approved by the Supreme Court of Ukraine, the Ministry of Internal Affairs and the General Prosecution Service)

“... 14. If there is a substantial improvement in the state of a person’s mental health, or if he recovers, or if the results of a psychiatric examination reveal doubts as to the existence of the mental illness, the commission of psychiatrists of the relevant institution shall issue conclusions to that effect, that shall be sent by the director of the psychiatric hospital, before the end of the six-month term, to the court that delivered a decision in the case, for consideration of its review in accordance with the applicable legislation.

15. The continuation, modification or termination of the applicable compulsory measures of medical treatment shall be ordered by the court on an application by the representative of the psychiatric hospital ... that provides medical treatment to the person. ...

16. ... the application of the psychiatrist shall be sent to the court, together with the record of psychiatric examinations, not later than ten days from the adoption of the relevant court decision....”

6. Instruction of the Ministry of Health Protection on the procedure for applying measures of compulsory medical treatment to persons of unsound mind who have committed socially dangerous acts (adopted by Decree No. 397 of 8 October 2001 of the Ministry of Health)

“1. The compulsory measures of medical treatment, provided for by legislation shall be applied on the basis of a ruling by a court or a resolution of a judge to persons with mental illnesses who have committed socially dangerous acts (hereinafter - persons), and shall be implemented by the health protection institutions. ...

8. Compulsory measures of medical treatment shall be applied where it is established that a mentally ill person constitutes a danger to society, on the basis of:

(1) legal criteria - the fact of committing a socially dangerous act, specified by the criminal legislation; and

(2) medical criteria - the presence in a person of a mental illness that precludes the person’s ability to understand his actions and to control them at the time at which the case is considered on its merits.

In the absence of one of the above criteria, the imposition of compulsory measures of medical treatment shall not be possible. ...

43. Issues pertaining to the continuation, modification or termination of the application of compulsory measures of medical treatment shall be decided by a court on an application by a representative of the relevant psychiatric institution, to which the substantiated conclusions of the commission of doctors shall be attached. ...

48. The termination or modification of compulsory measures of medical treatment may be ordered on the basis of information as to positive changes in a person’s mental state or the person’s recovery, as reflected in the “Record of Psychiatric Examination”, as a result of which the danger of the person to society has decreased or disappeared, and there is no longer any need to keep and treat him in a psychiatric institution. The final decision shall be taken by the court.

The gradual annulment of a compulsory measure by way of a change from a stricter measure to a lighter one shall not be necessary. ...”

7. Resolution No. 2 of the Plenary Supreme Court of 19 March 1982 on judicial practice as to the application of the compulsory measures of medical treatment (amended on 4 June 1993)

“7. Compulsory measures of medical treatment shall be applied only if the case-file contains substantiated conclusions of a psychiatric examination as to the person’s absence of criminal responsibility and the need to apply the measures in question. ...

13. The applicable compulsory measures of medical treatment shall be terminated if the person recovers or his mental state changes to the extent that he is no longer a danger to society.

In the event of doubts as to the correctness of the conclusions of the medical commission that the person has recovered or that there has been a change in his mental state, so that there is no need to continue the application of the compulsory measures of medical treatment, the court may invite the member of this commission and the person concerned to a hearing. The courts should take into account that in cases concerning the termination or modification of an applicable compulsory measure of medical treatment, the representatives of the administration of the psychiatric hospital or the person who lodged such an application before the court must be notified.”

The applicant complains about the unlawfulness of his confinement in a psychiatric hospital and the impossibility to appeal against it effectively. He also complains about the conditions and the allegedly unreasonable length of his confinement. He alleges an infringement of Articles 2, 3 and 5 §§ 1(a) and (e) and 4 of the Convention.

I. THE GOVERNMENT’S PRELIMINARY OBJECTION AS TO COMPATIBILITY RATIONE TEMPORIS

The Government referred to the Court’s constant case-law limiting its competence to the examination of facts that took place after the Convention’s entry into force in respect of a Contracting Party to the Convention.

The Court observes that, in accordance with generally accepted principles of international law, Contracting Parties are only bound by the Convention in respect of events occurring after it has entered into force in respect of that State. It notes that the date on which the Convention entered into force in respect of Ukraine was 11 September 1997, whereby the declaration of Ukraine accepting the right of individual petition took effect.

The applicant was compulsorily detained in a psychiatric hospital, by reason of mental illness and the dangerousness of his behaviour, from 9 April 1991, following a court order, until 8 November 2001, more than ten and a half years later, when he was released, following his discharge by the decision of the Zheleznodorozhny District Court of Simferopol on 23 October 2001. However, the period between 9 April 1991 and 11 September 1997 lies outside the Court’s jurisdiction ratione temporis.

The applicant complains that the refusal to release him from the psychiatric hospital and his deprivation of liberty amounted to an infringement of his right to life. He referred in substance to Article 2 § 1 of the Convention, which in so far as relevant provides:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law...”

The Court notes that this provision regulates, inter alia, the deliberate or intended use of lethal force by State agents, the positive obligations by the State to protect the right to life, or the introduction of effective criminal-law provisions to deter the commission of offences involving people’s physical integrity. It may also imply, in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual, and may regulate the situation of a mentally ill detainee who discloses signs of being a suicide risk (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III).

However, the Court finds no element of its case-law which might be relevant to the circumstances of the present applicant’s case, in which no evidence has been disclosed that his life was in any way endangered by his compulsory confinement for the treatment of his mental illness.

It therefore rejects this part of the application under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

The applicant submitted that the conditions and length of his detention in the psychiatric hospital amounted to an infringement of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

As the Court has held on many occasions, Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among many other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 69, ECHR 1999-IX, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports of Judgements and Decisions 1997-VIII, pp. 2821-22, § 55).

Measures depriving a person of his liberty may often involve such an element. However, it cannot be said that compulsory psychiatric treatment in itself raises an issue under Article 3 of the Convention, provided a mental illness exists which poses a threat to the safety of the patient and/or the public. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in confinement and that his or her health and well-being are adequately secured by, among other things, providing the requisite medical assistance (see, mutatis mutandis, Aerts v. Belgium, judgment of 30 July 1998, Reports 1998-V, p. 1966, §§ 64 et seq.).

The Government submitted that the applicant has not substantiated his complaint. In particular, they stated that he complained about the conditions of detention in a very general manner. The Government stated that the conditions of the applicant’s detention complied with domestic regulations (the “Temporary Regulation on Psychiatric Hospitals with Strict Supervision” of the Ministry of Health of the Ukrainian Soviet Socialist Republic of 21 March 1988). The applicant was detained in the Crimean Republican Psychiatric Hospital from 15 December 1997 until 8 November 2001. He was placed in a ward of 20 square meters together with four other persons. He had walks twice a day in a specially equipped courtyard (from midday to 2 p.m. and from 5 to 6 p.m.). The applicant’s mother visited him every day. Visits were allowed from 8 a.m. until 2 p.m. Apart from that, the applicant had the right to correspond without limitation, as well as receive parcels, postal packages and money transfers. He could make use of his personal belongings and items of personal hygiene, except for those that could constitute a danger to others or himself.

The Government further noted that the applicant had made no complaints about the methods of medical treatment and provided no detailed evidence of any inhuman treatment or conditions whilst in hospital. As allegations of ill-treatment must be supported by appropriate evidence, which the applicant had failed to produce, they contended that his part of the application must be rejected as being manifestly ill-founded.

The Court confirms that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).

The Court notes that the applicant has not produced any significant evidence (medical reports, copies of documents and decisions in this respect, etc.) in support of his allegations of ill-treatment. Nor has he supplied a detailed account of any abuse to which the personnel of the psychiatric hospital allegedly subjected him in the course of his detention. Furthermore, there is nothing in the parties’ submissions to show that the applicant was subjected to ill-treatment in confinement. In these circumstances, the Court considers that the applicant’s mere assertions of ill-treatment are insufficient and do not amount to evidence as to their veracity.

It follows that this complaint is wholly unsubstantiated and must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

As to the length of detention, the Government emphasised that the domestic courts could not set a finite time-limit for the medical treatment of the applicant because the latter would continue to have constituted a social danger until he had finally recovered. Moreover, there were regular checks on his state of health, which were held twice a year. Furthermore, they maintained that the length of the applicant’s compulsory medical treatment was justified by considerations of public protection from the mentally ill applicant, who constituted a danger to society.

The Government stressed that the lengthy application of the compulsory medical treatment was not arbitrary in view of the state of the applicant’s health and the social danger he presented. The length of the compulsory medical treatment could thus not be considered to be treatment contrary to Article 3 of the Convention in the circumstances of the present case.

In the light of the Court’s aforementioned considerations with regard to the applicant’s conditions of detention, the Court finds, equally, that the applicant’s complaint is unsubstantiated regarding this aspect, which must also be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant complains of the unlawfulness of his confinement in a psychiatric hospital. He also complains that he had no effective remedies against this. In particular, he alleges that he was released almost two years after his health had improved. In his submissions he refers to Article 5 §§ 1(a) and (e) and 4 of the Convention, which in so far as relevant provide:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; ...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government submitted that the applicant was not convicted by “a competent court” and therefore the applicant’s situation did not fall within the scope of Article 5 § 1(a). As to the applicant’s complaint under Article 5 § 1(e), the Government alleged that order of compulsory treatment imposed on the applicant by the resolution of 9 April 1991 of the Zheleznodorozhny District Court of Simferopol, was in compliance with this provision. They also contended that the further resolutions of the domestic courts reviewing the applicant’s continued detention were in compliance with Article 5 § 1(e) of the Convention. As to the period from 12 July 1999 until 8 November 2001, the Government submitted that the applicant’s detention was necessary as his state of health did not improve. Moreover, he was discharged when there were enough grounds to consider that he was no longer dangerous to the public and no longer required compulsory medical treatment.

As to the applicant’s complaints under Article 5 § 4 of the Convention, the Government submitted that compulsory medical treatment could only be ordered by a court resolution. This could be appealed against in cassation under Article 424 of the Code of Criminal Procedure, within 7 days from the date of the adoption of the resolution. An appeal could have been lodged by a defence lawyer, whose participation in such cases was obligatory. The Government pointed out that the applicant had used this possibility regarding his continued detention. Moreover, the rejection of his appeals did not mean that the remedy was ineffective. Also, the issue of the applicant’s compulsory medical treatment was examined by the domestic courts on six occasions on the basis of the applications lodged after his medical examinations by competent doctors. As to the frequency of the revision of the lawfulness of the applicant’s compulsory medical treatment, the Government considered that Article 5 § 4 had not been breached.

The applicant disagreed. In particular, he alleged that the appeal procedure was not effective. He mentioned that it was only the doctor of the psychiatric institution, but not the applicant himself, who could lodge an application with the court seeking annulment of the relevant measures. Furthermore, he maintained that, even though his state of health had improved, the domestic courts unlawfully refused to release him from the psychiatric hospital for almost two years.

The Court considers that there is sufficient evidence that the applicant suffered from a mental illness of such a type and degree that compulsory confinement in a closed hospital was justified for his treatment and the protection of the public. Whilst the applicant’s condition improved, the social danger continued until his full recovery could be assured. In these circumstances, the Court finds that the applicant’s detention, throughout the period under consideration, within the Court’s competence ratione temporis, fell within the lawfulness and scope of Article 5 § 1 (e) of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court considers, in the light of the parties’ submissions, that this aspect of the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the alleged infringement of Article 5 § 4 of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Viktor Petrovich GORSHKOV v Ukraine - 67531/01 [2004] ECHR 726 (15 June 2004) URL: http://www.bailii.org/eu/cases/ECHR/2004/726.html Cite as: [2004] ECHR 726