FIFTH SECTION

Application no. 50264/08 Anatoliy Petrovych RUDENKO against Ukraine lodged on 2 October 2008

STATEMENT OF FACTS

The applicant, Mr Anatoliy Petrovych Rudenko , is a Ukrainian national, who was born in 1955 and lives in Kryvyy Rig.

A. The circumstances of the case

In 2005-2006 the applicant created a local non-governmental organisation, as well as several newspapers.

On 16 November 2006 the Kryvyy Rig Transport Prosecutor ’ s Office instituted criminal proceedings against him on suspicion of interference with gas pipeline repairs in July 2006.

On 17 May 2007 the Kryvyy Rig City Prosecutor ’ s Office opened another criminal case in respect of the applicant, on suspicion of extortion from a local politician, Ms B. As noted in the ruling, on 4 January 2006 the applicant had sent a letter to Ms B., demanding 20,000 Ukrainian hryvnias (an equivalent of about 3,000 euros ) under the threat of dissemination of some discrediting information about her. He had also threatened her by physical violence in the presence of several witnesses.

The two aforementioned criminal cases were joined.

On 4 June 2007 the applicant was detained.

On 6 June 2007 the Dzerzhynskyy District Court of Kryvyy Rig (“the Dzerzhynskyy Court ”) remanded him in custody pending trial. It referred to the complaints of the victim, as well as her representative, about numerous telephone calls from the applicant with threats of violence. The court also noted that, when the applicant had refused to comply with the investigator ’ s summonses and had stated that he was considering absconding.

On 11 June 2007 an outpatient forensic psychiatric expert examination of the applicant was carried out in the Kryvyy Rig Psychoneurological Dispenser. The expert discerned indications of a paranoid personality disorder with the tendency towards formation of fixed ideas. An inpatient examination was recommended for a more precise diagnosis.

On 14 June 2007 the Dzerzhynskyy Court ordered the applicant ’ s inpatient forensic psychiatric examination with a view to establishing his ability to stand trial in the extortion case. The court referred to the expert recommendation of 11 June 2007. It also noted that the applicant had been manifesting inadequate behaviour raising concerns. Furthermore, the case file contained copies of his threats and obviously slanderous statements addressed to the victim and some third persons.

On 15 June 2007 the Dnipropetrovsk Regional Court of Appeal (“the Court of Appeal”) rejected the applicant ’ s appeal against the detention order of 6 June 2007.

On 20 June 2007 another case on suspicion of extortion was opened in his respect. This time the applicant was suspected of having threatened Mr S. and his family and of having extorted 3,000 US dollars from Mr S. in May 2007.

On 25 July 2007 the Dzerzhynskyy Court extended the term of the applicant ’ s pre-trial detention to 17 August 2007.

From 27 June to 26 July 2007 the applicant was undergoing inpatient forensic psychiatric examination in the Dnipropetrovsk Regional Psychiatric Hospital , undertaken in the framework of the criminal case regarding the charge of extortion from Ms B. The experts examined, in particular, the applicant ’ s biography and the case-file materials, including the wording of his alleged threats to Ms B. They also carried out his psychological and psychiatric evaluation. The commission worded its conclusions as follows:

“Mr Rudenko did not suffer before and is not suffering now from any chronic psychiatric disease. He showed before and is presently showing a paranoid personality disorder.

This conclusion is confirmed by the anamnestic data, the materials of the criminal case, the results of the present clinical psychiatric examination disclosing such personality characteristics of [the applicant], having been manifested throughout his life, as egocentrism, extremely high self-esteem, categorical nature and subjectivism of judgments, susceptibleness and extreme sensibility to failures and situations infringing on his personal interests, tendencies towards distorted perception of reality and attitudes of surrounding people, militant and persistent assertion of his rightness and importance, subjectivism, rigidity of opinions and emotions, tendentiousness and contrivedness of judgments, resistance in the defence and implementation of his ideas.

The aforementioned personality characteristics of [the applicant] are not expressed considerably, are not accompanied by serious abnormalities of memory, thinking, critical abilities, psychotic symptoms, and have not undermined his ability to realise and to control his actions at the time relevant for the incriminated offence. ...

The present psychiatric condition of [the applicant] is such that he can realise and control his actions (or inactivity).

He does not require any enforced medical treatment measures.”

On 9 August 2007 the investigator declared the pre-trial investigation completed and provided the applicant with access to the case file.

On 14 August 2007 the case was referred to the court for trial.

On 17 September 2007 the Dzerzhynskyy Court held a preparatory hearing for the trial. It decided to keep the preventive measure in respect of the applicant unchanged. Furthermore, given the fact that the victim, Ms B., was a well-known local politician, it was decided to conduct hearings in camera .

The applicant was represented in the proceedings by up to three lawyers. He often sought their replacement. His two sons and the wife were also admitted in the proceedings as his representatives.

On 23 January 2008 the applicant requested the Dzerzhynskyy Court to ensure his security in the Kryvyy Rig SIZO. He submitted that he was detained there in the same cell as criminal convicts who were beating, intimidating and humiliating him.

On the same date the court allowed the request and ordered the SIZO administration to apply security measures in respect of the applicant. There is no information in the case file about any follow-up to this order.

On 25 December 2008 the Dzerzhynskyy Court ordered another inpatient forensic psychiatric examination of the applicant, with a view to establishing his ability to stand trial in the criminal cases regarding the charges of extortion from Mr S. and the interference with the gas pipeline repairs.

From 30 January to 26 February 2009 the applicant was undergoing the aforementioned examination in the Dnipropetrovsk Regional Psychiatric Hospital .

On 26 February 2009 a commission of six experts (with the involvement of the three experts who had authored the previous report of 26 July 2007) delivered its report on the basis of the applicant ’ s psychological and psychiatric evaluation and the case-file materials. The experts also heard several witnesses. Namely, they questioned a person who had worked with the applicant in 1990s and who described him as an intelligent but impulsive person having some strange ideas and liking to be the focus of attention. The applicant ’ s former wife gave a similar description, having also noted that he was a kind person although with a heavy character. The applicant ’ s actual wife refused to be questioned. A generalist, who had treated the applicant for some unspecified condition in 2007, submitted that he remembered the applicant for the latter ’ s emotionally-expressed nationalist ideas. A lawyer, who had often encountered the applicant in courts (where the applicant had been representing the opposite party), described him as a bold and scandalous person having a tendency to insulting others. A circuit police officer, who had inspected the gas pipelines ’ repairs site, submitted that he remembered the applicant for some “hysterical scandals” and that he had an impression that the applicant had some mental issues. The general conclusions of the commission were worded as follows:

“At the time of the events ... Mr Rudenko was suffering, and is suffering presently, from a chronic psychiatric disease in the form of a paranoid personality disorder with delirious inclusions.

This conclusion is confirmed by the anamnestic data, the materials of the criminal case, the results of the present clinical psychiatric and experimental-psychological evaluation disclosing such personality characteristics of [the applicant], having been manifested throughout his life, as egocentrism, rigidity of attitudes, extremely high self-esteem, arrogance and extreme self-confidence, intolerance to subjectively interpreted injustice, categorical nature and subjectivism of judgments, susceptibleness and extreme sensibility to failures and situations infringing on his personal interests, tendencies towards distorted perception of reality and attitudes of surrounding people, militant and persistent assertion of his rightness and importance, rigidity of opinions and emotions, straightforwardness, tendentiousness and contrivedness of judgments, resistance in the defence and implementation of his ideas coupled with the tendency towards amorphism and philosophizing, and, as a result [of all the aforementioned] and against the background of the subjectively difficult and unfavourable development of the criminal investigation and trial, formation of some fixed and delirious ideas about being persecuted.

The aforementioned personality characteristics of [the applicant] are expressed so considerably that they had undermined his ability to realise and to control his actions at the time relevant for the incriminated offences. ...

The present psychiatric condition of [the applicant] does not enable him to realise his actions (or inactivity) and to control them.

He requires involuntary medical care by way of admission to a psychiatric hospital with ordinary supervision.

As to the [similar] expert questions regarding [the charge of extortion from Ms B.], they were already resolved in the report of 26 July 2007.”

On 3 June 2009 the Dzerzhynskyy Court found the applicant guilty of extortion from Ms B. As to the charge of extortion from Mr S., the court held that there was no sufficient evidence of the applicant ’ s guilt. It also established that the applicant had impeded the gas pipeline repairs. The court noted that the applicant could not be held accountable for the criminal offences in question and required involuntary medical treatment in a mental facility. It stated, in particular:

“It has been established that, at the time of the committal of the offences, Mr Rudenko behaved in a bold manner and without respect towards the victims and others involved, that he expressed threats to health and lives of the victims, and that he took active actions with a view to impeding the gas pipeline repairs thus endangering health and life of citizens. Although Mr Rudenko has not directly attempted on anybody ’ s life, his present mental condition warrants his involuntary admission to a psychiatric hospital, because he is a dange rous person due to his illness.”

The requests of the applicant ’ s representatives to consider out-patient psychiatric treatment instead were dismissed.

On 23 December 2009 the Court of Appeal quashed the above decision as delivered in the applicant ’ s absence. It stated that his participation had been obligatory unless refused by him or prevented by the nature of his illness. The appellate court also noted that, although the Dzerzhynskyy Court had found that the applicant ’ s guilt had not been proven in respect of the charge of extortion from Mr S., no decision had been taken as regards the termination of the proceedings in that part. The case was therefore remitted the case for fresh examination to the first-instance court.

On 11 October 2010 the Dzerzhynskyy Court ordered another forensic psychiatric examination of the applicant, with the following questions: (1) whether the applicant was suffering from any mental illnesses at the actual time; (2) whether he could realise and control his actions; and (3) whether the nature of his illness could be regarded as an impediment to his participation in court hearings.

From 19 November to 16 December 2010 this examination was being carried out in the Dnipropetrovsk Regional Psychiatric Hospital . According to its report, the applicant was suffering, at the time of the examination, from a chronic paranoid personality disorder with delirious inclusions. His psychiatric condition was evaluated as precluding him from effective participation in court hearings. As noted in the “Psychological examination” part, the applicant behaved in a free and friendly manner, disclosing high intellect and good memory and analytical skills, but also demonstrating certain superiority and rigidity in his judgments. The general expert findings were practically identical to those of 26 February 2009.

On 8 April 2011 the Dzerzhynskyy Court examined the case again, in a hearing with participation of the lawyer earlier appointed by the court for the applicant, and in the absence of the applicant. It found the applicant guilty of extortion from Ms B. Given the medical findings concerning the applicant ’ s mental health, the court ordered his involuntary medical care by way of admission to a psychiatric hospital with ordinary supervision. The criminal proceedings on the charge of extortion from Ms B. were stayed until the applicant ’ s recovery. The court decision was silent in respect of the other two charges against the applicant: the extortion from Mr S. and the interference with the gas pipeline repairs.

The applicant ’ s son (admitted in the proceedings as his representative) appealed. He complained, in particular, that the applicant had wrongly been denied his right to participate in the hearing. He also complained that the applicant ’ s right to the presumption of mental health had been violated. He noted in this regard that the experts had reached the opposite conclusions about the applicant ’ s mental health, without any explanation of such a change in their position.

On 16 August 2011 the Dnipropetrovsk Regional Court of Appeal upheld the decision of 8 April 2011. It noted that, as found by medical experts, the nature of the applicant ’ s illness had been an impediment to his participation in the court hearings.

On 23 September 2011 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant ’ s request for leave to appeal on points of law.

B. Relevant domestic law and international materials

1. Criminal Code 2001

The relevant provisions read as follows:

Article 19. Mental capacity to stand trial.

1. A person shall be considered mentally capable to stand trial if at the time of the committal of the crime he could realise and control his actions (inactivity).

2. A person shall not be held criminally liable if at the time of the committal of a socially dangerous act envisaged by this Code, he was in the state of insanity, meaning that he could not realise or control his actions as a result of a chronic psychiatric disease, temporary psychiatric disorder, dementia or other psychiatric condition. Involuntary medical treatment measures can be applied to such person by a court decision. ... ”

Article 92. The notion and purpose of involuntary medical treatment measures.

“ Involuntary medical treatment measures are as follows: outpatient psychiatric care; placement of a person who committed a socially dangerous act falling under the Special Part of this Code in a special medical establishment with a view to his involuntary treatment, as well as the prevention of committal of socially dangerous acts by him. ”

Article 94. Types of involuntary medical treatment measures.

“ 1. Depending of the nature and seriousness of a disease, the seriousness of the committed offence, having regard to the dangerousness of a mentally ill person to himself and to others, the court may order the application of the following involuntary medical treatment measures:

(1) involuntary outpatient psychiatric care;

(2) admission to a psychiatric hospital with ordinary supervision;

(3) admission to a psychiatric hospital with reinforced supervision; and

(4) admission to a psychiatric hospital with strict supervision.

2. The court may order involuntary outpatient psychiatric care in respect of a person suffering from a psychiatric disorder, who committed a socially dangerous act, if the mental health of this person does not warrant his placement in a psychiatric hospital.

3. The court may order admission to a psychiatric hospital with ordinary supervision in respect of a person if his mental health and the nature of the committed socially dangerous act warrant his placement and involuntary treatment in a psychiatric hospital.

4. The court may order admission to a psychiatric hospital with reinforced supervision in respect of a person who committed a socially dangerous act not implying an attempt on the life of others and who does not present any danger to society given his mental condition, but who is in need of psychiatric confinement and treatment in conditions of reinforced supervision.

5. The court may order admission to a psychiatric hospital with strict supervision in respect of a person who committed a socially dangerous act implying an attempt on the life of others and who presents particular danger to society given his mental condition, and who is in need of psychiatric confinement and treatment in conditions of strict supervision.

6. If the application of involuntary medical treatment measures in respect of a mentally ill person is not considered necessary, as well as after the termination of the application of such measures, the court may entrust his guardianship to his relatives or guardians with mandatory medical monitoring. ”

2. Code of Criminal Procedure 1960

Article 156 limits the initial pre-trial detention term to two months and provides for the possibility of its extension up to eighteen months. It also stipulates that the term of a person ’ s inpatient psychiatric examination is to be included in his/her pre-trial detention.

According to Article 416, enforced medical treatment measures shall be applied only to persons considered socially dangerous.

3. Psychiatric Assistance Act 2000

According to Article 3 (“Presumption of psychiatric health”), every person is to be considered as having no psychiatric disorder unless the existence of such disorder is established on the grounds envisaged by law and in compliance with the established procedures.

Under Article 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.

Article 19 (“Involuntary medical treatment measures”) stipulates that such measures shall be applied upon a judicial decision and in compliance with the legally established procedure. Persons to whom involuntary medical measures have been applied shall undergo periodic examinations by a commission of psychiatrists at least every six months with a view to verifying whether these measures remain justified.

4. Relevant international materials

Relevant international materials can be found in the judgment in the case of M. v. Ukraine (no. 2452/04 , §§ 37-38 , 19 April 2012).

COMPLAINTS

The applicant complains under Article 3 of the Convention that he suffered ill-treatment by other detainees in the Kryvyy Rig SIZO and that his complaints in that regard were not duly examined.

He further complains under Article 5 § 1 that his detention from 17 August to 17 September 2007 was not covered by any judicial decision and was therefore unlawful. He also complains that, in the absence of such decision, he was not able to obtain judicial review of the lawfulness of his detention during this period.

The applicant next complains about the length of his pre-trial detention.

He also complains under Article 6 of the Convention about the alleged unfairness and excessive length of the criminal proceedings against him.

He further raises the following complaints: under Article 7 – about his allegedly unfair criminal prosecution; under Article 8 – about the alleged secret surveillance of him and his family by the security services for many years; under Article 9 – about the fact that the investigator in charge of his case was a Muslim, which he considered to be unacceptable given his orthodox Christian faith; under Article 10 – about the criminal cases against him having allegedly been related to his activities as a journalist; under Article 11 – about the negative impact of his detention and psychiatric confinement for the NGO he was leading; with reference to Article 12 – about his complaints to various authorities having been without success; and under Article 2 of Protocol No. 7 about being limited in lodging appeals.

The applicant also complains, without referring to any provision of the Convention, that he did not require psychiatric treatment and that his confinement in a psychiatric hospital was undertaken by the authorities to punish him for his public activities and an active political stand. He submits in this connection that the forensic psychiatric examination reports finding him to be suffering from a psychiatric disease were based on a selective analysis of facts and relied on some unverified witness statements, instead of having been based on his psychiatric evaluation. According to the applicant, the “paranoid personality disorder with delirious inclusions” was wrongly indicated as a disease, whereas this could only be regarded as a symptom. Lastly, he complains that all his forensic psychiatric examinations were conducted by the same experts.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty between 17 August and 17 September 2007 in breach of Article 5 § 1 of the Convention? In particular, was his detention during this period covered by a judicial decision?

2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention during the aforementioned period, as required by Article 5 § 4 of the Convention?

3. Was the applicant ’ s detention on remand from 4 June 2007 to 8 April 2011 compatible with the requirements of Article 5 § 3 of the Convention to be tried within a reasonable time or released pending trial?

4. Has there been a violation of the applicant ’ s rights under Article 5 § 1 (e) of the Convention on account of his involuntary admission to a psychiatric hospital?

5 . Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention, on account of the diagnosis of his mental illness and his involuntary admission to a psychiatric hospital?