Communicated on 4 May 2015

FIFTH SECTION

Application no. 18060/13 Liliya Ivanivna DERGACHENKO against Ukraine lodged on 19 February 2013

STATEMENT OF FACTS

The applicant, Ms Liliya Ivanivna Dergachenko , is a Ukrainian national, who was born in 1965 and lives in Prymorske , Zaporizhzhya region .

A. The circumstances of the case

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

Between 1999 and 2012 the applicant was working as a teacher in a school of Zaporizhzhya . According to the applicant, in the last years of her work in the school, tensions existed between her and the directress of the school.

In the afternoon of 24 April 2012 the police was called to the school for the reason that the applicant had allegedly written a dying note and had threatened to commit a suicide. At the request of the police officers an ambulance arrived and the applicant was involuntarily taken from the school to the Zaporizhzhya Regional Psychiatric Hospital. Allegedly, the applicant ’ s arms were twisted and she was punched in the body when escorted to the ambulance car.

Upon arrival at the hospital, the applicant, who had no previous records of mental issues, was examined by a panel of psychiatrists. One of the psychiatrists later stated that at the time of the examination the applicant manifested suicidal intentions and had threatened the people surrounding her and such conduct necessitated her placement in the hospital; that doctor also noted that the applicant had not had any injuries on the body.

As the applicant refused to be hospitalised, the panel of psychiatrists decided that she should be admitted to the hospital compulsorily. In taking that decision, the panel of psychiatrists relied on section 14 of the Psychiatric Assistance Act, considerin g that the applicant could commit acts which were dangerous to her and to others.

According to the official records , measures of physical restraint were applied to the applicant for thirty minutes. According to the applicant, she was beaten up, tied to a bed for about ten hours without food and refused access to a toilet.

On 25 April 2012 the applicant was again examined by the panel of psychiatrists who found that the applicant had experienced a situational reaction with elements of suicidal blackmailing. The panel concluded that the applicant had not suffered from any psychiatric disorder and had to be released. The applicant had no contraindications for working as a teacher. On that day the applicant was released from the psychiatric hospital.

Also, on that day the applicant ’ s mother complained to the local prosecutor ’ s office on account of the applicant ’ s arbitrary placement in a psychiatric hospital and ill-treatment. The applicant made similar complaints.

On 26 April 2012 a forensic medical expert examined the applicant and stated that she had bruises on both shoulders and shins. The injuries were minor and had been inflicted by blunt object(s). The expert noted that the injuries could have been sustained on 24 April 2012, as claimed by the applicant.

Between 26 April and 13 October 2012 the police took a number of decisions refusing to open criminal proceedings in connection with the applicant ’ s allegations of ill-treatment and arbitrary detention. Those decisions were quashed by the supervising prosecutors who ordered further pre-investigation enquiries.

On 27 June 2012 a psychiatric experts committee, presided by the chief doctor of the psychiatric hospital, found that the staff of the psychiatric hospital acted lawfully when treating the applicant.

On 19 November 2012 the police took another decision refusing to open criminal proceedings, finding that the school and medical staff had acted lawfully in respect of the applicant given her dangerous conduct on the day of her hospitalisation.

On 29 December 2012 the police initiated criminal proceedings in connection with the applicant ’ s alleged ill-treatment on 24 April 2012.

On 10 January 2013 the Komunarskyy District Court of Zaporizhzhya quashed the decision of 19 November 2012 finding that the enquiries had been incomplete and noting in particular that the police had not properly examined the applicant ’ s allegations of ill-treatment.

On 15 May 2013 the police terminated the investigations finding that the school staff, the ambulance paramedics, and the staff of the psychiatric hospital acted lawfully in relation to the applicant and that they had no intention to inflict her any bodily injuries.

On 11 June 2013 the Komunarskyy District Court of Zaporizhzhya upheld the decision of 15 May 2013.

On 18 June 2013 the Zaporizhzhya Regional Court of Appeal dismissed the applicant ’ s appeal against the court decision of 11 June 2013.

B. Relevant domestic law

Psychiatric Assistance Act of 22 February 2000

The relevant extracts from the Act read as follows:

Section 8. Ensuring safety of psychiatric assistanc e and preventing dangerous acts by individuals suffering from mental disorders

“The psychiatric assistance should be provided in the least restrictive conditions which ensure safety of a patient and the other persons as well as the observance of the patient ’ s rights and interests.

When providing psychiatric assistance, measures of physical restraint and seclusion may be applied to a person suffering from a mental disorder upon prescription of the psychiatrist (or the other medical officer who is in charge of proving psychiatric assistance) and shall be subject to his or her continued supervision. Such measures shall be applied only in cases, forms and periods when all the other lawful measures cannot prevent the person from committing acts which are directly dangerous to that person or to others. The forms and periods of application of the measures of physical restraint and seclusion shall be recorded in the medical file. The measures of physical restraint and seclusion shall be applied in accordance with the regulations established by the central executive authority responsible for the State policy on health protection.”

Section 13 . Hospitalisation of a person in a mental health facility

“A person shall be hospitalised in a mental health facility voluntarily, either at his or her request or with his or her conscious agreement. ... Consent to hospitalisation shall be included in the medical documentation following the signature of the person concerned or his or her legal representative and a psychiatrist.”

Section 14 . Grounds for compulsory hospitalisation of a person in a mental health facility

“A person who is suffering from a mental disorder may be hospitalised in a mental health facility without his or her conscious agreement or without the agreement of his or her legal representative if the medical examination or treatment of that person is possible only within the mental health facility and if, as a result of the serious mental disorder, such a person:

commits or expresses real intentions to commit acts which are directly dangerous to this person or to others; or

is unable to meet his or her vital needs at the basic level.”

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that she was ill-treated during the hospitalisation in that she was beaten up, tied to a bed for about ten hours without food and refused access to a toilet.

2. The applicant complains under Article 5 § 1 that her placement in the psychiatric hospital was arbitrary.

3. The applicant complains under Articles 6 § 1 and 13 of the Convention that her allegations of ill-treatment have not been examined properly.

QUESTIONS TO THE PARTIES

1. With regard to the alleged events between 24 and 25 April 2012, has the applicant been subjected to ill-treatment, contrary to Article 3 of the Convention?

2. Has the State complied with its positive obligation to ensure protection from ill-treatment through the adoption, as necessary, of special measures and safeguards ? In particular, has the State taken necessary normative and operational measures to ensure effective control over the physical restraint measures in psychiatric hospitals? Was such control effective in the present case?

3. Were the domestic proceedings in respect of the applicant ’ s allegations of ill-treatment compatible with the procedural requirements of Article 3 of the Convention?

4. With regard to the alleged events between 24 and 25 April 2012, was the applicant deprived of liberty in breach of Article 5 § 1 of the Convention?

The Government are invited to provide the following material:

- the reports and conclusions of the psychiatric experts committee and the health-care authorities as to the case of the applicant ’ s hospitalisation and stay in the psychiatric hospital;

- medical records as regards the applicant ’ s hospitalisation and stay in the psychiatric hospital, including all the records concerning the application of physical restraint measures;

- the medical documents concerning the injuries on the applicant in the relevant period of time;

- d ocuments concerning the domestic proceedings in respect of the applicant ’ s allegation s of ill-treatment, including decisions by which the authorities refused to open an investigation and the decisions of the supervising authorities reviewing those decisions .