AS TO THE ADMISSIBILITY OF
Application no. 58973/00
by Tamara Nikolayevna RAKEVICH
The European Court of Human Rights (Second Section), sitting on 5March 2002 as a Chamber composed of
and Mrs S. Doll?, Section Registrar,
to the above application lodged on
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 applicant, TamaraNikolayevna Rakevich, is a Russian national, who was born in 1961 and lives in Yekaterinburg. She is represented before the Court by Anna Demeneva, a lawyer practising in Yekaterinburg.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s placement in a mental hospital
The applicant was taken to the Yekaterinburg City Psychiatric Hospital No. 26. The doctor on duty qualified the applicant’s condition as a grave mental disorder that manifested itself in the applicant’s being a danger to herself (she had previously escaped from a general hospital, experienced fear, anxiety and disorientation) and her being helpless (the applicant had cried: “I do not understand anything! I am afraid!” and was uncooperative with the doctor).
Two days later,
2. Judicial review of the detention
The applicant’s representative did not have any access to the report of the medical commission either before or after the hearing, despite his requests.
B. Relevant domestic law
The basic principles of psychiatric medical care in Russia are governed by the Law on Psychiatric Treatment and Associated Civil Right Guarantees, enacted in 1992 (“the Act”).
Section 29 of the Act sets out the grounds for involuntary placement in a psychiatric facility:
“A mentally disturbed individual may be hospitalised in a psychiatric facility contrary to his will or the will of his legal representative without a court decision, if the individual’s examination or treatment can only be carried out by in-patient care, and the mental disorder is severe enough to give rise to:
a) a direct danger for the person or for others, or
b) the individual’s helplessness, i.e. an inability to take care of himself, or
c) a significant impairment in health as a result of a deteriorating mental condition, if the affected person were to be left without psychiatric care.”
Section 32 of the Act specifies the procedure for the examination of patients compulsorily confined in a hospital:
“(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 commission of psychiatrists of the hospital, which commission shall take a decision as to the necessity of hospitalisation. If no reasons for hospitalisation are established and the hospitalised person expresses no intention of remaining in the hospital, the person shall be released immediately.
(2) If hospitalisation is considered necessary, the conclusion of the commission 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.”
Sections 33-35 set out in detail the procedure for judicial review of applications for compulsory treatment of mentally ill persons:
“(1) Involuntary hospitalisation for in-patient psychiatric care on the grounds defined by 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 facility shall be filed by a representative of the hospital where the person is detained.
The application containing the grounds for involuntary psychiatric hospitalisation shall be accompanied by a reasoned conclusion of a commission of psychiatrists as to the further necessity of the person’s in-patient treatment in a psychiatric facility.
(3) A judge who accepts the application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.”
“(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 after receipt of the application.
(2) The person shall be allowed to participate personally in the hearing to determine whether he should be hospitalised. If, on the information provided by a representative of the psychiatric hospital, the person’s mental state does not allow him to participate personally in the hearing, the application shall be reviewed by the judge on the hospital’s premises.
(3) The presence at the hearing of a public prosecutor, a representative of the psychiatric institution requesting hospitalisation, and a representative of the person who it is intended to detain, shall be mandatory.”
“(1) Upon examination of the application on the merits, the judge shall either grant or refuse it.
(2) The judge’s grant of the application shall justify the person’s hospitalisation and further confinement in the hospital.
(3) The judge’s decision shall be subject to appeal within ten days by the person placed in the psychiatric hospital, his representative, the head of the psychiatric hospital as well as by an organisation entitled by virtue of law or its by-laws to protect citizens’ rights, or by a public prosecutor. The appeal shall be made in accordance with the rules established in the Code of Civil Procedure of the RSFSR.”
The applicant complains under Articles 5 and 6 of the Convention about her compulsory placement in the psychiatric hospital. She points out that she had not been diagnosed as mentally ill at the time of her detention and that no ground existed to detain her. It is also claimed that the judicial review of the applicant’s arrest lasted too long, even without reference to the time-limits established by domestic law, and was a mere formality.
The applicant claims, with reference to Articles 5 and 6 of the Convention, that her compulsory psychiatric detention was not necessary and that there was non-compliance with the domestic law on the judicial review of such detention. The Court considers that this complaint falls to be examined under Article 5, which, insofar as relevant, 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...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful ...”
The Government submit that the applicant’s detention was justified under Article 5 § 1 (e) as the lawful detention of a person of unsound mind. They argue that the applicant’s initial detention on 26 September 1999 was necessitated by her condition, which was later confirmed by the hospital orders of 29 September (28 September, according to the applicant) and 4 November 1999, based on an objective medical opinion that the applicant had been suffering from a mental disorder of such a degree that confinement was warranted. The Court should be slow to reject that conclusion. Nor was there any reason to believe that the applicant’s detention was arbitrary.
concede that, according to Section 34 of the Law on Psychiatric Treatment
and Associated Civil Right Guarantees 1992, judicial review of the applicant’s
detention should have taken place within five days of the decision to hospitalise
her, whereas it in fact took forty days - until
In respect of the possibility for the applicant to challenge her detention before a court, the Government claim that the applicant did benefit from such a possibility as she and her lawyer took part in the hearing before the Ordzhonekidzevskiy District Court on 5 November 1999 and were successfully able to appeal the court’s decision.
disagrees with the Government. She states that, contrary to Convention
case-law, she was not reliably shown to be of unsound mind either at the
moment of her hospitalisation or after the medical report had been drawn
up. The applicant submits that her condition at the time of the detention
was not such as to show an “urgent” case because she did not behave violently
and did not pose a threat to herself or others. Moreover, she had no history
of mental disturbance, and the authorities never considered alternatives
to detention. The applicant further points to inconsistencies between the
reasons given for her detention on her admission to the hospital, as now
submitted by the Government, and the reasons contained in the court ruling
The applicant argues that her detention was in any event unlawful within the meaning of Article 5 § 1 (e) of the Convention because the time-limits laid down in the Act were not complied with. The applicant challenges the interpretation of Section 33 § 3 of the Act suggested by the Government as offering a certain “judicial control” of the detention. According to the applicant, the mere communication by a hospital administration to a court of an application for detention in no way assumes any effective involvement of the judiciary in the matter.
Finally, the applicant maintains that the procedure for the review of her detention did not comply with Article 5 § 4 of the Convention, as the courts failed to examine the factual circumstances of the case thoroughly, did not hear M. (the person who initiated the whole procedure and was a crucial witness), and did not provide access to the case-file to the applicant’s lawyer. The applicant also believes that the decision taken forty days after her detention was not “speedy”.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible.
S. Doll?J.-P. Costa