Atudorei v. Romania

Atudorei, a Romanian citizen, alleged that, from an early age, she has been subjected to continued physical and psychological abuse by her parents. The abuse had escalated after they discovered that she attended yoga classes organised by the Movement for Spiritual Integration into the Absolute (MISA), an organisation that was targeted by the police and s negative press campaign as practising communal life and sexual perversion.  As a result, Atudorei was hospitalised in a psychiatric hospital against her will for one week, where she was diagnosed with reactive depression and anxiety.

Additionally, Atudorei alleged that she had travelled with her fiancé to her hometown in order to obtain a copy of the birth certificate in order to get married. At the register office, her family forced her into their car, drove to her grandparents’ house, and was kept under constant supervision and threat. She was later taken to the psychiatric hospital and her mother signed on her behalf all consent forms to receive drug treatment (including the medical drug Leponex) and was diagnosed with evolving borderline disorder.

During her hospitalisation and as a result of the treatment, she suffered from constipation, lack of sight, lack of communication, and drowsiness.

In the meantime, the applicant’s fiancé, M.A., brought criminal proceedings against the family for deprivation of liberty. The prosecutor did not bring any proceedings against her family, and M.A.’s appeal of that decision was rejected.

After her release from the hospital, Ms Atudorei brought criminal proceedings against her parents, but her complaint was dismissed. She also brought disciplinary proceedings against the doctor who agreed to her hospitalisation and drug treatment. The doctor was found to have acted in breach of the rules of medical practice. Atudorei also brought criminal proceedings against a police officer and the doctor at the hospital for unlawful deprivation of liberty, serious bodily harm, and cooperation with a view to commit an offence against her family. The criminal investigation was carried out by two different prosecutor’s offices, and both decided not to initiate criminal proceedings.

The domestic law at issue in the case was Law no. 487/2002, which distinguished between voluntary and compulsory psychiatric hospitalisation, whereby compulsory hospitalisation may occur only in case of failure of all attempts to voluntary admission and, if it is assessed that the person represents a threat to him/herself or others, a proper procedure had to be followed, including notification of the public prosecutor’s office. A report issued in October 2009 by a non-governmental organisation noted that the Law no. 487/2002 was not applied properly and consistently by psychiatric hospitals and there was a lack of understanding by medical personnel of the procedures. A memorandum from Amnesty International also noted that many people, who refused to be admitted to hospital, were then persuaded to consent to treatment.

Atudorei lodged and application before the European Court of Human Rights against Romania for various violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”), in particular i) Article 3 (prohibition on torture or inhuman or degrading treatment) in relation to the medical treatment with Leponex; ii) Article 5 (right to liberty and security of person) in relation to her confinement in a psychiatric hospital; iii) Article 8 (right to respect private and family life) in respect to the medical treatment received at the hospital without her consent; iv) Article 9 (freedom of thought, conscience, and religion) and Article 12 (right to marry) in relation to her association with MISA; v) Article 14(effective remedy for violation of rights and freedom) as the authorities failed to review the legality of her detention and carry out effective criminal investigation.

The Court found that there was a breach of Article 5 (right to liberty and security of person) of the Convention as to the deprivation of her liberty because: (1) although there were no guards and she could - in theory - leave the hospital, she was in fact under the constant control of the medical staff through medication and supervision and not free to leave, and (2) she always regarded the hospitalisation against her will and she never directly consented the admission (the admission papers were signed by her mother) or to medical treatment.

The Court also held that there was a breach of Article 5 as the confinement in the hospital was not in accordance with the law because no involuntary procedure was followed. The Court also indicated that there was no evidence that the deprivation of liberty was necessary and that other less restrictive measures could have been more adequate as the applicant has never tried to harm herself or others.

The Court held that there was a breach of Article 8 (right to respect private and family life) of the Convention because the medical treatment was administered without the applicant’s valid consent and amounted to interference into her private life.

The Court rejected Atudorei’s Article 3 (inhuman or degrading treatment) claim because it did not appear that the applicant suffered any serious side-effect from the medical treatment that amounted to a minimum level of severity.

The Court did not consider the alleged violations of Article 14, Article 9, or Article 12.

“The Court further reiterates that the notion of deprivation of liberty within the meaning of Article 5 § 1 does not cover only the objective element of a person’s confinement in a particular restricted space for a significant length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question.” Para. 128

“The Court reiterates that a person’s body concerns the most intimate aspect of private life. Thus, compulsory medical treatment even if it is of minor importance constitutes an interference with that right” Para. 160.