CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 janvier 2013

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page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .sF4F12EF6 { width:180.75pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FIRST SECTION           CASE OF LASHIN v. RUSSIA   (Application no. 33117/02)             JUDGMENT     STRASBOURG   22 January 2013     FINAL   22/04/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lashin v. Russia, The European Court of Human Rights (Chamber), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Nina Vajić,   Anatoly Kovler,   Khanlar Hajiyev,   Linos-Alexandre Sicilianos,   Erik Møse, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 18 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 33117/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Petrovich Lashin (“the applicant”), on 29 July 2002. 2.     The applicant, who had been granted legal aid, was represented by Mr   D.   Bartenev, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. 3.     The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry. 4.     By a decision of 6 January 2011, the Court declared the application partly admissible. 5.     The applicant and the Government each filed further written observations on the merits (Rule 59 § 1 of the Rules of Court). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other’s observations. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1960 and lives in Omsk. A.     Deprivation of legal capacity 7.     The applicant suffers from schizophrenia, which was first diagnosed in 1987. In the 1980s and early 1990s he was employed as a bus driver, but in 1995 he stopped working. The applicant kept writing nonsensical letters to state officials and lodged numerous administrative complaints and lawsuits. At some point he started giving money and clothes to strangers and invited them to his house, explaining it by religious considerations. Such behaviour led to recurrent conflicts with his wife. The applicant became irritable, aggressive and once in 1996 tried to strangulate her. As a result, they divorced. In 1998 the applicant was officially given the “2 nd degree disability” status due to his mental disorder. 8.     Between 1989 and 17 July 2000 the applicant was hospitalised nine times in the Omsk Regional Psychiatric Hospital. As follows from the opinion of the Serbskiy Institute of 19 August 1999 (a leading State psychiatric research centre based in Moscow) during that period the applicant considered himself as a “defender of justice”, believed that he knew important State secrets, and claimed that there was a conspiracy against him. Amongst other things, he challenged his diagnosis, complained of his confinement to the hospital, threatened the doctors who had been treating him in the Omsk Regional Psychiatric Hospital, and tried to institute criminal proceedings against them. The report did not mention any incidence of violence or self-destructive behaviour after 1996, and it was not alleged that during that period the applicant was unable to take care of himself in everyday life. However, it is clear that his mental condition had a persistent character, and that he kept harassing doctors from the Omsk Regional Psychiatric Hospital with complaints and litigations. 9.     On 5 April 2000 the applicant underwent an examination in the Omsk Regional Psychiatric Hospital by a panel of doctors, who confirmed the previous diagnosis and the opinion by the Serbskiy Institute and concluded that the applicant was “incapable of understanding the meaning of his actions and was unable to control them”. 10 .     On 16 June 2000, following an application by the public prosecutor, the Kuybyshevskiy District Court of Omsk declared the applicant legally incapacitated because of his illness. The hearing took place in the absence of the applicant.   On 30   August 2000 the Omsk Regional Court upheld the decision of the District Court. 11.     On an unspecified date the Omsk Municipal Public Health Department appointed the applicant’s father as his guardian. B.     Attempts to restore legal capacity 1.     First request 12 .     On 2 October 2000 the applicant’s daughter brought court proceedings seeking to restore his legal capacity. Her request was supported by the applicant’s father as guardian. The plaintiffs claimed that the applicant’s mental state had significantly improved and requested that the court conduct a new psychiatric examination of his health. As the plaintiffs did not trust doctors from the Omsk Regional Psychiatric Hospital, they insisted that the process of the psychiatric examination of the applicant be recorded on a videotape. 13 .     On 27 October 2000 the court commissioned a psychiatric examination of the applicant, but refused to order a video recording of it. The expert examination was entrusted to the Omsk Regional Psychiatric Hospital. However, the applicant failed to submit himself for an examination at the hospital, so the examination was not conducted. 14 .     On 19 March 2001 the Sovetskiy District Court of Omsk decided to confirm the status of legal incapacity and maintain the applicant’s guardianship. It is unclear whether the applicant was present at the hearing. The court noted that because the new expert examination could not be conducted due to the applicant’s failure to cooperate, the results of the examination of 5 April 2000 were still applicable. It appears that the decision of 19 March 2001 was not appealed against. 2.     Second request 15 .     On 9 July 2001 the applicant’s father (as guardian) instituted court proceedings challenging the medical report of 5 April 2000 by the Omsk Regional Psychiatric Hospital which had served as grounds for declaring the applicant legally incapacitated. He also sought restoration of the applicant’s legal capacity. Since the plaintiffs did not trust doctors from the Omsk Regional Psychiatric Hospital they requested that the court commission a panel of experts from the Independent Psychiatric Association of Russia, a non-State professional association of psychiatrists, based in Moscow, to assess the applicant’s mental capacity. 16 .     On 26 February 2002 the Kuybyshevskiy District Court held a hearing in the applicant’s absence, having decided in particular that: “... [the applicant’s] mental condition prevented him from taking part in the hearing, and, moreover, [his] presence would be prejudicial to his health”. The court further refused to commission a new expert examination by a non-State psychiatric association, on the ground that only State-run institutions were allowed by law to conduct such examinations and issue reports. The relevant part of the District Court judgment reads as follows: “... under section 1 of the Psychiatric Care Act ... State forensic examination activity in judicial proceedings is carried out by State forensic examination institutions, and consists of organising and implementing the forensic examination”. In conclusion the court found that the expert report of 5 April 2000 was still valid, that the applicant continued to suffer from a mental disorder and that, therefore, his status as a legally incapacitated person should be maintained. 17.     The applicant’s father (as his guardian) appealed to the Omsk Regional Court, which   on 15 May 2002 upheld the judgment of 26   February 2002. C.     Confinement of the applicant in the psychiatric hospital 18 .     Some time later the applicant’s father solicited an opinion from Dr   S., a psychiatrist not affiliated with the Omsk Regional Psychiatric Hospital, concerning the applicant’s mental condition. Dr S. examined the applicant and on 1 July 2002 he submitted a report according to which the applicant’s mental illness was not as serious as claimed by the doctors at the Omsk Regional Psychiatric Hospital. 19 .     On an unspecified date in 2002 the applicant’s father, as his guardian, delivered a power of attorney to a third person, mandating that person to act in the applicant’s name. However, a notary public refused to certify the power of attorney, on the basis that under the law a guardian should represent his ward personally and could not confer his duties on a third person. The applicant’s father brought proceedings against the notary public in court, but to no avail: on 10 October 2002 the Sovetskiy District Court of Omsk confirmed the lawfulness of the refusal. 20 .     On 2 December 2002 the applicant and his fiancée, Ms D., requested that the municipality register their marriage. According to the applicant, they received no reply from the municipality. 21 .     On 4   December 2002 a district psychiatrist ( uchastkovyi psikhiatr ) examined the applicant and concluded that the latter suffered from “paranoid schizophrenia with paraphrenic delusion of reformism”. The psychiatrist delivered a hospitalisation order, which relied strongly on the “nonsensical complaints” lodged by the applicant’s representatives. 22.     On 6 December 2002 the Guardianship Council of the Omsk Region decided to strip the applicant’s father of his status as the applicant’s guardian. The decision was taken by the Guardianship Council without the applicant or his father being heard. 23 .     By virtue of the hospitalisation order the applicant was placed in the Omsk Regional Psychiatric Hospital on 9 December 2002. According to the applicant, he and his father unambiguously opposed this provisional placement in the hospital. 24.     On the same day a panel of three doctors from the Omsk Regional Psychiatric Hospital examined the applicant and concluded that he should stay in the hospital. They mostly based themselves on the medical history of the applicant that had led to the deprivation of legal capacity. The report stated that the worsening of the applicant’s mental condition was demonstrated by the numerous complaints by which he had tried to recover his legal capacity and challenge the actions of the hospital. 25 .     On 10 December 2002 the Omsk Municipal Public Health Authority approved the decision taken by the Guardianship Council on 6 December 2002. From that moment on the applicant’s father ceased to be his guardian and, according to the Government, the functions of the applicant’s guardian were performed by the municipal authorities, namely the Omsk Public Health Authority. 26.     On 11 December 2002 the Omsk Regional Psychiatric Hospital requested that the Kuybyshevskiy District Court authorise the applicant’s further confinement. On the same day the judge, in accordance with section 33 of the Psychiatric Care Act, ordered that the applicant be held in the hospital for such time as was necessary for the examination of his case. The provisional order issued by the judge was a one-sentence annotation on the hospitalisation order of 4 December 2002: “I hereby authorise detention [in hospital] pending the examination [of the case] on the merits”. 27.     Having been informed of that ruling, the applicant asked the hospital staff to release him for home treatment. The hospital staff refused, however, and prohibited him from seeing his relatives or talking to them. 28.     On 15 December 2002 the applicant lodged an application with the court for his release from the Omsk Regional Psychiatric Hospital. However, the judge informed the applicant by letter that such a provisional placement of a patient in a psychiatric hospital for a period necessary for the examination of the case on the merits was not subject to judicial review. 29.     On 17 December 2002 the District Court held a hearing in the presence of the applicant, the applicant’s father, the public prosecutor, and a representative of the hospital. From the case file it appears that the participants and the judge himself were not aware that the applicant’s father was no longer the applicant’s guardian. 30.     At that hearing the applicant and his father claimed that the applicant’s condition did not require hospitalisation. They insisted that the hospital had not proved the medical necessity of such a measure. The applicant and his father referred to the report by Dr. S. of 1 July 2002 (see paragraph 18 above). In order to clarify the matter, the applicant asked the court to commission a fresh medical examination of his mental health, in order to establish whether there had been any deterioration. The court rejected the request, while at the same time admitting the applicant’s medical record in evidence. At the end of the day the hearing was adjourned to 24 December 2002. 31 .     On 20 December 2002 the Guardianship Council appointed the administration of the Omsk Regional Psychiatric Hospital as the applicant’s guardian and delivered an authorisation for his extended confinement in the hospital. 32.     On 24 December 2002, without holding a hearing, the District Court closed the proceedings because the hospital, as the applicant’s only legitimate guardian, had revoked its request for authorisation of his confinement. The applicant’s confinement was thus considered to be “voluntary”, and therefore did not require court approval. 33 .     On the same day, the applicant’s father and fiancée asked the court to give them a copy of the decision, so that they could lodge an appeal. The judge refused because the applicant’s father, who was no longer his guardian, could not act on behalf of the applicant. The court also denied a request to consider the applicant’s fiancée to be his representative. 34.     On 27 January 2003, the applicant’s fiancée wrote a letter to the Guardianship Council where she requested that the council appoint her as the guardian of “her husband, Mr. Lashin”. There is no information whether she received any reply. 35.     On an unspecified date the applicant’s father lodged an appeal against the decision of 24 December 2002. On 10 February 2003 the Regional Court refused to examine the appeal on the grounds that the applicant’s father had no right to represent his son and that no decision on the merits of the case had been taken by the first-instance court. 36 .     On 2 February 2003 the applicant’s fiancée lodged a supervisory review appeal, which was returned to her without examination on 13   February 2003 on the basis that she had no power to represent the applicant. 37.     In the following months the applicant’s father and fiancée lodged several criminal-law complaints against the hospital and its doctors. Their complaints were addressed to various state authorities and the courts. It appears that none of those complaints was successful. 38 .     On an unspecified date the applicant’s father challenged the decision of the Guardianship Council of 6 December 2002, as approved by the municipal authorities on 10 December 2002, stripping him of his status as the applicant’s guardian. On   16 July 2003 the Kuybyshevskiy District Court of Omsk upheld the decision of the Guardianship Council. The District Court found that the applicant’s father had neglected his duties on many occasions and had tried to entrust the guardianship to a third party, referring in particular to the episode concerning the power of attorney (see paragraph   19 above). The court also noted that the applicant’s father had failed to secure appropriate medical treatment for the applicant as prescribed by the doctors, as a result of which the applicant’s condition had worsened.   According to the applicant, he lodged an appeal against that decision. 39.     In their letters to the Court of 28 July 2002 and 25 July 2003 the applicant and his fiancée informed the Court of their desire to marry. 40 .     On 10 October 2003 the Guardianship Council decided to appoint the applicant’s daughter as his guardian. That decision was approved by the municipality on 17 October 2003. 41.     On 10 December 2003 the applicant was released from the town hospital. The medical report issued in connection with the applicant’s discharge indicated that his mental health during his confinement had been predominantly characterised by “litigious” ideas similar to those he had presented at the time of his admission. 42 .     It appears that in 2006 the applicant’s relatives brought court proceedings seeking to restore the applicant’s full legal capacity. The Court has not been provided with any information about the outcome of those proceedings. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW A.     Legal capacity 1.     Substantive provisions 43.     Under Article 21 of the Civil Code of the Russian Federation of 1994, any individual aged 18 or more has, as a rule, full legal capacity ( дееспособность ), which is defined as “the ability to acquire and enjoy civil rights, [and] create and fulfil civil obligations by his own acts”. Under Article 22 of the Civil Code, legal capacity can be limited, but only on the grounds defined by law and within a procedure prescribed by law. 44.     According to Article 29 of the Civil Code, a person who cannot understand or control his or her actions as a result of a mental disease may be declared legally incapacitated by a court and placed in the care of a guardian ( опека ). All legal transactions on behalf of the incapacitated person are concluded by his guardian. In practical terms this means that the guardian ensures mandatory representation of the incapacitated person in all matters concerning his property, income, work relations, travel and residence, social contacts and so on. The incapacitated person can be declared fully capable if the grounds on which he or she was declared incapacitated cease to exist. 45.     Article 30 of the Civil Code provides for the partial limitation of legal capacity. If a person’s addiction to alcohol or drugs is creating serious financial difficulties for his family, he can be declared partially incapacitated. That means that he is unable to conclude large-scale transactions. He can, however, dispose of his salary or pension and make small transactions, under the control of his guardian. 46.     Under Article 35 (4), where a person deprived of legal capacity is placed under the supervision of a medical institution,   that medical institution must take on the functions of the guardian. 47.     It follows from Article 39 (3) of the Civil Code that the guardianship authority may revoke the authority of a guardian who neglects his duties. 2.     Incapacitation proceedings 48.     Article 258 of the Code of Civil Procedure of 1964, as in force at the material time (hereinafter “the old CCP”), established that members of the family of the person concerned, a prosecutor, a guardianship authority or a psychiatric hospital, as well as “trade unions and other organisations”, might apply to a court seeking to deprive a person of his legal capacity. The court, if there was evidence of a mental disorder, was required to commission a forensic psychiatric examination of the person concerned (Article 260). The case was required to be heard in the presence of the person concerned, provided that his presence was compatible with his state of health, and also in the presence of the prosecutor and a representative of the guardianship authority ( орган опеки и попечительства , Article 261 paragraph 2 of the old CCP). Under Article   263 of the old CCP it was possible for legal capacity to be restored by a court decision upon the application of the guardian or the persons listed in Article   258, but not based on the application of the person declared incapacitated. 49.     Article 32 of the old CCP provided that a person declared incapacitated could not bring an action before the courts. The guardian was entitled to do so in order to protect the rights of the incapacitated person. B.     Confinement to a psychiatric hospital 50.     The Psychiatric Care Act of 1992, as amended (hereinafter “the Act”), stipulates that any recourse to psychiatric aid must be voluntary. However, a person declared fully incapacitated may be subjected to psychiatric treatment at the request or with the consent of his official guardian (section 4 of the Act). 51.     Section 5 (3) of the Act provides that the rights and freedoms of persons with mental illnesses cannot be limited solely based on their diagnosis or the fact that they have undergone treatment in a psychiatric hospital. 52.     Under section 5 of the Act a patient in a psychiatric hospital can have a legal representative. However, pursuant to section 7 (2) the interests of a person declared fully incapacitated are represented by his official guardian or, in absence of an officially appointed guardian, the administration of the psychiatric hospital where the patient is confined. 53 .     Section 28 (1) of the Act (“Grounds for hospitalisation”) provides that a person suffering from a mental disorder may be placed in a psychiatric hospital for further examination or treatment on the basis of a decision by a psychiatrist or on the basis of a court order. Section 28 (3) and (4) states that a person declared incapacitated can be placed in a psychiatric hospital at the request or with the consent of his guardian. This hospitalisation is regarded as voluntary and, unlike non-voluntary hospitalisation, does not require court approval (sections 29 and 33 of the Act). 54.     Section 29 sets out the grounds for non-voluntary placement in a psychiatric hospital in the following terms:   “A mentally disturbed individual may be hospitalised in a psychiatric hospital against his will or the will of his legal representative and before a court decision [on the matter] has been taken, if the individual’s examination or treatment can only be carried out in in-patient care, and the mental disorder is severe enough to give rise to: a)     a direct danger to the person or to others, or b)     the individual’s helplessness, i.e. inability to take care of himself, or c)     a significant health impairment as a result of a deteriorating mental condition, if the affected person were to be left without psychiatric care.” 55 .     Section 32 of the Act specifies the procedure for the examination of patients compulsorily confined in a hospital:   “1.     A person placed in a psychiatric hospital on the grounds defined by section   29 of the present Act shall be subject to compulsory examination within 48 hours by a panel of psychiatrists of the hospital, who shall take a decision as to the need for hospitalisation. ... 2.     If hospitalisation is considered necessary, the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person’s further confinement in the hospital.” 56 .     Sections 33-35 set out the procedure for judicial review of applications for the non-voluntary in-patient treatment of mentally ill persons: Section 33 “1.     Non-voluntary hospitalisation for in-patient psychiatric care on the grounds laid down in section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital. 2.     An application for the non-voluntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is detained ... 3.     A judge who accepts an application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.” Section 34 “1.     An application for the non-voluntary placement of a person in a psychiatric hospital shall be reviewed by a judge, on the premises of the court or hospital, within five days of receipt of the application. 2.     The person shall be allowed to participate personally in the hearing to determine whether he should be hospitalised. If, based on information provided by a representative of the psychiatric hospital, the person’s mental state does not allow him to participate personally in the hearing, the application shall be reviewed by the judge on the hospital’s premises. ...” Section 35 “1.     After examining the application on the merits, the judge shall either grant or refuse it. ...” 57 .     On 5 March 2009 the Constitutional Court of Russia adopted Ruling No.   544- O-P in which it examined the compatibility of sections 32 and   34   (1) and (2) of the Psychiatric Care Act with Article 22 of the Constitution of the Russian Federation, which provides that a person can be arrested without a court order for a maximum period of forty-eight hours. The Constitutional Court found that the Psychiatric Care Act did not allow non-voluntary hospitalisation in a mental clinic for more than fourty-eight hours without a court order (point 2.3 of the Ruling). It appears from the last paragraph of point 2.2 of the Ruling that the Constitutional Court did not consider that an interim decision taken by a judge by virtue of section 33 (3) of the Act qualified as a “court order” within the meaning of Article 22 of the Constitution, since the judge in such a situation did not examine the reasons for the confinement and had no power to release the person concerned. However, the Constitutional Court did not declare the relevant provisions of the Psychiatric Care Act unconstitutional. 58 .     Section 36 (3) of the Act provides for the courts to verify every six months whether the patient’s non-voluntary confinement continues to be necessary. 59.     Section 37 (2) establishes the rights of a patient in a psychiatric hospital. In particular, the patient has the right to communicate with his lawyer without censorship. However, under section 37 (3) the doctor may limit the patient’s rights to correspond with other persons, have telephone conversations and meet visitors. 60.     Section 47 of the Act provides that the doctors’ actions are open to appeal before a court. Section 48 stipulates inter alia that the person whose rights are affected by the actions of the psychiatric institution must participate in the court proceedings if it is compatible with his or her mental condition. C.     State and private expert institutions 61 .     The State Forensic Expert Activities Act of 2001 (no. 73-FZ) defines the basic principles of the functioning and organisation of the State forensic institutions, which are supposed to assist judges, prosecutors and investigators in their professional activities where technical or scientific knowledge in a particular field is needed. Section 41 of that Act provides that forensic examination may be conducted by experts not belonging to the State forensic institutions, in accordance with Russia’s procedural laws. 62.     Article 75 of the old CCP provided that an expert examination had to be entrusted to “experts of the appropriate expert institutions or to other specialists appointed by the court. Any person having the appropriate knowledge [to give expert evidence] might be called [to testify before the court].” D.     Family Code 63.     Article 14 of the Family Code of the Russian Federation of 1995 (Federal Law No. 223-FZ) makes it impossible to marry if at least one of the would-be spouses has been declared incapable by a court because of a mental illness. 64.     Under Article 16 of the Family Code a marriage may be dissolved at the request of the guardian of a spouse who has been declared incapable by the court. E.     International instruments concerning legal capacity and confinement to a psychiatric institution 65 .     On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows: Principle 2 – Flexibility in legal response “1.   The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations. ... 4.   The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” Principle 3 – Maximum reservation of capacity “1.   The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2.   In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” Principle 6 – Proportionality “1.   Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2.   The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...” Principle 13 – Right to be heard in person “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” Principle 14 – Duration review and appeal “1.   Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3.   There should be adequate rights of appeal.” 66 .     The United Nations Convention on the Rights of Persons with Disabilities (the “CRPD”), which Russia signed on 24   September 2008 and ratified on 25 September 2012, provides in Article 12 (3) that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Article 12 (4) stipulates: “States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity ... are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. ...” Article 23 (a) of the CRPD establishes that “the right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognised.” F.     Comparative law 67.     A comparative law research concerning the law of persons with mental disabilities to marry and covering 25 member States of the Council of Europe demonstrated that in approximately one half (13/25) of the States an incapacitation decision automatically leads to the loss of the right to marry. In approximately one third (9/25) of them a guardian’s consent to the conclusion of marriage of an incapacitated person is needed. An express ban on the right to marry for mentally disabled persons is in place in six of the 25 member States. The language and procedures used to verify the legal consequences of the mental insufficiency in the marital sphere vary considerably from one member State to another. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 68.     The applicant complained about his inability to have his legal incapacity reviewed. The Court will examine this complaint under Article   8, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     The parties’ submissions 1.     The Government 69.     The Government started by summarising provisions of the Russian legislation on legal capacity. They admitted that deprivation of legal capacity would constitute an interference with the private life of the person concerned. However, in the applicant’s case it had been necessary in view of his diagnosis – schizophrenia, twice confirmed by doctors at the Serbskiy Institute in Moscow and the Omsk Regional Psychiatric Hospital, in 1999 and 2000 respectively. In particular, the psychiatric examination report prepared in 2000 concluded that the applicant was incapable of understanding the meaning of his actions and unable to control them. The incapacitation decision had thus been taken in order to protect the interests of other people, as well as his own interests. Such a limitation of his rights was provided for by Article 29 of the Civil Code and had therefore been “lawful”. The decision to deprive him of legal capacity had been taken in the applicant’s absence because he was in a psychiatric hospital at that time and his appearance before the court could therefore have been prejudicial to his health. The option of taking a decision without seeing the person concerned was provided for under Article 261 of the Code of Civil Procedure. The case had been heard by courts at two levels of jurisdiction, which had both concluded that the applicant’s illness warranted the deprivation of his legal capacity. 70.     The Government further indicated that the applicant’s father had ceased to be his guardian on 10 December 2002, when the Public Health Authority approved the decision of the Guardianship Council. Between 10   and 20   December 2002 the applicant had no guardian. 2.     The applicant 71.     The applicant argued that the decision of 26 February 2002 had been procedurally flawed. The judge conducted the hearing in the applicant’s absence without giving any explanation as to why the latter’s mental health prevented him from attending the hearing. The applicant acknowledged that he had suffered from some psychiatric problems, but there had been no indication that the applicant was aggressive or incapable of understanding the proceedings. It was therefore important for the judge responsible for deciding whether to restore the applicant’s legal capacity to form a personal opinion about his mental capacity. 72.     During the 2002 proceedings the applicant’s representatives had requested that the District Court commission an independent medical body (a panel of experts from the Independent Psychiatric Association of Russia) to assess his mental capacity. This application was dismissed because in the court’s view the law did not allow private entities to perform such assessments. However, Section 41 of the State Forensic Expert Activities Act explicitly stated the contrary. Moreover, Article 75 of the old CCP had provided for expert assessments to be performed by experts from the relevant institutions or by other specialists appointed by the court. 73.     The applicant also stressed that, having rejected the request to commission an independent panel of experts, the District Court had not made arrangements for any other expert assessment of his mental capacity. The only State expert psychiatric institution in the Omsk Region was the Omsk Regional Psychiatric Hospital whose actions the applicant had challenged in the proceedings in question, and which had previously sought the incapacity in 2000 by applying to the prosecutor’s office. It would have been contrary to the principle of equality of arms to appoint experts from the respondent hospital to assess the applicant’s mental capacity. 74.     The applicant also complained that after the transferral of the guardianship on 20 December 2002 to the Omsk Regional Psychiatric Hospital he had lost any possibility to have his legal capacity reviewed. 75.     As to the substance of the domestic decisions, the applicant recalled that he had been entirely deprived of his legal capacity in accordance with Article 29 of the Civil Code, that is to say on the sole basis that he suffered from a mental disorder. In 2002 the judge had simply reiterated the conclusion of the 2000 expert report and of the incapacity judgment, without establishing the actual mental capacity of the applicant at the time of the hearing. Thus, in the court’s view, the mere diagnosis of a mental disability had been enough to strip the applicant of all his fundamental rights. The judge had not examined the applicant’s actual capacity in any meaningful way in order to establish whether his mental health still prevented him from understanding the meaning of his actions and from controlling them. In any event, the existing legislative framework had not left the judge any other choice than to declare the person concerned fully incapacitated. The Russian Civil Code distinguished between full capacity and full incapacity, but did not provide for any borderline situation, except for drug or alcohol addicts. B.     The Court’s assessment 76.     The Court notes that the applicant’s complaint is two-fold. First, he complained that his Article 8 rights had been breached in the 2002 proceedings seeking the restoration of his legal capacity. Second, he complained that after 20   December 2002 he had no possibility to have his legal incapacity reviewed. The Court will start its analysis by addressing the first limb of the applicant’s complaint. 1.     The applicant’s attempts to recover his legal capacity until 20   December 2002 77 .     The Court recalls that deprivation of legal capacity may amount to an interference with the private life of the person concerned (see Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999, and Shtukaturov v. Russia , no.   44009/05, § 83, ECHR 2008). The Government in the present case did not contest that the applicant’s incapacitation had amounted to such an interference, and the Court does not see any reason to hold otherwise, especially in view of various serious limitations to the applicant’s personal autonomy which that measure entailed. 78 .     Under the six-month rule in Article 35 of the Convention the Court is precluded from examining the original incapacitation proceedings of 2000.   That being said, the Court may examine the applicant’s situation under Article 8 of the Convention insofar as his attempts to have his capacity restored in 2002 are concerned (see the admissibility decision of 6   January 2011 in the present case). 79.     An issue arises as to whether the applicant’s inability to obtain the review of his status must be examined in terms of the interference by the State with his Article 8 rights or rather in view of the positive obligations of the State under that provision. The Court recalls in this respect that whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see Oluić v. Croatia , no. 61260/08, § 46, 20 May 2010, with further references). This approach is fully applicable in the case at hand: the Court will examine whether a fair balance was struck between his Article 8 rights and any other legitimate interest, private or public, which may have been at stake in the 2002 proceedings. 80.     The Court accepts that depriving someone of his legal capacity and maintaining that status may pursue a number of legitimate aims, such as to protect the interests of the person affected by the measure. In deciding whether legal capacity may be restored, and to what extent, the national authorities have a certain margin of appreciation. It is in the first place for the national courts to evaluate the evidence before them; the Court’s task is to review under the Convention the decisions of those authorities (see, mutatis mutandis , Winterwerp v.   the   Netherlands , 24 October 1979, § 40, Series A no. 33; Luberti v. Italy , 23   February 1984, Series A no. 75, § 27; and Shtukaturov v. Russia , cited above, § 67). 81.     That being said, the extent of the State’s margin of appreciation in this context depends on two major factors. First, where the measure under examination has such a drastic effect on the applicant’s personal autonomy as in the present case (compare X. and Y. v. Croatia , no. 5193/09, § 102, 3   November 2011), the Court is prepared to subject the reasoning of the domestic authorities to a somewhat stricter scrutiny. Second, the Court will pay special attention to the quality of the domestic procedure (see Shtuk