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FIFTH
SECTION
CASE OF FYODOROV AND FYODOROVA v. UKRAINE
(Application
no. 39229/03)
JUDGMENT
STRASBOURG
7 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fyodorov and
Fyodorova v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39229/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mr Vladimir
Georgiyevich Fyodorov and Mrs Tatyana Sergeyevna Fyodorova (“the
applicants”), on 30 October 2003.
- The
applicants, who had been granted legal aid, were represented by Mr
A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian
Government (“the Government”) were represented by their
Agent, Mr Y. Zaytsev.
- The
applicants alleged, in particular, that they were ill-treated by the
police and that no effective investigation of their complaints took
place. The first applicant also alleged that he had been unlawfully
subjected to a psychiatric assessment and diagnosed with a
psychiatric disorder and that he had been deprived of a fair trial in
civil proceedings challenging the actions of the psychiatrists.
- On
31 March 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, husband and wife, were born in 1948 and 1960 respectively
and live in Takhtaulove.
A. The first applicant’s psychiatric examination
of 15 June 2001 and the ensuing civil proceedings
- 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.
- 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.
- 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”.
- 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.
- 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.
- 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.
- 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.
- M.
F. appealed against this judgment.
- 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.
- 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’s conclusions do not follow from the
circumstances of the case ...”
- 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.
- 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.
- 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.
B. Placement of the first applicant in a psychiatric
clinic on 7 March 2003 and the ensuing investigations
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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 епілептоїдно нестійкому
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.
- 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.
- 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”.
- 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.
- On
27 June 2003 the first applicant was X-rayed and found to have a
fractured jaw.
- 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.
- 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.
- 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.
- On
28 July 2005 the Poltava Regional Prosecutors’ Office initiated
criminal proceedings to investigate the circumstances in which the
first applicant had sustained injuries.
- On
18 October 2005 the Oktyabrsky District Court of Poltava also
instituted criminal proceedings concerning the second applicant’s
injuries.
- 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.
- 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.
- 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.
- According
to the case-file materials the investigation of the applicants’
complaints about ill-treatment is still pending.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine 1996
- The
relevant provision of the Constitution reads as follows:
Article 29
“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 ...”
B. Code of Criminal Procedure
- 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).
C. Code of Civil Procedure of 1960
- 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).
D. Law of Ukraine “On Psychiatric Assistance”
- The
relevant provisions of the Law of Ukraine “On Psychiatric
Assistance” read as follows:
Section 3. Presumption of mental health
“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.”
Section 11. Psychiatric examination
“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.”
Section 14. Grounds for forced hospitalisation of an
individual in a psychiatric establishment
“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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
RESPECT OF THE FIRST AND THE SECOND APPLICANT
- The
first applicant complained that on 7 March 2003 he had been
humiliated by having been unlawfully hospitalised by force. Both
applicants also complained that they had been injured as a result of
the application of disproportionate force in response to their
resistance to the first applicant’s hospitalisation, and that
the investigation following their respective complaints had been
ineffective. The applicants invoked Article 3 of the Convention in
respect of these complaints, which reads as follows:
“No one shall be subjected
to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government submitted that the proceedings concerning the applicants’
ill-treatment complaints were still pending. The applicants have
therefore not exhausted the relevant domestic remedies and their
complaints concerning the ill-treatment should be rejected as
inadmissible.
- The
applicants alleged that the Government’s objection should be
examined in the light of the complaints concerning the effectiveness
of the investigation.
- The
Court considers that the Government’s
objection raises issues, which fall to be examined together with the
substantive provision of the Convention relied on by the applicants.
It therefore joins this objection to the merits (see e.g. Vergelskyy
v. Ukraine, no. 19312/06, § 94, 12 March 2009).
- The
Court further notes that the above complaints are not otherwise
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and are not inadmissible on any other grounds. They
must therefore be declared admissible.
B. Merits
1. Concerning the alleged ill-treatment
(a) Submissions by the parties
- The
applicants alleged that they were the victims of inhuman and
degrading treatment by M. F. and police officers. In particular, they
referred to Article 29 of the Constitution and the Law of Ukraine “On
Psychiatric Assistance” and maintained that in order to be
lawful, a forced psychiatric intervention, in particular, confinement
to a hospital, had to be ordered by a competent court. The decision,
taken in respect of the first applicant by the Chief Psychiatrist of
the local hospital unilaterally and in absence of any procedural
guarantees, had been manifestly arbitrary and unlawful. The
application of physical force to enforce it and deliver the first
applicant to the psychiatric clinic against his will had therefore
also been unlawful and arbitrary, having caused the first applicant
humiliation beyond the threshold allowed by Article 3 of the
Convention, particularly in the context of the following
circumstances.
- The
applicants had arrived at the police station in order to obtain an
extension of the first applicant’s rifle permit upon the
invitation of the police and had waited patiently for some two hours
for the paperwork to be done. On 5 March 2003, two days before the
incident, the first applicant had been issued with a psychiatric
fitness certificate for the purposes of extending his rifle permit.
Being informed about the confinement decision and ordered to comply
with it immediately in these circumstances had been particularly
unexpected. The appearance of manifest arbitrariness in this order
was highlighted by the fact that M. F., who represented the
psychiatric service, was the first applicant’s adversary in
pending civil proceedings concerning the lawfulness of his previous
psychiatric examination and diagnosis.
- In
refusing to comply with the order, the first applicant had acted in
good faith and for the purpose of protecting his civil rights. He had
only wished to contact the chief of the police department to obtain
assurances as to the orders he had given to his subordinates and to
consult his lawyer concerning his rights and obligations in the
circumstances. Even assuming that the confinement decision had been
lawful, the way the applicants protested against it had made
application of any physical force at all excessive and degrading.
- Finally,
irrespective of the necessity of the application of force, the manner
in which it had been applied to both applicants had been manifestly
out of proportion and had amounted to inhuman treatment. The
applicants had been of senior age and not athletes. They had never
acted violently or intended to hurt or harm anyone. The incident had
taken place on the premises of the police station, where the officers
had been numerous and had had significant advantage in controlling
the situation. Moreover, unlike the applicants, who had been caught
by surprise, the officers and M. F. had had the opportunity to plan
the operation in advance. In the meantime, the officers had acted in
brutal and conscious disregard of the fact that they were inflicting
injuries, if not out of a direct intention to harm the applicants
(they punched, kicked and pushed the applicants and pressed a door
against the second applicant to prevent her exit). The kicking of the
first applicant had continued after he had been put in the ambulance
car. Regard being had to all the above, the injuries sustained by
both applicants could not be justified under Article 3 of the
Convention.
- The
Government alleged that the decision to subject the first applicant
to in-patient examination had been taken on reasonable grounds and in
good faith. In particular, the authorities had received numerous
complaints by his neighbours and fellow villagers concerning various
instances of deviance and aggression on his part, including
infliction of bodily injuries of medium severity on Mrs L. in 2000.
On 20 February 2003 the Chief Psychiatrist had obtained a court
decision authorising him to act at his discretion with regard to the
first applicant’s hospitalisation. He had thus acted lawfully
in taking the confinement decision and requesting the police
officers’ assistance in enforcing it.
- On
7 March 2003, when the applicants had arrived at the police station
in connection with the extension of the first applicant’s rifle
permit, the psychiatric service had been informed and M. F. had
arrived in order to escort the first applicant to the hospital. The
force applied in the applicants’ respect had not exceeded that
which had been strictly necessary to enforce the legitimate
hospitalisation order and overcome the applicants’ resistance.
The applicants had been at fault for their own injuries, sustained
primarily by banging against various objects, while the officers’
actions had been aimed exclusively at restraining them and ensuring
the first applicant’s compliance with the hospitalisation
order. These actions had been strictly proportionate to the need to
place the first applicant in the ambulance car and deliver him to the
clinic. The applicants had therefore not been subjected to
ill-treatment contrary to Article 3 of the Convention.
(b) The Court’s assessment
- The
Court observes that it is common ground between the parties to the
present case that that the first applicant’s jaw was fractured
and that both applicants sustained bruises, abrasions and other minor
injuries on 7 March 2003 in connection with their confrontation with
the police and M. F. The parties disagree as to whether the decision
to apply physical force and the manner in which it was applied were
justified under Article 3 of the Convention in the context of the
applicants’ personal situation.
- The Court reiterates that according to its
well-established case-law, 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 level of severity is relative; it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and state of health of the victim. Allegations of
ill-treatment must be supported by appropriate evidence assessed by
the Court based on the standard of proof “beyond reasonable
doubt” (see, as a recent authority, Jalloh v. Germany
[GC], no. 54810/00, § 67, ECHR 2006 IX).
(i) With respect to the first applicant
- In
the present case, no evidence was provided that the officers
inflicted any injuries on the first applicant after they succeeded in
placing him in the ambulance car. The Court therefore dismisses this
allegation as unsubstantiated.
- As
regards the assessment of the force applied in order to put the first
applicant in the car, the Court notes, first, that the type and
severity of bodily injuries inflicted on the first applicant are not
the only elements to be examined in deciding whether his treatment
fell within the Article 3 ambit.
- In this regard the Court refers to the general
principles established in its case-law and notes that where treatment
or punishment is not connected with any physical injuries, it will
fall within the Article 3 ambit if it provokes in the applicant
suffering or humiliation beyond that inevitably connected with a
given form of legitimate treatment or punishment (see, for example,
Jalloh, cited above, § 68). What is essential for the
measure to qualify as “degrading”, is the extent to which
it arouses in its victim feelings of fear, anguish and inferiority
capable of humiliating and debasing him and possibly breaking his
physical or moral resistance, or driving him to act against his will
or conscience (ibid.). It may well suffice that
the victim is humiliated in his or her own eyes, even if not in the
eyes of others (see, for example,
Erdoğan Yağız v. Turkey, no.
27473/02, § 37, ECHR 2007 III (extracts)).
- Thus,
the Court has qualified as “degrading” a variety of
coercive measures, whether lawful or arbitrary, where they were found
to have been applied in a manner offensive to human dignity and
without consideration for the victim’s particular situation and
conduct. For instance, Article 3 was found to be infringed where,
without sufficient security justifications, the applicants were
placed in a metal cage separating them from the general public during
a criminal trial against them (Ramishvili and Kokhreidze
v. Georgia, no. 1704/06, §§ 99-102, 27 January
2009) or were subjected to unjustified public
exposure in handcuffs (see, for example, Erdoğan
Yağız, cited above, §§
45-48, and Gorodnichev v. Russia, no. 52058/99, §§
104, 108-109, 24 May 2007); where a strip
search was conducted without a legitimate purpose (see, for example,
Iwańczuk v. Poland,
no. 25196/94, § 59, 15 November 2001; Wieser v.
Austria, no. 2293/03, § 40, 22 February 2007; and Malenko
v. Ukraine, no. 18660/03, §§ 59-61, 19 February 2009);
where the applicant’s hair was
arbitrarily shaved as a part of disciplinary punishment for writing
critical remarks against the State organs and his prison wardens
(Yankov v. Bulgaria, no. 39084/97, §§
117-122, ECHR 2003 XII (extracts);
or where the applicant detained in a sobering-up facility was
forcibly undressed by three employees, including two of the opposite
sex, and left for a period of ten hours in restraining belts
(Wiktorko v. Poland, no. 14612/02, §§
54-55, 31 March 2009).
- The
Court notes next that the first applicant was placed in a psychiatric
clinic against his will, a measure which can be deemed a serious
interference with his physical and mental integrity and personal
inviolability. On a number of occasions it has already ruled that
forced medical interventions, while in principle justifiable, must be
subjected to rigorous scrutiny under Article 3 of the Convention
(see, mutatis mutandis,
Herczegfalvy v. Austria, 24 September 1992, §§
82-83, Series A no. 244).
In deciding on the compliance of such measures with the above
provision, the Court has examined, among other relevant factors,
whether the preceding decision-making
process afforded sufficient procedural guarantees to the applicant
(see Nevmerzhitsky
v. Ukraine, no. 54825/00, §§
94 -99, ECHR 2005-II; Jalloh,
cited above, §§ 69, 76 and 82); Ciorap v.
Moldova, no. 12066/02, § 89, 19 June 2007; and
Kucheruk v. Ukraine, no. 2570/04, §§ 139
- 146, ECHR 2007 X).
- In
the present case, the decision to confine the first applicant in the
psychiatric clinic was taken unilaterally by a district psychiatrist,
who appears not to have ever examined him in person. The first
applicant was never given the opportunity to challenge this decision
before its execution. On the contrary, according to his submissions,
undisputed by the Government, the announcement of the confinement
order caught the first applicant by surprise, as he had allegedly
obtained a psychiatric fitness certificate two days before the events
in question and reported to the police believing in good faith that
he would obtain a rifle permit. Further, the first applicant was not
afforded an opportunity to contact either the chief of the police
department or his advocate before the measure was applied. The
decision-making process leading to his confinement in the present
case therefore lacked basic procedural safeguards, casting serious
doubts concerning the therapeutic necessity for the measure at issue
and even more serious doubts concerning the need for its forceful
execution.
- Conversely,
a number of factors suggest that there was no urgent need to apply
force to enforce the confinement decision with respect to the first
applicant. In particular, the latter reported to the police of his
own free will and behaved neither aggressively nor deviously before
the confinement order was announced. It is clear from the case-file
that he refused to get into the ambulance car and vigorously demanded
access to his lawyer and the chief of the police department to
protest against his confinement. However, it does not appear that he
attempted to inflict any physical harm on anyone or to escape from
the police quarters. In view of this, the Court considers that this
case is to be distinguished from those where the applicants resisted
violently when faced with a simple obligation to submit to the
legitimate requirements of law enforcement officers - an obligation
which is part of the general civil duty in a democratic society (see
Berliński v. Poland, nos. 27715/95 and 30209/96, §
62, 20 June 2002, and Barta v. Hungary, no. 26137/04, §
71, 10 April 2007). The Court further notes that it is unclear
whether the police officers acted in good faith, given the
information about the applicant’s alleged dangerousness, and to
what extent they were bound by the psychiatrist’s request. In
particular, the Government did not inform the Court whether any
specific regulations in this respect existed. However, in the Court’s
view, in the context of the situation, the manner in which they
reacted to the first applicant’s demands for clarification
concerning the legality of his confinement order, namely, by applying
force to put him in the ambulance car, was manifestly
disproportionate.
- The
Court therefore finds that, regard being had to the gravity of the
interference with the first applicant’s personal inviolability
inherent in his confinement to the psychiatric clinic, the
application of physical force in response to his attempts to clarify
the legitimacy of the measure was capable of humiliating him to an
extent that went beyond the threshold allowed by Article 3 with
respect to forced medical procedures. It was therefore degrading.
- Further,
the Court considers that even in matters concerning the lawful
application of force to counter resistance, State agents are
responsible for reasonably planning their interventions in order to
minimise potential injuries (see, mutatis mutandis, Rehbock
v. Slovenia, no. 29462/95, §§ 71-72, 76, ECHR
2000 XII; R.L. and M.-J.D. v. France, no. 44568/98,
§§ 66-73, 19 May 2004; and Kopylov v. Russia,
no. 3933/04, §§ 162-165, 29 July 2010). In the present
case, the Court takes note that both the psychiatric professionals
and the police officers involved in the incident had time to plan
their operation well in advance, including to prepare for potential
violence and resistance on the part of the first applicant, who was
allegedly in need of in-patient treatment on account of his
aggressive and uncooperative behaviour. Further, the Court remarks
that the confrontation took place on the premises of the police
station, where the officers, specially trained in the art of combat,
outnumbered the two applicants, who had no particular force or skills
to resist them. The officers were placed in a considerably superior
position in terms of controlling the situation. Based on the above
considerations, the Court finds that, irrespective of whether the
first applicant’s injuries were self-inflicted by banging
against various objects, as argued by the Government, or inflicted by
the police officers, as suggested by him, the Government have failed
to show that these injuries could have been caused by an application
of force which was appropriate in the circumstances. The Court
therefore finds that the force used was disproportionate and amounted
to inhuman and degrading treatment of the first applicant.
- The
first applicant was therefore subjected to ill-treatment in breach of
Article 3 of the Convention.
(ii) With respect to the second applicant
- The
Court notes that the second applicant sustained bruises and other
minor injuries as a result of her attempts to interfere with the
actions of the police officers in the context of the forced
hospitalisation of her husband. It considers that these injuries were
sufficient to attract the applicability of Article 3 of the
Convention as the violent reaction of the police which has to be seen
in connection with the degrading treatment of the second applicant’s
husband was clearly disproportionate. In assessing whether the State
can be held responsible for the injuries at issue, the Court refers
to its reasoning in paragraph 65 above and considers that the
Government have failed to provide a plausible explanation releasing
them from responsibility for the second applicant’s injuries.
The force applied in respect of the second applicant therefore
amounted to inhuman and degrading treatment.
- There
has therefore been a breach of Article 3 of the Convention in respect
of the ill-treatment of the second applicant.
2. Concerning the effectiveness of the investigation
(a) Submissions by the parties
- According
to the applicants, the investigation of their ill-treatment
complaints lacked the basic requirements of effectiveness guaranteed
by Article 3 of the Convention. It was not until two years after
the incident of 7 March 2003 that the criminal proceedings were
finally initiated (28 July 2005 with respect to the first applicant
and 18 October 2005 with respect to the second). These delays could
not but lead to the loss of valuable evidence. Furthermore, even
following the institution of the proceedings, the investigation was
superficial and the authorities have not been able to identify and
punish those responsible for the applicants’ ill-treatment to
this day, that is, more than seven years after the incident of
ill-treatment.
- The
Government disagreed. They alleged that the investigation was being
carried out by the prosecutor’s office, which was independent
of the authorities implicated in the incident. They further
maintained that a number of investigative measures, including witness
interviews, medical expert assessments and crime scene
reconstructions had taken place, and that the authorities were doing
everything in their power to establish the circumstances of the
incident and to decide on the guilt and punishment of those (if any)
responsible for the ill-treatment.
(b) The Court’s assessment
- The
Court reiterates that where an individual raises an arguable claim
that he has been seriously ill-treated by the State authorities in
breach of Article 3, that provision, read in conjunction with the
State’s general duty under Article 1 of the Convention,
requires by implication that there should be an effective official
investigation (see, for example, Assenov
and Others v. Bulgaria, 28 October 1998, § 102, Reports
of Judgments and Decisions 1998 VIII).
- As
regards the circumstances of the present case, the Court notes at the
outset that the applicants lodged their complaints about
ill-treatment within several days of the incident. It further notes
that the identities of the officials implicated in the acts of
ill-treatment were specified in those complaints. In the meantime,
the investigation, which has lasted more than seven years, has not
led to a decision as to whether or not these officials should be held
liable for their actions.
- The
Court further notes that the investigation was discontinued on a
number of occasions, as the prosecution was not able to detect
evidence of ill-treatment. All of the decisions to discontinue the
investigation were subsequently annulled by the higher prosecutorial
or judicial authorities, as the prosecution had fallen short of
employing all the means available to them to establish the relevant
circumstances. In their relevant decisions the authorities expressly
pointed to a number of measures which could have been taken, and
noted that their previous instructions had not been fully complied
with. In spite of this, on numerous occasions the investigations were
again discontinued on essentially the same grounds as before and
without further substantive measures being taken.
- The
Court finds that the factual circumstances surrounding the
investigation of the applicants’ ill-treatment complaints in
the present case are similar to the situations in which it has found
violations in a number of recent cases (see, for example, Mikheyev
v. Russia, no. 77617/01, §§ 112 113
and 120-121, 26 January 2006; Kozinets,
cited above, §§ 61-62 and 65; and
Kobets v. Ukraine,
no. 16437/04, §§ 53-56, 14 February 2008).
- In the light of the
circumstances of the present case and its settled case-law, the Court
concludes that in the present case there has been a
violation of Article 3 of the Convention on account of the
ineffective investigation of the applicants’ complaints about
their ill-treatment in connection with the execution of the order for
the first applicant’s hospitalisation. It follows that the
Government’s admissibility objection (see paragraph 45
above) must be dismissed.
- In
light of all the above, the Court finds that there has been a breach
of Article 3 of the Convention on account of the ineffective
investigation of the applicants’ complaints about
ill-treatment.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN
RESPECT OF THE FIRST APPLICANT
- The
first applicant next complained under Article 8 of the
Convention that he was subjected to a psychiatric examination on 15
June 2001 and diagnosed as suffering from chronic delusional disorder
in violation of the applicable law. The provision at issue reads as
follows:
“1. Everyone has the right to respect
for his ... private life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Government provided no comments concerning the admissibility of the
first applicant’s complaint under Article 8 of the Convention.
- The
Court considers that the above complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions of the parties
- The
first applicant submitted that both his examination on 15 June 2001
and his labelling as suffering from chronic delusional disorder as a
consequence were unlawful. He maintained, in particular, that the
outcome of his ensuing domestic civil proceedings was irrelevant, as
the judicial authorities had failed to ensure a fair hearing and to
state the grounds for applying section 11 of the Law “On
Psychiatric Assistance” in his particular case, as well as to
consider his argument that the procedure for his examination and
establishing the diagnosis had been arbitrary. The courts’
conclusion that the assessment itself had been carried out properly
was fully unsubstantiated. He also argued that Mrs L.’s letter
could not be taken as a sufficient basis for subjecting him to a
forced examination. Finally, he submitted that the brief informal
conversation of which the examination consisted could not qualify as
a formal psychiatric examination and a basis for diagnosing him with
a serious mental disorder.
- The
Government disagreed. They accepted that the first applicant’s
psychiatric examination constituted interference with his private
life within the meaning of Article 8 of the Convention. They argued,
however, that this interference was justified under paragraph 2 of
the provision at issue. In particular, the assessment had been
carried out based on Mrs L.’s complaints about the first
applicant’s deviant behaviour, which had posed a threat to her
own safety and the safety of others. These complaints had not been
unsubstantiated; in particular, in June 2000 the first applicant had
injured Mrs L. Other villagers had also complained to various
authorities about the first applicant’s provocative conduct.
The Government submitted in this regard copies of complaints
concerning the first applicant’s conduct signed by various
individuals and dated 2000 – 2003. In the light of this, the
first applicant’s psychiatric examination had pursued a
legitimate aim – namely, protection of the rights of others. It
had been necessary in a democratic society and was conducted in
accordance with the law. In particular, the relevant provision was
section 11 of the Law of Ukraine “On Psychiatric Assistance”,
authorising forcible psychiatric assessments of persons manifesting
real intention to commit acts putting others in danger. Lastly, the
Government submitted that the lawfulness of the application of that
provision in the first applicant’s case had been confirmed by
judicial authorities of two levels in the course of the contested
proceedings.
2. The Court’s assessment
- The Court has previously
held, in various contexts, that the concept of private life includes
a person’s physical and psychological integrity (see, for
example, A v. Croatia, no. 55164/08, § 60, ECHR
2010 ...) and that mental health is a crucial part of private
life (see,
for example, Dolenec v. Croatia, no. 25282/06, §
165, 26 November 2009). In line with these principles, it finds that
the first applicant’s examination by a psychiatrist from a
State-run clinic in the present case and his diagnosis with a chronic
delusional disorder constituted an interference with his private
life. The fact of that interference is not disputed between the
parties.
- The
Court further reiterates that an interference will contravene Article
8 unless it is “in accordance with the law”, pursues one
or more of the legitimate aims referred to in paragraph 2 and
furthermore is “necessary in a democratic society” in
order to achieve the aim (see, as a recent authority, Guţu v.
Moldova, no. 20289/02, § 65, 7 June 2007). The expression
“in accordance with the law” refers, in particular, to a
requirement of reasonable clarity concerning the scope and manner of
exercise of discretion conferred on the public authorities (see
Domenichini v. Italy,
15 November 1996, § 33, Reports
1996-V).
- In
their submissions, the Government referred to section 11 of the Law
of Ukraine “On Psychiatric Assistance” (see paragraph
43 above) as the legal ground for the
interference and pointed to Mrs L.’s and other villagers’
letters as immediate grounds for considering the first applicant in
need of psychiatric assistance.
- The
Court observes that the law at issue provides exhaustive
grounds for subjecting an individual to examination by a psychiatrist
(see paragraph 43 above). As follows from the analysis of the
relevant text, these grounds are (a) the individual’s (or his
representative’s) consent or request; (b) a court decision or
(c) urgent necessity (in the event that the individual presents an
imminent danger to himself or others).
- The
Court notes that an analysis as to which of the above-mentioned
grounds applied in the first applicant’s case is missing from
the judgment of the Poltava Regional Court of Appeal, which had found
that the examination was lawful (see paragraph 15 above).
- The
Court refers in this regard to the Government’s remark that the
examination had been carried out on the basis of Mrs L.’s
complaint to the Chief Psychiatrist of the Poltava Hospital
concerning the first applicant’s deviant and harassing
behaviour. It has not been suggested, either in the relevant court
decision, in other case-file materials or in the Government’s
observations, that the latter either requested or consented to the
examination or that prior judicial authorisation was sought to carry
it out. As regards the remaining ground for an examination
established by section 11 of the Law “On Psychiatric
Assistance”, that is, “urgent necessity”, an
explicit reference to it in the case-file materials is likewise
missing. Moreover, the Court notes that Mrs L.’s letter alleged
a lasting pattern of behaviour (referring to a nine-year period),
including swearing, arguing, photographing, eavesdropping, and so on.
While she also referred to instances of physical violence, the only
dated one concerned an incident which had taken place a year
preceding her letter (in June 2000). Neither the domestic judicial
authorities, nor the Government in their observations, suggested that
any of Mrs L.’s complaints could be interpreted as denoting an
“urgency,” which would dispense a psychiatrist from the
obligation to seek the first applicant’s consent or prior
judicial authorisation for his examination. As based on the available
documents it is not possible to establish the exact legal ground for
the first applicant’s psychiatric examination, the Court finds
that the examination was not conducted in accordance with the law.
- The
Court likewise notes that the domestic judicial authorities did not
respond in any particular way to the first applicant’s
arguments that the manner in which the examination was carried out
(an informal conversation in the yard concerning his relations with
his neighbours, which lasted between five (according to the
applicant) and 25 (according to M. F.) minutes was not in conformity
with applicable medical guidelines. The Court considers that analysis
of the alleged procedural shortcomings of the applicant’s
psychiatric examination was of crucial significance in the present
case. The Government likewise did not provide any plausible
explanation as to conformity of the procedural aspect of the
applicant’s psychiatric examination with applicable law. The
Court therefore considers that the establishment of the first
applicant’s diagnosis was not in accordance with the law.
- These
considerations are sufficient for the finding that there has been a
violation of Article 8 of the Convention in respect of subjecting the
first applicant to psychiatric examination against his will on 15
June 2001 and diagnosing him with chronic delusional disorder.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE FIRST APPLICANT ON ACCOUNT OF
INSUFFICIENT REASONING IN THE JUDGMENT OF 30 APRIL 2002
- The
first applicant next complained under Article 6 § 1 of the
Convention that the Court of Appeal had not stated sufficient reasons
for reversing the judgment of 6 February 2002 and finding his
psychiatric examination on 15 June 2001 lawful. This provision,
insofar as relevant, reads as follows:
“... In the determination of
his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established
by law ...”
- The
Government contested this allegation.
- The
Court notes that this complaint is linked to the first applicant’s
complaint under Article 8 and must therefore likewise be
declared admissible.
- It
further reiterates that, notwithstanding the difference in the nature
of the interests protected by Articles 6 and 8 of the Convention,
which may require separate examination of the claims lodged under
these provisions, in the instant case, regard being had to the
Court’s findings under Article 8 (see paragraphs 85-88 above)
concerning the lack of precision as to which legal provision served
as the basis for the first applicant’s psychiatric examination,
the Court considers that it is not necessary to examine the same
facts also under Article 6 (see, mutatis mutandis, Hunt v.
Ukraine, no. 31111/04, § 66, 7 December 2006).
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE FIRST APPLICANT’S ABSENCE FROM A
HEARING OF HIS CASE ON APPEAL
- The
applicant also complained under Article 6 § 1 of the Convention
that he had been unfairly denied the opportunity to participate in
the hearing of his case against the psychiatrists on appeal either in
person or through his lawyer on account of the failure of the Court
of Appeal to notify him of the date of the hearing.
A. Admissibility
- The
Government provided no comments concerning the admissibility of the
above complaint.
- The
Court considers that the complaint at issue is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
first applicant alleged that neither he nor his lawyer had been
notified of the hearing of 30 April 2002. He noted that according to
the applicable provisions of the Code of Civil Procedure, the Court
of Appeal had been obliged to serve a subpoena on him or notify him
of the hearing by registered mail. In the absence of a properly
signed delivery slip, the court was obliged to adjourn the hearing.
The case file did not feature any such delivery slip, while a
reference in the transcript of the hearing to the effect that the
first applicant had been duly informed of the hearing had been
unspecific and unsubstantiated. Notwithstanding that the first
applicant had availed himself of the opportunity to submit written
objections to M. F.’s appeal, his absence from the hearing had
deprived him of the opportunity to exercise important procedural
rights, such as to ask and answer questions, respond to new
submissions by the opponents and file requests. Consequently, he had
been placed at a substantial disadvantage vis-à-vis his
opponents.
- The
Government opposed this view. They submitted that under the
applicable law an appeal hearing could be held in the absence of a
party, in the event that he or she had been duly notified of its date
and time. The first applicant had been so notified, as the transcript
of the hearing showed. Moreover, the Court of Appeal had examined his
written objections against M. F.’s appeal, and so it could
not be said that the parties had been placed on an unequal footing.
2. The Court’s assessment
- The
Court reiterates that the principle of equality of arms – in
the sense of a “fair balance” between the parties –
requires that each party should be afforded a reasonable opportunity
to present his case under conditions that do not place him at a
substantial disadvantage vis-à-vis
his opponent (see, among other authorities,
Dombo Beheer B.V. v. the Netherlands,
27 October 1993, § 33, Series A no. 274). This principle would
be devoid of substance if a party to the case were not notified of
the hearing in such a way as to have an opportunity to attend it,
should he or she decide to exercise a right to appear established in
domestic law (see Zagorodnikov
v. Russia, no. 66941/01, § 30, 7 June 2007). This is
especially so where the judicial authorities are expected, as in the
present case, to determine factual issues, and where the applicant’s
claim is, by its nature, largely based on his personal experience
(see Salomonsson
v. Sweden, no. 38978/97, § 39, 12 November 2002;
Kovalev v. Russia, no. 78145/01,
§ 37, 10 May 2007; and Shytik, cited above).
- Turning
to the facts of the present case, the Court observes that, under the
Code of Civil Procedure in force at the material time, parties to
proceedings were entitled to participate in appeal hearings. The
finding that a case was examined on appeal in the absence of a party
not duly notified of the hearing was a ground for quashing the
judgment on a further appeal in cassation. The Government have not
presented any documents indicating when and how either the first
applicant or his lawyer had been notified of the hearing of 30 April
2002. The Court considers that regard being had to the relevant
provisions of the Code of Civil Procedure concerning notification of
hearings (see paragraph 42 above), the general remark in the hearing
record that the first applicant had been duly notified of it, on
which the Government relies as the proof of such notification, is not
sufficient to rebut the first applicant’s submissions (see
Strizhak, cited above, §§ 38-41 and, by contrast,
Shytik, cited above).
- The
Court also notes that the appeal hearing at issue lasted for one and
a half hours, during which the opposing party, represented by three
persons, appears to have been afforded a substantial opportunity to
present their oral arguments, including a description of the facts.
Furthermore, the Court of Appeal admitted new evidence in the
proceedings, on which the first applicant had not been able to
comment before the bench (see paragraph 14 above). The hearing ended
in a reversal of the first-instance court judgment, the Court of
Appeal having reassessed not only the law, but also the facts of the
case (that is, whether or not M. F. had duly conducted the
psychiatric assessment; see paragraph 15 above).
- Although
the first applicant had had the opportunity to appeal against the
judgment of 30 April 2002 on the points of law, the Supreme Court had
rejected his request for leave to appeal in cassation without holding
a hearing or providing any reasoning.
- In
the light of the above the Court considers that the first applicant’s
absence from the hearing before the Court of Appeal was in breach of
the principle of the equality of arms guaranteed by Article 6 §
1 of the Convention.
- There
has therefore been a violation of this provision in that respect.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
first applicant also complained under Article 6 § 1 of the
Convention that the Supreme Court had not given any reasons for
dismissing his request for leave to appeal in cassation and that the
proceedings at issue had lasted an unreasonably long time.
- Lastly,
he complained under Article 10 of the Convention that he had been
subjected to a psychiatric assessment on account of his deviant
behaviour, which was part of his self-expression.
- Having
considered these complaints in the light of all
the material in its possession, the Court finds that, in so far as
the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 400,000 euros (EUR) jointly in respect of
non-pecuniary damage.
- The
Government maintained that this claim was exorbitant and
unsubstantiated.
- The
Court considers that the applicants have suffered anguish and
distress on account of the violations found, which cannot be made
good by the finding of these violations alone. It awards the first
applicant EUR 15,000 and the second applicant EUR 2,000 in
respect of non pecuniary damage.
B. Costs and expenses
- The
applicants, who had also been granted legal aid, claimed EUR 2,000
in legal fees for their representation before the Court.
- The
Government noted that the applicants had not provided any documents
in support of their claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the fact that the applicants had been granted legal aid (EUR 850) and
to the fact that they did not provide any evidence in support of
their claim, the Court makes no award.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the
Government’s objection as to the exhaustion of domestic
remedies in respect of the applicants’ complaints under Article
3 of the Convention and dismisses it after having examined the merits
of the complaint concerning ineffective investigation;
- Declares the complaints under Articles 3, 6 §
1 (with respect to lack of reasoning in the judgment of 30 April 2002
and absence from the appeal hearing) and 8 of the Convention
admissible and the remainder of the application inadmissible;
- Holds that there have been violations of Article
3 of the Convention in respect of both applicants under the
substantive and procedural limbs;
- Holds that there has been a violation of Article
8 of the Convention in respect of the first applicant;
- Holds that it is not necessary to examine
separately the first applicant’s complaint with respect to the
sufficiency of the reasoning in the judgment of 30 April 2002;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the first applicant’s
absence from the appeal hearing;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts in
respect of non-pecuniary damage, to be converted into the national
currency of Ukraine at the rate applicable at the date of settlement:
- first applicant – EUR 15,000 (fifteen thousand
euros)
- second applicant – EUR 2,000 (two thousand euros)
plus any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 7 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
