Communicated on 14 November 2018
FOURTH SECTION
Application no. 2809/18
Volodymyr Volodymyrovych KAGANOVSKYY
against Ukraine
lodged on 4 January 2018
STATEMENT OF FACTS
The applicant, Mr Volodymyr Volodymyrovych Kaganovskyy, is a Ukrainian national who was born in 1958 and lives in Kyiv. He is represented before the Court by Ms O.O. Protsenko, Mr M.O. Tarakhkalo and Ms V.P. Lebid, lawyers practising in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 September 2012 the Podilskyy District Court of Kyiv (“the Podilskyy Court”) declared the applicant, who had been diagnosed with paranoid schizophrenia, to be legally incapable and assigned his brother, Mr K., to act as his guardian.
Since 2014 the applicant has remained in the Kyiv Psychoneurological Residential Institution (Київський психоневрологічний інтернат, “the KPRI”), a State-run institution. He receives medical treatment there.
Starting in 2016, the applicant requested the KPRI management, his guardian and the guardianship authorities to arrange a fresh psychiatric examination or to lodge a request with the courts for the restoration of his legal capacity. Having received no reply or reaction from them, on 2 February 2017 he personally lodged that request with the Podilskyy Court.
On 27 February 2017 the court returned his request unexamined on the ground that the domestic law did not allow an incapacitated person to request a restoration of his or her legal capacity.
The applicant appealed, stating that restoration of his legal capacity would afford him the possibility of leaving the KPRI forever and of living a fulfilling life. On 12 April 2007 the Kyiv City Court of Appeal quashed the above-mentioned decision and remitted the case for fresh examination, after ordering the Podilskyy Court to examine the applicant’s request on the merits.
On an unspecified date the latter court sent a letter to the applicant’s lawyer summoning the applicant to a hearing scheduled for 5 July 2017. On 19 June 2017 the applicant’s lawyer forwarded the summons to the KPRI, requesting the management to inform her whether it would be possible for the applicant to attend the hearing. The KPRI informed Mr K. accordingly.
On 23 June 2017 Mr K. requested the KPRI management in writing to prohibit the applicant from leaving the KPRI territory, allegedly because his condition had worsened.
On 28 June 2017 the KPRI personnel placed the applicant in an isolation ward. The applicant submits that there were no grounds for that, since his condition had not worsened at that time, as evidenced by the fact that he did not receive any additional treatment in the isolation ward; he did not show aggression or present any danger to himself or to others. He contends that he was placed in the ward in order to be prevented from attending the hearing of 5 July 2017.
The applicant remained in the isolation ward until 10 July 2017. For the first three days he stayed in the ward from 7 a.m. till 9 p.m.; he was allowed to leave it only in the evenings in order to sleep in his room. For the remaining period he stayed in the ward all the time, without breaks or walks. The ward consisted of four rooms, each measuring 9 sq. m, with metal bars on the windows and on the entrance door. There was also a dining room measuring 9 sq. m, a corridor and a toilet in the ward. Around 20 patients were confined in the ward. Some of them smoked, with the result that there was no fresh air.
On 5 July 2017 the Podilskyy Court returned the applicant’s request unexamined on account of his failure to attend the hearing.
On the same day the applicant’s lawyer and a journalist visited the KPRI in order to check whether the applicant was well, as his mobile phone was switched off. The KPRI management at first refused to let them see him, but then allowed them to do so in the presence of a psychiatrist, after calling the police.
On 31 July 2017 the applicant’s lawyer submitted a “report of a crime” to the local police on account of the applicant’s confinement in the isolation ward, stating that there had been no medical or legal grounds for his confinement. The police forwarded the information to the Kyiv City Department of Social Policy (“the Department”), to which the KPRI was subordinated, in order for it “to give a professional and legal assessment” of the KPRI personnel’s actions in respect of the allegations made by the applicant’s lawyer. No data were entered by the police in the Unified Register of Pre-Trial Investigations (“the Register”).
On 3 November 2017 the Department informed the applicant’s lawyer that it was not its function to give a professional and legal assessment of the KPRI personnel’s actions.
On 13 November 2017 the applicant’s lawyer again submitted the “report of a crime” to the police. Since it was again not entered in the Register, the lawyer complained to the court of the police’s inactivity.
By a decision of 29 November 2017 the Obolonskyy District Court of Kyiv ordered the police to enter the information reported by the lawyer in the Register.
On 3 January 2018 the police informed the applicant’s lawyer that they had received the decision of 29 November 2017 on 30 November 2017 and that its examination was pending.
B. Relevant domestic law
On 24 March 2016 the Ministry of Health of Ukraine adopted the Rules on the Application of Physical Restraint and/or Isolation during the Provision of Psychiatric Assistance to Persons Suffering from Mental Disorders (“the 2016 Rules”).
Rule 3 of the 2016 Rules states that isolation constitutes the separation from surrounding persons of individuals who in view of their mental condition present an immediate danger to themselves or others, with the purpose of preventing them from committing a socially dangerous act or in order to provide medical assistance.
Under Rules 5 and 7, the fact of, and justification for, isolation are recorded in the medical documentation.
Under Rule 8, a single period of isolation cannot exceed eight hours. To prolong it, a fresh decision by at least two psychiatrists is required. Every two hours a psychiatrist evaluates changes in the mental and physical condition of the patient and records them in the medical documentation. Isolation cannot be applied during the night. Isolation is terminated once the condition of a person improves to the point where he or she does not pose a danger to himself or herself or to others.
Rule 9 states that an isolation ward should measure at least 7 sq. m and should have windows large enough to allow natural light and fresh air to enter.
COMPLAINTS
The applicant complains under Article 3 of the Convention about the physical conditions of his confinement in the isolation ward from 28 June to 10 July 2017 and about the lack of an effective investigation into his confinement.
Relying on Article 5 §§ 1, 4 and 5 of the Convention, he also states that he did not agree to be placed in the isolation ward. He submits that his confinement there was neither necessary nor justified, given that it did not have any preventive or medical aim, and that it was in breach of the 2016 Rules. He further states that he did not have the right under domestic law to challenge in court the lawfulness of his confinement and to receive compensation for it.
Lastly, the applicant complains under Article 13 of the Convention that he had no effective remedies in respect of his complaints concerning his confinement in the isolation ward and under Article 2 of Protocol No. 4 on account of his confinement in the ward.
QUESTIONS TO THE PARTIES
1. Were the physical conditions of the applicant’s confinement in the isolation ward compatible with Article 3 of the Convention?
2. What was the status of the above confinement? In particular, was the applicant already lawfully detained in the KPRI within the meaning of Article 5 § 1 of the Convention and was his confinement therefore an aspect of an already existing detention, which falls to be examined under Article 3 (see Bollan v. the United Kingdom (dec.), no. 42117/98, ECHR 2000-V)? If the applicant was not detained in the KPRI, did his confinement constitute a deprivation of liberty, which falls to be examined under Article 5 § 1 of the Convention?
3. If the impugned confinement is to be examined under Article 3 of the Convention, was it compatible with that provision?
4. If the impugned confinement is to be examined under Article 5 § 1 of the Convention, was it compatible with that provision? Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his confinement, as required by Article 5 § 4 of the Convention? Did the applicant have an effective and enforceable right to compensation for his confinement in alleged breach of Article 5 §§ 1 and 4, as required by Article 5 § 5 of the Convention?
The Government are requested to provide information about the regime in the KPRI (including its internal rules) and, in particular, the regime governing the applicant’s stay there. They are further requested to provide all medical documentation concerning the applicant’s confinement in the ward and information about the physical conditions of his confinement.
Full & Egal Universal Law Academy