European Court of Human Rights
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Cite as: [2007] ECHR 496
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
8702/04
by Virve VÄÄRI
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 22 May 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 February 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Virve Vääri, is an Estonian national who was born in 1928. She is represented before the Court by his son, Mr Valdek Vääri.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
From 1984 to 1988 and from 1992 to 2001 the applicant received treatment on several occasions in the Psychiatric Hospital of Tartu.
1. Proceedings concerning the applicant’s active legal capacity
On 1 February 2000 the Tartu City Government lodged an application with the Tartu County Court (maakohus), requesting that the applicant be divested of her active legal capacity (teovõimetuks tunnistamine) and that a guardian (eestkostja) be appointed. In November 2000 a psychiatric expert examination of the applicant was carried out on the instructions of the County Court.
On 19 January 2001 the court involved Mr Vääri and his daughter L. (the applicant’s granddaughter) in the proceedings.
By a judgment of 1 March 2001 the County Court divested the applicant of her active legal capacity. The court relied, inter alia, on a psychiatric expert opinion according to which the applicant suffered from dementia and was persistently unable to understand the meaning of her actions or to direct them; moreover, she was unable to cope with her everyday life without assistance and care by other persons. The court appointed the Tartu City Government as the applicant’s guardian.
On 26 September 2001 the Tartu Court of Appeal (ringkonnakohus) dismissed the appeals of Mr Vääri and L.
On 12 December 2001 the Supreme Court (Riigikohus) refused Mr Vääri leave to appeal.
On 4 September 2002 the Supreme Court refused L. leave to lodge “an application for correcting a court error” (kohtuvigade parandamise avaldus) with it.
2. Criminal proceedings concerning the deprivation of the applicant’s liberty
On 20 April 2001, after having received treatment in the Psychiatric Hospital of Tartu, the applicant was placed against her will in a social welfare institution in Vana-Kastre, 28 kilometres from Tartu. She was released three days later, after an intervention by Mr Vääri.
Mr Vääri made an offence report to the police, asserting that there had been an unlawful deprivation of liberty. On 2 or 3 July 2001 the police initiated a criminal investigation, which was discontinued on 2 December 2001.
On 3 June 2003 a prosecutor amended the reasoning of the decision by which the criminal investigation had been discontinued.
On 30 October 2003 a senior prosecutor of the Tartu Prosecutor’s Office informed Mr Vääri that he considered the lower prosecutor’s decision lawful. On 25 November 2003 the prosecutors’ decisions were upheld by the Prosecutor General.
3. Proceedings concerning the applicant’s placement in a social welfare institution
On 23 October 2002 the Tartu City Government lodged an application with the Tartu County Court, requesting that the applicant be placed in a social welfare institution (hoolekandeasutus) without her consent. According to the City Government, the applicant lived together with Mr Vääri in an apartment which was in poor sanitary condition. Mr Vääri did not take sufficient care of his mother, placing at the same time obstacles to the assistance offered by the social workers. He had also influenced her to reject the City Government’s proposals concerning her placement in a welfare institution.
On 26 November 2002 Mr Vääri was involved in the proceedings. The hearing scheduled for that date was adjourned by the County Court.
On 13 January 2003 the County Court’s hearing took place in the presence of the applicant, Mr Vääri, representatives of the City Government and a psychiatric expert. The applicant and Mr Vääri opposed the City Government’s request.
By a judgment of 29 January 2003 the County Court decided to place the applicant, without her consent, in a social welfare institution. It relied on section 19 (1) of the Social Welfare Act (Sotsiaalhoolekande seadus). The court ordered that its judgment be enforced immediately.
The court took note of a report by a psychiatric expert, drawn up in the earlier proceedings concerning the applicant’s legal capacity, according to which she had been diagnosed with a paranoid syndrome in 1987-1988. Moreover, a psychiatric expert heard by the County Court explained that the intensity of the paranoid syndrome could vary in time but it would not disappear. It had been observed that the applicant suffered from different kinds of delusions concerning her son and his friends wishing her death. According to the expert, it had been determined in August 2001 and in August 2002 that the applicant had profound disability (sügav puue); such a person needed round-the-clock assistance. She was of the opinion that the applicant could pose a danger to herself or to others because of her mental state.
Moreover, the court examined reports, apparently drawn up by the social workers, concerning visits to the applicant’s home, according to which she lived together with her son in a two room apartment, one room of which was uninhabitable due to a fire that had occurred in December 2000. The wood-burning stove in the kitchen could not be used; the floors in the kitchen and toilet were in a dilapidated state and liable to collapse. The whole apartment was in an unsanitary condition.
The court observed that in 1999 a home care agreement had been concluded; however, its implementation had been hindered by the fact that often the door had not been opened for the carer and there had been a big unleashed dog in the garden. In any event, home care had been unsuitable for the applicant as she needed round-the-clock assistance.
On 4 February 2003 the applicant was taken to a social welfare institution in Jõgeva, 50 kilometres away from her domicile in Tartu.
Mr Vääri appealed against the County Court’s judgment. The hearing in the Tartu Court of Appeal was scheduled for 10 April 2003. The applicant was informed of the hearing. However, according to the applicant’s letter to her son, dated 7 April 2003, the head of the social welfare institution had not allowed her to go to the hearing.
By a letter dated 9 April 2003, the applicant informed the Court of Appeal of her wish to take part in the hearing. She also submitted that the social welfare institution in Jõgeva did not enable her to do so. She requested the court not to hear the case without her presence.
On 10 April 2003 a hearing took place in the Court of Appeal. The representatives of the Tartu City Government (the guardian institution representing the applicant who had been divested of her legal capacity) informed the court that they did not consider the applicant’s presence necessary. Mr Vääri was present in the court and handed over to it the applicant’s letter of 9 April. The court dismissed the requests to adjourn the hearing.
By a judgment of 25 April 2003 the Court of Appeal dismissed Mr Vääri’s appeal against the County Court’s judgment.
On 26 August 2003 the Supreme Court refused Mr Vääri leave to appeal.
4. Proceedings concerning the lawfulness of the applicant’s further stay in the social welfare institution
(a) The Tartu Administrative Court’s judgment of 21 December 2004
On 4 February 2004 Mr Vääri took the applicant from the social welfare institution in Jõgeva to their earlier place of residence in Tartu.
On the same date a social worker of the Tartu City Government requested the local police prefecture to provide assistance for taking the applicant back to the social welfare institution.
On 5 February 2004 the applicant was taken by the police officers to the premises of the prefecture. From there, a social worker transferred her to Jõgeva, using a taxi specially adapted for disabled persons.
On 28 March 2004 the applicant lodged a complaint to the Tartu Administrative Court (halduskohus), requesting that the actions of the police prefecture and the City Government be declared unlawful and that she be released and taken back to her permanent residence in Tartu.
By a decision of 15 April 2004 the Administrative Court refused to examine the complaint. It found that the applicant could not participate in the proceedings, as she had been divested of her active legal capacity.
On 11 May 2004 the Tartu Court of Appeal quashed the decision of the lower court. It referred the case back to the Administrative Court for examination on the merits and instructed that the applicant be granted legal aid.
On 6 December 2004 a hearing took place in the Tartu Administrative Court. The applicant was represented by a court-appointed lawyer, although she had requested the court to ensure her personal presence.
By a judgment of 21 December 2004 the Administrative Court dismissed the complaints. It found that according to the Social Welfare Act it was not necessary that a court decide by a judgment the placement of a person in a social welfare institution or the extension of her stay therein in case the guardian of the person agreed to such course of events. Accordingly, the applicant’s stay in the institution had not been limited to one year and her son had had no right to take her away.
(b) The Tartu Court of Appeal’s judgment of 11 May 2005
On 11 May 2005 the Tartu Court of Appeal dismissed the applicant’s appeal and upheld the Administrative Court’s judgment. However, it amended the lower court’s reasoning. The Court of Appeal considered that the guardian had been obliged, under section 19 (3) of the Social Welfare Act, to request once a year judicial authorisation for a person’s involuntary stay in a social welfare institution. Nevertheless, it found that in the present case the applicant had had no place to live and, therefore, the impugned acts had to be considered as urgent social assistance within the meaning of section 28-1 of the Social Welfare Act.
(c) The Supreme Court’s judgment of 24 November 2005
The applicant appealed against the Court of Appeal’s judgment. On 24 November 2005 the Supreme Court quashed the lower courts’ judgments and referred the case back to the Tartu Administrative Court for a new consideration. In respect of the complaint against the actions of the police officers, the Supreme Court found that the lower courts had failed to establish sufficient facts and to provide substantial analysis of the measures taken by the officers. With regard to the applicant’s placement in the social welfare institution, the Supreme Court agreed with the Court of Appeal in that judicial authorisation was required for the placement of a person without his or her knowing consent in such an institution even in cases where a guardian had been appointed. Furthermore, the Supreme Court held that a person could not be placed against his or her will in a social welfare institution under the provisions concerning urgent social assistance.
The Supreme Court considered it impossible, on the basis of the evidence collected and analysed by the lower courts, to decide whether the applicant had been deprived of her liberty. It noted that the European Court of Human Rights had found in similar cases that in order to determine whether there had been a deprivation of liberty for the purposes of Article 5 of the Convention or a restriction thereof, account had to be taken of all circumstances of a particular case, including the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty was merely one of degree or intensity (H.L. v. the United Kingdom, no. 45508/99, § 89, ECHR 2004 IX).
(d) The Tartu Administrative Court’s judgments of 9 February 2006
On 5 December 2005 the Tartu Administrative Court severed the complaints against the police prefecture and the City Government into separate proceedings.
By a judgment of 9 February 2006, the Administrative Court declared the placement of the applicant in the social welfare institution by the City Government on 5 February 2004, and her ongoing holding therein, unlawful. The court found that if the length of a person’s stay in a social welfare institution was not specified by a pertinent judgment, he or she had to be considered as having been placed in the institution for a period of one year (section 19 of the Social Welfare Act). Accordingly, in the case at hand, no legal ground had existed for keeping the applicant without her consent in the welfare institution after 3 February 2004 or for taking her back to it. Moreover, the municipal authorities had not examined the applicant’s living conditions after she had left the welfare institution. There was no evidence that her life or health would have been in danger had she not been taken back to the institution.
The Administrative Court considered that the applicant’s placement in the social welfare institution and her ongoing stay therein did not amount to a deprivation of liberty. Rather, it constituted a restriction upon her liberty. The court noted that, according to the applicant’s statements, she enjoyed freedom of movement in the institution and she could go for walks outside. She could also go to shops in Jõgeva and buy goods for the 403 Estonian kroons (corresponding approximately to 25 euros) that she was given monthly for her personal needs. For going further away she needed the guardian’s authorisation; accordingly, short-term leaves were not excluded.
The Administrative Court dismissed the applicant’s request that she be immediately released and taken back to her permanent residence. The court noted in this connection that on 1 December 2005 the Tartu City Government had lodged an application with the Tartu County Court, requesting that the term of the applicant’s stay in the social welfare institution be extended. On 6 January 2006, in the context of these civil proceedings, the applicant had undergone a psychiatric examination. According to the expert opinion, the applicant suffered from a personality disorder, caused by medicines, to the extent that she was persistently unable to understand the meaning of her actions or to direct them; moreover, she needed constant medical and social supervision and round-the-clock assistance. The Administrative Court found that it was not reasonable to change the applicant’s place of residence before the delivery of the judgment of the County Court, that being even more so because it was impossible to take her back to her former residence. The applicant’s son had moved in the meantime to a new address where he did not have a written tenancy contract.
By a separate judgment delivered on 9 February 2006, the Tartu Administrative Court declared that the taking of the applicant by the police officers into the premises of the police prefecture on 5 February 2004 had been unlawful.
(e) The Tartu Court of Appeal’s judgments of 10 and 25 May 2006
By a judgment of 10 May 2006 the Tartu Court of Appeal dismissed the police prefecture’s appeal against the Administrative Court’s judgment concerning it.
The applicant appealed against the Administrative Court’s judgment concerning the unlawfulness of her placement in the social welfare institution and her ongoing stay therein. She argued that she had been deprived of her liberty and not subject to a mere restriction of her freedom of movement. She was of the opinion that Article 5 § 1 of the Convention had been violated.
By a judgment of 25 May 2006 the Tartu Court of Appeal dismissed the applicant’s appeal. It found that the Administrative Court had properly analysed, in accordance with the instructions given by the Supreme Court, the nature of the restrictions applied with respect to the applicant. The Court of Appeal considered that the applicant had not been completely deprived of her liberty; although she had been obliged to stay in a certain place, she still retained certain freedom of movement. Accordingly, the restrictions imposed had not amounted to a deprivation of liberty. The Court of Appeal noted, inter alia, that there was no evidence that the applicant had ever wished to go to a concert of her former students or to visit someone, contrary to what had been alleged by the applicant, and that such requests had been refused by the guardian institution.
(f) Appeals to the Supreme Court
On 1 September 2006 the Supreme Court refused the police prefecture leave to appeal against the Tartu Court of Appeal’s judgment of 10 May 2006. On the same date it refused the applicant leave to appeal against the Court of Appeal’s judgment of 25 May 2006.
5. Proceedings concerning the applicant’s claims for damages
The applicant made several claims for damages in the administrative court proceedings concerning the lawfulness of her stay in the social welfare institution. She claimed pecuniary damages for the pension and social security payments that she had not received and non-pecuniary damages for distress and suffering caused by her unlawful detention.
By a decision of 6 December 2004 the Tartu Administrative Court separated the compensation claims into different proceedings so that the applicant’s main complaint concerning the lawfulness of her stay in the social welfare institution could be determined speedily.
On 10 December 2004 the court requested the applicant’s lawyer to bring the statement of claims into conformity with the formal requirements by 29 December 2004. On 10 January 2005 the time-limit was extended until 21 January 2005. By a decision of 26 January 2005 the Administrative Court rejected the complaint, unexamined. The applicant appealed against the latter decision; however, by a decision of 25 February 2005 the Administrative Court refused to forward the appeal to the Court of Appeal as it had been lodged out of time.
B. Relevant domestic law
Section 19 of the Social Welfare Act (Sotsiaalhoolekande seadus), as in force at the material time, provided:
“(1) A person shall be placed in a social welfare institution without his or her consent or the consent of his or her legal representative pursuant to a court order upon the concurrent presence of the following circumstances:
1) the person is of unsound mind (vaimuhaige) or an alcoholic or a drug addict;
2) if upon failure to place the person in a social welfare institution the person poses a danger to himself or herself or to others, and
3) the application of earlier measures has not been sufficient or the use of other measures is not possible.
(2) An application to place a person in a social welfare institution without his or her consent may be filed with a court together with an application for the appointment of a guardian to the person due to his or her restricted active legal capacity.
(3) A person may be placed in a social welfare institution pursuant to a court order for up to one year. If upon expiry of that term the circumstances set out in subsection (1) of this section due to which the person was placed in a social welfare institution without his or her consent have not ceased to exist, a court may, on the basis of an application of the guardianship authority, make a decision concerning extension of the person’s term of care at the social welfare institution, one year at a time.
(4) The care of a person in a social welfare institution without his or her consent is terminated if any of the circumstances set out in subsection (1) of this section ceases to exist. Upon termination of the care of a person placed in a social welfare institution without his or her consent, an application shall be filed with a court to hear the issue of restoration of the person’s active legal capacity.
(5) The head of a social welfare institution shall notify the court which issued the order and the rural municipality government or city government of the residence of the person of the termination of the care of a person placed in a social welfare institution without his or her consent.”
COMPLAINTS
(b) She argued that the proceedings concerning the lawfulness of her further stay in the social welfare institution had not constituted an effective remedy, that she had been subject to unequal treatment and that there had been several other deficiencies in the proceedings. She relied on Articles 5 § 4, 6 § 1 and 13.
(c) Finally, she complained that Articles 1, 8 and 18 of the Convention had been violated by the fact that she had been deprived of her liberty.
THE LAW
The Court observes that the final decision in the impugned proceedings was made on 12 December 2001, when the Supreme Court refused Mr Vääri leave to lodge an appeal with it. However, the application was lodged with the Court on 23 February 2004. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
In so far as this complaint can be understood to concern the procedure under and the grounds on which the criminal proceedings were discontinued, the Court recalls that the right to bring criminal proceedings against a third person is not guaranteed, as such, by the Convention (see, for example, Posokhov v. Russia (dec.), no. 63486/00, 9 July 2002; and X. v. the Federal Republic of Germany, no. 7116/75, Commission decision of 4 October 1976, Decisions and Reports 7, p. 91). It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
In so far as the complaint can be understood to concern the applicant’s deprivation of her liberty, the Court observes that there is no indication that she made a complaint to an administrative court in this respect. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning her involuntary placement and her further stay in the Jõgeva social welfare institution as well as the complaint concerning the speediness of the proceedings by which she sought to challenge the lawfulness of her detention;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President