CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 novembre 2024

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THE REPUBLIC OF MOLDOVA (Application no. 39468/17)   JUDGMENT Art 3 (substantive) • Material conditions in a psychiatric hospital during a particular period of treatment considered to be involuntary and to amount to inhuman or degrading treatment Art 3 (procedural and substantive) • Ineffective investigation into allegations of ill-treatment by hospital staff and/or other patients • Difficulty in determining substance of allegations in particular due to investigation shortcomings • Absence of prima facie evidence capable of shifting the burden of proof on to respondent Government Art 14 (+ Art 3) • Dismissal of applicants’ complaints amounting to discriminatory treatment based on their intellectual disability vis-à-vis other alleged victims of inhuman and degrading treatment • Lack of objective and reasonable justification • Difference of treatment resulting from a de facto State agent policy • Evidence of a perpetuated domestic practice in respect of persons with intellectual disabilities   Prepared by the Registry. Does not bind the Court. This version was rectified on 6 May 2025 under Rule 81 of the Rules of Court. STRASBOURG 19 November 2024 FINAL   19/02/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Clipea and Grosu v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Saadet Yüksel,   Lorraine Schembri Orland,   Diana Sârcu,   Davor Derenčinović,   Gediminas Sagatys , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   39468/17) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Eugeniu Clipea (“the first applicant”) and Mrs   Virginia Iapără (“the second applicant”, who changed her name to Virginia Grosu in the meantime), on 17 May 2017; the decision to give notice of the application to the Moldovan Government (“the Government”); the parties’ observations; the comments submitted by the Council of Europe Commissioner for Human Rights (“the Commissioner”) (Article   36   §   3 of the Convention); Having deliberated in private on 15 October 2024, Delivers the following judgment, which was adopted on that date: Having deliberated in private on 15 November 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the alleged inhuman material conditions contravening Article 3 of the Convention in a psychiatric hospital where the applicants periodically undergo voluntary treatment for intellectual disabilities. It also concerns alleged discriminatory treatment of the applicants in breach of Article 14 of the Convention. THE FACTS 2.     The applicants were born in 1992 and 1965, respectively, and live in Chișinău. They were represented by Ms D. Străisteanu, a lawyer practising in Chișinău. 3.     The Government were represented by their Agent at the relevant time, Mr O. Rotari. 4.     The facts of the case may be summarised as follows. 5 .     The applicants are two individuals with intellectual disabilities who periodically undergo treatment at Chișinău Clinical Psychiatric Hospital, also known as Codru Psychiatric Hospital (“the hospital”). The first applicant was treated there some 24 times since 2006, while the second applicant some 28   times since 1986. In the past they were usually taken there at the request of the police and/or members of their families, particularly in the first applicant’s case, at the request of his mother P.L., who is his guardian, because they were having a crisis and represented a danger to themselves and others. They spent twenty-one to thirty days at the hospital. The parties have not informed the Court of the exact circumstances in which each applicant was admitted to the hospital, notably whether they signed any documents confirming their free and informed consent to be treated there.         complaint to the council for EQUALITY AND FOR the prevention and elimination of discrimination 6.     On 13 January 2014 P.L. lodged a complaint with the Council for Equality and for the Prevention and Elimination of Discrimination (“the Council”). She complained that her son (the first applicant) was being discriminated against at the hospital on the grounds of his intellectual disability. She alleged that the living conditions at the hospital were inhuman. 7 .     On 21 February 2014 the Council informed the hospital of its intention to carry out a fact-finding visit there between 27   February and 4 March 2014 to verify the allegations. However, on 27 February 2014 the hospital’s director and the unit heads E.C., V.F., N.C. and L.C. did not allow the Council’s representatives to visit the hospital premises. 8 .     On 11 April 2014 the Council issued a decision. It stated that it had heard the first applicant and his mother, several persons who had been treated at the hospital, including the second applicant, as well as representatives from the hospital and the Ministry of Health. 9 .     In that decision the Council noted that P.L.’s description of the material conditions at the hospital was as follows: the first applicant could not wash himself and needed assistance with this; however, he did not receive such assistance at the hospital and she came once every seven to ten days to help him. As a result, he was not always clean, and on several occasions he had returned from the hospital with skin diseases. He was in his room virtually all the time and had no access to walks in the fresh air; P.L. had been told that this was because there were insufficient staff, given that her son was likely to try to escape and needed supervision during walks. Because of that, she was also discouraged from taking him for a walk. There was a strong unpleasant smell in the hospital and cigarette smoke, and the toilets and bathroom were in a deplorable state. The first applicant made similar statements, adding that his belongings were occasionally stolen by other patients and when he defended himself against them by using force he was tied to his bed for seven to nine hours by staff members. During his last stay at the hospital he had been beaten by two staff members in unit 8 and then tied to his bed for six hours. 10 .     The decision also noted that the Ministry of Health had submitted that the prosecutor’s office had jurisdiction over the investigation into the alleged inhuman treatment; that there was no evidence of the first applicant having had skin diseases after his treatment at the hospital; that there was no legal obligation for doctors to help patients wash themselves, as medical and health institutions offered assistance which was strictly medical, and not spiritual or cultural services or those relating to accommodation; that washing a person deprived of legal capacity, even with the permission of his or her guardian, would raise serious issues relating to protection of that person’s privacy. It argued that the hospital had an obligation to maintain the hygiene of persons of whom it had guardianship; since P.L. and not the hospital was the first applicant’s guardian, it was her responsibility to provide him with care. The ministry added that persons with limited legal capacity could have walks in the fresh air under their guardian’s supervision. 11 .     The decision further noted the response of the hospital which had been set out in a letter dated 31 January 2014: there was no evidence of the first applicant having had any skin disease during his treatment at the hospital; walks in the fresh air were allowed, but were temporarily suspended for certain persons with serious conditions such as that of the first applicant; and the conditions in the hospital guaranteed that patients could maintain their personal hygiene on a daily basis. In a further letter of 31 March 2014 the hospital submitted a detailed description concerning organisational, sanitary and other measures ensuring that persons were treated well during their stay at the hospital. 12 .     The witness R.P., who was cited in the Council’s decision, stated that he was a doctor and a relative of P.L. She had asked him to help with washing the first applicant at the hospital and he had done so, with the permission of the hospital’s staff. He had noted that it was cold in the unit; that the bathroom was in a deplorable state; that some of the floor tiles were missing and had been replaced by pieces of wood, and that patients showered using a simple water hose. There was no soap or shampoo in the bathroom. In the summer of 2013 he had bought ointments for treating skin diseases for P.L., since the first applicant had needed to be treated during his hospital stay. 13 .     The witness V.B., also cited in the Council’s decision, stated that he had been treated in various units of the hospital, including unit 8, where only one person had had the right to walks in the fresh air while he had been there. During the first applicant’s last stay at the hospital he had been beaten and tied up by the staff because he had tried to call the police for help. In units 31   and 37 there was an unofficial hierarchy like in prison, which helped the staff maintain order in the units. Patients in unit 8 “were beaten less than in other units”. 14 .     The second applicant was heard as a witness. She told the Council that she had been treated in unit 14 of the hospital. The conditions there were deplorable. There was no hot water in the evening and people had to carry hot water from the kitchen to the bathroom themselves in a container, if they had good relations with someone in the kitchen. In the bathroom, people could easily catch a skin disease if they walked around barefoot. Before 2010 the patients had been forced to clean the toilet and their unit and then carry food to the table in the dining area. This, in her opinion, had caused a dysentery outbreak and a quarantine. No one was allowed walks in the fresh air, except during the last three days of treatment. She added that she had not seen anyone being ill-treated by the hospital staff. 15 .     The witness V.F., who is the head of unit 8 at the hospital, where the first applicant was treated, told the Council that no recent cases of skin diseases at the hospital had been recorded, and a dermatologist treated such illnesses when they were discovered. In 2012 the first applicant had been diagnosed with pyoderma on one occasion upon his admission to the hospital, but he had not been treated or subsequently examined because it had been unnecessary. He had the right to move around the unit freely, but walks in the fresh air were possible only when he was accompanied, otherwise he might run away. Unfortunately, there were not enough staff to ensure individual supervision during walks in the fresh air. Doctors attributed codes to patients, which had been a practice since Soviet times, and this made it clear to any other doctor what a patient’s current state was, and whether he or she was permitted to do certain things (walk freely about the unit, have access to walks in the fresh air). These codes were unofficial and the decision to attribute one code or another, or to move patients from one category to another, was not recorded anywhere. The first applicant had been attributed the “1-1-A” code for the most part of his treatment at the hospital since he was in a more serious state; he was subsequently transferred to the next category and thus had the right to move about by himself within the hospital unit. There was no known unofficial hierarchy at the hospital. Patients at the hospital were often asked to carry out tasks and have jobs. Doctors were not there at night and thus could not fully control what the personnel did during that period or whether some patients were involved in cleaning the premises. 16 .     G.L., the doctor in charge of the first applicant’s treatment, made statements similar to those of V.F. She added that no force had been used against the first applicant since he had agreed to have a sedative injection whenever he became agitated. The doctor had not noticed any signs on the first applicant’s body indicating that he had been beaten or tied to his hospital bed. 17 .     In its decision of 11 April 2014, the Council found that the hospital had not satisfied it that the first applicant had received appropriate treatment, notably in respect of access to walks in the fresh air and assistance with his personal hygiene. The witness statements and the hospital’s refusal to give the Council access to its premises in order to verify the conditions there contrasted with the unproved statements of the hospital’s representatives. Accordingly, the Council concluded that the facts in its possession proved the lack of reasonable accommodation for a patient with a disability in relation to accessing medical services.       Criminal investigation into the applicants’ alleged inhuman and degrading treatment 18 .     On 10 February 2014 the Council notified the Prosecutor General’s Office (“the PGO”) that a criminal offence against patients had possibly been committed at the hospital. On 12 March 2014 the PGO started a criminal investigation into possible acts of inhuman or degrading treatment. 19 .     On 11 June 2014 the applicants were recognised and heard as injured parties. They complained that they had not been allowed to go for walks outside; that the second applicant had, in the past, been forced to clean the toilets and her room; that the first applicant had been beaten by other patients and had his food and property stolen by them (he was too afraid to have a mobile phone because he thought it would be stolen); and that the first applicant had occasionally been restrained in his bed and had contracted a skin disease in the hospital owing to the poor sanitary conditions and the bad smell. 20 .     The prosecutor heard doctors G.L., R.S., C.L. and F.V., who were all unit heads at the hospital and denied all the allegations. He also ordered a psychiatric and psychological examination of the applicants at the hospital, but on 7 July 2014 both applicants refused to undergo such an examination, stating that they did not trust the doctors at the hospital. 21 .     On 24 September 2014 the prosecutor in charge of the case discontinued the investigation. The reasons given were the lack of evidence that an offence had been committed and the applicants’ refusal to submit to a psychiatric and psychological evaluation. 22.     On 13 October 2014 the applicants’ lawyer asked for information about the course of the investigation and to have access to the documents in the file if the investigation had been discontinued. On 3 November 2014 the lawyer complained to a higher-ranking prosecutor that she had not received a copy of the decision of 24 September 2014, and had been only verbally informed of its content by the prosecutor. She also asked for the decision to be annulled. She referred, inter alia , to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). 23 .     The higher-ranking prosecutor upheld that decision on 11 November 2014. Reiterating the statements of the applicants and the witnesses from the hospital, the prosecutor found no evidence that an offence had been committed, and that the alleged victims were “persons with limited legal capacity, and in these circumstances, [were] not always able to fully and correctly understand the things that happen[ed] in certain circumstances”. Moreover, they had refused to submit to a psychiatric and psychological evaluation aimed at establishing the events in which they had been involved while being treated at the hospital, leaving the prosecution service unable to gauge the truthfulness of their statements. 24.     In her complaint to the Centru District Court in Chișinău, the applicants’ lawyer referred, inter alia , to the fact that the prosecutors had relied on her clients’ diagnosis and their refusal to submit to an evaluation. She argued that the prosecutors had not taken any measures aimed at obtaining evidence and verifying the victims’ statements. 25.     On 30 December 2014 the court rejected the applicants’ complaint against the decisions of 24 September and 11 November 2014. 26.     In an appeal, the lawyer repeated the arguments she had made to the Centru District Court, and added that the prosecution service had not taken into account reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) or heard current and former patients from the hospital. She argued that the prosecution service had not made it clear why her clients needed to submit to the evaluation, or how this could be done objectively by the same hospital about which they were complaining. The lawyer submitted that her clients felt stigmatised, and that the authorities’ attitude reflected an unwillingness to hear persons with disabilities when they complained of inhuman treatment by psychiatric institutions. 27 .     On 2 March 2015 the Chișinău Court of Appeal accepted the applicants’ appeal. It found that the prosecutor had only heard four unit heads from the hospital, in whose units the alleged offences had been committed and who were thus interested witnesses, since they could not have been unaware of the alleged inhuman treatment in the units which they headed. Moreover, it was unclear what actions had been taken in order to verify the submissions from the Council, such as the applicants’ evaluation by specialists in institutions other than the hospital about which they were complaining. The court found that the investigation had been superficial and incomplete, and the decision taken was insufficiently reasoned. 28 .     On 13 April 2015 the applicants’ lawyer asked the prosecutor in charge of the case to, inter alia , take all actions aimed at identifying and preserving evidence of the alleged offence. On 5 May 2015 she was informed that the criminal investigation had been restarted and that the request had been annexed to the case material. On 13 July 2015 the lawyer enquired about the progress of the investigation, notably what actions had been taken. In reply, she was informed that her request had been annexed to the case material for subsequent examination. 29 .     On 2 March 2016 the lawyer again enquired about the course of the investigation and asked for copies of the procedural decisions taken after the court decision of 2 March 2015. 30 .     On 16 March 2016 the prosecutor informed the lawyer that he had discontinued the investigation on 30 July 2015 for lack of evidence that an offence had been committed. Before reaching that decision, the prosecutor had heard the applicants, the four heads of units at the hospital, as well as several persons who were being treated at the hospital at the time. Except for the applicants, none of those people had confirmed any violence, bad smells, other bad conditions or forced labour. On 28 May 2015 the prosecutor had visited units 8 and 20 at the hospital and photographed the conditions there, finding that they were good. The prosecutor added “the alleged facts of precarious conditions in the medical institution and [substandard] medical treatment cannot be considered inhuman or degrading treatment by the medical institution’s staff”. He noted that since the applicants had voluntarily submitted to treatment at the hospital, their case was not similar to that of persons who were treated there against their will or who were under the hospital’s guardianship. Therefore, their treatment at the hospital had been neither illegal nor arbitrary; moreover, they had not complained of illegal detention or forced treatment at the hospital. The prosecutor wrote that the applicants had limited legal capacity and thus were not always able to fully and correctly understand what happened to them. 31 .     In her complaint against that decision, the applicants’ lawyer noted, inter alia , that she had not received a copy of it on time and that neither she nor her clients had been invited to participate in the prosecutor’s visit to the hospital to verify the conditions there. She submitted that treating her clients’ statements as not credible because of their diagnosis was a form of abuse and discrimination. 32 .     On 20 April 2016 a higher-ranking prosecutor upheld the decision of 30 July 2015. On 4 October 2016 the Centru District Court in Chișinău upheld the decisions of 30 July 2015 and 20 April 2016, essentially repeating the prosecutors’ arguments, including the one concerning the applicants’ inability to fully understand what was happening to them owing to their diagnosis. It added that since the applicants had voluntarily undergone treatment at the hospital on numerous occasions, they would hardly have chosen to return there had they been subjected to inhuman or degrading treatment. Moreover, the applicants had been free to communicate with the outside world and could have warned their family members if they had felt that they were being ill-treated. The court noted that Article 166 1 of the Criminal Code (see paragraph 35 below) did not apply to the treatment complained of, in the absence of evidence that the applicants had been subjected to treatment contrary to Article 3 of the Convention. Moreover, the sanitary conditions at the hospital could not be considered to constitute inhuman or degrading treatment, and the applicants could claim compensation from the hospital in civil proceedings. 33.     On 17 November 2016 the Chișinău Court of Appeal upheld the lower court’s decision, largely reproducing that court’s reasons. 34 .     It appears from the parties’ submissions that the second applicant continued to be periodically treated at the hospital. The last time she was admitted there was on 25 August 2021, at the request of the police, whose assistance had been requested by her mother (the second applicant was agitated, irritable and had attacked her mother). RELEVANT DOMESTIC AND INTERNATIONAL LEGAL FRAMEWORK         relevant domestic law and practice 35 .     The relevant part of the Criminal Code of the Republic of Moldova, enacted by Law no. 895 of 18 April 2002, reads as follows: Article 166 1 Torture, inhuman or degrading treatment “(1)     A public legal entity or a person who de facto exercises public power, or a person who acts officially or with the express or tacit approval of such a [public legal entity], who intentionally causes physical or psychological pain or suffering which constitutes inhuman or degrading treatment shall be punished by [a term of] imprisonment of 2 to 6 years or a fine ... (2)     The actions provided for in paragraph (1): (a)     when intentionally committed against a minor or a pregnant woman, [and] abuse of a victim’s known state of helplessness owing to his or her advanced age, illness, physical or mental disability or other factors ... shall be punished by [a term of] imprisonment of 3 to 8 years or a fine ...” 36 .     Under Article 5 of the Code of Civil Procedure, every person has the right of access to a court of justice in order to have his or her rights protected. Judicial protection must not be refused because of a lack of legislation, or because of the existence of an imperfection, discrepancy or ambiguity in the legislation. 37 .     The relevant part of Law no.   1402 of 16 December 1997 on psychiatric assistance (which was renamed in 2008 and became a Law “on mental health”), in force since 21 May 1998, reads as follows: Section 5 The rights of persons suffering from mental disorders “1.     Persons suffering from mental disorders shall enjoy all citizens’ rights and freedoms provided for in the Constitution and in other Laws. Limitations on their rights and freedoms owing to their mental disorders shall be permitted only in the cases provided for in the present Law and in other normative acts. ... 3.     It shall be prohibited to limit the rights and freedoms of persons suffering from mental disorders on the sole grounds of their psychiatric diagnosis, of their observation through hospitalisation, or of their confinement in a psychiatric ward or a neuropsychiatric institution. ...” Section 27 Grounds for in-patient treatment in a psychiatric institution “... (3)     In-patient treatment in a psychiatric institution, with the exception of [involuntary treatment] is based on the person’s request or free consent. ... (5)     The consent for in-patient assistance shall be noted in the medical documents and shall be signed by the person concerned or his/her legal guardian, as well as by the psychiatry doctor.” Section 46 Procedure and time-limits for challenges “(1)     A person benefiting from psychiatric assistance may challenge the actions of the medical staff and other specialists ... which breach his or her rights and lawful interests, directly before the courts, the higher-ranking authority or the prosecutor’s service. ...” 38 .     According to the periodic report for 2022 by the national Centre for Human Rights, there were three psychiatric hospitals in the Republic of Moldova, in Chișinău, Orhei and Bălți. During 2022 some 84 cases of inter ‑ patient aggression had been recorded. It also found that, owing to the humidity and degraded state of floors in sanitary installations, there was an increased risk of injury and that patients often spent most of their time in their rooms for lack of alternative activity.       international law    The United Nations 39 .     The Convention on the Rights of Persons with Disabilities (CRPD), adopted by the United Nations General Assembly on 13 December 2006 (UN   Doc. A/RES/61/106), was signed and ratified by the Republic of Moldova on 30   March 2007 and 21 September 2010 respectively. The relevant provisions of that Convention read as follows: Article 25 – Health “States Parties recognise that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall: ... (d)     Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia , raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care; ...” 40.     The 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 (CETS 164, the Oviedo Convention) was signed on 4 April 1997 and entered into force on 1 December 1999, and with respect to the Republic of Moldova on 1   March 2003. Article   5, entitled “General rule”, in Chapter II on Consent, provides as follows: “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.” 41 .     The relevant parts of the United Nations Committee on the Rights of Persons with Disabilities (CRPD) concluding observations on the initial report of the Republic of Moldova, UN Doc. CRPD/C/MDA/CO/1, 18 May 2017, read as follows: Freedom from torture and cruel, inhuman or degrading treatment or punishment (art. 15) “30.     The Committee is concerned about the inhuman and degrading treatment of persons with disabilities in institutions perpetrated by staff members, caregivers or other residents, including acts of neglect and the use of chemical and physical restraints, solitary confinement and forced medication as punishment. It is also concerned about the inefficiency and inadequacy of complaints systems, delays in investigations and lack of monitoring of institutions. 31.     The Committee urges the State party to take measures to protect persons with disabilities who remain institutionalized from forced, inhuman or degrading treatment or punishment and to prohibit all such acts. It recommends that the State party develop an effective investigation and monitoring system to prevent all forms of inhuman or degrading treatment or punishment against persons with disabilities in institutions, and to ensure the prompt investigation of such cases.” 42 .     The relevant part of the report of the United Nations Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona, on her mission to the Republic of Moldova (8-14 September 2013), UN Doc. A/HRC/26/28/Add.2, 20 June 2014, reads as follows: “49.     The Special Rapporteur received reports that severe abuses, such as neglect, mental and physical abuse and sexual violence, continue to be committed against people with psychosocial and intellectual disabilities in residential institutions and psychiatric hospitals. She was concerned about the lack of sexual and reproductive health care in the institutions that she visited, as well as unsanitary and unhygienic conditions. ...” 43 .     The relevant part of the concluding observations on the third periodic report of the Republic of Moldova by the United Nations Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/C/MDA/CO/3, 21 December 2017) reads as follows: Treatment of persons in psychiatric, psychoneurological and other residential institutions “31.     The Committee is seriously concerned at reports that persons with mental disorders and psychosocial and intellectual disabilities are confined to psychiatric hospitals and psychoneurological residential institutions in conditions that include inadequate food and hygiene ...”    The Council of Europe 44.     The relevant parts of Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders (adopted on 22   September 2004) read as follows: Article 9 – Environment and living conditions “1.     Facilities designed for the placement of persons with mental disorder should provide each such person, taking into account his or her state of health and the need to protect the safety of others, with an environment and living conditions as close as possible to those of persons of similar age, gender and culture in the community. Vocational rehabilitation measures to promote the integration of those persons in the community should also be provided. ...” 45 .     The relevant part of the report by the CPT on its visit to the Republic of Moldova from 28 January to 7   February 2020 (CPT/Inf (2020) 27) reads as follows: “The CPT notes the improvements made to the material conditions at Chișinău Psychiatric Hospital. However, a number of the shortcomings identified by the CPT during its previous visits persisted. In particular, all the premises were bare and austere, no improvement was observed as regards the equipment in patients’ rooms which was still limited to beds and a few bedside tables and conditions in several rooms were cramped. Further, the communal toilets and shower rooms were in a poor state of cleanliness and repair and still provided very little privacy to the patients.” THE LAW          ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 46.     The applicants complained that they had been treated in inhuman and degrading conditions, that the first applicant’s ill-treatment by other patients had been condoned by the hospital staff, and that the investigation into that ill-treatment had not been effective. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”    Admissibility 47.     The Government argued that the applicants had failed to exhaust available domestic remedies. In particular, after the criminal investigation into their allegations had been discontinued, they had been informed of their right to lodge a civil court action for damages, but they had failed to do so. Moreover, under Article 5 of the Code of Civil Procedure (see paragraph 36 above), a court action had to be examined even where there was a lack of legislation or where the legislation contained an imperfection, discrepancy or ambiguity. 48.     The applicants submitted that their initial complaint under non ‑ discrimination legislation had been examined by the Council. In the Council’s view, the facts of the case had showed that an offence had possibly been committed against the applicants. They had had no reason to doubt that the prosecutor’s office would fully cooperate in investigating their complaint. 49.     The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, they are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see, for example, Remli v. France , 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II; Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V; and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29   others, § 70, 25 March 2014). At the same time, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see L.F. v. Hungary , no. 621/14, § 50, 19 May 2022). 50.     In the present case, the Government did not prove that the criminal investigation into the applicants’ allegations was a remedy which was ineffective in principle. This is emphasised by the fact that the prosecutor’s office actually investigated the material conditions at the hospital, as well as the alleged ill-treatment by other patients or staff, and adopted a decision in that regard which was subsequently reviewed in detail by the courts. Moreover, under Section 46 of the law on mental health (see paragraph 37 above) a patient could choose to challenge the actions of medical personnel before the prosecutor’s service, which the applicants have done. The Court also considers that a civil claim against the State in respect of the failure to conduct an effective investigation into the applicants’ allegations of inhuman treatment in the hands of State agents – in the present case the hospital personnel – and ill-treatment by third persons could not have provided them with any redress in terms of ensuring the effectiveness of that investigation and prosecution (see Mircea Pop   v. Romania , no. 43885/13, §   61, 19 July 2016). The Government’s objection as to the non-exhaustion of domestic remedies must therefore be dismissed. 51.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible.    Merits      The parties’ submissions    The applicants 52.     The applicants argued that they had been treated in inhuman and degrading conditions, which exceeded the threshold of severity required to engage Article 3 of the Convention. In particular, they had had no access to fresh air, the sanitary conditions had been bad and access to hot water had been restricted, and they had feared violence from other patients and had suffered neglect on a daily basis. They referred to various reports reflecting those conditions and argued that the prosecutor in their case had visited units 8 and 20, while they had been treated in units 14 and 17. As regards receiving treatment, they argued that they had had no alternatives to that hospital. 53.     Moreover, the investigation into their allegations of inhuman treatment had not been effective. The prosecution service had relied on their diagnosis and refusal to undergo a psychiatric and psychological evaluation as grounds for discontinuing the criminal investigation, without making a genuine attempt to verify the truthfulness of their allegations. In addition, no other witness except for the applicants had been asked to undergo such an examination. The focus of the prosecutor’s activity had been on undermining the credibility of the applicants’ allegations rather than searching for evidence which could support those allegations.    The Government 54 .     The Government submitted that the applicants had been treated in good conditions comprising good-quality meals, central heating, well ‑ equipped and clean toilets and showers, large windows, and clean and tidy rooms, as evidenced by the prosecutor’s visit and the photographs taken. Moreover, the hospital regularly allocated funds for improving the patients’ conditions. The units in which each of the two applicants had been treated (units 14 and 17) had been renovated before the Government had been given notice of the present case in January 2021. 55.     The investigation into the applicants’ allegations had been thorough, and the prosecutor had carried out all reasonable investigative actions. Thus, the prosecutor had heard the applicants and ordered a psychiatric and psychological assessment of them, had heard witnesses, and had visited the relevant units, taking photographs confirming the good conditions there. Two witnesses had testified that they had never been beaten or otherwise humiliated during their treatment at the hospital, either by staff or other patients, and had no complaints about the material conditions. Moreover, if any ill-treatment had happened, the applicants would have alerted their relatives, with whom they had remained in contact and who had been able to visit them. However, no complaints had been made by either the applicants or their relatives. Even the second applicant’s own statement confirmed that she had not been ill-treated by the hospital staff (see paragraph 14 above).    Third-party intervener 56 .     The Council of Europe Commissioner for Human Rights submitted that the general attitude towards mental health was undergoing a profound paradigm shift at international level. In particular, coercion could no longer be taken for granted in psychiatry; the free and informed consent of the persons concerned had to be the basis for decisions taken in relation to them. Closed psychiatric institutions were generally a breeding ground for human rights violations: isolating a person from the community and support networks which he or she ordinarily relied on allowed violations to be committed easily and with impunity, and largely prevented opportunities to gather evidence. The dismissive and discriminatory attitude of prosecutors worsened the situation. Even voluntary patients often lost control of their treatment choices once they entered the system, with institutional and coercive logic taking over; for example, they could be confined to certain spaces or forcibly medicated by staff. Patients in such situations often had no means of challenging these practices. 57 .     In the Commissioner’s view, people with psychological disabilities often faced insurmountable barriers in accessing justice. When assessing the effectiveness of judicial proceedings, power asymmetries between patients and hospital staff which might be reflected in investigations deserved special attention. In this context, the existence of reports of systemic human rights violations from credible sources could create a strong presumption in favour of the applicants and shift the burden of proof. The Commissioner lastly submitted that the widespread and systemic nature of human rights violations caused by coercion-based mental health services required a wide array of general measures in accordance with the legal and medical paradigm shift that was currently in progress around the globe.      The Court’s assessment    General principles 58 .     The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see I.G. v.   Moldova , no.   53519/07, § 40, 15 May 2012). The Court has also pointed out that in the case of mentally ill patients, consideration has to be given to their particular vulnerabil