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KUCHERUK v. UKRAINE - 2570/04 [2007] ECHR 712 (6 September 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/712.html
Cite as:
[2008] MHLR 1,
52 EHRR 28,
[2007] ECHR 712,
(2011) 52 EHRR 28
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FIFTH
SECTION
CASE OF KUCHERUK v. UKRAINE
(Application
no. 2570/04)
JUDGMENT
STRASBOURG
6
September 2007
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 Kucheruk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2570/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Vladimir Viktorovich
Kucheruk (“the applicant”), on 29 December 2003.
The
applicant, who had been granted legal aid, was represented by Mr A.
P. Bushchenko, a lawyer practising in Kharkiv who submitted a power
of attorney signed by the applicant. His mother also signed the form.
The
Ukrainian Government (“the Government”) were represented
by their Agents, Ms Valeria Lutkovska and Mr Yuriy Zaytsev.
On
31 May 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The facts of the case
The
applicant was born in 1980 and lives in the city of Kharkiv.
In
1998 the applicant was diagnosed as suffering from schizophrenia.
Since then the applicant has attended outpatient treatment at the
City Psychoneurological Healthcare Centre no. 3 (hereafter “the
Healthcare Centre”).
In
March 2001 the applicant was convicted of theft and hooliganism and
sentenced to one and a half year's imprisonment suspended on
probation.
1. The criminal proceedings against the applicant and
his detention on remand
On
12 April 2002 the applicant was arrested and taken into police
custody at the Kominternovsky District Police Station on suspicion of
hooliganism and theft.
On
15 April 2002 the police investigator who had been assigned to the
applicant's case charged him with hooliganism and theft. On the same
day, considering that there were serious
suspicions against the applicant, that he had had a previous
conviction for similar offences and was on probation and that there
was a serious risk that the applicant would commit further offences
or escape trial, the judge of the Kominternovsky District Court of
Kharkiv (hereafter “the Kominternovsky Court”) ordered
the applicant's detention on remand.
On
that same date the applicant was examined at the City Hospital
no. 13. He was found to be suffering from schizophrenia but fit
for detention on remand.
On
16 April 2002 the applicant was brought to the Kharkiv Regional
Pre-trial Detention Centre SIZO no. 27 (hereafter “the
SIZO”) from the police station. On his admission the applicant
was received by the SIZO medical department for observation and
assessment. The prison psychiatrist diagnosed him as suffering from
schizophrenia, but certified him fit for detention at the SIZO.
The
applicant was admitted to a psychiatric ward of
the medical wing of the SIZO. On 17 and 25 April 2002 he was visited
by a prison therapist who prescribed him cardiovascular and systemic
medication.
On
30 April 2002 the investigator requested the Healthcare Centre for
information on whether the applicant had been known to be suffering
from a mental disease. On 5 May 2002 the Healthcare Centre confirmed
that the applicant had been under psychiatric treatment for
schizophrenia since 1998. Relying on this information, on 13 May
2002, the investigator ordered an inpatient
forensic psychiatric examination of the applicant to determine
his sanity at the time of the offence.
The
applicant was transferred to the Psychiatric Hospital no. 15
(hereafter “Hospital”) where he was examined from
17 to 29 May 2002. On the latter date forensic
experts drew up a report, which included the following:
“...Psychiatric status
The patient is available for verbal contact. However
such contact is highly formal. Mimics and movements are spontaneous
and inadequate. He cannot understand and assess the purpose of the
examination or the situation in general. The patient is restless,
euphoric, fidgety, talkative but incoherent in
his speech. .... The patient ... roars
with laughter and grimaces, sticking his tongue out. ... Sometimes he
starts asking in a whisper whether he would be released, but having
received the answer, asks this question again. ... If asked about his
experience after the arrest, the patient becomes restless, somewhat
confused, the expression on his face becomes blank. ... The memory
and intelligence cannot be tested for lack of productive contact...
Sometimes becomes tense, restless and prone to conflict....
Conclusion
1. Mr Kucheruk
presently shows symptoms of acute
personal disorder in the form of reactive state of mind.
2. It is presently
impossible to determine the question of his sanity at the time of the
offences on account of the complexity of clinical manifestations of
his reactive state of mind, which could also point to another mental
illness.
3. Mr Kucheruk's mental
state requires compulsory inpatient psychiatric treatment.”
In
early June 2002 the applicant was transferred back to the SIZO. On 6
June 2002 he was examined by the prison psychiatrist. No medication
was prescribed on that occasion.
On
12 June 2002 the investigator requested compulsory
psychiatric treatment for the applicant. On the same date the
applicant's case-file was sent to the Kominternovsky District
Prosecutor's Office for approval. On 14 June 2002 the
investigator's request and the case-file were received by the
Kominternovsky Court.
On
5 July 2002 the Kominternovsky Court, following an adversarial trial
in presence of the applicant's lawyer, found that he had committed
the theft and hooliganism with which he had been charged. Referring
to the experts' report of 29 May 2002 the court found that the
applicant's acute personal disorder made it impossible at that stage
to determine his sanity at the time of the offences and,
consequently, to consider the question of punishment. The
Kominternovsky Court made an order under Article 421 of the Code of
Criminal Procedure (hereafter the CCrP) committing the applicant for
compulsory psychiatric treatment and suspended the criminal
proceedings against him pending his recovery. The court also
specified that:
“Mr Kucheruk's preventive measure of detention on
remand is to be revoked upon his admission to the psychiatric
establishment.
The judgment may be appealed
against to the Kharkov Regional Court of Appeal within fifteen days
from its delivery.”
On
10 July 2002 the court order of 5 July 2002 was sent to the SIZO for
implementation.
2. The events of July 2002
In
the meantime, the applicant, who was held on ordinary location,
started to show the symptoms of personal
disorder. At the subsequent enquiry the inmates, with whom he
shared a cell, stated that the applicant had acted in a strange way:
mumbling indiscernibly, suddenly yelling at them or starting a
conflict. On 2 July 2002 the applicant assaulted one of his
cellmates. On the same day he was transferred to the medical wing of
the SIZO, where he shared a cell with other prisoners.
From
2 July 2002 onwards each new duty shift of the SIZO guards was
regularly informed of the possibility of the applicant's violent
outbursts and the threat which he posed to other detainees, the SIZO
staff and to himself.
On
3 July 2002 the prison psychiatrist examined the applicant, diagnosed
him as suffering from schizophrenia and catatonic stupor and
prescribed tranquilisers, analeptics (drugs stimulating the central
nervous system) and systemic drugs. On 4 July 2002 the psychiatrist
found that the applicant had recovered from the catatonic stupor and
prescribed a change in his medication.
On
8 July 2002 the applicant became particularly agitated, moving
erratically around the cell, waving his arms, bumping into the
furniture and swearing at prison guards. At 7.00 a.m. three prison
guards on duty were called by the medical wing staff to deal with the
applicant. Through the peephole they observed his erratic movements
and, having classified them as an “outrage” (буйство)
within the meaning of Article 18 of the Law “on Detention on
Remand”, ordered the applicant to stop this, to face the wall
and to put his hands behind his back. The applicant failing to obey
these orders, the guards warned him that they were about to use force
and entered the cell. The guards beat the applicant with truncheons,
forced him to the floor and handcuffed him. Although a prison
paramedic was called to attend to the applicant soon after the
incident, there is no information that he received any treatment or
medication for the injuries sustained during the restraining
struggle.
In
a report, dated 8 July 2002 and amended on (apparently) 15 July 2002,
the three prison guards and the paramedic involved in the incident
informed the Governor of the SIZO about the circumstances of the use
of special police equipment (truncheons and handcuffs). In different
handwriting it was added that the handcuffs were applied at 7.00 a.m.
on 8 July 2002 and removed at 6.45 a.m. on 15 July 2002. At the
bottom of the page, below the signatures of the officers and the
paramedic, it is indicated that there were found “distinct
traces of their [truncheons and handcuffs] application and no other
injuries ... could be detected”. These notes were signed by a
certain Kh., apparently a prison doctor or paramedic, and dated 15
July 2002.
On 8 July 2002 the Governor imposed on the applicant
ten days' confinement to a disciplinary cell for a “grave
violation of the prison regime”. Before his transfer the
applicant was examined by two prison officers and a doctor who
indicated in their report that the applicant's shoulders and buttocks
bore injuries inflicted by truncheons. They concluded, however, that
the applicant was fit to be detained in the disciplinary cell.
Whilst
in the disciplinary cell the applicant was locked up for about
twenty-three hours each day. Although the disciplinary cell was
visited each day by a physician and psychiatrist no treatment or
medication was administered to him as, according to the medical
records, he refused to accept them. The entry in the applicant's
medical notes for 10, 12 and 16 July 2002, made by the prison
physician, records:
“10 July 2002 ... [the applicant] made an abrupt
move towards me, stretching out his handcuffed hands...
12 July 2002 ... [the applicant] was quickly moving
around the cell, bending himself and trying to pull his legs between
his handcuffed hands...[he] is banging his head against the wall
trying to free himself from the handcuffs ..
16 July 2002 ... [the applicant] is trying to remove
the handcuffs rolling on the floor”.
The
applicant's detention in the disciplinary cell continued until his
discharge from the SIZO on 17 July 2002.
3. The treatment in the psychiatric hospital
On
17 July 2002 the applicant was transferred to the Hospital for
compulsory treatment pursuant to the Kominternovsky Court's judgment
of 5 July 2002.
On
27 January 2003 the psychiatric commission of the Hospital, following
a fresh assessment of the applicant's mental condition, recommended
that his psychiatric treatment should continue.
On
28 February 2003 the Kominternovsky Court, having regard to the
experts' report of 29 May 2002 and oral submissions of the doctor in
attendance at Hospital, allowed the petition of the chief
psychiatrist of the Hospital and ordered an extension of the
applicant's compulsory psychiatric treatment pending his recovery.
On
2 April 2003 the applicant's mother filed with the Moskovskyy
District Court of Kharkiv (hereafter “the Moskovskyy Court”)
a petition under Article 256 of the Code of Civil Procedure
(hereafter “the CCivP”) seeking to have her son declared
incapable by reason of mental disorder.
On
26 May 2003 the psychiatric commission of the Hospital recommended
that the applicant's compulsory treatment be discontinued.
On
28 May 2003 the Moskovskyy Court ordered a
forensic psychiatric examination of the applicant under
Article 258 of the CCivP in order to determine his sanity.
On
7 July 2003 the Kominternovsky Court lifted the compulsory treatment
order. It also indicated that criminal proceedings against the
applicant should be resumed and a forensic psychiatric examination
should be ordered to determine the applicant's sanity at the time of
the offence.
On
1 August 2003 the pre-trial investigation against the applicant was
resumed.
On
4 August 2003 the Hospital received the Kominternovsky Court's ruling
of 7 July 2003.
On
5 August 2003 the investigator requested the Kominternovsky Court to
authorise the applicant's inpatient psychiatric examination under
Article 205 of the CCrP, which request was granted on 6 August 2003.
Both
forensic examinations ordered by the Moskovskyy and Kominternovsky
Courts were completed on 1 September 2003. The psychiatric experts
concluded that the applicant's mental disorder prevented him from
understanding the consequences of his actions and directing his
conduct.
On
2 September 2003 the applicant was discharged from the Hospital and
handed over to his mother.
On
4 November 2003 the Kominternovsky Court terminated criminal
proceedings against the applicant in view of his lack of criminal
liability.
On
11 November 2003 the Moskovskyy Court allowed the petition of the
applicant's mother and declared him legally incapacitated.
4. The investigation into the alleged ill-treatment and
unlawful detention
Upon
the applicant's admission to the Hospital on 17 July 2002 his mother
was informed of his whereabouts. Ms Kucheruk stated that when on the
next day she visited him she saw that the applicant was badly injured
and could hardly move or talk. The only words she alleged that the
applicant had managed to utter were “[they] beat heavily”
(cильно
били).
On
25 July 2002 the applicant's mother filed a criminal complaint
against the prison guards for ill-treatment of her son.
On 2 August 2002 the applicant's mother and a human
rights activist from a local non-governmental organisation visited
the applicant in his ward. They drew up a document attesting that the
applicant had an injury on his head behind the left ear, several
bruises on the face and forehead, and deep cuts around his wrists.
On
unspecified date the Governor of the SIZO commenced a criminal
investigation into the complaint of the applicant's mother. On 19 and
20 August 2002 written statements were taken from two of the
inmates who had shared a cell with the applicant on ordinary
location, from his four cellmates in the medical wing who witnessed
the incident of 8 July 2002, three prison guards involved
in this incident and a prison paramedic. The inmates and the prison
guards briefly outlined the events of 2-8 July 2002 as they
are described above in paragraphs 19 and 22. The paramedic wrote that
he had been called to attend to the applicant after the latter had
been immobilised by the guards. He had observed the marks of
truncheons on the applicant's scapulas and buttocks and the marks on
his wrists made by handcuffs.
As
part of the inquiry, on 14 August 2002, the Governor of the SIZO
ordered that medical evidence be obtained. On the same day the
applicant was examined by an expert from the Kharkiv Forensic
Medicine Institute. The expert's report
stated the following:
“Examination
An oblong abrasion, 2.5x0.5 cm, with thick blood crust
is identified on the outer part of Mr Kucheruk's right wrist. The
wound is directed horizontally. Similar abrasions are observed on the
inner part of the right wrist, outer and inner parts of the left
wrist. Similar in appearance abrasions were observed on the left
elbow, on the right occipital area, on the inner-posterior and on the
frontal part of the left thigh. These injuries measure from 1x0.2 cm.
to 5.5x0.3 cm. ...
Conclusion
1. According to the medical documents
provided [by the Governor of the SIZO] it is established that Mr
Kucheruk bore bruises and abrasions, which had been inflicted by
blunt solid objects.
During the examination of Mr Kucheruk on 14.08.2002 he
bore abrasions on his head, right foot, arms and left thigh. He also
had bruise on left eye globe and left shoulder. All these injuries
were inflicted by blunt solid objects. The bruises were between three
to five days old and the abrasions were between seven to ten days
old...
2. Having regard to the description of the
injuries in medical documents [drawn up by the SIZO staff] as well as
entries of 8 and 15 July 2002, where the injuries are not described
at all, the nature of the injuries (indicated the presence of the
marks of the truncheons and handcuffs) it is impossible to make any
conclusions about the time of these injuries.
4. Mr Kucheruk's injuries could be inflicted
by special equipment (truncheons and handcuffs)”
On
21 August 2002 the Governor of the SIZO decided not to bring criminal
proceedings against the guards involved in the incident, finding no
wrongdoing on their part. He relied in this conclusion on the
said written statements of the inmates and prison officers and the
forensic report of 14 August 2002.
On an unknown date the prison supervision department of the Kharkiv
Regional Prosecutor's Office confirmed this decision.
On
4 September 2002 the applicant's mother received a letter from the
Governor of the SIZO in which he informed her that no criminal
investigation in respect of the accused prison officers was to be
opened, without, however, indicating the date of the relevant
decision or providing a copy. In his letter the Governor also
expressed the opinion that the truncheons and handcuffs had been used
by the guards in accordance with the relevant regulations. Their
application was aimed at protecting the SIZO staff and the applicant
himself from his uncontrolled and aggressive behaviour.
On
26 December 2002 the Kharkiv Regional Prison Deparment (hereafter
“the Department”) informed the applicant's mother that an
additional internal inquiry, undertaken, apparently, on her request,
revealed no wrongdoing on the part of the SIZO guards.
By
a letter of 16 January 2003 the Head of the Department informed the
applicant's mother that her further complaints were unsubstantiated.
He referred in this respect to the inquiry carried out by the
Governor of the SIZO, which had culminated in his decision of 21
August 2002. This being the first mention of the date of the
Governor's decision in any official correspondence with the
applicant's mother, on 8 February 2003 she requested a copy of the
final report and access to the case-file. On 25 February 2003
the Head of the Department rejected this request. On 27 March
2003 he rejected her second request to that effect.
On
31 March 2003 the applicant's mother challenged the Governor's
decision of 21 August 2002 before a court. On 27 May 2003
the Zhovtnevy District Court of Kharkiv (hereafter “the
Zhovtnevy Court”), having heard the prosecutor, rejected her
complaint as unsubstantiated. The applicant's mother appealed.
In
the course of the appeal proceedings, on 14 August 2003, the
applicant's lawyer was, for the first time, given access to the
case-file.
On
18 November 2003 the Kharkiv Regional Court of Appeal quashed the
decision of the Zhovtnevy Court on the grounds that it had been taken
in the complainant's absence and remitted the case for fresh
consideration.
On
24 December 2003 the Zhovtnevy Court found, without giving any
details, that the inquiry was flawed. It reopened the case and handed
it to the Governor of the SIZO for further
investigation.
On
4 March 2004 the Governor, referring to the same evidence as before,
discontinued the criminal proceedings again. His final report
indicated, inter alia, that:
“...Mr Kucheruk arrived at the [SIZO] with a
medical certificate, issued by the city hospital no. 13 on 15 April
2002, according to which he was fit to be detained in a SIZO. ... On
the basis of this information Mr Kucheruk was placed in a psychiatric
ward of the medical wing.
On 16 April 2002 Mr Kucheruk was examined by [the prison
psychiatrist] who diagnosed him as suffering from schizophrenia. At
the time of the examination his mental condition was satisfactory and
he did not need any active treatment.”
As to
the applicant's conduct after the incident of 2 July 2002 and his
transfer from the ordinary location to the medical wing the Governor
stated that:
“On 3 July 2002 Mr Kucheruk was examined by [the
prison psychiatrist] who found him suffering from schizophrenia and
catatonic stupor and prescribed the relevant medication.
On 4 July 2002 the patient recovered from the catatonic
stupor ... but continued to have tense relations with his cellmates.
Accordingly, on the ground of generalised data about the
inadequate conduct of Mr Kucheruk, the officers on duty were
daily instructed about his possible violent outbursts against the
cellmates or the SIZO staff.”
The
report of 4 March 2004 further states that, following the incident of
8 July 2002 the applicant was placed in the disciplinary cell for
grave violation of the prison regime. Having regard to the
applicant's mental condition, the paramedic who had examined him
after the incident recommended keeping him handcuffed.
As
regards the time of the applicant's discharge to the Hospital the
Governor indicated that:
“The [Kominternovsky Court's judgment of 5 July
2002] did not contain any provision for immediate execution. It set
out a fifteen-day time limit for appeal; therefore the term provided
by Article 404 of the Code of Criminal Procedure for execution of
this judgment was complied with as the applicant was transferred to
the [Hospital] on 17 July 2002.”
On
1 October 2004 the Zhovtnevy Court, on the complaint of the
applicant's lawyer, quashed this decision and ordered further
investigations. The court specified the following irregularities:
the failure to take
account of the submissions of the applicant's mother concerning the
applicant's state of health in July-August 2002;
the failure to
assess the lawfulness and reasonableness of the guards' conduct
against the legal principle prohibiting degrading treatment;
the failure to
determine whether the applicant's misbehaviour constituted a
violation of the prison regime meriting his placement in the
disciplinary cell;
the failure to
consider the proportionality of the use of force;
the fact that the
investigation was conducted by the Governor of the SIZO, i.e. a
person whose impartiality was highly doubtful.
The
case-file was transmitted to the Kharkiv Regional Prosecutor's Office
for additional investigations. In a final report of 1 November 2004 a
prosecutor of the prison supervision department of the Kharkiv
Regional Prosecutor's Office came to a similar conclusion as the
Governor of the SIZO that the applicant was fit for detention in the
SIZO and the prison officers concerned acted properly on the basis of
orders which they were given and the relevant regulations. The
prosecutor referred in this respect to the evidence collected by the
Governor's investigation and the statements of the prison
psychiatrist that normally for pacifying mentally ill patients
certain drugs should be used. However, if these drugs were not
available, special equipment could be applied to immobilise such a
patient. The prosecutor further agreed with the Governor's finding
that the applicant's conduct constituted a flagrant violation of the
prison rules and warranted his detention in the disciplinary cell.
The applicant's mother appealed.
On
30 July 2005 the Chervonozavodskyy District Court of Kharkiv
(hereafter “the Chervonozavodsky Court”) quashed this
report and ordered further investigations as the authorities had
failed to fulfil the instructions of the Zhovtnevy Court.
On
6 September 2005 a senior prosecutor of the prison supervision
department of the Kharkiv Regional Prosecutor's Office, following
additional investigation, decided not to bring any charges against
the prison officials. His final report repeated,
in substance, the findings in the report
of 1 November 2004 that the applicant was fit to be detained in
the SIZO and that there was no wrongdoing on the part of the prison
authorities. The senior prosecutor stated, inter alia, that
the applicant's detention after 12 June 2002 was based on a
letter from the Head of the Investigative Department of the
Kominternovsyy District Police Station that the applicant's case-file
was sent to the Kominternovsky District Prosecutor's Office for
approval. As to the applicant's committal for a ten-day detention in
the disciplinary cell, he held that “the severity of the
punishment imposed fully corresponded to the nature of the committed
offence”. He further found that the applicant was held in the
SIZO until 17 July 2002 due to the fifteen-day time limit for entry
into force of the judgment of 5 July 2002. Although the forensic
report of 14 August 2002 recorded the application of handcuffs by the
prison guards, the investigation did not establish whether or not
between 8 and 15 July 2002 the applicant was handcuffed all the time.
The senior prosecutor concluded that there was no evidence that the
prison officers acted in bad faith or in violation of the relevant
laws and regulations when restraining the applicant with truncheons
and handcuffs, putting him in disciplinary cell and holding him in
SIZO until 17 July 2002.
On
28 October 2005 the applicant's mother challenged this report before
the Chervonozavodskyy Court where the proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine
The
relevant extracts from the Constitution read as follows:
“Article 28
Everyone has the right to respect for his or her
dignity.
No one shall be subjected to torture, cruel, inhuman or
degrading treatment or punishment that violates his or her dignity.
...
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 substantiated court decision and only on the grounds
and in accordance with the procedure established by law...”
B. Criminal Code of 5 April 2001
1. Mentally ill offenders
The
text of Article 19 and Articles 92 and 94-96 of the Criminal Code of
5 April 2001 can be found in the Court's judgment in the case of
Gorshkov v. Ukraine (no. 67531/01, § 28, 8 November
2005).
2. Criminal liability for excess of power and official
negligence
Article
365 of the Code provides:
“Excess
of power or office, namely intentional exercise by an official of
actions which manifestly exceed his or her powers they caused serious
damage to the State or public interests or to the lawful interests of
natural or legal persons shall be punishable ....”
63. Article
367 of the Code prescribes liability for official negligence:
“Official
negligence, namely non-fulfilment or undue fulfilment by an official
of his/her duties resulting from an irresponsible attitude, if
it caused serious damage to the State or public interests or to
lawful interests of natural or legal persons shall be punishable ...”
C. Code of Criminal Procedure, 1960
1. Investigations into offences
The
relevant provisions of the CCrP regulating the conduct of the
pre-trial investigation proceedings are summarised in Court's
judgment in the case of Sergey Shevchenko v. Ukraine (no.
32478/02, §§ 38 and 39, 4 April 2006),
Article
101 enumerates the bodies of inquiry. Normally these functions are
discharged by the police. However paragraph 5 of Article 101 also
vests this power in the governors of prisons and pre-trial detention
centres who conduct inquiries into offences committed by the prison
officials involving violation of prison rules.
2. Preventive measures
Articles 148 (purpose and grounds for the application
of preventive measures) and 149 (list of preventive measures), 150
(circumstances that should be taken into account in choosing a
preventive measure) and Article 156 (the time-limits for holding in
custody) of the CCrP are to be found in the judgment of Nevmerzhitsky
v. Ukraine (no. 54825/00, § 53, ECHR 2005).
Article
155 of the CCrP insofar as relevant provides as follows:
“Detention on remand as a preventive measure is
applied in cases concerning offences for which the law envisages an
imprisonment for a period over three years...
The persons, against whom the detention on remand order
is issued, are to be kept in the pre-trial detention centres.”
Article
237 of the CCrP insofar as relevant provides:
“In a case, which was received from the prosecutor
[with the bill of indictment] the judge in a preliminary hearing
resolves the following questions:
...4) whether there are any reasons to change, terminate
or apply a preventive measure.”
Article 241 of the CCrP reads as follows:
“A preparatory hearing should be held within 10,
in complex cases 30 days, after the case-file has been received by
the court.”
3. Inpatient expert examination by a medical
institution
Article
205 of the CCrP provides:
“If it is necessary for conducting of the forensic
medical or psychiatric examination to undertake a long-term
monitoring or assessment of the suspect, the court, on the
investigator's request authorised by the prosecutor, may order
commitment of the suspect to the relevant medical institution.”
4. Appeal procedure
Article
347 of the Code provides:
“An appeal may be filed against:
...2) court orders concerning the application
of ... compulsory medical treatment.”
According
to Article 349 of the Code:
“An appeal against the judgment, ruling or an
order of the first instance court ... may be filed within fifteen
days after its adoption...”
5. Execution of orders
Article
402 of the CCrP reads as follows:
“The court order or ruling shall become final and
enforceable upon the expiry of the time-limit for appeal.”
6. Application of compulsory medical measures
Articles
416 (Grounds for the application of measures of compulsory medical
treatment) and 422 (Termination or modification of the applicable
compulsory measures of medical treatment) of the CCrP are set out in
the Gorshkov (cited above, § 31).
Article
424 provides as follows:
“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.”
According to Article 417 of the CCrP:
“Pre-trial investigation in cases concerning
illegal acts committed by persons who are not criminally responsible
or who bear only limited criminal responsibility, as well as in cases
concerning offences committed by persons who become mentally ill
after the events in question but before the imposition of the
sentence shall be conducted by the investigating authorities pursuant
to the rules set out in Articles 111-130 and 148-222 of the present
Code.
Following the completion of the pre-trial investigation,
if the alleged offender is found to have no or limited criminal
responsibility, the investigator shall draw up a ruling requesting
the court to commit this person for compulsory
medical treatment ... This ruling is sent to the prosecutor.”
Article
418 of the CCrP reads as follows:
“Having received a case with the ruling under
Article 417 of this Code, the prosecutor:
1) if he agrees with this ruling, shall confirm it and
transmit the case to the court;
2) if he finds that the ... collected evidence is
insufficient to reach a conclusion as to the mental condition of the
accused or that the collected evidence is insufficient to prove that
the illegal act has been committed by the person in issue, shall
return the case-file to the investigator with his written
instructions for further inquires.”
Article
419 of the CCrP insofar as relevant provides:
“If the judge or the president of the relevant
court, who received the case-file with the request for compulsory
medical treatment, agrees with the investigator's ruling, he
or she shall send the case directly for trial.
The trial in these cases is carried out in open hearing
with obligatory participation of the prosecutor and defence lawyer in
accordance with rules prescribed in Chapters 25 and 26 [Articles
283-317] of this Code.”
According
to Article 421 of the CCrP:
“When it is established that a [mentally ill]
person has committed an illegal act or a person became mentally ill
after the commission of an offence ... the court shall commit him or
her for compulsory medical measures, indicating which exactly measure
should be applied.”
D. Code of Civil Procedure, 1963
Article
221 of the CCivP provides in its relevant part:
“The court must suspend its examination of a case
if ...it is impossible to hear this case before the termination of
another civil, criminal or administrative set of proceedings.”
Article
256 of the CCivP provides that close relatives of a mentally ill
person, associations, a prosecutor or a local board of tutorship may
apply to the court with a view to declaring this person incapable by
reason of mental disorder.
According
to Article 257 of the CCivP a petition filed under Article 256
should include evidence of the mental disorder which prevents the
person concerned from understanding his or her actions and conducting
his or her affairs.
Article
258 of the CCivP empowers the court to order forensic psychiatric
examination of the person concerned. In exceptional cases, when the
person concerned overtly evades the examination, the court may order
his or her compulsory psychiatric examination.
E. Pre-trial Detention Act 1993
Article
8 of the Act provides that:
“Detained persons are kept on ordinary location.
In exceptional circumstances ... and for medical reasons, following a
reasoned decision of the relevant investigating authority or a
governor of the relevant centre for detention on remand, a detainee
can be placed in solitary confinement.”
Article
18 of the Act sets out rules governing the use of force by prison
guards. The officers of the centres for detention on remand are
entitled to use physical force, police equipment and firearms against
the inmates. The use of force should be preceded by a warning if the
circumstances so allow. If the use of force cannot be avoided, it
should not exceed the level necessary for fulfilment by the officers
of their duties and should be carried out so as
to inflict minimal possible injuries. The prison officers are
entitled to use force and special equipment, including unarmed
combat, handcuffs, truncheons etc. with a view to putting an end to
physical resistance, violence, outrage (буйство)
and opposition to the lawful directions of the administration of the
centre for detention on remand if other means
of achieving a legitimate objective proved ineffective.
The
special police equipment and firearms cannot be applied to women with
visible signs of pregnancy, aged persons, persons with visible signs
of invalidity and underage persons, unless there is an assault by a
group of these persons, which is dangerous for the lives of the
prison officers or others.
A
governor has the power to place a prisoner in a disciplinary cell
where this is necessary for putting an end to the physical
resistance, violence, outrage and opposition to the lawful directions
of the administration.
The
choice of means to be used, the time and intensity of their use is
determined with regard to the circumstances, the nature of the
wrongdoing and the personal characteristics of the perpetrator.
The
officer who has used the force or special equipment, must immediately
report this to his direct supervisor and the relevant prosecutor. All
persons against whom the above means have been used should be
immediately examined by a medical practitioner.
F. Psychiatric Medical Assistance Act, 2000
The
relevant provisions of the Act are quoted in the case of Gorshkov
(cited above, § 30).
G. Resolution of the Cabinet of
Ministers of Ukraine no. 49 of 27 February 1991 on
the Rules of Application of Special Means in Maintaining Public Order
Paragraph
4 of the Resolution enumerates the cases when special means may be
used, including when they are necessary for putting an end to the
resistance to police officers or other persons who carry out official
public order duties.
Paragraph
6 of the Resolution provides that a decision about the application of
special means is to be taken by an official responsible for
maintenance of public order or the head of the particular operation.
A person taking such a decision must immediately inform his or her
superiors in writing.
Paragraph
7 of the Resolution obliges the police officers who applied the
special means to ensure immediate medical assistance to the victims.
Paragraph
14 of the Resolution prohibits the application of rubber truncheons
to the head, neck, collar area, stomach and genitalia.
H. Decree No. 346/877 of the Ministry of Health of 19
December 2000 on the measures for prevention of illegal actions of
persons who suffer from severe mental disorder
According
to Paragraph 2.5 of Decree no. 346/877 the psychiatric establishment
is obliged to inform the relevant local police department about the
imminent release of a mentally ill person.
I. Decree No. 397 of the Ministry of Health
The
relevant extracts from the 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)
are set out in Gorshkov (cited above, § 32):
The
relevant extracts from the Instruction 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 the Ministry of Health) are also quoted in the case of Gorshkov
(cited above, § 33).
J. Resolution of the Plenary Supreme Court on judicial
practice in cases involving of excess of power, no. 15 of 26 December
2003
According
to Section 8 of the Resolution force, as an element of excess of
power, can be both physical and psychological. Physical force may
involve, inter alia, unlawful deprivation of liberty and
inflicting blows.
Section
9 of the Resolution provides that illegal actions constituting an
excess of power fall within the scope of the criminal law when they
are “painful or abusive”, and the Supreme Court declared
that such actions were to be interpreted as “painful or
abusive” when they inflict physical pain or moral suffering on
the victim. These actions can involve, inter alia, the
unlawful use of special police equipment such as truncheons and
handcuffs.
K. Resolution of the Plenary Supreme Court on judicial
practice in application of compulsory medical measures, no. 2 of
19 March 1983 (with amendments of 4 June 1993) and
Resolution of the Plenary Supreme Court on practice of application by
the courts of compulsory medical measures and compulsory treatment
no. 7 of 3 June 2005
The
1983 Resolution was valid at the material time. In 2005 it was
replaced by Resolution no. 7 of 3 June 2005.
In
both Resolutions 1983 and 2005 (Sections 9 and 15 respectively) the
Supreme Court, when interpreting domestic law regulating the types of
compulsory measures of a medical character, stated that the court
which has ordered compulsory treatment of a person, against
whom a preventive measure had been taken, should,
simultaneously, order discontinuation of the preventive measure from
the moment of this person's admission to the psychiatric institution.
L. Observance of human rights in preliminary detention
facilities. Extracts from the reports of the Commissioner for Human
Rights of the Parliament of Ukraine of 2001 (the first annual report)
and 2002 (the second annual report)
The
relevant provisions of the first and second annual reports are set
out in the Nevmerzhitsky (cited above, §§ 60 and
61).
III. RELEVANT INTERNATIONAL DOCUMENTATION
The
relevant extracts from the Committee of Ministers' Recommendation No.
R (87) 3 on the European Prison Rules (adopted by the Committee of
Ministers on 12 February 1987 at the 404th meeting of the Ministers'
Deputies) read as follows:
“Medical services
26. 1. At every institution there shall be available the
services of at least one qualified general practitioner. The medical
services should be organised in close relation with the general heath
administration of the community or nation. They shall include a
psychiatric service for the diagnosis and, in proper cases, the
treatment of states of mental abnormality.
2. Sick prisoners who require specialist treatment shall
be transferred to specialised institutions or to civil hospitals.
Where hospital facilities are provided in an institution, their
equipment, furnishings and pharmaceutical supplies shall be suitable
for the medical care and treatment of sick prisoners, and there shall
be staff of suitably trained officers.
30. 1. The medical officer shall have the care of the
physical and mental health of the prisoners and shall see, under the
conditions and with a frequency consistent with hospital standards,
all sick prisoners, all who report illness or injury and any prisoner
to whom attention is specially directed.
2. The medical officer shall report to the director
whenever it is considered that a prisoner's physical or mental health
has been or will be adversely affected by continued imprisonment or
by an condition of imprisonment.
Discipline and punishment
38. 1. Punishment by disciplinary confinement and any
other punishment which might have an adverse effect on the physical
or mental health of the prisoner shall only be imposed if the medical
officer, after examination, certifies in writing that the prisoner is
fit to sustain it.
Instruments of restraint
39. The use of chains and irons shall be prohibited.
Hand cuffs, restraint-jackets and other body restraints shall never
be applied as a punishment. They shall not be used except in the
following circumstances:
a. if necessary, as a precaution against escape during a
transfer, provided that they shall be remove when the prisoner
appears before a judicial or administrative authority unless that
authority decides otherwise;
b. on medical grounds by direction and under the
supervision of the medical officer;
c. by order of the director, if other methods of control
fail, in order to protect a prisoner from self-injury, injury to
others or to prevent serious damage to property; in such instances
the director shall at once consult the medical officer and report to
the higher administrative authority.
40. The patterns and manner of use of the instruments of
restraint authorised in the preceding paragraph shall be decided by
law or regulation. Such instruments must not be applied for any
longer time than is strictly necessary.
Insane and mentally abnormal prisoners
100. 1. Persons who are found to be insane should not be
detained in prisons and arrangements shall be made to remove them to
appropriate establishments for the mentally ill as soon as possible.
2. Specialized institutions or sections under medical
management should be available for the observation and treatment of
prisoners suffering gravely from other mental disease or abnormality.
3. The medical or psychiatric service of the penal
institutions shall provide for the psychiatric treatment of all
prisoners who are in need of such treatment.”
The relevant extracts from the Report of the CPT on a
visit to Ukraine [CPT/Inf (2004) 34] from 10 to 26 September 2000
read as follows:
“The CPT would point out that all mentally ill
prisoners, including those serving life sentences, should be cared
for and receive treatment in a hospital facility adequately equipped
and with qualified staff. Forcing such prisoners to stay in prison,
where they cannot receive appropriate treatment for lack of suitable
facilities or because such a facility refuses to accept them, is an
unacceptable state of affairs. The transfer of mentally ill prisoners
to an appropriate psychiatric facility should be considered a high
priority.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The
applicant complained about unreasonable and disproportionate use of
force by the prison guards during detention, his handcuffing whilst
in a disciplinary cell, allegedly inadequate medical care and
assistance whilst in detention and the lack of an effective and
independent investigation into the alleged ill-treatment.
He
relied on Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
applicant also invoked Article 13 of the Convention which provides as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
1. Exhaustion of domestic remedies
The
Government contended that the applicant's complaints about
ill-treatment were premature since the criminal investigations into
this mater were still pending. They also pointed to the possibility
to sue the authorities for damages in civil proceedings.
The
Government also maintained that the applicant had failed to exhaust
the domestic remedies available to him as required by Article 35 §
1 of the Convention, in that he had omitted to bring civil
proceedings in respect of his conditions of detention or to raise
before the administration of the SIZO the question of his transfer to
another cell or inadequateness of his conditions. Nor had he raised a
complaint about the inadequate medical conditions in the context of
the criminal proceedings against the SIZO officials.
The
applicant stated that the remedies referred to by the Government were
ineffective in his case.
The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention
obliges applicants first to use the remedies that are normally
available and sufficient in the domestic legal system to enable them
to obtain redress for the breaches alleged. The existence of the
remedies must be sufficiently certain, in practice as well as in
theory, failing which they will lack the requisite accessibility and
effectiveness. Article 35 § 1 also requires that
the complaints intended to be brought subsequently before the Court
should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements laid down in
domestic law, but that no recourse should be had to remedies which
are inadequate or ineffective (see the Aksoy v. Turkey
judgment of 18 December 1996, Reports 1996-VI, §§
51-52, and the Akdivar and Others v. Turkey, judgment of 16
September 1996, Reports of Judgments and Decisions 1996 IV,
§§ 65-67).
The
Court emphasises that the application of the rule of exhaustion of
domestic remedies must make due allowance for the fact that it is
being applied in the context of machinery for the protection of human
rights that the Contracting States have agreed to set up.
Accordingly, it has recognised that Article 35 § 1
must be applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; for the
purposes of reviewing whether it has been observed, it is essential
to have regard to the circumstances of the individual case. This
means amongst other things that the Court must take realistic account
not only of the existence of formal remedies in the legal system of
the Contracting State concerned but also of the general context in
which they operate, as well as the personal circumstances of the
applicant (see the Akdivar and Others judgment cited above,
p. 1211, § 69, and the Aksoy judgment cited
above, p. 2276, §§ 53 and 54).
The
Court will first consider the Government's submissions concerning the
applicant's complaints about the allegedly disproportionate use of
force and handcuffing.
The
respondent Government invoked two avenues of recourse for the
applicant, namely a claim for damages and a criminal complaint.
As
regards the first alleged remedy, the Court notes that the Government
have failed to specify under which procedure (civil, administrative
or other) such an action could be filed with the court. No decision
has been produced to the Court in which the domestic courts were
able, in the absence of any results from the criminal investigation,
to consider the merits of a claim relating to alleged serious
criminal actions. Moreover, Article 221 of the CCivP in effect
prohibits a finding in a civil case while the criminal case on the
related facts is still pending (see paragraph 78 above). In the light
of the above the Court finds that the applicant was not obliged to
pursue a civil action in order to exhaust domestic remedies, and the
preliminary objection is in this respect unfounded.
As
regards criminal law remedies, the Court observes that a criminal
investigation was instituted into the circumstances of the
applicant's detention in the SIZO and, in particular, into the
incident of 8 July 2002. The first two rounds of the preliminary
inquires were conducted by the Governor of the SIZO, who represented
the authority involved. The prosecution's investigation commenced
over two years and two months after the impugned events and still
continues. It did not lead to charges being brought against any
officials.
The
Court considers that this limb of the Government's preliminary
objection raises issues concerning the effectiveness of the criminal
investigation in establishing the facts concerning and responsibility
for the events about which the applicant complains. These issues are
closely linked to the merits of the applicant's complaints under
Articles 3 and 13 of the Convention. In these circumstances, it joins
the preliminary objection to the merits of the applicant's
complaints.
The
Court will next examine the Government's arguments concerning the
non-exhaustion of domestic remedies with respect to the complaints
about the medical conditions of detention. The Government contended
that the applicant should have complained to the prison authorities
about the medical treatment, that he could have brought a civil
action against the SIZO, and that he should have raised the issue in
the subsequent investigation.
The
Court first notes that, while it is true that the applicant did not
lodge with the SIZO administration any complaints regarding his
conditions (compare and contrast Khokhlich v. Ukraine, no.
41707/98, § 151, 29 April 2003), it should,
nevertheless, be taken into account that during the period of
detention in an ordinary cell (from early June to 2 July 2002, see
paragraphs 15 and 19 above), which appears to give rise to most of
the applicant's complaints, his mental condition was such as to
impair substantially his ability to communicate with the outside
world. It should further be noted that from the very outset the
prison authorities were well aware of the applicant's mental problems
and, after his forensic assessment in May 2002, that he should not be
detained in ordinary prison hospital facilities or in an ordinary
cell. The Court notes that the applicant had been diagnosed as
suffering from schizophrenia at least from 15 April 2002, and
handcuffs were applied to him at the latest on 8 July 2002. In the
circumstances the applicant cannot be expected to have raised with
the SIZO authorities specific complaints about the conditions.
Accordingly, the Government have not shown that, in the particular
circumstances, the applicant was required to address the prison
authorities with complaints. This argument, therefore, should be
rejected.
As
to the possibility of lodging a civil action concerning the
conditions of detention, the Court reiterates that Article 35 §
1 requires not only that a domestic remedy is available, but that it
is effective to redress the alleged breach of an individual's
Convention rights. The Court notes in this respect that the
Government have not shown how recourse to civil proceedings could
have brought about an improvement in the applicant's conditions of
detention. Nor have they supplied any example from domestic case-law
to show that such proceedings by a prisoner would have stood any
prospect of success (see Khokhlich, cited above § 153).
The Court, therefore, rejects this submission.
In
so far as the Government argued that the applicant failed expressly
to raise his complaint about the medical conditions before the
prosecution authorities investigating the conduct of the prison
officials, it should be noted that the issue of the applicant being
detained in the SIZO, that is, an establishment which was not
primarily designed to hold mentally ill prisoners, lay at the heart
of his mother's criminal complaint. The question of the compatibility
of the applicant's conditions of detention with the domestic legal
order was therefore fully before the domestic authorities, and the
Government's submission must be rejected.
The
Court, therefore, joins the preliminary objection concerning the
effectiveness of the criminal investigation to the merits of the
applicant's complaints under Articles 3 and 13 of the Convention and
dismisses the remainder of Government's objections regarding the
alleged non exhaustion of domestic remedies.
2. Compliance with the six months' rule
The
Government submitted that, since the applicant claimed that there had
been no effective remedy, his complaint about the disproportionate
use of force should have been introduced within six
months from the act alleged to constitute a violation of the
Convention. They submitted that the impugned incident took place on 8
July 2002 whereas the application was introduced to the Court on 29
December 2003, i.e. more than six months later.
As to
the complaint about the medical conditions, the Government suggested
that the six-month period runs from 25 July 2002, when the
applicant's mother lodged her criminal complaint.
The
applicant maintained that he had never claimed that there was no
remedy as regards Article 3 in principle. He rather argued that this
remedy, a criminal investigation, proved ineffective in practice in
his case.
Insofar
as the Government argues that the complaints about the
disproportionate use of force have been filed out of time in that
they were introduced more than six months after the impugned events,
the Court agrees with the Government that where no domestic remedy is
available the six months' time-limit contained in Article 35 § 1
of the Convention in principle runs from the date of the act
complained of in the application (cf. Al Akidi v. Bulgaria
(dec.), no. 35825/97, 19
September 2000).
However,
special considerations could apply in exceptional cases where
applicants first avail themselves of a domestic remedy and only at a
later stage become aware, or should become aware, of the
circumstances which make that remedy ineffective. In such a
situation, the six month period might be calculated from the time
when the applicant becomes aware, or should become aware, of these
circumstances (cf.
Ekinci v. Turkey
(dec.), no. 27602/95,
8 June 1999).
In
the present case, it appears that soon after the incident of 8 July
2002 certain investigative steps into the allegedly disproportionate
use of force were in fact taken, which included the carrying out of a
forensic assessment of the applicant's injuries and the taking of
evidence from witnesses and the officers involved in the incident.
These investigations also concerned circumstances related to the
applicant's medical conditions and handcuffing (see paragraphs 46-48
above). It does not appear unreasonable to the Court for the
applicant, initially at least, to have awaited the results of the
criminal investigation by the competent domestic authorities. The
Court accepts that it was only after he had received a second
unsatisfactory answer from the Governor of the SIZO (i.e. the very
person whose decision not to prosecute he had successfully challenged
in court), that the applicant was provided, on 4 March 2004, with a
reason seriously to doubt the effectiveness of this investigation. In
these circumstances, the Court accepts that the six months'
time-limit within the meaning of Article 35 § 1 of the
Convention started to run as from 4 March 2004 at the earliest and,
consequently, that the complaints under Article 3 of the Convention
have been brought within this time-limit.
As
regards the Government's arguments concerning the medical conditions
of detention, the Court notes that, as was stated above (see
paragraph 118), this issue has been put forward by the applicant in
his criminal complaint. The question of the adequacy of the medical
treatment, received by the applicant during his detention in the
SIZO, was addressed in course of criminal inquires, instituted upon
this complaint (see paragraphs 54, 56 and 58 above). Therefore, the
considerations above concerning these criminal proceedings' impact on
the determination of the starting point for calculation of the
six-month period (see paragraphs 122-124), are fully applicable here.
The
Court, therefore, dismisses this objection.
3. Conclusion
The
Court notes that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
B. Merits
1. Article 3 of the Convention
a. Incident of 8 July 2002
The
applicant maintained that the authorities knew or ought to have known
about his deteriorating mental condition and that they had had ample
time to consider appropriate measures to prevent his violent outburst
on 8 July 2002. He considered that the use of force was
unnecessary and excessive. The applicant also questioned the
impartiality of the August 2002 forensic report.
The
Government stated that on 8 July 2002 the guards had had recourse to
force to restrain the applicant only to the extent that had been made
necessary by his own conduct. In particular, the truncheons were used
strictly in accordance with the relevant domestic regulations. The
Government, further, put in doubt the validity of the document drawn
up by the applicant and the human rights activist, recording the
applicant's injuries. The Government emphasised that according to the
forensic report of 14 August 2002 the applicant's injuries were
inflicted after 17 July 2002, i.e. after his transfer from the SIZO.
The
Court notes that the parties agreed that the applicant sustained
certain bodily injuries during the struggle on 8 July 2002.
However, the extent of those injuries is in dispute between them. The
Court notes that according to the prison doctors' records of 8 July
2002 the applicant's shoulders and buttocks bore “distinct
traces” or “injuries” which had resulted from the
application of truncheons and handcuffs (see paragraphs 23 and 24
above). This indicates that the applicant's injuries were
sufficiently serious to bring this case within the scope of Article
3. There is, therefore, no need to resolve the disagreement about the
actual extent of the bodily harm by the applicant, since
the following considerations would in any event apply.
The
Court recalls that in respect of a person deprived of his liberty,
recourse to physical force which has not been made strictly necessary
by his own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 (cf. Ribitsch v.
Austria, judgment of 4 December 1995, Series A no. 336, p.
26, § 38 and Berliński v. Poland, nos. 27715/95
and 30209/96, § 59, 20 June 2002).
In
the instant case the applicant was injured when the prison guards
attempted to put an end to his agitated behaviour by beating him with
rubber truncheons. It is to be noted that after the applicant's
assault on one of the detainees on 2 July 2002 the duty shifts of the
SIZO were regularly informed about the possibility of his violent
outbursts. The applicant's agitated behaviour, therefore, was by no
means an unexpected development to which the authorities might have
been called upon to react without prior preparation. The three guards
who were involved outnumbered the applicant. Furthermore, at no stage
of the proceedings did any witnesses state that the applicant
attempted to attack the officers or fellow inmates (see, mutatis
mutandis, Rehbock v. Slovenia, no. 29462/95, § 72,
ECHR 2000 XII) or that his erratic movements, classified by the
guards as “outrage” (буйство),
constituted any danger to their health or that of the applicant's
cellmates. Against this background the Court finds that the use of
truncheons in the present case was unjustified and amounted to
inhuman treatment.
There
has therefore been a violation of Article 3 of the Convention.
b. Handcuffing in the disciplinary cell
The
applicant submitted that the conditions of his detention in the
disciplinary cell were inadequate. In particular he maintained that
his constant handcuffing and the insufficiency of the medical
assistance afforded to him in the disciplinary cell amounted to a
violation of Article 3.
The
Government maintained that the applicant's handcuffing whilst in the
disciplinary cell from 8 to 15 July 2002 was a proportionate and
necessary measure in the circumstances, given the applicant's conduct
and the threat which he posed to himself and others. Although,
following the incident on 8 July 2002 the applicant received no
medication due to his refusal of any treatment, his state of health
was under constant medical supervision.
The
Government also maintained that the applicant's placement in the
disciplinary cell did not constitute punishment. This measure was
aimed at restraining the applicant and isolating him from other
detainees to prevent him from causing any further harm to them or
himself.
The
Court recalls that Article 3 of the Convention enshrines one of the
most fundamental values of democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see, for example, Labita v. Italy [GC], no
26772/95, § 119, ECHR 2000-IV).
In
considering whether a punishment or treatment is “degrading”
within the meaning of Article 3, the Court will also have regard to
whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it adversely
affected his or her personality in a manner incompatible with Article
3 (cf. Raninen v. Finland, judgment of 16 December 1997,
Reports 1997-VIII, pp. 2821-22, § 55). This has also been
described as involving treatment such as to arouse feelings of fear,
anguish and inferiority capable of humiliating or debasing the victim
and possibly breaking their physical or moral resistance (see Ireland
v. the United Kingdom, judgment of 18 January 1978, Series A
no. 25, p. 66, § 167).
The
Court next notes that the use of handcuffs or other instruments of
restraint does not normally give rise to an issue under Article 3 of
the Convention where the measure has been imposed in connection with
a lawful detention and does not entail the use of force, or public
exposure, exceeding what is reasonably considered necessary (cf.
Raninen v. Finland, judgment
of 16 December 1997, Reports of Judgments and Decisions
1997 VIII, § 56 and Mathew v. the Netherlands,
no. 24919/03, § 180, ECHR 2005). Moreover, a measure which
is of therapeutic necessity from the point of view of established
principles of medicine cannot in principle be regarded as inhuman and
degrading. The Court must nevertheless satisfy itself that the
medical necessity has been convincingly shown to exist (see
Herczegfalvy v. Austria, judgment of 24 September 1992,
Series A no. 244, § 83). In this latter respect Court must
ascertain that the procedural guarantees for the decision to restrain
the applicant are complied with. Moreover, the manner in which the
applicant is subjected to the measure in issue should not go beyond
the threshold of a minimum level of severity envisaged by the Court's
case law under Article 3 of the Convention (see, mutatis mutandis,
Nevmerzhitsky v. Ukraine, no. 54825/00, § 94,
ECHR 2005).
Turning
to the circumstances of the present case, the Court recalls that the
applicant was suffering from chronic schizophrenia, a fact which was
known to the authorities at least as from 15 April 2002. The
history of his detention in the SIZO discloses episodes of disturbed
behaviour, including aggressive and violent outbursts. During the
incident of 8 July 2002 the applicant, who at that time was
detained in a medical cell under the supervision of the prison
psychiatrist, was struck with truncheons and handcuffed. The
applicant was then put in a disciplinary cell for nine days –
seven of which (until 15 July 2002) he spent handcuffed –
allegedly as a medically acceptable precaution against his violent
behaviour.
The
Court notes that when ordering the applicant's solitary confinement
and his around the clock handcuffing – the Government's
submissions that the handcuffs were removed during meals are not
supported by any evidence – the prison authorities relied only
on the opinion of a paramedic and a doctor unqualified in psychiatry.
The documents, provided by the parties, show that it was not until 10
July 2002, i.e. two days into the applicant's detention in a
disciplinary cell, that he was visited by a prison psychiatrist (see
paragraph 25 above). Therefore, at the time when the handcuffing
was ordered, the prison authorities made no reference to a
psychiatrist for advice as to either the future treatment of the
applicant or his fitness for such measures. Nor is there any
indication that the psychiatrist's opinion was requested at any
subsequent stage or that the doctor who attended the applicant in the
disciplinary cell carried out any specific follow-up supervision of
the necessity of the measures concerned or had a say in the decision
on when they should be discontinued.
The
need for a professional input in this case was of particular
importance since, as it appears from the prison psychiatrist's
submissions at the subsequent investigation (see paragraph 56 above),
handcuffing was not a normal method of restraining mentally ill
persons and was applied only due to the lack of more suitable
instruments.
The
Court, next, cannot agree with the Government that the handcuffing
could be justified by the danger posed by the applicant to his
surroundings. The applicant was locked up for at least 23 hours a day
in a solitary cell and only the SIZO staff had access to him.
Moreover, despite his agitated behaviour in this cell, there is no
indication that the applicant ever attempted to assault any of the
prison officers and doctors who visited him.
As
regards the Government's argument that the handcuffing was aimed at
preventing the applicant from harming himself, the Court notes that,
as the prison medical records show (see paragraph 25 above), not only
were the handcuffs singularly ineffective in keeping the applicant
from banging his head against the wall or otherwise causing harm to
himself, but they gave rise to deep abrasions around the applicant's
wrists (see paragraph 45 above) when he repeatedly attempted to free
himself. The Court notes in this latter respect
that nothing was done to prevent the applicant from acquiring the
injuries or mitigating the consequences of the handcuffing.
The Court is struck by the fact that, having incurred a degree of
bodily harm during the restraining struggle and having been observed
by the medical personal on several occasions to exhibit a
self-injurious behaviour, the applicant was not afforded any medical
care for his injuries. The Government's argument that the applicant
refused the treatment is unpersuasive, regard being had to the
applicant's mental condition.
In
the instant case, the Court finds that the handcuffing of the
mentally ill applicant for a period of seven days, without any
psychiatric justification or medical treatment for injuries obtained
during his forced restraint and self-inflicted during the confinement
in the disciplinary cell must be regarded as constituting inhuman and
degrading treatment.
In
the light of the above, the Court considers that there has been a
violation of Article 3 of the Convention.
c. Medical assistance and treatment
provided for the applicant
The
applicant submitted that he had not been provided with necessary
medical treatment in the course of his detention in the SIZO from 16
April 2002 to 17 May 2002 and again from early June 2002 until
17 July 2002. The Government maintained that the applicant
had received all necessary medical care and assistance while he was
detained.
The
Court recalls that the authorities are under an obligation to protect
the health of persons deprived of liberty (see Hurtado
v. Switzerland, judgment of 28 January 1994, Series A
no. 280-A, opinion of the Commission, pp. 15-16, § 79). The lack
of appropriate medical care may amount to treatment contrary to
Article 3 (see İlhan v. Turkey [GC], no. 22277/93, §
87, ECHR 2000-VII and Sarban v. Moldova, no. 3456/05, § 90,
4 October 2005). In particular, the assessment of whether the
treatment or punishment concerned is incompatible with the standards
of Article 3 has, in the case of mentally ill persons, to take into
consideration their vulnerability and their inability, in some cases,
to complain coherently or at all about how they are being affected by
any particular treatment (see Aerts v. Belgium, judgment of
30 July 1998, Reports 1998-V, p. 1966, § 66).
It
next notes its findings with regard to the applicant's solitary
confinement and handcuffing (see paragraphs 140-146 above), which in
themselves suggest that the domestic authorities did not provide
appropriate medical treatment and assistance to the applicant while
he was in disciplinary detention.
The
Court also notes that after the applicant's first examination on
admission on 16 April 2002, following which he was placed in the
psychiatric ward of the SIZO, there was no subsequent reference to a
psychiatrist until 17 May 2002, when the applicant was transferred to
the Hospital for forensic examination.
The
forensic report of 29 May 2002 recommended that the applicant be
given treatment in a specialised hospital. However, this
recommendation was not followed immediately and in early June 2002
the applicant was transferred back to the SIZO and placed in an
ordinary cell. For a month after his readmission to the SIZO the
applicant was examined by a psychiatrist only on one occasion and
remained in an ordinary cell until after his assault on an inmate on
2 July 2002. In the Court's view, this cannot be deemed to be
adequate and reasonable medical attention, given the applicant's
serious mental condition.
In
these circumstances, the Court considers that there has been a
violation of Article 3 of the Convention as regards the lack of
adequate medical treatment and assistance provided to the applicant
while he was detained on remand, amounting to inhuman and degrading
treatment.
d. Effectiveness of the investigation
The
applicant maintained the investigation into the excessive use of
force by the prison guards lacked a number of crucial procedural
safeguards, was not independent and lasted too long.
The
Government submitted that the investigation into the applicant's
allegations of ill-treatment was started immediately after the
applicant's mother lodged her complaint. According to the Government,
the course followed by the investigation, the number of measures
taken and the remission of the case for further investigation by the
courts, demonstrated the intent of the State authorities to conduct a
comprehensive and objective investigation.
The
Court recalls that where an individual raises an arguable claim that
he or she has been seriously ill-treated by the police in breach of
Article 3, that provision, read in
conjunction with the State's general duty under Article 1 of the
Convention to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”, requires
by implication that there should be an effective official
investigation. This investigation should be capable of leading to the
identification and punishment of those responsible (see Assenov
and Others, judgment of 28 October 1998, Reports 1998-VIII,
§ 102 and Labita v. Italy [GC], no. 26772/95, §
131, ECHR 2000-IV). The minimum standards as to effectiveness defined
by the Court's case-law also include the requirements that the
investigation must be independent, impartial and subject to public
scrutiny, and that the competent authorities must act with
exemplary diligence and promptness (see, for example, Menesheva
v. Russia, no. 59261/00, § 67, ECHR
2006 ...).
The
Court finds that, in view of its findings above as regards the
applicant's substantive complaint of ill-treatment (see paragraph 132
above), his allegations in this respect made before the domestic
authorities were undeniably arguable. The authorities, therefore, had
an obligation to carry out an effective investigation into the
circumstances of the applicant's alleged maltreatment in custody.
The
Court observes that the initial inquiry into the applicant's
complaints about the ill-treatment did not satisfy the minimum
requirement of independence since the investigating body – the
SIZO governor – represented the authority involved. The scope
of the examination was limited to establishing the fact that the
guards used their special equipment in accordance with the relevant
regulations. This conclusion was made on the basis of the written
statements of the guards involved, taken at face value, and the
outline of the events of 2 and 8 July 2002 from the inmates who
shared a cell with the applicant. The forensic examination of the
applicant's injuries was conducted 37 days after the use of force and
was unable to establish the extent of the bodily harm sustained on
that occasion.
Moreover,
this inquiry did little to satisfy the need for public scrutiny. It
is undisputed that until 16 January 2003 the applicant's mother was
not even informed about the formal refusal to institute criminal
proceedings. The applicant's lawyer was given access to the case-file
only on 14 August 2003.
Although
the Governor's decision of 21 August 2002 not to institute criminal
proceedings was quashed by the Zhovtnevy Court as being unlawful, the
additional inquires into the matter were again conducted by the same
official and culminated in a similar decision. Only after the
Zhovtnevy Court's decision of 1 October 2004, condemning, inter
alia, the lack of impartiality of such investigation, was the
case taken over by the Kharkiv Regional Prosecutor's Office.
The
Court, therefore, concludes that an independent investigation into
the applicant's grievances commenced over two years and two months
after the incident. Although the lateness of these proceedings did
not necessarily mean that they were doomed to failure, the
prosecution's investigation did not remedy the omissions of the
initial stages of the proceedings. In particular, there is no
indication that the inmates, who had witnessed the incident, were
ever re-interviewed after 20 August 2002 or that any attempts were
made to compensate for the lack of medical information about the
injuries sustained by the applicant.
The
inquiries into the applicant's complaints have so far lasted for five
years. The prosecutor's decision of 6 September 2005 not to open an
investigation was challenged by the applicant before the
Chervonozavodsky Court, where the proceedings are still pending (see
paragraph 59 above).
The
Court further notes that on three occasions the domestic courts
revoked the authorities' decisions not to bring criminal proceedings
against the SIZO officials on the ground of the insufficiency of
inquiries. In the Court's opinion the omissions established by the
domestic courts, as well as the lack of independence, promptness, and
public scrutiny on the part of the investigative authorities provide
a sufficient basis for the conclusion that the investigation, which
has still not ended, failed to meet the minimum standards of
effectiveness.
In
these circumstances, the Court concludes that there has been a
procedural violation of Article 3 of the Convention. It follows that
the Government's preliminary objection (see paragraphs 105 and 114
above) must be dismissed.
2. Article 13 of the Convention
The
applicant maintained that Article 13 had been violated since the
State authorities failed to conduct an effective investigation into
his case. He claimed that the investigation into the excessive use of
force by the prison guards lacked a number of crucial procedural
safeguards, was not independent and lasted too long.
The
Government maintained that the investigation into the applicant's
allegations concerning the excessive use of force was a remedy which
the applicant had used effectively. Moreover, they referred to the
possibility to claim damages in a civil court.
Having
regard to its findings above under Article 3 of the Convention that
the authorities have failed to carry out effective investigation into
the applicant's allegations of ill treatment (see paragraphs
156-163), the Court does not find it necessary to examine this issue
also in the context of Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant complained that his detention in the SIZO after the expiry
on 15 June 2002 of his original detention order and until his
transfer to the Hospital on 17 July 2002 and his confinement in the
psychiatric hospital after the revocation on 7 July 2003 of the
compulsory psychiatric treatment order until his release on 2
September 2003 were unlawful within the meaning of Article 5 § 1
of the Convention, which, insofar as relevant provides as follows:
“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:
(b) the lawful arrest or detention of a
person for non- compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by
law;...
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence
or fleeing after having done so;...
(e) the lawful detention ... of persons of unsound mind
...;”
The
applicant also complained that he did not have access to a court with
jurisdiction to review the lawfulness of his continued detention in
the SIZO and psychiatric hospital. In respect of these complaints,
the applicant relied on Article 5 § 4
of the Convention, which reads as follows:
“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.”
A. Admissibility
1. Detention in the SIZO
The
Government maintained that the six month period with regard to the
applicant's complaints under Article 5 §§ 1 and 4 of the
Convention about the alleged irregularities of his detention on
remand ran from 17 July 2002 when the applicant was
discharged from the SIZO, whereas the application was filed with the
Court on 29 December 2003. Therefore, the complaints about the
detention between 15 June and 17 July 2002 should be declared
inadmissible as being lodged out of time.
The
applicant stated that, although his representatives knew about his
arrest and detention in April 2002, they gained access to the
case-file concerning criminal proceedings against the prison officers
only on 14 November 2003, which should be considered as a
starting point of calculation of the six-month period in respect of
these complaints.
171. The
Court recalls that according to the established case-law of the
Convention organs, where no domestic remedy is available the
six-month period runs from the act alleged to constitute a violation
of the Convention; however, where it concerns a continuing situation,
it runs from the end of the situation concerned (see, for example,
Antonenkov and Others v. Ukraine, no. 14183/02, § 32,
22 November 2005).
172. The
applicant's complaints under Article 5 concerning
his detention on remand in the period to 17 July 2002 are based on
his contention that the application of the relevant domestic law (see
paragraphs 62-69 and 76-79 above) resulted in his detention in the
SIZO beyond the period authorised by the court detention order. Under
Article 5 § 4 he claimed that the domestic law had
prevented him from challenging his detention in the SIZO on medical
grounds. Both of these complaints are dependent on the state of
domestic law, in respect of which no remedy lay. It is true that the
applicant contended that his representatives had access to the
case-file only from 14 November 2003, but given that the
representatives were aware of the applicant's arrest and detention in
2002, this fact can be of no bearing in determining whether the
complaint has been introduced in time. Further, the applicant's
mother was informed that he had been transferred from the SIZO
shortly after 17 July 2002, whereas his first letter was submitted to
the Court on 29 December 2003, which is more than six months after
she received the information.
It
follows that the above complaints have been introduced out of the six
months' time-limit under Article 35 § 1 of the Convention and
must be rejected in accordance with Article 35 § 4.
2. The applicant's confinement in
the Hospital
a. Article 5 § 1 of the Convention
(i). The applicant's
confinement in the Hospital from 7 July to 6 August 2003
The
Court notes that the applicant's complaint under Article 5 § 1
concerning his confinement in the Hospital for the period between
7 July 2003, when the treatment order
was revoked by the Kominternovsky Court,
and 6 August 2003, when that same court ordered his compulsory
forensic examination, is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds.
(ii). The applicant's
confinement in the Hospital after 6 August 2003
In
accordance with the Kominternovsky Court's order of 6 August 2003
the applicant underwent inpatient forensic examination in the
Hospital, which continued until 1 September 2003. On 2 September 2003
the applicant was released. The applicant complained that his
deprivation of liberty during this period was not proportionate to
the aim pursued. The Government stated the applicant's detention
during this period was lawful and reasonable.
The
Court recalls that Article 5 § 1 contains an exhaustive list of
permissible grounds of deprivation of liberty. However, the
applicability of one ground does not necessarily preclude that of
another; a detention may, depending on the circumstances, be
justified under more than one sub paragraph (cf. Harkmann v.
Estonia, no. 2192/03, § 32, 11 July 2006). In the present
case the applicant was obliged under Article 205 of the CCrP to
submit himself to an inpatient psychiatric examination by the
forensic experts, ordered by a court in the context of criminal
proceedings against him. The Court considers that his detention may
be examined under sub paragraphs (b) (c) and (e) of Article
5 § 1 of the Convention.
On
the evidence adduced, the Court has no cause for finding that the
applicant's deprivation of liberty during the period from 6 August to
2 September 2003 was “unlawful” in the sense of not
being in accordance with the relevant domestic law. Nor was it
arbitrary or effected for an ulterior purpose, contrary to Article 5
§ 1 read in conjunction with Article 18 of the Convention.
It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and
therefore must be rejected in accordance with Article 35 § 4.
b. Article 5 § 4 of the Convention
The
Government maintained that the applicant could have appealed against
the court order committing him for compulsory psychiatric treatment.
It followed therefore that the applicant had not done all that could
be expected of him to exhaust domestic remedies as required by
Article 35 of the Convention, and for that reason his complaint
should have been declared inadmissible. The applicant disagreed.
The
Court notes that the applicant does not challenge his original
admission to the hospital, but rather his inability to initiate a
judicial review of the lawfulness and reasonableness of his continued
confinement in the Hospital after 7 July 2003,
when his compulsory treatment order was quashed. This
objection, therefore, should be rejected.
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds.
B. Merits
1. Article 5 § 1 of the Convention
182. The
applicant complained that his detention from 7 July 2003 until 6
August 2003 was unlawful.
a. Parties' submissions
The
Government maintained that the applicant's confinement in the
psychiatric hospital had been lawfully ordered by the Kominternovsky
Court on 5 July 2002. The order for compulsory treatment was reviewed
and extended by this court on 28 February 2003. On 7 July 2003 the
Kominternovsky Court revoked the compulsory treatment order. However,
according to the Government, this decision became final only on
22 July 2003, i.e. after the expiry of the fifteen-day time
limit for appeal. On the following day the copy of this decision was
sent to the Hospital on the same date. It did not reach the Hospital
until 4 August 2003, for which period the State bears no
responsibility. The Government contended that the Hospital decided
not to release him for two more days as it had to comply with the
requirement of the Decree of the Ministry of Health no. 346/877 that
the police should be notified in advance about the discharge of a
psychiatric patient. On 6 August 2003 the Kominternovsky Court
ordered the applicant's inpatient forensic examination, thus
authorising the applicant's further confinement until
1 September 2003 when the said examination was completed.
Alternatively,
the Government suggested that the applicant's detention between 7
July and 6 August 2003 was authorised by reference to the need for
forensic examination of the applicant in the decision of 7 July 2003
or by the ruling of the Moskovskyy Court of 28 May 2003, ordering the
applicant's forensic examination under Article 258 of the CCivP.
The
applicant contended that his detention from 7 July to 6 August 2003
was not covered by any valid court order and was thus unlawful.
b. The Court's assessment
As
from 17 July 2002 the applicant was treated as an inpatient in the
Hospital. The court order for the applicant's compulsory psychiatric
treatment was revoked on 7 July 2003. However, the applicant was not
released from the Hospital until on 6 August 2003 the Kominternovsky
Court ordered his inpatient forensic examination under Article 205 of
the CCrP.
(i). The applicant's confinement between 7
and 22 July 2003
The
Government argued (see paragraph 183 above) that the court order of 7
July 2003 became final only after the expiry of the time-limit for
appeal on 22 July 2003. The applicant has not challenged this view of
domestic law, and the Court, in the light of the provisions of
Article 402 of the CCrP read in conjunction with Articles 349 and 424
of the CCrP (see paragraphs 72, 73 and 75 above), sees no reason to
demur from the Government's contention. It follows that the
applicant's detention in this period was covered by the order of 5
July 2002, which remained valid until the decision to revoke it
became final on 22 July 2003. Therefore, there was no violation of
Article 5 § 1 during that period.
(ii). The applicant's confinement between
22 July and 6 August 2003
As
to the period from 22 July to 6 August 2003 the Government submitted
that the applicant's detention was based on the Moskovskyy and
Kominternovsky Court's orders of 28 May 2003 and 7 July 2003
respectively, or continued on account of the need for the relevant
administrative formalities. The Court will examine these arguments in
turn.
The
Moskovskyy Court's ruling of 28 May 2003 ordered the applicant's
examination in the context of the civil proceedings under Article 258
of the CCivP (see paragraph 83 above). Article 258 does not expressly
purport to authorise detention, and it does not appear that the court
on 28 May 2003 intended that the applicant should be detained as
a result of its order. Accordingly, the Court cannot accept the
Government's contention that the applicant's detention between 22
July and 6 August 2006 was ordered or authorised by the
Moskovskyy Court.
As
to the Government's claim that the applicant's detention from 22 July
2003 to 6 August 2003 was based on the Kominternovsky Court's
decision of 7 July 2003, the Court observes that that decision did no
more than lift a compulsory treatment order, recommend the resumption
of criminal proceedings against the applicant, and indicate that the
applicant should be subjected to a psychiatric examination. Such a
decision cannot be equated to an order authorising a person's
detention and cannot serve as a legal basis for the applicant's
continued detention after 22 July 2003.
The Government suggested that the applicant's
deprivation of liberty during the period under consideration was
caused by slow progress of the copy of the court order of 7 July 2003
from the Kominternovsky Court to the Hospital and the need to warn
the competent authorities about the release of a mentally ill person.
The Court takes this to be an argument that, in the circumstances,
the applicant's detention was still authorised by the decision of 5
July 2002. The Court reiterates that administrative
formalities connected with release cannot justify a delay of
more than several hours (see Nikolov v. Bulgaria, no.
38884/97, § 82, 30 January 2003, see also Giulia Manzoni
v. Italy, judgment of 1 July 1997, Reports of Judgments
and Decisions 1997 IV, § 25; Labita v. Italy
[GC], no. 26772/95, § 172, ECHR 2000 IV and Quinn
v. France, judgment of 22 March 1995, Series A no. 311, § 42).
The
Court, having regard to the absence of any account of the relevant
events capable of showing difficulties in communication between the
Kominternovsky Court and the Hospital or between the Hospital and the
relevant police department, rejects the Government's position that
the period of the applicant's deprivation of liberty between 22 July
and 6 August 2003 was justified under paragraph 1 (e) of Article
5.
In
these circumstances, the applicant's continued detention in the
Hospital after the court order committing him to compulsory
psychiatric treatment was revoked could not be regarded as a first
step in the execution of the order for his release and therefore did
not come within sub paragraph 1 (e), nor did it fall within any
other sub-paragraph, of Article 5.
Accordingly,
there has been a violation of Article 5 § 1 on that account.
2. Article 5 § 4 of the Convention
The applicant complained under Article 5 § 4 of
the Convention that since 7 July 2003, when the court order
committing him to compulsory psychiatric treatment was quashed, until
his release from the Hospital on 6 August
2003 he had not been able to take proceedings to have the
lawfulness of their detention decided by a judge.
The Government maintained that the issue of the
applicant's compulsory psychiatric treatment was examined by the
domestic courts on two occasions on the basis of the applications
lodged after his medical examinations by competent doctors. Given the
frequency of the review of the lawfulness of the applicant's
compulsory medical treatment, the Government considered that Article
5 § 4 had not been breached. The
applicant disagreed.
The
Court recalls that it has already considered the system of periodic
review of the confinement under Articles 19-22 of the Psychiatric
Medical Assistance Act and Chapter 34 of the CCrP in Gorshkov
v. Ukraine (no. 67531/01, §§ 37-46, 8 November
2005). The Court found that:
“44. The Court reiterates that a key
guarantee under Article 5 § 4 is that a patient compulsorily
detained for psychiatric treatment must have the right to seek
judicial review on his or her own motion (see, e.g., Musial
v. Poland, judgment of 25 March 1999, Reports
1999-II, § 43; the aforementioned Rakevich
v. Russia judgment, § 45). Article 5 § 4
therefore requires, in the first place, an independent legal device
by which the detainee may appear before a judge who will determine
the lawfulness of the continued detention. The detainee's access to
the judge should not depend on the good will of the detaining
authority, activated at the discretion of the medical corps or the
hospital administration.
45. Whilst the legal mechanism contained in
sections 19-22 of the Psychiatric Medical Assistance Act and Chapter
34 of the Code of Criminal Procedure, in force at the material time
(...), ensuring that a mental health patient is brought before a
judge automatically, constitutes an important safeguard against
arbitrary detention, it is insufficient on its own. Such surplus
guarantees do not eliminate the need for an independent right of
individual application by the patient.
46. The Court concludes that the applicant
was not entitled to take proceedings to test the lawfulness of his
continued detention for compulsory medical treatment by a court, as
required by Article 5 § 4 of the Convention. There has,
accordingly, been a violation of this provision.”
The applicant was detained
pursuant to the same legal provisions as Mr Gorshkov,
and the Court sees no reason to depart from its finding in the
above judgment. It considers, therefore, that there has been a
violation of Article 5 § 4 in respect of the
applicant's inability to take proceedings to test the lawfulness of
his confinement in a psychiatric institution by a court.
There
has, accordingly, been a violation of Article 5 § 4 of the
Convention.
V. 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
Under
Rule 60 of the Rules of Court any claim for just satisfaction must be
itemised and submitted in writing, together with the relevant
supporting documents, failing which the Court may reject the claim in
whole or in part.
(a) pecuniary damage
The
applicant did not submit any claim under this head within the
prescribed time-limit; the Court therefore makes no award.
(b) non-pecuniary damage
The
applicant claimed 20,000 Euros (EUR) as compensation for
non-pecuniary damage. His representative, Ms Kucheruk claimed EUR
10,000 in her own right.
The
Government maintained that the claim is unsubstantiated and too high.
As
regards the claims of Ms Kucheruk (the applicant's mother), the Court
notes that Article 41 does not provide for the possibility of
awarding damages to anyone save the injured party. The Court,
therefore, rejects this claim.
The
Court observes that it has found above that the authorities subjected
the applicant to inhuman and degrading treatment and failed to
provide a prompt and public investigation meeting the requirements of
Article 3 of the Convention. It has also been established that he was
deprived of liberty in violation of Article 5. The applicant
must have suffered anguish and distress from these circumstances.
Having regard to these considerations and to the comparable case-law
(see, for example, Nevmerzhitsky, cited above, § 145;
Menesheva, cited above, § 112; Khudoyorov v.
Russia, no. 6847/02, § 224, ECHR 2005), the Court
awards the applicant, on an equitable basis, EUR 20,000 for
non-pecuniary damage.
B. Costs and expenses
The
applicant claimed EUR 2,500 for the costs and expenses incurred in
the domestic and Convention proceedings.
The
Government maintained that this claim was exaggerated. Moreover,
there was no indication that those costs were actually incurred.
209. The
Court finds that the costs of the domestic and Convention proceedings
claimed by the applicant were actually and necessarily incurred and
reasonable as to the quantum. It, therefore, awards the full amount
claimed namely EUR 2,500, which, after the deduction of EUR 371,
received by the applicant in legal aid from the Council of Europe,
amounts to EUR 2,129 in respect of costs and expenses, plus any
tax that may be chargeable on that amount.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the Government's preliminary
objection concerning the effectiveness of the criminal investigation
of the applicant's complaints under Articles 3 and 13 of the
Convention;
Declares the applicant's complaints under
Articles 3 and 13 of the Convention, under Article 5 § 1 of the
Convention with respect to the periods of the applicant's detention
from 7 July to 6 August 2003 and the complaint under Article 5 §
4 of the Convention concerning the applicant's inability to challenge
in court the lawfulness of his detention in the Kharkiv Psychiatric
Hospital no. 15 admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of
Article 3 of the Convention in respect of the prison officers'
excessive use of force;
Holds that there has been a violation of
Article 3 of the Convention in respect the applicant's
handcuffing whilst in detention in the disciplinary cell;
Holds that there has been a violation of
Article 3 of the Convention in respect of the lack of adequate
medical treatment and assistance;
Holds that there has been a violation of
Article 3 of the Convention in respect in respect of the lack of
adequate investigation into the applicant's complaints of
ill-treatment;
Holds that there has been no violation of
Article 5 § 1 of the Convention in respect of the applicant's
detention for the period from 7 to 22 July 2003
Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the applicant's detention
for the period from 22 July to 6 August 2003;
Holds that there has been a violation of Article
5 § 4 of the Convention with respect to the applicant's
inability to take proceedings to test the lawfulness of his detention
in the Kharkiv Psychiatric Hospital no. 15;
Holds that there is no need to examine the
complaint under Article 13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
20,000 (twenty thousand euros) in respect of non pecuniary
damage;
(ii) EUR
2,129 (two thousand one hundred and twenty-nine euros) in respect of
costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
the above amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) 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 applicant's
claim for just satisfaction.
Done in English, and notified in writing on 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer
Lorenzen
Deputy Registrar President
