Published on 28 November 2022

FIFTH SECTION

Application no. 33630/17 Oleksandr Oleksandrovych CHEREDNYCHENKO against Ukraine lodged on 26 April 2017 communicated on 9 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the compulsory psychiatric treatment of the applicant in a psychiatric hospital ordered by the court in the framework of criminal proceedings against the applicant on charges of murder.

The applicant’s hospitalisation for compulsory medical treatment on account of schizophrenia was ordered by the Sverdlovsk City Court of the Luhansk Region on 16 November 2011. The applicant was placed in the Ukrainian psychiatric hospital with strict supervision in Dnipropetrovsk (“the Hospital”). Between 2012 and 2016, at the Hospital’s requests, the domestic court regularly prolonged the applicant’s compulsory psychiatric confinement.

On 11 April 2016 the Krasnogvardiyskyy District Court of Kharkiv (“the District Court”) allowed the Hospital’s request and prolonged the applicant’s confinement. According to the applicant, by virtue of Article 95 of the Criminal Code of Ukraine, which provided that the judicial review of the lawfulness of the continued compulsory detention of persons of unsound mind was to be held at least every six months, the District Court’s decision was valid until 11 October 2016.

On 27 October 2016 the District Court examined and allowed the Hospital’s request for the applicant’s continued in-patient psychiatric treatment under strict supervision regime. The request was lodged on 29 September 2016 and based on the results of the applicant’s medical examination by a panel of psychiatrists on 20 September 2016.

The applicant’s lawyer lodged an appeal against the decision of 27 October 2016 in which he complained, inter alia , about the Hospital’s failure to release the applicant on 11 October 2016 even though on that day six months had elapsed since the adoption of the previous court decision of 11 April 2016 ordering his continued compulsory psychiatric treatment.

On 7 October 2016 the Dnipropetrovsk Regional Court of Appeal dismissed the appeal as unsubstantiated. In doing so it noted, inter alia , that the request for the applicant’s continued detention was lodged by the Hospital before the expiry of the six-months limitation period set by the law.

On 3 March 2017 the Higher Specialised Court for Civil and Criminal Matters returned without examination the cassation appeal against the judgment of 7 October 2016, lodged by the applicant’s lawyer, based on the lawyer’s failure to comply with procedural formalities.

On 6 September 2018 the Samarskyy District Court of Dnipropetrovsk allowed the Hospital’s request for the applicant’s release for an out-patient treatment as his psychiatric condition had improved.

Relying on Article 5 §§ 1 and 4, Articles 6 and 13 of the Convention, the applicant complains that his detention in the Hospital from 11 to 26 October 2016 was unlawful and that he did not have at his disposal an effective procedure by which he could challenge the lawfulness of his continued detention during this period. The Court, being the master of characterisation to be given in law to the facts of a case, finds that the complaints at issue fall to be examined under Articles 5 §§ 1 and 4 of the Convention only.

QUESTIONS TO THE PARTIES

1. Was the applicant’s deprivation of liberty from 11 to 26 October 2016 compatible with Article 5 § 1 (e) of the Convention (see Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 127, 4 December 2018, and Rooman v. Belgium [GC], no. 18052/11, § 192, 31 January 2019)? More precisely:

- was there a lawful basis for the deprivation of the applicant’s liberty within this period of time?

- did the delay in examining the Hospital’s request of 29 September 2016 that the applicant continued his compulsory inpatient treatment affect the lawfulness of the deprivation of the applicant’s liberty given that more than six months had elapsed since the adoption of the previous court decision of 11 April 2016 ordering continued compulsory psychiatric treatment of the applicant?

2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his continued detention for compulsory medical treatment within the period at issue, as required by Article 5 § 4 of the Convention? If so, did it ensure the existence of adequate safeguards against arbitrary detention and allow the applicant to initiate a judicial review of that detention, including by lodging a request for release, of his own motion (see X. v. Finland , no.34806/04, § 170, 3 July 2012)?

The Government are requested to provide the Court with a copy of all documents relevant to the case.