CASE OF X v. RUSSIA

THIRD SECTION

CASE OF X v. RUSSIA

(Application no. 3150/15)

JUDGMENT

STRASBOURG

20 February 2018

FINAL

20/05/2018

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

In the case of X v. Russia,

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

Helena Jäderblom, President,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 30 January 2018,

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

PROCEDURE

1. The case originated in an application (no. 3150/15) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr X (“the applicant”), on 30 December 2014. 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 his father Mr Y.P., who had been granted leave to present the applicant’s case by the President of the Section under Rule 36 § 4 (a) of the Rules of Court. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged that his involuntary placement in a psychiatric facility had been unlawful in the light of the failure of the national authorities to meet the substantive requirements for involuntary hospitalisation and the procedural defects in the judicial authorisation of his hospitalisation.

4. On 13 May 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1995 and lives in Moscow.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

7. On an unspecified date the applicant was diagnosed with schizotypal personality disorder and was undergoing voluntary treatment for his condition.

8. On 24 April 2014 he was apprehended by the police on the street in the Bibirevo district of Moscow. The police report stated that the applicant had been “harassing an underage teenager” without providing a detailed account of the events. It is not clear from the material available to the Court whether the intervention by the police had been triggered by any complaint from that teenager or any other person.

9. He was then taken to the local police station and later transferred by the psychiatric ambulance service to the Central Clinical Psychiatric Hospital of the Moscow Region (ГКУЗ МО «Центральная клиническая психиатрическая больница») (“the Hospital”). The report of the ambulance service stated the following:

“[T]aken to [a police station] for [on several occasions] sexually harassing ... [and] stalking an underage teenager and not allowing him to walk away [from such encounters] ...

Mentally alert. Aware of his surroundings. Unwilling to engage in contact. Reserved, secretive, tense, but during the conversation acknowledges the existence of the teenager and the repeated instances of sexual harassment ...”

10. The psychiatrist who admitted the applicant to the Hospital made the following record:

“Tense, exhibits [exaggerated and pretentious facial] mannerisms. No eye contact. Selective in answering questions, answers [only] after some pause. Asks for some time to “spend with boys”. Distracted. Not reflective [about his mental state]. Diagnosis: schizotypal disorder.”

11. On 25 April 2014 the applicant was examined jointly by the attending psychiatrist and the head of one of the Hospital’s departments. They made the following record:

“Follow-up patient history: According to the patient, about three years ago [in 2011] he started feeling the desire to be in contact with boys, to look like a girl. He dyed his hair to attract attention. He started watching television shows to observe how a woman moves; he uses make-up, dresses up. Since the beginning of last year he has become fixated on these thoughts, and started contemplating the possibility of gender reassignment. During this period he has had mood swings, has been anxious, irritable, [and had] difficulties in focusing his attention. Given these circumstances he was hospitalised in [a psychiatric facility]. After his discharge his condition improved. He continued his studies. In the past year he has started paying more attention to his appearance, using lipstick, wearing women’s jewellery, [and has] sometimes tried on women’s clothing at home. He became acquainted with a boy, a ninth grade student, during one of his walks in the city. He started meeting him, talking to him, tried to ‘have physical contact’, touched his hand, fondled it. Had a desire to be ‘caressed’.

According to the supporting documents – [a report to the head of the police station, the order for a psychiatric ambulance] – he was apprehended by police officers on the street, where he had been sexually harassing an underage teenager, having stalked him for four months, repeatedly not allowing him to walk away from such encounters. Transferred to [the police station] where he was examined by a psychiatrist on duty, subsequently involuntarily admitted [to the psychiatric hospital] ... During his examination in the reception ward he signed [a document consenting] to treatment ...

Psychiatric state: Self-aware. Subdued mood. Somewhat distracted. Looks untidy, unkempt hair, dyed ginger. Soft, high-pitched voice. Indisposed to conversation, replies [only] after some pause, does not answer certain questions, asks for some questions to be repeated. While replying he gulps with an expression of pain. Excessive facial expressions during conversation. States that he feels uncontrollable attraction to boys, to be liked by them, to have contact with them. Requests a “space to meet with a boy”. Blushes while saying this. Considers himself a “female person”. Considers in-patient treatment necessary for himself in order to improve his mood, reduce irritability and “perplexity of thoughts”. Denies hallucinations. Denies suicidal thoughts.

Diagnosis: Schizotypal disorder.”

12. On the same day the applicant, after conferring with his father, demanded to be discharged from the Hospital; however, his request was denied.

13. On the same day a medical counselling panel composed of the resident psychiatrists of the Hospital examined the applicant and diagnosed him with organic delusional disorder. The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The full text of the panel’s report and conclusion read as follows:

“25.04.2014 12.00 Panel examination due to refusal of treatment.

Lethargic, sluggish. Subdued mood. Attributes [the cause of] his subdued mood to [his] inability to meet up with a boy he is attracted to. Unsure whether that boy also is attracted to him. Goes across the city to see that ‘boy’. He wants to be ‘treated gently, to be caressed, fondled’. Admitted that he goes to women’s clothing stores [because he likes the clothing], which is ‘soft and bright’. For a long time has been visiting the neighbourhood where he met the boy; previously he had been going to other neighbourhoods to watch boys.

Diagnosis: Organic delusional disorder.

Conclusion: needs involuntary placement and treatment, in accordance with section 29(a) and (c) of the 1992 Psychiatric Assistance Act.”

14. On the same day the Hospital applied for judicial authorisation of the applicant’s involuntary hospitalisation under section 29(a) and (c) of the Psychiatric Assistance Act 1992, since the applicant was a danger to himself or others and there was a risk of significant damage to his health owing to the deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The application restated the findings of the earlier joint examination (see paragraph 11 above) and set out the following conclusions:

“On 25 April 2014 was examined by the panel of resident psychiatrists of [the Hospital] and diagnosed with organic delusional disorder.

The patient needs to be involuntarily hospitalised and treated under section 29 (a) and (c) of the Psychiatric Assistance Act of 1992.

The examination and treatment of the patient can take place only under an in-patient regime ...

[It is requested]

1. [That authorisation be granted for the applicant’s involuntary placement in a psychiatric facility];

2. That the request for authorisation be assessed on the premises of the Hospital, since because of his mental state [the applicant] cannot be produced in court ...”

15. On 5 May 2014 the Savyolovskiy District Court of Moscow (Савёловский районный суд г. Москвы) held a hearing on the premises of the psychiatric facility. The hearing was attended by the applicant, his father and mother, the attending psychiatrist Mr P., the head of one of the Hospital’s departments (Mr L.), the representative of the Hospital (Mrs K.) and the local prosecutor.

16. During the hearing Mr P., Mr L., and Mrs K. generally advanced the same arguments as those presented in the application for judicial authorisation (see paragraph 14 above), maintaining that the applicant needed to be hospitalised and treated, that he posed a danger to himself and others, and that there was a risk of significant damage to his health in the event of a deterioration in or aggravation of his psychiatric condition in the absence of psychiatric assistance. Mr P. also reported that the applicant considered himself to be healthy and refused treatment, while at the same time “being confused, replying to questions with other questions, and being exceptionally insincere”. They also emphasised the fact that the applicant had been apprehended by the police for sexually harassing an underage person.

17. The applicant’s parents had conflicting opinions about the need for hospitalisation. The mother stated that the applicant did “not feel well” and had been “irritable lately”, that her communication with him was restricted by the father and that she had not seen him since 10 February 2014. In her opinion, in-patient treatment was necessary. The applicant’s father, acting as his representative, objected to involuntary hospitalisation and did not agree that his son posed any danger to himself or to others. He stated that Mr X was voluntarily following the treatment prescribed by a neurologist and a psychiatrist, that his condition showed signs of improvement and that hospitalisation would interfere with his studies and future career. In his opinion his son had only tried to become friends with “the boy”, not sexually harass him. He furthermore stated that the police report referred to by the Hospital contained no information on the alleged sexual harassment or other unlawful acts.

18. The applicant stated the following during the hearing:

“I refuse treatment and feel myself to be well ... There is nothing special about me. I dyed my hair ginger because that colour suits me, I do not like black. I only wanted to become friends with that boy, nothing special; I tried no clothes on; that is all nonsense. [I want to finish my studies]; I have only two months left and I do not want to be in hospital. I made no statements concerning trying on womens’ clothing or changing gender.”

19. The District Court, having considered the above-mentioned statements, medical evidence, a police report, and the applicant’s educational records, the same day authorised the applicant’s involuntary hospitalisation. The authorisation issued by the court in a succinct manner stated that, while the applicant and his father objected to hospitalisation, the evidence presented by the medical panel of the Hospital demonstrated that the applicant was a danger to himself and others and that his mental state might deteriorate in the absence of treatment.

20. The applicant’s father appealed. The statement of appeal indicated that the District Court had relied exclusively on the evaluation of the resident psychiatrists, had not addressed inconsistencies in evidence, had failed to substantiate the assertion that the applicant’s condition was severe and that he posed a danger to himself or others, and, lastly, had failed to demonstrate the absence of any alternative treatment options.

21. On 20 May 2014 the applicant was discharged from the Hospital after an improvement in his mental state.

22. Certificates issued by the local police station in May 2014 stated that the applicant had not committed any administrative or criminal offence and that he had been referred to psychiatrists because of mental disorders.

23. On 18 July 2014 the appeal was dismissed by the Moscow City Court (Московский городской суд). The relevant parts of the decision read as follows:

“... The case file shows that on 24 April 2014 [a policeman apprehended the applicant]. The police report indicates that [he] had been harassing underage persons ...

Since the behaviour of [the applicant] exhibited symptoms of mental disorder, [he was taken to the Hospital], where he initially agreed to hospitalisation, stated that since 2013 [he had been subject to] mood changes, and that he [suffered from] anxiety, irritability and difficulties in focusing his attention. Previously he had been hospitalised in [a psychiatric facility]; following his discharge from [that facility] his mental state improved, [and] he had continued his studies. However during the last year the condition re-appeared.

[According to the medical evidence] on 25 April 2014 [the applicant] was lethargic, sluggish, and had a subdued mood, which he attributed to his inability to meet up with a boy he is attracted to.

During the hearing the representative of [the Hospital] stated that [the applicant] had been brought in in a delusional state, and had talked about ‘a boy’ who did not [in fact] exist. In this state he had been travelling long distances, presenting a danger to himself and others ...

The evidence [submitted to the first-instance court] substantiating the need for involuntary hospitalisation – including information on previous treatment for his delusional disorder and somatic condition (a second-degree disability) – constituted legal grounds for involuntary hospitalisation.

Since the reaching of conclusions regarding the mental health of a person is within the exclusive competence of psychiatrists, the [district] court reasonably gave due regard to the report on the need to provide in-patient treatment to [the applicant] ...

The appeal does not refer to any factual information demonstrating that the relatives of [the applicant] or other persons are capable of ensuring his and other persons’ safety without an in-patient treatment regime ...”

24. The applicant’s subsequent attempts to initiate a review of the above-mentioned judicial decisions proved unsuccessful.

II. RELEVANT DOMESTIC LAW

25. The relevant provisions of the Russian legislation are reproduced in Zagidulina v. Russia, no. 11737/06, §§ 21-30, 2 May 2013.

THE LAW

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

26. The applicant complained that his involuntary placement in a psychiatric facility had not been lawful within the meaning of Article 5 § 1 of the Convention owing to the failure of the national authorities to meet the substantive requirements for his involuntary hospitalisation. The relevant part of the above Article 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:

...

(e) the lawful detention ... of persons of unsound mind ...”

27. The Government contested that argument.

A. Admissibility

28. 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

29. The applicant maintained that his involuntary hospitalisation had been unlawful. In his opinion the domestic authorities had failed to properly substantiate their decision to hospitalise him by referring to relevant and proven facts and by establishing that his disorder was severe, as prescribed by the domestic law and the Convention. He further pointed to various alleged procedural irregularities, which in his opinion had tainted the proceedings in question.

30. The Government maintained that the applicant’s involuntary hospitalisation had been justified for purely medical reasons; in their opinion his condition had been severe, as proven by his absurd and aggressive conduct towards a teenager. They maintained that his treatment had lasted for only as long as necessary, and that he had been released once his condition had improved. In the Government’s opinion a court could not evaluate the psychiatric condition of persons whose involuntary hospitalisation had been requested because the determination of medical grounds for hospitalisation belonged exclusively to psychiatrists. They maintained that the hospitalisation had satisfied all procedural and substantive requirements, and that initially the applicant had consented to it in order to improve his mood and to reduce his irritability and the perplexity of thoughts. They stressed that he had been involuntarily hospitalised not only on the basis of a medical opinion, but also a judicial authorisation. The domestic courts had studied in detailed the available medical evidence and submissions of Mr L., the head of one of the Hospital’s departments, who had maintained that the applicant was delusional, travelled long distances and posed a danger to himself and the others.

31. The Court reiterates that a person’s physical liberty is a fundamental right protecting the physical security of an individual (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X). While Article 5 § 1 of the Convention sets out a list of exceptions which might restrict that right (Article 5 § 1 (a) to (f)), those exceptions must be interpreted narrowly, and in no circumstances may they allow arbitrary deprivation of liberty (see Vasileva v. Denmark, no. 52792/99, § 33, 25 September 2003).

32. The Court further notes that individuals suffering from a mental illness constitute a particularly vulnerable group and that any interference with their rights must therefore be subject to strict scrutiny. Only “very weighty reasons” can justify a restriction of their rights (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, and Zagidulina, cited above, § 52). In that regard the Court reiterates that the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest (see Karamanof v. Greece, no. 46372/09, § 42, 26 July 2011, with further references).

33. In the present case, the parties did not dispute that the applicant’s involuntary placement in a psychiatric facility had entailed a deprivation of liberty.

34. In Winterwerp v. the Netherlands (24 October 1979, § 39, Series A no. 33), the Court set out three minimum conditions which have to be satisfied for the “detention of a person of unsound mind” to be lawful within the meaning of Article 5 § 1 (e): except in emergency situations the individual concerned must be reliably shown to be of unsound mind – that is to say a true mental disorder must be established before a competent authority on the basis of objective medical evidence; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.

35. The Court has also consistently held that the notion of “lawfulness” in the context of Article 5 § 1 of the Convention may have a broader meaning than in the national legislation and that it presumes a “fair and proper procedure”, including the requirement “that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary” (ibid., § 45). In that context the domestic proceedings must themselves offer the applicant sufficient protection against a potentially arbitrary deprivation of liberty (see Shtukaturov v. Russia, no. 44009/05, § 113, 27 March 2008).

36. The parties, while disagreeing on various aspects of the procedure which had resulted in the applicant’s involuntary hospitalisation, did not dispute that the proceedings had been secured by certain basic procedural safeguards of the Russian legislation aimed at precluding arbitrariness. Specifically, unlike in certain cases previously considered by the Court, the domestic authorities complied with the prescribed time-limits for various procedural stages (contrast Ruslan Makarov v. Russia, no. 19129/13, §§ 28‑30, 11 October 2016), the applicant was present at the hearing and was given an opportunity to present his position (see Zagidulina, cited above, §§ 61-62) and he benefited from representation by his father, who also advanced arguments against the hospitalisation (see Mifobova v. Russia, no. 5525/11, §§ 60-61, 63-64, 5 February 2015).

37. In the present case the Court does not find itself compelled to examine in detail the procedure in respect of the judicial authorisation of the applicant’s involuntary hospitalisation, because in any event it did not satisfy the second Winterwerp criterion mentioned above.

38. In the present case the medical professionals and the courts were satisfied that the applicant was suffering from a “true mental disorder” – namely, schizotypal and organic delusional disorders; they arrived at this conclusion on the basis of medical evidence, notably the applicant’s diagnosis prior to the material events (see paragraph 7 above), the record of the applicant’s admission to the Hospital (see paragraph 10 above), the results of a joint examination by the attending psychiatrist and the head of one of the Hospital’s departments, and the conclusion of an evaluation by the panel of psychiatrists (paragraphs 11 and 13 above).

39. The second Winterwerp criterion requires that the mental disorder must be of “a kind or degree” warranting compulsory confinement. The Court has repeatedly held that a certain deference must be afforded to the national authorities, whose task is to evaluate the evidence presented to them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Luberti v. Italy, 23 February 1984, § 27, Series A no. 75). In this connection the Court notes the Government’s argument that the determination of medical grounds for involuntary hospitalisation belongs exclusively to psychiatrists and not the courts. In this regard the Court stresses that it is not its task to reassess various medical opinions, but rather to ascertain for itself whether the domestic courts, when taking the contested decision, had at their disposal sufficient evidence to justify the detention (see Herz v. Germany, no. 44672/98, § 51, 12 June 2003).

40. Turning to the present case the Court notes that the grounds for the applicant’s involuntary hospitalisation were that 1) he was a danger to himself and others and 2) his mental state might significantly deteriorate in the absence of treatment (paragraphs 14 and 19 above).

41. It is apparent that in the opinion of the psychiatrists and the domestic authorities the fact that the applicant travelled across the city to see a certain teenager, sought contact with that teenager, and “sexually harassed” him constituted the main indication that he was a danger to himself and others (see paragraphs 8-11, 13-14 and 23 above). The applicant and his representative acknowledged that he had sought contact with that teenager, but maintained that the purpose of it had not been that of harassment; rather, it had been an attempt to establish friendship (paragraphs 17-18 above). The Court has no doubt that sexual harassment constitutes behaviour warranting the utmost concern and appropriate prompt actions on the part of the domestic authorities, but the available material provides little to no grounds for classifying the applicant’s conduct as such. The police report labelling unspecified actions as “harassment” did not indicate whether the intervention by the police had been triggered by any complaint about the applicant’s behaviours (see paragraph 8 above). Neither the ambulance report nor the record of the joint examination in the Hospital referring to “sexual harassment” provided a detailed account of any relevant events, specific behaviour or utterances. At the same time the certificates issued by the local police station clearly stated that the applicant had committed no criminal or administrative offence (see paragraph 22 above). Under these circumstances the courts should not have confined themselves to a reiteration of the above allegations, but should have engaged in independent scrutiny of whether the applicant indeed posed any real danger to anyone. The fact that the applicant, in pursuit of his desires, travelled to another district of the city could hardly be considered as an indication of him being a danger to himself.

42. The Court notes that all of the above medical reports characterised the applicant as anxious, irritable, secretive, feeling low, distracted, confused, insincere, reserved, tense. None of these characteristics – in the absence of evidence or indications of verbal or physical aggression, self‑mutilation, suicide, etc. – suggests that the applicant poses a danger to anyone. It must be further noted that all the applicant’s medical records paid detailed attention and attached decisive importance to the applicant’s change of hair colour, his interest in women’s clothes, jewellery, and make‑up, and his desire to be fondled and caressed and “to spend time with boys”. It is not for the Court to express an opinion on whether these aspects of the applicant’s life, taken alone, can be said to demonstrate the existence of any mental disorder; however, in any event it does not find them as such to constitute compelling proof that the applicant posed a danger to anyone.

43. As regards the second ground for the applicant’s hospitalisation, the Court observes that the available medical evidence and judicial decisions contain no explanation whatsoever of why and how the applicant’s mental state might have significantly deteriorated in the absence of involuntary inpatient treatment.

44. In the Court’s opinion neither the unspecified risks to the applicant’s mental health, nor the long journeys across the city, nor the repeated attempts to establish either friendly or romantic relationships were capable of proving that the applicant’s condition was of “a kind or degree” warranting compulsory confinement. The medical professionals and the domestic courts adduced no sufficient and reliable evidence for their decision to hospitalise the applicant against his will.

45. Given the above-mentioned conclusion the Court does not find it necessary to examine whether the validity of the applicant’s continued confinement depended upon the persistence of a disorder.

46. There has accordingly been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

47. The applicant complained of procedural defects in the judicial authorisation of his hospitalisation. He relied on Article 5 § 4 of the Convention.

48. The Government contested that argument.

49. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

50. Having regard to the finding relating to Article 5 § 1 (see paragraph 46 above), the Court considers that it is not necessary to separately examine whether, in this case, there has been a violation of Article 5 § 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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

52. The applicant claimed 28,000 euros (EUR) in respect of non‑pecuniary damage.

53. The Government considered this amount to be unsubstantiated and in any event excessive.

54. The Court, having regard to the circumstances of the present case and acting on an equitable basis, awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

55. The applicant, who was granted legal aid, did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.

C. Default interest

56. 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 separately examine the complaint under Article 5 § 4 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsHelena Jäderblom
RegistrarPresident

 

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