European Court of Human Rights

 

 

FIFTH SECTION

CASE OF POGORYELOV v. UKRAINE

(Application no. 19062/15)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 October 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Pogoryelov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Stéphanie Mourou-Vikström, President,

          Lado Chanturia,

          Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 19062/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 April 2015 by a Ukrainian national, Mr Volodymyr Yakovych Pogoryelov, born in 1956 and living in Vinnytsya (“the applicant”), who was represented by Ms N.V. Gurkovska, a lawyer practising in Vinnytsya;

the decision to give notice of the complaint under Article 5 of the Convention to the Ukrainian Government (“the Government”), represented by their Acting Agent, Mrs Olga Davydchuk, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 22 September 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicant’s two-day confinement in a psychiatric hospital following a request from his sister who, according to the applicant, had a property-related conflict with him. He invokes Article 5 § 1 (e) of the Convention.

2.  On several occasions his sister had requested that the applicant, who had no recorded history of mental illness, be placed in a psychiatric hospital in view of his allegedly inappropriate behaviour over the course of some twenty years. On two occasions, 26 April and 18 June 2013, a local psychiatrist, S., examined the applicant at his place of residence and ordered his placement in a psychiatric clinic on account of an acute polymorphic psychotic disorder. However, the hospitalisation did not take place.

3.  On 8 January 2014, following a phone call from the applicant’s sister at 10.15 a.m., a psychiatrist arrived at the applicant’s place of residence in an ambulance and referred the applicant to a psychiatric hospital on account of a delusional disorder. The ambulance record notes a statement by the applicant’s sister about his inappropriate behaviour and delusional ideas as grounds for the referral. According to the applicant, he was forcibly taken to the psychiatric hospital. According to the Government, the applicant did not oppose his transfer.

4.  At 10.50 a.m. the applicant, accompanied by his sister and nephew, arrived at the Vinnytsya Regional Psychoneurological Hospital (“the Hospital”). The applicant’s sister addressed a letter to the Head of that facility, alleging that the applicant was suffering from a serious mental condition and needed compulsory hospitalisation. She noted that he had been behaving inappropriately for more than ten years. In particular, he had beaten his own wife and children as well as trying to strangle his son and abuse his daughter. During the previous three years the applicant had been sharing a house with her and had come into conflict with her family and neighbours. He had used their house to hoard various items and rubbish; he had collected urine and excrement and placed them in the backyard of their house; he had also regularly thrown urine out of the windows saying it was a good fertiliser. She further noted that her brother believed that he was a great scientist and doctor who would cure all diseases with the help of apples. Lastly, he had attended meetings of a religious group and had stated that television and newspapers were evil.

5.  Upon his admission to the Hospital the applicant was examined by the duty psychiatrist, who concluded that he was suffering from a schizoaffective disorder and necessitated hospitalisation as his mental state might significantly deteriorate in the absence of treatment. According to the applicant he had not given his consent to the examination and refused to be hospitalised.

6.  Later, at 12 noon, the applicant was examined by a commission of psychiatrists. The anamnesis of the commission’s report referred to the applicant’s behaviour as described by his sister and stated that he had behaved in such a way for the past twenty years. The report further stated that during the examination the applicant was alert, aware of his surroundings, wordy but to the point; he tried to make a good impression; he denied any wrongdoing at home, blamed his relatives for being unfairly prejudiced against him and was aggressively oriented towards them; he was easily irritated and tense; he displayed pseudo-philosophical, paralogical thinking; he expressed delusional ideas of his superiority and considered himself to be a prominent scientist who was writing a study on curing all diseases by means of a fruit and vegetable diet; he submitted that he wanted to open a medical centre to cure cancer using his own methods; he denied having any perceptual disorder; he allowed no self-criticism; and he did not express any suicidal thoughts. The commission concluded that the applicant was suffering from an acute polymorphic psychotic disorder (гострий поліморфний психотичний розлад), due to which he was unable to take responsibility for his actions and posed a danger to himself and his relatives. His involuntary hospitalisation and treatment under a strict supervision regime was ordered by the commission.

7.  At 3.23 p.m. on the same day the Hospital applied to the Vinnytsya District Court (“the District Court”) for judicial authorisation to proceed with the applicant’s involuntary hospitalisation.

8.  On 9, 10, 13 and 14 January 2014 the District Court adjourned the hearings each day at the request of the applicant or his lawyer. At 3 p.m. on 10 January 2014, the applicant was released by the Hospital in the courtroom, allegedly in view of the absence of a timely court decision approving his hospitalisation. On 15 January 2014 the Hospital withdrew its request for compulsory hospitalisation of the applicant, lodged on 8 January 2014, arguing that the applicant had been discharged from the hospital on 10 January 2014. The request was allowed, and the proceedings were discontinued.

9.  On 17 January 2014 the applicant instituted civil proceedings against the emergency service and the Hospital. He essentially challenged the lawfulness of his psychiatric examinations and involuntary hospitalisation.

10.  On 12 September 2014 the District Court partly allowed the applicant’s claim, finding that his detention by the Hospital after 3.24 p.m. on 9 January 2014 was unlawful because it had not been approved by a court decision. The remainder of the applicant’s allegations were rejected as unsubstantiated. In particular, having summarised the sequence of events on 8 January 2014 and having cited the findings of the medical commission referred to in paragraph 6 above, the District Court concluded that the ambulance team and the Hospital staff had complied with the provisions of sections 11 and 14 of the Psychiatric Assistance Act, which laid down the circumstances under which a patient could be subject to psychiatric examination and hospitalised without his or her consent.

11.  The applicant appealed, maintaining that the judgment lacked reasoning. He complained, inter alia, that the District Court had not addressed his arguments concerning the way in which his “examination” by the ambulance psychiatrist had been conducted and the lack of legal grounds for his examination and subsequent transportation to the hospital without his consent or a court decision. Relying on statements allegedly made during the court hearings by Hospital psychiatrists, according to which on the date of his hospitalisation he had posed no real danger to anyone and his placement in the Hospital had been prompted by his sister’s complaints only, the applicant maintained that his hospitalisation and two-day confinement had been unlawful.

12.   On 11 November 2014 the Vinnytsya Regional Court of Appeal (“the Court of Appeal”) overturned the judgment of the District Court and dismissed the applicant’s claim as a whole. It agreed with the reasoning of the District Court as regards the lawfulness of the doctors’ actions and added that it could not be imputed to the Hospital that the court had failed to consider the Hospital’s request for the applicant’s involuntary hospitalisation in due time. The applicant sought leave to appeal in cassation, maintaining his complaints.

13.  On 4 December 2014 the Higher Specialised Court for Civil and Criminal Matters dismissed the applicant’s request for leave to appeal in cassation, generally endorsing the findings of the Court of Appeal.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

14.  Relying on Article 5 § 1 (e) of the Convention, the applicant complained that his involuntary placement in a psychiatric facility on 8 January 2014 had been unlawful.

15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

16.  The applicable general principles under Article 5 § 1 (e) of the Convention have been summarised in Stanev v. Bulgaria ([GC], no. 36760/06, §§ 143-147, ECHR 2012).

17.  The Court notes that the legal issues raised by the applicant under Article 5 § 1 (e) of the Convention in the present case are similar to those examined in Dergachenko v. Ukraine ((dec.) no. 18060/13, 18 February 2021) and that the same legal provisions are applicable.

18.  However, the present case differs from Dergachenko in so far as the case files lacked any explicit reference to evidence of the “urgent necessity” used to justify the applicant’s psychiatric examination and hospitalisation. Neither the ambulance report nor the record of the joint examination in the Hospital provided a detailed account of any specific behaviour of the applicant which would show that he presented an imminent danger to himself or others either upon the arrival of the ambulance or at the hospital (see paragraphs 3 and 6 above). Moreover, the written complaint from the applicant’s sister to the Head of the Hospital alleged a steady pattern of behaviour (over a period of some ten years) which included entering into arguments, cluttering up the house, having delusional ideas, and so on. While she also referred, without providing any evidence, to instances of physical violence, such references were made to incidents alleged to have taken place before the applicant had moved to her place of residence; she provided no details or evidence of any recent incidents of this nature.

19.  The domestic courts, on their side, limited themselves to a simple reiteration of what had been stated in the medical reports (see paragraphs 10, 12 and 13 above) while, in the Court’s view, under the present circumstances, the domestic authorities should have engaged in an independent scrutiny of whether the applicant had indeed posed any real danger to anyone (see, mutatis mutandis, X v. Russia, no. 3150/15, § 41, 20 February 2018). The Court considers that none of the characterisations given by the commission of psychiatrists in respect of the applicant - in the absence of clear evidence of verbal or physical aggression, self‑mutilation, suicide, etc. - suggested that the applicant had posed a danger to anyone. The fact that the applicant would clutter up the house or considered himself a scientist who could rid the world of disease can hardly be seen as an indication that he was a danger to himself or his relatives.

20.  The Court further notes that neither the domestic authorities nor the Government objectively indicated that it would have been “impossible” to safeguard the individual or public interest without the applicant’s hospitalisation. The available medical evidence and judicial decisions also contain no explanation as to why or how the applicant’s mental state might have significantly deteriorated in the absence of involuntary inpatient treatment. The Court also notes in this respect that the Hospital withdrew its request for compulsory hospitalisation in the initial proceedings without seeking any further authorisations from the District Court (see paragraph 8 above).

21.  There has accordingly been a violation of Article 5 § 1 of the Convention.

II.      OTHER COMPLAINTS

22 .  On the basis of the same facts, the applicant further complained that his medical examinations and his involuntary hospitalisation for two days in a psychiatric hospital had breached his right to respect for his private life. He relied on Article 8 of the Convention.

23.  Having regard to the facts of the case, the submissions of the parties and its findings under Article 5 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaint (see, among other authorities, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage and EUR 721 in respect of the costs and expenses incurred in the proceedings before the Court.

25.  The Government considered the claims unreasonable, arguing mainly that there had been no violation of the Convention in the applicant’s case.

26.  The Court awards the applicant the amount claimed in full in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

27.  Having regard to the documents in its possession, the Court further considers it reasonable to award the applicant the sum claimed in full in respect of costs and expenses, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint under Article 5 § 1 admissible;

2.      Holds that there has been a violation of Article 5 § 1 of the Convention;

3.      Holds that there is no need to examine the complaint under Article 8 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of non-pecuniary damage;

(ii) EUR 721 (seven hundred and twenty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of the applicant’s representative, Ms N. Gurkovska;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

            Martina Keller                                         Stéphanie Mourou-Vikström
          Deputy Registrar                                                      President