Постановление ЕСПЧ от 06.12.2016 <Дело Трутко (Trutko) против России> (жалоба N 40979/04) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF TRUTKO v. RUSSIA
(Application no. 40979/04)
JUDGMENT <*>
(Strasbourg, 6.XII.2016)
FINAL

(06.III.2017)
———————————
<*> This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Trutko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova,
Alena ,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 15 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

 

  1. The case originated in an application (no. 40979/04) 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, Ms Marina Anatolyevna Trutko («the applicant»), on 26 October 2004.
  2. The applicant was represented by Mr I. Rakhmilov, a lawyer practising in Moscow. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
  3. The applicant alleged, in particular, that she had been unlawfully deprived of her liberty for the purpose of undergoing a forensic psychiatric examination and compulsory medical treatment.
  4. On 16 September 2008 the application was communicated to the Government.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicant was born in 1964 and lives in Dubna, Moscow Region.
  2. On 4 February 2003 she was charged with contempt of court and criminally insulting the presiding judge and parties at a hearing on 22 December 2002 in which she had acted as a defendant’s representative.
  3. An outpatient forensic psychiatric examination of the applicant was ordered in the course of the pre-trial investigation. On 2 July 2003 she was apprehended and taken to a psychiatric facility for examination. On 3 July 2003 she was examined by a panel of psychiatrists, who concluded that her clinical state was unclear and that no answers could be given concerning her mental health state. She was released, the panel recommending a placement in the State Academic Centre for Social and Forensic Psychiatry in Moscow (Государственный научный центр социальной и судебной психиатрии им. В.П. Сербского) («the Forensic Psychiatry Centre») for an inpatient forensic psychiatric examination.
  4. On 27 October 2003 the Dmitrov Town Court of the Moscow Region (Дмитровский городской суд Московской области) («the Town Court»), having considered the applicant’s complaint of unlawful apprehension and deprivation of liberty between 2 and 3 July 2003, ruled in her favour. The court reasoned that the detention had been unlawful, since the sanction for the crime she was suspected of did not provide for any form of deprivation of liberty. The applicant did not initiate any further proceedings in this regard.
  5. On 4 November 2003 the prosecution made an application for the court to order an involuntary forensic psychiatric examination of the applicant at the Forensic Psychiatry Centre.
  6. On the same day the Town Court granted the prosecutor’s application. The relevant part of its order reads:

«By virtue of paragraph 1 of Article 203 of the Code of Criminal Procedure, a defendant may be placed in a psychiatric hospital if a forensic psychiatric examination requires his assessment in the hospital.

…the court considers that it should allow the application by the investigator, Ms D., to place [the applicant] in [the Forensic Psychiatry Centre] for a forensic psychiatric evaluation, because [the applicant] is in need of such a hospital examination.»

  1. The applicant and her representative did not attend the hearing, because they had not been summoned to it. However, both the prosecutor and the investigator attended and made oral submissions.
  2. On an unspecified date the applicant appealed, complaining, inter alia, that she had not been given an opportunity to present her case to the Town Court.
  3. Between 25 December 2003 and 5 April 2004 the applicant applied to adjourn her appeal hearing five times. Her application was granted on each occasion. On 29 December 2003 during the appeal hearing in a separate set of proceedings she accused the judges of criminal conspiracy and attempted murder.
  4. On 15 January 2004 the applicant was also charged with criminal slander of certain judges during the hearing of 29 December 2003. The proceedings in respect of the two criminal cases were joined.
  5. On 9 April 2004 the applicant was apprehended by the authorities and transferred to the Forensic Psychiatry Centre. On 13 April 2004 a panel of psychiatrists issued a report, concluding that the applicant suffered from «paranoid personality development», and that she had not been able to understand or control her actions during the events of 22 December 2002 (contempt of court) and 29 December 2003 (criminal slander). The report further stated that she presented a danger to others and therefore needed compulsory treatment in a psychiatric facility. On the same day the applicant was released.
  6. Two weeks later on 27 April 2004 the Moscow Regional Court (Московский областной суд) («the Regional Court») held a hearing on the applicant’s appeal against the the Town Court’s decision of 4 November 2003 authorising psychiatric examination, and rejected it. As regards the applicant’s complaint about the hearing taking place in her absence, the Regional Court noted that Article 165 of the Code of Criminal Procedure provided for ex parte hearings where there was judicial authorisation of investigative actions, including internment in a psychiatric facility for forensic examination (as set out in Article 203 of the Code).
  7. On 14 September 2004 the Moscow City Court (Московский городской суд) («the City Court») adopted decisions in two sets of criminal proceedings against the applicant. The first decision terminated the criminal proceedings relating to the contempt of court charges in respect of the events of 22 December 2002. The applicant’s statements, while offensive, were found to have been lacking the degree of insult requisite for incurring criminal liability. In the second decision, the City Court established the principal facts of the events of 29 December 2003. Concluding that the applicant had acted in a state of insanity, it terminated the criminal proceedings against her and ordered her to undergo compulsory medical treatment in a psychiatric facility. It relied on the findings and recommendations of the Forensic Psychiatry Centre’s report of 13 April 2004 in its reasoning.
  8. On 22 December 2004 the Supreme Court of the Russian Federation upheld the lower court’s decisions.
  9. It appears from the parties’ submissions that the applicant was not detained and did not receive any treatment pursuant to the City Court’s order until 2006.
  10. On 23 March 2006 the applicant was involuntarily admitted to Moscow Regional Psychiatric Hospital no. 14 (Московская областная психиатрическая больница N 14) for compulsory psychiatric treatment.
  11. On 16 May 2006 a panel of hospital psychiatrists concluded that the applicant’s mental health had improved and she no longer posed a danger to society. On the same day an application to discharge the hospital order and discontinue the compulsory treatment was sent to the Town Court.
  12. On 22 May 2006 the Town Court scheduled the hearing of the application for the next day. However, it was adjourned until 2 June 2006, because the applicant’s representative failed to appear and additional medical records and statements had to be obtained. Two subsequent hearings were adjourned following applications by the applicant’s representatives.
  13. On 10 July 2006 the Town Court ordered the applicant’s compulsory treatment to be discontinued. Her representative lodged an appeal, arguing that the proceedings should have been discontinued from the very beginning, and that the applicant should have been released, since there had been no need for any compulsory treatment. On 31 August 2006 the Regional Court dismissed the appeal and upheld the lower court’s decision.
  14. The applicant was released from hospital on 15 August 2006.

 

  1. Relevant domestic law

 

  1. The relevant part of the Code of Criminal Procedure («the Code») provides:

Article 165. Judicial authorisation of investigative actions

«1. [In the circumstances provided for by this Code] an investigator… submits an application for authorisation of an investigative action to a court…

  1. An application [for judicial authorisation of an investigative action] is considered by a [single judge]… within twenty-four hours…
  2. A prosecutor or an investigator may take part in the hearing…»

Article 203. Internment in a medical or psychiatric facility for forensic examination

«1. If [a forensic medical or psychiatric examination] requires the examination of a suspect or an accused as an inpatient, he may be interned in a medical or psychiatric facility.

  1. A suspect or an accused who is not detained shall be interned in a medical or psychiatric facility for [a forensic examination]… by means of a court order obtained under Article 165 of this Code…»
  2. On 18 June 2004 the Constitutional Court of the Russian Federation concluded in decision no. 206-O (with references to previous judgments and decisions) that a court could not issue an order under Article 203 of the Code without affording a suspect and/or his representative the opportunity to acquaint themselves with the relevant application and present arguments.

 

THE LAW

  1. Alleged violation of Article 5 § 1 of the Convention as regards the detention from 9 to 13 April 2004

 

  1. The applicant complained that her internment in a psychiatric facility from 9 to 13 April 2004 for the purpose of conducting an inpatient forensic psychiatric examination was in violation of Article 5 § 1 of the Convention, the relevant part of which reads:

«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…»

 

  1. Admissibility

 

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

 

  1. Merits
  2. Submissions of the parties

 

  1. The applicant claimed that the Town Court’s order of 4 November 2003 had been unfair and unlawful. She alleged that she had been deprived of the opportunity to participate in the relevant hearing, and that, in any event, there had been no grounds to order her involuntary psychiatric examination.
  2. The Government argued that the applicant’s internment in a psychiatric facility for the purpose of conducting an inpatient forensic psychiatric examination had been lawful with regard to domestic criminal procedure legislation. They further stated that she had been afforded an opportunity to appeal against the Town Court’s order and to present her arguments during the appeal hearing.

 

  1. The Court’s assessment

 

  1. The Court reiterates that a person’s physical liberty is a fundamental right protecting the physical security of an individual (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X). While Article 5 § 1 of the Convention sets out a list of exceptions which might restrict this right (Article 5 § 1 (a) to (f)), these exceptions must be interpreted narrowly, and in no circumstances may they allow arbitrary deprivation of liberty (see Vasileva v. Denmark, no. 52792/99, § 33, 25 September 2003).
  2. In the present case, the parties did not dispute that the enforcement of the court order for forensic psychiatric examination of the applicant had involved a deprivation of liberty.
  3. The majority of cases concerning involuntary hospitalisations were examined under Article 5 § 1 (e) of the Convention, which permits detention of persons of «unsound mind». Despite a significant degree of resemblance between these cases and the present case it is clear that the present case falls to be examined under Article 5 § 1 (b) of the Convention, which provides inter alia for detention of a person for non-compliance with the lawful order of a court: the prosecutor’s application of 4 November 2003 for the applicant to be examined was granted on that day, and after a series of adjournments to the proceedings, the applicant was detained pursuant to the order on 9 April 2004. In respect of a person ordered by a court to undergo an involuntary psychiatric examination the purpose of the detention under sub-paragraph (b) of Article 5 § 1 the Convention is to ensure that he or she submits to a psychiatric examination which, in the opinion of the competent national authorities, is necessary to determine whether the person suffers from any mental disorder. This was precisely the rationale behind the order issued by the Town Court on 4 November 2003.
  4. In so far as Article 5 § 1 (b) is concerned, the Court is mindful that in the subparagraph there are two distinct grounds for detention: first, «non-compliance with the lawful order of a court» and/or second «in order to secure the fulfilment of [an] obligation prescribed by law». The Court has previously observed that the phrase «obligation prescribed by law» denotes an obligation of a specific and concrete nature already incumbent on the person concerned (see Ciulla v. Italy, 22 February 1989, § 36, Series A no. 148). In Beiere v. Latvia (no. 30954/05, § 48, 29 November 2011) the Court clarified that when a legal provision, the source of the «obligation prescribed by law», referred directly to a requirement for a judge or a court to adopt a decision, the second aspect of Article 5 § 1 (b) was not at issue and the case fell to be examined under the first aspect. Having regard to the wording and meaning of Article 203 of the Code, the Court considers that the same approach must be adopted in the present case.
  5. Accordingly, the Court must examine whether, in the light of Article 5 § 1 of the Convention and the exception set out in sub-paragraph (b), the applicant was lawfully deprived of her liberty, specifically, whether the court order was lawful and whether it was enforced in a manner compliant with the above-mentioned provisions of the Convention. It is for the Court to review the lawfulness the applicant’s detention in the Forensic Psychiatry Centre between 9 and 13 April 2004 for the purpose of forensic psychiatric examination authorised by the order issued by the Town Court on 4 November 2003.
  6. The Court reiterates that the notion of «lawfulness» in the context of Article 5 § 1 of the Convention may have a broader meaning than in the national legislation and that it presumes a «fair and proper procedure», including the requirement «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). In this context the detention will not be considered «lawful» within the meaning of Article 5 § 1 if the domestic procedure does not provide sufficient guarantees against arbitrariness (see Shtukaturov v. Russia, no. 44009/05, § 113, 27 March 2008).
  7. Turning to the present case, the Court notes that the applicant’s forensic psychiatric examination was ordered by the competent national authorities during the pre-trial investigation into the alleged criminal insult of judges and contempt of court. On 4 November 2003 the Town Court ordered the applicant’s examination with reference to Article 165 of the Code, which requires judicial authorisation for certain investigative actions, and paragraph 2 of Article 203 of the Code, which allows a suspect to be interned for the purpose of psychiatric examination. There is no evidence that either the applicant or her representatives were notified of the hearing, while both the prosecutor and the investigator attended and made oral submissions.
  8. The Court has no doubt that the necessary demands of a criminal investigation may justify ex parte hearings on judicial authorisation of certain investigative actions under Article 165 of the Code (for example, home and personal searches, and interception of correspondence). In this context, an ex parte hearing serves to make investigations more efficient, and counters the likelihood of evidence being tampered with or destroyed. However, internment of a person in a medical or a psychiatric facility for forensic examination does not appear to fall into the category where the above considerations apply to an equal degree.
  9. The Court highlights that the above investigative measures involve internment in a specialised medical facility, a deprivation of liberty, which under Article 5 § 1 of the Convention shall be safeguarded against arbitrariness. The importance of safeguards in this context is further amplified by the fact that placement in a specialised medical institution frequently results in interference with an individual’s private life and physical integrity through medical interventions against the individual’s will (see, mutatis mutandis, X v. Finland, no. 34806/04, § 212, 3 July 2012).
  10. Previously, in proceedings for judicial authorisarion of a person’s placement in a psychiatric facility without consent, the Court has considered that participation of that person in the proceedings and the benefit of legal representation, where appropriate, constituted important safeguards against arbitrariness (see, for example, Beiere v. Latvia, no. 30954/05, § 52, 29 November 2011, and Zagidulina v. Russia, no. 11737/06, §§ 60 — 62, 2 May 2013).
  11. In the present case, the applicant was neither notified of nor afforded the opportunity to take part in or be represented at the hearing of 4 November 2003 before the Town Court regarding the authorisation of her internment in a psychiatric facility. The domestic court granted the investigator’s application, without finding it necessary to summon the applicant or give any consideration to such an evident consequence of the order as the deprivation of liberty.
  12. The Court observes that the applicant could lodge an appeal against the order of 4 November 2003. However, she was apprehended by the authorities on 9 April 2004, transferred to the Forensic Psychiatry Centre, and released five days later after her involuntary forensic psychiatric examination had been completed. The appeal hearing in the Regional Court took place two weeks later on 27 April 2004. The applicant’s argument concerning her absence from the hearing at the Town Court was summarily dismissed with reference to Articles 165 and 203 of the Code.
  13. The Court further notes that the Constitutional Court of the Russian Federation, in decision no. 206-O of 18 June 2004, concluded that a court could not issue an order under Article 203 of the Code without affording a suspect and/or his representative an opportunity to be heard.
  14. Having regard to these circumstances, the Court considers that the proceedings leading to the applicant’s five-day internment in the Forensic Psychiatry Centre did not meet the lawfulness requirement of Article 5 of the Convention, since her detention was arbitrary (see Winterwerp, cited above, § 45). While Article 165 of the Code does indeed provide for ex parte hearings regarding relevant orders, nothing in the parties’ submissions indicates that the Russian courts would have been prevented from summoning the applicant if they considered her presence necessary. Moreover, the above opinion of the Constitutional Court of the Russian Federation states clearly that domestic law — Article 203 of the Code — provides for the participation of suspects in hearings.
  15. In the present case, not only was the applicant unable to present her arguments against internment before the relevant order was made, but the domestic courts chose to neglect the deprivation of liberty aspect of that order even after the issue of her absence during the first-instance hearing was raised on appeal. These considerations lead the Court to conclude that the applicant’s detention between 9 and 13 April 2004 was arbitrary within the meaning of Article 5 § 1 of the Convention.
  16. Accordingly, there has been a violation of Article 5 § 1 of the Convention.

 

  1. Alleged violation of Article 5 § 1 of the Convention as regards the detention from 23 March and 15 August 2006

 

  1. The applicant complained that her placement and compulsory medical treatment in a psychiatric facility between 23 March and 15 August 2006 had violated Article 5 § 1 (e) of the Convention, which reads:

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

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

 

  1. Admissibility

 

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

 

  1. Merits
  2. Submissions of the parties

 

  1. The applicant claimed that her placement and compulsory medical treatment in a psychiatric facility between 23 March and 15 August 2006 had been unlawful and devoid of any valid medical reasons.
  2. The Government argued that the applicant’s internment and treatment had been the direct result of the City Court’s decision of 14 September 2004. They stated that it had been lawful and justified in the light of the psychiatric examination’s findings and recommendations. The Government further asserted that the internment had only lasted as long as had been necessary, and the applicant had been released after her condition had improved.

 

  1. The Court’s assessment

 

  1. In its Winterwerp judgment (cited above), the Court set out three minimum conditions which have to be satisfied for the «detention of a person of unsound mind» to be lawful within the meaning of Article 5 § 1 (e) of the Convention: except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical evidence; 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.
  2. In deciding whether an individual should be detained as a «person of unsound mind», the Court has held on numerous occasions that it gives a certain amount of deference to the national authorities. It is the task of the national authorities to evaluate the evidence adduced before them in a particular case, and the Court’s task is to review the decisions of those authorities under the Convention (see Luberti v. Italy, 23 February 1984, § 27, Series A no. 75). In this regard, the Court also reiterates that the detention of an individual is such a serious measure that it is only justified where other, less severe, measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see Karamanof v. Greece, no. 46372/09, § 42, 26 July 2011 with further references).
  3. In the present case, the Court observes that the decision placing the applicant in a psychiatric facility for treatment was ordered by the City Court on 14 September 2004, and upheld by the Supreme Court of the Russian Federation on 22 December 2004. The hospital order was issued by the domestic courts in line with the recommendations in the Forensic Psychiatry Centre’s report of 13 April 2004. However, for reasons that remain unclear, the authorities only decided to enforce the order one year and two months after it had become final, and almost two years after the relevant recommendations for treatment had been made by the psychiatrists.
  4. The Court considers that the logic of the Winterwerp criteria under Article 5 of the Convention presupposes that the existence of a mental disorder warranting compulsory confinement must be reliably shown at the date of detention and throughout the detention, especially given the marked tendency of mental disorders to develop over time. The Court had previously held that paragraph 4 of Article 5 of the Convention enshrines a procedural safeguard against the detention, which albeit initially lawfully ordered, later becomes unlawful and unjustified (see Shishkov v. Bulgaria, no. 38822/97, § 88, ECHR 2003-I (extracts) with further references). The continuing detention of a mental health patient should be with reference to the patient’s contemporaneous state of health, and not with reference to past events from the time the initial decision was made (see X v. Finland, no. 34806/04, §§ 169 — 70, ECHR 2012 (extracts); H.W. v. Germany, no. 17167/11, § 107, 19 September 2013; Ruiz Rivera v. Switzerland, no. 8300/06, § 60, 18 February 2014; and C.W. v. Switzerland, no. 67725/10, § 38, 23 September 2014).
  5. In the present case, the Court finds it impossible to reconcile the conduct of the national authorities with the Convention requirements that any measure depriving a person of his liberty should not be arbitrary, and that such a measure should be predetermined by the state of a person’s mental health at the material time. The hospital order committing the applicant for compulsory treatment became final on 22 December 2004, while the need for such treatment had been established by the medical report adopted eight months prior to that. Despite the passing of this not insignificant period of time, it took the Russian authorities another year and two months to enforce the order, and the applicant was not placed in the psychiatric facility until 23 March 2006. Nothing in the material available to the Court suggests that the applicant’s state of mental health was re-evaluated within the two year period between her examination in the Forensic Psychiatry Centre on 13 April 2004 and the enforcement of the hospital order. Equally, nothing in the parties’ submissions indicates that the national authorities considered whether her mental disorder had persisted and still required compulsory treatment. The Court also notes that the applicant’s involuntary hospitalisation was not considered an emergency measure by the national authorities (see Herz v. Germany, no. 44672/98, § 54, 12 June 2003) and there is no evidence that the applicant’s condition was examined upon her admission to the hospital in March 2006 (compare v. Germany (dec.) no. 2894/08, 22 January 2013).
  6. Accordingly, the Court concludes that the applicant’s detention between 23 March and 15 August 2006 was not lawful, since the national authorities failed to demonstrate that, one year and two months after the issuance of the hospital order, her mental disorder had been of a kind or degree warranting confinement.
  7. Giving due regard to the conclusions above, the Court finds that there has been a violation of Article 5 § 1 of the Convention.

 

III. Other alleged violations of the Convention

 

  1. The applicant also lodged a number of substantively similar ancillary complaints under Article 5 §§ 1 and 4, Article 6 and Article 13 of the Convention, which were communicated to the Government. However, having regard to its above findings under Article 5 of the Convention, the Court does not find it necessary to examine separately the admissibility and merits of these complaints.
  2. Lastly, the applicant complained under Articles 2, 3, 4, 5, 6, 7, 8, 10, 13 and 14 of the Convention of various violations of her rights in the proceedings relating to her prosecution, involuntary psychiatric examination and treatment. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

 

  1. Application of Article 41 of the Convention

 

  1. 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.»

  1. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

  1. Declares the complaints under Article 5 of the Convention concerning the deprivation of liberty for the purpose of conducting a forensic psychiatric examination and providing compulsory medical treatment admissible, and, subject to point 4 below, declares the remainder of the application inadmissible;
  2. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawful deprivation of liberty for the purpose of conducting a forensic psychiatric examination;
  3. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the unlawful deprivation of liberty for the purpose of providing compulsory medical treatment;
  4. Holds that there is no need to examine further the remaining communicated complaints under Article 5 nor those under Articles 6 and 13 of the Convention.

 

Done in English, and notified in writing on 6 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President
Stephen PHILLIPS Registrar

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