FIFTH SECTIONCASE OF K.K. v. UKRAINE(Application no. 79412/17)     JUDGMENT STRASBOURG7 November 2024   This judgment is final but it may be subject to editorial revision. In the case of K.K. v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lado Chanturia, President, Mykola Gnatovskyy, Úna Ní Raifeartaigh, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 79412/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 November 2017 by a Ukrainian national, Ms K.K. (“the applicant”), who was born in 1986, lives in Ankeny, USA, and was represented by Mr M.O. Tarakhkalo, Ms V. Lebid and Ms A. Kozmenko, lawyers practising in Kyiv;the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent Ms M. Sokorenko, of the Ministry of Justice;the parties’ observations;Having deliberated in private on 10 October 2024,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1.  The case concerns the applicant’s allegedly unlawful detention and compulsory treatment in a psychiatric hospital, and the subsequent failure of the domestic authorities to investigate those events. The applicant relied on Articles 3, 8 and 13 of the Convention.2.  On 9 June 2013, following what is described in medical documents as a hallucinatory episode, the applicant was taken by ambulance to a psychiatric hospital in the village of Stepanivka, in the Kherson region, where she complained of anxiety and exhibited confused thoughts. Although the medical records indicate that the applicant did not consider herself ill, she was admitted to the hospital on the basis of a document said to record her informed consent. However, she later contested the authenticity of her signature on the consent form, suggesting it had been forged by her then husband.3.  During her stay in the hospital, the applicant was diagnosed with an acute psychotic disorder with symptoms of schizophrenia. Neuroleptics were administered to her and she was repeatedly constrained by being secured to her bed. According to her medical file, the hospital staff used restraints when the applicant wanted to “head somewhere without reason”, did not follow commands or became agitated.4.  The applicant claimed that during her treatment she was denied access to bathroom facilities and outdoor exercise, subjected to constant night-time lighting, compelled to undertake janitorial duties and provide care for other patients, not allowed to use clean clothes or undergarments, and prohibited from receiving visits from her family.5.  On 22 June 2013 the applicant’s mother complained to the police that she had been unlawfully detained in the hospital. On the same day the applicant was discharged from the hospital on request from her and her mother in writing, both of them indicating that they had no complaints.6.  Between 18 and 29 September 2014 the applicant voluntarily underwent in-patient psychiatric assessment at the Vinnytsia regional psychiatric hospital, which determined that she did not suffer from any mental disorders.7.  In 2014 the applicant filed several complaints with various state authorities, including the prosecutor’s office, concerning, inter alia, her hospitalisation and ill-treatment at the hospital, in which she also alleged a conspiracy between the hospital staff and her then husband, who wanted to deprive her of legal capacity. None of these complaints resulted in the launching of a criminal investigation.8.  In March 2016 the applicant lodged a criminal complaint alleging unlawful detention and ill-treatment in the psychiatric hospital. On 24 June 2016 the police began a criminal investigation under Article 151 of the Criminal Code of Ukraine (“unlawful psychiatric confinement”). No criminal investigation into the applicant’s allegations of ill-treatment has ever been launched.9.  During the investigation the applicant actively pursued the case and adduced additional evidence, including the court hearing record where her then husband reportedly admitted having signed the hospital consent form in her name. There is no indication that this record has ever been examined by the authorities.10.  The investigation was discontinued and resumed on two occasions.[1] In a ruling of 16 November 2020, the Kherson Court of Appeal responded to the applicant’s complaint by finding that the investigation had been ineffective and the investigating authorities had never examined the applicant’s arguments.11.  According to the Government, following the occupation of Kherson by the Russian Federation, the case file had been lost, and it could not be restored from records. The investigation remains open.relevant legal framework12.  Under the Psychiatric Assistance Act of 22 February 2000, as in force at the relevant time, persons suffering from a mental disorder could be compulsorily hospitalised if they could only receive the appropriate medical treatment as an inpatient in a mental-health facility and if, as a result of a serious mental disorder, they committed or expressed real intent to commit acts which were directly dangerous to themselves or to others; or if they were unable to deal with their basic needs. Such persons should have been assessed within the previous twenty-four hours by a panel of psychiatrists and the mental-health facility should have applied to a court for an order for compulsory hospitalisation.THE COURT’S ASSESSMENT13.  Relying on Articles 3, 8 and 13 of the Convention, the applicant complained that her compulsory detention and confinement in the psychiatric hospital had been unlawful and that she had been ill-treated there. She also complained that the investigation into her complaints had been ineffective and unduly lengthy.14.  As the master of the characterisation to be given in law to the facts of the case, the Court considers that the applicant’s complaints should be examined under Articles 3 and 5 § 1 of the Convention. Given that the applicant’s complaints largely concern her allegedly unlawful detention in and confinement to the psychiatric hospital, the Court considers it appropriate to first examine the issue under Article 5 § 1 of the Convention.scope of the case15.  In her submissions of 17 July 2023 made in reply to the Government’s observations, the applicant complained for the first time that while she was hospitalised, her treating doctor had also sexually harassed her.16.  The Court considers that this new complaint does not constitute an elaboration or elucidation of the applicant’s original complaints, on which the parties have commented. It considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see Korneykova and Korneykov v. Ukraine, no. 56660/12, §§ 95-96, 24 March 2016).ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTIONAdmissibility17.  The Government submitted that the applicant had failed to exhaust domestic remedies as she could have initiated civil proceedings against the hospital administration either for damages or to seek a declaration that their actions had been unlawful.18.  The applicant disagreed, arguing that she had pursued a criminal-law remedy, which seemed the most effective course of action in her case and that the compensation proceedings could not offer adequate redress.19.  The Court reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot also be required to have tried others that were available but probably no more likely to be successful (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999). The applicant in the present case sought the criminal prosecution of the hospital staff responsible for her unlawful psychiatric confinement. She did not claim in the domestic proceedings that her hospitalisation had been an act of medical negligence, but rather that it had been the result of the culpable conduct of the medical personnel who had intentionally deprived her of her liberty on the basis of a forged consent form (see paragraph 9 above). In these circumstances, criminal proceedings reasonably appeared preferable to the applicant, as they allowed the investigative authorities to collect the evidence essential for the determination of her case. The applicant’s recourse to criminal proceedings therefore does not appear to be unreasonable and she cannot be reproached for having chosen to follow that course of action. Accordingly, the Government’s objection must be rejected.20.  The Court notes that this 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.Merits21.  The applicant claimed that her admission to the psychiatric hospital and subsequent thirteen-day detention there did not fall within the permissible grounds for deprivation of liberty under Article 5 § 1 of the Convention.22.  The Government disputed the claim that Article 5 § 1 applied to the applicant’s complaint, arguing that her admission to and stay in the psychiatric hospital had been voluntary.23.  The Court considers it necessary to determine in the first place whether the applicant’s hospitalisation for thirteen days amounted to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention.24.  According to the Court’s case-law, where detention or confinement for psychiatric reasons are concerned, the notion of deprivation of liberty should comprise an objective and subjective element (see Stanev v. Bulgaria [GC], no. 36760/06, §§ 115-20, ECHR 2012; Storck v. Germany, no. 61603/00, §§ 71-76, ECHR 2005-V). In the present case, the Court observes, as regards the objective element, that the medical staff exercised complete and effective control over the applicant’s treatment, care and residence throughout her stay in the hospital (see Atudorei v. Romania, no. 50131/08, § 129, 16 September 2014). As to the subjective element, there is nothing except the contested consent form (see paragraph 2 above) to suggest that the applicant’s stay in the hospital was voluntary or that she could have freely left it at any time (see Aftanache v. Romania, no. 999/19, § 81, 26 May 2020; Kaganovskyy v. Ukraine, no. 2809/18, § 85, 15 September 2022). The Court attaches considerable weight to the undisputed element of coercion in the medical records, specifically the documented use of physical restraint when the applicant attempted to leave (see paragraph 3 above). It also appears that the applicant was discharged only after her mother’s intervention and recourse to the police (see paragraph 5 above). In these circumstances, her stay in the hospital could not be considered voluntary, thereby constituting a deprivation of liberty falling within the ambit of Article 5 § 1 of the Convention. That provision therefore applies in the present case.25.  The Government have not put forward any permissible justification for the applicant’s deprivation of liberty. Since it took place in the context of the applicant’s alleged mental illness, the Court will assess whether her detention in the present case was justified under sub-paragraph (e) of Article 5 § 1 of the Convention.26.  The relevant general principles concerning the deprivation of liberty of persons of unsound mind under Article 5 § 1 (e) of the Convention have been summarised in Ilnseher v. Germany ([GC], nos. 10211/12 and 27505/14, §§ 127-34, 4 December 2018). The lawfulness of detention for the purposes of Article 5 § 1 (e) presupposes conformity both with domestic law and with the purpose of the restrictions permitted by Article 5 § 1 (e) (see, inter alia, Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33).27.  Turning to the circumstances of the present case, the Court, relying on the relevant legal provisions (see paragraph 12 above), cannot but note that the domestic procedure for compulsory treatment had been completely disregarded: there had been neither an assessment by a panel of psychiatrists nor a judicial decision authorising the applicant’s detention.28.  Moreover, it has not been reliably shown by the Government that the applicant was of unsound mind prior to her hospitalisation. Although the available documents indicate that the applicant exhibited certain signs of mental instability on the day of her admission to the hospital, it was not argued by the Government that the applicant presented a risk to herself or anyone else and that therefore her mental condition was of a kind or degree warranting compulsory detention (see X v. Russia, no. 3150/15, §§ 42-44, 20 February 2018). In addition, a psychiatric assessment carried out one year later demonstrated that she did not suffer from any mental disorders (see paragraph 6 below).29.  In the light of the above, the Court considers that the applicant’s detention in the psychiatric hospital did not fall within the terms of sub‑paragraph (e) of Article 5 § 1 and that it was therefore unlawful. Accordingly, there has been a violation of Article 5 § 1 of the Convention.alleged violation of article 3 of the conventionAdmissibility30.  On the basis of the same arguments as those presented in respect of the Article 5 complaint, the Government argued that the applicant had failed to exhaust the available domestic remedies (see paragraph 17 above).31.  The Court has already examined and dismissed the Government’s objections related to the exhaustion of domestic remedies (see paragraph 19 above). It considers that those objections should likewise be dismissed in so far as they relate to the applicants’ complaints under Article 3. The Court further notes that this 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.Merits32.  The applicant complained that her compulsory medical treatment in the psychiatric hospital and the actions of its staff (see paragraphs 3-4 above) amounted to a violation of Article 3 of the Convention and that her complaints in this regard had not been duly investigated.33.  The Government contested these arguments, claiming that the applicant had not presented any evidence that her alleged ill-treatment had attained the minimum level of severity to fall within the scope of Article 3. They could not provide more information on the merits of the substantive limb of the applicant’s complaint because the documentation from her criminal case had been lost. As to the procedural limb, the investigation into her complaint of ill-treatment had been thorough.34.  The Court considers it appropriate to first examine whether the applicant’s complaints of ill-treatment were properly investigated by the authorities. It observes that, despite the applicant’s specific requests, the domestic authorities have never investigated her allegations of ill-treatment (see paragraph 8 above). Notwithstanding the applicant’s initial delay in coming forward to the authorities (see paragraph 7 above), in the Court’s view the outcome of the investigation should not have been significantly affected given the abundance of available documentary evidence about the applicant’s compulsory psychiatric treatment and the use of physical restraints. The Court also sees no reason to depart from the findings of the domestic court which acknowledged that the investigation of the applicant’s allegations did not reflect a serious effort to determine the relevant facts (see paragraph 10 above). In addition, the criminal investigation into the applicant’s complaints was twice terminated and then resumed following an appeal by the applicant (see paragraph 10 above). Such repeated interruptions within one set of proceedings reveal a serious procedural deficiency (see, for example, Spinov v. Ukraine, no. 34331/03, § 56, 27 November 2008). Obviously, the new round of investigation ordered in the present case can hardly be expected to yield results given the loss of the case-file material. The investigation cannot therefore be considered to have been effective.35.  Turning to the substantive aspect of Article 3 of the Convention, the Court reiterates that the general principles concerning compulsory medical interventions and treatment in a psychiatric facility, and also the use of measures of physical restraint, have been summarised in Gorobet v. Moldova, no. 30951/10, §§ 49-51, 11 October 2011 and M.S. v. Croatia (no. 2), no. 75450/12, §§ 103-105, 19 February 2015.36.  Although the applicant in the present case initially stated in writing that she had no complaints against the hospital (see paragraph 5 above), it is undisputed by the parties and confirmed by the available documents that during the applicant’s detention in the psychiatric hospital she was administered neuroleptics and subjected to physical restraint. Having regard to its earlier findings (see paragraph 28 above), the Court considers that no medical necessity to subject the applicant to compulsory psychiatric treatment has been shown to have existed. The Government produced no evidence to the contrary (see Bataliny v. Russia, no. 10060/07, §§ 88-90, 23 July 2015). With regard to the use of physical restraints, the Court observes that the applicant’s medical records do not contain any evidence that the applicant posed a danger to herself or others or that such measures were used in response to an attempt to attack anyone. Instead, the circumstances suggest that physical restraint was used against the applicant with the sole purpose of restricting her freedom of movement. The Court therefore concludes that the Government have failed to show that the use of physical restraints on the applicant was necessary and proportionate in the circumstances (see M.S. v. Croatia (no. 2), cited above, §§ 106-10).37.  In the Court’s view such unlawful and arbitrary treatment exceeded the threshold of severity required to engage Article 3 of the Convention and was at the very least capable of arousing in the applicant feelings of fear, anguish and inferiority. Accordingly, the Court considers that the applicant was subjected to treatment contrary to Article 3 of the Convention. In the light of this finding, the Court considers that there is no need to examine the applicant’s other complaints (see paragraph 4 above) which might also be relevant for the assessment under Article 3.38.  In the light of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural and substantive limbs.APPLICATION OF ARTICLE 41 OF THE CONVENTION39.  The applicant claimed 230,000 euros (EUR) in respect of non‑pecuniary damage and EUR 5,925 in respect of costs and expenses incurred before the Court.40.  The Government contested those claims.41.  The Court awards the applicant EUR 16,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable to the applicant.42.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 4,500 for costs and expenses in the proceedings before it, plus any tax that may be chargeable to the applicant, to be paid directly into the bank account of her representative, Mr M. Tarakhkalo.FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 5 § 1 of the Convention;Holds that there has been a violation of the substantive and procedural limbs of Article 3 of the Convention;Holds(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:(i)  EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;(ii)  EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be transferred directly to the account of the applicant’s representative Mr M. Tarakhkalo;(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 7 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Lado Chanturia Deputy Registrar President[1] On 30 September 2016 by the prosecutor based on there being no sufficient indication that a criminal offence had been committed and on 25 June 2020 by the Kherson Town Court in view of the expiration of the statute of limitations and because of the failure to identify the perpetrator.