CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 juillet 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sB1AFDE2D { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:14pt } .s2348ECBC { width:232.5pt; display:inline-block } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s507451D6 { width:4.53pt; display:inline-block } .s87E7BBAE { width:202.76pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION               CASE OF BATALINY v. RUSSIA   (Application no. 10060/07)                 JUDGMENT     STRASBOURG   23 July 2015     FINAL   14/12/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Bataliny v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Paulo Pinto de Albuquerque,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 30 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10060/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals, Mr Vladislav Igorevich Batalin (“the first applicant”), Mr Igor Ivanovich Batalin (“the second applicant”) and Mrs Lyudmila Ivanovna Batalina (“the third applicant”), on 7   February 2007. 2.     The applicants, who had been granted legal aid, were represented by Ms I. Sergeyeva and Ms K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicants alleged, in particular, that the psychiatric internment of the first applicant had been unlawful, that judicial review of the decision to intern him had not been available, that he had been ill-treated in the psychiatric hospital, and that there had been no effective investigation thereof. 4.     On 12 October 2012 the above complaints were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1977, 1937 and 1938 respectively and live in Moscow. The second and third applicants are the parents of the first applicant. A.     The first applicant’s placement and treatment in a psychiatric hospital 6.     In 2004 the first applicant, who was suffering from tachycardia and severe headaches, was diagnosed with neurocirculatory dystonia. In 2004 ‑ 05 he underwent treatment in various hospitals in Moscow, without any tangible result. 7.     In April 2005 his illness worsened. 8 .     On 25 May 2005 he called an ambulance and was taken to the neurology unit of Moscow City Clinical Hospital no. 6 (Московская городская клиническая больница № 6) . The doctor in the admissions unit, however, refused to admit him, finding no pathology, and recommended outpatient treatment in a district polyclinic. 9.     Desperate for relief, on the same day the first applicant cut the veins on his forearm. Another ambulance was called for him by the second and third applicants, and he was taken to N.V. Sklifosovsky Research Institute of Emergency Medicine (НИИ скорой помощи им. Н.В.   Склифосовского) . After the first applicant was provided with emergency medical aid at the surgical unit, he was taken to somato ‑ psychiatric unit no.   2 (ПСО-2, “the psychiatric hospital” ) of the Institute with a diagnosis of “chronic somatoform pain disorder, personality disorder, continuous sluggish schizophrenia, cutting of left forearm, attempted suicide”. 10.     On 26 May 2005 the first applicant contacted his parents, asking them to take him home. When the parents arrived, they were not allowed to take him home and were asked to leave. 11.     During the night of 26 to 27 May 2005 the first applicant alleged that he was beaten up. According to him, three nurses held his arms and two recovering patients hit him on the face and body. He was taken to his ward, and one of the nurses allegedly threw him on the bed with such force that his head hit the bedside table, following which he lost consciousness. When the first applicant recovered he found himself bleeding and strapped to the bed with a gag in his mouth. He was given no medical assistance. 12.     The first applicant was subsequently allegedly warned by a doctor, L., that his parents would not be allowed to see him and that it would be put on record that he had himself initiated a brawl. Furthermore, he was allegedly warned that any complaints to the authorities, including the police, would be futile as he would be given a diagnosis which would show that his allegations could not be taken seriously. 13 .     The first applicant remained hospitalised until 9   June 2005. He alleged that he was subjected to scientific research by being treated with Seroquel (a   then new antipsychotic medication) and forbidden all contact with the outside world. He had blood tests every other day. 14 .     Some hours after the first applicant’s discharge from the psychiatric hospital on 9   June 2005, an ambulance was called for him at home due to his state of health. The ambulance doctor saw a haematoma under the first applicant’s right eye, and bruises and contusions around his chest and waist. The first applicant was further diagnosed with hypertensive crisis and severe tachycardia. He was immediately hospitalised in Moscow City Clinical Hospital no.   67 (Московская городская клиническая больница № 67), where he remained until 5   August 2005 and was diagnosed with “depressive hypochondriasis against the background of traumatic encephalopathy”. The diagnosis of personality disorder was not confirmed. B.     The applicants’ complaints 15.     In October 2005 the applicants complained to the Russian Federation Ombudsman that the first applicant had been unlawfully committed and treated in the psychiatric hospital, and that he had been beaten by the hospital nurses with the assistance of two hospital patients. The applicants’ complaint was referred to the Meshchanskiy District Prosecutor’s Office, Moscow, from where it was referred on to the Meshchanskiy District Department of the Interior. 1.     Criminal proceedings in connection with the alleged beatings of the first applicant (criminal case no. 82906) 16 .     After two refusals to institute criminal proceedings, on 2   November 2006 criminal proceedings were instituted (criminal case no. 82906) under Article 116 of the Russian Criminal Code (Beatings). 17.     On 15 November 2006 the first applicant was granted victim status in the proceedings. 18.     On 16 March and 25 June 2007 an investigator from the Meshchanskiy District Department of the Interior investigation department suspended the proceedings on the grounds of an impossibility of identifying the alleged perpetrators. 19.     On 19 March and 1 July 2007 respectively the Meshchanskiy Inter ‑ District Prosecutor’s Office quashed the above decisions and remitted the case for additional investigation. 20 .     On 11 August 2007 the investigator discontinued the proceedings on the grounds of expiry of the procedural time-limit for prosecution. 21 .     On 30 August 2007, however, the above decision was set aside and the proceedings were reopened. 22.     The proceedings were subsequently suspended on 14 January 2008 and 16 March 2009 and resumed again on unspecified dates. 23 .     In 2012 the applicants were informed that the proceedings had been discontinued on 25 November 2010 on the grounds of expiry of the procedural time-limit for prosecution. 24 .     On an unspecified date the decision of 25 November 2010 was set aside and the proceedings were reopened. 25 .     On 22 December 2012 the proceedings were again discontinued. 26 .     On 9 January 2013 the above decision was set aside and the case file material referred to the investigation department for additional investigation, which appears still to be pending. 2.     Criminal proceedings in connection with the first applicant’s placement in a psychiatric hospital and his stay there (criminal case no. 401966) 27.     On 5 March 2007 the complaints concerning the first applicant’s placement in the psychiatric hospital were removed from criminal case no.   82906 for separate examination. 28.     On 24 March 2007 an investigator from the Meshchanskiy Inter ‑ District Prosecutor’s Office refused to institute criminal proceedings. 29.     On 3 May 2007 the Moscow Preobrazhenskiy District Court found the above decision unlawful and groundless. 30.     On 6 July 2007 the acting prosecutor of the Meshchanskiy Inter ‑ District Prosecutor’s Office quashed the decision of 24   March 2007 and ordered an additional inquiry. 31.     On 12 October 2007 criminal proceedings were instituted (criminal case no. 401966) under Article   128   § 2 of the Russian Criminal Code (Unlawful Placement in a Psychiatric Hospital). 32.     On 12 January, 5 March and 27 April 2008 the proceedings were suspended on the grounds of an impossibility of identifying those responsible. 33.     However, on 5 February, 27 March and 27 April 2008 respectively the above decisions were quashed and additional investigations ordered. 34 .     In the meantime, on 18 April 2008 a forensic psychiatric examination was conducted which established that the first applicant’s involuntary psychiatric hospitalisation on 25   May 2005 had been justified (psychiatric pathology of an acute character accompanied by expressed depression with attempted suicide). It was further established, however, that his subsequent stay in the psychiatric ward had been unlawful. In particular, contrary to the provisions of the relevant domestic law (the Psychiatric Treatment Law of 2 July 1992), no report had been drawn up by a panel of psychiatrists in the forty-eight hours following the first applicant’s involuntary hospitalisation on the need for a further stay in the psychiatric hospital, and no application had been made to the court by the head of the psychiatric hospital on the need for the first applicant’s continued involuntary stay in the psychiatric hospital. It was further noted that the first applicant’s mental health episodes between 27   May and 9 June 2005 did not fall under the definition of a “severe” mental disorder or any other acute mental condition, and did not require involuntary psychiatric treatment. 35.     In the absence of any meaningful investigation since the institution of the criminal proceedings, the applicants challenged the investigator before the court for failure to take action. 36.     On 7 May 2008 Preobrazhenskiy District Court found the investigator’s failure to take action unlawful (failure to identify and question witnesses and carry out other relevant investigative actions). 37.     On 28 October 2008 the head of the psychiatric hospital, D., was involved in the proceedings as a defendant. 38 .     On the same day D. was questioned, and made the following statement: “... [Somato ‑ psychiatric] unit no.   2 was staffed [at the material time] by only two attending doctors: a scientific associate, L., and an attending doctor whose last name I cannot remember. The question of assigning patients to a specific attending doctor was decided by E. E., who assigned [the first applicant] to L. as a scientific thematic patient (научный тематический больной) for research on the effects of the Seroquel medication ... Scientific associates monitor only scientific research patients to study scientific subjects which involve research into new methods of treatment and the use of new drugs approved by the Ministry of Health, with a view to later disseminating these throughout the territory of the Russian Federation. Following the results of their research, a scientific associate writes an article about the work done and defends a dissertation based on their research material.” 39.     On 31 October 2008 the preliminary investigation was completed, and on 28 November 2008 a bill of indictment was submitted for approval to the Meshchanskiy Inter-District Prosecutor’s Office. 40.     On 9 December 2008, however, the case was returned for an additional investigation, as the prosecutor considered the charges brought against D. unsubstantiated. 41.     On 5 February 2009 the qualification of the crime with which D. was charged was changed to Article 127 § 1 of the Criminal Code (Unlawful Deprivation of Liberty). The case-file material was sent to the Meshchanskiy District Department of the Interior for further investigation. 42.     On 19 July 2009 an investigator from the Meshchanskiy District Department of the Interior discontinued the proceedings on the grounds of expiry of the procedural time-limit for prosecution. 43.     It appears that subsequently the proceedings were reopened. 44.     In 2012 the applicants were informed that on 26 November 2010 the proceedings had again been discontinued as time-barred. II.     RELEVANT DOMESTIC LAW A.     Law on Psychiatric Treatment and Associated Civil Rights Guarantees 45 .     Psychiatric medical care in Russia is governed by the Law on Psychiatric Treatment and Associated Civil Rights Guarantees, enacted on 2   July in 1992 (“the Psychiatric Treatment Act”, “the Act”). 46.     Section 29 of the Act sets out the grounds for an involuntary placement in a psychiatric hospital: Section 29 “A mentally disturbed individual may be hospitalised in a psychiatric hospital against his will or the will of his legal representative and without a court decision, if the individual’s examination or treatment can only be carried out by in-patient care, and the mental disorder is severe enough to give rise to: a)     a direct danger to the person or to others, or b)     the individual becoming unable to take care of himself, or c)     a significant impairment in health as a result of a deteriorating mental condition if the affected person were to be left without psychiatric care.” 47.     Section 32 of the Act specifies the procedure for the examination of patients compulsorily confined in a hospital: Section 32 “1.     A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Act shall be subject to compulsory examination within forty-eight hours by a panel of psychiatrists of the hospital, which shall take a decision as to the need for hospitalisation. If no reasons for hospitalisation are established and the hospitalised person does not express the wish to remain in the hospital, the person shall be released immediately. 2.     If hospitalisation is considered necessary, the conclusion to that effect of the panel of psychiatrists shall be forwarded to the court with territorial jurisdiction over the hospital, within twenty-four hours, for a decision on whether the person should remain confined in the hospital.” 48 .     Sections 33-35 set out in detail the procedure for judicial review of involuntary psychiatric treatment: Section 33 “1.     Involuntary hospitalisation for in-patient psychiatric care on the grounds defined by Section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital. 2.     An application for the involuntary placement of a person in a psychiatric hospital shall be submitted by a representative of the hospital where the person is detained. The application containing the grounds for involuntary psychiatric hospitalisation shall be accompanied by a reasoned conclusion of a panel of psychiatrists as to the further necessity for the person’s in-patient treatment in a psychiatric hospital. 3.     A judge who grants leave for judicial review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.” Section 34 “1.     An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge on the premises of the court or hospital within five days of receipt of the application. 2.     The person shall be allowed to participate personally in the hearing in order to determine whether he should be hospitalised. If, on the information provided by a representative of the psychiatric hospital, the person’s mental state does not allow him to participate personally in the hearing, the application shall be reviewed by the judge on the hospital’s premises. 3.     The presence at the hearing of a public prosecutor, a representative of the psychiatric institution requesting hospitalisation, and a representative of the person whom it is intended to detain, shall be mandatory.” Section 35 “1.     Upon examination of the application on the merits, the judge shall either grant or refuse it. 2.     The judge’s grant of the application shall justify the person’s hospitalisation and further confinement in the hospital. 3.     The judge’s decision shall be subject to appeal within ten days by the person placed in the psychiatric hospital, his representative, the head of the psychiatric hospital, an organisation entitled by virtue of law or by its charter to protect citizens’ rights, or by a public prosecutor. The appeal shall be made in accordance with the rules established in the Code of Civil Procedure.” B.     Code of Civil Procedure 49 .     Article 254 of the Code of Civil Procedure of the Russian Federation provides that a citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the next higher official or authority. 50.     For a detailed outline of the procedure for such complaints see Reshetnyak v. Russia , no. 56027/10, §§   38-43, 8 January 2013. III.     RELEVANT INTERNATIONAL AND COUNCIL OF EUROPE DOCUMENTS 51 .     The Nuremberg Code, formulated in August 1947 in Nuremberg, Germany, by American judges sitting in judgment of Nazi doctors accused of conducting human experiments in the concentration camps (the so-called Doctors’ Trial) reads as follows: “1.     The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment. The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity. 2.     The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature. 3.     The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment. 4.     The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury. 5.     No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects. 6.     The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment. 7.     Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death. 8.     The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment. 9.     During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible. 10.     During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill, and careful judgment required of him, that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.” 52.     The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly in Finland in June 1964, with later amendments, states, inter alia : “20.     The subjects must be volunteers and informed participants in the research project. 21.     The right of research subjects to safeguard their integrity must always be respected. Every precaution should be taken to respect the privacy of the subject, the confidentiality of the patient’s information and to minimize the impact of the study on the subject’s physical and mental integrity and on the personality of the subject. 22.     In any research on human beings, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail. The subject should be informed of the right to abstain from participation in the study or to withdraw consent to participate at any time without reprisal. After ensuring that the subject has understood the information, the physician should then obtain the subject’s freely-given informed consent, preferably in writing. If the consent cannot be obtained in writing, the non ‑ written consent must be formally documented and witnessed. 23.     When obtaining informed consent for the research project the physician should be particularly cautious if the subject is in a dependent relationship with the physician or may consent under duress. In that case the informed consent should be obtained by a well-informed physician who is not engaged in the investigation and who is completely independent of this relationship. 24.     For a research subject who is legally incompetent, physically or mentally incapable of giving consent or is a legally incompetent minor, the investigator must obtain informed consent from the legally authorized representative in accordance with applicable law. These groups should not be included in research unless the research is necessary to promote the health of the population represented and this research cannot instead be performed on legally competent persons. 25.     When a subject deemed legally incompetent, such as a minor child, is able to give assent to decisions about participation in research, the investigator must obtain that assent in addition to the consent of the legally authorized representative. 26.     Research on individuals from whom it is not possible to obtain consent, including proxy or advance consent, should be done only if the physical/mental condition that prevents obtaining informed consent is a necessary characteristic of the research population. The specific reasons for involving research subjects with a condition that renders them unable to give informed consent should be stated in the experimental protocol for consideration and approval of the review committee. The protocol should state that consent to remain in the research should be obtained as soon as possible from the individual or a legally authorized surrogate.” 53.     The United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17 December 1991) read: Principle 9 Treatment “1.     Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health needs and the need to protect the physical safety of others. ... 3.     Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.” Principle 10 Medication “1.     Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph   15 of principle 11 below, mental health practitioners shall only administer medication of known or demonstrated efficacy ...” Principle 11 Consent to treatment “... 15.     Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose ...” 54.     The Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13   December 2006 (Resolution A/RES/61/106) and ratified by Russia on 25   September 2012, provides: Article 15 Freedom from torture or cruel, inhuman or degrading treatment or punishment “1.     No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation. 2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” 55 .     The Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine) (opened to signature at Oviedo on 4 April 1997), not yet ratified or signed by Russia, contains the following principles regarding consent and scientific research: Chapter II – Consent Article 5 – General rule “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” Article 6 – Protection of persons not able to consent “1.     Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. 2.     Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity. 3.     Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. 4.     The representative, the authority, the person or the body mentioned in paragraphs   2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. 5.     The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.” Article 7 – Protection of persons who have a mental disorder “Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health. ...” Chapter V – Scientific Research Article 15 – General rule “Scientific research in the field of biology and medicine shall be carried out freely, subject to the provisions of this Convention and the other legal provisions ensuring the protection of the human being.” Article 16 – Protection of persons undergoing research “Research on a person may only be undertaken if all the following conditions are met: i.     there is no alternative of comparable effectiveness to research on humans; ii.     the risks which may be incurred by that person are not disproportionate to the potential benefits of the research; iii.     the research project has been approved by the competent body after independent examination of its scientific merit, including assessment of the importance of the aim of the research, and multidisciplinary review of its ethical acceptability; iv.     the persons undergoing research have been informed of their rights and the safeguards prescribed by law for their protection; v.     the necessary consent as provided for under Article 5 has been given expressly, specifically and is documented. Such consent may be freely withdrawn at any time.” Article 17 – Protection of persons not able to consent to research “1.     Research on a person without the capacity to consent as stipulated in Article   5 may be undertaken only if all the following conditions are met: i.     the conditions laid down in Article 16, sub-paragraphs i to iv, are fulfilled; ii.     the results of the research have the potential to produce real and direct benefit to his or her health; iii.     research of comparable effectiveness cannot be carried out on individuals capable of giving consent; iv.     the necessary authorisation provided for under Article 6 has been given specifically and in writing; and v.     the person concerned does not object. 2.     Exceptionally and under the protective conditions prescribed by law, where the research has not the potential to produce results of direct benefit to the health of the person concerned, such research may be authorised subject to the conditions laid down in paragraph 1, sub-paragraphs i, iii, iv and v above, and to the following additional conditions: i.     the research has the aim of contributing, through significant improvement in the scientific understanding of the individual’s condition, disease or disorder, to the ultimate attainment of results capable of conferring benefit to the person concerned or to other persons in the same age category or afflicted with the same disease or disorder or having the same condition; ii.     the research entails only minimal risk and minimal burden for the individual concerned.” 56.     For other relevant international and Council of Europe documents see Mifobova v. Russia , no. 5525/11, §§   41-44, 5   February 2015. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 57.     The first applicant complained that his involuntary confinement in a psychiatric hospital between 25   May and 9   June 2005 constituted a violation of Article   5   §   1   (e) of the Convention, which reads: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e)     the lawful detention of persons ... of unsound mind ...” A.     Admissibility 58.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 59 .     Relying on the principles established in the Court’s case-law in connection with deprivation of liberty on the basis of unsoundness of mind, and on the relevant provisions of domestic law, the Government submitted that although the first applicant’s involuntary hospitalisation in the psychiatric hospital on 25   May 2005 had been justified as, according to the opinion of a forensic psychiatric expert, the first applicant’s psychiatric pathology was such as to render him dangerous to himself, his involuntary stay in the psychiatric hospital between 25   May and 9   June 2005 had been in breach of the requirements of the domestic law (see paragraph 34 above) and therefore in violation of Article   5 § 1 (e) of the Convention. 60.     The first applicant maintained his complaint, and argued that the necessary conditions for his involuntary deprivation of liberty had not been met. 2.     The Court’s assessment 61 .     Having regard to the first applicant’s factual submissions and the Government’s acknowledgement of the unlawfulness of the first applicant’s confinement in the psychiatric hospital between 25   May and 9   June 2005, the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of Article   5   §   1   (e)   of the Convention on account of the first applicant’s involuntary confinement in the psychiatric hospital. II.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 62.     The first applicant complained that he had not had at his disposal an effective procedure by which he could challenge the lawfulness of his detention in the psychiatric hospital. He relied on Article   5   §   4 of the Convention, which provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.     Admissibility 63.     The Government considered that the first applicant was afforded an opportunity to challenge before the court the lawfulness of his involuntary psychiatric confinement through his representatives, the second and third applicants, of which he had not availed himself, thereby failing to exhaust domestic remedies. In this connection they made a reference to Article   254 of the Russian Code of Civil Procedure (see paragraph 49 above). 64.     The first applicant argued that the remedy suggested by the Government had not been accessible to him in practice, as he had been held in the psychiatric hospital without any contact with the outside world, and had not been capable of restoring his rights. 65.     The Court considers that the non-exhaustion grounds raised by the Government are closely related to the substance of the complaint under Article 5 § 4 of the Convention, and should be joined to the merits. 66.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 67.     The Government made no submissions on the merits of the above complaint. 68.     The first applicant maintained his complaint. 2.     The Court’s assessment (a)     General principles 69.     Article 5 § 4 of the Convention deals only with those remedies which must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention leading, where appropriate, to his or her release. The provision does not deal with other remedies which may serve to review the lawfulness of a period of detention which has already ended (see Slivenko v. Latvia [GC], no.   48321/99, §   158, ECHR 2003 ‑ X). 70.     According to the principles which emerge from the Court’s case-law, a person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is entitled under Article   5   §   4 of the Convention to take proceedings at reasonable intervals before a court to put in issue the “lawfulness”, within the meaning of the Convention, of his or her detention, given that the reasons initially warranting confinement may cease to exist. In guaranteeing to persons arrested or detained a right to institute proceedings to challenge the lawfulness of their detention, Article 5 § 4 also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see M usiał v. Poland [GC], no.   24557/94, §   43, ECHR 1999 ‑ II). 71.     A key guarantee under Article   5   §   4 is that a patient compulsorily detained for psychiatric treatment must have the right to seek judicial review of that detention of his or her own motion. Article   5   §   4 therefore requires, in the first place, an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the continued detention. The detainee’s access to the judge should not depend on the good will of the detaining authority or be activated at the discretion of the medical corps or the hospital authorities (see Gorshkov v.   Ukraine , no.   67531/01, §   44, 8   November 2005, with further references). (b)     Application of those principles in the present case 72.     The Court observes at the outset that sections 33-35 of the Psychiatric Treatment Act set out the procedure for judicial review of the lawfulness of involuntary psychiatric confinement. It provided, in particular, that judicial review was to be carried out following an application by the hospital authorities within five days of receipt of the application. The judge’s decision either to grant or to refuse the application could be appealed against within ten days (see paragraph 48 above). 73.     The Court notes that it has previously examined the system of review of lawfulness of involuntary psychiatric confinement under sections   33-35 of the Psychiatric Treatment Act in Rakevich v. Russia (no.   58973/00, §§   44 ‑ 46, 28   October 2003). In that case the Court arrived at the conclusion that whilst the legal mechanism contained in the above-mentioned sections of the Act, ensuring that a mental patient is brought before a judge automatically once a relevant application has been lodged by the hospital authorities, constituted an important safeguard against arbitrary detention, it was nevertheless deficient in so far as it did not provide for an independent legal device which would enable a person compulsorily detained in a psychiatric hospital to seek judicial review of such detention of his or her own motion in order to secure release. The lack of this basic guarantee under Article 5 § 4 of the Convention in the Psychiatric Treatment Act led the Court to the conclusion that there had been a violation of the above Convention Article in the case of Rakevich. 74.     The Court observes that in the circumstances of the present case its previous finding as to the need for a person compulsorily detained in psychiatric hospital to have a direct right of appeal in order to secure his or her release is all the more eloquent, given that the hospital authorities omitted to apply to the court for judicial review of the first applicant’s detention (see paragraphs 34, 59 and 61 above), as a result of which the latter remained in the hospital for two weeks without being able himself to initiate a review of the lawfulness of his confinement in the hospital and thus eventually to be released. 75.     The Court notes the Government’s argument to the effect that it was open to the first applicant to complain about unlawfulness of his involuntary psychiatric confinement, in accordance with Article 254 of the Code of Civil Procedure. However, since the Government failed to illustrate the practical effectiveness of the remedy in question with examples from the case-law of the domestic courts, and in the absence of any examples of the successful use of this remedy in any of the cases relating to lawfulness of involuntary psychiatric confinement that have previously come before the Court, the Court remains unconvinced that the avenue advanced by the Government satisfies the requirements of effectiveness. 76.     In the light of the above considerations, the Court rejects the Government’s objection as to the non-exhaustion of the domestic remedies and concludes that the first applicant was not entitled to take proceedings to test the lawfulness of his continued detention for compulsory psychiatric treatment by a court, as required by Article 5 § 4 of the Convention. There has, accordingly, been a violation of this provision. III.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE FIRST APPLICANT’S INVOLUNTARY PSYCHIATRIC TREATMENT 77.     The first applicant complained that his subjection to forced psychiatric treatment in the absence of an established medical need and in the framework of a piece of scientific research amounted to treatment prohibited by Article   3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 78.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 79.     The Government considered that the first applicant’s forced psychiatric treatment in the psychiatric hospital between 25   May and 9   June 2005 did not constitute inhuman or degrading treatment. The first applicant’s involuntary psychiatric hospitalisation was necessitated by the latter’s mental state at the material time, which manifested itself in expressed depression with suicidal tendencies, which was confirmed by forensic psychiatric expert examination. During the period of hospitalisation the first applicant underwent treatment with Seroquel (atypical antipsychotic medication), Iskel (antidepressant), Carbamazepine (mood-stabilising drug), Triftazin (neuroleptic) and Cyclodol, prescribed by an attending psychiatrist of the hospital. The Government submitted that the medical need for the first applicant to be treated with the above medication could not be established at the present moment because of the latter’s refusal to undergo a psychiatric evaluation. 80 .     The first applicant argued that his unlawful confinement in the psychiatric hospital and that his being treated with the antipsychotic drug Seroquel as scientific research and in the absence of an established medical necessity amounted to torture. He asserted that in 2005 the Seroquel medication was on trial on humans in Russia, whereas abroad it was tested only on rats, mice and dogs. It was contraindicated for patients like him suffering from cerebroasthenia, hypotension and tachycardia, of which the attending psychiatrist was aware. As a result of such treatment the first applicant began to experience frequent acute headaches, loss of consciousness, loss of speech, vision deterioration, insomnia, nausea, frequent bouts of tachycardia, and hypertension. The procedural guarantees for the decision to administer involuntary psychiatric treatment were not complied with either: a panel of psychiatrists was not constituted to determine the medical need for the first applicant’s forced psychiatric treatment, no application had been made to the court by the head of th