Name of Ukraine

SOLUTION OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 1, 2016 No. 2-rp/2016

On case on the constitutional representation of the Representative of the Verkhovna Rada of Ukraine on human rights concerning compliance of the Constitution of Ukraine (constitutionality) of provision of the third offer of part one of article 13 of the Law of Ukraine "About mental health services" (case on judicial control of hospitalization of incapacitated persons in mental health facility)

Case No. 1-1/2016

Constitutional court of Ukraine as a part of judges:

Baulin Yury Vasilyevich - the chairman,

Vdovichenko Sergey Leonidovich,

Gultaya Mikhail Miroslavovich,

Zaporozhets Mikhail Petrovich,

Kasminin Alexander Vladimirovich,

Kolesnik Victor Pavlovich,

Krivenko Victor Vasilyevich,

Litvinov Alexander Nikolaevich,

Melnik Nikolay Ivanovich,

Moysyk Vladimir Romanovich,

Sasa of Sergey Vladimirovich,

Slidenko Igor Dmitriyevich,

Tupitsky Alexander Nikolaevich,

Shaptala Natalya Konstantinovna,

Shevchuk Stanislav Vladimirovich - the speaker,

No. 1489-III considered at plenary meeting case on the constitutional representation of the Representative of the Verkhovna Rada of Ukraine on human rights concerning compliance of the Constitution of Ukraine (constitutionality) of provision of the third offer of part one of article 13 of the Law of Ukraine "About mental health services" of February 22, 2000 (Sheets of the Verkhovna Rada of Ukraine, 2000, No. 19, the Art. 143) with subsequent changes.

Reason for consideration of the case according to Articles 39, 40 Laws of Ukraine "About the Constitutional Court of Ukraine" became the constitutional representation of the Representative of the Verkhovna Rada of Ukraine for human rights.

The basis for consideration of the case according to article 71 of the Law of Ukraine "About the Constitutional Court of Ukraine" is availability of statements of the person of law on the constitutional idea of illegality of provision of the third offer of part one of article 13 of the Law of Ukraine "About mental health services" of February 22, 2000 No. 1489-III with subsequent changes.

Having heard the judge-speaker Shevchuk S. V., the Representative of the Verkhovna Rada of Ukraine for human rights of Lutkovskaya V. V., the Permanent representative of the Verkhovna Rada of Ukraine in the Constitutional Court of Ukraine Selivanov A. A. and having researched case papers, including line items of the President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, the Ministry of Health of Ukraine, the Ministry of Justice of Ukraine, scientists of Academy of legal profession of Ukraine, the Lviv national medical university of Danila Galitskogo, National academy of medical sciences of Ukraine, National academy of legal sciences of Ukraine, National medical university of name A.A. Pilgrim, Ternopil state medical university of name I.Ya. Gorbachev, the Constitutional Court of Ukraine established:

1. The person of law on the constitutional representation is the Representative of the Verkhovna Rada of Ukraine for human rights - appealed to the Constitutional Court of Ukraine with the petition to recognize not corresponding to the Constitution of Ukraine (unconstitutional), provision of the third offer of part one of article 13 of the Law of Ukraine "About mental health services" of February 22, 2000 as No. 1489-III with subsequent changes (further - the Law), it is provided by which that person recognized in the procedure established by the law incapacitated is hospitalized in mental health facility at request or with the consent of his guardian. The author of the petition considers, this provision unconstitutional in that measure in what it allows hospitalization of person recognized in the procedure established by the law incapacitated in mental health facility at request or with the consent of his guardian without judgment made by results of check of justification and need of such hospitalization forcibly.

According to the person of law on the constitutional representation, hospitalization of incapacitated person in mental health facility at request or with the consent of his guardian in the absence of the judgment contradicts parts one, the second Article 29 of the Fundamental Law of Ukraine and is imprisonment in the context of Item 1 of article 5 of the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention) as such person is kept in limited space without its consent for a long time.

2. Constitutional court of Ukraine, resolving the question which is brought up in the constitutional representation, proceeds from the following.

2.1. Ukraine is the democratic, constitutional, social state in which the person, his life and health, honor and advantage, immunity and safety are recognized the highest social value; human rights and freedoms and their guarantees determine content and orientation of activities of the state; the state answers to the person for the activities; approval and providing human rights and freedoms is the main obligation of the state (Article 1, 3 Constitutions of Ukraine).

According to the Fundamental Law of Ukraine all people are free and equal in the advantage and the rights; human rights and freedoms are inaliennable and indestructible; constitutional rights and freedoms are guaranteed and cannot be cancelled; everyone has the right to respect of its advantage; each person has right to liberty and security of person; rights and freedoms of man and citizen are protected by court; the right to appeal in court of decisions, actions or failure to act of public authorities, local government bodies, official and officials is guaranteed to everyone (Article 21, Article part two 22, Article part one 28, Article part one 29, parts one, the second Articles 55).

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