Judgment (Merits and Just Satisfaction) of Court (Fifth Section), February 26, 2015 (case CASE OF ZAICHENKO v. UKRAINE (no. 2))

Resolution DateFebruary 26, 2015
Issuing OrganizationCourt (Fifth Section)

   FIFTH SECTION      CASE OF ZAICHENKO v. UKRAINE (no. 2) (Application no. 45797/09)          JUDGMENT    STRASBOURG  26 February 2015    This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Zaichenko v. Ukraine (no. 2),The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:              Mark Villiger, President,
              Angelika Nußberger,
              Ganna Yudkivska,
              Vincent A. De Gaetano,
              André Potocki,
              Helena Jäderblom,
              Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,Having deliberated in private on 3 February 2015,Delivers the following judgment, which was adopted on that date:


  1.  The case originated in an application (no. 45797/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Georgiyevich Zaichenko (“the applicant”), on 24 August 2009.

  2.  The Ukrainian Government (“the Government”) were represented by their then Agent, Ms Valeria Lutkovska.

  3.  The applicant complained, in particular, about his involuntary psychiatric confinement and the collection of information about him by the police in that context.

  4.  On 28 April 2011 the application was communicated to the Government.



    A.  Administrative offence proceedings against the applicant and his psychiatric confinement

  5.  The applicant was born in 1956 and lives in Dnipropetrovsk.

  6.  He instituted numerous sets of proceedings before the domestic courts at various times.

  7.  In July 2009 the Dnipropetrovsk Regional Administrative Court received several letters from the applicant, which contained extremely rude remarks about the judges involved in his cases (including calling one of the judges “a louse [whose recusal was] warranted by his basic knowledge of parasitology”).

  8.  On 23 July 2009 the court drew up an administrative offence report in respect of the letters, stating that the applicant was in contempt of court. The case was sent to the Chervonogvardiyskyy District Court of Dnipropetrovsk (“the Chervonogvardiyskyy Court”) for examination.

  9.  On the same day the Chervonogvardiyskyy Court, sitting in a single-judge formation, held a hearing with the applicant’s participation. According to the minutes of the hearing, the applicant insisted on his vision of the situation as presented in his letters, which he did not consider to be rude. Having studied the case file and heard the applicant, the court ordered an in-patient forensic psychiatric examination of the applicant with a view to establishing whether he could be held legally accountable. The examination in question was to be carried out by the Forensic Psychiatric Examinations Department of the Dnipropetrovsk Regional Psychiatric Hospital (“the psychiatric hospital”). The judge relied on Article 20 of the Code of Administrative Offences and section 21 of the Psychiatric Assistance Act (see paragraphs 60 and 63 below). The ruling stated that it was not amenable to appeal.

  10.  The applicant was taken by the police from the hearing room to the Chervonogvardiyskyy District police station, where he was held for about three hours. He was then taken to the psychiatric hospital.

  11.  On the following day, 24 July 2009, the psychiatric hospital informed the Chervonogvardiyskyy Court that it would be unable to conduct a forensic psychiatric examination of the applicant, as ordered by the court, because there were no documents about his collateral history or personality in the case file. The applicant was discharged from the hospital without any documents having been issued concerning his psychiatric condition.

  12.  On 31 July 2009 the applicant lodged an appeal against the ruling of 23 July 2009. He submitted, in particular, that it had been in breach of his right to the presumption of good mental health and that such a ruling was not mentioned in the list of rulings a court was entitled to deliver under the Code of Administrative Offences. The applicant also referred to the statement contained in the impugned ruling that it was not amenable to appeal as another indication of its unlawfulness and arbitrariness.

  13.  On 4 August 2009 the President of the Chervonogvardiyskyy Court instructed the police to collect information on the applicant’s personality, which was required for the psychiatric hospital to establish his mental state. The police were instructed, in particular, to collect any documentation relating to psychiatric treatment or drug therapy received by the applicant, as well as character references for him from his relatives, neighbours and colleagues.

  14.  On the same day two of the applicant’s neighbours wrote quite positive character references about him for the police.

  15.  On 6 August 2009 the local hospital informed the police that the applicant had no psychiatric medical history and was not under psychiatric monitoring.

  16.  On 14 August 2009 the Dnipropetrovsk Regional Court of Appeal dismissed the applicant’s appeal against the ruling of 23 July 2009 without examining it on the merits. It noted that the contested ruling concerned a procedural issue and was not amenable to appeal.

  17.  On 2 September 2009 the Chervonogvardiyskyy Court requested the police to ensure that the applicant attended for his in-patient forensic psychiatric examination.

  18.  On 14 September 2009 the police took the applicant back to the psychiatric hospital. The circumstances of the apprehension are unclear.

  19.  On 21 September 2009 a senior expert at the forensic psychiatric examinations department of the psychiatric hospital wrote a letter to the Chervonogvardiyskyy Court in which he noted that some additional documents were required in connection with the applicant’s examination: a character reference from his former employer and detailed information about his mental state from his cousin and ex-wife. Without that information it was considered impossible to carry out his examination.

  20.  On 2 October 2009 the applicant’s cousin explained the applicant’s character and behaviour, without noting any particularities. He also stated that the applicant had never been married.

  21.  On 8 October 2009 the board of experts delivered its report, according to which, “given the complexity of the case and lack of clarity of the clinical picture”, it was impossible to establish a diagnosis and to give an expert conclusion regarding the applicant’s mental state. It was therefore recommended that he undergo another examination.

  22.  On the same date the applicant was discharged from the hospital without having received the expert report. According to him, one of the experts had assured him that he was in good mental health.

  23.  On 6 November 2009 an official from the psychiatric hospital wrote to the applicant, in reply to his request for a copy of the report of 8 October 2009, stating that he should ask the Chervonogvardiyskyy Court for a copy of the report, as it had been sent there.

  24.  On the basis of the material in the case file, on 19 November 2009 the Chervonogvardiyskyy Court ordered that the applicant undergo another in-patient forensic psychiatric examination. The applicant attempted to challenge that decision on appeal but was unsuccessful.

  25.  On 1 December 2009 the psychiatric hospital returned the case file to the Chervonogvardiyskyy Court without having conducted the psychiatric examination in question. Referring to the respective order of the Public Health Ministry, it said that the Kyiv City Centre of Forensic Psychiatric Examinations or the Ukrainian Research Institute of Social and Forensic Psychiatrics should carry out any further forensic psychiatric examinations required in such complex cases.

  26.  On 18 January 2010 the Chervonogvardiyskyy Court adjourned its hearing with a view to organising the applicant’s further psychiatric examination and its financing.

  27.  On 20 January 2010 the Deputy President of the Chervonogvardiyskyy Court enquired with the local Territorial Department of the State Judicial Administration whether the latter could pay for the applicant’s further psychiatric examination. The reply sent on 22 January 2010 was that no such payment would be possible until the annual budget had been approved.

  28.  On 25 January 2010 the court ordered the applicant’s outpatient psychiatric examination to be carried out by the Zaporizhzhya Regional Psychiatric Hospital.

  29.  Following numerous unsuccessful attempts to ensure the applicant’s attendance, on 16 July 2010 the hospital returned the case file to the Chervonogvardiyskyy Court without having complied with its order.

  30.  On 9 August 2010 the Chervonogvardiyskyy Court discontinued the administrative offence proceedings against the applicant as time-barred.

  31.  The applicant appealed against that ruling. He sought the termination of the proceedings on the ground that no administrative offence had been committed.

  32.  On 17 September 2010 the Dnipropetrovsk Regional Court of Appeal, following a hearing with the applicant’s participation, rejected his appeal by a final ruling.

    B.  Administrative proceedings instituted by the applicant against the psychiatric hospital

  33.  Concerning the alleged unlawfulness of the applicant’s admission to hospital for a psychiatric examination and his subsequent confinement therein

  34.  It appears from the case-file materials that on 9 November 2009 the applicant instituted administrative proceedings in the Zhovtnevyy District Court of Dnipropetrovsk (“the Zhovtnevyy Court”) against the psychiatric hospital. He sought that his hospitalisation and confinement in that hospital be declared unlawful and claimed 500,000 Ukrainian hryvnias (UAH, at the time equivalent to about 41,000 euros) in respect of non-pecuniary damage. The applicant has not...

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