SECOND SECTION
CASE OF DOGOTAR v. THE REPUBLIC OF MOLDOVA
(Application no. 12653/15)
JUDGMENT
STRASBOURG
4 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Dogotar v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12653/15) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Mr Mihail Dogotar (“the applicant”), on 28 February 2015.
2. The applicant was represented by Mr A. Postică a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr O. Rotari.
3. On 6 June 2017 the applicant’s complaint under Article 5 § 1 of the Convention concerning his unlawful detention in a psychiatric hospital was communicated to the Government and the complaints under Articles 5 § 4 and 6 were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1942 and lives in Glodeni.
5. At the time of the events giving rise to the present application he was a pensioner who received an amount equivalent to some fifty-eight euros (EUR) per month. On 5 May 2014 the Minister of Social Protection organised a meeting with the inhabitants of the applicant’s town. The applicant was also present and after the meeting he asked the Minister a question about the method of calculation of his pension. He contended that the coefficient employed for the calculation had been wrong and that his pension was too small. The Minister replied that his pension was high enough and questioned in an ironic manner whether the applicant even understood the meaning of the words used in his question. The answer infuriated the applicant and he cursed and slapped the Minister in the face.
6. On the same day, following the Minister’s complaint, criminal proceedings were initiated against the applicant on charges of hooliganism.
7. On 12 May 2014 the prosecutor in charge of the case ordered the applicant’s psychiatric examination in order to determine whether he was fit to plead in the criminal proceedings.
8. On 29 May 2014 a commission of psychiatrists speculated that the applicant might suffer from either dementia or amnesia. However, they did not reach a final conclusion and recommended the conduct of an in-patient psychiatric examination.
9. On 2 July 2014, at the prosecutor’s request, the Glodeni District Court ordered an in-patient psychiatric forensic examination of the applicant. The applicant challenged the above decision but without success. His appeal and appeal on points of law were rejected by the Bălți Court of Appeal and the Supreme Court of Justice on 28 August and 15 October 2014, respectively.
10. On 18 September 2014 the applicant was arrested by a group of five police officers and taken to the Chișinău Psychiatric Hospital. Upon arrival, the applicant was asked to sign several pre-printed documents, the meaning of which was that he was giving his formal consent to hospitalisation and treatment. He signed them, but wrote on one of them that he did not consent to being subjected to a psychiatric examination (nu sunt de acord cu expertiza).
11. On 20 September 2014 the applicant was visited by his son in hospital. After the visit the son employed a lawyer who started to take measures in order to have the applicant released.
12. On 24 September 2014, at the lawyer’s advice, the applicant wrote to the hospital administration a letter stating that he had been hospitalised against his will on 18 September 2014 and that if he had signed anything, he wished to withdraw his signature.
13. On 25 September 2014 the applicant was released from hospital. It appears from a video submitted by the applicant’s representative, that the door of the hospital ward where the applicant was detained was locked and that one could enter or exit only with the approval of the medical staff.
14. On 30 September 2014 the prosecutor in charge of the case applied to the Glodeni District Court to have the applicant remanded in custody pending trial for a period of thirty days.
15. On 4 November 2014 the Glodeni District Court rejected the prosecutor’s request and found that the applicant had been subjected to inhuman and degrading treatment as a result of his forceful hospitalisation.
16. By a final judgment of the Supreme Court of Justice of 26 December 2017 the applicant was found guilty as charged and sentenced to a criminal fine of 4,000 Moldovan lei (MDL), the equivalent of some EUR 180.
II. RELEVANT DOMESTIC LAW
17. The relevant domestic law concerning detention on remand has been set out in the Court’s judgment in David v. Moldova (no. 41578/05, §§ 24‑25, 27 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
18. The applicant complained under Article 5 § 1 of the Convention that his detention in the psychiatric hospital had been arbitrary. Article 5 § 1 reads as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
A. Admissibility
19. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
20. The Government submitted that the applicant’s hospitalisation had been carried out in accordance with the court order of 2 July 2014 and had been necessary in order to determine whether he was fit to answer for his deeds. They further submitted that the applicant’s hospitalisation had not amounted to a deprivation of liberty because he had consented to it by signing the hospital’s pre-printed consent forms. It was only on 24 September 2014 that the applicant expressed his wish to leave the hospital and was released the next day.
21. The Court considers it necessary to determine in the first place whether the applicant’s hospitalisation for seven days amounted to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention.
22. It is the Government’s claim that the applicant consented to being hospitalised in the psychiatric hospital because he had signed the hospital’s consent forms. The applicant, on the other hand, maintained that he had never agreed to being hospitalised. Having regard to the documents in its possession, the Court notes that the applicant not only challenged the court decision of 2 July 2014, both before the Court of Appeal and the Supreme Court of Justice, but also clearly indicated his disagreement with the measure imposed on him in the so‑called consent forms (see paragraph 10 above). He reiterated his lack of consent on 24 September 2014 but it was only after the intervention of his new lawyer on 25 September 2014 that he was released.
23. The Court therefore concludes that the applicant was deprived of his liberty between 18 and 25 September 2014. It recalls next that Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds of deprivation of liberty set out in sub-paragraphs (a) to (f). Consequently, no deprivation of liberty will be lawful unless it falls within one of the grounds set out in those sub-paragraphs (see Witold Litwa v. Poland, no. 26629/95, § 49, ECHR 2000‑III).
24. The Government have not invoked any of the permissible grounds for the applicant’s deprivation of liberty between 18 and 25 September 2014. They did, however, cite the Court’s case-law relating to sub‑paragraph (e) of Article 5 § 1, namely the detention of persons of unsound mind. Since it is obvious that the applicant’s deprivation of liberty was not covered by sub‑paragraphs (a), (b), (c), (d) or (f) of Article 5 § 1 of the Convention, the Court will ascertain whether the applicant’s detention in the present case was justified under sub-paragraph (e) of Article 5 § 1 of the Convention.
25. The Court reiterates that an individual cannot be considered to be “of unsound mind” for the purposes of Article 5 § 1 of the Convention and deprived of his liberty unless the following three minimum conditions are satisfied: he must be reliably shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (see Luberti v. Italy, judgment of 23 February 1984, § 27, Series A no. 75).
26. It appears from the facts of this case that none of the above conditions were met. The court order of 2 July 2014 was aimed exclusively at establishing whether the applicant was fit to plead in criminal proceedings, and not to protect him or others. The Court considers therefore that the applicant’s detention between 18 and 25 September 2014 did not fall within the ground set out in sub‑paragraph (e) of Article 5 § 1 and was thus arbitrary. Accordingly, there has been a violation of Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 8 OF THE CONVENTION
27. The applicant complained that his forced hospitalisation for seven days in a psychiatric hospital was in breach of his right to respect for his private life. He relied on Articles 8 of the Convention.
28. Having regard to the facts of the case, the submissions of the parties and its findings under Article 5 § 1 of the Convention, the Court considers that it has examined the main legal questions raised in the present application and that there is no need to give a separate ruling on the remaining complaint (see, among other authorities, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007 and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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
30. The applicant claimed 6,000 euros (EUR) in respect of non‑pecuniary damage.
31. The Government contested the amount claimed by the applicant and argued that there was no proof that he had suffered any damage. They asked the Court to dismiss the applicant’s claim.
32. Having regard to the violation found above, the Court considers that an award of compensation for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant the entire amount claimed.
B. Costs and expenses
33. The applicant also claimed EUR 1,680 for the costs and expenses incurred before the Court.
34. The Government claimed that the amount claimed was excessive.
35. Regard being had to the documents in its possession, the Court considers it reasonable to award the entire amount claimed for costs and expenses.
C. Default interest
36. 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 application admissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds that there is no need to examine the complaint under Article 8 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,680 (one thousand six hundred and eighty euros), plus any tax that may be chargeable, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 4 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy