THIRD SECTION

DECISION

Application no . 72827/12 Aleksey Dmitriyevich KHOMCHENKOV against Russia

The European Court of Human Rights (Third Section), sitting on 30 August 2016 as a Committee composed of:

Branko Lubarda, President, Pere Pastor Vilanova, Georgios A. Serghides, J udges , and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 17 October 2012,

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 Aleksey Dmitriyevich Khomchenkov, is a Russian national, who was born in 1971 and lives in Moscow. He was represented before the Court by Ms Y. Yefremova, a lawyer practising in Moscow.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

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

4. In 2009 the applicant was criminally charged as an accomplice to the fraudulent bankruptcy. Subsequently he was diagnosed with pseudopsychopathic schizophrenia aggravated by alcohol dependency syndrome. The psychiatrists concluded that he presented a danger to society and recommended involuntary treatment in a specialised psychiatric facility.

5. On 28 July 2010 the Izmaylovskiy District Court of Moscow ( Измайловский районный суд г . Москвы ) discontinued the criminal proceedings and ordered the applicant ’ s involuntary treatment.

6. On 4 March 2011 the period of the applicant ’ s involuntary treatment was prolonged by six months by the Chekhovskiy Town Court of the Moscow Region ( Чеховский городской суд Московской области ).

7. The period of authorised involuntary treatment expired on 4 September 2011 and no application for extension had been submitted. The applicant ’ s treatment continued, however neither he nor his representatives attempted to seek release. Nothing in the case-file indicates that he had any obstacles in contacting them.

8. On 28 February 2012 the period of the applicant ’ s involuntary treatment was once again extended by the Town Court.

9. The applicant ’ s counsel appealed against the order alleging inter alia that any prolongation of the involuntary treatment was unlawful, since the previously sanctioned period had expired on 4 September 2011 and the applicant must have been released.

10. The applicant requested his presence during the appeal hearing to exercise his right to be heard. Howe ver, his motion was denied on 5 April 2012 by the Moscow Regional Court ( Московский областной суд ), which stated that ( 1) the statement of appeal was detailed and sufficiently clear; ( 2) the applicant did not advance any specific reason, which required his personal presence; ( 3) he could appoint a counsel to deliver his arguments. The Regional Court also had regard to the information on the applicant ’ s mental health status submitted by the psychiatric facility. The medical professionals stated that he was verbally aggressive, prone to shouting, squealing, insults and threats. They further stated that the applicant ’ s transfer to a courthouse would be impossible in view of the absence of sufficiently secure transportation and qualified security personnel.

11. On 17 April 2012 the Regional Court having heard both the applicant ’ s defence counsel and legal representative dismissed the appeal.

12. On 20 August 2012 the applicant ’ s involuntary treatment was terminated due to improvement in his mental state and absence of any further danger to the society.

COMPLAINTS

13. The applicant complained under Article 5 of the Convention in particular that between 4 September 2011 and 28 February 2012 he was detained without a court order and that he did not participate in the appeal hearing of 17 April 2012.

THE LAW

14. The applicant ’ s complaint under Article 5 § 1 of the Convention relates to the absence of a court order authorising his detention and continued involuntary treatment between 4 September 2011 and 28 February 2012. The Government in their submissions acknowledged absence of a court order authorising the applicant ’ s detention for that period. At the same time they argued that the complaint is inadmissible for non ‑ exhaustion of domestic remedies, since the applicant did not seek release.

15. The Court notes that the period of the applicant ’ s authorised involuntary treatment expired on 4 September 2011 and for the next five months and twenty five days he was detained without a court order. At the same there is no evidence that the applicant represented both by a defence counsel and a legal representative made any attempt to institute any proceedings for release, while nothing apparently prevented him from doing so.

16. The Court concludes that the applicant had failed to exhaust available domestic remedies in respect of this complaint. Accordingly, it must be rejected under Article 35 §§ 1 and 4 of the Convention.

17. The applicant ’ s complaint under Article 5 § 4 of the Convention concerns his absence during the appeal hearing of 17 April 2012. The Government argued that the national authorities considering the applicant ’ s mental health status had made a reasonable decision to hold the appeal hearing in his absence. They stated that the applicant had been sufficiently represented by his defence counsel and the legal representative and had adequately presented his position to the domestic courts.

18. The Court reiterates that while it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation there must be guarantees appropriate to the type of deprivation of liberty in question (see Idalov v. Russia [GC], no. 5826/03 , § 161, 22 May 2012 ). The opportunity to be heard either in person or through some form of representation features among the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece , 13 July 1995, § 47, Series A no. 318 ‑ B).

19. In the present case the Court observes that the national courts reached the decision to hold the appeal hearing in absence of the applicant having regard to his unstable mental condition, namely verbal aggression, predisposition to shouting, squealing, insults and threats (see paragraph 10 above). At the same time they satisfied themselves that his statement of appeal was detailed and sufficiently clear. Furthermore he was represented during the hearing by his defence counsel and the legal representative.

20. The Court having regard to the above considerations concludes that the applicant ’ s complaint under Article 5 § 4 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.

21. The applicant further lodged other complaints under Article 5 of the Convention. Having regard to all the materials in its possession the Court concludes that they are inadmissible and must be rejected in accordance with Article 35 § 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 September 2016 .

FatoÅŸ Aracı Branko Lubarda              Deputy Registrar President