Communication: T.V. and A.G. v. The Republic of Uzbekistan. Message No. 2044/2011. The views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) March 11th, 2016
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Uzbekistan.
Subject: illegal and arbitrary hospitalization and detention; right to judicial review.
A matter of substance: unlawful and arbitrary detention; the right to judicial review.
The Committee's legal position: The Committee recalls that detention and treatment in a psychiatric institution against the patient's will constitutes a form of deprivation of liberty and falls within the scope of article 9 of the Covenant (See communications No. 754/1997, A. v. New Zealand, Views adopted on 15 July 1999, paragraph 7.2; and No. 1061/2002, Fijalkowska v. Poland, Views adopted on 26 July 2005, paragraph 8.2.). He also recalls that article 9, paragraph 1, of the Covenant requires that the deprivation of liberty must not be arbitrary and must be carried out with respect for the rule of law. The second sentence in paragraph 1 prohibits arbitrary arrest or 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 prescribed by law. These two prohibitions overlap in the sense that arrest and detention can be both arbitrary and illegal. The Committee... Recalls that the concept of arbitrariness is not equivalent to the concept of "unlawfulness", but should be interpreted broadly and include elements of impropriety, injustice, lack of predictability and due process guarantees (paragraph 7.3 of the Considerations) (See communication No. 1875/2009, M.J.K. v. Denmark, Views adopted on March 26, 2015, paragraph 11.5.).
While recognizing that a person's mental health may be so impaired that, in order to avoid harm, a court order for involuntary hospitalization cannot be avoided (see Fijalkowska v. Poland, paragraph 8.3.), the Committee considers that involuntary hospitalization should only be used as a last resort and in for the shortest possible necessary period of time, while ensuring proper procedural and material guarantees established by law. Procedures should ensure respect for the individual's opinion, as well as ensure that any representative truly represents and protects the aspirations and interests of the individual (paragraph 7.3 of the Considerations).
Although the right to personal freedom is not absolute, and the detention of a person is such a serious measure that this measure is justified only when other, less severe measures have been considered and found insufficient to protect personal or public interests, which may require the detention of the person concerned (paragraph 7.8 of the Considerations).
According to article 9, paragraph 4, of the Covenant, everyone who is deprived of liberty as a result of arrest or detention has the right to have his case heard in court, so that this court can promptly rule on the legality of his detention and order his release if the detention is unlawful. This right applies to any detention based on an official decision or with an official sanction, including detention in connection with forced hospitalization. The right to initiate proceedings is in principle effective from the moment of detention, and no significant delay in giving a detainee the opportunity to file a first complaint against detention is allowed (paragraph 7.9 of the Considerations).
Although forced hospitalization can be used as a last resort and in some cases may be justified in order to protect people's lives and health, unlawful and arbitrary hospitalization can cause mental and physical suffering and thus constitute inhuman and degrading treatment or punishment within the meaning of article 7 of the Covenant... [...] The use of involuntary hospitalization or compulsory medical treatment for the purpose of punishment or intimidation is contrary to article 7 of the Covenant (paragraph 7.10 of the Views).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the authors' allegations that they were detained and forcibly hospitalized for nine days in violation of national legislation and without a court decision, and that a medical examination was not immediately conducted, which could then have led to a decision that their hospitalization was justified. and that they were not provided with a lawyer and were not allowed to contact their relatives... [P]After the authors filed complaints, the Ombudsman conducted an investigation and on April 25, 2007 He sent the authors' complaints to the Samarkand City Court, stating that its investigation had confirmed the fact of illegal actions against the authors... The Ombudsman qualified the actions of these three officials as abuse of authority and violation of the provisions of the Law on Psychiatric Care (paragraph 7.5 of the Considerations).
The Committee... Notes the authors' statements that on October 14, 2006, the Chief Physician of the Mental Health Center ordered the creation of an expert commission of psychiatrists to assess the mental health of the authors, and that this decision was taken four days after the authors' involuntary hospitalization. [C] according to the order of the chief physician of the Mental Health Center... This decision was made due to the fact that the authors have been constantly complaining to various authorities since 2002. In addition, on May 17, 2007 The Samarkand City Court ruled that the spouses, with their numerous complaints, "interfered with the work" of the chairman of the makhalla committee, Sh. and that the latter was forced to request their psychological examination in order to protect the interests of the other residents. The Committee... Takes note of the State party's reply that the authors were taken to a psychiatric centre for an examination of their mental health; that, according to the results of the medical examination, it was concluded that the second author had suffered a traumatic brain injury as a result of a traffic accident, was slowly losing his memory and suffering from post-traumatic encephalopathy; and that the first author had been diagnosed with Bekhterev's disease and "borderline mental abnormalities on the background of a somatic illness" (paragraph 7.6 of the Considerations).
The Committee notes that the State party has not provided any convincing explanations or arguments to prove that... Involuntary hospitalization was necessary and served the purpose of protecting the authors from serious harm or preventing harm to others. In addition, the State party did not respond to the Ombudsman's conclusion, which confirmed the fact of abuse of authority and violation of the procedure provided for in national legislation when the authors were detained and forcibly placed in a closed hospital. ..[E]Even if the State party's diagnosis of the authors had been accepted, the existence of mental or mental disorders cannot in itself serve as a justification for deprivation of liberty, on the contrary, any deprivation of liberty must be necessary and proportionate for the purposes of protecting the person concerned from serious harm and preventing harm to others (paragraph 7.7 of the Considerations) (See Fijalkowska v. Poland, paragraph 8.3; and communication No. 1629/2007, Fardon v. Australia, Views adopted on 18 March 2010, paragraph 7.3.).
The information provided by the Parties does not indicate that the authors were unable to take care of themselves or suffered from a mental disorder that could lead to significant harm to their health. The Committee considers that it is particularly disturbing that the authors were admitted to a psychiatric hospital, even though they posed no danger to themselves or others, and that both spouses were forcibly hospitalized at the same time (paragraph 7.8 of the Views).
The authors were placed in a psychiatric hospital without any court order and that they were not given a copy of the decision regarding the grounds for their involuntary hospitalization after their detention on October 10, 2006. As a result, the authors were informed of the possibility of filing an appeal and actually filed it only after their release. In the Committee's opinion, the authors of the communication were deprived of the right to challenge the decision to deprive them of their liberty, since the State party did not take a decision to place them in a psychiatric institution before their detention or during the initial period of their detention (See Fijalkowska v. Poland, para. 8.4.). Therefore, in the circumstances of the present case, the Committee Concludes that there has been a violation of article 9, paragraph 4, of the Covenant (paragraph 7.9 of the Views).
The Committee takes note of the State party's submission in the present case and the Samarkand City Court's ruling that the authors' placement in a closed psychiatric hospital was the result of their "inappropriate behavior", as they "interfered with the work" of Chairman Mahali with their numerous complaints....The Committee reiterates its conclusion that the placement of the authors in a psychiatric hospital was the result of an arbitrary and unlawful decision and had no proper medical justification... Based on the available data, the Committee concludes that the decision to place the authors in a psychiatric hospital appears to have been motivated by a desire to punish or humiliate the authors for exercising their right to file complaints and express their views on Mr. Sh.'s work (paragraph 7.11 of the Views).
Consequently, the Committee considers that in the present case the involuntary placement of the authors in hospital for nine days for allegedly interfering with the work of the Chairman of the quarterly committee with their numerous complaints amounts to inhuman and degrading treatment or punishment within the meaning of article 7 of the Covenant (paragraph 7.12 of the Views).
The Committee's conclusions: The Human Rights Committee considers that the State party has violated the provisions of articles 9, paragraphs 1 and 4, and 7 of the Covenant, read separately and in conjunction with article 2, paragraph 3, of the Covenant (paragraph 8 of the Views).
The text of the Considerations also provided for individual and general measures to be taken by the respondent State.