CEDH · CASELAW;CLIN;ENG — 6 juillet 2023

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Italy - 46412/21 Judgment 6.7.2023 [Section I] Article 8 Article 8-1 Respect for private life Legal-protection measure imposed on older person and placement in nursing home in social isolation for three years: violation Article 34 Locus standi Whether relative had standing to act on behalf of older person who, being under legal-protection and in social isolation in nursing home, was prevented from lodging application with the Court himself Facts – In May 2017, in response to a request by the sister of the second applicant, C.G., who was born in 1930, and having regard to C.G.’s extravagant spending and the fact that he did not appear to fully comprehend the vulnerable situation to which he could be exposing himself, the guardianship judge appointed a legal guardian ( amministratore di sostegno ) to manage C.G.’s financial affairs. In 2020 the guardianship judge extended the legal guardian’s powers to include all aspects of C.G.’s personal care. In October 2020 the judge authorised the legal guardian to take the necessary steps to have C.G. placed in a nursing home. Since being placed there, C.G. has been deprived of all contact with the outside world, all telephone calls and visits being subject to authorisation by the legal guardian or otherwise the guardianship judge. The first applicant, Mr Calvi, and his sister applied unsuccessfully to the guardianship judge for permission to visit their cousin. In March 2021 the National Guarantor of the rights of persons deprived of liberty submitted a recommendation to the public prosecutor’s office in which he suggested that it might be appropriate to ask the guardianship judge to undertake a comprehensive review of the second applicant’s living environment with a view to putting an end to his confinement in the nursing home. Law – Article   34 ( Locus standi ): Applying the criteria set out in Lambert and Others v. France [GC], the Court noted that C.G. had not been in a position to lodge an application with the Court himself, a legal guardian having been appointed to act for him, and that, furthermore, the main complaint in the present case concerned the restrictions that the legal guardian had imposed on him with the consent of the guardianship judge. It followed that there was a real risk that C.G. would be deprived of the effective protection of the Convention rights that he had relied on in the present case. The Court also noted the clear contradiction between, on the one hand, the position of the legal guardian and the domestic courts on the issues raised by the present case and, on the other, the arguments made in support of the application according to which the decisions to impose a protective measure on C.G. and to place him in a nursing home had been incompatible with the Convention. It further noted that there was no conflict of interest between Mr Calvi and C.G. as to the very purpose of the proceedings. Lastly, the Court considered that the present case raised, under Articles 5 and 8 of the Convention, serious issues concerning the living conditions of older persons in nursing homes, which were of a general public-interest nature given the vulnerability of persons living in such institutions. The continued examination of the present case therefore provided the opportunity to elucidate the standards of protection under the Convention applicable to those persons, and to contribute to safeguarding or developing those standards. In the light of the foregoing, there were exceptional circumstances which enabled the Court to acknowledge that Mr Calvi had standing to act in the proceedings before it as his cousin’s representative in so far as the complaints related to Articles 5 and 8 of the Convention. Conclusion : Government’s objection (first applicant’s lack of standing) dismissed. Article   8: The Court considered that the issues raised in the present case should be examined under Article 8 alone. The legal-protection measure imposed on C.G. had constituted an interference, within the meaning of Article 8, which had been in accordance with the law, and had pursued the “legitimate aim” of providing protection to C.G. in view of, initially, the risk of his being left without any means of subsistence, and, subsequently, his declining physical and mental health. The decision to impose a guardianship measure on the second applicant and thus, if appropriate, to partly deprive him of his legal capacity had not been based on a medical assessment that he was suffering from mental impairment, but on his extravagant spending and, from 2020 onwards, his declining physical and mental health. In those circumstances, the Court had to pay particular attention to whether the domestic courts had carefully weighed the relevant factors before deciding to impose the above-mentioned legal-protection measure on him, place him in a nursing home and restrict his contacts with the outside world. The Court considered, under Article 5 of the Convention, that in certain circumstances the welfare of a person suffering from mental disorders could amount to a further factor, in addition to medical considerations, to be taken into account when assessing whether it was necessary to place him or her in an institution. Nevertheless, the objective need to provide an individual with housing and social assistance should not automatically lead to measures depriving him or her of liberty. Any protective measure imposed in respect of a person able to express his or her wishes should in so far as possible reflect those wishes. International material confirmed this approach. Taking into account the impact that the placement under legal protection had had on C.G.’s private life, the Court observed that, while the judicial authorities had undertaken a thorough assessment of his situation before placing him in a nursing home, while he was there they had not attempted, having regard to his particular vulnerability – which they claimed to have identified – to put in place any measures aiming to maintain his social relations or a strategy to facilitate his return to his own home, as had been recommended in 2021 by experts and the National Guarantor. On the contrary, from the time of his placement in the institution, C.G. had remained isolated from the outside world, in particular from his family and friends. All visits and telephone call requests were vetted by his guardian or the guardianship judge. After interviewing C.G. in person only once, the guardianship judge had subsequently based his decisions solely on the reports submitted by the legal guardian, finding it unnecessary to interview C.G., and he had refused the contact requests submitted by Mr   Calvi, agreeing with the guardian’s negative view. The Government had not provided any explanation regarding the necessity of having every meeting approved by the guardian or the guardianship judge and of isolating C.G. from his close family for such a long period of time. The Court was of the view that the decision in issue to restrict C.G.’s contacts had not been based on a concrete and careful assessment taking account of all the relevant aspects of his particular situation. It referred on this point to the experts’ opinion that C.G. could be allowed to visit approved locations outside the nursing home. Furthermore, it did not appear that any measures to prepare C.G. for a return to his own home had been envisaged during the three years he had been in the nursing home, despite the fact that his placement had been decided on a provisional basis. The Court attached particular weight to the fact that C.G. had not been declared to have lost all legal capacity and had never been subject to any order for the total administration of his affairs, the experts having indicated, on the contrary, that his capacity for social integration was not impaired. Notwithstanding these factors, C.G. had been made entirely dependent on his legal guardian in almost all areas of his life and the measure had not been limited in time. The Court was concerned that in the present case the authorities had effectively taken advantage of the flexibility of the guardianship system to achieve aims for which Italian law provided, subject to strict limitations, in the context of the compulsory medical treatment procedure; the legal framework of the latter had thus been circumvented by means of improper recourse to legal guardianship. The Court was fully aware of the difficulties faced by the national authorities as a result of the necessity to reconcile, in the particular circumstances of a given case, the right to respect for the dignity and self-determination of an individual with the requirement to protect and safeguard that individual’s interests, in particular in cases where, because of his or her capabilities or individual situation, the individual was extremely vulnerable. However, in the present case, a fair balance had not been struck. In the domestic proceedings, there had been no safeguards in place to prevent abuse, as required by international human rights norms, which would have ensured in the present case that C.G.’s rights, wishes and preferences were taken into account. C.G. had not been involved in the decisions taken at the various stages of the proceedings, he had been interviewed in person only once during his placement, he had been subjected to restrictions on his contacts with his family and all the decisions concerning him had been taken by his legal guardian. In this connection, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had recommended that guardianship judges should regularly visit persons in nursing homes on whom a guardianship measure had been imposed. Furthermore, the Committee on the Rights of Persons with Disabilities (CRPD) had recommended that the authorities “repeal all laws that permit[ted] substituted decision-making by legal guardians ... and the enactment and implementation of supported decision-making provisions, including the training of professionals in the justice, health and social sectors”. The Court shared the concerns expressed by the CRPD concerning the deprivation of liberty, which it recommended should be prohibited, of individuals on the grounds of disability, including involuntary hospitalisation and/or treatment. Having regard to the findings of the CPT and the jurisprudence of the European Committee of Social Rights, the Court was of the view that States were required to facilitate the participation of disabled persons or older “dependent” persons in the life of the community and to prevent their isolation or segregation. It followed that, although the interference had pursued the legitimate aim of protecting C.G.’s welfare in the broad sense, it had not, in view of the range of measures available to the authorities, been either proportionate or adapted to his individual situation. Accordingly, the interference had not remained within the bounds of the margin of appreciation afforded to the judicial authorities in the present case. Conclusion : violation (unanimously). (See also Ivinović v.   Croatia , 13006/13, 18   September 2014; Lambert and Others v.   France [GC], 46043/14, 5   June 2015, Legal Summary ; A.-M.V. v.   Finland , 53251/13, 23   March 2017, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .