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

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .sDF4DF156 { width:155.75pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 }       FOURTH SECTION         CASE OF MIHAILOVS v. LATVIA   (Application no. 35939/10)         JUDGMENT   This version was rectified on 22 January 2013 under Rule 81 of the Rules of Court     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 Mihailovs v. Latvia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   David Thór Björgvinsson, President,   Ineta Ziemele,   Päivi Hirvelä,   George Nicolaou,   Paul Mahoney,   Krzysztof Wojtyczek,   Faris Vehabović, judges, and Lawrence Early, 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. 35939/10) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a permanently resident non-citizen of the Republic of Latvia, Mr Genadijs Mihailovs (“the applicant”), on 29 June 2010. 2.     The applicant, who had been granted legal aid, was represented by Mr   A. Zvejsalnieks, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs   I.   Reine and subsequently by Mrs K. Līce. 3.     The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights. 4.     On 29 August 2011 the above-mentioned complaints were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). In addition, third-party comments were received from the European Disability Forum, the International Disability Alliance and the World Network of Users and Survivors of Psychiatry (“the third parties”), which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The respondent Government replied to those comments (Rule   44 § 6). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1947 and currently lives in a State social care institution in Lielbērze, Auru parish. 6.     Since 1994 the applicant has been recognised as Category 2 disabled. He suffers from epilepsy. A.     The applicant’s admission to psychiatric hospitals 7.     On 13 March 2000 the applicant was admitted to a psychiatric hospital in Rīga. 8 .     Following an inpatient forensic psychiatric examination ( stacionārā tiesu psihiatriskā ekspertīze ) of the applicant ordered in connection with the incapacitation proceedings the experts concluded on 19 April 2000 that he was not suffering from a mental illness. However, he was suffering from epilepsy, which was described as organic in nature with psychotic syndromes and symptoms ( organiskas dabas psihosindroma un simptomātiska epilepsija ). This conclusion was reached on the basis of the fact that he had had encephalitis, often had small (absence/petit mal) and big (generalised tonic-clonic/grand mal) seizures, obsessive thinking, mood changes with dysphoria, sullenness, vindictiveness, reduced reasoning and some other psychological findings. It was recommended that he be declared legally incapable ( rīcībnespējīgs ); the experts also noted that owing to his mental state the applicant was not fit to participate in the hearings or to provide adequate explanations. 9.     The applicant was discharged from that hospital on 30 January 2002. 10.     On unspecified dates in 2002 and 2006 the applicant was admitted to another psychiatric hospital, Ģintermuiža, in Jelgava ( Jelgavas psihoneiroloģiskā slimnīca “Ģintermuiža” ). 11.     From 24 May to 3 June 2011 the applicant was a patient in Ģintermuiža Hospital in Jelgava. B.     Incapacitation proceedings and appointment of a guardian 12.     On an unspecified date the applicant’s wife initiated proceedings to have the applicant divested of his legal capacity. For the purposes of those proceedings the Rīga City Ziemeļu District Court ( Rīgas pilsētas Ziemeļu rajona tiesa ) ordered a forensic psychiatric examination of the applicant. 13.     On 17 May 2000 the city court, in the applicant’s absence, ruled that he was not legally capable. That ruling took effect on 7 June 2000. 14.     On 18 July 2000 the custodial court ( Bāriņtiesa ) appointed his wife as his guardian ( aizgādnis ) and explained that a report should be made every year on the fulfilment of guardianship duties. 15.     These reports stated that his wife had visited the applicant in the social care institution once a month in 2004, 2007 and 2008. In other reports she mentioned that she had regularly visited the applicant, without specifying the exact frequency. In two of these reports, dated 1   February 2006 and 29   December 2010, the applicant’s wife noted that his state of health had deteriorated, but she did not give further details. C.     Referral of the applicant to a social care institution 16.     On 20 November 2000 the applicant’s wife requested that the applicant be placed in a specialised state social care institution. The request contained no information about his state of health; nor were any reasons given. It was a form that was filled in and signed by the applicant’s wife as his guardian. 17.     On 28 November 2000 the Social Assistance Authority ( Sociālās palīdzības fonds ) attached to the Ministry of Welfare reviewed that request on the basis of the following evaluation that had been made by a social worker: “Category 2 disability. Constant supervision and care. The family has approached 3 PD. On the basis of the psychiatrist’s conclusion [the applicant] should be placed in an institution for people with mental disorders”. The decision was worded as follows: “to put [the applicant] on the waiting list for a referral to a social care institution for people with mental disorders”. 18 .     On 17 January 2002 the psychiatric hospital where the applicant was a patient at that time issued a medical certificate recommending that he be placed in a social care institution. It was a one-page completed form. It was mentioned that the applicant had Category 2 disability, and that he did not have allergic reactions or infectious diseases. The following tests and analyses were noted: on 24 July 2001 a lung scan, on 9 October 2001 a blood test, on 13   September 2001 an electrocardiology test that established initial diffuse changes in myocardium ( Ekg iniciālās difūzas izmaiņas miokardā ). It did not contain his diagnosis – the relevant field contained a note that “under section 50 of the Law on Medical Treatment confidential information about the patient will not be provided”. The conclusion was that “owing to his mental state [the applicant] is eligible to be admitted to an institution for persons with mental disorders”. 19.     On 21 January 2002 the Social Assistance Authority issued a referral for the applicant to receive social care services in the Īle State Social and Psychological Rehabilitation Centre which was located 20 km from Dobele in Īle parish (the “Īle Centre”). 20.     On 30 January 2002 the applicant was admitted to the Īle Centre. Individuals could move around freely within the centre, but needed to inform the management if they wished to leave it. Individuals who had been divested of legal capacity and wished to leave had to have that request agreed by their guardians. Having regard to the applicant’s state of health, he was included in a risk group “patients with epilepsy” and was permitted to leave the premises only if accompanied by a staff member or another patient. 21.     On 17 August 2007 the applicant’s wife asked the Īle Centre not to allow the applicant to meet a certain Mr Petrovs, since after his visits the applicant’s state of health allegedly worsened. On 17 December 2009 his wife instructed the Īle Centre to refuse any visits for the applicant without her written permission. 22.     On 16 September 2008 the applicant’s wife issued a power of attorney for a social worker of the Īle Centre to receive letters on behalf of the applicant. 23.     On 1 January 2010, following a State-wide reform of social care institutions, the Īle Centre became a branch of the Zemgale State Social Care Centre. 24 .     On 1 April 2010 the Īle Centre was relocated to other premises in Lielbērze, Auru parish, some 4 km from Dobele and some 80   km from Rīga. 25.     In response to a query from the above-mentioned Mr Petrovs about visiting rights, the Īle Centre on 14 May 2010 explained that the applicant’s wife was informed of every occasion when Mr Petrovs had met the applicant since she had expressly asked not to allow visits by him. It was stated that visitors could meet the applicant only on the premises of the Īle Centre, in view of his legal incapacity and state of health. It appears that this statement did not apply to visits by guardians. 26 .     The Government submitted that at the request of his wife on 29   October 2010 a referral was issued for the applicant to receive social care services in another branch of the Zemgale State Social Care Centre in Iecava municipality (the “Iecava branch”), located some 45 km from Rīga. On an unknown date in November or December, the applicant refused to move to the Iecava branch, since he felt well in the Īle Centre and did not want to move to another institution. D.     The applicant’s state of health 27 .     On 3 September 2007 the Īle Centre sent a letter to the custodial court reporting on the applicant’s state of health. It was noted that the applicant had been a resident of the centre since 30 January 2002. He had been admitted with a diagnosis of epileptic dementia (F02.8), and focal symptomatic epilepsy with secondarily generalised seizures (G40.2) ( simptomātiski fokāla epilepsija ar sekundāri ģeneralizētām lēkmēm ). The applicant had been treated in a psychiatric hospital in Jelgava in 2002 and 2006 for episodes of dystrophia, agitation and aggressive behaviour. The applicant’s illness was described as stable, irreversible and progressive in time. 28.     On 4 February 2010 the Īle Centre explained to the custodial court again that the applicant had been a resident and had been receiving treatment in the centre since 30 January 2002, with a diagnosis of epileptic dementia F02.8+G40.0. He received medication once a month. His psychic condition was unstable: he had periodic symptoms of delirium, dysphoria and aggression, as a result of which it was not advisable for him to live at home without supervision. His illness and its symptoms were stable and irreversible. 29.     On 19 May 2011 the applicant received a visit from the Ombudsman and an external psychiatrist. According to the Government, they did not identify any violations of the applicant’s rights. There is no further information in this regard. 30.     On 10 August 2011 the psychiatrist of the Īle Centre informed the custodial court that the applicant’s state of health had not improved, that he had been placed in a hospital from 24 May to 3 June 2011, and that he needed to take regular medication and to be supervised. 31 .     On 6 September 2011 the Ģintermuiža hospital informed the custodial court that the applicant had been treated there. His diagnosis had been epileptic dementia; epilepsy with rare extensive seizures and dysphoric conditions. It was also stated that with the passage of time the illness might produce more profound personality changes and increased dementia. E.     Applications for release 32 .     On 3 August 2007 the applicant applied to the custodial court with a view to making an application to a court to have him declared legally capable. He explained that in April 2000 he had been ill and had not been feeling well, which had been the reason for his inability to provide arguments against his wife’s application to have him divested of legal capacity. The custodial court informed the applicant on 16 August 2007 that under section 33 of the Law on Custodial Courts it was for a custodial court to decide whether to institute court proceedings aimed at reinstating legal capacity if a person had recovered; it also informed him that it had requested the Īle Centre to report on the applicant’s state of health. On 3   September 2007 the Īle Centre provided an answer to the custodial court (see paragraph 27 above). 33.     On 25 October 2009 the applicant was visited in the Īle Centre by Mr Petrovs and by a member of a non-governmental organisation, Mr   Braginskis. 34 .     On 1 December 2009 the applicant contacted the head of the Īle Centre and the Ministry of Welfare, seeking release in accordance with the domestic law (see paragraph 75 below). He wrote that he had been placed there against his will and on the orders of his wife. He considered that there was no need for a psychiatrist’s assessment for his release under the domestic law. 35.     In response to an inquiry from Mr Braginskis, the Ministry of Welfare on 22 December 2009 explained that social care services could be terminated only upon an application from the applicant’s guardian. In another letter, of 25 January 2010, they repeatedly stated that all issues relating to the applicant were to be dealt with by his guardian. 36.     On 26 January 2010 the Īle Centre, in response to an inquiry by Mr   Braginskis, stated that there were no grounds to terminate social care services as the applicant’s guardian had failed to submit any such requests. F.     Proceedings on appointment of another guardian 37.     On 8 July 2009 the applicant’s wife initiated proceedings for divorce. On 1 December 2009 a hearing took place, at which the applicant was present. During the hearing his wife withdrew her petition. The divorce proceedings were thus terminated. It appears that during the hearing the applicant’s wife learned of the applicant’s wish to have another guardian appointed, namely Mr Braginskis. 38 .     On 22 November 2009 the applicant asked the custodial court to terminate his wife’s guardianship of him, as she had not carried out her duties, had placed him in the Īle Centre, had not visited him and had not allowed him to attend his father’s funeral. On 1 December 2009 the applicant asked for Mr Braginskis to be appointed as his guardian, because he would take steps to ensure that the applicant could leave the Īle Centre and for his legal capacity to be reinstated. On 21   December 2009 and 7   January 2010 the custodial court replied to the applicant that these issues would be resolved in a hearing before it on 16   February 2010. 39. In the meantime, Mr Braginskis applied to various domestic authorities for the applicant’s wife’s guardianship to be terminated and for himself to be appointed guardian. 40.     The first set of proceedings was opened by the custodial court with a view to examining the suitability of the applicant’s wife as guardian. On 16   February 2010 the custodial court, following a hearing in the applicant’s absence, decided that she was an appropriate guardian for the applicant. 41.     On the same date the custodial court rejected the request by Mr   Braginskis to be appointed as the applicant’s guardian. 42.     In the second set of proceedings the custodial court on 26 August 2010, following a hearing in the applicant’s presence, decided to appoint the applicant’s son as his co-guardian along with his wife. 43.     On the same date the custodial court rejected the request by Mr   Braginskis to be appointed as the applicant’s guardian. 44 .     In a third set of proceedings, on 22 September 2011, the custodial court examined the suitability of the applicant’s wife and son as his guardians, following a complaint by the applicant. Following a hearing in the applicant’s presence, it was decided that they were not appropriate guardians and the court terminated their guardianship of the applicant. The reasons for this were, among other things, that they had never taken him outside the Īle Centre to stay at their home, to visit his parents’ grave or to church, which had been long-standing requests from him. In addition, they had not ensured that the applicant visited the Iecava branch before they considered relocating him there. 45 .     On the same date, following a hearing in the applicant’s presence, Mr Petrovs was appointed as the applicant’s guardian in accordance with the wishes of the applicant. G.     Subsequent events 1.     The applicant’s state of health 46 .     After the present application was communicated to the Government, on 27 November 2011, a psychiatrist from the Īle Centre prepared a psychiatric opinion regarding the absence of special (psychiatric) contra-indications and the most appropriate type of social assistance for a person with mental disorders. In fact this was a form, approved by the Cabinet of Ministers, which she had filled in. She noted that there were no particular (psychiatric) contraindications to the applicant being placed in a long-term social care and social rehabilitation institution. The psychiatrist had ticked the following boxes in the form to describe the applicant’s state of health: inpatient neuropsychological treatment; outpatient treatment with a psychiatrist; unable to organise daily routine independently; orientates in time; is capable of being outside the house alone in a known environment or route; unclear, inadequate speech; frequent mood swings; inadequate emotions; no perception disorders; unstable and restricted attention and concetration abilities; difficulties in switching attention; “other” (unspecified) reasoning disorders; noticably deteriorated memory; adequate behaviour; non-critical attitude towards his illness; smoking addiction; no comprehension regarding the need for the use of medication; behaviour dependent on the regular use of medication; assistance necessary for the use of medication; assistance necessary to perform household tasks, to use medication, to move outside the house, to perform operations with money; periodic surveillance necessary. She concluded with a recommendation that the applicant needed to live in a social care institution for people with serious mental disorders. 47.     The Government stated that this was a reiterated opinion, although in fact they had not submitted any prior opinions or information in this connection. 2.     Admission to a psychiatric hospital 48 .     On 2 January 2012 a psychiatrist and a general practitioner from the Īle Centre prepared an extract from the applicant’s medical record for him to receive treatment in a psychiatric hospital in Rīga. It contained the following: “The patient was treated in [the psychiatric hospital in Rīga] from 11 March 2000 to 30   January 2002, [in total for] 690   bed days, where a diagnosis of epileptic dementia was established, and [he] was declared legally incapable. Since 30 January 2002 the patient has been resident in the Īle Centre. Since the patient’s guardian was changed complaints have been lodged with the Health Inspectorate and the Ombudsman concerning erroneous diagnosis and treatment. The patient has recently been hostile, aggressive and dysphoric, has refused to take medication, and has hit other patients. ... [He] has perceptual and behavioural disturbances, but in the last nine months has had no major seizures. [I] ask inpatient treatment with a view to confirming [his] diagnosis and determining further treatment.” 49.     On 3 January 2012 the Īle Centre sent a letter to the applicant’s guardian, Mr Petrovs, seeking his consent for the applicant to receive inpatient treatment. An extract from the applicant’s medical report was attached. 50 .     On 2 February 2012 Mr Petrovs replied, stating that the applicant’s state of health during the last year had been satisfactory, as he had not had any seizures for the last ten months; he had been well and had not complained about his health. Other patients reported that he had good relations with them and that he had looked after weaker patients. He had a good memory – he remembered the birthdays and phone numbers of his relatives and friends, and did not forget to send them good wishes. He respected his parents, he joked, and showed interest in the news and what was happening to his acquaintances. Mr Petrovs considered that the applicant’s diagnosis – epileptic dementia – was most probably erroneous. He further considered that treatment in a psychiatric hospital would have a negative impact on any normal person and, therefore, he did not agree that the applicant should be referred for inpatient treatment in a psychiatric hospital. Finally, he considered that the existing medication (no psychotropic substances) and treatment for the applicant could remain unchanged. 3.     Application to the administrative courts 51 .     On 4 January 2012 Mr Braginskis, acting as a representative of the applicant’s guardian, Mr Petrovs, applied to the Administrative Regional Court seeking that the Ministry of Welfare be obliged to adopt a decision whereby the applicant could leave the Īle Centre. 52.     On 11 January 2012 a judge adopted a decision not to proceed with the case. She referred to the applicable domestic law (see paragraph 75 below) and noted that the applicant’s social care services could be terminated at the request of his guardian, Mr Petrovs. There was no evidence that he had requested that termination. The judge therefore stayed the proceedings and required Mr Braginskis and the Īle Centre to submit pertinent documents. 53.     Referring to these proceedings, on 24 January 2011 the Īle Centre wrote to Mr Petrovs asking him to submit a request for termination of services and for the relevant municipality to confirm that it could provide housing for the applicant. 54 .     There is no further information concerning these proceedings. 4.     Reopening of incapacitation proceedings 55 .     On 15 February 2012 Mr Braginskis, acting as a representative of the applicant’s guardian, Mr Petrovs, applied to the Rīga Regional Court for the applicant’s incapacitation proceedings to be reopened in the light of unspecified newly discovered circumstances. 56.     On 13 March 2012 a judge, taking into account that the final ruling in that case had taken effect on 7 June 2000, rejected the request for reopening of proceedings due to the expiry of the ten-year time-limit for bringing such claims. 57 .     Mr Braginskis lodged an ancillary complaint against that decision; there is no information about the outcome of these proceedings. 5.     The applicant’s views 58 .     On 26 March 2012 a lawyer from the custodial court called the head of the Īle Centre. The written record of that conversation stipulated that the applicant received weekly visits from his guardian, Mr Petrovs. He also received occasional visits from his wife and son and rare visits from Mr   Braginskis. The applicant sometimes called his wife and son. His state of health was stable if he was taking his medication. Mr   Petrovs and Mr   Braginskis, however, sometimes told the applicant that he did not need to use the medication, whereupon he stopped taking it for a while and his state of health deteriorated. It was also mentioned that the applicant sometimes visited Mr   Petrovs and stayed at his place overnight. The applicant himself had not expressed a wish to reside outside the Īle Centre. 59 .     It appears that the Īle Centre subsequently called Mr Petrovs with a view to finding out his views concerning the termination of the applicant’s social care. Mr Petrovs had orally requested them to continue providing social care services to the applicant. II.     RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 60.     The relevant parts of the reports issued by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the “CPT”) have been quoted elsewhere (see L.M. v. Latvia , no. 26000/02, §§ 34-36, 19 July 2011). In short, after its second periodic visit in 2002, the CPT noted that the Latvian legislation did not provide for regular reviews of placement in a psychiatric hospital/social welfare institution. 61.     After its third periodic visit in 2007, it found that a number of important amendments had been made to the Law on Medical Treatment, introducing, among other things, judicial review in the context of involuntary hospitalisation. Among other things, it noted as follows. “134. Specific reference should be made to the situation of patients/residents deprived of their legal capacity. Such persons could be admitted to a psychiatric hospital/social welfare institution solely with the written consent of the guardian. However, they were considered to be voluntary patients/residents, even when they opposed such a placement, and their placement was therefore carried out without any judicial intervention. In the CPT’s view, placing incapacitated persons in a psychiatric/social welfare establishment which they cannot leave at will, based solely on the consent of the guardian, entails a risk that such persons will be deprived of essential safeguards. ” B.     Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 62.     This Convention entered into force on 3 May 2008, was signed by Latvia on 18 July 2009 and ratified on 1 March 2010. The relevant parts of this Convention provide: Article 12 Equal recognition before the law “1.     States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2.     States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3.     States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4.     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 respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, 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. 5.     Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” Article 14 Liberty and security of person “1.     States Parties shall ensure that persons with disabilities, on an equal basis with others: (a)     Enjoy the right to liberty and security of person; (b)     Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2.     States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” C.     Recommendation No. R(99)4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999) 63.     The relevant parts of this Recommendation 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 response 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 proportional 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 9 – Respect for wishes and feelings of the person concerned “1.     In establishing or implementing a measure of protection for an incapable adult the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect. 2.     This principle implies, in particular, that the wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and, as far as possible, given due respect. 3.     It also implies that a person representing or assisting an incapable adult should give him or her adequate information, whenever this is possible and appropriate, in particular concerning any major decision affecting him or her, so that he or she may express a view.” 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. 2.     Measures of protections should be reviewed on a change of circumstances and, in particular, on a change of an adult’s condition. They should be terminated if the conditions for them are no longer fulfilled. 3.     There should be adequate rights of appeal.” Principle 16 – Adequate control “There should be adequate control of the operation of measures of protection and of the acts and decisions of representatives.” D.     Recommendation No. Rec(2004)10 of the Committee of Ministers of the Council of Europe concerning the protection of the human rights and dignity of persons with mental disorder (adopted on 22   September 2004) 64.     The relevant part of this Recommendation reads as follows: Article 17 – Criteria for involuntary placement “1. A person may be subject to involuntary placement only if all the following conditions are met: i. the person has a mental disorder; ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons; iii. the placement includes a therapeutic purpose; iv. no less restrictive means of providing appropriate care are available; v. the opinion of the person concerned has been taken into consideration. 2. The law may provide that exceptionally a person may be subject to involuntary placement, in accordance with the provisions of this chapter, for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if: i. his or her behaviour is strongly suggestive of such a disorder; ii. his or her condition appears to represent such a risk; iii. there is no appropriate, less restrictive means of making this determination; and iv. the opinion of the person concerned has been taken into consideration.” E.     Domestic law and practice 1.     Legislation relating to individuals divested of legal capacity (a)     Civil Law 65 .     Section 358 of the Civil Law ( Civillikums ), effective at the material time and until 1 January 2012, provided that any mentally ill person who lacks mental capacity entirely or in large part must be acknowledged as lacking the capacity to act and as legally incapable of representing themselves, administering their property and making decisions, for which reasons guardianship ( aizgādnība ) may be instituted. When a court divested a person of legal capacity it had to inform a custodial court, which then appointed one or more guardians, if necessary (section 360). Section   355 of the same law provides that in the first instance a spouse or other close relative must be appointed guardian. A person who has been divested of legal capacity does not have legal responsibility for their actions (section   361): they must act through their guardians. 66.     Section 364 of the Civil Law, effective at the material time and until 1 January 2012, provided that a court had to direct a custodial court to remove a guardian from that role if it found that a mentally ill person had recovered, that is, that he or she had become legally capable, after the guardian had submitted a settlement of accounts and had transferred the property which had been under his or her administration to the person who had recovered his or her health. 67.     With effect from 1 January 2012 sections 358 and 364 of the Civil Law are null and void (see paragraph 79 below). 68.     An application to a court for reinstatement of legal capacity could not, until 13 February 2012 (see paragraph 69 below), be submitted by the person concerned; it could only be lodged by the custodial court (see paragraph 72 below) or by his or her guardian (see paragraph 65 above). 69 .     On 2 February 2012 the following amendments to the Law on the Time and Procedure for the Entry into Force of the Re-enacted 1937 Civil Law of the Republic of Latvia, Family Law Chapter ( Likums “Par atjaunotā Latvijas Republikas 1937. gada Civillikuma ģimenes tiesību daļas spēkā stāšanās laiku un kārtību” ) were adopted. These amendments took effect on 13 February 2012 and were applicable until 1 January 2013. The purpose of these amendments was to comply with the Constitutional Court’s judgment in case no.   2010-38-01 (see paragraph 79 below) and to establish a temporary legal regulation for divesting a person of legal capacity and reinstating it until such time as more extensive legislative amendments were adopted. Section 21 “From 13 February 2012 until the day of entry into force of the amendments to the Civil Law, the Law of Civil Procedure and the Law on Custodial Courts regarding restrictions of a person’s legal capacity and establishment of guardianship due to mental illness (“the relevant amendments”), the court: ... 3) shall suspend the proceedings or shall make a judgement declaring the person legally capable and terminating the guardianship, while taking into account the provisions of section 26 of this law. Until the entry into force of the relevant amendments, the provisions of the Civil Law, the Law of Civil Procedure and the Law on Custodial Courts on declaring a person legally incapable and on establishing guardianship, as well as on declaring a person legally capable and on terminating guardianship, shall be applied in so far as they do not contradict the provisions of sections 22-26 of this Law.” Section 26 “(1) An application to declare a person legally capable and to terminate guardianship may be submitted to the court by a prosecutor, by the custodial court, or by the person him/herself. (2) The court shall suspend proceedings declaring a person legally capable and terminating guardianship until the entry into force of the relevant amendments, except in situations envisaged in paragraphs 3 of this section. (3) If, on the basis of evidence, the court finds that a person understands the meaning of his or her actions, is capable of independently exercising his/her rights and obligations and is capable of protecting his or her interests, the court shall make a judgement declaring the person legally capable and shall terminate guardianship. The court shall then forward the judgement for execution in accordance with the procedure set out in section 270, paragraphs 3 and 4 of the Civil Law ...” 70.     On 29 November 2012 legislative amendments were made to the Civil Law and the Law of Civil Procedure ( Civilprocesa likums ). Persons divested of their legal capacity can from now on submit applications to the courts to review those decisions. These amendments took effect on 1   January 2013. (b)     The custodial courts 71.     The Law on Custodial and Parish Courts ( Likums “Par bāriņtiesām un pagasttiesām” ), effective from 7 December 1995 to 1 January 2007, provided that a custodial court shall appoint a guardian for individuals divested of legal capacity, shall supervise the activities of guardians and, in certain circumstances, shall authorise guardians to enter into agreements on behalf of individuals divested of legal capacity, and shall terminate guardianship when it expires (section 18, paragraphs 2, 3 and 4). 72 .     Under the new Custodial Courts Law ( Bāriņtiesu likums ), effective since 1 January 2007, custodial courts have, inter alia , the authority to lodge claims and complaints in a court on behalf of individuals divested of legal capacity (section 16, paragraph 1, part 5), as well as to provide assistance to legally incapable persons who request it (section 17, paragraph 1, part 7). These courts also decide on instituting court proceedings aimed at reinstating legal capacity for individuals divested of it who have recovered (section   44). 2.     Legislation relating to social assistance 73.     Section 3 of the Law on Social Assistance ( Likums “Par sociālo palīdzību” ), effective at the material time and until 1 January 2003, provided that a person who could not provide for himself or herself or who could not overcome a particular hardship in life and who did not receive adequate assistance from anyone else, had a right to receive personal and material assistance. The main forms of social assistance were to be social care, material help and social rehabilitation. Under section 6, paragraph 1, part 5 the State had a duty to establish an