17 June 2010

THIRD SECTION

Application no. 50131/08 by Dana Ruxanda ATUDOREI against Romania lodged on 10 October 2008

STATEMENT OF FACTS

THE FACTS

1 . The applicant, M s Dana Ruxanda Atudorei, is a Romanian national who was bor n in 1984 and lives in Bucharest . She is represented before the Court by Ms Adina Solomon, a lawyer practising in Buc harest .

A. The circumstances of the case

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

1 . The background of the case

3 . The applicant had no documented history of mental illness.

4 . She refers to a history of both physical and psychological abuse within her family.

5 . On 30 July 2003 the applicant, who had already reached the age of legal majority, was taken by force by her parents to the Socola Psychiatric Hospital of Iaşi. The applicant was admitted to the hospital at her mother ' s request. The medical evidence of Socola Psychiatric Hospital stated that “it was the first time the patient had been placed in a psychiatric hospital, following her mother ' s request, because of her anxious and negative behaviour, irritability, a tendency to cry easily and depression, which were a reaction to a conflict with her parents”.

6 . Following her psychiatric examination, the psychiatrist, Dr M.L., noted that the applicant was able to orientate herself in time and space, that she was cooperative, had good communication skills but that she was sad, anxious and disturbed. The only specific reference to the applicant ' s concrete behaviour made by the psychiatrist was that she had confessed to practising yoga for three years against her parents ' will and that she had complained of being “forced” by them to eat meat, although she had not wanted to, and of her mother trying totally to control her actions.

7 . During her hospitalisation, which lasted until 8 August 2003, the doctors observed that she was not suffering from any mental disorder. The official report concluded that she had “reactive depression” ( reacţie depresiv-anxioasă situaţională ) in a post-traumatic context.

8 . The applicant was attending weekly yoga classes, organised by the Movement for Spiritual Integration in Absolute ( Mişcarea pentru Integrare Spirituală în Absolut – MISA, hereafter). Meanwhile, MISA was subject to a large-scale negative press campaign. There were reports of police abusing people who practised yoga and members of MISA, such as that by Amnesty International of 27 May 1997 (AI Index EUR 39/03/97). MISA ' s leader faced criminal investigations for the sexual corruption of minors. Following a large-scale police operation, including the arrest of several dozens of MISA members, MISA ' s leader left the country for Sweden . In 2005, the Swedish authorities refused an extradition request made by the Romanian authorities.

2. The applicant ' s deprivation of liberty and her subsequent placement in a psychiatric institution

9 . On 19 January 2005 the applicant returned to her hometown, Bârlad, accompanied by M.A., her fiancé, in order to get a copy of her birth certificate. According to her, she needed this document in order to get married and to enrol at the University of Bucharest .

10 . While in the building where the relevant authority operated, she was surrounded by her parents and several other members of her family. Her mother convinced the applicant to go outside and talk to them before getting her birth certificate. Once outside the building, her family members became aggressive, expressing their disapproval of her intention to marry.

11 . The applicant ' s grandfather and brother threw M.A. to the ground and started beating him. In the meantime, the applicant ' s parents forced her into a vehicle and drove to her grandparents ' house, in the village Asău. Once they got there, the family members undressed the applicant outside in the cold and took her clothes. Her parents also took her money and identity card.

12 . The applicant was kept in the house. She was threatened and kept under permanent emotional pressure. She was given some old clothes that she had to wear all the time. Her mother constantly watched her, including when the applicant went to the toilet. Furthermore, the applicant ' s mother slept in the same bed as her, watching her at night. Her mother took unpaid leave so that she could watch her daughter all the time.

13 . The applicant claimed that during this period the constant threats and emotional terror, as well as the constant supervision and isolation, caused her unbearable suffering.

14 . On 3 February 2005 the applicant ' s parents asked the head of Săpoca Psychiatric Hospital for medical help in order to keep her under their permanent surveillance. The parents wished to place their daughter in the psychiatric institution in order to prevent her from attending her yoga classes and to separate her from her fiancé, M.A.

15 . For these purposes the applicant ' s parents took her by force to the Nifon unit of Săpoca Psychiatric Hospital . As soon as the applicant arrived with her parents at the hospital, the medical assistant was already finishing the paperwork for her hospitalisation. The applicant was never examined and her consent was not sought.

16 . The medical evidence of Socola Psychiatric Hospital stated that the applicant had been “placed in hospital at the request of family members” (“ prin opţiunea MF” ). The diagnosis indicated for her admission to the psychiatric hospital was a borderline personality disorder: “ borderline in development”. It was stated that the applicant had shown signs of “confused priorities, insomnia, physical unrest, verbal hostility and inconsistent ideas”.

17 . The applicant spent eight weeks in the psychiatric institution and was subjected to forcible treatment under the supervision of Dr I. Right from the start, she was given Leponex three times a day. According to the decision of 20 April 2007 of the National Medical Disciplinary Board ( Colegiul medicilor din România ), citing various scientific works, this medication, which has severe side-effects, is recommended for use only in the advanced stages of schizophrenia if no other medication proves to offer a satisfactory improvement in the patient ' s condition.

18 . The applicant could not escape from the hospital as it was in the middle of a forest, situated approximately 40 km from the nearest town, Buzău . Only a minibus bringing medical supplies came along that road. Furthermore, she did not have her identity card or any clothes.

19 . She was released on 1 April 2005.

3. The disciplinary proceedings against Dr I. of the Nifon Psychiatric Unit

20 . On 3 August 2005, the applicant complained to the Buzău County Medical Disciplinary Board, asking it to institute disciplinary proceedings against Dr I. in respect of her forced placement in the psychiatric unit and the treatment that she received there.

21 . On 1 March 2006, the board dismissed the applicant ' s complaint.

22 . On 20 April 2007 the National Disciplinary Board ( Comisia superioară de disciplină ) quashed the local disciplinary board ' s decision of 1 March 2006 and decided that Dr I. was to be held responsible for acting in breach of his duties ( avertisment ). It held that the applicant had had no real opportunity to leave the hospital. Therefore, the conclusion that the treatment had been forced was unavoidable. The doctor had not followed the requirements prescribed by law as he had not consulted the applicant, he had not prescribed the appropriate treatment and had not carried out the monitoring necessary for Leponex treatment.

23 . In particular, the National Disciplinary Board acknowledged that Dr I. had decided to place the applicant in the psychiatric unit against her will, at her family ' s request, without having evaluated whether there had been a real and imminent risk to herself or others, or of her state of health deteriorating. The decision of the National Disciplinary Board noted that there were no medical records which could have disclosed such a risk. Moreover, Dr I. had not carried out a complete psychiatric examination. Therefore, the Leponex treatment had not been justified, given that this medication should be used exclusively in the advanced stages of schizophrenia or in cases of severe borderline personality disorder involving self-harm. It was noted that the applicant had never been diagnosed as suffering from schizophrenia and that the necessary tests for establishing whether she was suffering from a borderline personality disorder had not been conducted at all.

24 . Furthermore, the decision indicated that the treatment she had received had side-effects, such as causing a granulocytosis , which meant that blood tests should have been conducted weekly. The Nifon Psychiatric Unit ' s medical records for the applicant did not show any indication of such blood tests.

4. The period after the applicant ' s release from the Nifon Psychiatric Unit

25 . On 1 April 2005 the applicant was taken against her will to her grandparents ' house. She was kept under surveillance and isolated from the outside world for six months. The applicant ' s mother continued to administer Leponex to the applicant during this period. Furthermore, her correspondence was withheld by her parents for the whole period.

26 . On 10 October 2005 the applicant, helped by friends and her partner, managed to escape from her grandparents ' house. Since then she has settled in Bucharest and married her fiancé, M.A., on 5 November 2005.

5. The first set of criminal proceedings brought in respect of the applicant ' s deprivation of liberty

27 . On 20 January 2005, M.A., the applicant ' s fiancé, lodged a complaint against the applicant ' s parents for kidnapping and illegal deprivation of liberty under Article 182 § 2 of the Criminal Code.

28 . On 24 January 2005 the applicant ' s father gave a statement to a police officer. In his statement the applicant ' s father mentioned that on the day they had met, the applicant had refused to join them in going to the family home. Nonetheless, disregarding the applicant ' s refusal, she had been taken by force by her family and hospitalised. He also mentioned that they had taken these measures because their daughter, the applicant, was a member of a group that practised yoga, MISA.

29 . On 28 January 2005 the police took testimonies of eyewitnesses to the kidnapping. The police also contacted the Nifon Psychiatric Unit requesting that the applicant be heard in the case. Despite the fact that police officer G. visited the applicant in the unit, he refused to take any notice of her statement, according to which she had been deprived of her liberty by force. He only requested information concerning her placement in the hospital.

30 . On 16 March 2005, police officer G., who was in charge of the investigation, proposed not to institute criminal proceedings.

31 . Following G. ' s proposal, the prosecutor ordered that criminal proceedings should not be instituted, by a resolution given on 13 April 2005.

32 . The applicant ' s fiancé and a local NGO, the Association for the Protection of Public Liberties ( Asociaţ ia pentru ap ă rarea libert ăţ ilor publice ), lodged a complaint against the prosecutor ' s decision.

33 . On 23 May 2005 the complaint was rejected as ill-founded. The prosecutor reasoned that the applicant could not have been heard as she was under medication. The prosecutor ' s decision stated that the deprivation of liberty in this case had not been unlawful, as it was “immoral to consider that the parents took their child unlawfully”, given the fact that M.A. “was much older than” the applicant, namely 16 years older, and that “he could not prove to be her fiancé”.

The prosecutor stated in his decision that “when the applicant ' s parents saw on television what happened to young females on MISA premises, it was natural to attempt to bring their daughter back home by any means and to try to ensure her physical and mental recovery”.

34 . No further appeal was submitted against this decision.

6. The second and third sets of criminal proceedings brought by the applicant against her family members, a police officer and Dr I.

35 . On 14 December 2005 the applicant brought proceedings for the aggravated unlawful deprivation of her liberty between 19 January and 10 October 2005 and bodily harm against her parents, D.C. and M.C., her grandparents, P. M. and S.M., her brother, R.C., and two other family members, M. and S. , as well as against police officer G. and Dr I.

a) Proceedings against police officer G.

36 . On 1 June 2006 the applicant was heard by a prosecutor attached to the Bacău County Court. The applicant maintained her allegations and s ought the status of civil party to the proceedings, seeking damages.

37 . On 3 November 2006 police officer G. was also heard in the case.

38 . On 28 November 2006, the prosecutor decided not to institute criminal proceedings against the police officer because of his lack of intention to be involved in the applicant ' s deprivation of liberty. Furthermore, the prosecutor stated that the investigation in respect of the applicant ' s family members should be continued by the Prosecutor ' s Office attached to the MoineÅŸti Court of First Instance.

39 . On 18 January 2007, the applicant appealed against this decision.

40 . On 5 February 2007, the Head of the Prosecutor ' s Office attached to the Bacău County Court quashed the decision of 28 November 2006 and ordered that the investigation be continued. It was stated that further investigations were necessary. In particular, it was indicated that the applicant and the witnesses she proposed should be heard. Furthermore, the relevant medical certificates regarding her mental health and clinical history should be attached to her file.

41 . On 8 May 2007 the prosecutor ordered that criminal proceedings should not be brought against police officer G. or the applicant ' s family members. The prosecutor stated that the applicant ' s medical condition had required her to be placed in a psychiatric facility and that her family ' s actions had been aimed at allowing her to receive medical care, “given the fact that she was involved in MISA” ( Acţiunile familiei reclamantei au fost determinate de faptul că aceasta a intrat în rândul membrilor MISA, familia încercând doar să îi asigure posibilitatea continuării tratamentului ).

42 . The applicant appealed against this decision.

43 . On 13 June 2007 the applicant ' s appeal to the Head of the Prosecutor ' s Office was rejected.

44 . The applicant lodged an appeal with the Bacău County Court.

45 . On 16 November 2007 the Bacău County Court decided the case without further investigation and dismissed the applicant ' s appeal.

46 . On 14 February 2008, the Bacău Court of Appeal dismissed the applicant ' s further appeal as ill-founded. A copy of the decision was served on the applicant on 18 June 2008.

b) Proceedings brought against the applicant ' s family and Dr I.

47 . On 27 February 2007 the Prosecutor ' s Office attached to the MoineÅŸti Court of First Instance ordered that criminal proceedings should not be brought against the applicant ' s family members or the doctor, as the criminal acts, envisaged by Articles 189, 182, 323 of the Criminal Code, could not be proven with sufficient clarity. The decision was upheld on 15 June 2007.

48 . The applicant appealed against these two decisions to the MoineÅŸti Court of First Instance.

49 . On 22 November 2007 the MoineÅŸti Court of First Instance allowed the applicant ' s appeal and quashed the two decisions. Among other things, they took into consideration the decision of the National Disciplinary Board of 20 April 2007 which had stated that Dr I. had acted in breach of the requirements of good medical practice, and medical certificate n o 645/2005 issued by the psychiatrist, Dr P., which stated that the applicant had not been suffering from any psychiatric illness.

50 . The MoineÅŸti Court of First Instance ordered the case to be transferred to the Prosecutor ' s Office attached to the MoineÅŸti Court of First Instance for further investigation. The MoineÅŸti Court of First Instance ordered that the medical staff of the Nifon Psychiatric Unit should be heard, as well as neighbours of the applicant ' s grandmother, P.M.

51 . The prosecutor and the defendants appealed against this decision.

52 . On 11 April 2008, the Bacău County Court declared the prosecutor ' s appeal inadmissible but allowed the appeal of the defendants – Dr I. and six members of the applicant ' s family. The Bacău County Court quashed the decision given by the Moineşti Court of First Instance and dismissed as ill-founded the applicant ' s appeal against the prosecutor ' s decision ordering that criminal proceedings were not to be instituted.

7. Criminal proceedings brought by the ap plicant against the prosecutors F.R. and C.N.

53 . On 30 January 2006 the applicant introduced a complaint to the Prosecutor ' s Office attached to the Supreme Court of Justice against the prosecutor s dealing with her case. The applicant complained about the quality of the investigations. In particular, she argued that the prosecutors had not even taken the most basic steps in the investigation of her case.

On 14 May 2008 it was decided that criminal proceedings would not be instituted against the two prosecutors. On 21 January 2009 the Supreme Court of Justice dismissed the applicant ' s appeal as ill-founded. In its reasoning the court found that there was no evidence proving the alleged abuse of office on the part of the prosecutors. The preliminary investigations had show n that the decisions taken by the two prosecutors had been lawful .

B. Relevant domestic law and practice

54 . The relevant extracts of the domestic law and practice are described in the judgment of C.B. v. Romania , no. 21207/03 , § § 37-40 , 20 April 2010 .

COMPLAINTS

55 . The applicant complains that her deprivation of liberty by her family from 19 January to 10 October 2005 and her forced confinement in the psychiatric hospital from 3 February to 1 April 2005 violated her right to liberty and security, as provided by Article 5 § 1 of the Convention.

56 . She alleges that the failure of the domestic authorities to review the lawfulness of her detention violated her rights guaranteed by Article 5 § 4 of the Convention.

57 . Furthermore, the applicant complains that the medical treatment given to her in the Nifon Psychiatric Unit was inappropriate and amounted to inhuman and degrading treatment in breach of Article 3 of the Convention. She also alleges that the criminal investigations conducted following her complaint were ineffective.

58 . Invoking Article 12 of the Convention, the applicant complains that the domestic authorities did not assist her when she was being deprived of her liberty by her family in order to prevent her to marry. She alleges that on 19 January 2005, when she was caught by her relatives, she was about to ask for a copy of her birth certificate in order to get married. Moreover, she complains that the prosecutor ' s decision of 23 May 2005 stated that the applicant ' s relatives could not be blamed for not allowing her to marry M.A. because he “was much older than” her and that “he could not prove to be her fiancé”.

59 . Invoking Articles 9 and 14 in conjunction with Article 6, the applicant complains that she was deprived of her liberty and that she did not enjoy the right to effective investigations into the arbitrary deprivation of her liberty because of her association with MISA, to which the domestic authorities constantly referred in a negative manner.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, was a civil action for damages against the doctor and the hospital an effective remedy within the meaning of this provision?

2. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

3 . In the affirmative to the previous two questions, was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty during the period from 3 February to 1 April 2005 fall within sub-paragraph (e) of this provision?

4 . Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her dete ntion, as required by Article 5 § 4 of the Convention?

Were the procedures by which the applicant and her fiancée sought to challenge the lawfulness of her detention in compliance with Article 5 § 4 of the Convention?

5. Considering the medical treatment imposed on the applicant during her time in the Nifon Psychiatric Unit, has there been an interference with the applicant ' s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

6. With regard to the treatment administrated to the applicant in the Nifon Psychiatric Unit, has she been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

7. Has there been a violation of the applicant ' s right to marry, contrary to Article 12 of the Convention?

8. Has there been an interference with the applicant ' s freedom to practi s e her beliefs, by her participation in the Movement for Spiritual Integration in Absolute ( MISA ) , within the meaning of Article 9 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?

9. Has the applicant suffered discrimination in the enjoyment of her Convention rights on the ground of her association with MISA, contrary to Article 14 of the Convention read in conjunction with Article 5 § 4?