Communicated on 16 March 2016
THIRD SECTION
Applications nos 7207/15 and 38138/15
Vladimir Yuryevich MISHARIN against Russia
and Fedor Viktorovich KUPRESSOV against Russia
lodged on 9 April 2015 and 16 July 2015 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Vladimir Yuryevich Misharin, is a Russian national, who was born in 1979 and lives in the village of Vylgort in the Komi Republic.
The applicant in the second case, Mr Fedor Viktorovich Kupressov, is a Russian national, who was born in 1979 and lives in Tomsk.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 7207/15 by Mr Misharin
On 1 March 2012 the applicant felt heart pain and called an ambulance. The ambulance first brought him to a general hospital. Once there, it was established that the applicant was inebriated; the ambulance thus brought the applicant to the Komi Republic substance-abuse treatment clinic (Коми Республиканский наркологический диспансер) (“the Komi clinic”) instead, which admitted him. The applicant was diagnosed with “chronic alcoholism” and underwent inpatient treatment in the Komi clinic. In the applicant’s submission, he spent two days there; according to the Komi clinic’s data, the treatment lasted for ten days.
On 11 March 2012 a medical commission composed of doctors of the Komi clinic decided that the applicant required outpatient supervision by an addiction specialist (учет врача-нарколога).
On 27 March 2012, after the applicant’s discharge, the administration of the Komi clinic added the applicant’s name to the list of persons requiring outpatient supervision by an addiction specialist on account of alcoholism (“the list”).
The applicant wished to have his name removed from the list as it affected his daily life, in particular by creating obstacles to obtaining or renewing his driving licence and taking up certain jobs.
The applicant brought proceedings before the Syktyvdinskiy District Court, the Komi Republic (“the Syktyvdinskiy District Court”) requesting a declaration of his diagnosis with alcoholism as unlawful and to have his name removed from the list. He also claimed non-pecuniary damages.
The Syktyvdinskiy District Court ordered a medico-legal expert examination. A commission of experts looked at the applicant’s medical file. However, the applicant did not undergo a medical check-up.
On 31 July 2014 an expert report was issued stating that the applicant suffered from “alcohol use disorder of medium degree, progressing course of the disease, binge‑drinking” and confirming that the Komi clinic had given him the correct diagnosis. The report stated that the disease was incurable, stable remission being the best possible outcome of any treatment.
On 2 September 2014 the Syktyvdinskiy District Court dismissed the applicant’s claims in full. It found it established that the applicant had been suffering from a chronic mental illness, namely alcohol use disorder, and accordingly had required constant psychiatric attention in the form of outpatient supervision. The Syktyvdinskiy District Court reasoned that pursuant to Instruction of the Ministry of Health of the Soviet Union no. 704 of 12 September 1988 (“Instruction no. 704”) every person suffering from substance abuse, except for those who had applied to an addiction specialist anonymously or those seeking treatment from a “self‑sustained outpatient addiction specialist’s office” (хозрасчетная наркологическая амбулатория), are subject to outpatient addiction specialist supervision and appear on the list. In order to be delisted, a person should demonstrate stable remission to the medical commission of a clinic (наркологический диспансер). A person had to have been in stable remission for three years in order to be eligible to have his or her name removed from the list. The Syktyvdinskiy District Court found no reasons to question the conclusions of the expert report dismissing as irrelevant the fact that the experts had not examined the applicant while compiling it. The applicant’s argument that he had not been forewarned of the legal repercussions of having his name put on the list had been dismissed as unsubstantiated.
On 27 October 2014 the Supreme Court of the Komi Republic, having repeated the Syktyvdinskiy District Court’s reasoning, dismissed the applicant’s appeal against the judgment of 2 September 2014.
The applicant brought a cassation appeal against those two judgments.
On 26 February 2015 a judge of the Supreme Court of the Komi Republic declared the applicant’s cassation appeal inadmissible.
2. Application no. 38138/15 by Mr Kupressov
In November 2011 the applicant voluntarily underwent treatment in connection with alcohol use disorder in the substance-abuse treatment department of the Tomsk psychiatric hospital. After twelve days of inpatient treatment the applicant was diagnosed as “healthy” and discharged.
In 2012 the applicant underwent treatment for his substance‑abuse issues provided by a private non‑commercial organisation and became “clean”. In the applicant’s submission, he states that he has not taken alcohol since then.
In October 2014 the applicant found out that his name appeared on the list of those requiring outpatient supervision by an addiction specialist on account of alcoholism (“the list”) of the Tomsk Region substance-abuse treatment clinic (Томский областной наркологический диспансер) (“the Tomsk clinic”) and wrote a letter to the Tomsk clinic’s administration arguing that he had never consented to any supervision.
Having received no reply, the applicant brought civil proceedings before the Sovetskiy District Court, Tomsk (“the Sovetskiy District Court”) against the Tomsk clinic seeking delisting. He emphasised that his rights, for instance his right to drive a vehicle or to join the army, had been adversely affected because his name appeared on the list, and that he had never consented to an addiction specialist’s supervision.
The Sovetskiy District Court ordered the Tomsk psychiatric hospital to perform an expert medical examination of the applicant and to determine whether the applicant had required an addiction specialist’s supervision in January 2012 and whether he was still in need of such supervision in 2015.
On 28 January 2015 the expert report was drawn. It established that in November 2011 the applicant had suffered from alcohol use disorder of the second degree; that in January 2012, when his name had been added to the list, he had shown signs of the alcohol use disorder; and that the disorder was of a chronic nature. The question of whether the applicant required an addiction specialist’s supervision in 2015 remained unanswered.
On 18 February 2015 the Sovetskiy District Court dismissed the applicant’s claims. It reasoned, in particular, as follows:
“On the basis of a systemic analysis of the aforementioned norms of the legal instruments, the court disagrees with the plaintiff’s conclusion that individuals, including those suffering from chronic alcoholism, could be put under outpatient supervision only with their immediate consent to be subject to [such] supervision. The reason for being put under supervision by a substance-abuse treatment clinic is one of these diagnoses: chronic alcoholism, drug addiction, toxic substances addiction[;] in no way [is there] a requirement [to have] a patient’s consent. It is possible to receive medical assistance accompanying an aforementioned diagnosis either voluntarily or involuntarily.”
The Sovetskiy District Court further found it established that the applicant had given his consent to admission to the psychiatric hospital in 2011 and noted that “giving a diagnosis is an integral stage of the treatment process which does not require separate coordination with a patient”. The applicant could not request to have his name removed from the list because a patient’s request was not among the grounds for discontinuation of addiction specialist supervision under Instruction no. 704. The court concluded that the applicant could not be considered to be in stable remission because he had not visited an addiction specialist of the Tomsk clinic in 2012-14. The Sovetskiy District Court also found that the applicant’s request to have his name removed from information data systems was “derived from the requirement to declare the placing [the applicant’s name] on the list [of persons requiring an addiction specialist’s supervision] unlawful” and dismissed it.
The applicant was found liable for the costs of the expert examination in the amount of 20,220 Russian roubles.
On 22 May 2015 the Tomsk Regional Court, relying heavily on Instruction no. 704, upheld the judgment of 18 February 2015 on appeal. It reasoned, inter alia, as follows:
“Given that adding [a person’s name] to the list of outpatient supervision and erasing [a name] from the list are done administratively and are not [acts of] medical intervention, an expression of the will of a person belonging to a category of persons requiring outpatient supervision is not [of] any meaning for the performance of such actions.”
It appears that the applicant did not lodge a cassation appeal as he perceived that recourse to be ineffective.
B. Relevant domestic law
1. Psychiatric Assistance Act of 2 July 1992
The Federal Law On Psychiatric Assistance and Guarantees of the Citizens’ Rights in the Course of its Rendering, 2 July 1992 (No. 3185-1) with amendments (“the Psychiatric Assistance Act”) provides, in so far as relevant, as follows.
Section 4 stipulates that psychiatric assistance is rendered on a voluntary basis and requires a patient’s informed consent, save for exceptional cases as defined by the Act itself. Patients have a right to disapprove of the treatment and/or to require its cessation, save for in cases defined by the Act.
Section 11 states that informed consent is a prerequisite for psychiatric treatment. A doctor is under an obligation to inform a patient of the nature of the illness, the character and types of treatment available, the possible duration of the treatment proposed, the expected results and any possible side-effects. Psychiatric treatment could be rendered without a patient’s consent if the treatment had been ordered in the course of criminal proceedings against the patient or if a patient has been involuntarily admitted to a psychiatric hospital.
Section 26(3) stipulates that outpatient supervision could be applied regardless of the consent of a person suffering from a chronic and long-term psychiatric disease. Outpatient supervision entails supervision of the state of the mental health of a person by way of regular examinations by a psychiatrist, and provision of the necessary medical and social assistance to that person.
Section 27 is devoted to outpatient supervision. Outpatient supervision may be applied to a person suffering from a chronic and long-term psychiatric disease (section 27(1)). A commission of psychiatrists should decide whether to apply this supervision (section 27(2)). Outpatient supervision should be terminated upon full recovery or stable remission (section 27(4)). The terms of the supervision should be defined by a federal executive body in charge of public health (section 27(5)).
2. Instruction no. 704 of 12 September 1988
Instruction no. 704 “On outpatient supervision of persons suffering from chronic alcoholism, drug addiction and toxic substances addiction and on preventive observation of persons abusing alcohol, those noticed in non‑medical use of drugs and other intoxicating substances without manifesting clinical symptoms of addiction” issued by the Ministry of Health of the Soviet Union on 12 September 1988, which, as with other legal instruments of the Soviet era, remains in force in so far as it does not contradict Russian law, provides, in so far as relevant, as follows.
Every person diagnosed with chronic alcoholism, drug addiction and toxic substances addiction is subject to outpatient supervision and dynamic observation in outpatient substance-abuse clinical facilities, unless they have applied for anonymous treatment of alcohol use disorder through an addiction specialist or have sought help from a self‑sustained outpatient addiction specialist’s office (хозрасчетные наркологические амбулатории (кабинеты)).
Every addiction specialist’s patient and every person belonging to a “risk group” should have the medical record of an outpatient drug addict and a control record of outpatient supervision of a mentally ill person. A diagnosis of addiction should be given by a qualified addiction specialist. When diagnosed with alcohol use disorder and drug addiction, those concerned should automatically be informed of the social and legal aspects connected to having an addiction, such as the “limitation of access to certain professions, the possibility of involuntary treatment, and so forth”. The same applies to persons “noted to use drugs non-medically”.
During the dispensary supervision “the sick” should receive medical assistance capable of ensuring stable remission. If a patient has complied with all of a doctor’s instructions, has appeared at a clinic on time and has attained “consistent, objectively confirmed remission”, the term of outpatient supervision should be three years for those suffering from alcohol use disorder and five years for drug and toxic substances addicts.
Outpatient supervision should be discontinued where stable remission has been attained; or if a person changes his or her permanent residence; or if a person has been convicted to a term of imprisonment exceeding one year; or where a drug addict has been sent to a labour and treatment centre (лечебно-трудовой профилакторий); or when a person dies.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention about disproportionate interference with their right to respect for private life on account of their names having been added to the respective lists of persons requiring outpatient supervision by an addiction specialist and their inability to have their names removed from such lists.
2. They further complain, under Article 13 of the Convention, that they did not have effective domestic remedies in respect of their grievances.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ rights protected by Article 8 of the Convention on account of their names having been added to the respective lists of persons requiring outpatient supervision by an addiction specialist? If so, was it “in accordance with the law”? In particular, could it be said that Instruction no. 704 of the Ministry of Health of the Soviet Union meets the “quality of law” requirement? Did the interference pursue one or more of the legitimate aims referred to in Article 8 § 2 of the Convention? Was it “necessary in a democratic society” to achieve those aims (see, mutatis mutandis, Amann v. Switzerland [GC], no. 27798/95, §§ 75-80, ECHR 2000‑II)?
2. Did the applicants have effective domestic remedies at their disposal in relation to their grievances under Article 8 of the Convention, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy