CASE OF I.N. v. UKRAINE

FIFTH SECTION

CASE OF I.N. v. UKRAINE

(Application no. 28472/08)

JUDGMENT

STRASBOURG

23 June 2016

FINAL

23/09/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of I.N. v. Ukraine,

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

Angelika Nußberger, President,
Khanlar Hajiyev,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Mārtiņš Mits, judges,
Sergiy Goncharenko, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 31 May 2016,

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

PROCEDURE

1.  The case originated in an application (no. 28472/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr I.N. (“the applicant”), on 29 May 2008. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2.  The applicant, who had been granted legal aid, was represented by Ms Y.V. Zaikina and Ms L.G. Ibadova, lawyers practising in Kharkiv. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk of the Ministry of Justice.

3.  The applicant alleged that his confinement in psychiatric hospitals had been unlawful, that he had had no enforceable right to compensation for that and that the civil proceedings in which he had challenged the lawfulness of his confinement and claimed compensation had been unreasonably long. He invoked Article 5 §§ 1 and 5, and Article 6 § 1 of the Convention.

4.  On 4 December 2013 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5.  Mrs Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1963 and lives in the town of Severodonetsk, Ukraine.

7.  According to the applicant, in 1996 he brought criminal proceedings for libel before the Severodonetskyy Town Court, complaining that it had been noted in his employment record that he had been dismissed because he had committed theft. The applicant alleged that, following his numerous complaints to a prosecutor’s office about the failure to investigate the above case, in 2000 the prosecutor’s office had requested his placement in a psychiatric facility.

8.  According to case-file materials, on 18 March 2000 the principal of the Severodonetsk Territorial Medical Association (Северодонецьке територіальне медичне об’єднання, hereinafter the “Severodonetsk Hospital”) received a letter from the Severodonetsk Town Prosecutor’s Office asking for an opinion on the state of the applicant’s mental health. The parties did not submit a copy of that letter to the Court.

9.  Psychiatrists Ma. and K. studied the applicant’s letters at the prosecutor’s office and decided that the applicant should be examined, since the letters contained evidence of a “high probability of socially dangerous behaviour”. The parties did not submit copies of those letters to the Court either.

10.  On 19 March 2000, Ma., assisted by a team of paramedics and two police officers, visited the applicant at home. The applicant stated that he had been visited by seven persons in total.

11.  The parties differed on the circumstances of this visit. According to the applicant’s testimonies given before the court in civil proceedings (see paragraph 29 below), he opened the door only after the police had threatened to break it. Once the applicant had opened the door, Ma. said that they should go to a hospital to examine the applicant there. A police officer, P., was shouting at the applicant and threatening him with criminal prosecution for resisting the police. The applicant replied that he would “submit to force”. He was subsequently taken by his arms and put in an ambulance.

12.  The Government submitted that there was no evidence that any pressure had been applied to the applicant. According to Ma.’s testimonies given in the same court proceedings, the applicant opened the door and let Ma. and the police officers in. Ma. introduced himself and had a conversation with the applicant. It was then proposed that the applicant accompany them to a hospital for further examination. The applicant agreed, collected his belongings, closed the door and got into the ambulance. Upon arrival in the Severodonetsk Hospital it was decided that the applicant needed hospitalisation.

13.  On 20 March 2000 the applicant was examined by a panel of four doctors, including Ma. and K., which confirmed the necessity of his urgent hospitalisation. On the next day the applicant was examined by an assistant of the psychiatric medicine department of the Lugansk State University Hospital in the presence of Ma., and was offered hospital treatment. Since he refused, he was further examined by three doctors of the Lugansk Regional Psychoneurological Hospital (Луганська обласна клінічна психоневрологічна лікарня, hereinafter the “Lugansk Hospital”), who concluded that he should be urgently admitted for treatment because he had written threatening letters to various authorities.

14.  Between 21 March and 7 September 2000 the applicant was a patient in the Lugansk Hospital. He was allegedly examined on 21 April, 22 May, 23 June and 22 August 2000 by a panel of three psychiatrists. Each time it was decided that his treatment had to be continued. On 26 July 2000 the applicant was examined by a regional medico-social expert commission, which established that he had a second-degree disability.

15.  On 7 September 2000 the applicant was transferred to the Svatove Regional Psychiatric Hospital (Сватівська обласна психіатрична лікарня, the “Svatove Hospital”) to continue his treatment there. He was discharged from the hospital on 4 December 2000.

16.  The applicant also stayed in a hospital between 31 May and 26 June 2001.

17.  In July and August 2001 the applicant requested that the medical establishments where he had stayed in 2000 allow him to study his medical file and inform him on what legal basis he had been subjected to psychiatric treatment. According to the applicant, he received an answer only from the Lugansk Hospital but the answer was not satisfactory.

18.  On 26 September 2001 the applicant brought proceedings before the Severodonetskyy Town Court against the Severodonetsk Hospital, complaining of its failure to reply to his request. The case file contains a copy of the applicant’s complaint dated 26 September 2001. There are two handwritten notes on it: “received on 28 September 2001” and “received on 2 October 2001”. The Severodonetskyy District Court issued a note on the progress of the applicant’s case stating that the applicant had instituted the proceedings on 2 October 2001. In October 2001 the applicant lodged a similar complaint against the Lugansk Hospital.

19.  On 15 November 2001 the court stayed the proceedings in the case pending examination of the issue of the applicant’s legal capacity. On 26 December 2001 the request to recognise the applicant as legally incapacitated was left without consideration, so the proceedings were resumed on 1 February 2002.

20.  On 29 April 2002 the court rejected the applicant’s claims as unsubstantiated. On 21 November 2002 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for fresh consideration.

21.  On 6 February 2003 the applicant modified his claims. In addition to his initial claims, he complained, inter alia, that his committal to the psychoneurological department of the Severodonetsk Hospital on 19 March 2000 and his confinement there until 21 March 2000 had been unlawful. He also complained that he had been unlawfully transferred to the Lugansk Hospital and the Svatove Hospital, where he had been confined until 4 December 2000. The applicant also claimed damages.

22.  Between 23 February 2003 and 23 March 2004 ten court hearings took place and three hearings were postponed. In particular, on two occasions the defendants and/or their representatives failed to appear in court, and one hearing did not take place because the court recording equipment was not available.

23.  Following a request by one of the defendants, on 23 March 2004 the court ordered a forensic psychiatric examination of the applicant. On 14 July 2004 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for examination on the merits.

24.  In their observations the Government provided a list of scheduled court hearings which had taken place in the applicant’s case. The case file also contains a note on the progress of the applicant’s case issued by the Severodonetskyy District Court. Those two descriptions of the progress of the proceedings in the applicant’s case contain some contradictory information.

25.  According to the Government’s submissions, between 3 September 2004 and 14 June 2005 eleven court hearings were scheduled but only five took place because either the defendants, the applicant or their representatives failed to appear. According to the domestic court record, seven hearings took place.

26.  On 14 June 2005 the term of office of the judge in the applicant’s case expired. The next hearing scheduled for September 2005 allegedly with a new judge did not take place because the court recording equipment was not available.

27.  Between 3 November 2005 and 13 August 2007 forty-eight court hearings were scheduled. According to the Government, all of them took place; according to the domestic court record, ten of them did not take place because the defendants, the applicant or their representatives failed to appear. The number of such failures to appear was almost equal for both parties.

28.  On 13 August 2007 the court partially allowed the applicant’s claims. It summarised his submissions as follows. On 19 March 2000 Ma., with the assistance of the police, had the applicant unlawfully committed to a psychoneurological department, where he stayed for two days. On 21 March 2000 the applicant was transferred to the Lugansk Hospital without his consent; he stayed there until 7 September 2000. He was then transferred to the Svatove Hospital, where he stayed until 4 December 2000. The applicant claimed that Ma. had acted unlawfully, had breached the applicant’s right to respect for his home, had examined the applicant against his will and had deprived him of his liberty. The applicant further complained that he had been unlawfully confined in all three hospitals, and that the principals of those institutions had failed to respond to his requests for information. The applicant claimed 100,000 Ukrainian hryvnas (UAH) in compensation for non-pecuniary damage.

29.  The court further noted that in a court hearing the applicant had submitted that he had not challenged his diagnosis but considered that the doctors’ actions had been unlawful. He gave his version of the events of 19 March 2000 (see paragraph 11 above). The applicant also submitted that force had been used against him in the Severodonetsk Hospital; he had been administered with injections and had been kept behind bars in a locked room. He had been transferred to the Lugansk and Svatove Hospitals without his consent. Information about his state of health had been provided to his employers and to the relevant prosecutor’s office. He had been discharged from the Svatove Hospital having been advised not to lodge any official complaints, otherwise he would be hospitalised again. He had not lodged any complaints since he had been “afraid for his future”. The applicant stated that he had sustained non-pecuniary damage caused by his involuntary hospitalisation, the administering of unknown medication by means of injection, poor nutrition, fear for his life, unsanitary conditions and a breach of his right to respect for his home.

30.  In court hearings Ma., and police officers Sh. and G. testified that no pressure had been brought to bear on the applicant at the time of the visit to his home. Witness Mb. testified that he did not remember the circumstances of that visit and witness Z. testified that she had seen “a doctor entering [the applicant’s house?] alone, followed several minutes later by a police officer”. She had then seen the applicant getting into an ambulance. Ma. also submitted that the applicant’s hospitalisation had been in compliance with temporary instructions nos. 16 and 17 “On procedure for the conduct of preliminary psychiatric examination of citizens” and “On procedure for urgent hospitalisation of mentally ill persons” (“Instructions nos. 16 and 17”) appended to Order no. 225 of the Ministry of Health of the USSR of 25 March 1988 “On actions for further improvement of psychiatric assistance” (“Order no. 225”), in particular, paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2, 5 and 6 of the Instruction no. 17 (see relevant domestic law below).

31.  The court found that the visit to the applicant’s home on 19 March 2000 when the applicant had been examined and later taken to the Severodonetsk Hospital had been performed in compliance with paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2 (b), 5 and 6 of Instruction no. 17. Referring to the “testimonies of Ma., Mb. and G.”, the court held that the applicant had failed to prove that any force had been used against him. The decision of 19 March 2000 on the applicant’s admission to hospital had also been adopted in compliance with paragraphs 1 and 2 of Instruction no. 17. The subsequent decision of 21 March 2000 to hospitalise the applicant had also been taken in compliance with paragraph 2 (b) of Instruction no. 17. However, the applicant’s transfer to the Svatove Hospital on 7 September 2000 had been in breach of section 16 of the Psychiatric Medical Assistance Act, which was in force as of 4 April 2000. The applicant’s requests for access to information had been rejected as a result of a decision to limit his access to his medical file, which he had not challenged. Such information could have been provided to the applicant’s relatives if he so wished. The court awarded the applicant UAH 2,000 to be paid by the Svatove Hospital (approximately 286 euros (EUR) at the material time) in compensation for non-pecuniary damage.

32.  The applicant appealed, stating, in particular, that by Order no. 81 of 18 April 1996 of the Ministry of Health of Ukraine (“Order no. 81”), Order no. 225 had been declared “not applicable on the territory of Ukraine”.

33.  On 29 November 2007 the Lugansk Regional Court of Appeal upheld the decision of 13 August 2007. The court held that the first-instance court had correctly applied the law in force at the material time. The court rejected the applicant’s arguments about the invalidity of Order no. 225 as unsubstantiated without giving any further details. It did not comment on the validity and/or legal effect of Order no. 81.

34.  The applicant lodged an appeal on points of law, reiterating his arguments.

35.  On 12 February 2008 the Supreme Court of Ukraine dismissed the applicant’s appeal on points of law as unsubstantiated.

36.  On 23 November 2010 the applicant complained to the Severodonetskyy Town Court that he had not received a writ of enforcement. In reply, the court informed him that he could receive the writ of enforcement from the court’s secretariat upon a written request.

37.  It is unclear whether the applicant received the compensation awarded to him.

II.  RELEVANT DOMESTIC LAW

A.  Constitution of Ukraine, 1996

38.  The relevant provisions of the Constitution read, in so far as relevant, as follows:

Article 22

“Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive.

Constitutional rights and freedoms are guaranteed and shall not be abolished.

The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.”

Article 29

“Every person has the right to freedom and personal inviolability ...”

Article 92

“The following are determined exclusively by the laws of Ukraine:

(1)  human and citizens’ rights and freedoms; the guarantees of these rights and freedoms; the main duties of the citizen ...”

Chapter XV

Transitional Provisions

“1.  Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...”

B.  Resolution no. 1545 of the Verkhovna Rada of Ukraine of 12 September 1991 on the temporary application of certain legislative acts of the Soviet Union

39.  The Resolution provides in particular:

“ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR shall be applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.”

C.  Legal acts on psychiatric assistance

40.  Before 4 April 2000 compulsory medical treatment in psychiatric hospitals was regulated by Soviet legislation. In particular, such treatment was regulated by Order no. 225 of the Ministry of Health of the USSR of 25 March 1988 (see paragraph 30 above), by which twenty-one various instructions on psychiatric assistance were adopted, including Instructions nos. 16 and 17 “On procedure for the conduct of preliminary psychiatric examination of citizens” and “On procedure for urgent hospitalisation of mentally ill persons”. The order also stated that “local health protection bodies may make copies of the present Order where necessary”.

41.  The relevant paragraphs of Instruction no. 16 provided as follows:

“Temporary Instruction on Procedure for the Conduct of Preliminary Psychiatric Examination of Citizens

1.  It is exclusively within the competence of a psychiatrist to decide whether a person is suffering from a mental disorder.

2.  A preliminary psychiatric examination is to be conducted with the consent of the person to be examined (except in special cases mentioned in this Instruction).

...

10.  A person who commits acts which serve as sufficient grounds to suspect that he or she is suffering from an evident mental disorder and at the same time disturbs public order or rules of socialist community life, as well as are dangerous for the person himself/herself or for others, may be initially examined without his/her consent upon the instruction of a principle psychiatrist or in an urgent case - [could be examined] by a psychiatrist of a specialised paramedic team ....

11.  A principal psychiatrist shall decide on the necessity of an initial examination following a reasoned request from a law-enforcement body ....

The request should contain detailed reasons for a psychiatric intervention, including an indication that the person has refused to visit a psychiatrist.

...

12.  In the event that an initial examination is required, a principal psychiatrist shall order a psychiatrist from the psychoneurological treatment centre to examine the person in question.”

42.  Paragraphs 13 and 19 of Instruction no. 16 also provided that, irrespective of the results of the examination, they should be included in the patient’s medical file. If the patient wishes to challenge the conclusion about his mental health, he or she may apply to a principal psychiatrist of a higher medical institution.

43.  The relevant parts of Instruction no. 17 provided as follows:

“Procedure for Urgent Hospitalisation of Mentally Ill Persons

... in accordance with the Regulations on the conditions and procedure for providing psychiatric assistance, the urgent hospitalisation of mentally ill persons is carried out in the following way:

1.  A patient who poses a danger to himself/herself or to others because of his/her mental state may be urgently hospitalised without his/her consent exclusively upon a decision of a psychiatrist ....

2.  Indication for urgent hospitalisation includes a person who presents a danger to himself or others (aggressive behaviour, psychomotor agitation, suicidal behaviour etc. as well as high probability of such actions), resulting in ...:

(b)  systemic delirium syndrome if it determines socially dangerous behaviour of a patient;

...

5.  Urgent hospitalisation is performed by medical personnel ...

6.  Law-enforcement bodies should assist medical personnel ... in cases of:

- resistance, aggression or the possibility of such behaviour which puts the life and health of medical personnel at risk ....”

44.  Paragraphs 9, 10 and 12 of Instruction no. 17 also provided that patients were to be examined by a panel of three psychiatrists within twenty-four hours of urgent hospitalisation in order to decide whether there were grounds for the urgent hospitalisation and for obligatory treatment. Patients also had to be examined by the panel once a month in order to decide whether the obligatory treatment had to be continued. A patient could challenge the decision on urgent hospitalisation or obligatory treatment by applying to a principal psychiatrist of a higher medical institution or to a court.

45.  Order no. 81 of the Ministry of Health of Ukraine of 18 April 1996 contains a list of orders of the Ministry of Health of the USSR “which do not apply in Ukraine”. The list includes Order no. 225.

46.  A detailed description of the Regulations on the conditions and procedure for providing psychiatric assistance, approved by decree of the Presidium of the Supreme Soviet of the USSR on 5 January 1988, referred to in Instruction no. 17, can be found in the judgment Akopyan v. Ukraine (no. 12317/06, §§ 47-48, 50, 5 June 2014).

47.  Since 4 April 2000 involuntary hospitalisation of individuals with mental disorders has been regulated by the Psychiatric Assistance Act, 2000. Sections 14 and 16 of this Act provide as follows:

Section 14. Grounds for compulsory hospitalisation of a person
in a psychiatric facility

“A person who is suffering from a mental disorder may be hospitalised in a psychiatric facility without his or her conscious agreement or without the agreement of his or her legal representative if the medical examination or treatment of that person is possible only within a hospital and if, as a result of the serious mental disorder, such a person:

commits or expresses real intentions to commit acts which are directly dangerous to this person or to others; or

is unable to meet his or her vital needs at the basic level.”

Section 16. Assessment of persons compulsorily hospitalised
in a psychiatric facility

“A person who has been hospitalised in a psychiatric facility upon a decision of a psychiatrist on the grounds provided for in section 14 of this Act, shall be assessed, within twenty-four hours, by a panel of psychiatrists of the psychiatric facility to determine whether the hospitalisation is required. If the hospitalisation is found to be unnecessary and the person concerned does not wish to stay in the psychiatric facility, he or she shall be immediately discharged.

If compulsory hospitalisation of the person is required, a representative of the psychiatric facility in which the person is being kept shall apply, within twenty-four hours, to the court ... for compulsory hospitalisation of the person on the grounds provided for in section 14 of this Act.

...”

III.  International materials

48.  The relevant excerpts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 8 to 24 February 1998 (CPT/Inf (2002) 19) read:

“6.  Safeguards in the context of involuntary hospitalisation

224.  Mentally ill and mentally handicapped persons are particularly vulnerable, and hence should benefit from safeguards in order to prevent any form of conduct – or avoid any omission – contrary to their well-being. It follows that involuntary admission/placement in a psychiatric facility should always be surrounded by appropriate safeguards, and that the need for such a placement should be reviewed at regular intervals. Further, the admission of a person to a psychiatric facility on an involuntary basis should not be construed as authorising treatment without the patient’s consent.

Other safeguards should deal with such matters as effective complaints procedures, the maintenance of contact with the outside world, and external supervision of psychiatric establishments.

225.  ...

The delegation was not able to obtain a clear picture of the legal procedures applied in the case of civil commitment to a psychiatric hospital. The CPT would like to receive a full account of those procedures, and in particular detailed information on the medical opinions required for involuntary hospitalisation, the role of the courts in the decision to hospitalise involuntarily, patients’ rights of appeal against their involuntary hospitalisation, and procedures for the review at regular intervals of whether involuntary hospitalisation remains necessary.

226.  Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. Every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. The CPT would like to receive full information on the legal position in Ukraine concerning consent to treatment.

Of course, consent to treatment can only be qualified as free and informed if it is based on full and accurate information about the patient’s condition and the treatment which is proposed. In this connection, the CPT recommends that all patients be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them. Relevant information should also be provided to patients following treatment (results, etc.).

227.  Neither of the psychiatric establishments visited possessed a clearly defined internal arrangement for the reception of complaints. The CPT considers that specific arrangements enabling patients to lodge formal complaints with a clearly-designated body and to communicate on a confidential basis with an appropriate authority outside the establishment, are essential safeguards. It accordingly recommends that the Ukrainian authorities take the necessary measures to introduce such arrangements, which should include the provision of information to patients on the possibility of making a complaint.

...

229.  ...However, the delegation was informed that all letters were subject to censorship by the treating doctor. The CPT would like to be informed whether this rule applies also to correspondence between a patient and his lawyer. ...”

THE LAW

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

49.  The applicant complained that his deprivation of liberty had not been in conformity with Article 5 § 1 of the Convention, which reads, in so far as relevant, 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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

...”

A.  Admissibility

50.  The parties did not submit any observations on the admissibility of this complaint.

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

B.  Merits

1.  The parties’ submissions

(a)  The applicant

52.  The applicant stated that at the material time there had been no reasons for placing him in the Severodonetsk Hospital. He pointed out that his examination by a psychiatrist had been initiated by a prosecutor because he had sent complaints, expressed in an offensive manner, about the way in which certain State authorities were functioning. According to the applicant, that fact could not justify his admission to a medical facility.

53.  The applicant further stated that Order no. 81 of the Ministry of Health of Ukraine of 18 April 1996 had declared that Order no. 225 was “not applicable on the territory of Ukraine”. Consequently, the applicant had been involuntary committed to a psychiatric hospital in breach of the Convention and the Constitution of Ukraine, as before 4 April 2000 no legal act provided for involuntary placement in such facilities.

54.  In support of his assertion, the applicant produced a letter sent to him by the Main Legal Department of the Parliament of Ukraine on 13 August 2013. The letter stated, in so far as relevant, as follows:

“The Main Legal Department has examined your letter on the validity of certain legal acts and their compliance with the Constitution and the laws of Ukraine.

By order no. 81 ‘On declaring orders of the USSR Ministry of Health as not applicable in Ukraine’ of 18 April 1996, the Ministry of Health of Ukraine declared order no. 225 of 25 March 1988 of the Ministry of Health of the USSR ‘On actions for further improvement of psychiatric assistance’ as not applicable in Ukraine. No exceptions were made in the above-mentioned order of the Ministry of Health of Ukraine for the possibility of a partial implementation of this order [no. 225] in Ukraine.

The Verkhovna Rada of the UkrSSR did not receive the text of order no. 225 of 25 March 1988 of the Ministry of Health of the USSR.

It is necessary to mention that the provisions of the Constitution of Ukraine and of the decrees of the President of Ukraine on the obligation to inform citizens about legal acts which determine their rights and freedoms do not cover legal acts issued by the State authorities of the USSR.

At the same time we draw your attention to the fact that the Main Legal Department of the Secretariat of the Verkhovna Rada of Ukraine ... does not provide conclusions on the compliance of legal acts with the Constitution of Ukraine ....”

55.  According to the applicant, after the Psychiatric Assistance Act had entered into force, the psychiatrist treating him had to apply to a court for the applicant’s further treatment in hospital. No such application had been lodged during the applicant’s stay in the psychiatric facilities. Consequently, his deprivation of liberty in the form of confinement in such institutions between 19 March and 7 September 2000 had been unlawful.

56.  As for the period between 7 September and 4 December 2000, the applicant submitted that the decision awarding him compensation had not been enforced. He was of the opinion that the anti-terrorist operation in the Lugansk region could not justify the Government’s failure to provide the Court with documents on the enforcement of the court decision in his favour. In particular, the current application had been communicated to the Government on 4 December 2013 and the active phase of the anti-terrorist operation had not commenced until April 2014. Consequently, the Government had had enough time to request the necessary documents from the institutions in the Lugansk region.

(b)  The Government

57.  At the outset, the Government submitted that they considered the applicant’s placement in a psychiatric facility as a “deprivation of liberty” within the meaning of Article 5 § 1 (e) of the Convention.

58.  The Government maintained that the national courts had established that such a placement had been well grounded since the applicant’s mental state had suggested that he had presented a danger to himself and others.

59.  In particular, the law-enforcement authorities had requested an expert examination of the applicant. Having examined the available materials, a board of psychiatrists had decided under Order no. 225 that an initial examination of the applicant was required. On 19 March 2000 a team of paramedics had arrived together with police officers at the applicant’s home. The applicant himself had opened the door and agreed to go to a hospital for examination. After the applicant had been examined, it was decided under the same order that he should be hospitalised. The Government underlined that there was no evidence that on 19 March 2000 the applicant had been forced to go to a hospital. In particular, at court hearings on the national level, both the defence and witnesses had testified that the applicant had agreed to go to a hospital without any pressure. No breaches of the law had been found in the police officers’ actions either.

60.  The Government maintained that the applicant’s admission to hospital and his stay there until 7 September 2000 had been performed in accordance with the domestic law in force at the material time. In particular, the domestic courts had found that the applicant’s admission to a psychiatric institution had been regulated by the Order no. 225.

61.  The Government also stated that the applicant had not contested the finding that he had been suffering from a mental disorder and had not complained about his treatment. Given his diagnosis, a medical commission had decided to limit his access to his medical file under the Psychiatric Assistance Act.

62.  The Government concluded that the applicant’s admission to hospital on 19 March 2000 and his stay there until 7 September 2000 had been in conformity with national law and the Convention requirements. The applicant’s complaints in that respect had been examined by the national courts and rejected.

63.  As for the period between 7 September and 4 December 2000, the Government submitted that the national courts had established that the applicant’s right to liberty had been breached and had awarded the applicant compensation. However, given the lack of access to the archives in the Lugansk Region because of the anti-terrorist operation being conducted there and the fact that the postal service in that region was not functioning, the Government were unable to inform the Court whether the decision in the applicant’s favour had been enforced in full.

2.  The Court’s assessment

64.  It is not disputed between the parties that on 19 March 2000 the applicant was committed to a psychiatric facility and that his confinement there until 4 December 2000 constituted a deprivation of liberty within the meaning of Article 5 § 1 of the Convention.

(a)  The relevant principles

65.  Before determining whether the applicant has been reliably shown to have been suffering from a mental disorder of a kind or degree warranting compulsory confinement throughout his detention, the Court must establish whether the applicant’s detention was “lawful” within the meaning of Article 5 § 1 (e) of the Convention and whether a procedure prescribed by law was observed (see L.M. v. Latvia, no. 26000/02, § 45, 19 July 2011).

66.  The Court reiterates that in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 of the Convention a failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004‑II).

67.  The Convention also refers to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, amongst other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008). “Quality of law” in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application in order to protect individuals from arbitrariness, such protection being the purpose of Article 5 (see Nasrulloyev v. Russia, no. 656/06, § 71, 11 October 2007).

68.  As for the substance of the domestic law, in order to ensure protection from arbitrariness, the domestic law must also contain “fair and proper procedures” for deprivation of liberty (see H.L. v. the United Kingdom, no. 45508/99, § 115, ECHR 2004‑IX).

69.  Lastly, the Court reiterates that the detention of an individual is such a serious measure that it is only justified in cases where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest. That 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).

70.  As regards the deprivation of liberty of persons with a mental disorder, an individual cannot be deprived of his liberty on the grounds that he or she is of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; and thirdly, the validity of continued confinement depends on the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33).

(b)  Application to the present case

71.  Turning to the present case, the Court notes that the applicant’s stay in psychiatric hospitals covers two periods: the first one between 19 March and 7 September 2000, when the national courts found the applicant’s hospitalisation to have been lawful; and the second between 7 September and 4 December 2000, which was found to be unlawful and for which the applicant has been awarded damages on the national level. The Court will examine those periods separately.

(i)  Period between 19 March and 7 September 2000

72.  The Court notes that this first period can be divided into two separate sub-periods: between 19 March and 4 April 2000, and between 4 April and 7 September 2000, namely before and after the Psychiatric Assistance Act entered into force.

73.  The Court notes, however, that the domestic courts and the Government in their observations concerning the period between 19 March and 7 September 2000 referred exclusively to the temporary instructions “On the procedure for the conduct of preliminary psychiatric examination of citizens” and “On the procedure for the urgent hospitalisation of mentally ill persons”. Those instructions were appended to Order no. 225 as legal acts regulating the applicant’s involuntary hospitalisation during that period.

74.  The applicant challenged that approach, stating that Order no. 225 had not been applicable in Ukraine under Order no. 81 of the Ministry of Health of Ukraine of 18 April 1996 and that there had therefore been no legal basis for placing him in a hospital.

75.  The Court notes that both the Government and the national courts have failed to comment on this argument.

76.  Apart from Order no. 225, the issues of involuntary hospitalisation before 4 April 2000 were covered by the Regulations on the conditions and procedure for providing psychiatric assistance, approved by a decree of the Presidium of the Supreme Soviet of the USSR on 5 January 1988. However, neither the domestic courts, nor the Government referred to those regulations as a legal basis for placing the applicant in a hospital.

77.  The Court notes that all legal acts which allegedly regulated involuntary hospitalisation before 4 April 2000 were adopted by the USSR legislative and executive authorities and, given the special provision on permission for medical staff to make copies of Order no. 225 (see paragraph 40 above), it is questionable whether this order was accessible to the public at the material time or even some time after its adoption. The Court, however, has no evidence that the order was inaccessible in 2000.

78.  Lastly, the Court observes that Articles 29 and 92 of the Constitution in force since 28 June 1996 require that “human and citizens’ rights and freedoms”, which include guarantees against arbitrary deprivation of liberty such as involuntary hospitalisation, be established by law, that is, by an Act of the Ukrainian Parliament. No such Act had been passed at the time of the applicant’s involuntary hospitalisation and his confinement before 4 April 2000 (see, mutatis mutandis, Vyerentsov v. Ukraine, no. 20372/11, § 55, 11 April 2013).

79.  The Court has already addressed the issues related to applicants’ confinement in psychiatric institutions before the adoption of the Psychiatric Assistance Act in the cases of Gorshkov v. Ukraine (no. 67531/01, 8 November 2005) and Akopyan v. Ukraine (cited above). In the case of Gorshkov v. Ukraine the Court examined the availability of proceedings enabling the applicant to test the lawfulness of his continued detention for compulsory medical treatment ordered in the course of criminal proceedings against him by a court in compliance with Article 5 § 4 of the Convention. In the case of Akopyan v. Ukraine the Court found that the applicant had had no access to “fair and proper procedures” during her stay in the psychiatric facility, inter alia, since even the available safeguards ensuring protection from arbitrary hospitalisation were not adhered to. The issue of the validity of the legal acts which allegedly regulated involuntary admission to mental-health facilities before the adoption of the Psychiatric Assistance Act was not raised in those cases and the Court did not analyse whether these legal acts corresponded to the definition of law under the Convention terms.

80.  The Court reiterates that it is in the first place for the national authorities to interpret and apply the domestic law (see Mkrtchyan v. Armenia, no. 6562/03, § 43, 11 January 2007). However, even assuming that the domestic courts, acting within this margin, correctly determined that Order no. 225 had been in force before 4 April 2000 and applicable to the applicant’s circumstances, the Court considers that in the applicant’s case, in any event, there were no “fair and proper procedures” for the deprivation of liberty, in breach of Article 5 § 1 of the Convention, for the following reasons.

81.  The Court notes that under Instruction no. 17 a decision on a person’s involuntary hospitalisation could only be taken by a psychiatrist. Such a decision had to be confirmed by a panel of three doctors and the patient had the right to challenge the decision in court. However, the vulnerability of persons with alleged mental disorders and the fact that they are under the control of the psychiatric facility personnel, requires clear effective guarantees against arbitrary involuntarily hospitalisation (see, mutatis mutandis, M.S. v. Croatia (no. 2), no. 75450/12, 19 February 2015), especially when, as in the present case, the confinement was initiated by a prosecutor exclusively on the basis of the applicant’s letters to State bodies in the absence of any known complaints about the applicant’s behaviour from other persons. Moreover, in the present case the panel of psychiatrists was composed of four doctors, two of whom were the same doctors who had initially decided to admit the applicant to hospital (see paragraph 13 above). This undermined the guarantees of independence of the health-care professionals, whose decision was the only basis for the applicant’s deprivation of liberty. With all respect to their professional expertise, the broad powers vested in health-care professionals are to be counterbalanced by procedures aimed at preventing indiscriminate involuntary hospitalisation (see H.L. v. the United Kingdom, § 121, and L.M. v. Latvia, § 51, both cited above).

82.  The Court further notes that although the Psychiatric Assistance Act had come into force on 4 April 2000, the national courts concluded that up to 7 September 2000 the applicant’s confinement had been in compliance with Order no. 225, which had apparently ceased to apply. Therefore, the Court considers that the applicant’s involuntary confinement between 4 April and 7 September 2000 was unlawful (see, mutatis mutandis, Mokallal v. Ukraine, no. 19246/10, § 40, 10 November 2011).

83.  Lastly, even assuming that the applicant had a mental disorder at the material time, the Court was not provided with any evidence (in particular, copies of the letters which served the basis for the applicant’s initial examination and further hospitalisation) which could confirm that at the material time the applicant did indeed present a danger to himself or to others to a degree that necessitated his hospitalisation.

84.  In view of the above, the Court concludes that in respect of the period between 19 March and 7 September 2000 – even assuming that Order no. 225, on which the applicant’s involuntary hospitalisation was allegedly based, complied with the requirements of the law in terms of the Convention – the order did not contain safeguards against arbitrary involuntary hospitalisation. Moreover, the applicant’s deprivation of liberty after 4 April 2000 when the order ceased to apply was unlawful. Finally, there is no evidence that the applicant’s behaviour at the material time was dangerous enough to warrant hospitalisation.

(ii)  Period between 7 September and 4 December 2000

85.  The Court notes that the national courts found the applicant’s hospitalisation during the period between 7 September and 4 December 2000 to have been unlawful and awarded him UAH 2,000 which at the material time corresponded to EUR 286 in compensation.

86.  The Court recalls that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. One of the characteristics of sufficient redress which may remove a litigant’s victim status relates to the amount awarded as a result of using the domestic remedy. The Court indicates that an applicant’s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 180 and 202, ECHR 2006‑V).

87.  In the applicant’s case the sum awarded is significantly lower than the awards the Court generally makes in comparable cases (see in respect of Ukraine, M. v. Ukraine (no. 2452/04, 19 April 2012, where the Court awarded EUR 12,000 in non-pecuniary damages for a violation of Article 5 § 1 of the Convention in respect of three periods of hospitalisation lasting around two to three months each). Moreover, there is no evidence that the award was paid to the applicant.

88.  In such circumstances, the Court considers that the applicant can still claim to be a victim of a violation of Article 5 § 1 of the Convention in respect of his confinement between 7 September and 4 December 2000 and adheres to the national courts’ findings about his unlawful placement in the Svatove Hospital during that period.

(iii)  Conclusion

89.  Given the lack of “fair and proper procedures” for the deprivation of liberty under Order no. 225, which the domestic authorities claimed was the legal basis for the applicant’s involuntary hospitalisation between 19 March and 7 September 2000; the failure to re-assess the applicant’s situation between 4 April and 7 September 2000 when the new law came into force; the failure of the authorities, established by the domestic courts, to comply with the domestic law between 7 September and 4 December 2000; and the lack of evidence about the danger the applicant’s behaviour posed for himself or for others during the entire period of his involuntary hospitalisation, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in the applicant’s case.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

90.  The applicant complained that he had had no effective and enforceable right to compensation for his detention in contravention of Article 5 § 5 of the Convention, which reads as follows:

“...5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.  Admissibility

91.  The parties did not submit any observations on the admissibility of this complaint.

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

B.  Merits

93.  The applicant maintained that he had had no right to compensation for his unlawful deprivation of liberty between 19 March and 7 September 2000. In particular, at the time of his admission to the Severodonetsk and Lugansk hospitals, there had been no particular legal act providing for compensation for unlawful committal to a mental health-care institution, as the Psychiatric Assistance Act had not entered into force until April 2000.

94.  The applicant stated that the sum awarded to him for the period between 7 September and 4 December 2000 had been disproportionate to his suffering and that the awards made by the Court in similar cases were much higher.

95.  The applicant considered that there had been a breach of Article 5 § 5 of the Convention in his case.

96.  The Government submitted that the national courts had awarded the applicant compensation for his unlawful confinement in a hospital between 7 September and 4 December 2000. As for the remainder of the applicant’s hospitalisation his claims were rejected as unsubstantiated. Therefore, there had been no breach of Article 5 § 5 of the Convention in the present case.

97.  The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012, with further references).

98.  Turning to the present case, the Court observes that, in view of its finding of a violation of paragraph 1 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether, prior to the present judgment, the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgment.

99.  The Court notes that none of the authorities at any stage found the applicant’s involuntary hospitalisation between 19 March and 7 September 2000 unlawful or otherwise in breach of Article 5 of the Convention. As for the period between 7 September and 4 December 2000, the Court has considered that, in view of the low amount of compensation awarded to the applicant, he still can claim to be a victim of a violation of Article 5 § 1 of the Convention in respect of his hospitalisation during that period.

100.  The Court has found a violation of Article 5 § 1 of the Convention in respect of the whole period of the applicant’s involuntary hospitalisation. It remains to be determined whether or not the applicant has an enforceable right to compensation within the domestic jurisdiction on the basis of the finding of a violation of Article 5 § 1 by this Court.

101.  The Court has found in similar previous cases that the right to compensation under Article 5 § 5 of the Convention was not ensured in the Ukrainian legal system, should the Court find a violation of any preceding paragraphs of that Article (see Taran v. Ukraine, no. 31898/06, § 89, 17 October 2013, with further references). It finds no reason to reach a different conclusion in the present case.

102.  Given that the domestic authorities did not find that the applicant’s involuntary hospitalisation between 19 March and 7 September 2000 had been unlawful, that the sum awarded to the applicant for the period between 7 September and 4 December 2000 was very small and that the applicant has no enforceable right to compensation within the domestic jurisdiction on the basis of the finding of a violation of Article 5 § 1 by this Court, the Court considers that that there has been a violation of Article 5 § 5 of the Convention.

III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

103.  The applicant complained that the length of the civil proceedings in the present case was not compatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A.  Admissibility

104.  The parties did not submit any observations on the admissibility of this complaint.

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

B.  Merits

1.  The parties’ submissions

(a)  The applicant

106.  The applicant submitted that the length of proceedings in his civil case, which, according to him, had lasted from 10 October 2001 to 12 February 2008, had been excessive, in breach of Article 6 § 1 of the Convention.

107.  The applicant listed numerous periods of inactivity in the consideration of his civil case. In particular, the proceedings had been stayed pending a decision on his legal capacity; hearings had been adjourned because of the non-attendance of his own representative and the defendants; the judge in the case had retired; and on another occasion there had been no technical equipment to hold a court hearing. The applicant considered that those reasons were not sufficient to justify the delays in scheduling the next court hearing in his case.

108.  The applicant claimed that the Government’s argument that he had protracted the proceedings by trying to familiarise himself with his medical records was unsubstantiated and did not justify the delays in consideration of his case.

(b)  The Government

109.  The Government reiterated that they were unable to comment on the total length of the proceedings in the applicant’s case, including the enforcement phase (see paragraph 63 above). As for the time taken by the courts to examine the applicant’s case, according to the Government it amounted “to seven years, six months and twenty-five days (from 17 July 2001 to 12 February 2008)”.

110.  The Government submitted that the applicant’s case had mainly concerned his lack of access to his medical file, the failure to answer his complaints and his unlawful placement in a hospital. The applicant had changed his claims throughout the proceedings and had lodged claims against new defendants. Therefore, it had been important to ensure that all parties had been present at the court hearings. According to the Government, the length of the proceedings was directly related to the essence of the applicant’s case, namely his request for access to his medical file. Such access was limited by doctors, but the applicant had introduced numerous requests to add medical documents to the court case file in an attempt to gain access to that information, thus protracting the proceedings.

111.  The Government further stated that the applicant, the representatives of three defendants in the case and a number of witnesses had been questioned during the examination of the case. The Government pointed out that the number of parties to a case had an impact on the length of the proceedings.

112.  The Government also maintained that the length of the proceedings had been affected by the behaviour of the applicant and other participants (defendants and witnesses). In particular, the parties had failed to appear in court on several occasions. The applicant had agreed to adjourn the hearings, considering that all the defendants should be present. In this connection the Government referred to the case of Dulskiy v. Ukraine (no. 61679/00, 1 June 2006), in which the Court had found that “although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must bear the consequences when it leads to delays”. The proceedings in the present case had also been stayed pending the outcome of the proceedings on the applicant’s legal capacity.

113.  The Government stated that “delays that occurred during the pre-trial investigation and breaks in the court hearings ... were caused by the necessity to examine the circumstances of the case and were aimed at proper administration of justice”. In particular, the court had demanded various documents. It had also used measures aimed at ensuring the defendants’ presence in court. The Government considered that the domestic authorities had taken all available procedural measures to prevent delays in the consideration of the applicant’s case.

114.  The Government concluded that the length of proceedings in the applicant’s case could not be considered as “unreasonable”.

2.  The Court’s assessment

115.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

116.  Turning to the facts of the present case, the Court notes that the parties indicated two different dates as the starting point for examination of the applicant’s civil case by the domestic courts (17 July and 10 October 2001). The Court will take 2 October 2001, the date mentioned in the note produced by the national court, (see paragraph 18 above) as the starting date for calculation of the length of proceedings in the applicant’s civil case.

117.  As for the date when the proceedings were terminated, the Court notes that it is unclear whether the decision in the applicant’s favour was enforced. The applicant stated that he had not received the sum awarded. However, he did not complain of the lengthy non-enforcement of the court decision in his favour, but expressly stated that the examination of his case by the domestic courts had been too lengthy. Although the court proceedings and the enforcement proceedings are stages one and two in the total course of proceedings (see, Scordino v. Italy (no. 1) [GC], cited above, § 197), given the applicant’s unambiguous complaint about the excessive length of the court proceedings, the Court considers that the total length of the proceedings complained of is therefore six years, four months and twelve days (between 2 October 2001 and 12 February 2008) for examination by the courts at three instances.

118.  The Court notes that the proceedings in question concerned the issue of the lawfulness of the applicant’s involuntary hospitalisation and his demand for access to his medical file. All three medical institutions where the applicant had stayed and the principals of those institutions at the material time were designated by the applicant as defendants. Nevertheless, the Court considers that no particular complexity is discernable in this case.

119.  As to the conduct of the parties, including the applicant’s representative, the Court acknowledges that they somewhat contributed to the length of the proceedings by failing to appear at several court hearings. The Court considers however that the applicant’s conduct alone cannot justify the overall length of the proceedings.

120.  The Court considers that in the applicant’s case numerous small delays and shortcomings contributed to the overall length of the proceedings, which became “unreasonable”: hearings were cancelled because the recording equipment was not available; the absence of various parties led to nearly a quarter of all the scheduled hearings being adjourned, with 50% of those absences attributable to the defendants; the first-instance court’s decision on the merits of 29 April 2002 was adopted seven months after the institution of proceedings, but quashed on appeal, and it then took nearly five years for the first-instance court to adopt a new decision; and a decision to conduct a forensic psychiatric examination of the applicant was adopted but later quashed, thus protracting the proceedings by almost six months. In view of the above, the Court concludes that the State authorities bear the primary responsibility for the excessive length of the proceedings in the present case.

121.  Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

122.  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

123.  The applicant claimed 150,000 euros (EUR) in respect of non-pecuniary damage.

124.  The Government maintained that there had been no violation of the applicant’s rights in the present case. Therefore his claims for compensation for non-pecuniary damage are groundless and in any event excessive.

125.  The Court, ruling on an equitable basis, awards the applicant EUR 15,000 in respect of non-pecuniary damage.

B.  Costs and expenses

126.  The applicant did not claim any compensation for costs and expenses.

C.  Default interest

127.  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 has been a violation of Article 5 § 5 of the Convention;

4.  Holds that there has been a violation of Article 6 § 1 of the Convention;

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand 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;

(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 23 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

 

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