CASE OF LASHIN v. RUSSIA
(Application no. 33117/02)
22 January 2013
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lashin v. Russia,
The European Court of Human Rights (Chamber), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 18 December 2012,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Deprivation of legal capacity
B. Attempts to restore legal capacity
1. First request
2. Second request
“... [the applicant’s] mental condition prevented him from taking part in the hearing, and, moreover, [his] presence would be prejudicial to his health”.
The court further refused to commission a new expert examination by a non-State psychiatric association, on the ground that only State-run institutions were allowed by law to conduct such examinations and issue reports. The relevant part of the District Court judgment reads as follows:
“... under section 1 of the Psychiatric Care Act ... State forensic examination activity in judicial proceedings is carried out by State forensic examination institutions, and consists of organising and implementing the forensic examination”.
In conclusion the court found that the expert report of 5 April 2000 was still valid, that the applicant continued to suffer from a mental disorder and that, therefore, his status as a legally incapacitated person should be maintained.
C. Confinement of the applicant in the psychiatric hospital
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Legal capacity
1. Substantive provisions
2. Incapacitation proceedings
B. Confinement to a psychiatric hospital
“A mentally disturbed individual may be hospitalised in a psychiatric hospital against his will or the will of his legal representative and before a court decision [on the matter] has been taken, if the individual’s examination or treatment can only be carried out in in-patient care, and the mental disorder is severe enough to give rise to:
a) a direct danger to the person or to others, or
b) the individual’s helplessness, i.e. inability to take care of himself, or
“1. A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Act shall be subject to compulsory examination within 48 hours by a panel of psychiatrists of the hospital, who shall take a decision as to the need for hospitalisation. ...
2. If hospitalisation is considered necessary, the conclusion of the panel of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person’s further confinement in the hospital.”
“1. Non-voluntary hospitalisation for in-patient psychiatric care on the grounds laid down in section 29 of the present Act shall be subject to review by the court having territorial jurisdiction over the hospital.
2. An application for the non-voluntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is detained ...
3. A judge who accepts an application for review shall simultaneously order the person’s detention in a psychiatric hospital for the term necessary for that review.”
“1. An application for the non-voluntary placement of a person in a psychiatric hospital shall be reviewed by a judge, on the premises of the court or hospital, within five days of receipt of the application.
2. The person shall be allowed to participate personally in the hearing to determine whether he should be hospitalised. If, based on information provided by a representative of the psychiatric hospital, the person’s mental state does not allow him to participate personally in the hearing, the application shall be reviewed by the judge on the hospital’s premises. ...”
“1. After examining the application on the merits, the judge shall either grant or refuse it. ...”
C. State and private expert institutions
D. Family Code
E. International instruments concerning legal capacity and confinement to a psychiatric institution
Principle 2 - Flexibility in legal response
“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations. ...
4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”
Principle 3 - Maximum reservation of capacity
“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”
Principle 6 - Proportionality
“1. Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...”
Principle 13 - Right to be heard in person
“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”
Principle 14 - Duration review and appeal
“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ...
3. There should be adequate rights of appeal.”
“States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity ... are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. ...”
Article 23 (a) of the CRPD establishes that “the right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognised.”
F. Comparative law
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. The applicant’s attempts to recover his legal capacity until 20 December 2002
(a) Procedural aspects
(b) Substantive aspects
2. The applicant’s inability to restore his legal capacity after 20 December 2002
“ [T]he Court notes that the interference with the applicant’s private life was very serious. As a result of his incapacitation the applicant became fully dependant on his official guardian in almost all areas of life. Furthermore, “full incapacitation” was applied for an indefinite period and could not, as the applicant’s case shows, be challenged otherwise than through the guardian, who opposed any attempts to discontinue the measure ...”
In the present case the situation was identical: the applicant could only challenge his status through the guardian, who opposed any attempts to discontinue the measure. That situation continued at least until 10 October 2003, when the applicant’s daughter was appointed as his guardian (see paragraph 40 above). It is unclear whether she wished to restore the applicant’s status: the Court does not have sufficient information about the proceedings allegedly initiated in 2006 by the applicant’s relatives (see paragraph 42 above). Be that as it may, it is clear that at least during the time when the role of the applicant’s guardian was assumed by the psychiatric hospital the applicant was unable to institute any legal proceedings to challenge his status.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“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 ... of unsound mind ...;
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. The parties’ submissions
1. The Government
2. The applicant
B. The Court’s assessment
1. Compliance with Article 5 § 1
(a) General principles
(b) The period between 9 and 20 December 2002
(c) The period after 20 December 2002
2. Compliance with Article 5 § 4 of the Convention
III. ALLEGED VIOLATION OF ARTICLES 12 OF THE CONVENTION
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the Convention on account of the maintenance of the applicant’s status as an incapacitated person and his inability to have it reviewed in 2002 and 2003;
2. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s hospitalisation in the psychiatric hospital in 2002-2003;
4. Holds that it is not necessary to examine separately the applicant’s complaint under Article 12 of the Convention;
5. Holds that it is not necessary to examine separately the applicant’s complaint under Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 25,000 (twenty-five thousand euros) in respect of non-pecuniary damage, to be converted into the Russian Roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle Berro-Lefèvre