CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 janvier 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .sDA30A789 { margin-top:30pt; margin-bottom:36pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } .sCDABDDB1 { margin-top:24pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } SECOND SECTION Application no. 17280/08 A.N. against Lithuania lodged on 28 March 2008 STATEMENT OF FACTS THE FACTS The applicant, Mr A.N., is a Lithuanian national who was born in 1971 and lives in Naujoji Akmenė. A.     The circumstances of the case The facts of the case, as submitted by the applicant and the Government, may be summarised as follows. In 1990 the applicant served as a soldier in the armed forces of the Soviet Union. It was at this time that he was diagnosed with schizophrenia. Later on he was treated in psychiatric institutions on a number of occasions. In 2004 the applicant was admitted to Šiauliai Psychiatric Hospital on three occasions. He was released the same year. On 24 November 2006 the applicant’s mother, C.N., asked the prosecutor to initiate court proceedings with a view to her son being declared mentally incapacitated. She submitted that the applicant was afraid to leave his home, did not take care of himself and did not let his parents into his flat. The prosecutor conveyed C.N.’s request to the Akmenė District Court. By a ruling of 29 November 2006 the court ordered an expert examination to ascertain whether the applicant was suffering from mental illness, whether he could understand his actions and whether he could take part in court proceedings. On 8 January 2008 the psychiatrists concluded that the applicant suffered from paranoid schizophrenia. He could not correctly understand or control his actions. The experts also noted that the applicant “could not take part in court proceedings, could not be questioned and court documents could not be served on him”. By a letter of 29   January 2007, the Akmenė District social services informed the Akmenė District Court that they agreed with the prosecutor’s request for the applicant to be declared incapacitated. They also wrote that they would not take part in the court hearing, which was scheduled for 31   January 2007. The Government informed the Court that on 23, 24, 25 and 30 January 2007 attempts had been made to hand the applicant the summons concerning his legal incapacitation and establishment of care. The Government submitted the summons, which noted that it had not been served because according to the [next door] neighbour the applicant was mentally ill and opened the door to no one. On 31 January 2007 the Akmenė District Court granted the prosecutor’s request for the applicant to be declared incapacitated. The prosecutor and the applicant’s mother took part in the hearing. The ruling stipulated that it could be appealed against within thirty days. The Government submitted that, given the fact that it had not actually been possible to serve the court documents (summons) on the applicant, the decision of 31 January 2007 had been sent only to the interested parties to the case, that is, the applicant’s mother, the prosecutor and the social services. The Government did not have any written evidence that the aforementioned decision was ever served on the applicant. The Government acknowledged that the decision of 31 January 2007 had never been appealed against. Having established that the applicant was incapacitated, by a ruling of 6   March 2007 the Akmenė District Court appointed C.N., the applicant’s mother, as his guardian. The decision was taken in an open hearing in which C.N., a prosecutor and a representative of the social services took part. The Court has no information whether the applicant was ever summoned to that hearing. In any case, the applicant did not take part. The applicant was placed in Šiauliai Psychiatric Hospital on 9 March 2007, the day when he showed signs of agitation and behaved aggressively. By a ruling of 13 March 2007, the Šiauliai District Court granted a request by the psychiatric hospital for the applicant to be forcibly hospitalised there. The ruling was final and not appealable. The ruling stipulated that on 31 January 2007 the applicant had been declared legally incapacitated. As can be seen from his medical file from Šiauliai Psychiatric Hospital, the treating doctor noted (on page 2 of the document) that the applicant was legally incapacitated. On the same page of the document the doctor also indicated that a copy of the court ruling of 13 March 2007 had been given to the applicant. On 6 April 2007 the applicant signed page 3 of the document, certifying that his treatment plan had been explained to him and that he agreed to follow it. The applicant was released from Šiauliai Psychiatric Hospital on 22 June 2007. On 26 November 2008 the applicant approached the Šiauliai branch of the State Guaranteed Legal Aid Service (“the Service”). In his application for legal aid the applicant wrote that by a ruling of 31 January 2007 he had been declared legally incapacitated. He would need to ask for a renewal of the time-limit for appealing against that ruling. The applicant also noted that in March 2007 his mother had been appointed his guardian and administrator of his property. He noted that he had not known about the two court decisions until 9 March 2007, when he had been placed in Šiauliai Psychiatric Hospital. The applicant expressed a wish to appeal against both court decisions. On 31 December 2008 the Service refused the applicant’s request as having no prospect of success. The Service did note that the applicant fell into the category of persons entitled to legal aid. However, given that the proceedings for his incapacitation had been terminated, his request for legal aid was clearly irrelevant. As to the appointment of C.N. as the applicant’s legal guardian, the Service noted that the applicant had not given any grounds for doubting her ability to perform her duties as guardian and administrator of his property. Lastly, the Service observed that the guardianship could be terminated on the basis of a request by a prosecutor or social services. Given that the applicant himself could not apply to the court with a request for his guardianship to be terminated, the Service did not have any [legal] basis on which to provide legal assistance in respect of his request. Lastly, the Service noted that the decisions the applicant wished to challenge had been taken in January and March 2007. Given that the applicant had requested legal aid only on 28 November 2008, the deadline for an appeal against those decisions had been missed. Representing the applicant in such proceedings would have had no prospect of success. On 15 December 2008 the applicant submitted a request to the Akmenė District Court for a copy of the court ruling concerning his incapacitation. On 16 December 2008 a judge of the District Court wrote to the applicant informing him that he would not receive [a copy of] the court ruling in question because C.N. had been appointed as his legal guardian and administrator of his property. B.     Relevant domestic law and practice 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. Rights and obligations of a guardian are laid down in the provisions of Book Three of [this] Code. 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 final ,   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 that 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 366 § 1 (6) and (7) 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, or if the court took a decision in respect of the party that was not involved in the proceedings. An application to declare a person legally incapacitated may be submitted by, inter alia , parents, 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 in question, as well as the guardianship (care) authority. If it is impossible to call or question in court a person subject to incapacitation proceedings or to serve court documents on him or her because of his or her state of health, as confirmed by a medical opinion, the court shall hear the case in the absence of the person concerned (Article 464 §§ 1 and 2). Article 275 § 1 of the Code of Civil Procedure stipulates that a copy of a court decision is to be sent to the parties and third persons who were absent at the hearing within five days from the day on which that decision was pronounced. A person who has been declared legally incapacitated by a court decision, has a right to appeal such decision to a higher court (Article 468 §   5 of the Code). The Law on State Guaranteed Legal Aid provides that persons subject to incapacitation proceedings are eligible for secondary legal aid regardless of their property and income levels (Article 12 § 1 (11)). The authorities may refuse to provide legal aid where the applicant’s claims are manifestly ill ‑ founded or where representation in a matter has no reasonable prospect of success (Article 11 § 6 (1, 2)). In a ruling of 11 September 2007 in civil case No. 3K-3-328/2007, the Supreme Court noted that the person whom it is asked to declare incapacitated is also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure). As a result, he or she enjoys the rights of an interested party, including the right to be duly informed of the place and time of any hearing. The fact that the case had been heard in the absence of D.L. – the person whom the court had been asked to declare incapacitated – was assessed by the Supreme Court as a violation of her right to be duly informed of the place and time of court hearings, as well as of other substantive procedural rights safeguarding her right to a fair hearing. The Supreme Court also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the first ‑ instance court had breached the principle of equality of arms, as well as D.L.’s right to appeal against the decision to declare her incapacitated, because the decision had not been delivered to her. The Supreme Court also referred to Principle no. 13 of Recommendation No. R (99) 4 by the Committee of Ministers of the Council of Europe, stating that the person concerned should have the right to be heard in any proceedings which could affect his or her legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court’s case-law to the effect that a mental illness could result in appropriate restrictions of a person’s right to a fair hearing. However, such measures should not affect the very essence of that right ( Winterwerp v.   the Netherlands , 24 October 1979, § 60, Series A no. 33; Lacárcel Menéndez v. Spain , no. 41745/02, §   31, 15 June 2006). COMPLAINTS Without invoking any article of the Convention the applicant complains about the incapacitation proceedings. He writes that he was shown the decision of 31 January 2007 only by a director of Šiauliai Psychiatric Hospital, where he was placed on 9 March 2007. Until then, nobody informed him of the court decision. Moreover, he was absent from the court hearing as he did not even know that such a hearing was taking place. Being legally incapacitated, the applicant is also not able to appeal against the incapacitation decision. He further argues that because he is legally incapacitated he is deprived of all his human and civic rights, may not get a job, vote, take part in public activities or get married. Lastly, the applicant submits that in 2004 he was placed in Šiauliai Psychiatric Hospital, where he was forcibly tied to a bed and kept in that humiliating position for six hours. QUESTIONS TO THE PARTIES 1.     Has the applicant lodged his application with the Court within a period of six months of the date of the decision as to his incapacitation?   2.     Did the applicant have a fair hearing as concerns the court proceedings concerning his legal (in)capacity, as required by Article 6 § 1 of the Convention (see Shtukaturov v. Russia , no. 44009/05, §§ 66-68, ECHR 2008)? In particular, was the applicant’s right to a fair hearing respected in the light of him not being present at the Akmenė District Court hearing on 31 January 2007?   In this connection the Court also notes the refusal by the State Guaranteed Legal Aid Service to assist the applicant with his wish for the incapacitation proceedings, as well as those for his guardianship, to be reopened.   3.     Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, in the light of the domestic court’s decision to declare him legally incapable? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?