FIFTH SECTIONCASE OF SHANOVSKYY v. UKRAINE(Application no. 61431/15)      JUDGMENT    STRASBOURG13 October 2022This judgment is final but it may be subject to editorial revision.In the case of Shanovskyy v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:Stéphanie Mourou-Vikström, President,Lado Chanturia,Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 61431/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 November 2015 by a Ukrainian national, Mr Dmytro Yaroslavovych Shanovskyy (“the applicant”), born in 1980 and living in Ivano-Frankivsk, who was represented by Mr P. Polyak, a lawyer practising in Chernivtsi;the decision to give notice of the complaints under Article 5 §§ 1 and 4 of the Convention to the Ukrainian Government (“the Government”), represented by their acting Agent, Ms O. Davydchuk, and to declare the remainder of the application inadmissible;the parties’ observations;Having deliberated in private on 22 September 2022,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case concerns the allegedly unlawful continued detention and treatment in a psychiatric facility of the applicant since the end of 2012, which had been ordered by the courts despite the Hospital’s requests for his release. He relied on Article 3, Article 5 §§ 1 and 4 and Article 13 of the Convention.2. The applicant was held in continued compulsory psychiatric confinement as ordered by a domestic court in 2010 in the context of criminal proceedings against him on charges of murder, which he was found to have committed while lacking mental capacity. Until 24 July 2012 the applicant was held in a psychiatric facility with a strict supervision regime. On 24 July 2012, following a court decision, the applicant was transferred to the Ivano-Frankivsk Regional Psychiatric Hospital No.1 (“the Hospital”), a facility with an ordinary supervision regime.3. On 31 October 2012, 8 May and 5 December 2013, 14 May and 7 October 2014 the Ivano-Frankivsk City Court (“the City Court”) dismissed applications made by the Hospital for the applicant’s release so that he could undergo outpatient psychiatric treatment, finding that he still posed a danger to the public. The applicant’s appeal against the decision of 31 October 2012 was declared time-barred and he did not lodge an appeal against the decision of 8 May 2013. His appeals against the decisions of 5 December 2013, 14 May and 7 October 2014 were dismissed by the Ivano-Frankivsk Court of Appeal (“the Court of Appeal”) on 28 January, 11 June and 11 November 2014 respectively. He did not appeal in cassation against the decisions of 28 January and 11 June 2014. By a final decision of 14 April 2015, a cassation court dismissed the applicant’s appeal on points of law against the decision of the Court of Appeal of 11 November 2014.4. On 30 March 2015 the Hospital, based on a medical examination of the applicant carried out by a commission of psychiatrists on 17 March 2015, requested the City Court to release the applicant for a compulsory course of outpatient psychiatric treatment noting that during the previous two years his mental condition had improved following medical treatment, and that he had become stable and unaggressive.5. On 9 July 2015 the City Court, having heard a psychiatrist from the Hospital and the applicant, dismissed the Hospital’s request finding that the report of the commission of psychiatrists of 17 March 2015 lacked proper reasoning justifying the need for a change to the coercive measures then in place. In particular, the conclusion in the 2015 report contradicted a report compiled by the same commission in 2013, in which it had been stated, based on the applicant’s behaviour at the Hospital, that the latter had remained unstable and aggressive. Noting further the short interval between the 2013 and 2015 reports and referring to the gravity of the charge against the applicant and the aggressive behaviour he had displayed during one of the court hearings, the City Court concluded that the applicant still posed a danger to the public and that there was a risk that the applicant would not comply with his treatment if released, and that he might reoffend. The applicant’s request that two other doctors from the Hospital be examined as expert witnesses was dismissed by the court as irrelevant.6. On 7 August 2015 the Court of Appeal dismissed the applicant’s appeal against the above decision. In doing so, it largely upheld the reasoning given by the first-instance court. Regarding the applicant’s complaint that the first-instance court had lacked the expertise necessary to declare him mentally ill on the basis of his behaviour in the courtroom, the Court of Appeal noted that the court had not made a diagnosis but had only noted a fact.7. On 5 November 2015 the Higher Specialised Court of Ukraine for Civil and Criminal Matters dismissed a request from the applicant’s lawyer for leave to appeal in cassation and upheld the findings of the lower courts. As regards a complaint by the applicant that the courts had failed to order a forensic psychiatric examination in order to have an alternative opinion about the state of his mental health, the cassation court noted that the power to order such an examination was a right and not an obligation of the courts. Arguments put forward by the applicant as to the irrelevance of the reports made in 2013 to the situation in 2015, given that the situation had evolved in the intervening period, remained unanswered.8. On 9 November 2017, following several rounds of proceedings and various appeals lodged by the applicant, the Ivano-Frankivsk Court allowed a subsequent request from the Hospital and released the applicant for compulsory outpatient psychiatric treatment which is, according to the Government, still underway.THE COURT’S ASSESSMENT9. The applicant complained that, starting from the end of 2012, his continued detention and treatment in a psychiatric facility, which had been ordered by the courts despite the Hospital’s requests for his release, was unlawful. He relied on Article 3, Article 5 §§ 1 and 4 and Article 13 of the Convention.10. Bearing in mind that it is master of the characterisation to be given in law to the facts of the case (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 145, 19 December 2017, and Elena Cojocaru v. Romania, no. 74114/12, § 74, 22 March 2016), the Court considers that the complaints at hand should be examined from the standpoint of Article 5 §§ 1 and 4 of the Convention alone.ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTIONAdmissibility11. The Government argued that the application was inadmissible since the applicant had failed to inform the Court that he had ultimately been released from hospital in 2017 and that it was thus an abuse of his right of application. However, in his application the applicant complained of a violation of his right guaranteed by Article 5 of the Convention only in connection with the period until 5 November 2015, having provided the relevant information and evidence to the Court. He does not appear to have extended the scope of his complaint in his comments on the Government’s observations. Therefore, his failure to notify the Court of the change in his situation after 2015 has no bearing on the examination of the case. The Court thus dismisses this part of the inadmissibility plea raised by the Government.12. On the other hand, the Court upholds the Government’s preliminary objection as regards non-exhaustion of domestic remedies in respect of the courts’ decisions of 31 October 2012, 8 May and 5 December 2013, and 14 May 2014, by which the Hospital’s request for the applicant’s release for compulsory outpatient treatment had been dismissed, as the applicant had failed to appeal against the decisions either to the Court of Appeal or in cassation (see paragraph 3 above).13. As regards the court’s refusal of 7 October 2014, the Court observes that the applicant’s complaint against that decision was ultimately dismissed in cassation on 14 April 2015, that is more than six months before the present application was lodged. Therefore, this part of the complaint must also be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.14. As to the applicant’s complaint that the court decision of 9 July 2015 to continue his compulsory confinement in hospital had been unfair and not based on sufficient grounds, the Court notes that that complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.Merits15. It has not been disputed by the parties to the present case that the applicant’s psychiatric confinement amounted to a deprivation of his liberty within the meaning of Article 5 § 1 (e) of the Convention. The Court sees no reasons to hold otherwise (see Stanev v. Bulgaria [GC], no. 36760/06, §§ 121-132, ECHR 2012).16. The Court further observes that the applicant’s complaint does not concern his admission to the Hospital for compulsory psychiatric treatment but rather his subsequent retention there.17. The Court reiterates that no deprivation of liberty of a person considered to be of unsound mind may be considered in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the protection against arbitrariness which is required by and inherent in Article 5 of the Convention (see Kadusic v. Switzerland, no. 43977/13, § 43, 9 January 2018, with further references). Moreover, the objectivity of the medical assessment entails a requirement that it be sufficiently recent (see M.B. v. Poland, no. 60157/15, § 58, 14 October 2021).18. Under Article 95 of the Criminal Code of Ukraine of 5 April 2001, as in force at the relevant time, decisions of domestic courts in cases regarding the prolongation of a person’s compulsory confinement or changes to coercive measures should have been based on a written expert opinion regarding the person’s mental state given by a board of psychiatrists employed by the institution where the person in question had been confined; the board of psychiatrists was supposed to examine the person at least once every six months to make a proposal to the court as to whether the compulsory inpatient treatment was to be continued or terminated. According to Article 75 of the Code of Criminal Procedure, as in force at the relevant time, domestic courts were entitled to order a fresh examination by other experts in case of doubt as to the medical report available. Similar provisions were contained in section 19 of the Psychiatric Medical Assistance Act and Article 21 of the Resolution of the Plenary of the Supreme Court of Ukraine “On the practice of application by courts of coercive measures of a medical nature and compulsory treatment” (no. 7, 3 June 2005).19. The Court observes that the request made by the Hospital on 30 March 2015 for the applicant to continue his treatment as an outpatient was based on expert opinion delivered by a panel of psychiatrists on 17 March 2015, according to which the applicant’s mental health had improved following his medical treatment to an extent that it no longer warranted his confinement in the Hospital (see paragraph 4 above). Having dismissed the request as unfounded, none of the domestic courts, which had no expertise in psychiatry, based their decisions on any fresh medical expert report on the applicant’s mental health but relied on the expert assessment which had been produced two years earlier (see paragraphs 5 and 7 above). The Court is not convinced that the expert assessment in question could, as such, be considered recent and objective within the meaning of the Court’s case-law on Article 5 § 1 (e) (see Kadusic, cited above, § 55, and Herz v. Germany, no. 44672/98, § 50, 12 June 2003). Moreover, it transpires from the expert opinion of 17 March 2015 provided by the Hospital that the applicant’s condition had evolved since 2013. In these circumstances, namely in case of doubt as to the objectivity of the report provided by the Hospital, the domestic courts should at least have sought an alternative medical expert opinion on the applicant’s mental health (compare Ruiz Rivera v. Switzerland, no. 8300/06, § 64, 18 February 2014). Such a possibility was made available to the courts by the relevant legislation, and it appears from the case file that the applicant had requested them to make use of it (see paragraphs 18 and 7 above). Having refused the applicant’s proposal to obtain an alternative expert opinion, the domestic courts provided no plausible explanation as to why it had been unnecessary to do so.20. In the light of the above considerations, the Court finds that the assessment of the applicant’s mental state made by the domestic courts when dismissing the Hospital’s request of 30 March 2015 for the applicant’s release had not been based on a recent and objective medical expert opinion. This finding is sufficient for the Court to conclude that the applicant’s continued deprivation of liberty following the decision of the first-instance court of 9 July 2015, as upheld by the higher courts, was not compatible with the requirements of Article 5 § 1 (e) of the Convention.21. The applicant further complained that the domestic courts had failed to duly address his arguments and substantiate their decision when dismissing the Hospital’s request for his release.23. Having regard to its above finding under Article 5 § 1, the Court considers that it is not necessary to examine the applicant’s further complaint under Article 5 § 4 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION24. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 in respect of the costs and expenses he had incurred in the proceedings before the Court.25. The Government contested the applicant’s claims.26. Having regard to the circumstances of the present case and ruling on an equitable basis, the Court grants the applicant’s claim for non-pecuniary damage in full and awards him EUR 7,000 under this head, plus any tax that may be chargeable.27. Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses in the domestic proceedings as unsubstantiated. It notes in this respect that the applicant has failed to provide an itemised invoice which would enable the Court to determine whether the alleged expenses were “reasonable as to quantum”. Furthermore, the contract for legal services submitted by the applicant appears not to have covered the proceedings before the Court.

Outcome for Article 5: violation