CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 mars 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 6 March 2018   THIRD SECTION Application no. 15593/15 Raisa Aleksandrovna NOVAKOVSKAYA against Russia lodged on 18 March 2015 STATEMENT OF FACTS The applicant, Ms Raisa Aleksandrovna Novakovskaya, is a Russian national, who was born in 1937 and lives in Moscow. She is represented before the Court by Mr Yu.L. Yershov, a lawyer practising in Moscow. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant’s son asked the national courts to divest her of legal capacity. On 19   May 2014 the Simonovskiy District Court of Moscow (“the District Court”) held a preliminary hearing. The applicant was absent at that hearing apparently because since 5   April 2014 she had been undergoing treatment in a psychiatric hospital (“the Hospital”). The District Court ordered the Hospital to perform an expert examination of the applicant. It put the following questions for the experts: whether the applicant suffered from a psychiatric disease; whether she was able to understand and control her actions; and whether the applicant’s participation in the court proceedings would endanger her or other people’s life and health. On 24   June 2014 the experts, three doctors of the Hospital, issued their report. They held that the applicant suffered from vascular dementia leading to the decrease of attention, memory and intellectual abilities, excessive emotionality, inability of critical and realistic thinking, obsessive fears of being poisoned or otherwise abused. The experts believed that the applicant was no longer adapted for social or everyday life activities. They concluded that the applicant was unable to understand and control her actions. The experts finally considered that she could not participate in the court proceedings because that would endanger her or others’ life and health. On 25   July 2015 the District Court held a hearing which lasted about thirty minutes. The applicant attended the hearing but was not represented by a lawyer. According to the hearing’s records, in reply to the judge’s questions the applicant answered as follows. She lived alone and considered for some time to sell half of her flat. The applicant further said that she was afraid to stay with her son as he was beating her and forced to take medications. No more questions followed. The judge noted in the judgment that the applicant was “untidy, disorganised, poorly oriented in time and place”. The judge then reiterated the experts’ conclusion that the applicant suffered from a mental disease; was unable to understand and control her actions and required guardianship. The judge declared the applicant legally incapable. The applicant appealed. She complained, in particular, that the District Court had only relied on the psychiatric expert report without examining any other circumstances which could be relevant for her legal status determination. The applicant further complained that she had not been assisted by a lawyer during her incapacitation proceedings and that her expert examination had been ordered and performed in breach of the national law requirements. On 21   December 2014 the applicant requested the appeal court to postpone the hearing of her case. She asserted that her son had taken away her passport and, thus, she could not hire a lawyer and would not be allowed entering the court premises. On 24   December 2014 the Moscow City Court (“the City Court”) held an appeal hearing on the applicant’s case. The applicant was absent. The applicant’s son’s representative informed the judge that the passport had been returned to the applicant a day before. The judge then noted that the applicant had been properly notified about the time and place of the hearing, rejected her request to postpone the hearing and continued in her absence. The City Court found no grounds to disagree with the first instance court judgment and endorsed its reasoning. It established no violations in the procedure of ordering the applicant’s expert examination. As for the issue of legal assistance during the first-instance court proceedings, the City Court noted that the applicant had not requested it. It, thus, upheld the judgment of 25   July 2014. B.     Relevant domestic law Section 5 subsection 2 of the Psychiatric Assistance Act 1992 provides a list of the rights of persons suffering from psychiatric disorders, including the right to the assistance of a lawyer, legal representative or other person. COMPLAINTS The applicant complains under Article 6 §§ 1 and 3 of the Convention that her incapacitation proceedings were unfair. In particular, she complains that at the preliminary hearing the court ordered her psychiatric expert examination in her absence and, thus, she had been unable to present her position regarding the choice of experts and the questions to be put to them. Further, as the applicant only had her passport returned to her a day before the appeal hearing and her request to postpone the hearing was rejected, the applicant had been unable to hire a lawyer to prepare and present her position before the appeal court. The applicant also complains that she was not provided with legal assistance throughout her incapacitation proceedings. The applicant complains under Article 8 of the Convention that the courts divested her of legal capacity relying only on the expert report and without examination of other relevant circumstances. The applicant complains under Article 1 of the Protocol No. 1 to the Convention that her full legal incapacitation deprived her of the right to independently enjoy her possessions. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the case concerning her legal capacity as required by Article 6 § 1 of the Convention? In particular, did the applicant have an effective “right to a court” given her absence from the preliminary hearing of 19   May 2014 and the appeal hearing of 24   December 2014? Was the applicant able to present her case effectively before the national courts without legal representation?   2.     Has there been a violation of the applicant’s right to respect for private life contrary to Article 8 of the Convention in the light of the domestic court’s decision to declare her legally incapable?   3.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention in view of her legal incapacitation? If so, was that interference necessary to control the use of property in accordance with the general interest?