FIRST SECTION
DECISION
Application no. 34886/06
Viktor Ivanovich GORYACHEV
against Russia
The European Court of Human Rights (First Section), sitting on 9 April 2013 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 30 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Viktor Ivanovich Goryachev, is a Russian national, who was born in 1941 and lives in Moscow. He was initially represented by Mr A. Priyatelchuk and subsequently by Mr Yu. Yershov, lawyers practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
I. THE CIRCUMSTANCES OF THE CASE
3. In October-November 2004 the applicant, who is suffering from schizophrenia, developed an anxious and aggressive state of mind, showed signs of persecution mania, and claimed that he was “the president of the world”. On 3 November 2004 the crisis climaxed and he barricaded himself into his apartment. His former wife, who was at that moment in the apartment with her son, called the police and emergency services. The applicant resisted their entry and as a consequence he was taken to the Psychiatric Hospital no. 1 of Moscow (“the PHM”). He was admitted there against his will.
4. On 4 November 2004 a medical counselling panel composed of resident psychiatrists diagnosed the applicant with paroxysmal schizophrenia with manic-delusional syndrome. The hospital applied for judicial authorisation of the applicant’s involuntary hospitalisation under Article 29 (a) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens’ Rights Related to Its Administration 1992 (the Psychiatric Assistance Act 1992).
5. On 5 November 2004 the Simonovskiy District Court of Moscow (“the District Court”) examined the application for involuntary hospitalisation in the presence of a prosecutor, the applicant’s attending psychiatrist, and a person described as the “claimant’s representative Ms S.”. The applicant was not present. The court delivered a succinct judgment under Sections 33-36 of the Psychiatric Assistance Act 1992, authorising the applicant’s involuntary treatment. The judgment’s full facts and reasoning read as follows:
“[Mr] V.I. Goryachev was admitted to the [PHM] on 3 November 2004.
The medical counselling panel convened on 4 November 2004 and established a diagnosis of paroxysmal schizophrenia with manic-delusional syndrome.
The Head Physician of the [PHM] lodged with the court an application for the involuntary hospitalisation of [Mr] V.I. Goryachev.
“The ground for [the applicant’s] involuntary placement to the hospital under Article 29 (a) of the Psychiatric Assistance Act of 1992 was the fact that he presented a danger to himself and the others; he refused to be voluntarily admitted to hospital, which is the reason why the hospital administration requests authorisation of his involuntary hospitalisation.
Having examined the case materials, having heard the claimant’s representative Ms S., and the attending psychiatrist, [having regard] to the prosecutor’s opinion supporting the claimant’s application, the court considers that the application should be granted, because the medical counselling panel report of 4 November 2004 indicates, and the court has no doubts, that the [applicant] is suffering from a psychiatric disorder and needs treatment.”
6. The applicant was not notified of the judgment.
7. On 26 November 2004 the applicant gave his consent to psychiatric treatment. On 3 December 2004 he was discharged from the hospital because his mental health had improved.
8. On 17 November 2005 the applicant became aware that his involuntary hospitalisation had been authorised by a judgment of the District Court, and lodged an appeal against it.
9. On 2 February 2006 the Moscow City Court held the appeal hearing in the presence of the applicant and his counsel, the hospital’s representative and the prosecutor, and upheld the district court judgment in full. It reasoned that there were no reasons to annul the lower court’s decision, since it was based on sufficient reasons for involuntary hospitalisation and the District Court had taken a reasonable decision in authorising involuntary hospitalisation after taking into account the psychiatrists’ report, which stated that the applicant was suffering from paroxysmal schizophrenia and presented a danger to himself and others. The appeal judgment read, in so far as relevant, as follows:
“ ... the [lower] court considered that in the reasoning part of the medical panel’s report of 4 November 2004 it was stated that Goryachev V.I. was admitted to the psychiatric hospital on 3 November 2004 upon recommendation of a ... psychiatrist. The recommendation was based on severe psychiatric condition and unpredictable behaviour, aggression towards the relatives, danger to himself and the others, resistance to the police and emergency services, who were called by the relatives because Goryachev V.I. barricaded the door, acted aggressively, behaved unpredictably.
The court paid due attention to the conclusions of the medical panel, which established that Goryachev V.I. demonstrated symptoms of paroxysmal schizophrenia with manic-delusional syndrome and that his health condition at the time of hospitalisation presented danger to himself and the others ...
The appellant’s argument that he was not present at the [district] court hearing, in breach of his rights, cannot be considered a ground for annulment of the [first‑instance] judgment, because under section 34, subsection 2 of the Psychiatric Assistance Act 1992, [and] in line with the psychiatrist’s conclusion, Mr Goryachev could not personally take part in the examination of the issue of his commitment to hospital because of his state of mental health, which is why the [district] court examined the issue of Mr Goryachev’s hospitalisation on the premises of Psychiatric Hospital No. 1 of Moscow.”
10. The applicant applied for supervisory review and on 28 September 2006 the Presidium of the Moscow City Court uncovered procedural defects in the proceedings and annulled all previous judgments and remanded the case to the first-instance court. The decision read, in so far as relevant, as follows:
“Under Article 133 of the Civil Procedure Code a judge shall consider whether a claim may be taken for consideration within five days after it was filed with a court. A judge adopts a decision to take the claim for consideration and this decision is the basis for initiating proceedings in a civil case in a first-instance court.
However, in the materials of the [present] civil case there is no decision to take the application [for involuntary hospitalisation] of the head physician of the PHM for consideration, or the decision to schedule a hearing for consideration of a case, which is required by Article 153 of the Civil Procedure Code.
Accordingly, the [first instance] court considered the mentioned application and decided on its merits without initiating proceedings in a civil case in a first instance court, which is a serious violation of procedural rules.
Under these circumstances the decision of the [first instance] court does not comply with the provisions of civil procedure legislation, and thus, along with the decision of the Moscow City Court of 2 February 2006, must be annulled ... ”
11. On 20 March 2007 the District Court held a new hearing, in the presence of the applicant, his representative and in the absence of the hospital’s representative. The application for involuntary treatment was left without consideration, because the claimant failed to appear in court and the applicant did not insist on consideration of the merits. The decision read, in so far as relevant, as follows:
“The representative of the claimant [the PHM] did not appear for the hearing ...
The interested party Goryachev V.I. [the applicant] appeared in court, does not insist on consideration of the merits ...
The court, having heard the interested party, his representative under power of attorney Mr P., having studied the materials of the case, considers that the application must be left without consideration for the following reasons.
In accordance with Articles 222 of the Civil Code a court leaves an application without consideration if a plaintiff, who did not request the case to be considered on the merits in his absence, fails to appear in court after a repeated summons, and a defendant does not insist on consideration of the merits ...”
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure 2002
12. Article 304 of the Code of Civil Procedure of the Russian Federation (CCP), which entered into force on 1 February 2003, establishes procedural guarantees for individuals placed in psychiatric facilities. The relevant part of the Article reads as follows:
Article 304
Consideration of an application for involuntary placement to a psychiatric facility, or extension of a period of involuntary placement, of a citizen who is suffering from a psychiatric disorder.
“1. An application for involuntary placement to a psychiatric facility, or extension of a period of involuntary placement, of a citizen who is suffering from a psychiatric disorder shall be considered by a judge within five days from the date on which the proceedings were initiated. The court shall hold a hearing in the courtroom or in the psychiatric facility. The citizen has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... the application ... shall be considered by the judge in the psychiatric facility.
2. The case shall be considered with the participation of a prosecutor, a representative of the psychiatric facility which applied to the court ... and the citizen’s representative ...”
13. Article 222 of the Code of Civil Procedure establishes the grounds for leaving an application without consideration. The relevant part of the Article reads as follows:
Article 222. Leaving an application without consideration
“The court leaves an application without consideration, if: ...
a plaintiff who did not request consideration of the case in his absence repeatedly fails to appear in court and the defendant does not insist on consideration of the merits.”
B. Psychiatric Assistance Act 1992
14. The Psychiatric Assistance Act 1992 in section 5, subsection 2 provides a list of the rights of persons suffering from a psychiatric disorder, including the right to be informed of their rights, the nature of their disorder and available treatment, the right to the least restrictive methods of treatment, and the right to the assistance of a lawyer, legal representative or other person. Section 5, subsection 3 prohibits restrictions on the rights of persons suffering from a psychiatric disorder solely on the basis of their diagnosis or their admission to a specialised facility.
15. Section 32 of the Act specifies the procedure for the examination of patients involuntarily placed in a psychiatric facility:
Section 32
“1. A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Act shall be subject to compulsory examination within 48 hours by a panel of psychiatrists of the hospital, who shall take a decision as to the need for hospitalisation. ...
2. If hospitalisation is considered necessary, the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person’s further confinement in the hospital.”
16. Sections 33-35 set out the procedure for judicial review of applications for the involuntary in-patient treatment persons suffering from a psychiatric disorder:
Section 33
“1. Involuntary hospitalisation for in-patient psychiatric treatment on the grounds laid down in section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital.
2. An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is confined ...
3. A judge who accepts an application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.”
Section 34
“1. An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge, on the premises of the court or hospital, within five days of receipt of the application.
2. The person has the right to personally participate in the hearing concerning his involuntary placement to a psychiatric facility or the extension of a period of his involuntary placement. In cases when according to the information provided by the representative of the psychiatric facility the citizen’s mental state prevents his personal participation in the court hearing ... , the application ... shall be considered by the judge in the psychiatric facility ... ”
Section 35
“1. After examining the application on the merits, the judge shall either grant or refuse it. ... ”
C. Constitutional Court of the Russian Federation
17. In its judgment of 27 February 2009 (no. 4-P) concerning legal incapacitation of individuals suffering from a psychiatric disorder, the Constitutional Court pronounced its opinion on deprivation of liberty in such cases. Its relevant part reads as follows:
“2.1 ... [A]s follows from Article 22 of the Constitution of the Russian Federation protecting everyone’s right to liberty and security of person, a person suffering from a psychiatric disorder may be deprived of liberty for the purpose of involuntary treatment only by a court decision made within a procedure prescribed by law. ... It implies that judicial protection for this person should be fair, full and effective, including his right to qualified legal assistance and the right to have the assistance of defence counsel of his own choosing (Article 48 of the Constitution of the Russian Federation) ... ”
18. In its judgment of 5 March 2009 (544-O-P) the Constitutional Court interpreted certain provisions of the Psychiatric Assistance Act and the Code of Civil Procedure concerning involuntary hospitalisation of persons suffering from mental disorders. The judgment established that a person may be involuntarily admitted to a psychiatric facility in case of medical emergency, but judicial authorisation of the hospitalisation should follow within forty-eight hours. The Constitutional Court also stressed that the courts are under an obligation to verify all the evidence presented to them, rather than formally sanction applications lodged by psychiatric hospitals.
COMPLAINTS
19. The applicant complained under Article 5 that his rights were violated by involuntary hospitalisation to a psychiatric facility. He also submitted other complaints under Articles 3, 6 and 13 of the Convention.
THE LAW
20. The applicant complained that the proceedings resulting in his involuntary placement to and treatment in a psychiatric hospital violated Article 5 § 1 of the Convention, which in the relevant part 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 ... ”
21. The Government argued that the applicant’s complaint was manifestly ill-founded or, alternatively, that there was no violation of Article 5 § 1 of the Convention. They maintained that the applicant’s involuntary hospitalisation was necessitated by his medical condition and that national authorities duly complied with the procedure established in the domestic law.
22. The applicant maintained his complaints.
23. The Court considers it unnecessary to further examine the admissibility of the present application for the reasons which follow.
24. The Court notes that the authorisation for the applicant’s hospitalisation of 5 November 2004 was annulled by the Presidium of the Moscow City Court on 28 September 2006 and the case was remanded to the trial court. On 20 March 2007 the Simonovskiy District Court of Moscow left the hospital’s application without consideration, because the hospital’s representative repeatedly failed to appear in court and did not ask for consideration of the application in their absence. The applicant did not object to leaving the application without consideration or insist on examination on the merits.
25. The Court will therefore ascertain whether the applicant’s apparent unwillingness to pursue the domestic proceedings for the review of his hospitalisation may lead it to decide to strike the application out of its list of cases in application of Article 37 of the Convention, which in so far as relevant provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires ...”
26. Nothing in the parties submissions in the present case indicates that the applicant does not intend to pursue his application and thus Article 37 § 1 (a) of the Convention does not apply. Further, the Court observes that the matter could not be considered resolved within the meaning of Article 37 § 1 (b) of the Convention (see for the criteria developed in the Court’s case-law on that point, inter alia, Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 97, ECHR 2007‑I; and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007).
27. However, the above-mentioned unwillingness of the applicant to pursue the proceedings on the domestic level may lead the Court to conclude that, “for any other reason ... it is no longer justified to continue the examination of the application” and that the application should therefore be struck out of the list in application of Article 37 § 1 (c).
28. It is clear from the latter provision that the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006‑XIV, F.I. and Others v. the United Kingdom (dec.), no. 8655/10, 15 March 2011, and summary of case-law on the matter in Atmaca v. Germany (dec.), no. 45293/06, 6 March 2012).
29. In particular the Court had previously considered appropriate to strike applications from the list of cases in the light of lack of diligence on the part of applicants (see, for example, Hun v. Turkey (striking out), no. 5142/04, 10 November 2005, and Mürrüvet Küçük v. Turkey (striking out), no. 21784/04, 10 November 2005).
30. In the present case the Court will examine whether the applicant’s conduct demonstrated necessary diligence in pursuance of his complaints or the lack of it.
31. In this respect the Court notes that after the applicant was discharged from the psychiatric facility on 3 December 2004 he undertook to obtain review of lawfulness of his hospitalisation on the domestic level and lodged an appeal against the authorisation issued by the Simonovskiy District Court of Moscow on 5 November 2004. The appeal was dismissed on 2 February 2006 by the Moscow City Court.
32. Following this final decision on the domestic level he lodged an application with the Court on 30 July 2006. However, concurrently the applicant lodged a supervisory review complaint with the Presidium of the Moscow City Court aiming at reconsideration of his case.
33. While his application was pending, on 28 September 2006 the Presidium of the Moscow City Court acknowledged defects in the proceeding before the lower courts, annulled all previous decisions, and ordered new consideration of the case (see paragraph 10 above).
34. On 20 March 2007 the Simonovskiy District Court of Moscow held a new hearing concerning the applicant’s involuntary hospitalisation. However, the hospital’s application for involuntary hospitalisation was left without consideration under Article 222 of the Civil Procedure Code because the plaintiff, who did not request consideration of the case in his absence, repeatedly failed to appear in court and because the defendant (the applicant) did not insist on consideration of the merits.
35. In this regard the Court notes that under Articles 32-34 of the Psychiatric Assistance Act 1992 and in line with judgments of the Constitutional Court (paragraphs 17-18 above), a court considering an application for involuntary hospitalisation is under an obligation to fully and closely scrutinize all the evidence and lawfulness of hospitalisation as well as to ensure respect of a person’s procedural rights.
36. The Court further notes that it would have been impossible for the Simonovskiy District Court of Moscow to leave the case without consideration if the applicant refused to it and there was no need for him to provide any reasons for such refusal. But in view of the position taken by the applicant the domestic court could not engage in the comprehensive review and had no other procedural avenue of dealing with the case.
37. It also appears significant that the applicant was duly represented during this hearing by an attorney, who was also at that time his representative before the Court. Therefore the applicant had been or should have been aware of the consequences of his actions.
38. In the light of the annulment of the initial judicial authorisation of hospitalisation by the Presidium of the Moscow City Court on 28 September 2006 and the subsequent leaving the case without consideration by the Simonovskiy District Court of Moscow on 20 March 2007, there was no final and standing judicial decision reviewing lawfulness of the applicant’s hospitalisation.
39. The Court reiterates that it would be unreasonable to expect the applicant to bring his complaints to the Court before his position in connection with the matter had been finally settled at domestic level in line with the principle of subsidiarity, according to which it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the effectiveness of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, § 141, 13 December 2012 and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 164, ECHR 2009).
40. The Court is aware that the applicant lodged his complaint on 30 July 2006 and before the relevant developments in September 2006-March 2007 mentioned above. However, it finds it significant that the applicant and his representative (before this Court and the domestic courts) had recourse to supervisory review proceedings. Essentially, by lodging a supervisory review complaint they demonstrated an expectation to have the case reconsidered at the domestic level. The annulment of the lower courts’ judicial decisions by the Presidium of the Moscow City Court on 28 September 2006 afforded such possibility.
41. Nevertheless, on 20 March 2007 during the hearing of the Simonovskiy District Court of Moscow the applicant and his representative chose not to seek resolution of the matter on the domestic level, while they had an opportunity to do it despite unwillingness of the psychiatric hospital to further participate in the proceedings. By failing to insist on consideration of the merits of the case, the applicant effectively consented to termination of the proceedings.
42. In the light of the conclusions presented above it must be inferred that the applicant had freely chosen not to pursue his complaints through a reasonable legal avenue on the domestic level and thus himself prevented comprehensive review of his hospitalisation and adoption of a final decision in his case. Therefore he failed to demonstrate necessary diligence on his part and the Court considers that it is no longer justified to continue the examination of the application. Furthermore, the respect for human rights as defined in the Convention and the Protocols thereto does not require continued examination of the application.
43. The application should therefore be struck out of the list in application of Article 37 § 1 (c) in so far as it relates to the complaint under Article 5 of the Convention.
44. The applicant also complained under Articles 3, 6 and 13 of the Convention about various aspects of the proceedings leading to his involuntary hospitalisation, his treatment in a psychiatric facility, and lack of effective remedy at his disposal. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that the application in this part must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns involuntary hospitalisation to a psychiatric facility;
Declares the remainder of the application inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy