CEDH · CASELAW;CLIN;ENG — 31 mai 2016

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Lithuania - 17280/08 Judgment 31.5.2016 [Section IV] Article 6 Civil proceedings Article 6-1 Access to court Fair hearing Absence of proper procedural safeguards in proceedings to deprive applicant suffering from mental disorders of his legal capacity: violation Article 8 Article 8-1 Respect for private life Failure to take into account the kind or degree of applicant’s mental disorder when depriving him of his legal capacity: violation Facts – The applicant had a history of mental illness. In 2006 his mother asked a prosecutor to initiate proceedings in the district court for him to be declared legally incapacitated. After visiting the applicant and consulting his medical records, a medical expert appointed by the court concluded that he was suffering from schizophrenia. The district court made unsuccessful attempts to summon the applicant to the hearing of the application for a declaration of incapacitation. At the hearing, which the applicant did not attend, it declared his incapacitation on the grounds that he was unable to understand or control his actions. His mother was later appointed as his guardian and the administrator of his property. On account of his condition, the applicant was compulsorily admitted to a psychiatric hospital for more than four months. In order to appeal against the district court’s decisions he approached the Legal Aid Service, but it refused his request for legal aid as he had missed the deadline for appealing. The applicant’s ensuing complaint to the prosecutor’s office was unsuccessful. Law Article 6 § 1: The applicant had not participated in the hearing before the district court in any form. In a number of previous cases concerning compulsory confinement in a psychiatric hospital the Court had confirmed that a person of unsound mind must be allowed to be heard either in person or, where necessary, through some form of representation. The outcome of the proceedings in the instant case was at least equally important for the applicant as his personal autonomy in almost all areas of his life was in issue. Although the applicant had a history of psychiatric troubles, he appeared to have been relatively independent. His attendance at the hearing was necessary, not only to enable him to present his own case, but also to allow the judge to form a personal opinion about his mental capacity. Although the applicant’s mother and the prosecutor had attended, their presence did not make the proceedings truly adversarial and there had been no one at the hearing able to rebut, on the applicant’s behalf, their arguments or conclusions. That representative role should have been played by the social services, but they had no meaningful involvement in the case. The applicant’s interests had thus not been represented*. The Court further noted that the district court had ruled exclusively on the basis of a psychiatric report (which was based on an account by the applicant’s mother) without questioning its author and that no witnesses were summoned to the hearing. Lastly, the Legal Aid Service’s decision to refuse the applicant legal aid to appeal against the ruling declaring him legally incapacitated was purely formalistic and limited to the question of time-limits the applicant had failed to observe through no fault of his own. In sum, the regulatory framework for depriving people of their legal capacity had not provided the necessary safeguards. The applicant had been deprived of a clear, practical and effective opportunity to have access to court in connection with the incapacitation proceedings, in particular, in respect of his request to restore his legal capacity. Conclusion : violation (unanimously). Article 8: The interference with the applicant’s right to respect for his private life was very serious, as it made him fully dependent on his mother as his guardian in almost all areas of his life. Despite this, the district court had no opportunity to examine the applicant in person and relied in its decision essentially on the testimony of the mother and the psychiatric report. While the Court did not doubt the competence of the medical expert or the seriousness of the applicant’s illness, it noted that the existence of a mental disorder, even a serious one, could not be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder had to be “of a kind or degree” that warranted such a measure. However, the questions put to the medical expert by the judge had not concerned “the kind and degree” of the applicant’s mental illness. As a result, the report had not analysed the degree of his incapacity in sufficient detail. Indeed, the legislative framework at the time had not left the judge with any other choice, as it distinguished only between full capacity and full incapacity, without providing for any “borderline” situation (other than for drug or alcohol addicts)**. The Court considered that where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to his individual circumstances and needs***. However, the Lithuanian legislation at the time did not provide for a tailor-made response. The Court thus found that the guardianship regime had not been geared to the applicant’s individual case but entailed restrictions automatically imposed on anyone declared incapable by a court. Lastly, the applicant had been unable to himself request the court to lift his legal incapacity (at the time, his incapacitation could have been challenged only by his guardian, a care institution or a public prosecutor). The Court noted the trend at European level towards granting legally incapacitated individuals direct access to the courts to seek restoration of their capacity and suggested that it may also be appropriate in such cases for the domestic authorities to review after a certain period whether the measure continued to be justified, particularly when the person concerned so requested. In sum, having examined the decision-making process and the reasoning behind the domestic decisions, the Court concluded that the interference with the applicant’s right to respect for his private life was disproportionate to the legitimate aim pursued. Conclusion : violation (unanimously). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.   *   New legislation which entered into force in 2016 now requires social workers to issue a very specific conclusion as to the person’s capacity or incapacity to act in particular areas of life and provides for a special commission to monitor people with disabilities in order to protect their rights. **   Partial incapacity was introduced into Lithuanian legislation only in 2016. ***   Principle 6 of Recommendation No. R(99)4 of the Committee of Ministers of the Council of Europe concerning the legal protection of incapable adults.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes