Zinaida Mukhortova v. the Republic of Kazakhstan. Views of the Human Rights Committee dated October 28, 2019 in the case of Communication No. 2920/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
The author claimed that her forced hospitalization and three times detention for placement in a psychiatric hospital (12 January 2011, 12 December 2011 and 9 August 2013) violated her rights under articles 7, 9 of the Covenant.
The Committee's legal position is that placement in a psychiatric institution and treatment in it against the will of the patient constitutes a form of deprivation of liberty and falls within the scope of the provisions of article 9 of the Covenant (see A. v. New Zealand (CCPR/C/66/D/754/1997), para. 7.2; and Fialkovska v. Poland (CCPR/C/84/D/1061/2002), paragraph 8.2.) ... Article 9, paragraph 1, requires that deprivation of liberty should not be arbitrary and should be carried out with respect for the rule of law. The second sentence of paragraph 1 [of article 9 of the Covenant] prohibits arbitrary arrest or arbitrary detention, and the third sentence prohibits unlawful deprivation of liberty, i.e. deprivation of liberty except on such grounds and in accordance with such procedure as are established by law. These two prohibitions are imposed in the sense that arrests and detention can be both arbitrary and illegal. The Committee recalls that the concept of "arbitrariness" should not be equated with the concept of "illegality", but should be interpreted more broadly, including elements of unacceptability, injustice, unpredictability and non-observance of procedural guarantees (paragraph 7.3 of the Views) (See, for example: M.J.K. v. Australia (CCPR/C/113/D/1875/2009), paragraph 11.5.).
Since States may consider the mental health of an individual to be impaired to such an extent that, in order to avoid harm to that person or others, the adoption of a compulsory hospitalization order is inevitable (See: Fijalkowska v. Poland, paragraph 8.3.), the Committee considers that involuntary hospitalization can only be used as a last resort and for as short a time as possible... a period of time, and must be supported by due process and material guarantees established by law. Procedures should ensure that the views of the person are respected, as well as ensure that any of his representatives truly represent and protect the aspirations and interests of the person (paragraph 7.4 of the Considerations).
The Committee notes that, although the right to personal liberty is not absolute, detention is such a serious measure that this measure is justified only when other, less stringent measures have been considered and found insufficient to protect personal or public interests, which may require the detention of the person concerned (paragraph 7.14 of the Views) (See.: T.V. and A.G. v. Uzbekistan, paragraph 7.8.).
The Committee emphasizes that, although forced hospitalization may be used as a last resort and in some cases may be justified for the purpose of protecting human life and health, illegal and arbitrary placement in a hospital may cause mental and physical suffering and therefore constitute inhuman and degrading treatment or punishment within the meaning of article 7 The Covenant (paragraph 7.15 of the Views).
The Committee's assessment of the factual circumstances of the case: the State party has not provided sufficient evidence to confirm that involuntary hospitalization was necessary and served the purpose of protecting the author from serious harm or preventing harm to others. It also noted that, even if the diagnosis made by the State party to the author of the communication was accepted, the existence of mental and psychosocial disability in itself cannot serve as a justification for deprivation of liberty. On the contrary, any deprivation of liberty in States parties that resort to involuntary hospitalization must be necessary and proportionate for the purpose of protecting the person concerned from serious harm or preventing harm to others (paragraph 7.13 of the Views) (See: T.V. and A.G. v. Uzbekistan (CCPR/C/116/D/2044/2011), paragraph 7.7; Fijalkowska v. Poland, paragraph 8.3; Fardon v. Australia (CCPR/C/98/D/1629/2007), paragraph 7.3. See also: CCPR/C/RUS/CO/6, paragraph 19.).
The Committee stressed the following - the information and evidence provided by the parties did not indicate that the author posed a threat to herself or others. In addition, the Committee expressed concern that the author was placed in a psychiatric hospital several times despite the fact that she posed no danger to herself or others, and that, although this fact was established by the decision of the City court of 26 July 2012, the author was again forcibly hospitalized. For these reasons, the Committee considered that the author's placement in a psychiatric hospital in the period from January 12 to September 22, 2011, from December 12 to December 29, 2011 and from August 9 to November 1, 2013, as well as her placement there for a total of more than 15 months, was arbitrary in accordance with the article 9 of the Covenant (paragraph 7.14 of the Views). As noted above, "...Although the right to personal freedom is not absolute [See: General comment No. 35, paragraph 10], detention is such a serious measure that this measure is justified only when other, less stringent measures have been considered and found insufficient to protect personal or public interests, which may require the detention of the relevant person persons [T.V. and A.G. v. Uzbekistan, paragraph 7.8]" (paragraph 7.14 of the Views).
The Committee reiterated its conclusion that the author's three involuntary referrals to psychiatric hospitals (January 12, 2011, December 12, 2011 and August 9, 2013) were the result of arbitrary decisions and lacked proper medical justification. Based on the available information, the Committee.... He concluded that the repeated decisions to place the author in psychiatric hospitals, accompanied by her detention at her place of residence, caused her severe distress and mental suffering, including due to constant fear for her health and freedom (paragraph 7.16 of the Considerations).
The Committee considered that in the present case, the author's involuntary detention and hospitalization for a total of more than 15 months and the application of treatment to her, despite her objections, given that she did not pose a risk of harm to herself or others, amounted to inhuman and degrading treatment and punishment within the meaning of article 7 of the Covenant (paragraph 7.15 of the Considerations).
The Committee's conclusions: The information provided indicates a violation by the State party of articles 7 and 9 of the Covenant (paragraph 8 of the Views).