European Court of Human Rights Case of Atudorei
v. Romania
On 30 July 2003 the applicant,
who was of full legal age, was hospitalised in the Socola Psychiatric Hospital.
According to her, she was taken to the said hospital by her parents against her
will after they had discovered that she was attending yoga classes.
THIRD SECTION
(Application no. 50131/08)
JUDGMENT
STRASBOURG
16 September 2014
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 Atudorei v. Romania,
The European Court of Human Rights (Third Section), sitting
as a Chamber composed of:
Josep
Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having deliberated in private on 26 August 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an
application (no. 50131/08) against Romania lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Romanian national, Ms Dana Ruxanda Atudorei
(“the applicant”), on 10 October 2008.
2. The applicant was
represented by Ms A. Solomon, a lawyer practising in Bucharest. The Romanian Government (“the
Government”) were successively represented by their Agent, Mr Rǎzvan-Horațiu Radu, and their Co-Agent, Ms I. Cambrea,
of the Ministry of Foreign Affairs.
3. The applicant alleged, in
particular, a violation of her rights guaranteed by Articles 3, 5, 8, 9, 12 and
14 of the Convention, taken alone or in conjunction.
4. On 15 June 2010 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Ms Dana
Ruxanda Atudorei, is a Romanian national who was born in 1984 and lives in Bucharest.
A. The background of the case
6. In her initial letter to
the Court, the applicant stated that from an early age she had been subjected
to repeated physical and psychological abuse by her family. Her parents,
especially her mother, had been aggressive towards her both verbally and
physically, had refused to allow her to go anywhere unsupervised and had taken
her to a psychologist because she had not achieved the highest possible marks
when she was in second grade. In addition, her parents’ abuse had continued
after they discovered that she had been attending weekly yoga classes organised
by the Movement for Spiritual Integration into the Absolute (Mişcarea pentru Integrare Spirituală în
Absolut – “MISA”).
7. According to some reports,
including an Amnesty International report of 27 May 1997 (AI Index EUR
39/03/97), from 1995 there had been several accounts of alleged police abuse of
individuals who practised yoga and who were members of MISA. The reports noted
that the authorities seemed to condone public intolerance of MISA as they
perceived the leader of the organisation as an individual who urged his
sympathisers to leave their way of life in order to pursue a communal life and
to practice sexual perversion.
8. In March 2004 a
large-scale negative press campaign and police operation targeted MISA. The
leader and some members of the organisation faced criminal investigation for
the alleged sexual corruption of minors. MISA’s leader left the country for Sweden. In 2005
the Swedish authorities refused an extradition request by the Romanian
authorities.
B. The applicant’s first placement in a
psychiatric institution
9. On 30 July 2003 the
applicant, who was of full legal age, was hospitalised in the Socola Psychiatric Hospital.
According to her, she was taken to the said hospital by her parents against her
will after they had discovered that she was attending yoga classes.
10. The medical reports
produced by the said hospital stated that it was the first time the patient had
been admitted to the Socola Hospital, and that she had been admitted at her
mother’s request because of anxious and negative behaviour, irritability, a
tendency to cry easily and depression, which were a reaction to psychological
trauma, in particular a conflict with her parents. She was diagnosed with
reactive depression and anxiety. The applicant’s condition had improved after
group psychotherapy. She had been recommended medical treatment, psychotherapy
and been advised to avoid psychotraumatic situations.
11. Her hospitalisation ended
on 8 August 2003.
C. The applicant’s alleged deprivation of
liberty and her subsequent placement in a psychiatric institution
12. On 19 January 2005 the
applicant travelled to her hometown, Bârlad, accompanied by M.A., her fiancé,
in order to obtain a copy of her birth certificate, which she needed inter alia for her marriage to M.A.
13. While she was in the
building housing the register office (Oficiul
de Stare Civilă), her family appeared and surrounded her.
14. According to the
applicant, her mother convinced her to go outside and talk to them before
applying for her birth certificate. Once outside the building, her family
became aggressive. After they pushed M.A. to the ground, they forced her into a
vehicle and drove her to her grandparents’ house. Once there, her family took
away her regular clothes and replaced them with old clothes and slippers. They
also took away her money and identity papers. In addition, she was kept indoors
continuously, supervised, threatened and psychologically pressured by them.
15. On 21 January 2005 Dr F.,
a general practitioner, referred the applicant to a psychiatric hospital with a
diagnosis of schizo-paranoid behavioural disorder (tulburare de comportament de tip schizoparanoidă). There is no
evidence in the file if Dr F. assessed the applicant prior to the drafting of
the referral note, or on how the diagnosis was established.
16. On 3 February 2005 the
applicant’s parents took her to the Nifon Unit of the Săpoca Psychiatric Hospital.
According to the hospital’s public webpage, it is located in a forest 25
kilometres from the town of Buzău
and can be reached only by private car or minibus.
17. On the same date, the
applicant’s mother signed an informed consent form provided by the hospital on
behalf of the applicant, acknowledging that she had read, understood and had
time to consider all the information in the leaflet entitled “Information on Clozapin
(Leponex) for patients and their families” (Informații
despre Clozapin pentru pacienți si familii), that all her questions
had been answered adequately and she had clarified any unknown words with the
doctor or a member of the medical team, and that she was willing to accept the
risks of the treatment.
18. The applicant’s mother
was admitted to the hospital together with the applicant and remained there for
the first five weeks of the latter’s hospitalisation.
19. According to a clinical
observation paper on the applicant produced by the Săpoca Psychiatric Hospital,
she had been hospitalised on the basis of Dr F.’s referral and diagnosis. The
diagnosis on the day of hospitalisation had been “evolving borderline
[disorder]” (borderline ȋn
evoluție).
That diagnosis remained unchanged during her hospitalisation and on the day of
her discharge. During her hospitalisation the applicant was given psychotropic
drug treatment which included Leponex. Her condition and progress were
regularly monitored. She repeatedly suffered from, inter alia, constipation, lack of insight, lack of communication
and drowsiness. She also presented a risk of orthostatic hypertension, which
was monitored. In addition, on 4 March 2005 she “mentioned discharge” (aminteşte despre externare).
20. On 11 March 2005 the
Vaslui Police Department informed M.A. that, inter alia, the applicant had been admitted to a specialised
medical clinic for treatment and that the doctors had prohibited any contact
with her during the full course of treatment.
21. On 16 March 2005 the
applicant signed a written statement to the effect that she refused to allow
the disclosure of the information in her observation paper.
22. The applicant was
discharged from hospital on 1 April 2005.
23. On 24 August 2005,
following an enquiry by Dr F., Dr I. agreed that the applicant was fit to enrol
at a university.
24. On 16 October 2010 the
management of the Săpoca
Psychiatric Hospital
informed the Government that according to Dr I. the applicant’s hospitalisation
had been voluntary. On account of the applicant’s clinical condition, the
informed consent form had been signed by the applicant’s mother on her behalf.
The applicant could have left the hospital at any time. The hospital was
located in the middle of a forest but had no fence or guards. The applicant had
had access to two mobile phones and two landline phones. She had not been
guarded at any time during her hospitalisation because the Nifon Unit of the Săpoca Psychiatric
Hospital was not designed for forced
hospitalisation and was used only for voluntary hospitalisations. The informed
consent form signed by the applicant’s mother had amounted to an agreement to
both hospitalisation and treatment because at that time, that is, on 3 February
2005, a standardised informed consent form had not been required. The hospital
had applied the full procedure for non-voluntary hospitalisation as per the
rules of enforcement contained in Law no. 487 of 11 July 2002 on mental health
and the protection of people with mental disorders (“Law no. 487/2002”) from
2006, when that legislation was enacted.
D. Criminal proceedings brought by the
applicant’s fiancé, M.A., in respect of the applicant’s deprivation of liberty
25. On 19 January 2005 M.A.
brought criminal proceedings against the applicant’s parents and brother, for
unlawful deprivation of liberty.
26. The preliminary criminal
investigation was assigned to police officer G.C.
27. On 20 January 2005 the
applicant’s father gave a statement to the police officer. He mentioned that
the applicant had refused to join them in returning home. Nonetheless,
disregarding her refusal, they had taken her to her grandparents’ house and
then had her hospitalised. They had taken those measures because they considered
that it was their duty to help their daughter in view of the negative reports
they had heard about MISA.
28. On 16 March 2005 police
officer G.C. recommended, on the basis of the available evidence, that the
Bârlad prosecutor’s office should not initiate criminal proceedings. The police
officer had established that in 2003 the applicant had left her parents’ home
and had started attending yoga classes organised by MISA. Subsequently, she had
abandoned her studies and ceased to communicate with her family except for a
few telephone conversations and a publicly televised argument. According to her
parents, they had a family history of mental illness affecting consent. In this
context, after discovering the applicant’s visit to her home town they had
tried to talk to her outside the register office, but M.A. opposed. After a
skirmish, the applicant’s mother had taken her to the family car in order to
continue the discussion. M.A. had attempted to stop the car and had
subsequently fallen to the ground. According to the staff members of the
register office the applicant’s parents had not acted against her will. From 19
January to 3 February 2005 the applicant had lived with her maternal
grandparents and had then been hospitalised in the Săpoca Psychiatric Hospital.
An attempt had been made to question the applicant while she was there, but
this had not been possible because she had been administered psychotropic
medication.
29. By a decision of 13 April
2005, the Bârlad prosecutor’s office, in particular prosecutor N.C., relying on
the facts established by police officer G.C., decided not to initiate criminal
proceedings against the applicant’s parents and brother on the ground that no
offence had been committed.
30. The applicant’s fiancé
challenged that decision before the hierarchically superior prosecutor. He
argued that the criminal investigation had been superficial because, inter alia, the authorities had failed
to take a statement from the applicant, establish the type of medical treatment
administered to her, and ascertain whether she had been taken away by her
parents against her will.
31. By a final decision of 23
May 2005, the Bârlad prosecutor’s office, in particular the head prosecutor
R.F., dismissed M.A.’s challenge as ill‑founded. It held that it had not been
possible to take a statement from the applicant because she had been in a
situation and state which prevented her from engaging in conversation as a
result of psychotropic medication she had been administered, which had a
negative psychopathological effect. Moreover, it would have been immoral to
find that the applicant’s parents had unlawfully deprived her of her freedom
given that she had been unable to express her own will because she was
constantly accompanied by MISA members and was not allowed to attend meetings
alone. M.A. was sixteen years older than the applicant and he had not been able
to prove that he was her fiancé. He had initially informed an employee at the
mayor’s office that he was the applicant’s boyfriend, and had stated that he
was her fiancé only after a telephone conversation with a third party, and only
in order to justify his own interests in respect of the applicant. It had been
natural for the applicant’s parents to attempt to bring their daughter back
home by any means necessary and to try to ensure her physical and emotional
recovery, given that they had seen the press campaign concerning what happened
to young women at the MISA premises. According to her parents, they had made
considerable efforts to recover the applicant physically, while psychologically
it had been clear that she was unable to express herself as long as MISA
members accompanied her everywhere, including to family meetings. As to the
medical treatment the applicant had been administered, the parties would have
to ask the doctor who had treated her. The applicant’s fiancé appealed against
that decision before the domestic courts.
32. By a judgment of 21
October 2005, the Bârlad District Court dismissed the applicant’s fiancé’s
appeal. It held that he had refused to substantiate his action before the
court. Moreover, there was no evidence in the file that the applicant’s parents
had unlawfully deprived her of her freedom.
33. There is no evidence in
the case-file that the applicant’s fiancé lodged any appeal on points of law (recurs) against that judgment.
E. The period after the applicant’s release from the
Nifon Psychiatric Unit
34. On 1 April 2005 the
applicant was released from hospital and taken by her parents to her
grandparents’ house. According to the applicant, during her stay there she was
kept under supervision and isolated from the outside world.
35. On 23 May 2005 the
applicant brought criminal proceedings against her parents, alleging, inter alia, that they had forcibly
detained her and that she had been unable to leave the house. She urged the
authorities to do everything necessary to help her leave, given that she was of
age and wanted to live her own life.
36. By a decision of 27
September 2005, the Bârlad prosecutor’s office, dismissed the applicant’s
complaint on the ground that her parents’ actions did not disclose any elements
of an offence. It noted that the applicant’s parents had been worried because
she was a MISA member, and that was why they had taken her to her grandmother’s
home and then to a psychiatric hospital. According to the applicant’s statement
following her questioning, she had not been forcibly detained by her parents
but they had helped to get her admitted to a psychiatric hospital. There is no
evidence in the file that the applicant challenged the above-mentioned decision
before the domestic courts.
37. According to the
applicant, on 10 October 2005, helped by friends and her fiancé, she managed to
leave her grandparents’ house. Afterwards she settled in Bucharest and on 5 November 2005 she married
M.A.
F. The disciplinary proceedings against Dr I.
38. On 3 August 2005 the
applicant brought disciplinary proceedings before the Buzău Disciplinary
Commission against Dr I. in respect of her forced placement in the Nifon Unit
of the Săpoca Psychiatric Hospital and the medical
treatment that she had received there.
39. On 13 December 2005 and 3
October 2007, Dr P., the applicant’s private psychiatrist, issued two medical
certificates stating that she was psychologically healthy. The certificates
noted that the applicant had been monitored by Dr P. since 15 October 2005 and
that during that time she had not received any treatment and had shown no signs
of a psychological condition.
40. On 1 March 2006 the Buzău
Disciplinary Commission dismissed the applicant’s complaint. The applicant
challenged the decision before the Higher Disciplinary Commission (Comisia superioară de disciplină a
Colegiului Medicilor din România).
41. On 20 April 2007 the
Higher Disciplinary Commission quashed the Buzău Disciplinary Commission’s
decision of 1 March 2006, finding that Dr I. had acted in breach of the rules
of good medical practice, and gave him a warning (avertisment). It held that according to the available evidence the
applicant and her parents had been in a state of conflict and she had been
opposed to her hospitalisation. Consequently, the doctor had been required to
examine the patient’s clinical situation and the circumstances she was facing.
Regardless of his decision, the doctor had to protect the patient. If he had
assessed the patient’s clinical condition as amounting to an imminent risk for
her or others, or if failure to hospitalise her would have aggravated her
condition, non-voluntary hospitalisation would have been required even if the
patient objected to her hospitalisation. However, there was no evidence that
the relevant procedure had been initiated.
42. At the same time, only
medical reasons could justify a decision to hospitalise. However, the
observation sheet produced by the hospital mentioned as one of the reasons for
hospitalisation – none of them of a psychotic intensity to suggest a psychotic
development in the borderline disorder – that the patient had joined
counter-cultural informal groups (agregă ȋn
grupuri informale disculturale). Moreover, the observation sheet did not
contain a full psychological assessment. Consequently, the treatment with Laponex
had not been justified.
43. Furthermore, the Buzău
Disciplinary Commission’s arguments that the hospitalisation had not been
forced because the patient could have left the hospital, and that Dr I. had a
professional duty to examine the patient and to prescribe adequate treatment,
could not be taken into consideration. The doctor’s conduct had to be in
accordance with the law, which stated that the treatment had to be discussed
with the patient and that the patient’s consent had to be sought prior to
treatment. The aforementioned conditions became less important only in the
circumstances of forced hospitalisation. However, it did not appear that a
forced hospitalisation procedure had been initiated in the applicant’s case.
44. Leponex treatment was to
be used exclusively in the advanced stages of schizophrenia or in cases of
severe borderline personality disorder involving frequent relapses and
self-harm, if no other medication proved to offer a satisfactory improvement in
the patient’s condition. The use of that medication in the applicant’s case
from the early stages of her treatment had been unusual. In some cases the
medication could cause agranulacytosis
(a low white blood cells count which favours fevers and infections).
Consequently, doctors who prescribed it were required to comply strictly with
the necessary safety measures. However, in the applicant’s case there was no
evidence that the required weekly blood tests had been carried out.
45. Furthermore, the
necessary tests for establishing whether she was suffering from a borderline
personality disorder had not been conducted at all.
G. Criminal proceedings brought by the applicant
against her family members, police officer G.C., and Dr I.
46. On 14 December 2005 the
applicant brought criminal proceedings for unlawful deprivation of liberty
between 19 January and 10 October 2005, serious bodily harm, and
cooperation with a view to committing an offence, against her family, police
officer G.C. and Dr I. She argued that the culprits had cooperated in
order to unlawfully deprive her of her liberty, to hospitalise her against her
will and to damage her health as a result of the medical treatment she received
in the hospital.
1. The criminal investigation carried out by
the Bacău
prosecutor’s office
47. On 1 June 2006 the Bacău prosecutor’s office
questioned the applicant. She stated, inter
alia, that on arrival at the hospital she had informed the nurse who had
told her that she was being hospitalised that she opposed the measure. She had
subsequently been taken to Dr I.’s office, where she had had a short
conversation with him and she had expressly informed him that she did not wish
to remain in the hospital. The doctor had informed her that her general
practitioner had referred her to the hospital, and he forced her to take
medication, which had made her drowsy and numb. Afterwards she had been taken
out of the doctor’s office and one of the nurses had asked her to sign a
document which she was unable to read owing to her situation. The nurse had not
informed her of the document’s content. Although she had signed the document
automatically, she had only later been told that she had signed her
hospitalisation papers.
48. The applicant further
stated that during her hospitalisation she had been constantly supervised by
her mother. In addition, she had received inappropriate medication and had
constantly felt ill. In particular, she had suffered nausea, headaches,
drowsiness, constipation, urinary incontinence, excess salivation, low
immunity, loss of motor control and loss of insight. She had also gained
fifteen kilos and had developed anaemia as a result of suffering haemorrhages.
49. She also stated that
during her hospitalisation she had informed police officer G.C. that she had
been hospitalised against her will, and because he had refused to act on that
information she had refused to grant him access to her medical file. In July
2005 the same police officer had visited her at her grandparents’ house to
question her after her fiancé had brought criminal proceedings against some of
her family members. On that occasion the police officer had dictated the
content of her statement and had omitted some of the facts presented by her.
50. On 21 June 2006, the
applicant informed the Bacău
prosecutor’s office that she had joined the criminal proceedings as a civil
party.
51. On 28 November 2006, the
Bacău prosecutor’s office decided not to initiate criminal proceedings against
G.C. on the ground that no offence had been committed, ordered that the
criminal investigation be continued in respect of the applicant’s family
members, and referred the case to the Moineşti prosecutor’s office. It noted
that police officer G.C. had visited the applicant at the hospital in order to
take a statement from her. While initially Dr I. had denied G.C. access to the
applicant because of her medical condition, in the following days he had agreed
to allow him to speak to her. The prosecutor’s office also noted that according
to G.C. the applicant had refused to provide a statement or to allow him to
copy her medical observation papers, and had not informed him that she had been
hospitalised against her will. Lastly, it noted that there was no evidence to
suggest that police officer G.C. had been informed that the applicant had been
deprived of her liberty when he questioned her at her grandparents’ home in
July 2005. The applicant challenged the decision before the hierarchically
superior prosecutor.
52. By a decision of 5
February 2007, the head prosecutor at the Bacău
prosecutor’s office allowed the applicant’s challenge, quashed the decision of
28 November 2006 and ordered that the investigation be reopened. The head
prosecutor considered that the applicant and the defence witnesses indicated by
her should be heard. In addition, the medical documents concerning the
applicant’s state of health, the reasons for her hospitalisation and her
medical recovery were to be attached to the investigation file.
53. On 8 May 2007, the Bacău prosecutor’s office
decided not to initiate criminal proceedings against police officer G.C., the
applicant’s family members or Dr I. on the ground that no offence had been
committed. It held that according to the medical report of 21 March 2005
produced by the Psychiatric Centre of the Nifon Unit, the applicant had been
suffering from a schizo-paranoid behavioural disorder which had required her
hospitalisation in a specialised medical facility for treatment and medical
supervision. Her family’s actions had been caused by the applicant joining
MISA, and they had only been attempting to provide her with the opportunity to
continue her treatment. The applicant challenged that decision before the
hierarchically superior prosecutor.
54. By a final decision of 13
June 2007, the head prosecutor of the Bacău
prosecutor’s office dismissed the applicant’s challenge and upheld the decision
of 8 May 2007. The applicant appealed against the decision before the domestic
courts. She argued that after the investigation of the case had been reopened
on 5 February 2007, the authorities had failed to gather any additional
evidence, in particular to hear witnesses, to determine the circumstances of
her confinement, and to examine the medical treatment she had received, which
had affected her health.
55. By a judgment of 16
November 2007, the Bacău County Court dismissed the applicant’s appeal and
upheld the decision of the prosecutor’s office. It held that no offence of
cooperating in order to commit an unlawful act could have been committed given
that it could not be concluded that the alleged perpetrators had met one
another other than by chance, or that they had made detailed plans to commit an
offence. In addition, the available evidence did not confirm the existence of
an offence of serious bodily harm. There were no medical reports supporting the
allegations of trauma, and the medical report of 21 March 2005 produced by the
Psychiatric Centre of the Nifon Unit had stated that the applicant was
suffering from a schizo‑paranoid behavioural disorder which required her
hospitalisation in a specialised medical facility for treatment and medical
supervision. Lastly, the available evidence did not confirm the existence of an
offence of unlawful deprivation of liberty either. On the basis of the witness
statements, it could not be concluded that on 19 January 2005 the applicant’s
family had acted against her will. The applicant had also failed to inform
officer G.C. that her family had deprived her of her liberty either at the
hospital or at her grandparents’ home. Consequently, given the absence of clear
and concrete evidence of guilt, the alleged perpetrators’ right to the
presumption of innocence could not be rebutted.
56. The court further
dismissed the applicant’s argument that after the re-opening of the criminal
investigation no further evidence had been added to the file, on the grounds
that she had been heard by the prosecutor’s office and that she had not
requested the hearing of witnesses or additional evidence. The applicant’s
argument that the authorities had failed to review the circumstances of her
confinement and the medical treatment she had received was also dismissed on
the ground that the medical documents attached to the file had stated her
diagnosis and the doctor’s recommendation of hospitalisation, treatment and
medical supervision.
57. The applicant lodged an
appeal on points of law (recurs)
against that judgment.
58. By a final judgment of 14
February 2008, the Bacău Court of Appeal dismissed the applicant’s appeal on
points of law on the ground that the available evidence did not clearly and
unequivocally prove the guilt of the alleged perpetrators. The judgment was
drafted on 20 February 2008 and appears to have been made available to the
applicant on 18 June 2008.
2. The criminal investigation carried out by
the Moineşti prosecutor’s office
59. On 27 February 2007,
following the referral of the Bacău prosecutor’s office of 28 November 2006
(see paragraph 51 above), the Moinești
prosecutor’s office decided not to institute criminal proceedings against the
applicant’s family members, Dr I., and police officer G.C., on the ground that
no offences had been committed. It noted, inter
alia, that the applicant had been committed to hospital with a diagnosis of
paranoid behavioural disorder. Moreover, her condition required continuous
outpatient medical care for an undetermined period of time. The applicant
challenged the decision before the hierarchically superior prosecutor.
60. On 7 June 2007 the head
prosecutor of the Moinești prosecutor’s
office declined to examine the applicant’s challenge on the ground that the
prosecutor who had delivered the decision of 27 February 2007 was his wife, and
he referred the case to the Bacău
prosecutor’s office.
61. By a final decision of
15 June 2007, the Bacău
prosecutor’s office dismissed the applicant’s challenge on the ground that it
had already examined the issues raised by it in its decision of 8 May 2007. The
applicant appealed against the decision before the domestic courts. She argued
that the authorities investigating her case had failed to gather all available
evidence, or hear all parties to the proceedings, and that the decision of the Bacău prosecutor’s office
had concerned a different person and different offences.
62. By a judgment of 22
November 2007, the Moineşti District Court allowed the applicant’s appeal,
quashed the decision, ordered the Moineşti prosecutor’s office to continue its
investigation of the case, to gather the evidence requested by the parties and
to question the parties, the staff members of the hospital, and the neighbours
of the grandmother in whose house the applicant had been held. It held that the
previous decisions by the prosecutor’s offices had addressed the applicant’s
complaints in respect of only some of the parties concerned. In addition, the
medical report of 21 March 2005 had been contradicted by the conclusions
of the Higher Disciplinary Commission’s decision. Further, according to the
applicant’s psychiatrist, from 15 October 2005 the applicant had not received
any treatment and had not shown any symptoms of illness.
63. The Moineşti prosecutor’s
office and the defendants appealed on points of law. The prosecutor’s office
argued that the statements that had been taken by the Bacău prosecutor’s office were relevant on
account of the hierarchical relationship between the two prosecutors’ offices,
and therefore the re-questioning of the applicant and of the perpetrators had
no longer been required. In addition, the applicant had failed to identify the
witnesses she wished to have questioned. The questioning of all medical staff
had no legal basis and the court had not identified which of the neighbours of
the applicant’s grandmother should have been questioned, or the scope of such
questioning. Moreover, the applicant had failed to prove that any offences had
actually been committed, had not submitted any medical report attesting to a
bodily injury, and had herself acknowledged that she had signed the
hospitalisation papers automatically, and that during her stay at her
grandparents’ home she had had access to a visiting room (vorbitor) and thus had been able to communicate with others.
Furthermore, according to the Higher Disciplinary Commission the
hospitalisation of a patient was possible against his or her will. The same
body had concluded that the applicant’s hospitalisation had been voluntary.
Lastly, the psychiatrist had been disciplined on account of the inappropriate
treatment administered to the applicant and not because the applicant had not
been suffering from a behavioural disorder. The defendants argued that the
circumstances of the case had already been examined during the sets of
proceedings which had ended with the final decision of 23 May 2005 and the
final judgment of 14 February 2008.
64. By a final judgment of 11 April
2008, the Bacău County Court declared the Prosecutor Office’s appeal on points
of law inadmissible on procedural grounds, allowed the defendants’ appeal on
points of law, quashed the judgment of the lower court, and dismissed the
applicant’s appeal against the decision of 15 June 2007. It held that the
circumstances of the case had already been examined during the sets of
proceedings which had ended with the final decision of 23 May 2005 and the
final judgment of 14 February 2008, and that the applicant had not adduced any
new information or evidence in order to justify the opening of criminal
proceedings in respect of the same acts and persons.
H. Criminal proceedings brought by the
applicant against prosecutors R.F. and N.C.
65. On
30 January 2006 the applicant brought criminal proceedings for abuse of office
and aiding and abetting an offender against prosecutors R.F. and N.C. The
applicant complained about the quality of the prosecutors’ investigations.
66. On 14 May 2008 the
prosecutor’s office attached to the Court of Cassation decided, on the basis of
the available evidence, not to initiate criminal proceedings against the two prosecutors
on the ground that no offence had been committed. It held that although
insufficiently reasoned, the examination of the merits of the case by the
Bârlad prosecutor’s office had been accurate. In addition, it noted that those
events which had taken place after 19 January 2005 had not been known at
the time and therefore had not been investigated. Consequently, it referred the
case to the Bârlad prosecutor’s office in order for it to investigate the
applicant’s parents for the alleged deprivation of the applicant’s liberty in
the period between 19 January and 10 October 2005. The applicant
challenged the decision before the hierarchically superior prosecutor.
67. By a final decision of 25
June 2008, the head prosecutor of the prosecutor’s office attached to the Court
of Cassation dismissed the applicant’s challenge as ill-founded. The applicant
appealed against that decision before the domestic courts.
68. By a decision of 11
November 2008, the Bârlad prosecutor’s office dismissed the applicant’s action
concerning the alleged deprivation of her liberty by her parents in the period
between 19 January and 10 October 2005. It held that the applicant’s
complaint had already been dismissed in the final judgments of 14 February and
11 April 2008 in accordance with the relevant rules of criminal procedure, and
in the absence of any new relevant information the criminal proceedings could
not be reopened or reinitiated. There is no evidence in the file that the applicant
appealed against that decision before the domestic courts.
69. By a judgment of
21 January 2009, the Court of Cassation dismissed the applicant’s appeal
against the decision of 25 June 2008 as ill-founded. It held that there was no
evidence suggesting that the prosecutors had committed an offence, or that the
decisions taken by them had been unlawful. The applicant appealed on points of
law against that judgment.
70. By a final judgment of 6
July 2009, the Court of Cassation dismissed the appeal as time-barred.
I. Other relevant information
71. The applicant submitted
to the Court a large number of press articles, photographs and transcripts of
television talk-shows concerning the conduct of the leader of MISA, the
criminal investigation against him, the applicant’s conflict with her parents,
and the measures and efforts undertaken by her parents to reconnect with her.
72. By a decision of 13 April
2006 the Romanian Council for Combating Discrimination dismissed the applicant’s
complaint that the actions of her parents and Dr I. had amounted to
discrimination on the basis of her beliefs. It held that the facts of the
applicant’s case did not indicate discrimination. There is no evidence in the
file that the applicant challenged that decision before the domestic courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Law no. 487/2002 on mental health and the
protection of people with mental disorders
73. Psychiatric
detention is governed by the provisions of Law no. 487/2002,
published in Official Gazette no. 589 of 8 August 2002 and amended by Law no.
600/2004, published in Official Gazette no. 1228 of 21 December 2004
(“Law no. 487/2002”). Law no. 487/2002 makes a distinction between voluntary
and compulsory admission to a psychiatric institution.
74. Articles 12 and 13 of Law
no. 487/2002 provide that the assessment of a person’s mental health with a
view to making a diagnosis or determining whether the person is of sound mind
requires a direct assessment by a psychiatrist at the request of the person
concerned in the case of voluntary admission, or at the request of an
appropriate authority or authorised person in the case of compulsory admission.
For his assessment the psychiatrist must rely only on clinical reasons. Past
hospitalisations or treatment cannot justify a present or future diagnosis of
psychiatric illness (Article 14). The person who has been assessed, or his or
her legal representatives, has the right to challenge the results of the
assessment and to request a re-assessment (Article 16).
75. Pursuant to Article 29 of Law no. 487/2002, the psychiatrist
is required to obtain the person’s consent for the treatment and to respect the
person’s right to receive assistance in giving his or her consent (dreptul acestuia de a fi asistat în
acordarea consimţământului). The psychiatrist may provide treatment without
the patient’s consent if the patient’s behaviour amounts to an imminent risk of
harm for him or herself or for others, or if the patient does not have the
psychological capacity to understand their mental state and the need for
initiating treatment. In the aforementioned cases, if the psychiatrist cannot
obtain the consent of the legal or personal representative, he may act on his
own; however, such action must be reviewed by a procedural review commission.
Consent may be withdrawn at any time by the patient or his or her
representative (Article 30). Where the psychiatrist suspects that there is
a conflict of interests between the patient and his or her personal representative,
he must refer the matter to the public prosecutor’s office in order for a
procedure for the appointment of a legal representative to be initiated
(Article 31). Any patient or former patient has the right to lodge
complaints (Article 34).
76. Anyone
who is admitted to a psychiatric institution must be informed of his or her
rights as soon as possible and must be given explanations he or she can
understand as to how such rights may be exercised. If the person is unable to
understand the information, it must be provided to his or her legal or personal
representative. A person who retains psychological capacity may assign his or
her own representative (Article 38). Hospitalisation is permitted only on
the basis of medical considerations (Article 40).
77. Any patient admitted to
hospital voluntarily is entitled to leave the psychiatric institution at his or
her own request at any time, except in circumstances where the requirements for
involuntary hospitalisation are met (Article 43). Involuntary hospitalisation
may only occur in the event of failure of all attempts at voluntary confinement
(Article 44). It is authorised only if the psychiatrist decides that the person
is suffering from a psychiatric problem and considers that he or she represents
a threat to him or herself or to others, or if he or she risks having his or
her health seriously damaged by refusing treatment (Article 45). A request for involuntary
confinement may be lodged by the family or the general practitioner of the
person concerned, by the representatives of the local public administration, or
by the police, the prosecutor’s office or fire-fighters. The persons requesting
the involuntary confinement must attest under signature the reasons supporting
their request, adding their own identity data, a description of the
circumstances that have led to the request for involuntary confinement, as well
as and the identity data of the person concerned, as well as their known
medical history (Article 47). The transportation of the person concerned to the
psychiatric hospital generally takes place by ambulance. If the behaviour of
the person represents a danger for him or herself or for others, the transfer
is performed with the support of the police, the gendarmerie or fire‑fighters,
observing the physical integrity and dignity of the person concerned (Article
48). The psychiatrist, after an evaluation of the mental state of the person
concerned and of the appropriateness of non-voluntary hospitalisation, must
immediately inform the patient, or his or her personal or legal representative,
of his decision to administer psychiatric treatment (Article 49). If the
psychiatrist considers that there are no grounds for non‑voluntary
hospitalisation, he must not detain the person and must state the reasons for
his decision in his or her medical record (Article 51).
78. Pursuant to Article 52,
the psychiatrist must notify his decision on non-voluntary confinement to a
medical commission appointed by the hospital’s director consisting of two
psychiatrists, other than the one who decided on the hospitalisation, and a
physician of a different speciality or a member of civil society. The
commission must uphold or overrule the forced hospitalisation decision within
seventy-two hours. The decision must also be notified to the prosecutor’s
office within a maximum of twenty-four hours for review (Article 53). The
interested person or his or her personal or legal representative may lodge a
complaint against the decision before the competent court of law, which makes a
decision after hearing the patient, if the situation allows, or after visiting
the psychiatric hospital. The procedure outlined above concerning compulsory
hospitalisation is also applicable where a person who has initially consented
to admission withdraws his or her consent at a later stage (Article 55).
Failure of mental health professionals to comply with the rules concerning data
confidentiality and the principles and procedures regarding obtaining consent,
initiating and maintaining treatment, non-voluntary hospitalisation and the
rights of the committed patient renders them disciplinarily, contraventionally
or criminally liable (Article 60).
1. Decree of 10 April 2006 issued by the
Health Minister on the rules of enforcement for Law no. 487/2002
79. This decree entered into
force on 2 May 2006. Article 29 provides that an application for
compulsory admission must be made upon the patient’s arrival at the hospital by
one of the individuals or authorities mentioned in article 47 of Law no.
487/2002. The application must be made in writing and signed by the person
submitting it, who must indicate the reasons justifying it.
80. Article 28 states
that if the psychiatrist considers that the conditions for compulsory
hospitalisation are satisfied, he or she is required to inform the person
concerned of his or her right to challenge the decision, explaining the
procedure for doing so.
81. Article 33 requires
psychiatric institutions to keep a dedicated register containing information
about persons who have been admitted against their will, including all
decisions taken in relation to them.
2. Amendments to Law no. 487/2002
82. Law
no. 487/2002 was amended by Law no. 129/2012, published in Official Gazette no. 487
of 17 July 2012.
83. A
new Article 381 was added to Law
no. 129/2012, providing that anyone with full legal capacity who
retains full psychological capacity and is admitted for psychiatric treatment
is entitled to appoint a conventional representative free of charge to assist
or represent him or her throughout the duration of the treatment. The
psychiatric institution must inform the patient of that right and provide him
with a standardised form for assigning such representative.
84. If the patient does not
have a legal representative and has been unable to appoint a conventional
representative because he lacks psychological capacity, the hospital must
immediately notify the guardianship authority at the patient’s place of
residence or, if the patient’s place of residence is unknown, the guardianship
authority of the municipality in which the hospital is located, so that
measures can be taken for the patient’s legal protection.
3. Reports by non-governmental organisations
on the application of Law no. 487/2002
85. A report on the
observance of the rights of persons detained in psychiatric institutions,
issued in October 2009 by a non-governmental organisation, the Centre for Legal
Resources (
Centrul de Resurse Juridice),
noted that the authorities had still not designated the hospitals that were
authorised to admit patients compulsorily, which – coupled with the shaky
knowledge among medical personnel of the procedures outlined above – meant that
Law no. 487/2002 was difficult to apply properly and consistently (see
B. v. Romania (no. 2), no. 1285/03,
§ 58, 19 February 2013).
86. In reply to a memorandum
by Amnesty International issued on 4 May 2004, alleging that Romania was
in breach of international standards as regards admission to and conditions in
psychiatric institutions, the Romanian Government issued a press release on the
same date disputing the claim that Law no. 487/2002 could not be applied until
rules for its implementation had been adopted. According to the Government,
several sets of proceedings in which people had challenged orders for their
compulsory admission to a psychiatric institution were pending before the
domestic courts at that time.
87. The same memorandum
stated that during a visit in November 2003 to a closed male psychiatric ward
at Obregia Hospital in Bucharest, an Amnesty International representative had
been told that many people who were brought to the hospital initially refused to
be admitted but were then “persuaded” that it was in their best interests,
before signing a form consenting to treatment. Thus, twenty men being kept in a
locked ward were regarded as “voluntary” patients. Some of them had complained
that they would like to leave the hospital but had not been allowed to.
B. Other relevant legal provisions
88. The relevant parts of
Articles 278 and 278
1 of the former Romanian Code of Criminal
Procedure, concerning complaints against prosecutor’s office decisions, are set
out in the judgement
Dumitru Popescu v.
Romania (no. 1) (no. 49234/99, §§ 43-45, 26 April 2007).
89. Articles 998, 999, 1000(3) and 1003 of the former Romanian Civil Code
provide that any person who has suffered damage can seek redress by bringing a
civil action against the person who intentionally or negligently caused that
damage.
Those charged with the supervision and control
of a person whom they have appointed to perform a duty are responsible for the
damage caused by the appointed person in the position granted. If several
persons are responsible for the damage caused, they are jointly liable for
redress.
C. Domestic Practice
90. The
Government submitted two final judgments, delivered on 3 March and 9 June
2005 by the Cluj Court of Appeal and Neamț
County Court, respectively, awarding damages to victims of unintentional bodily
harm and unintentional murder within the framework of criminal proceedings with
civil claims opened by victims against medical staff and hospitals after it had
been held that the criminal guilt of the medical personnel was established. The
Government also provided one final judgment and two other judgments that do not
appear to be final, delivered between 16 February 2007 and 9 December 2009 by
the Cluj District and County Courts and the Bucharest Court of Appeal, awarding
damages to victims of medical negligence within the framework of general tort
law actions opened by the victims against medical staff and hospitals.
91. The
Government further submitted one final judgment delivered on 23 October 2008 by
the Târgu-Mureş Court of Appeal dismissing an applicant’s requests to have
previous diagnoses of mental health problems reviewed by way of a psychiatric
expert report in the absence of voluntary hospitalisation in a psychiatric
hospital.
92. The
Government also provided one final judgment delivered on 10 September 2008
by the Braşov Court of Appeal dismissing a request by medical staff for the
reversal of pecuniary sanctions applied to them by hospitals for physically
abusing psychiatric patients. The domestic courts relied in their reasoning, inter alia, on the provisions of Law no.
487/2002 establishing the rights of such patients and the duties of the medical
staff in such a situation.
93. On 28, 29 and 30 September and 1 October
2010, the Giurgiu, Teleorman, Ialomița and Sălaj County
Courts, respectively, informed the Government that although they were unable to
provide any relevant case‑law, in their opinion the applicant could have opened
general tort law proceedings against the doctor and the hospital on the basis
of Articles 998 to 1003 of the former Romanian Civil Code, and could have
complained against a non-voluntary hospitalisation decision on the basis of
Article 54 of Law no. 487/2002. The Giurgiu County Court also stated that a
prosecutor’s decision to dismiss criminal proceedings opened by an applicant
did not always prevent the victim from opening a general tort law action for
damages against the doctor concerned. If the doctor had been punished by the
Higher Disciplinary Comission, that represented sufficient grounds for the said
action.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 5, 8, 9, 12
AND 14 OF THE CONVENTION
A. Admissibility
1. Non-exhaustion of domestic remedies
(a) The parties’ submissions
94. The Government argued,
without referring to a particular Article of the Convention, that the applicant
had failed to exhaust the available domestic remedies. In particular, Law no.
487/2002 had afforded the applicant the necessary legal means to challenge her
confinement to the psychiatric hospital. She could have contested the outcome
of her evaluation, requested a medical re-examination and lodged complaints in
accordance with the law. In so far as she had considered her confinement to be
non-voluntary she could have brought proceedings before the domestic courts
under Article 54 of Law no. 487/2002. Relying on the legal opinions given by
the domestic courts, the Government also contended that although the procedure
provided for by Law no. 487/2002 was accessible, clear and amounted to an
effective remedy, the applicant had failed to use any of the legal means
available to her under the said law.
95. Moreover, the Government
contended that the applicant had not challenged all the prosecutors’ offices’
decisions on the basis of Articles 278 and 2781 of the former Romanian
Code of Criminal Procedure. In particular, she had not appealed against the
judgment of 21 October 2005 and had failed to challenge the decisions of 27
September 2005 and 11 November 2008. The fact that she had lodged several
complaints with prosecutors’ offices and had challenged some of their decisions
did not exempt her from challenging all the decisions. Pending a favourable
decision it was not permissible to lodge further complaints in respect of the
same facts.
96. The Government also
submitted that the applicant could have lodged a general tort action against
the doctor and the hospital on the basis of Articles 998-999 of the former
Romanian Civil Code. They argued that, according to the available domestic
case-law and the legal opinion of the domestic courts, that remedy could have
been used by the applicant successfully either within the criminal proceedings
or in separate proceedings. The failure of the applicant to employ the remedy
in question had prevented her from claiming damages directly before the Court.
97. The applicant submitted
that she had been able to exhaust adequate and effective remedies only after 10
October 2005, when she had been released from hospital and had escaped from her
family. In this connection, she contended that she had lodged several criminal
complaints against her family members, the psychiatrist Dr. I., and police
officer G.C. for unlawful deprivation of liberty, bodily harm and association
cooperation with a view to committing offences. In addition, she had joined the
criminal proceedings as a civil party. Consequently, she had provided the
authorities with the opportunity to examine her case and her claims. The
authorities could have assessed if her hospitalisation, diagnosis and treatment
had been carried out in accordance with the rules set out by Law no. 487/2002.
In addition, the said Law provided that a doctor’s criminal liability could be
engaged if he had breached the principles protected by it.
98. All her criminal
complaints had been dismissed. Consequently, a general tort law action on the
basis of Articles 998-999 of the former Romanian Civil Code could not be
considered an effective remedy. In the absence of a criminal prosecution and/or
conviction of those responsible for her deprivation of liberty, she would have
been unable to prove the link required for generating tort liability and,
therefore, the remedy of bringing a civil action would have been illusory and
theoretical.
(b) The Court’s assessment
99. The Court reiterates that
the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention
requires applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the Court for their acts
before they have had an opportunity to put matters right through their own
legal system. The burden of proof is on the Government claiming
non-exhaustion to satisfy the Court that an effective remedy was available
in theory and in practice at the relevant time, that is to say, that the remedy
was accessible, capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see
McFarlane
v. Ireland [GC], no. 31333/06,
§ 107 10 September 2010 and
T. v. the United
Kingdom [GC], no.
24724/
94, 16 December 1999, § 55). Article 35
must also be applied to reflect the practical realities of the
applicant’s position in order to ensure the effective protection of the rights
and freedoms guaranteed by the Convention (
Hilal v. the United Kingdom (dec.),
no. 45276/99, 8 February 2000).
100. The Court has
consistently held that mere doubts as to the prospects of success of
national remedies do not absolve an applicant from the obligation to exhaust
those remedies (see, inter alia, Pellegrini v. Italy (dec.),
no. 77363/01, 26 May 2005; MPP Golub v. Ukraine (dec.),
no. 6778/05, 18 October 2005; and Milosevic v. the Netherlands (dec.),
no. 77631/01, 19 March 2002).
101. However, the
Court further notes that an applicant
cannot be expected to continually make applications to the same body when
previous applications have failed (see N.A. v. the United Kingdom, no. 25904/07, § 91, 17 July 2008).
102. The Court notes at the outset that the
Government did not identify which of the applicant’s communicated complaints
their objection concerned. Although their arguments appear to refer primarily
to the applicant’s complaints under Article 5 of the Convention, the Court
considers that their objection concerns all the communicated complaints raised
by the applicant under Articles 5, 8, 9, 12 and 14.
103. The Court notes with regard to the
present case that in December 2005 the applicant brought criminal
proceedings together with civil claims against her family members, police
officer G.C., and Dr. I in respect of, inter
alia, unlawful deprivation of liberty and serious bodily harm. In her
complaint she maintained that she had been deprived of her liberty, had been
hospitalised against her will, and that she had been given inappropriate
medical treatment for her condition, which had caused her suffering and
humiliation. In addition, she challenged the prosecutor’s orders
dismissing her complaint before the domestic courts (see, a contrario, Parascineti
v. Romania, no. 32060/05, § 60, 13 March 2012). By a final
judgment delivered in February 2008, the domestic courts dismissed her appeals
against the prosecutor’s orders, relying on the merits of the case. In this
context, and in the absence of a res
judicata decision of the Bacău Court of Appeal, the Court cannot accept the
Government’s argument that the applicant had a duty to challenge all the
prosecutor’s orders and court decisions delivered in the other sets of
proceedings before the domestic authorities in order to be able to claim before
the Court that she had exhausted all available domestic remedies.
104. Consequently, the Court
considers that, notwithstanding the decision of the Higher Disciplinary
Commission, the applicant did give the domestic authorities a sufficient and
adequate opportunity to examine and remedy appropriately her allegations
concerning unlawful deprivation of liberty, forced hospitalisation and
consequences of inappropriate medical treatment (see Cristian Teodorescu v. Romania, no. 22883/05, § 46,
19 June 2012). In addition, in spite of the applicant’s clear
accusations, the domestic authorities failed to examine whether the actions of
the alleged perpetrators had complied with the requirements of Law no.
487/2002. Moreover, there is no evidence in the file that a decision on forced
hospitalisation was communicated to the applicant during her hospitalisation,
or at a later date, in order for her to be able to contest it before a court
under Article 54 of Law no. 487/2002.
105. Furthermore, the court
notes that by the time the applicant’s criminal proceedings with civil claims
of December 2005 ended in February 2008, the prosecutor’s office was, or
should have been, aware of the decision of the Higher Disciplinary Commission
of April 2007 holding Dr I. responsible for breaching the rules of good medical
practice.
106. In this context, it
appears to be common ground that the criminal proceedings with civil claims
could in principle, if pursued successfully, have led to the extent of the
alleged perpetrators’ liability being established and eventually to the award
of appropriate redress and/or publication of the decision (see Jasinskis v. Latvia, no. 45744/08, § 52,
21 December 2010). The Government have failed to
demonstrate that the remedy offered by civil proceedings would have
enabled the applicant to pursue objectives that were any different from the
ones pursued through the use of the aforementioned remedy (see Jasinskis, cited above, § 53).
107. The Court therefore
considers that in the circumstances of the present case there was no reason for
the applicant to institute further sets of
proceedings in addition to the criminal complaint with civil claims she
had already instituted.
108. Accordingly, the
applicant has exhausted domestic remedies and the Government’s objection must
be dismissed.
2. Six months
(a) The parties’ submissions
109. The Government
submitted, without referring to a particular Article of the Convention, that
the applicant had not complied with the six-month time-limit in so far as the
criminal proceedings were concerned. They noted that the criminal proceedings
opened by the applicant’s fiancé against her parents had ended with the judgment
of 21 October 2005 of the Bârlad District Court and that the criminal
proceedings opened on 23 May 2005 by the applicant against her parents had
ended on 27 September 2005 with the decision of the Bârlad prosecutor’s office.
Consequently, the six-month time-limit had been exceeded because in the absence
of new elements relevant to the case the applicant could not use the same legal
means in respect of the same alleged offences in circumstances where the facts
and the decisions delivered by the authorities were similar and there were new
elements relevant for the case.
110. The applicant disagreed.
(b) The Court’s assessment
111. The Court notes at the
outset that the Government did not identify the exact parts of the applicant’s
communicated complaints that their objection concerned. Consequently, it
considers that their objection concerns all the communicated complaints raised
by the applicant under Articles 5, 8, 9, 12 and 14.
112. The Court notes that it
has already established that, notwithstanding the other sets of proceedings
opened by the applicant, the criminal proceedings with civil claims of December
2005 which ended with the final judgement of 14 February 2008 amounted to an
effective remedy for the purpose of the applicant’s application before the
Court. The Court also notes that the Government have not contested that
according to the available evidence the aforementioned judgment was made
available to the applicant only in June 2008.
113. In these circumstances,
notwithstanding the Government’s arguments, the Court considers that the
applicant lodged her application within the six-month time-limit and that
therefore the Government’s objection has to be dismissed.
114. Lastly, the Court notes
that the complaints under Articles 5, 8, 9, 12 and 14 communicated to the
Government do not appear to be manifestly ill‑founded within the meaning of
Article 35 § 3 (a) of the Convention and they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Alleged violation of Article 5 § 1 of the
Convention
115. The applicant complained
that her forced hospitalisation in the Nifon Unit of the Săpoca Psychiatric
Hospital between 3 February and 1 April 2005 had amounted to a deprivation
of her liberty contrary to Article 5 § 1 of the Convention, the relevant
parts of which read 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
...”
(a) The parties’ submissions
116. The applicant submitted
that according to the available evidence, including the decision of the Higher
Disciplinary Commission and the medical certificate issued by Dr. P., she had
not been suffering from a mental problem attested by an objective medical
expert report. In addition, the reasons for her hospitalisation had not been of
a nature or seriousness warranting hospitalisation. Moreover, she had been
involuntarily hospitalised in the absence of any procedural safeguards in the
domestic legislation.
117. The applicant contended
that the Government had submitted to the Court two copies of the clinical
observation paper produced by the Săpoca
Psychiatric Hospital
concerning the applicant. One of the copies had been attached to the applicant’s
file examined by the Higher Disciplinary Commission and the other copy had been
issued directly by the psychiatric hospital. Although both copies had been
signed by the same psychiatrist and had been stamped as certified true copies
of the applicant’s medical records, they appeared to be fundamentally
different. In particular, they had obviously been written by a different person
and in some places the information recorded was different. Consequently, they
raised serious doubts concerning the lawfulness of the psychiatrist’s conduct.
118. The applicant further
submitted that the Government’s arguments in support of their observation were
plagued by contradictions and ignored the available objective evidence
concerning her forced hospitalisation and the treatment administered to her by
the psychiatrist. In addition, contrary to their allegations that she had not
consented to her stay in the hospital, it appeared that both copies of the
applicant’s clinical observation papers made available to the Court stated that
on 4 March 2005 she had in fact “mentioned discharge”.
119. The applicant argued
that her mother had been hospitalised with her in order to monitor her and there
was no evidence that she had acted as her legal representative or attendant. In
addition, the argument that Dr I. had not been aware of the applicant’s
conflict with her parents had no credibility given that her case had been
publicly exposed before her hospitalisation occurred.
120. The Government
considered that the applicant’s confinement to the psychiatric hospital had
been in compliance with the requirements of Article 5 § 1 (e) of the
Convention. In view of her medical history and her previous hospitalisations,
the applicant had been reliably shown to be suffering from a mental disorder.
In addition, her hospitalisation in the Nifon Unit had been carried out on the
basis of a general practitioner’s diagnosis. Moreover, her medical condition,
her risk of orthostatic hypotension and her treatment had been monitored during
her hospitalisation. The medical certificates of 13 December 2005 and
3 October 2007 relied on by the applicant could not be considered proof of
her mental health at the time she was hospitalised.
121. The Government contended
that Dr I. had confirmed that the applicant had been suffering from a mental
illness and that her condition had persisted during her hospitalisation and at
the time of her discharge. While the Higher Disciplinary Commission had
considered the medical treatment administered to her to be inappropriate, it
had not concluded that she had not been mentally ill at the time of her
hospitalisation. Moreover, the applicant had failed to ask for a re-evaluation
of her condition and therefore the Higher Disciplinary Commission had not been
able to assess her mental condition and overrule her diagnosis. Although they
did not contest the decision of the Higher Disciplinary Commission, the
Government underlined that in the copy of the applicant’s clinical observation
paper issued directly by the psychiatric hospital the statement that she had
joined counter-cultural informal groups was not given as a ground for her
hospitalisation.
122. The Government argued
that Dr I. had lawfully sought the applicant’s mother’s consent for the
treatment as according to the applicant’s clinical observation paper drawn up by
the hospital, she had no insight, that is, she did not have the ability to
recognise her own mental illness and need for treatment.
123. The Government
underlined that the psychiatrist could not have been aware of the pre-existing
conflict between the applicant and her parents. Moreover, there was no evidence
in the file attesting that the applicant had attempted to inform police officer
G.C. that she had been forcibly hospitalised. Furthermore, she had refused the
police officer access to her medical file.
124. The Government also
argued that according to the available evidence, including the conclusions of
the Higher Disciplinary Commission, the applicant’s hospitalisation had been
lawful and voluntary. The fact that afterwards the applicant had contested the
circumstances of her hospitalisation was not relevant since she had not proved
that her consent to hospitalisation had been unlawfully obtained or that she
had been deprived of her liberty against her will.
125. The Government
underlined that the applicant had not been held in isolation and she could have
asked to be discharged at any time. Dr I. had not taken any coercive action
against her and she had had access to postal and phone services. Her mother’s
hospitalisation with her from 3 February to 10 March 2005 had also been
justified by the general practitioner’s diagnosis and that applicant’s medical
condition.
(b) The Courts’ assessment
(i) Whether the applicant was deprived of her
liberty
126. The Court notes at the
outset that the parties disagreed as to whether the applicant’s hospitalisation
in the Nifon Unit of the Săpoca
Psychiatric Hospital had
been voluntary or not and whether her ability to leave the hospital had been
restricted. Consequently, the Court must examine whether the applicant’s
situation constituted a “deprivation of liberty” for the purposes of Article 5
of the Convention.
127. The Court reiterates that
in order to determine whether there has been a deprivation of liberty, the
starting point must be the concrete situation of the individual concerned.
Account must be taken of a whole range of factors arising in a particular case,
such as the type, duration, effects and manner of implementation of the measure
in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A
no. 39, and Ashingdane v. the United Kingdom, 28 May 1985, § 41,
Series A no. 93).
128. The Court further reiterates
that the notion of deprivation of liberty within the meaning of Article 5 § 1
does not only cover the objective element of a person’s confinement in a
particular restricted space for a significant length of time. A person can only
be considered to have been deprived of his liberty if, as an additional
subjective element, he has not validly consented to the confinement in question
(see, mutatis mutandis, H.M. v. Switzerland, no. 39187/98, § 46, ECHR 2002-II).
129. In the instant case, the
Court observes that the applicant’s actual situation in the Nifon Unit of the Săpoca Psychiatric
Hospital was disputed. Be that as it may, the
question whether she was physically locked in the facility is not determinative
of the issue. In this regard, the Court refers to its case-law to the effect
that a person may be considered to have been “detained” for the purposes of
Article 5 § 1 even during a period when he or she was allowed to make certain
journeys or was in an open ward with regular unescorted access to unsecured
hospital grounds and the possibility of unescorted leave outside the hospital
(see Stanev v. Bulgaria [GC],
no. 36760/06, § 128, 17 January 2012, and H.L. v. the United Kingdom, no. 45508/99, § 92, ECHR 2004-IX).
As to the circumstances of the present case, the Court considers that the key
factor in determining whether the applicant was deprived of her liberty is that
the medical staff of the Nifon Unit of the Săpoca Psychiatric Hospital
exercised complete and effective control by means of medication and supervision
over the assessment, treatment, care, residence and movements of the applicant
from 3 February 2005, when she was admitted to that institution, to 1
April 2005, when she left the hospital. It appears from the Government’s
observations that she could have asked to be discharged at any time.
Consequently, it seems that the applicant could not have left the institution
without the medical team’s permission. While there is no evidence in the file
that the applicant made any attempts to leave the institution without informing
the medical staff, it nevertheless appears from her clinical observation papers
produced by the hospital on 4 March 2005 that she “mentioned discharge” (see
paragraph 19 above). Even if the Court accepts that the authenticity of the
copy of the applicant’s clinical observation papers is debatable, none of the
parties has contested the aforementioned statement. In addition, the Court
notes that the hospital was located in a remote area and could be reached only
by car, which made it difficult if not perilous for the applicant to leave on
her own (see paragraph 16 above).
130. Moreover, it appears
that the medical staff had full control over whom the applicant could see or
speak to. In this connection, the Court notes that according to the available
evidence, the medical staff did not allow police officer G.C. to see or speak
to the applicant when he visited her for the first time on account of the
treatment she was receiving. It was only a few days later that the police
officer was granted access to her (see paragraph 51 above). In this context,
the Court considers irrelevant, even if it was true, that the applicant had
unrestricted access to phones and postal services.
131. Accordingly, in view of
the specific situation in the present case the Court considers that the
applicant was under continuous supervision and control and was not free to
leave (see Storck v. Germany,
no. 61603/00, § 73, ECHR 2005-V).
132. The Court observes that
the duration of the measure taken against the applicant was almost eight weeks.
The Court considers that such period is sufficiently lengthy for her to have
felt the full adverse effects of the restrictions imposed on her (compare Cristian Teodorescu, cited above,
§ 56).
133. The Court also notes
that in the case of
H.M. (cited above), it held that
the placing of an elderly applicant in a foster home in order to ensure the
necessary medical care, as well as satisfactory living conditions and hygiene,
had not amounted to a deprivation of liberty within the meaning of Article 5 of
the Convention. However, each case has to be decided taking into account its
particular “range of factors”, and while there may be similarities between the
present case and
H.M., there are also distinguishing
features. In particular, even though, like in the case at hand, it was not
established that
H.M. was legally incapable of expressing a
view on her position, she stated on several occasions that she was willing to
enter the nursing home, and within weeks of being there she agreed to stay,
which is in plain contrast to the applicant in the instant case. Further, a
number of safeguards – including judicial scrutiny – were in place in order to
ensure that the placement in the nursing home was justified under domestic and
international law.
134. The Court further notes
that in Nielsen v. Denmark, 28 November 1988,
§ 67, Series A no. 144, the applicant was an under-age child, hospitalised for
the strictly limited period of only five and a half months, at his mother’s
request and for therapeutic purposes. The applicant in the present case was a
fully functioning adult. Furthermore, in contrast to instant case, the therapy
in Nielsen consisted of regular talks
and environmental therapy and did not involve medication. Lastly, the Court
found in Nielsen that the assistance
rendered by the authorities on the applicant’s hospitalisation was “of a
limited and subsidiary nature”, whereas in the instant case the authorities
appear to have contributed substantially to the applicant’s admission to the
hospital and her continued hospitalisation.
135. As to the subjective
aspect of the measure, the Court notes that at the time of her hospitalisation
the applicant was of age and that there is no evidence in the file that she
lacked legal capacity to decide matters for herself. However, according to the
information received by the Government on 16 October 2010 from the management
of the Săpoca Psychiatric Hospital, and notwithstanding the applicant’s
statement that she was told by the medical staff that she had signed the
hospitalisation papers, Dr I. obtained the informed consent for the applicant’s
hospitalisation and treatment from the applicant’s mother on account of the
applicant’s clinical condition (see paragraph 24 above). In this context, the
Court considers that it is reasonable to assume that the applicant did not
directly consent to her hospitalisation and treatment.
136. In addition, the Court
notes that there is no evidence in the file that the applicant’s mother was
appointed to act as her legal representative. Moreover, given the continual
conflicts between the applicant and her parents, and in the absence of any
express procedural safeguards provided by Law no. 487/2002, in force at the
relevant time, with regard to the appointment of personal representatives, or
of any explicit evidence that the applicant had appointed her mother as her
personal representative at the time of her hospitalisation, the Court is not
convinced that the applicant’s mother acted as the applicant’s personal
representative. Consequently, the Court cannot accept that the applicant
validly consented either directly or indirectly to her hospitalisation or
treatment. The prosecutor’s order of 27 September 2005 is not sufficient
to persuade the Court to the contrary.
137. Moreover, according to
the medical evidence in the case-file, during her hospitalisation the applicant
lacked insight and therefore did not have the ability to recognise the need for
her hospitalisation and treatment (see paragraph 19 above). Consequently,
notwithstanding the parties’ arguments to the contrary and the fact that she
does not appear to have lodged complaints or attempted to escape from the
institution, it does not appear that the applicant ever regarded her admission
to the facility or her treatment as consensual.
138. Therefore, in view of
the particular circumstances of the present case, the Court considers that the
applicant never agreed to her hospitalisation and treatment in the Nifon Unit
of the Săpoca Psychiatric Hospital.
139. Lastly, the Court notes
that although the applicant’s admission was requested by her mother, a private
individual, it was nevertheless implemented by a State-run institution.
Therefore, the responsibility of the authorities for the situation complained
of was engaged (see Shtukaturov
v. Russia, no. 44009/05, §
110, 27 March 2008).
140. In the light of the
foregoing, the Court concludes that the applicant was “deprived of her liberty”
within the meaning of Article 5 § 1 of the Convention between 3 February and 1
April 2005.
(ii) Whether the applicant’s placement in the
psychiatric hospital was compatible with Article
5 § 1
141. The Court reiterates
that in order to comply with Article 5 § 1, the detention in issue must first
of all be “lawful” in that it complies with a procedure prescribed by law; in
this regard the Convention essentially refers back to national law and lays
down the obligation to conform to the substantive and procedural rules thereof.
It requires in addition, however, that any deprivation of liberty should be
consistent with the purpose of Article 5, namely to protect individuals from
arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, §
63, Series A no. 244). Furthermore, 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.
This means that it does not suffice that the deprivation of liberty is in
conformity with national law; it must also be necessary in the circumstances
(see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III).
142. In addition,
sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of
permissible grounds for deprivation of liberty; such a measure will not be
lawful unless it is based on one of those grounds (ibid., § 49; see also, in
particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43,
ECHR 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April
2011).
143. As regards the
deprivation of liberty of mentally disordered persons, an individual cannot be
deprived of his liberty as being of “unsound mind” unless the following three
minimum conditions are satisfied: firstly, he or she must reliably be shown to
be of unsound mind; secondly, the mental disorder must be of a kind or degree
warranting compulsory confinement; thirdly, the validity of continued
confinement depends upon the persistence of such a disorder (see Winterwerp
v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov,
cited above, § 114; and Varbanov v. Bulgaria, no 31365/956, § 45,
5 October 2000).
144. In examining whether the
applicant’s placement in a psychiatric institution was lawful for the purposes
of Article 5 § 1, the Court must ascertain whether the measure in question
complied with domestic law, whether it fell within the scope of one of the
exceptions provided for in sub‑paragraphs (a) to (f) of Article 5 § 1 to the
rule of personal liberty, and, lastly, whether it was justified on the basis of
one of those exceptions (see Stanev,
cited above, § 148).
145. In the instant case, the
Court notes that in the absence of the applicant’s valid consent to her
hospitalisation and treatment, the rules concerning voluntary hospitalisation
of individuals with mental problems provided for by Law no. 487/2002 do not
apply.
146. In addition, the Court
notes that according to the available evidence and the applicant’s medical
records, the applicant was hospitalised on the basis of her general
practitioner’s referral and diagnosis (see paragraph 19 above). Law no.
487/2002 recognised the general practitioner as one of the individuals who
could request the applicant’s involuntary hospitalisation. However, the same
Law provided that persons requesting the involuntary confinement of another
person were to, inter alia, attest
under signature to the reasons supporting their request, joining to it a
description of the circumstances that had led to the request, and a copy of the
medical records of the person concerned (see paragraph 77 above). The Court
notes that although the general practitioner’s note was signed by him and the
diagnosis was clearly stated on the note, there is no evidence in the file that
the note was accompanied by a description of the circumstances that had led to
the request or the reasons justifying it.
147. Moreover, although Law
no. 487/2002 provided that a decision on hospitalisation had to be confirmed by
a medical commission on which the doctor who had made the hospitalisation
decision could not sit, and that subsequently such decision had to be sent to
the prosecutor’s office, the applicant or her representatives, there is no
evidence in the file that the procedure in question actually took place in the
present case. The Court’s finding is reinforced by the Higher Disciplinary
Commission’s conclusion that no involuntary procedure had even been initiated
in the applicant’s case (see paragraph 43 above). Consequently, the Court
considers that the failure of the authorities to initiate the involuntary
procedure for hospitalisation in the applicant’s case underlines the
uncertainty and ambiguity of the applicant’s deprivation of liberty, which
situation was exacerbated by the deficiencies of the legislation in force at
the time.
148. In this regard, the
Court reiterates that the first paragraph of Article 5 § 1 must be
interpreted as placing positive obligations on member States to protect the
liberty of individuals within its jurisdiction and that the expressions “in
accordance with the law” and “in accordance with a procedure prescribed by law”
also concern the quality of the law providing the legal basis for measures of
deprivation of liberty (see Varbanov cited
above, § 51).
149. In this connection, the
Court observes that it has already held that for the period prior to 2006, Law
no. 487/2002 had been plagued with deficiencies in respect of the forced
hospitalisation procedure and that the said deficiencies amounted to a real
risk that a person in respect of whom an involuntary hospitalisation decision
had been taken would be prevented from making use of the remedy provided for by
Law no. 487/2002, such as an appeal under Article 54 (see Cristian Teodorescu, cited above, § 65). The Court further observes
that even if some of the aforementioned deficiencies may have been remedied by
the rules of enforcement in respect of Law no. 487/2002, those rules entered
into force only on 2 May 2006, more than a year after the applicant’s discharge
from hospital.
150. The aforementioned considerations
are sufficient to enable the Court to conclude that the applicant’s deprivation
of liberty was not in accordance with the law.
151. The Court also
reiterates that while it is true that Article 5 § 1 (e) authorises the
confinement of a person suffering from a mental disorder, such a measure must
be properly justified by the seriousness of the person’s condition in the
interest of ensuring his or her own protection or that of others. Moreover, it
may be acceptable, in urgent cases or where a person is arrested because of
violent behaviour, for such an opinion to be obtained immediately after the
confinement, but in all other cases prior consultation is necessary. Where no
other possibility exists, for instance owing to the refusal of the person
concerned to appear for an examination, at least an assessment by a medical
expert on the basis of the file must be sought, failing which it cannot be
maintained that the person has reliably been shown to be of unsound mind (see Varbanov cited above, § 47; Cristian Teodorescu, cited above, § 67; and Stanev, cited above, § 157).
152. In the present case,
however, it has not been established that the applicant’s deprivation of
liberty was necessary, given the circumstances of her situation, or that other,
less restrictive, measures could not have sufficed to protect her interests or
the interests of the general public.
153. In this connection, the
Court notes that according to the Higher Disciplinary Commission, the applicant’s
clinical observation papers did not include a full psychological assessment,
and that the necessary tests for establishing whether she was suffering from
borderline personality disorder had not been conducted at all (see paragraphs
42 and 45 above). In view of the parties’ disagreement on the matter, the Court
is prepared to accept that the applicant’s hospitalisation was based
exclusively on medical reasons; however, although the applicant had previously
been hospitalised in a psychiatric institution on one previous occasion, there
is no evidence in the file that she had ever tried to harm herself or others.
Moreover, the fact that she was discharged with the same diagnosis as upon her
hospitalisation raises serious doubts as to the necessity of the impugned
measure for the purposes of Article 5 § 1 (e). Lastly, the Government have not
put forward any convincing arguments as to why the applicant’s condition could
not have been treated and monitored without her being deprived of her of her
liberty.
154. Having regard to the foregoing, the Court observes that the applicant’s
deprivation of liberty was not justified under sub-paragraph (e) of Article 5 §
1. Furthermore, the Government have not indicated any other grounds
listed in sub-paragraphs (a) to (f) which might have justified the deprivation
of liberty in issue in the present case.
155. There
has therefore been a violation of Article 5 § 1 of the Convention.
2. Alleged violation of Article 8 of the
Convention
156. Relying expressly on
Article 3 and in substance on Article 8 of the Convention, the applicant
complained that the medical treatment provided to her in the Nifon Unit of the Săpoca Psychiatric
Hospital had interfered with her right to respect
for her private life.
157. The Court reiterates
that since it is master of the characterisation to be given in law to the facts
of the case, it does not consider itself bound by the characterisation given by
applicants (see Guerra and Others v. Italy, 19 February 1998, § 44,
Reports of Judgments and Decisions 1998-I).
Therefore, it considers that in view of the nature of the applicant’s
complaint, it should examine it under Article 8 of the Convention, which reads
as follows:
“1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
(a) The parties’ submissions
158. The applicant submitted
that the treatment she had received during her hospitalisation had interfered
with her right to respect for her private life. The treatment had isolated her
from the friends and social environment she had been accustomed to, as well as
from her fiancé. The interference had been arbitrary and contrary to her will.
159. The Government contended
that the psychiatrist had treated the applicant with her representative’s
consent. Consequently, they considered that the treatment had not interfered
with her right to respect for her private life. In any event, the treatment had
been lawful and had pursued a legitimate aim.
(b) The Court’s assessment
160. The Court reiterates
that a person’s body concerns the most intimate aspect of private life (see Y.F. v. Turkey, no. 24209/94, § 33, ECHR
2003‑IX, with further references). Thus, compulsory medical treatment, even if
it is of minor importance, constitutes an interference with that right (see X v. Austria, no. 8278/78, Commission
decision of 13 December 1979, Decisions and Reports (DR) 18, and Acmanne and Others v. Belgium, no.
10435/83, Commission decision of 10 December 1984, DR 40).
161. The Court notes that it
has already established that the applicant was administered treatment in the
absence of her valid direct or indirect consent and in circumstances where a
State-run psychiatric hospital exercised complete and effective control over
her.
162. Consequently, the Court
considers that there was an “interference by a public authority” with the
applicant’s right to respect for her private life (see Y.F. v. Turkey, no.
24209/94, cited above, § 35).
163. Such an interference
will breach Article 8 of the Convention unless it is “in accordance with the
law”, pursues one of the legitimate aims set out in the second paragraph of
that Article, and can be considered “necessary in a democratic society” in
pursuit of that aim (see Dankevich v.
Ukraine, no. 40679/98, § 151, 29 April 2003, and Silver and Others v. the United Kingdom, 25 March 1983, § 84, Series A no. 61).
164. In this connection, the
Court notes that according to Law no. 487/2002, the psychiatrist could
only treat the applicant after obtaining valid consent from her to the
treatment. He could have proceeded with the treatment even in the absence of
valid consent in circumstances only if the absence of treatment would have
resulted in an imminent risk of harm for her or for others, or if she had not
had the psychological capacity to understand her illness and the need for
initiating treatment. However, in those circumstances he would have been
required to submit his action to a procedural review commission for review (see
paragraphs 76-78 above).
165. The Court notes that the
psychiatrist acted in the absence of the applicant’s valid consent. In
addition, there is no evidence in the file, and the Government failed to
demonstrate, that the psychiatrist submitted his decision on treatment for
procedural review.
166. In the light of the
foregoing, the Court finds that the interference in issue was not “in
accordance with law”.
167. This finding suffices
for the Court to hold that there has been a violation of Article 8 of the
Convention. It is not therefore necessary to examine whether the interference
in question pursued a “legitimate aim” or was “necessary in a democratic
society” in pursuit thereof (see M.M.
v. the Netherlands, no. 39339/98, § 46, 8 April 2003).
3. Alleged violation of Article 5 § 4, taken
alone or in conjunction with Article 14 of the Convention
168. The applicant further
complained that the failure of the authorities to review the lawfulness of her
detention and to carry out an effective investigation into the arbitrary
deprivation of her liberty on account of her association with MISA had breached
her rights guaranteed by Article 5 § 4, taken alone or in conjunction with
Article 14 of the Convention. Those provisions read as follows:
Article 5 § 4
“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.”
Article 14
“The enjoyment of the rights and freedoms set forth in
[the] Convention shall be secured without discrimination on any ground such as
sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
169. Having regard to its
finding above under Article 5 § 1, and to its finding in respect of the
Government’s preliminary objection concerning non-exhaustion of domestic
remedies, 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, taken
alone or in conjunction with Article 14 of the Convention (see David v. Moldova,
no. 41578/05, § 43, 27 November 2007).
4. Alleged violation of Articles 9 and 12 of
the Convention
170. The applicant complained
that the measures taken against her with the authorities’ collusion on account
of her association with MISA had prevented her from exercising her beliefs, in
breach of her rights guaranteed by Articles 9 and 12 of the Convention, which
read as follows:
Article 5 § 4
“1. Everyone
has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief and freedom, either alone or
in community with others and in public or private, to manifest his religion or
belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs
shall be subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of the
rights and freedoms of others.”
Article 12
“Men and women of marriageable age have the right to
marry and to found a family, according to the national laws governing the
exercise of this right.”
171. The Court has already
found that the measures taken against the applicant were, in the circumstances
of her case, unlawful and violated Articles 5 and 8 of the Convention. In view
of its findings under the aforementioned Articles, the Court considers that
there is no need for a separate examination under Articles 9 and 12 of the
Convention.
II. COMPLAINT UNDER ARTICLE 3 OF THE
CONVENTION
172. The applicant complained
that the medical treatment provided to her in the Nifon Unit of the Săpoca Psychiatric
Hospital had been inappropriate and had amounted
to inhuman and degrading treatment in breach of Article 3 of the Convention,
which reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
Admissibility
1. The parties’ submissions
173. The Government
reiterated their arguments concerning the non-exhaustion of domestic remedies
and the belated lodging of the applicant’s application before the Court (see
paragraphs 94-96 and 109 above). In addition, they contended that the applicant
had not provided sufficient evidence in relation to the treatment administered
to her and had not submitted any medical evidence demonstrating the alleged
effects of the treatment on her physical or psychological well-being.
174. The Government submitted
that the applicant had not supported her allegations by any other medical
documents, the only relevant evidence adduced in the case being the clinical
observation paper, which contained her diagnosis and details of the progress of
her condition and her reaction to the treatment. The aforementioned paper
recorded that she had suffered only from reluctance to communicate, verbal
aggressiveness, constipation, daytime somnolence, emotional instability, lack
of insight, dysmenorrhoea, irritability and aggressiveness. There were no
medical documents indicating that the applicant had actually suffered the
remaining side-effects she mentioned.
175. The applicant also
reiterated her arguments against the Government’s claims of non-exhaustion of
domestic remedies and belated lodging of her application before the Court (see
paragraphs 97-98 and 110 above). She also submitted that, according to the
available medical documents, the medical treatment with Leponex that she had
received during her hospitalisation in the Nifon Unit of the Săpoca Psychiatric Hospital
had been inappropriate for her condition. Moreover, although treatment with the
aforementioned medicine carried a major cardiac risk and had to be monitored
closely, there was no evidence in the applicant’s clinical observation papers
that her treatment had been monitored. Moreover, the treatment had been
administered in combination with other neuroleptic drugs, a practice cautioned
against by medical experts in the field. Furthermore, the treatment had
continued to be forcibly administered to the applicant by her family after her
discharge from hospital.
176. The applicant contended
that she had repeatedly complained about the medication’s side-effects,
including immune deficiency, and inability to procreate for a year in her
complaints lodged before the domestic authorities.
2. The Court’s assessment
177. The Court finds that it
is not necessary to re-examine whether the applicant had exhausted the
available domestic remedies or whether she had lodged her application before
the Court within the allowed time-limit, because even assuming that she had
done so, the complaint is in any event inadmissible for the following reasons.
178. The Court reiterates
that ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3. The assessment of this minimum is, in the nature
of things, relative; it depends on all the circumstances of the case, such as
the nature and context of the treatment, the manner and method of its
execution, its duration, its physical or mental effects and, in some instances,
the sex, age and state of health of the victim (Kudła v. Poland [GC], no. 30210/96, §91, CEDH 2000-XI, and Peers v. Greece, no. 28524/95, §67,
CEDH 2001-III).
179. The Court notes that
while the Government did not contest that the applicant had been treated with
Leponex and other neuroleptic drugs during her hospitalisation, it appears that
they contested that she experienced all the side-effects that she described.
180. The Court observes that
according to the available medical evidence it does not appear that the
applicant suffered any of the more serious side-effects she mentioned, in particular,
agranulacytosis, immune deficiency or
inability to procreate for a year (see paragraph 19 above). In addition, it
does not appear from the available medical evidence that the treatment had
long-lasting psychological or physical effects on the applicant after her
discharge from hospital.
181. While it is undisputed
that the applicant received the treatment on a regular basis during her
hospitalisation, that she experienced some side‑effects and that, as the Court
has already established, she had not consented to receiving the medication, the
Court remains unconvinced in the particular circumstances of this case that the
treatment in issue attained the level of severity required by Article 3 of
the Convention.
182. It follows that this
part of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
III. OTHER COMPLAINTS
183. The applicant complained
under Articles 3 and 6 of the Convention that the criminal investigations
conducted following her complaints had been ineffective. Moreover, she
complained under Article 5 of the Convention that she had been unlawfully
deprived of her liberty while held at her grandparents’ house by her family.
Lastly, she complained under Articles 9 and 14, taken in conjunction with
Article 6 of the Convention, that she had been unlawfully deprived of her
liberty and had not enjoyed an effective investigation in respect of that issue
on account of her association with MISA.
184. The Court has examined
these complaints as submitted by the applicant. However, having regard to all
the material in its possession, and in so far as they fall within its
jurisdiction, the Court finds that they do not disclose any 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
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
185. 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
186. The applicant claimed
92,000 euros (EUR) in respect of non‑pecuniary damage.
187. The Government submitted
that the amount was excessive and unjustified and that the finding of a
violation would constitute sufficient just satisfaction for the applicant.
188. The Court takes the view
that, as a result of the violations found, the applicant must have suffered
non-pecuniary damage which cannot be made good by the mere finding of a
violation.
189. Consequently, ruling on
an equitable basis, the Court awards the applicant EUR 15,600 in respect of
non-pecuniary damage.
B. Default interest
190. The Court considers it
appropriate that the default interest rate 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
1. Declares
the complaints under Articles 5, 8, 9, 12 and 14, taken alone or in
conjunction, admissible and the remainder of the application inadmissible;
2. Holds
that there has been a violation of Article 5 § 1 of the Convention;
3. Holds
that there has been a violation of Article 8 of the Convention;
4. Holds
that there is no need to examine the complaints under Articles 5 § 4, 9,
12 and 14 of the Convention, taken alone or in conjunction;
5. Holds
(a) that the respondent State is to pay the
applicant EUR 15,600 (fifteen thousand six hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage, to be converted into the
currency of the respondent State at the rate applicable at the date of
settlement, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention;
(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;
6. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 September
2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Josep Casadevall
Deputy Registrar President
http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-146379
