CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 février 2012

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LITHUANIA   (Application no. 13469/06)         JUDGMENT           STRASBOURG   14 February 2012     FINAL   09/07/2012     This judgment has become final under Article 44 § 2 (c) of the Convention. It may be subject to editorial revision. In the case of D.D. v. Lithuania , The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Françoise Tulkens, President,   Danutė Jočienė,   Dragoljub Popović,   Işıl Karakaş,   Guido Raimondi,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 24 January 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 13469/06) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms D.D. (“the applicant”), on 28 March 2006. The President of the Chamber acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court, as in force at the material time). 2.     On 8 January 2008 the applicant, who had been granted legal aid, signed a power of attorney in favour of Mr H. Mickevičius, a lawyer practising in Vilnius, giving him authority to represent her before the Court. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. 3.     The applicant complained that her involuntary admission to a psychiatric institution was in breach of Article 5 §§ 1 and 4 of the Convention. She further alleged that she had been deprived of the right to a fair hearing, in breach of Article 6 § 1. 4.     On 20 November 2007 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     Written submissions were received from the European Group of National Human Rights Institutions and from the Harvard Project on Disability, which had been granted leave by the President to intervene as third parties (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court, as in force at the material time). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1963 and currently lives in the Kėdainiai Social Care Home (hereinafter “the Kėdainiai Home”) for individuals with general learning disabilities. A.     The circumstances of the case 7.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicant’s psychiatric treatment, guardianship and care 8.     The applicant has had a history of mental disorder since 1979, when she experienced shock having discovered that she was an adopted child. She is classed as Category 2 disabled. 9.     In 1980, the applicant was diagnosed with schizophrenia simplex. In 1984 she was diagnosed with circular schizophrenia. In 1999, the applicant was diagnosed with paranoid schizophrenia with a predictable course. She has been treated in psychiatric hospitals more than twenty times. During her most recent hospitalisation at Kaunas Psychiatric Hospital in 2004, she was diagnosed with continuous paranoid schizophrenia ( paranoidinė šizofrenija , nepertraukiama eiga ). The diagnosis of the applicant remains unchanged. 10.     In 2000 the applicant’s adoptive father applied to the Kaunas City District Court to have the applicant declared legally incapacitated. The court ordered a forensic examination of the applicant’s mental status. 11.     In their report (no. 185/2000 of 19 July 2000), the forensic experts concluded that the applicant was suffering from “episodic paranoid schizophrenia with a predictable course” ( šizofrenija/paranoidinė forma, epizodinė liga su prognozuojančiu defektu ) and that she was not able “to understand the nature of her actions or to control them”. The experts noted that the applicant knew of her adoptive father’s application to the court for her incapacitation and wrote that she “did not oppose it”. The experts also wrote that the applicant’s participation in the court hearing for incapacitation was “unnecessary”. 12.     On 15 September 2000 the Kaunas City District Court granted the request by the applicant’s adoptive father and declared the applicant legally incapacitated. In a one-page ruling, the court relied on medical expert report no. 185/2000. Neither the applicant nor her adoptive father was present at the hearing. The Social Services Department of the Kaunas City Council was represented before the court. 13.     On 17 May 2001 the applicant’s adoptive father requested her admission to the Kėdainiai Home for individuals with general learning disabilities. The applicant’s name was put on a waiting list. 14.     On 13 August 2002 the Kaunas City District Court appointed D.G., the applicant’s psychiatrist at the Kaunas out-patient health centre ( Kauno Centro Poliklinika ), as her legal guardian. The applicant was present at the hearing. Her adoptive father submitted that “he himself did not agree with being appointed her guardian because he was in disagreement with his daughter ( jis pats nepageidauja būti globėju, nes su dukra nesutaria )”. Nonetheless, he promised to take care of her in future and to help her financially. 15.     By a decision of 24 March 2003, the director of the health care centre dismissed D.G. from her work for a serious violation of her working duties. The decision was based on numerous reports submitted by D.G.’s colleagues and superiors. 16.     On 16 July 2003 D.G. wrote to the Kaunas City District Court asking that she be relieved of her duties as the applicant’s guardian. She mentioned that she had only agreed to become the applicant’s guardian because she had observed a strained relationship between the applicant and her adoptive father. However, D.G. claimed that the applicant’s adoptive father had asked her to hand over the applicant’s pension to him, even though the applicant had been receiving her pension and had been using the money perfectly well on her own for many years. D.G. also contended that the applicant’s adoptive father had attempted to unlawfully appropriate the applicant’s property. 17.     On 1 October 2003 the Kaunas City District Court relieved D.G. of her duties as the applicant’s guardian at her own request. In court D.G. had argued that as she was litigating for unlawful dismissal she could not take proper care of the applicant. 18.     By letter of 9 December 2003, the Kaunas City Social Services Department suggested to the district court that the applicant’s adoptive father be appointed her guardian, although the Department noted that relations between the two of them were tense. 19.     On 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The court relied on the request by the Kaunas City Council Department of Health, which was represented at the hearing. The applicant’s adoptive father did not object to the appointment. The applicant was not present at the hearing. 20.     Upon the initiative and consent of the applicant’s adoptive father, on 30 June 2004 the applicant was taken to the Kaunas Psychiatric Hospital for treatment. The applicant complained that she had been treated against her will. A letter by the hospital indicates that the applicant’s adoptive father had asked the hospital staff to ensure that her contacts with D.G. were limited on the ground that the latter had had a negative influence on the applicant. However, on 3 September 2004 the prosecutor for the Kaunas City District dismissed the applicant’s allegations, finding that she had been hospitalised due to deterioration in her mental state upon the order of her psychiatrist. The applicant had also expressed her consent to being treated. 21.     On 8 July 2004 a panel designated by Kaunas City Council to examine cases of admission to residential psychiatric care ( Kauno miesto savivaldybės asmenų su proto negalia siuntimo į stacionarias globos įstaigas komisija ) adopted a unanimous decision to admit the applicant to the Kėdainiai Home. 22.     On 20 July 2004 a medical panel of the Kaunas Psychiatric Hospital concluded that the applicant was suffering from “continuous paranoid schizophrenia” ( paranoidinė šizofrenija nepertraukiama eiga ). The commission also stated that it would be appropriate for the applicant to “live in a social care institution for the mentally handicapped”. 23.     On 28 July 2004 a social worker examined the conditions in which the applicant lived in her apartment in Kaunas city. The report reads that “the applicant is not able to take care of herself, does not understand the value of money, does not clean her apartment, is not able to cook on her own and wanders in the city hungry. Sometimes the applicant gets angry at people and shouts at them without a reason; her behaviour is unpredictable. The applicant does not have bad habits and likes to be in other persons’ company”. The social worker recommended that the applicant be placed in a social care institution because her adoptive father could not “manage” her. 24.     On 2 August 2004 an agreement was concluded between the Kėdainiai Home, the Guardianship Department of Kaunas City Council and the Social Services Department of the Kaunas Regional Administration. On the basis of that agreement, the applicant was transferred from the Kaunas Psychiatric Hospital to the Kėdainiai Home, where she continued her treatment. 25.   On 6 October 2004 the applicant signed a document stating that she agreed to be examined by the doctors in the Kėdainiai Home and to be treated there. 26.     On 10 August 2004 the applicant’s adoptive father wrote to the director of the Kėdainiai Home with a request that during the applicant’s settling into the Kėdainiai Home she should be temporarily restricted from receiving visits by other people. The director granted the request. Subsequently, the Kaunas District Administration upheld the director’s decision on the ground that the latter was responsible for the safety of patients in the Kėdainiai Home and thus was in a better position to determine what steps were necessary. 27.     On 18 August 2004, upon the decision of the Kėdainiai Home director, D.G. was not allowed to visit the applicant. The applicant’s medical record, which a treating psychiatrist signed the following day, states that “[the applicant] is acclimatising at the institution with difficulties, as her former guardian and former doctor [D.G.] keeps calling constantly and telling painful matters from the past (...) [the applicant] is crying and blaming herself for being not good, for not preserving her mother, for having lived improperly. Verbal correction is not effective”. 28.     According to a document signed by Margarita Buržinskienė on 23   February 2005, she had called the Kėdainiai Home to speak to the applicant but the employees had told her that, on the director’s orders, the applicant was not allowed to answer the phone ( vykdant direktorės nurodymą Daivos prie telefono nekviečia ). 29.     On 15 June 2006 the applicant’s adoptive father removed her from institutional care and taken her to his flat. On 15 July 2006 the applicant left his home on her own. A police investigation was started following a report by the applicant’s adoptive father of the allegedly unlawful deprivation of the applicant’s liberty. She was eventually found and apprehended by the police on 31 October 2006, and was taken back to the Kėdainiai Home. 30.     On 6 September 2007 the applicant left the Kėdainiai Home without informing its management. She was found by the police and taken back to the institution on 9 October 2007. 31.     As can be seen from a copy of the record of the Kėdainiai Home’s visitors submitted by the Government, between 2 August 2004 and 25   December 2006 the applicant received one or more visitors on forty-two separate occasions. In particular, her adoptive father saw her thirteen times, her friends and other relatives visited her twenty-six times and she was visited by D.G. on twelve occasions. 2.     Proceedings regarding the change of the applicant’s guardianship 32.     On 15 July 2004 the applicant asked the Kaunas Psychiatric Hospital to initiate a change of guardianship from her adoptive father to D.G. The applicant wrote that her adoptive father had had her admitted to the psychiatric hospital by force and deception, thus depriving her of her liberty. The hospital refused her request as it did not have competence in guardianship matters. 33.     The applicant states that a similar request was rejected by the Kėdainiai Home. 34.     On 2 September 2005, assisted by her former guardian and then friend, D.G., the applicant brought an application before the courts, requesting that the guardianship proceedings be reopened and a new guardian appointed. She submitted that she had been unable to state her opinion as to her guardianship, because she had not been informed of and summoned to the court hearing during which her adoptive father had been appointed her guardian. The applicant relied on Article 507 § 3 of the Code of Civil Procedure and stated that her state of health in the previous year could not have been an obstacle to her expressing her opinion as to the appropriateness of the guardian proposed at the court hearing. She claimed that in 2004 she had used to visit her friend in a village for a couple of weeks at a time. The applicant also noted that when she returned to Kaunas, her adoptive father had often threatened to have her committed to a mental asylum. 35.     The applicant also argued that by appointing her adoptive father to be her guardian without informing her and without her being able to state her opinion as to his prospective appointment, in contravention of Article   3.242 of the Civil Code and Article 507 § 4 of the Code of Civil Procedure, the court had disregarded the strained relationship between the two of them. The applicant drew the court’s attention to the ruling of the Kaunas City District Court of 13 August 2002, in which the applicant’s adoptive father had himself stated that their relationship had been tense. The applicant drew the court’s attention to Article 491 § 2 of the Code of Civil Procedure, stipulating that the court had to take all necessary measures to avoid a possible conflict between the incapacitated person and her potential guardian. Lastly, she stated that she had only learned of her adoptive father’s appointment in April 2004. 36.     By a ruling of 29 September 2005 the Kaunas City District Court decided to accept the applicant’s request for examination. 37.     On 27 October 2005 the applicant wrote to the Chairman of the Kaunas City District Court. She complained of her incapacitation on her adoptive father’s devious initiative without having being informed of the incapacitation proceedings. The applicant also pleaded that she had been unlawfully deprived of her liberty and involuntarily admitted to the Kėdainiai Home for an indefinite time and where she had been unable to obtain legal aid. 38.     On 7 November 2005 judge R.A. of the Kaunas City District Court held a closed hearing in which the applicant, her guardian (her adoptive father) and his lawyer, and D.G. took part. The relevant State institutions were also represented at the hearing: the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor and the Social Services Department of Kaunas City Council. The applicant’s doctor did not take part in the hearing. The court noted that the doctor had been informed of it and had asked the court to proceed without him. 39.     In her application form to the Court, the applicant alleged that at the beginning of the hearing the judge had ordered her to leave her place next to D.G. and to sit next to the judge. The judge had also ordered D.G. “to keep her eyes off the applicant”. Given that this was not reflected in the transcript of the hearing, on 19 November 2005 D.G. had written to the court asking that the transcript be rectified accordingly. 40.     According to the transcript of the hearing, at the beginning thereof D.G. requested that an audio recording be made. The judge refused the request. The applicant asked to be assisted by a lawyer. The judge refused her request, deeming that her guardian was assisted by a lawyer before the court. Without the agreement of her guardian, a separate lawyer could not be appointed. The lawyer hired by the applicant’s guardian was held to represent both the interests of the applicant and her guardian. 41.     As the transcript of the hearing shows, the applicant went on to unequivocally state that she stood by her request that the guardianship proceedings be reopened. She argued that she had neither been informed of the proceedings as to her incapacitation, nor those pursuant to which her guardian had been appointed. The decisions had been taken while she had been in hospital. During the hearing, the applicant expressed her willingness to leave the Kėdainiai Home and stated that she was being kept and treated there by force. She submitted that she would prefer to live at her adoptive father’s home and to attend a day centre ( lankys dienos užimtumo centrą ). The applicant also argued that D.G. had been forced to surrender her duties as her guardian and to allow the applicant’s adoptive father to become her guardian because of pressure from him with the aim of transferring the applicant’s flat to him. The applicant also noted that in the Kėdainiai Home she was cut off from society and had been deprived of the opportunity to make telephone calls. Her friends could not visit her and she was not allowed to go to the cinema. In the Kėdainiai Home “she was isolated and saw only a fence”. The other parties to the proceedings opposed the applicant’s wish that the guardianship proceedings be reopened. 42.     In her application to the Court, the applicant alleged that during a break in the hearing she had been ordered to follow the judge to her private office. When the applicant had refused, she had been threatened with restraint by psychiatric personnel. In private, the judge had instructed her not to say anything negative about her adoptive father and that, should she not comply, her friend D.G. would also be declared legally incapacitated. As stated in D.G.’s letter seeking rectification of the transcript (paragraph   39 above), after the break was announced the applicant had wished to stay in the hearing room. However, she had been taken away and had returned very depressed ( prislėgta ). Responding to a question by the judge as to her guardianship, the applicant replied: “I agree that [my adoptive father] should be my guardian, because God asks that people be forgiving. I just wish that he [would] take me [away] from [the Kėdainiai Home] to Kaunas, to his place... and let me see D.G. and my friends”. 43.     It appears from the transcript of the hearing that after the break, when giving her submissions to the court, the applicant agreed to keep her adoptive father as guardian, but insisted on being released from institutional care in order to live with her adoptive father. The relevant State institutions – the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor, the Social Services Department of Kaunas City Council – and the applicant’s guardian’s lawyer each argued that the applicant’s request for reopening was clearly unfounded and should be dismissed. 44.     On 17 November 2005 the Kaunas City District Court refused to reopen the guardianship proceedings on the basis of Article 366 § 1 (6) of the Code of Civil Procedure, ruling that there were no grounds to change the guardian (see Relevant domestic law part below). The court noted that before appointing the applicant’s adoptive father as her guardian, the Kaunas City Council Department of Health had prepared a report on the proposed appointment of the applicant’s guardian and had questioned the applicant, who had not been able to provide an objective opinion about that appointment. The court confirmed that the applicant had not been summoned to the hearing of 21 January 2004, when her guardian was appointed, as the court had taken into consideration the applicant’s mental state and, on the basis of the findings of the relevant health care officials, had not considered her involvement in the hearing necessary. The court further noted that the findings had disclosed tense relations between the applicant and her adoptive father. Even so, the applicant’s adoptive father had been duly performing his duties. The court also referred to statements of the representatives of the Kaunas Psychiatric Hospital and the director of the Kėdainiai Home to the effect that the applicant’s contact with D.G. had had a negative influence on her mental health. 45.     The Kaunas City District Court proceeded to fine D.G. 1,000 Lithuanian litai (LTL) (approximately 290 euros (EUR)) for abuse of process. It noted that D.G. had filed numerous complaints before various State institutions and the courts of alleged violations of the applicant’s rights. Those complaints had prompted several inquiries which had revealed a lack of substantiation. The court noted: “... by such an abuse of rights, [D.G.] caused damage to the State, namely the waste of time and money of the court and the participants in the proceedings. The court concludes that [D.G.] has abused her rights ... and the vulnerability of the incapacitated person”. 46.     D.G. appealed against the above decision. She noted, inter alia , that the 21 January 2004 ruling to appoint the applicant’s adoptive father as her guardian had been adopted by judge R.A. The same judge had dismissed the applicant’s request that the court proceedings be reopened, although this was explicitly prohibited by Article 370 § 5 of the Code of Civil Procedure. The applicant also submitted a brief in support of D.G.’s appeal, arguing that persons admitted to psychiatric institutions should have a right to know the reasons for their admission. Moreover, they should be able to contact a lawyer who is independent from the institution to which they have been admitted. 47.     The appeal by D.G. was dismissed by the Kaunas Regional Court on 7 February 2006 in written proceedings. The court did not rule on the plea that the district court judge R.A. had been partial. 48.     On 11 May 2006 the Supreme Court declared D.G.’s subsequent appeal on points of law inadmissible, as it had not been submitted by a lawyer and raised no important legal issues. 49.     By a ruling of 7 February 2007 the Kaunas City District Court, following a public hearing attended by social services representatives and the applicant’s legal guardian, granted the guardian’s request to be relieved from the duties of guardian and property administrator. The applicant’s adoptive father had argued that he was no longer fit to be her guardian because of his old age (seventy-seven years at that time) and state of health. The Kėdainiai Home was appointed temporary guardian and property administrator. The applicant was not present at the hearing. 50.     On 25 April 2007, the Kaunas City District Court held a public hearing and appointed the Kėdainiai Home as the applicant’s permanent guardian and administrator of her property rights. The applicant was not present at that hearing; the court did not give reasons for her absence. 3.     Criminal inquiry 51.     On 1 February 2006 a criminal inquiry was opened on the initiative of some of the applicant’s acquaintances, who alleged that the applicant had been the victim of Soviet-style classification of illnesses which was designed to repress those who fall foul of the regime. The complainants submitted that, as a result of the persistent diagnoses of schizophrenia, the applicant had been unlawfully deprived of her liberty, had been ill-treated and had been overmedicated in the Kėdainiai Home, and that her property rights had been violated by her guardian. 52.     On 31 July 2006 the investigation was discontinued, no evidence having been found of an abuse of the applicant’s interests, either pecuniary or personal. It was established that the immovable property belonging to the applicant had been let to a third person, with the proceeds used to satisfy the applicant’s needs. The applicant had had a bank account opened in her name on 6 October 2005, and the deposit made on that date had since been left untouched. Moreover, the applicant’s guardian had transferred to her account the sum received from the sale of their common property. There was thus no indication that the applicant’s adoptive father had abused his position as guardian. 53.     As regards the deprivation of the applicant’s liberty, the prosecutor noted that the applicant had been admitted to an institutional care facility in accordance with the applicable legislation. The prosecutor acknowledged that the freedom of the applicant “to choose her place of residence [was] restricted ( laisvė pasirinkti buvimo vietą yra ribojama )”, but further noted that she was: “... constrained to an extent no greater than necessary in order to take due care of her as a legally incapacitated person. The guardian of [the applicant] can change her place of residence without first obtaining a separate official decision; she is not unlawfully hospitalised. Therefore, her placement in the Kėdainiai Home cannot be classified as an unlawful deprivation of liberty, punishable under Article 146 § 2 (3) of the Criminal Code”. 54.     The prosecutor had also conducted an inquiry into an incident which had occurred at the Kėdainiai Home on 25 January 2005. After questioning the personnel of the Home, it was established that on that day the applicant had been placed in the intensive supervision ward ( intensyvaus stebėjimo kambarys ), had been given an additional dose of tranquilisers (2 mg of Haloperidol) and had been tied down ( fiksuota ) for fifteen to thirty minutes by social care staff. 55.     The prosecutor noted the explanation of the psychiatrist at the Home, who admitted that the applicant’s restraint had been carried out in breach of the applicable rules, without the approval of medical personnel. However, after having read written reports on the incident produced by the social care personnel, he considered the tying down to have been undertaken in order to save the applicant’s life and not in breach of her rights. 56.     Questioned by the prosecution as witnesses, social workers at the Kėdainiai Home testified that 25 January 2005 had been the only occasion on which the applicant had been physically restrained and placed in isolation. The measures had only been taken because at that particular time the applicant had shown suicidal tendencies. 57.     The prosecutor concluded that the submissions made by the complainants were insufficient to find that the applicant’s right to liberty had been violated by unnecessary restraint or that she had suffered degrading treatment. 58.     On 30 August 2006 the higher prosecutor upheld that decision. 4.     Complaints to other authorities 59.     With the assistance of D.G., the applicant addressed a number of complaints to various State authorities. 60.     On 30 July 2004, in reply to a police inquiry into the applicant’s complaint of unlawful detention in the Kėdainiai Home, the Kaunas City Council Social Services department wrote that “[in] the last couple of years, relations between the applicant and her adoptive father have been tense. Therefore, on the wish of both of them, until 21 January 2004 [the applicant’s] legal guardian was D.G. and not her adoptive father”. 61.     The Ministry of Social Affairs also commissioned an inquiry, including conducting an examination of the applicant’s living conditions at the Kėdainiai Home and interviews with the applicant and the management of the Home. The commission established that the applicant’s living conditions were not exemplary ( nėra labai geros ), but it was promised that the inhabitants would soon move to new premises with better conditions. However, it was noted that the applicant received adequate care. The commission opined that it was advisable not to disturb the applicant, given her vulnerability and instability. It was also emphasised that the State authorities were under an obligation to be diligent as regards supervision of how the guardians use their rights. 62.     On 6 January 2005 D.G. filed a complaint with the police, alleging that the applicant had been unlawfully deprived of her liberty and of contact with people from outside the Kėdainiai Home. By letter of 28 February 2005, the police replied that no violation of the applicant’s rights had been found. They explained that, in accordance with the internal rules of the Kėdainiai Home, residents could be visited by their relatives and guardians, but other people required the approval of the management. At the request of the applicant’s guardian, the management had prohibited other people from visiting her. 63.     On 17 May 2005 upon the inspection performed by food safety authorities out-of-date frozen meat (best before 12 May 2005) was found in the Kėdainiai Home. However, there was no indication that that meat would have been used for cooking. On 20 February 2006 the Kaunas City Governor’s office inspected the applicant’s living conditions in Kėdainiai and found no evidence that she could have been receiving food of bad quality. 64.     On 28 April 2006 the applicant complained to the Ministry of Health about her admission to long-term care. By letter of 12 May 2006, the Ministry noted that no court decision to hospitalise the applicant had been issued, and that she had been admitted to the Kėdainiai Home after her adoptive father had entrusted that institution with her care. 65.     On 6 October 2006, the Ministry of Health and Social Services, in response to the applicant’s complaints of alleged violations of her rights, wrote to the applicant stating that it was not possible to investigate her complaints because she had left the Kėdainiai Home and her place of living was unknown. Prosecutors were in the middle of a pre-trial investigation into the circumstances of the applicant’s disappearance from where she had previously been living. 66.     By a decision of 18 December 2006, the Kaunas City District prosecutor discontinued a pre-trial investigation into alleged unlawful deprivation of the applicant’s liberty. II.     RELEVANT DOMESTIC LAW AND PRACTICE 67.     Article 21 of the Lithuanian Constitution prohibits torture or degrading treatment of persons. Article 22 thereof states that private life is inviolable. 68.     The Law on Mental Heath Care provides: Article 1 “1.     Main Definitions ... 5.     “Mental health facility” means a health care institution (public or private), which is accredited for mental health care. If only a certain part (a “unit”) of a health care institution has been accredited to engage in mental health care, the term shall only apply to the unit. In this Law, the term is also applicable to psychoneurological facilities...” Article 13 “The parameters of a patient’s health care shall be determined by a psychiatrist, seeking to ensure that the terms of their treatment and nursing offer the least restrictive environment possible. The actions of a mentally ill person may be subject to restrictions only provided that the circumstances specified in section 27 of this Law are manifest. A note to that effect must be promptly made in the [patient’s] clinical record.” Article 19 “In emergency cases, in seeking to save a person’s life when the person himself is unable to express his will and his life is seriously endangered, necessary medical care may be taken without the patient’s consent. Where instead of a patient’s consent, the consent of his representative is required, the necessary medical care may be provided without the consent of such person provided that there is insufficient time to obtain it in cases where immediate action is needed to save the life of the patient. In those cases when urgent action must be taken in order to save a patient’s life, and the consent of the patient’s representative must be obtained in lieu of the patient’s consent, immediate medical aid may be provided without the said consent, if there is not enough time to obtain it.” 69.     Article 24 of the Law on Mental Health Care stipulated that if a patient applied with a request to be hospitalised, he or she could be hospitalised only provided that: 1) at least one psychiatrist, upon examining the patient, recommended that he or she had to be treated as an inpatient at a mental health facility; 2) he or she had been informed about his or her rights at a mental health facility, the purpose of hospitalisation, the right to leave the psychiatric facility and restrictions on the right, as specified in Article   27 of the law. The latter provision read that a person who was ill with a severe mental illness and refused hospitalisation could be admitted involuntarily to the custody of the hospital only if there was real danger that by his or her actions he or she was likely to commit serious harm to his or her health or life or to the health or life of others. When the circumstances specified in Article 27 of that law did exist, the patient could be involuntarily hospitalised and given treatment in a mental health facility for a period not exceeding 48 hours without court authorisation. If the court did not grant the authorisation within 48 hours, involuntary hospitalisation and involuntary treatment had to be terminated (Article 28). 70.     As concerns legal incapacity and guardianship, the Civil Code provides: Article 2.10. Declaration of incapacity of a natural person “1.     A natural person who, as a result of mental illness or imbecility, is not able to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship. 2.     Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian... 3.     Where a person who was declared incapacitated gets over his illness or the state of his health improves considerably, the court shall reinstate his capacity. After the court judgement becomes res judicta, guardianship of the said person shall be revoked. 4.     The spouse of the person, parents, adult children, a care institution or a public prosecutor shall have the right to request the declaration of a person’s incapacity by filing a declaration to the given effect. They shall also have the right to apply to the courts requesting the declaration of a person’s capacity.” Article 3.238. Guardianship “1.     Guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person. 2.     Guardianship of a person subsumes guardianship of the person’s property, but if necessary, an administrator may be designated to manage the person’s property.” Article 3.240. Legal position of a guardian or curator “1.     Guardians and curators shall represent their wards under law and shall defend the rights and interests of legally incapacitated persons or persons of limited active capacity without any special authorisation. 2.     The guardian shall be entitled to enter into all necessary transactions in the interests and on behalf of the represented legally incapacitated ward...” Article 3.241. Guardianship and curatorship authorities “1.     Guardianship and curatorship authorities are the municipal or regional [government] departments concerned with the supervision and control of the actions of guardians and curators. 2.     The functions of guardianship and curatorship in respect of the residents of a medical or educational institution or [an institution run by a] guardianship (curator) authority who have been declared legally incapacitated or of limited active capacity by a court shall be performed by the respective medical or educational establishment or guardianship (curator) authority until a permanent guardian or curator is appointed...” Article 3.242. Appointment of a guardian or a curator “1.     Having declared a person legally incapacitated or of limited active capacity, the court shall appoint the person’s guardian or curator without delay. ... 3.     Only a natural person with legal capacity may be appointed a guardian or a curator, [and] provided he or she gives written consent to that effect. When appointing a guardian or curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, relations with the ward, the guardian’s or curator’s preferences and other relevant circumstances...” Article 3.243. Performance of the duties of a guardian or a curator “... 6.     After the circumstances responsible for the declaration of the ward’s legal incapacity or limited active capacity [are no longer in existence], the guardian or curator shall apply to the courts for the cancellation of guardianship or curatorship. Guardianship and curatorship authorities, as well as prosecutors, shall also have a right to apply to the courts for the cancellation of guardianship or curatorship.” Article 3.277. Placing under guardianship or curatorship “1.     An adult person declared legally incapacitated by the courts shall be placed under guardianship by a court judgment.” Article 3.278. Monitoring of the guardian’s or the curator’s activities “1.     Guardianship and curatorship authorities shall be obliged to monitor whether the guardian/curator is fulfilling his or her duties properly.” 71.     The Code of Civil Procedure stipulates that rights and interests of [disqualified] natural persons protected by law shall be defended in court by their representatives (parents, foster-parents, guardians) (Article 38 § 2). A prosecutor has the right to submit a claim to protect the public interest (Article 49). 72.     Article 366 § 1 (6) of the Code of Civil Procedure provides that proceedings may be reopened if one of the parties to them was incapacitated and did not have a representative. Article 370 § 5 stipulates that when deciding upon a request that proceedings be reopened, the judge who took the decision against which the request has been lodged may not participate. 73.     An application to declare a person legally incapacitated may be submitted by a spouse of that person, his or her parents or full-age children, a guardianship/care authority or a public prosecutor (Article 463). The parties to the proceedings for incapacitation consist, besides the applicant, of the person whose legal capacity is at issue, as well as the guardianship (care) authority. If it is impossible, due to the state of health, confirmed by an expert opinion, of the natural person whom it has been requested to declare incapacitated, to call and question him or her in court or to serve him or her with court documents, the court shall hear the case in the absence of the person concerned (Article 464 §§ 1 and 2). 74.     Article 491 § 2 of the Code of Civil procedure stipulates that the courts are obliged to take all measures necessary to ensure that the rights and interests of persons who need guardianship are protected. 75.     Pursuant to Article 507 § 3 of the Code of Civil Procedure, a case concerning the establishment of guardianship and the appointment of a guardian shall be heard by means of oral proceedings. The guardianship authority, the person declared incapacitated, the person recommended to be appointed as guardian and any parties interested in the outcome of the case must be notified of the hearing. The case is to be heard with the attendance of a representative of the guardianship authority, who is to submit the authority’s opinion to the court. The person to be appointed the guardian must also attend. The person declared incapacitated is entitled to give his or her opinion at the hearing, if his or her health allows, as regards the prospective appointment of the guardian. The court may hold that it is necessary that the person declared incapacitated attend the hearing. Article 507 § 4 provides that in appointing a guardian his moral and other qualities, his capability to perform the functions of a guardian, his relationship with the person who requires guardianship, and, if possible, the wishes of the person who requires guardianship or care shall be taken into consideration. 76.     The Law on Prosecutor’s Office provides that prosecutors have the right to protect the public interest, either on their own initiative or if the matter has been brought to their attention by a third party