CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 novembre 2016

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 } .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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } Communicated on 17 November 2016   FIRST SECTION Application no. 74438/14 Gurgen NIKOLYAN against Armenia lodged on 13 November 2014 STATEMENT OF FACTS The applicant, Mr Gurgen Nikolyan, is an Armenian national who was born in 1939 and lives in Yerevan. He is represented before the Court by Ms   Haykuhi Harutyunyan, a lawyer practising in Yerevan, and Ms Hasmik Harutyunyan, a non-practising lawyer. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 25 April 2012 the applicant instituted proceedings at the Shengavit District Court of Yerevan seeking to divorce his wife and evict her from his apartment. On 4 July 2012 the applicant’s wife instituted non-contentious court proceedings, seeking to deprive the applicant of his legal capacity. She submitted that the applicant’s recent attempts to divorce and to evict her and their son from his apartment were signs of a mental disorder. She explained that the aim of her claim for incapacitation of the applicant was to avoid being evicted from the apartment belonging to the applicant. The District Court therefore ordered an examination of the applicant by the psychiatric expert commission in order to establish whether or not he was able to understand the meaning of his actions or control them. On 25 September 2012 the psychiatric expert commission issued an opinion stating that the applicant suffered from “delirium disorder”, a mental illness whose symptoms reached a degree which deprived the applicant of the ability to understand the meaning of his actions or control them. The commission came to this conclusion, among others, on the basis that the applicant suspected his wife of having had intimate relationships with various persons and of intending to swindle him. On 14 November 2012 the applicant’s son instituted court proceedings, seeking to deprive the applicant of his legal capacity. On 22 November 2012 the District Court decided to stay the divorce and eviction proceedings until the final determination of the applicant’s incapacitation case. On 13 December 2012 the District Court heard the claim lodged by the applicant’s wife in the presence of the applicant and decided to reject it. It noted the conflict of interests between the applicant, who sought to divorce his wife and evict her from his apartment, and his wife, who sought to deprive the applicant of legal capacity and avoid being evicted. The District Court concluded that the applicant’s wife’s claim did not pursue a legitimate aim. The District Court further reasoned that the expert opinion of 25   September 2012 was necessary, but insufficient, evidence for depriving the applicant of his legal capacity; depriving the applicant of his legal capacity in such circumstances would entail serious and irreversible consequences for him, making him a potential victim of a breach of the Convention. The applicant’s wife appealed against the judgment of 13   December 2012. On 8 February 2013 the District Court granted the claim lodged by the applicant’s son and deprived the applicant of his legal capacity. The District Court relied on the psychiatric expert opinion of 25 September 2012 and concluded that the applicant was unable to understand the meaning of his actions or control them. The applicant was not notified of the claim lodged by his son and of the hearing at the District Court. No appeal was lodged against the judgment of 8 February 2013 and it became final on 11 March 2013. On 28 March 2013, upon the appeal of the applicant’s wife, the Civil Court of Appeal reversed the judgment of 13 December 2012 and remitted the case. The Civil Court of Appeal noted that the judgment of 8   February 2013 was key evidence for the resolution of the case, but the appellant was deprived of the opportunity to present it to the District Court, for reasons beyond her control. The Civil Court of Appeal concluded that this reason alone was sufficient to reverse the judgment of 13   December 2012 and allow the appellant to benefit from the use of the final judgment of 8   February 2013 as evidence during the new examination of the case. On 31 May 2013 the applicant appealed against the judgment of 8   February 2013 on the ground that the District Court had deprived him of his legal capacity without notifying him of the hearing. On 11 July 2013 the Civil Court of Appeal reversed the judgment of 8   February 2013 and ordered a new examination on the ground that the applicant had not been notified of the hearing of the case on his incapacitation. On 30 August 2013 the District Court decided to involve the applicant as a third party in the proceedings for his incapacitation. On 3 October 2013 the District Court decided to join the claims lodged by the applicant’s wife and son and examine them together. At the hearing of 29 November 2013, in the presence of the applicant, the District Court granted the joint claim and deprived the applicant of his legal capacity. The District Court relied on the statements about the applicant’s antagonistic behaviour and on the psychiatric expert opinion of 25   September 2012, concluding that the applicant was unable to understand the meaning of his actions or control them. The applicant alleges that this hearing lasted only a few minutes and was of a perfunctory nature. The applicant appealed against this judgment. On 7 March 2014, the Civil Court of Appeal rejected the applicant’s appeal. The Civil Court of Appeal relied on the statements of the applicant’s wife and son, as well as his neighbours, about his antagonistic behaviour. It also stressed that the psychiatric expert opinion of 25 September 2012 was sufficient evidence to deprive the applicant of his legal capacity. The appellate court concluded that there was no evidence that the applicant was not suffering from a mental disorder or that he had recovered. The applicant lodged an appeal on points of law against this decision, which the Court of Cassation declared inadmissible on 30 April 2014. This decision was served on the applicant on 17 May 2014. On 23 May 2014, the applicant filed a letter with the Minister of Public Health, seeking a new forensic examination to determine whether or not he was able to understand the meaning of his actions or control them, because almost two years had already passed since the only psychiatric expert opinion, of 25 September 2012. On 2 June 2014 the Ministry of Public Health responded to the applicant’s letter and informed him that it had no authority to order forensic expert examinations. On 22 August 2014 the applicant applied to a psychiatric hospital seeking a psychiatric expert examination. The hospital never responded to this letter. On the same date the applicant applied to the District Court, seeking to obtain an order assigning a new psychiatric expert examination to determine whether or not his mental health allowed him to understand the meaning of his actions or control them. On 28 August 2014 the District Court replied to the applicant that the court was competent to restore his legal capacity on the basis of a psychiatric expert opinion about his mental health and only if his guardian, a family member or a psychiatric institution filed such a request. In the absence of such a request, the court lacked competence to order a new psychiatric expert examination. On 17 October 2014 the applicant requested the District Court to provide the records of the hearing of 29 November 2013. The District Court apparently never responded to this request. As at 13 November 2014, the date of introduction of the application, the applicant had not been appointed a guardian. On 7 April 2015 the Constitutional Court declared Article 173 of the Code of Civil Procedure unconstitutional, in so far as it deprived individuals of the right of direct access to court to restore their legal capacity. It appears that shortly after the decision of the Constitutional Court of 7   April 2015, the applicant instituted proceedings before the District Court, seeking to restore his legal capacity. In the course of those proceedings the court ordered the psychiatric expert commission to examine the applicant and to state whether or not he was able to understand the meaning of his actions or control them. In its report of 29 October 2015 the commission stated that it was unable to diagnose the applicant and answer the District Court’s questions and that an inpatient examination was necessary. This report was sent to the District Court on 4 February 2016. The District Court informed the applicant’s lawyer about it on 5 March 2016. It appears that the case concerning the restoration of the applicant’s legal capacity is still pending before the District Court. B.     Relevant domestic law 1.     The Civil Code (in force since 1999) Article 31 provides that the court may deprive a person of his/her legal capacity in accordance with the provisions of the Code of Civil Procedure, if he/she is unable to understand the meaning of his/her actions or control them as a result of mental disorder. A guardian shall be appointed for such persons. The same article further provides that the court shall restore the person’s legal capacity, if the grounds on which he/she was deprived of legal capacity cease to exist. Guardianship shall be terminated on the basis of the judgment. 2.     Code of Civil Procedure (in force since 1999) Article 43 § 1 provides that the rights and legitimate interests of incapacitated persons shall be protected before the courts through their guardians. Article 105 provides that the court shall suspend the proceedings, if it is impossible to examine the case until final resolution of a constitutional, civil, criminal or administrative case, or if the individual participating in the case is declared legally incapacitated. Article 164 provides that the courts shall hear special cases in accordance with the general procedures prescribed by this Code with the specific exceptions provided for in the preceding Chapters 28-36. Article 168 § 1 of Chapter 29, which is entitled “The procedure of declaring a person incapable”, provides that the application for a person to be deprived of his/her legal capacity may be lodged by his/her family members, a body of guardianship and trusteeship and the administration of a psychiatric hospital. Article 169 § 1 provides that an application for a person to be declared legally incapacitated shall state the circumstances demonstrating the inability of the person to understand the meaning of his/her actions or control them as a result of a mental disorder. Article 170 provides that on the basis of a reasonable suspicion about the mental health of a person, the judge shall order a psychiatric expert examination to determine the state of mental health of the person. Article 171 § 1 provides that the person concerned may be invited to the hearing, if his state of health permits his presence at the hearing. Paragraph   4 of the same article provides that if the court establishes that members of the person’s family acted in bad faith, that is evidently aiming to deprive him/her of legal capacity without basis, it shall levy on them the judicial costs. Article 172 § 1 provides that, on the basis of the judgment declaring the person legally incapacitated, the guardianship and trusteeship body shall assign a guardian for that person. Article 173 § 1 provides that the court shall restore the recovered person’s legal capacity on the basis of the relevant psychiatric expert opinion, upon application by a guardian, a family member or the administration of a psychiatric institution. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that the incapacitation proceedings before the District Court were not adversarial and that he lacked access to court to restore his legal capacity and obtain determination of his divorce and eviction claims. The applicant complains that the deprivation of his legal capacity breached his right to private life guaranteed by Article 8 of the Convention. QUESTIONS TO THE PARTIES 1.     Was the applicant’s right of access to a court respected in the divorce and eviction proceedings instituted by him, as required by Article 6 § 1 of the Convention? In particular, did the claim filed by the applicant on 25   April 2012 receive a final determination by the domestic courts? 2.     Did the applicant enjoy the right of access to a court in respect of the restoration of his legal capacity, as required by Article 6 § 1 of the Convention? The Government are requested to describe the conduct and the outcome of the proceedings instituted by the applicant after the decision of the Constitutional Court of 7   April 2015 and to provide the particulars of the applicant’s claim and other relevant documents related to these proceedings. 3.     Did the applicant have a fair hearing in the incapacitation proceedings, as required by Article 6 § 1 of the Convention? In particular, was the trial adversarial, taking into account that the applicant was involved as a third party and considering the manner in which the hearing of 29   November 2013 at the Shengavit District Court was conducted? The Government are requested to provide a copy of the records of that hearing. 4.     Was the deprivation of the applicant’s legal capacity in breach of his right to private life guaranteed by Article 8 of the Convention?