British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
BIK v. RUSSIA - 26321/03 [2010] ECHR 635 (22 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/635.html
Cite as:
[2010] ECHR 635
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF BIK v. RUSSIA
(Application
no. 26321/03)
JUDGMENT
STRASBOURG
22
April 2010
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 Bik v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26321/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Aleksandr Yefimovich Bik
(“the applicant”), on 5 August 2003.
The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights, Mr A. Savenkov, First Deputy
Mnister of Justice of the Russian Federation, and subsequently by
Mr G. Matyushkin, Representative of the Russian Federation
at the European Court of Human Rights.
The
applicant alleged, in particular, that his committal to a psychiatric
hospital against his will had been unlawful.
On
19 June 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
The
Government objected to the joint examination of the admissibility and
merits of the application. The Court examined and dismissed their
objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1972 and lives in Moscow.
On
27 May 2002 the applicant's mother requested Psychiatric
Outpatient Clinic No. 21 (Психоневрологический
диспансер
N 21) (the “Clinic”) to examine her son, expressing
concern about a change in his behaviour. He was afraid to leave the
flat where he lived, had cut out all social contacts and was
frightened by noises or the sound of the telephone ringing.
The
applicant refused to be examined by the doctors at the Clinic and on
29 May 2002 Dr N., a psychiatrist from the Clinic, applied
for a court order authorising the applicant's psychiatric assessment
without his consent. She noted, on the basis of the information
submitted by the applicant's mother, that the applicant might be
suffering from a severe mental disorder that impaired his ability to
meet the ordinary demands of life, and that his condition might
deteriorate should he be left without psychiatric treatment.
On
31 May 2002 the Cheremushkinskiy District Court of Moscow
authorised the psychiatric assessment. According to the applicant, he
was informed of that decision at a later date.
On
5 June 2002 Dr N. examined the applicant at his home. The
applicant's mother was present. The applicant was agitated, he
shouted at the doctor and his mother and threatened them. He refused
to talk and made them both leave. Dr N. concluded that the
applicant suffered from paranoid schizophrenia and that his condition
warranted committal to a psychiatric hospital for further assessment
and treatment. At 7.20 p.m. the applicant was admitted to Psychiatric
Hospital No. 15 (Психиатрическая
клиническая
больница
N 15) (the “Hospital”). According to the applicant,
he was first taken to a police station and then to the hospital.
On
7 June 2002 the applicant consented to treatment in the Hospital
until 14 June 2002.
On
Friday 14 June 2002 the applicant refused to stay in hospital
any longer. At noon he was examined by three psychiatrists who
provisionally diagnosed him as suffering from depressive syndrome and
schizophrenia. They noted that the applicant was solitary and
antisocial; he was unaware of his condition and expressed delusional
ideas about his mother trying to manipulate him. They concluded that
his mental disorder was serious enough to require inpatient
treatment.
On
Monday 17 June 2002 the Hospital administration applied to the
court seeking an extension of the applicant's stay there. According
to the medical report submitted, the applicant was suffering from a
severe mental disorder and might cause serious harm to himself or
others. On the same day the Nagatinskiy District Court of Moscow
provisionally authorised the applicant's further hospitalisation
pending consideration of the case. The court stated no reasons in its
decision.
On
21 June 2002 the Nagatinskiy District Court of Moscow authorised
the extension of the applicant's stay in the Hospital. The hearing
was held on the Hospital's premises. The applicant attended the
hearing but was not represented. In particular, the court noted:
“After having heard [the applicant], the
hospital's representative..., and the prosecutor who considered that
the [hospital's] request should be granted, and after having studied
the materials [in its possession], the court considers that the
[hospital's] request to commit the applicant to the [hospital]
against his will is well-substantiated and should be granted.”
On
27 June 2002 the applicant consented in writing to further
treatment in hospital.
Once
the applicant's condition improved, he was discharged from hospital
on 4 July 2002.
On
23 January 2003 the applicant lodged an appeal against the
decision of 21 June 2002. He submitted, in particular, that the
court had failed to verify the lawfulness of his committal to
hospital
On
20 March 2003 the Moscow City Court upheld the decision of
21 June 2002. Both the applicant and his lawyer attended the
hearing. The court noted that the applicant's hospitalisation had
been in accordance with the applicable laws. The court further
indicated that the applicant's committal to hospital against his will
had been necessary in view of his severe psychiatric disorder which
made him dangerous to himself and others. Lastly, the court observed
that it had been open to the applicant to ask for legal
representation before the court at first level of jurisdiction.
However, he had failed to do so and the decision of 21 June 2002
should not be quashed on that ground.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The involuntary admission of a patient to a
psychiatric facility
1. Psychiatric Assistance Act of 2 July 1992 as
amended (the “Act”)
A
person may be subject to an involuntary psychiatric assessment if his
or her behaviour gives reasonable grounds to believe that he or she
may be suffering from a serious mental disorder and, because of the
mental disorder, he or she (a) is likely to cause serious harm to
himself or herself or another person or (b) does not have the
capacity to take basic care of himself or herself or (c) is likely to
suffer serious physical impairment or mental deterioration in the
absence of psychiatric treatment (Article 23 of the Act).
In
the event of (b) or (c) above, a psychiatrist may decide to conduct
psychiatric assessment without the person's consent, subject to prior
judicial approval (Article 24 of the Act).
In
the event of (a), (b), or (c) above, a person may be admitted to a
hospital against his or her will if he or she is suffering from a
severe mental disorder and requires psychiatric examination and
treatment in a psychiatric hospital (Article 29 of the Act).
A person admitted against his or her will should be
assessed within 48 hours by a psychiatric panel. Should the panel
decide to keep the person in hospital, they should file a request to
that effect with the judge within 24 hours, together with a
supporting medical report (Article 32 of the Act).
The
judge must then consider the request within 5 days (Article 34 § 1
of the Act). He or she must also authorise the person's continued
hospitalisation pending the consideration of the matter by the court
(Article 33 § 3 of the Act).
2. The Russian Code of Civil Procedure of 11 June 1964 as
amended (the “old CCP”)
The
old CCP did not set forth special rules governing committal to a
psychiatric hospital.
B. Computation of periods of time established by law or
prescribed by civil courts
A
period of time expressed as a number of years shall expire on the
relevant day and month of the last year of that period. A period of
time expressed as a number of months shall expire on the relevant day
of the last month of that period. If the last day of the period of
time falls on a non-working day, the next closest working day shall
be considered as the last day of that period (Article 101 of the old
CCP and Article 108 §§ 1 and 2 of the
new Code of Civil Procedure of 1 February 2003 as amended).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (e)
OF THE CONVENTION
The applicant complained that his committal to the
psychiatric hospital from 14 to 27 June 2002 against his will
had been unlawful. The Court considers that the complaint falls to be
examined under Article 5 § 1 (e) of the
Convention, which reads 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:
...
(e) the lawful detention ... of persons of
unsound mind.... .”
The
Government contested that allegation. They considered that the
applicant's placement in the psychiatric hospital had been in full
compliance with the applicable domestic laws. When the applicant
refused, on 14 June 2002, to stay voluntarily in hospital, at
noon the same day a psychiatric panel had examined him and found that
his condition warranted further hospitalisation. According to the
Government, the hospital administration had been unable to file the
application for judicial authorisation for the applicant's continued
hospitalisation on the same day because of the substantial amount of
time necessary to prepare such an application. As 14 June 2002
was a Friday, it had not been possible to apply to the court during
the weekend since it was closed. Accordingly, the application had
been filed on 17 June 2002, that is the first working day after
the weekend of 15 and 16 June 2002. The Government opined that
the hospital had acted in accordance with the applicable rules of
civil procedure, notably Article 108 of the Code of Civil
Procedure of the Russian Federation, which permitted such a delay in
lodging an application should the prescribed time-limit expire on a
non-working day.
The
applicant maintained his complaint.
A. Admissibility
The
Court considers that the 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. It must therefore be declared admissible.
B. Merits
1. General principles
The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to domestic law; they state the need for
compliance with the relevant procedure under that law. However, the
domestic law must itself be in conformity with the Convention,
including the general principles expressed or implied therein. The
notion underlying the term in question is one of fair and proper
procedure, namely that any measure depriving a person of his liberty
should issue from and be executed by an appropriate authority and
should not be arbitrary (see Winterwerp v. the Netherlands,
24 October 1979, § 45, Series A no. 33).
It
is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law. However, since under
Article 5 § 1 failure to comply with domestic law entails a
breach of the Convention, it follows that the Court can, and should,
exercise a certain power of review of such compliance (see Benham
v. the United Kingdom, 10 June 1996, § 41, Reports
of Judgments and Decisions 1996 III).
The
Court further reiterates that an individual cannot be deprived of his
liberty on the basis of unsoundness of mind unless three minimum
conditions are satisfied: he must reliably be shown to be of unsound
mind; the mental disorder must be of a kind or degree warranting
compulsory confinement; and the validity of continued confinement
depends upon the persistence of such a disorder (see Winterwerp,
cited above, § 39; Luberti v. Italy, 23 February 1984,
§ 27, Series A no. 75; Johnson v. the United Kingdom,
24 October 1997, § 60, Reports of Judgments and
Decisions 1997 VII; and Hutchison Reid v. the United
Kingdom, no. 50272/99, § 48, ECHR 2003-IV).
2. Application of the principles to the present case
The
Court observes that under Russian law, once a patient is committed to
a psychiatric hospital against his or her will, he or she should be
assessed by a psychiatric panel within 48 hours. Furthermore, a
psychiatric hospital must apply for judicial authorisation to keep
the patient against his or her will within twenty-four hours
following his examination and assessment (see paragraph 22).
Turning
to the circumstances of the present case, the Court notes that on
14 June 2002 the applicant withdrew his consent to remain in the
psychiatric hospital. The hospital therefore had to examine him and,
if it was decided that he should remain in hospital against his will,
it had to apply within twenty-four hours for court authorisation to
keep him there.
The
Court accepts that the domestic authorities complied with the
domestic procedure in so far as the applicant's examination was
concerned. On 14 June 2002 the medical panel examined the
applicant at noon and concluded that his further hospitalisation was
necessary. It was then incumbent on the hospital administration,
within twenty-four hours following his examination, that is no later
than noon on 15 June 2002, to apply to the court for
authorisation to keep the applicant in hospital. However, the
application was filed two days later, on 17 June 2002. As a
result, the applicant was kept in a hospital for three days in the
absence of a court order.
The
Court cannot subscribe to the Government's opinion that it was
possible under domestic law to delay application for a court order
authorising committal to a psychiatric hospital without the person's
consent if the end of the time-limit prescribed by law for such an
application fell on a non-working day. The domestic rules of civil
procedure referred to by the Government govern only the computation
of time-limits expressed in days, months and years and are obviously
not applicable to the procedure for applying for judicial
authorisation for committing a person to a psychiatric facility,
where the time-limits are established in hours.
The
Court does not consider it relevant that, as the Government pointed
out, 15 and 16 June 2002 were non-working days and consideration
of the applicant's case could not proceed until the beginning of the
ensuing working week. Where the issue of a person's liberty is at
stake, the States must ensure that their courts remain accessible,
even during a vacation period or a weekend, to ensure that urgent
matters are dealt with speedily and in full compliance with a
procedure prescribed by law. However, no such provisions appear to
have been made in the circumstances of the present case.
The
foregoing considerations are sufficient to enable the Court to
conclude that the domestic authorities did not comply with the
procedure prescribed by domestic law when applying for judicial
authorisation for the applicant's committal to a psychiatric
hospital. There has accordingly been a violation of Article 5 § 1
of the Convention.
In
view of the above finding, the Court does not consider it necessary
to examine separately the question of whether the applicant had been
reliably shown to have been suffering from a mental disorder of a
kind or degree warranting his compulsory confinement which persisted
during his detention between 14 and 27 June 2002 (see Storck
v. Germany, no. 61603/00, § 113, ECHR 2005 V).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant alleged that he had not been provided with an opportunity
to appeal against the decision of 31 May 2002, in contravention
of Articles 3, 5 and 6 of the Convention. He further complained
under Article 8 of the Convention that Dr. N's visit to his
flat on 5 June 2002 had been an interference with his right to
respect for his private life and that, on the basis of her decision
of 5 June 2002 to admit him to hospital, he had been arrested
and taken to a police station. He complained under Article 1 of
Protocol No. 1 that his involuntary placement in a psychiatric
hospital might warrant the restriction of his legal capacity, in
which case he would be unable to sell or buy property. Lastly,
without providing further detail, the applicant alleged a violation
of his rights provided for in Articles 2, 4, 7 to 10, 13, 17,
and 18 of the Convention.
However,
having regard to all the material in its possession, the Court finds
that there is no appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 350,000 euros (EUR) and 1/13 cents in respect of
pecuniary and non-pecuniary damage.
The
Government submitted that the applicant's allegations should not give
rise to an award of any compensation for pecuniary or non-pecuniary
damage. In any event, they noted that the applicant had failed to
justify or substantiate the amount claimed.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it accepts that the applicant suffered distress and
frustration resulting from his unlawful detention in a psychiatric
hospital. Accordingly, the Court considers that the applicant should
be compensated for the non-pecuniary damage sustained However, the
Court finds the amount claimed by the applicant excessive. Making its
assessment on an equitable basis, it awards the applicant EUR 1,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the
applicant's involuntary confinement in a psychiatric hospital between
14 and 27 June 2002 admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 1 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 in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
