FIFTH SECTION

Application no. 12317/06 Zenfira Abartsumovna AKOPYAN against Ukraine lodged on 14 March 2006

STATEMENT OF FACTS

The applicant, Mrs Zenfira Abartsumovna Akopyan, is a Ukrainian national, who was born in 1953 and lives in Kharkiv.

The circumstances of the case

1. The applicant ’ s psychiatric history and detention in the Strelche Hospital

The applicant, an ethnic Armenian, was born and raised in Armenia , in the household of her grandparents.

In 1985 she married G. A., a Ukrainian resident of Armenian descent, and moved to Kharkiv , Ukraine , into her husband ’ s and his mother ’ s flat. She generally understood the Russian language widely spoken in Kharkiv, but had difficulties expressing herself in Russian. The applicant worked at odd jobs, which she frequently changed, and took care of the household.

In 1985 and 1987 respectively the applicant gave birth to two daughters.

In August 1994 the applicant and her daughters moved out of G.A. ’ s flat into a rented house in the Pesochin village.

In November 1994 G.A. took the children back to Kharkiv and the applicant remained alone in the Pesochin village.

On 16 December 1994 the applicant was admitted to the Strelche Psychiatric Hospital .

According to the hospital records, the applicant was delivered by an ambulance called by the neighbours, who had alleged that the applicant had been in an agitated state. Upon her arrival in the hospital, she complained about cruel and unfair treatment by G.A. She alleged, in particular, that regardless of her constant efforts to be a dutiful w ife, mother and housekeeper, G. A. and his mother had been constantly dissatisfied with her. G.A. had had frequent affairs with other women, harassed and beat her. In August 1994 he had refused to live with her, had brought her to Pesochin, where she knew nobody, and had left her in a rented house without a financial support. Subsequently, he had taken the children away, allegedly for a visit, and had never brought them back. He had also threatened to kill the applicant on numerous occasions and she had been afraid for her life.

Soon after her admission to the Strelche Hospital , the applicant was diagnosed as suffering from paranoid schizophrenia.

In November 1995 G.A. filed for divorce, alleging that in 1993 the applicant had abandoned the family and her whereabouts were unknown.

On 21 November 1995 his petition for divorce was allowed.

On numerous occasions between January 1995 and November 1997 the applicant unsuccessfully requested her discharge from the Strelche Hospital , alleging that she could take care of herself, needed no psychiatric or other assistance and wanted to reunite with her children. Her requests were ignored.

On 7 November 1997 the applicant escaped from the Strelche Hospital and obtained shelter with her acquaintances.

On 23 December 1997, at the applicant ’ s request, she was admitted in the Kharkiv Municipal Psychiatric Hospital no. 15 for in-patient psychiatric assessment.

On 30 January 1998 the applicant was examined by a psychiatric expert commission, which found that she was psychiatrically healthy.

On 4 February 1998 the applicant was discharged from the Municipal Hospital .

On an unspecified date in 1998 the applicant re-established contact with her children and subsequently started living with them.

In 2003, after several nervous breakdowns, the applicant was diagnosed as suffering from schizophrenia and obtained an invalidity pension. It appears that she lives with her children.

2. Criminal investigation into the applicant ’ s detention in the Strelche Hospital

In February 1998 the applicant complained to the prosecutors ’ office about having been detained against her will in the Strelche Hospital in 1994-1997.

On 17 February 1998 the Kharkiv Regional Prosecutors ’ Office instituted criminal proceedings against S.P. , the applicant ’ s attending doctor, on suspicion of her unlawful confinement.

On 21 July 1998 the Forensic Psychiatry Institute of Kyiv, having conducted the applicant ’ s assessment within the framework of these proceedings, found that she was psychiatrically healthy. It further concluded that S.P. and the Strelche Hospital staff had committed numerous breaches of applicable regulations concerning administration of psychiatric assistance. In particular, the medical notes concerning the applicant ’ s state were fragmentary and did not provide sufficient basis for diagnosing her with schizophrenia or subjecting her to corresponding treatment. It was further found that the applicant ’ s initial confinement appeared justified by her agitated state resulting from acute stress. However, following her request for release in January 1995, appropriate psychiatric assessment procedures with a view to her release should have been put in place.

On 9 October 1998 the Institute further concluded that the applicant ’ s detention and treatment in the Strelche Hospital after 17 January 1995 were not justified under applicable law.

On an unspecified date the applicant lodged a civil claim within the framework of the pending criminal proceedings.

On 25 February 1999 charges against S.P. were re-qualified as negligence in carrying out official duties, which resulted in grave consequences for the applicant ’ s interests.

On 9 April 1999 S.P. was committed to stand trial in the Kharkivsky District Court.

On 20 June 2000 the case-file was burned during a fire in the court house.

On 24 November 2000 the court adjourned the trial and remitted the case to the Prosecutors ’ Office for supplementary investigation.

On 31 May 2001 the case was referred back to the court.

Between June 2001 and June 2002 some hearings were scheduled, but for various reasons none of them took place.

On 26 June 2002, upon the applicant ’ s complaint, the Kharkiv Regional Department of Justice requested the Kharkivsky District Court President to facilitate the examination of the case, considering that it was unreasonably protracted.

On 24 February 2003 the Kharkivsky District Court ordered the investigative authorities to carry out a further psychiatric assessment of the applicant.

On 14 April 2004 the Kharkivsky District Prosecutors ’ Office ordered the applicant ’ s psychiatric assessment.

On 12 January 2005 the case was referred back to the court without this assessment having been carried out.

On 27 April 2005 the applicant lodged the second civil claim with the Kharkivsky District Court seeking damages from S.P. and the Strelche Hospital for her unjustified detention and treatment.

On 3 June 2005 the Kharkivsky District Court upon S.P.’ s request discontinued the criminal proceedings as time-barred.

The applicant appealed, alleging, in particular, that the examination of the case had been unreasonably protracted by the authorities and that it was unlawful and unfair not to prosecute S.P. on such grounds. She further complained that the court had not examined her civil claim.

On 22 December 2005 the Kharkiv Regional Court of Appeal upheld the trial court ’ s decision.

On the same date the Court of Appeal took a separate ruling, drawing the attention of the Regional Council of Judges to the District Court ’ s omissions leading to the protraction of the examination of the applicant ’ s case. It noted, in particular, that between 8 June 2001 and 3 June 2005 there was an unjustified number of adjournments of hearings and that there was an unjustified two-year period of inactivity pending a forensic assessment, which was eventually never carried out.

The applicant appealed in cassation against the decision to discontinue criminal proceedings, raising the same arguments, as in her appeal.

On 13 May 2008 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

3. Civil proceedings for damages against S.P. and the Strelche Hospital

On 9 March 2006 the applicant introduced a separate civil claim against S.P. and the Regional Hospital , claiming 10,000 UAH from S.P. and 90,000 UAH from the hospital in moral damages for her unjustified confinement. She alleged, in particular, that the three-year stay in the Strelche Hospital had caused her severe mental and physical suffering. Between December 1994 and November 1997 she constantly felt debased and treated as a deficient being, whose opinion had no value. In addition, she was routinely subjected to forced medical interventions. Furthermore, the applicant ’ s private and family life was totally ruined. For three years she was deprived of any news about her children and had no contact with her relatives and friends. During this period the applicant ’ s husband divorced her, obtained child custody and took possession of all her belongings. Upon her escape, the applicant had to pray for shelter with various acquaintances and to take tremendous efforts to restore her documents and find funds for subsistence.

On 31 January 2007 the Chervonozavodsky District Court of Kharkiv allowed the applicant ’ s claim in part. Referring to the criminal-case materials among other evidence, the court found that S.P. had been at fault for breaching a number of legal provisions governing psychiatric assistance. As S.P. had been the employee of the Strelche Hospital , it was for the latter to compensate the damage caused by him when performing his official duties. Consequently, the court ordered the Strelche Hospital to pay the applicant 7,000 UAH.

The applicant appealed, seeking higher amount of damages against the Strelche Hospital and insisting that both defendants had to bear separate responsibility for various omissions.

On 19 April 2007 the Kharkiv Regional Court of Appeal upheld the trial court ’ s judgment.

The applicant did not lodge a further appeal before the Supreme Court.

COMPLAINTS

The applicant complains that her confinement in a State psychiatric institution was arbitrary, caused her severe suffering and damaged her private and family life.

She also complains that there was no effective way for her to complain about her confinement.

The applicant further complains that criminal proceedings against the doctor responsible for her confinement were unreasonably protracted.

The applicant refers to Articles 5 § 4, 6 and 13 of the Convention in respect of her complaints.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s confinement in the Strelche Hospital between 11 September and 7 November 1997 amounted to inhuman or degrading treatment in breach of Article 3 of the Convention?

If so, having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the relevant criminal investigation in the present case in breach of Article 3 of the Convention?

2. Was Article 6 § 1 of the Convention applicable to the criminal proceedings in the present case?

If so, was their length in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, did the applicant ’ s confinement in the Strelche Hospital during the period between 11 September and 7 November 1997 fall within paragraph (e) of this provision?

4. Has the applicant ’ s confinement in the Strelche Hospital between 11 September and 7 November 1997 constituted a breach of her right to respect for her private and family life, within the meaning of Article 8 § 1 of the Convention?

5. Did the applicant have an effective remedy within the meaning of Article 13 of the Convention for the alleged breaches of her rights under Articles 3, 5 and 8 of the Convention? In particular:

(a). Was a civil-law remedy sufficient to redress her complaints under Articles 5 and 8 of the Convention (see by contrast Lopatin and Medvedskiy v. Ukraine , nos. 2278/03 and 6222/03 , §§ 75 and 85, 20 May 2010; X and Y v. the Netherlands , 26 March 1985, § 27, Series A no. 91, K. U. v. Finland , no. 2872/02, § 43, ECHR 2008 and Sandra Janković v. Croatia , no. 38478/05, § 36, 5 March 2009)?

(b). Did the criminal-law remedy, to which the applicant resorted, constitute an effective remedy for her Convention complaints?