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FOURTH
SECTION
CASE OF
DAVID v. MOLDOVA
(Application
no. 41578/05)
JUDGMENT
STRASBOURG
27
November 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 David v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41578/05) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Gheorghe David (“the applicant”),
on 31 October 2005. On 21 July 2007 he died. His sister, Ms Maria
Vulpe, expressed her wish to pursue the application before the Court.
- The
applicant, who had been granted legal aid, was represented by Mr A.
Postică, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that his detention had been
unlawful and contended that there had been a violation of Article 5
§§ 1 and 4 of the Convention.
- On
23 January 2007 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lived in Chişinău. He did
not have a family and lived alone.
- In
1987 the applicant was found guilty of criticising the Soviet
authorities and of expressing the view that Moldova had been occupied
by the Soviet Union and that it should reunite with Romania. On the
basis of a medical report ordered by the Soviet courts, he was
declared mentally unsound and sent for forced treatment in a
psychiatric hospital in eastern Ukraine. He was held there for one
year, after which he was released and obliged to continue out-patient
treatment in Chişinău.
- In
1990 the sentence against the applicant was quashed and he was
acquitted.
- On
an unspecified date the applicant learned that he could obtain
compensation for his illegal conviction and detention in a
psychiatric hospital and that there was no time-limit for filing such
an action.
- In
September 2004 he initiated civil proceedings against the Ministry of
Finance, claiming compensation. He argued, inter alia, that
after the forced medical treatment administered to him in 1987-1988
he had started to experience health problems, in particular he had
lost his memory, had become emotionally frozen and unstable and
therefore had been forced to live on a very small disability
allowance.
- During
the proceedings the Ministry of Finance questioned his fitness to
plead before courts in view of his medical background.
- The
applicant disagreed with the defendant, but fearing that his action
would not be examined, agreed to submit to a medical examination in
order to prove the contrary.
- On an unspecified date the applicant underwent a
medical examination by a specialised commission; however, the
commission could not reach a conclusion. In a document dated 25
February 2004 it concluded that it would be impossible to reach a
conclusion without a thorough examination of the applicant under
conditions of hospitalisation.
- On
14 March 2005 Judge V.G. of the Râşcani District Court
examined the possibility of committing the applicant for an
in-patient examination. As the applicant agreed to be hospitalised,
the court ordered on the same date an in-patient medical examination
to be conducted by the Central Psychiatric Hospital, Department of
Judicial Investigations.
- On
4 April 2005 the applicant went to the hospital, where, to his
surprise, he was deprived of all his belongings and hospitalised
together with persons of unsound mind with limited freedom of
movement. According to him, the hospital was no longer heated in
April, and since the clothes he was provided with were too thin for
the season, he caught a cold and developed acute bronchitis. Two days
after his hospitalisation he asked to be released in order to go
home, change clothes and buy medicines for his cold. However, the
doctors did not authorise him to leave the ward in which he was
hospitalised.
- It
appears from the applicant's medical record that during his stay in
the hospital he was not visited by anyone. According to him he could
not complain to anyone about his detention and could not even make a
telephone call or complain by other means to persons outside the
hospital.
- He
was seen by doctors for only several minutes per day, during the
routine morning round. The rest of the day he was at the mercy of the
paramedical staff who usually forced patients to carry out public
utility work around the hospital. He was not obliged to work because
of his age and poor physical condition.
- On
29 April 2005 the applicant was released from the hospital. According
to him, it took a long time to recover but he preferred not to
complain immediately for fear of adverse consequences. He submitted
that he feared being placed in detention again or that the results of
the examination would be falsified.
- On
16 May 2005 the psychiatric hospital issued a report in which it
concluded that the applicant was suffering from a mental condition,
but that his reasoning was unaffected and that he was fit to plead
before courts.
- On
9 June 2005 the applicant lodged a criminal complaint with the
Prosecutor's Office of the Centru District, asking it to prosecute
the doctors who had held him in detention against his will. He
described the conditions in which he had been detained and named two
doctors who had refused his requests to be allowed to leave the
hospital. He argued that those doctors had committed an offence under
Article 166 of the Criminal Code – illegal deprivation of
liberty – and asked for compensation.
- On
30 June 2005 the Prosecutor's Office dismissed the applicant's
complaint. The applicant challenged the dismissal before the Centru
District Court.
- On
21 July 2005 Judge A.B. of the Centru District Court upheld the
applicant's appeal and found, inter alia, that the
Prosecutor's Office had failed to clarify the conditions under which
the in-patient medical examination was initially intended to be
carried out, and also the conditions in which it had in fact been
carried out. The Prosecutor's Office had also failed to examine the
applicant's written request by which he had expressed his consent to
be hospitalised and the manner of hospitalisation to which he had
consented. Judge A.B. ordered a new investigation into the
applicant's complaint.
- On
12 October 2005 the Prosecutor's Office dismissed the applicant's
complaint, again without giving any new arguments. It only stated
that the instructions of the Centru District Court had been followed,
but that this did not influence the initial decision not to institute
criminal proceedings. The applicant again challenged the dismissal.
- On
9 November 2005 Judge A.B. of the Centru District Court dismissed the
applicant's appeal, finding that his detention had been carried out
in accordance with the court order of 14 March 2005.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure provides for only one possibility for a
person to be submitted to a psychiatric examination against his or
her will. Chapter 28 of the Code deals with the proceedings intended
to limit the legal capacity of a person. According to Article 302
such proceedings can be initiated by the State, by a prosecutor or by
the family of a person of unsound mind or who makes abusive use of
alcohol or drugs. Article 305 provides that a judge examining an
action to limit a person's legal capacity can order the person
concerned to undergo a psychiatric medical examination. If the person
does not comply with the order, the judge can decide, during a
hearing at which a psychiatrist is present, to oblige the person to
undergo a psychiatric examination despite his or her opposition.
- Section
11 of the Law on Psychiatric Assistance provides
that a person can be hospitalised in a psychiatric hospital for
treatment against his or her will only in accordance with the
provisions of the Criminal Code or in accordance with the provisions
of section 28 of that law. In both cases, except for reasons of
urgency, the hospitalisation must be ordered on the basis of a
decision taken by a commission of psychiatrists.
Section
28 of the same law sets out the reasons which can be relied upon for
hospitalising a person for treatment against his or her will. It
provides that a person suffering from a mental disorder can be
hospitalised against his or her will, before a court judgment for
that purpose has been issued, when the mental disorder is
particularly serious and constitutes a risk to himself or herself or
to others, when the mental disorder is of such a nature that the
person is incapable of meeting his or her vital needs alone, and if
left untreated, the mental disorder could cause serious harm to the
health of the individual concerned.
Pursuant
to section 32 of the law the compulsory hospitalisation for treatment
of a person in accordance with section 28 must be decided by a court.
The hospital must apply to the court for permission, indicating in
the application the reasons for which the hospitalisation is sought
and attaching a copy of the decision of a commission of
psychiatrists. Pursuant to section 33, the court examining the
application must take a decision within three days from the date on
which the application was lodged and the person concerned has the
right to participate in the hearing. If the person's condition is
serious and he or she cannot come to the court, the judge is obliged
to hold the hearing at the hospital. The judgment issued at the end
of the hearing constitutes the basis for compulsory hospitalisation.
Section
39 of the same law provides, inter
alia, that a patient hospitalised in a psychiatric
hospital with his consent can leave the hospital upon his or her
request. On the other hand, a patient hospitalised against his or her
will can leave the hospital only upon the decision of a commission of
psychiatrists or on the basis of a court judgment.
THE LAW
- The
applicant complained under Article 5 § 1 of the Convention that
his detention in the psychiatric hospital had been arbitrary. Article
5 § 1 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:
(a) the lawful detention of a person after
conviction by a competent court;
(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;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(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;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
- The
applicant also complained under Article 5 § 4 that he did not
have an effective remedy under domestic law to challenge his
detention. Article 5 § 4 of the Convention reads:
“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.”
I. ADMISSIBILITY OF THE COMPLAINTS
- The
Court notes at the outset that the applicant died after lodging the
present application and that his sister has expressed her wish to
continue the proceedings before the Court (see paragraph 1 above). It
has not been disputed that the applicant's sister is entitled to
pursue the application on his behalf and the Court sees no reason to
hold otherwise (see mutatis mutandis Lukanov v. Bulgaria,
judgment of 20 March 1997, Reports 1997 II, § 35).
- The
Government argued that the applicant did not complain immediately
about the doctors' refusal to release him. According to them, it was
open to him to do so during his detention. The administration of the
hospital was under a duty to forward any such complaint to the
authority concerned within twenty-four hours.
- In so far as this submission could be considered to be
an objection concerning the applicant's failure to exhaust domestic
remedies, the Court observes that the object of the applicant's
hospitalisation was to determine his fitness to plead in court
proceedings. In these circumstances, it cannot be held against him
that he did not bring, for example, habeas corpus proceedings
to secure his release pending the doctors' determination on his
fitness to plead. In addition, it was not disputed in the criminal
proceedings which he brought subsequent to his release that he had
clearly expressed his wish to leave the hospital shortly after his
hospitalisation on 4 April 2005. Therefore, the onus should have been
on the doctors to invoke the necessary legal provisions to override
the applicant's wish to leave the hospital. In such circumstances,
the Court considers that the applicant's complaints cannot be
declared inadmissible for non-exhaustion of domestic remedies.
- Since
the applicant's complaints raise questions of fact and law which are
sufficiently serious for their determination to depend on an
examination of the merits and since no other grounds for declaring
them inadmissible have been established, the Court declares the
application admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
application.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant maintained, inter alia, that his detention had not
fallen within the scope of any of the exceptions to the rule of
personal liberty listed in sub-paragraphs (a) to (f) of Article 5 of
the Convention. Nor did his detention have an adequate legal basis in
Moldovan law, given the circumstances in which he had been detained.
- The
Government argued that the applicant's detention fell to be examined
under Article 5 § 1 (e) of the Convention, namely as a “lawful
detention of ... persons of unsound mind”. According to them,
his hospitalisation was lawful as it had been recommended by a
commission of doctors (see paragraph 12 above) and ordered by a
court. Moreover, the applicant had agreed to be hospitalised and he
did not immediately complain about the doctors' refusal to release
him.
- It
is undisputed between the parties that the applicant agreed initially
to be hospitalised in the Central Psychiatric Hospital. It is also
common ground that after hospitalisation he was not free to leave the
hospital and, as noted above, had expressed the wish to return home.
- In
so far as the Government can be considered as claiming that, by
agreeing to be hospitalised, the applicant waived his right to
liberty, the Court reiterates that the fact that a person initially
agreed to enter an institution does not prevent him or her from
relying on Article 5 if he or she subsequently wishes to leave (see
De Wilde, Ooms and Versyp v. Belgium,
judgment of 18 June 1971, Series A no. 12, § 65).
Accordingly, the Court considers that the applicant's continued
detention from the moment he expressed his wish to leave the hospital
amounted to a “deprivation of liberty” within the meaning
of Article 5 § 1 of the Convention.
- The
Court notes that Article 5 § 1 of the Convention contains an
exhaustive list of permissible grounds of deprivation of liberty set
out in sub-paragraphs (a) to (f). Consequently, no deprivation of
liberty will be lawful unless it falls within one of the grounds set
out in those sub-paragraphs (see Witold Litwa v. Poland,
no. 26629/95, § 49, ECHR 2000 III).
- The
Government have not invoked any ground other than sub-paragraph (e)
to justify the applicant's detention. It is in fact common ground
that the deprivation of liberty in issue was not covered by
sub-paragraphs (a), (b), (c), (d) or (f) of Article 5 § 1 of the
Convention. The Court sees no reason to hold otherwise. It must
accordingly ascertain whether or not the applicant's detention was
justified under sub-paragraph (e) of Article 5 § 1 of the
Convention.
- The Court recalls that in Guzzardi v. Italy
(judgment of 6 November 1980, Series A no. 39, § 98),
it explained the reason for the existence of the exception to the
right to liberty set out in sub-paragraph (e) as being to make
provision for the detention of vulnerable groups for their own
protection and/or for the protection of others.
- “Persons
of unsound mind” is the vulnerable group on which the
Government have relied in the present case. The Court reiterates that
an individual cannot be considered to be “of unsound mind”
for the purposes of Article 5 § 1 and deprived of his liberty
unless the following three minimum conditions are satisfied: he must
be reliably 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 Luberti v. Italy, judgment of 23 February
1984, Series A no. 75, § 27).
- It
appears from the facts of this case that none of the above conditions
was met in the applicant's case. The court order of 14 March 2004 was
aimed exclusively at establishing the applicant's fitness to plead in
civil proceedings he had filed against the State, and not to protect
him or others. Accordingly, his forced detention from the moment in
which he made it known that he wanted to leave the hospital was
contrary to the very essence of the exception provided for in
sub-paragraph (e) of Article 5 § 1 (see paragraph 38 above).
Moreover, even leaving aside this key aspect, it is noted that none
of the three conditions set out in the preceding paragraph appears to
have been met.
- In
the light of the above, the Court considers that the applicant's
detention as from the moment he expressed his wish to leave the
hospital, did not fall within the ground set out in sub-paragraph (e)
of Article 5 § 1 and thus was unlawful and arbitrary.
Accordingly, there was a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant further complained under Articles 5 § 4 of the
Convention that he had not have an effective remedy to challenge his
detention.
- Having
regard to its above finding under Article 5 § 1 and to its
finding in respect of the non-exhaustion issue (see paragraph 30
above), the Court considers that it is not necessary to examine
separately whether, in this case, there has also been a violation of
Article 5 § 4 of the Convention (see Gajcsi v. Hungary,
no. 34503/03, § 24, 3 October 2006).
IV. 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 8,000 euros (EUR) in respect of non-pecuniary
damage suffered as a result of the breach of his Convention rights.
He argued that he had experienced anxiety, frustration and a feeling
of injustice. His suffering was considerably intensified in view of
his previous experience with the Soviet justice system, which had
confined him to a psychiatric institution as punishment for his
political views and declarations.
- The
Government contested the amount claimed by the applicant and argued
that there was no proof that he had suffered any damage. They asked
the Court to dismiss the applicant's claim.
- Having
regard to the violation found above and its gravity, especially in
view of the particularly vulnerable position of the applicant, the
Court considers that an award of compensation for non-pecuniary
damage is justified in this case. Making its assessment on an
equitable basis, the Court awards the applicant's sister, being his
legal successor, EUR 4,000.
B. Costs and expenses
- The
applicant made no claim 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 application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 5 § 4 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant's sister, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 4,000 (four thousand euros) in respect of non-pecuniary damage to
be converted into the currency of the respondent State at the rate
applicable on the date of settlement, plus any tax that may be
chargeable;
(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 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
