CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 octobre 2015

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } Communicated on 15 October 2015   FOURTH SECTION Application no. 53251/13 A.-M.V. against Finland lodged on 30 July 2013 STATEMENT OF FACTS The applicant, Mr A.-M.V., is a Finnish national who was born in 1990. He is represented before the Court by Mr   Heikki Sillanpää, a lawyer practising in Turku. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background of the case The applicant is a man born in 1990 who is intellectually disabled. Apparently he was taken into public care by the child welfare authorities in 2001 as his parents could no longer look after him. From the year 2000, he lived in a foster family in a village situated about 50 km from his home town, which is in Southern Finland. In 2006 the foster family and the applicant moved to a village in Northern Finland. In 2007 the child welfare authorities in the applicant’s home town decided to remove the applicant from the foster family and to place him in a disabled children’s home in his home town in Southern Finland. The applicant turned 18 in July 2008. At that time he did not have any legal guardian and could thus freely make his own decisions. Therefore in December 2008 he decided to move to live with his former foster family in Northern Finland as he considered them to be his real family. However, in early 2009, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in a special living unit there for intellectually disabled adults. On an unspecified date the social welfare authorities requested the District Court ( käräjäoikeus, tingsrätten ) to appoint the applicant a legal guardian. On 18 June 2009, the District Court, on the basis of the Guardianship Service Act, appointed a legal guardian for him, considering that owing to disturbed mental faculties the applicant was incapable of looking after his interests and taking care of his personal and financial affairs. The court noted that, according to medical records, the applicant’s level of development was that of a child of 6 to 7 years old. The appointed legal guardian was a public legal guardian from a public legal aid office in the applicant’s home town. On 7 February 2011 the appointed legal guardian decided, against the applicant’s will, that it was in his best interest to live in his home town, where his family members also lived. He had better educational and work opportunities there than in Northern Finland where he only knew his elderly foster parents. 2.     Impugned proceedings On 8 April 2011 the applicant asked the District Court to discharge the public legal guardian appointed to him from her duties as far as his place of residence and education were concerned. He requested that another person of his choosing be appointed as his legal guardian instead. On 22 June 2011 the District Court, after having heard the applicant in person, rejected his request. The court noted that, according to a medical record dated 26 November 2010, the applicant’s decision-making skills were equal to that of a 6 to 9 year-old child. The court found that in order for it to dismiss the current guardian it would have to be proved that the decision of the legal guardian concerning the applicant’s living arrangements was against his best interest and that the legal guardian had been aware of this when making the decision. The court noted that the applicant could not complain about his current situation and, according to the witness statements, he enjoyed his apartment and work in his home town. The court concluded that the applicant clearly did not understand the meaning of living in a remote part of the country, especially as he had lived there for only one year. Moreover, it was likely that his opinion was influenced by that of the foster parents. The applicant’s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently in town. The applicant had a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities in his home town. Due to the remoteness of the foster parents’ home, the applicant would miss out on all these possibilities if he were to move away. The court thus concluded that it was in the applicant’s best interest to remain in his home town and therefore there was no reason to discharge the current legal guardian from her duties. By letter dated 15 July 2011 the applicant appealed to the Turku Appeal Court ( hovioikeus, hovrätten ), requesting that his current legal guardian be discharged from her duties. He pointed out that the Finnish Constitution guaranteed everyone a right to choose their place of residence. Moreover, a legal guardian had to enjoy the confidence of his or her client, which was not so in the present case. On 9 May 2012 the Turku Appeal Court, after having held an oral hearing, rejected the applicant’s appeal and upheld the District Court’s decision on votes by 2 to 1. The majority of the composition found that there was no reason to assess the evidence differently to the District Court. The dissenting judge found that the foster mother had been the only adult with whom the applicant had had a long ‑ standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life and he knew how it was to live in this foster family. When the applicant had been removed from the foster family in 2007 and placed in a children’s home in Southern Finland, no grounds were given for this measure being in the applicant’s best interest. The subsequent decision taken by the legal guardian in February 2011 had only confirmed the earlier decision. These decisions had created the source of distrust between the applicant and his legal guardian. As both of the proposed legal guardians were equally competent, the one who had the applicant’s trust should be chosen. By letter dated 6 July 2012 the applicant appealed further to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already presented before the Appeal Court. On 8 February 2013 the Supreme Court refused the applicant leave to appeal. B.     Relevant domestic law Article 9, paragraph 1, of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag , Act no. 731/1999) provides the following: “Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.” According to section 16, subsection 1, of the Guardianship Services Act ( laki holhoustoimesta , lagen om förmyndarverksamhet , Act no. 442/1999) a court shall dismiss a guardian from his or her task if the guardian proves to be unfit or unsuitable, or if there is another specific reason for the dismissal. Section 29, subsections 2-3, of the same Act provide that the guardian shall be competent, if the court has so ordered, to represent the ward also in matters pertaining to his or her person if the ward cannot understand the significance of the matter. However, the guardian shall not be competent to give consent to marriage or adoption on the behalf of the ward, nor to acknowledge paternity, consent to an acknowledgement of paternity, make or revoke a will or represent the ward in other matters of a comparably personal and individual nature. According to section 42 of the same Act, “[a] guardian appointed for an adult shall see to it that the ward is provided with the treatment, care and therapy that are to be deemed appropriate in view of the ward’s need of care and other circumstances, as well as the ward’s wishes.” Section 43, subsections 1-2, of the same Act provide that “[b]efore the guardian makes a decision in a matter falling within his or her remit, he or she shall ask for the opinion of the ward if the matter is to be deemed important from the ward’s point of view and if the hearing can be arranged without considerable inconvenience. However, no hearing shall be necessary if the ward cannot understand the significance of the matter.” COMPLAINTS The applicant complains under Article 8 of the Convention that he was appointed a legal guardian only after he had decided to move to Northern Finland and to live with his former foster family. His right to live and study in the place of his choice has been violated. His wishes have not been respected and it was impossible to have his legal guardian changed, even though he has lost confidence in her. The applicant’s own biological parents are alcoholics and have not cared about him for years, whereas his foster family gave him a safe home for a long time. He considers his foster family as his family and wants to live with them again. As the distance between the foster home and the applicant’s current place of residence is more than a thousand kilometres, he can visit them briefly only once or twice a year, and only when his legal guardian allows it. The rest of the time he is forced to live in an institution in his home town. The applicant claims that all these measures violate his right to respect for private and family life. The applicant complains under Article 2 of Protocol No. 4 to the Convention that his right to choose his place of residence and to be with those people who are actually closest to him has been completely ignored both by the social welfare authorities and the domestic courts. This right is guaranteed to everyone lawfully on the territory of the State and there are no exemptions for disabled persons. The applicant is not a criminal, nor dangerous to other people or to himself. Even in Northern Finland he would benefit from the same social and health care because the municipalities are required by law to provide care for their inhabitants with special needs. There is thus no reason to prevent him from choosing his place of residence. Lastly, the applicant complains under Article 1 of Protocol No. 12 to the Convention that he has been discriminated against because of his health in a way which is incompatible with his basic human rights. Although he has a mental disability, this does not mean that his wishes can be totally ignored. His mental capacities have regressed while living in an institution. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?   2.     Has there been a restriction on the applicant’s freedom to choose his residence, guaranteed by Article 2 § 1 of Protocol No. 4? If so, was that restriction in accordance with the law and necessary in terms of Article   2   §   3 of Protocol No. 4 and justified by the public interest, within the meaning of Article 2 § 4 of Protocol No. 4?