CASE OF A.-M.V. v. FINLAND
(Application no. 53251/13)
23 March 2017
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 A.-M.V. v. Finland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 28 February 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 53251/13) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr A.-M.V. (“the applicant”), on 30 July 2013. The Chamber decided ex officio to grant the applicant anonymity under Rule 47 § 4 of the Rules of Court.
2. The applicant was represented by Mr Heikki Sillanpää, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3. The applicant alleged, in particular, under Article 8 and Article 2 of Protocol No. 4 to the Convention, that his right to live with his former foster family and in the place of his choice had been violated.
4. On 13 October 2015 the complaints concerning Article 8 of the Convention and Article 2 of Protocol No. 4 to the Convention were communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. Third-party observations were received from the Mental Disability Advocacy Centre, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1990.
A. Background to the case
6. The applicant is a man who is intellectually disabled. On 14 February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant’s home town, which is in the South of Finland.
7. In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority.
8. On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children’s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) on 10 December 2008.
9. On 31 July 2007 the applicant was placed in a children’s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007.
10. On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor (edunvalvoja, intressebevakare) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person.
11. On 30 December 2008 the social welfare authorities requested the District Court (käräjäoikeus, tingsrätten) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant’s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant’s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor.
12. On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults.
13. On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant’s level of development and on submissions according to which the applicant was gullible and keen on small children’s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind.
14. On 7 February 2011, after having received a psychologist’s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant’s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland.
B. Impugned proceedings
15. On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters.
16. On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant’s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant’s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant’s interests.
17. As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26 November 2010 and established by a psychologist, the applicant’s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant’s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant’s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant’s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents’ home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis.
18. As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant’s place of residence in accordance with the applicant’s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant’s best interests.
19. Taking into account the evidence and the factual findings referred to above (see paragraph 17 above), the District Court concluded that it was in the applicant’s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant’s place of residence and his education.
20. On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal (hovioikeus, hovrätten). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case.
21. On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant’s appeal and upheld the District Court’s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children’s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant’s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant’s trust should be chosen.
22. By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already submitted before the Appeal Court.
23. On 8 February 2013 the Supreme Court refused the applicant leave to appeal.
C. The applicant’s current situation
24. According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community.
25. The applicant’s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there.
II. RELEVANT DOMESTIC LAW
A. The Constitution
26. Article 9, paragraph 1, of the Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides the following:
“Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.”
B. The Guardianship Services Act
27. Section 1 of the Guardianship Services Act (laki holhoustoimesta, lagen om förmyndarverksamhet, Act no. 442/1999) provides the following:
“The objective of guardianship services is to look after the rights and interests of persons who cannot themselves take care of their financial affairs owing to incompetence, illness, absence or another reason.
If the interests of someone in respect of a non-financial affair need to be looked after, this shall be a task for guardianship services in so far as provided below.”
28. Section 8 of the Act sets out the basic provisions concerning the appointment of deputies:
“If an adult, owing to illness, disturbed mental faculties, diminished health or another comparable reason, is incapable of looking after his/her interests or taking care of personal or financial affairs in need of management, a court may appoint a mentor for him/her. Where necessary, a guardianship authority shall file a petition with a district court for the appointment of the mentor.
The mentor may be appointed if the person whose interests need to be looked after does not object to the same. If he/she objects to the appointment of the mentor, the appointment may nonetheless be made if, taking into account his/her state and need for a mentor, there is no sufficient reason for the objection.
The task of the mentor may be restricted to cover only a given transaction or property.”
29. Section 14 makes it clear that the appointment of a mentor does not deprive the ward of his or her legal capacity:
“The appointment of a mentor shall not disqualify the ward from administering his/her property or entering into transactions, unless otherwise provided elsewhere in the law.”
30. Section 29, subsections 1 and 2, of the Act govern the powers of a mentor:
“The mentor shall be competent to represent the ward in transactions pertaining to the ward’s property and financial affairs, unless the appointing court has otherwise ordered or unless it has been otherwise provided elsewhere in the law.
If the court has so ordered, the mentor shall be competent to represent the ward also in matters pertaining to his/her person, if the ward cannot understand the significance of the matter. However, the mentor shall not have such competence in matters subject to provisions to the contrary elsewhere in the law.”
31. Under section 42 of the Act,
“[a] mentor appointed for an adult shall see to it that the ward is provided with the treatment, care and therapy ... deemed appropriate in view of the ward’s need of care and other circumstances, as well as the ward’s wishes.”
32. Section 43, subsections 1 and 2, of the Act provide that
“[b]efore the mentor makes a decision in a matter falling within his or her remit, he or she shall ask for the opinion of the ward if the matter is deemed important from the ward’s point of view and if a hearing can be arranged without considerable inconvenience.
However, no hearing shall be necessary if the ward cannot understand the significance of the matter.”
33. According to the travaux préparatoires to the Guardianship Services Act (LaVM 20/1998 vp and HaVL 19/1998 vp), the most central substantive principle of the Act is that of respect for human dignity. This means that any decision on the protection of a person with deficient functional ability (“the ward”) must be based on the inviolability of human and basic rights and liberties. Preference is to be given to the ward’s interests and to the need to safeguard the ward’s opportunities to participate in the decision-making concerning him or her. The principle of respect for human dignity is supplemented by the principles of necessity and proportionality. The principle of necessity means that the ward must be permitted to maintain his or her legal competence as extensively as possible, and that that competence can be restricted only to the extent necessary to protect the ward. The principle of proportionality means that the measures to protect the ward must be determined on a case-by-case basis and according to the need for such protection. On the other hand, it may be necessary to restrict the right of self-determination of the ward in certain situations in order to protect his or her own interests. Thus, a balance must be struck between the need for protection and the right of self-determination.
C. The Act on the status and rights of social welfare clients
34. A social welfare client’s rights and obligations are defined in Chapter 2 of the Act on the status and rights of social welfare clients (laki sosiaalihuollon asiakkaan asemasta ja oikeuksista, lagen om klientens ställning och rättigheter inom socialvården, Act no. 812/2000). According to section 4 of the Act, a client has a right to receive from the service provider social welfare services of good quality and good non-discriminatory treatment. A client must be served in such a manner that his or her human dignity is not violated and his or her convictions and privacy are respected. When providing social welfare services, the client’s wishes, opinions, interests and personal needs must be taken into account, as well as his or her mother tongue and cultural background.
35. Section 5 of the same Act provides that the social welfare authorities must explain the client his or her rights and obligations, the different options available and their effects as well as other factors that may have relevance in his or her matter. This explanation must be given in such a manner that the client sufficiently understands its content and significance. If the social welfare staff does not master the language the client uses, or if the client cannot make him- or herself understood due to a sensory or speech impediment or for some other reason, the staff must take care of interpretation and obtaining of an interpreter.
36. According to section 7 of the same Act, a service, treatment, rehabilitation or a similar plan must be drawn for the client, unless he or she only needs occasional advice or guidance, or if the drawing of such a plan is otherwise manifestly unnecessary. Unless there are evident obstacles, the plan must be drawn in agreement with the client, the client and his or her legal mentor, or with the client and his or her next-of-kin or close relative. The content of the plan and the parties to the matter are subject to specific regulation.
37. Section 8, subsection 1, of the Act provides that, when providing social welfare services, the authorities must primarily take into account the wishes and opinions of the client, and also otherwise respect his or her right to self-determination.
38. According to section 9 of the Act, if an adult client cannot, due to an illness, diminished mental capacity or for other similar reason, participate or contribute to the planning of services or other measures or in their realisation, or to understand the nature of proposed alternatives or the consequences of decisions taken, the client’s will must be clarified in cooperation with his or her legal mentor, next-of-kin or other close person. If an adult person is, in a matter pertaining to his or her person or property, in an apparent need of mentoring, relevant authorities must be contacted in order to have a mentor appointed to the client.
III. RELEVANT INTERNATIONAL MATERIALS
A. United Nations
1. United Nations Convention on the Rights of Persons with disabilities
39. In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereinafter “the UNCRPD”) was adopted. It entered into force internationally in May 2008. By the end of September 2016, 44 out of the 47 Council of Europe member States have ratified the Convention. It has also been ratified by the European Union. Finland ratified the Convention in 2016 and it entered into force on 10 June 2016 (the ratification was based on Government Bill HE 284/2014 vp., from which it transpires that it was considered that there was no need or cause to amend the current relevant Finnish legislation).
40. Article 12 of the Convention is entitled “Equal recognition before the law” and provides the following:
“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. 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 respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, 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.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”
41. Article 16 of the Convention is entitled “Freedom from exploitation, violence and abuse” and provides the following:
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.
2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive.
3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities.
4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs.
5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.”
2. UN Committee on the Rights of Persons with Disabilities
42. In 2014 the United Nations Committee on the Rights of Persons with Disabilities adopted its General Comment No. 1 concerning Article 12 of the UNCRPD, i.e. equal recognition before the law.
43. The Committee considers that States parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences” (§ 26).
44. In this context, the Committee defines substitute decision-making regimes as systems where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person’s own will and preferences (§ 27).
45. The Committee considers that the States parties’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with Article 12 of the Convention (§ 28).
B. Council of Europe
46. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows:
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.”
47. On 2 February 2005 the Committee of Ministers adopted a Resolution on safeguarding adults and children with disabilities against abuse, ResAP(2005)1, the relevant parts of which read as follows:
“I. Definition of abuse
1. In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person’s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative.
3. These abuses require a proportional response - one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘abuse’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners.
II. Principles and measures to safeguard adults and children with disabilities against abuse
1. Protection of human rights
Member States have a duty to protect the human rights and fundamental freedoms of all their citizens. They should ensure that people with disabilities are protected at least to the same extent as other citizens.
Member States should recognise that abuse is a violation of human rights. People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens. Where people with disabilities are especially vulnerable, additional measures should be put in place to assure their safety.”
48. The Council of Europe Disability Strategy 2017-2023 sets out, inter alia, the following:
Equal recognition before the law, as defined among others by the UNCRPD (Article 12) refers to the two parts of legal capacity, the capacity to hold rights and duties and the capacity to act on them. Legal capacity and access to justice are essential to real participation in all areas of life and full inclusion of persons with disabilities in society. Legal capacity is in fact connected to all human rights and their enjoyment.
States are required under the UNCRPD, as far as possible to replace substituted decision-making with systems of supported decision-making. Possible limitations on decision-making should be considered on an individual basis, be proportional and be restricted to the extent to which it is absolutely necessary. Limitations should not take place when less interfering means are sufficient in light of the situation, and accessible and effective legal safeguards must be provided to ensure that such measures are not abused.
Council of Europe bodies, member States and other relevant stakeholders should seek to:
a) Support member States in their efforts to improve their legislation, policies and practices with regard to ensuring legal capacity of persons with disabilities.
b) Identify, collect and disseminate existing good practices on supported decision-making systems and practices that persons with disabilities have available for being able to exercise their legal capacity and have access to choices and rights.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
49. The applicant complained under Article 8 of the Convention that, following his decision to move to the North of Finland in order to live with his former foster parents, the powers of his mentor had been enlarged to encompass matters pertaining to his person. His wishes had not been respected and it had been impossible to have his mentor replaced in matters concerning his place of residence and his education, even though he had lost confidence in her. All these measures violated his right to respect for private and family life.
50. Article 8 of the Convention reads as follows:
“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.”
51. The Government contested that argument.
52. The Government raised several preliminary objections in their observations. First of all, they noted that the applicant had lived for one year in Northern Finland but had been back in his home town for more than eight and a half years. He had not raised the idea of moving away from his home town for a long time. There was no guarantee that a change of mentor would have led to a different outcome as far as the applicant’s place of residence was concerned since another mentor would also have been obliged to safeguard his best interests. The applicant’s allegation was thus purely hypothetical. Therefore the applicant could not, at least any longer, be considered as a victim within the meaning of Article 34 of the Convention. His complaint was thus incompatible ratione materiae with the provisions of the Convention or the Protocols thereto, and should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.
53. Secondly, the Government argued that the applicant had failed to substantiate any disadvantage he had allegedly suffered as a result of the alleged violation. Therefore this complaint should be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.
54. Thirdly, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decision to place him back in his home town on 31 July 2007. Nor had he challenged the decisions of 4 November 2008 and 18 June 2009 respectively to appoint a mentor for him. Therefore, this complaint should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.
55. In any case, the Government maintained that this complaint had been lodged with the Court more than six months after the alleged violations had taken place in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009. It should therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
56. The applicant maintained that he was still a victim. He had been forced to remain in his home town for the past nine years against his own will. This situation could not be justified by reference to the fact that it had continued for several years. He had repeatedly told his lawyer that he wanted to move and live with his former foster mother since she was like a mother to him. It was true that another mentor might have also refused the applicant permission to move but that was unlikely. The applicant was still a victim as he still had the same mentor.
57. The applicant claimed that it was also evident that he had suffered a significant disadvantage. Nothing could bring back the years of lost shared life with his former foster mother. He should be allowed to live wherever he wanted; this was a matter of basic human rights. There were always welfare services available and persons to look after him wherever he lived.
58. The applicant claimed that it had been impossible for him to exhaust the domestic remedies concerning the decisions referred to in the Government’s preliminary objection since he had been without any legal assistance during the years 2007 to 2009. He could not have exhausted those remedies by himself. However, concerning the impugned proceedings, his complaint had been lodged with the Court within the six-month time-limit and was thus admissible.
59. The Court notes that the parties disagree as to whether the applicant can still be regarded as a victim. Although the applicant has lived for more than nine years back in his home town, he has continued to express his wish to live with his former foster mother. Since neither the applicant’s mentor nor his position has changed, he must still be regarded as a victim within the meaning of Article 34 of the Convention. Nor does the Court consider that the applicant has, taking into account the subject matter and the circumstances of his complaint, failed to substantiate any significant disadvantage in connection with the present case.
60. Furthermore, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009 respectively. However, none of these decisions is the subject of the present application, which only concerns the proceedings initiated by the applicant on 8 April 2011 requesting the District Court to discharge the mentor appointed to him from her duties as far as his place of residence and education were concerned. For the same reason, the Government’s objection concerning the six-month time-limit is not relevant since it does not concern the impugned proceedings. The Court notes that the Government have not even argued that the applicant’s complaint relating to the impugned proceedings was lodged with the Court too late.
61. Accordingly, the Court rejects the Government’s preliminary objections and notes that the applicant’s complaint under Article 8 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
62. The applicant pointed out that he had not denied his need for a mentor as he understood that a having one would protect him from serious harm. That did not mean, however, that any authority should be entitled to prevent him from moving to another municipality, because such a move would not bring him into danger. Under the travaux préparatoires to the Guardianship Services Act, primacy was to be given to the ward’s interests and to safeguarding his or her opportunities to participate in decision-making.
63. The case concerned the question of the applicant’s right to respect for his private and family life and there had been a clear interference with these rights in the present case. This interference had not been necessary in a democratic society since it had been contrary to the ideas of equality and democracy. There had thus been a violation of Article 8 of the Convention.
(b) The Government
64. The Government noted that the applicant had not denied his need for a mentor. It was inherent in the nature of the powers given to the mentor that he was not bound by the expressions of will of the ward but had to make all decisions in the interests of the ward. Otherwise such an appointment would be pointless. The partial dismissal of the applicant’s mentor would not be decisive for his right to respect for private life or family life. Therefore, no real interference with the applicant’s Article 8 rights had taken place.
65. Were the Court to have a different opinion, then any alleged interference would in any case have a basis in Finnish law, in particular under sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and pursue the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The alleged interference was also necessary in a democratic society, taking into account the wide margin of appreciation accorded to the States. There was thus no violation of Article 8 of the Convention.
(c) The third party submissions
66. The Mental Disability Advocacy Centre noted that States were required to ensure that the will and preferences of persons with disabilities were respected at all times and could not be overridden or ignored by paternalistic “best interests” decision-making. The will and preferences expressed by persons with disabilities in respect of their family relationships and their right to choose their place of residence had to be respected and protected as these issues were an inherent part of a person’s autonomy, independence, dignity and self-development and central to a person’s independent living in a wider community. In order to ensure that persons with disabilities were both protected from violations and that they had the ability to obtain effective remedies when violations occurred, States had a positive obligation to apply stringent and effective safeguards in order to ensure that their rights to exercise legal capacity were “practical and effective” rather than “theoretical and illusory”.
67. The starting point, based on the current international standards, was that the will and preferences of a person with disabilities should take precedence over other considerations when it came to decisions affecting that person. This was clear from the text of the United Nations Convention on the Rights of Persons with Disabilities. Even in jurisdictions with a former reliance on the “best interests” approach, there was an emerging trend towards placing more emphasis on the will and preferences of the person. There was a clear move from a “best-interests” model to a “supported decision-making” approach.
68. The Centre noted that the Court had held on a number of occasions that guardianship systems constituted a very serious interference with a person’s Article 8 rights. Article 8 § 2 of the Convention needed to be interpreted in a manner consistent with international standards, taking into account the international recognition of the importance of autonomy and supported decision-making for individuals with disabilities. Rights guaranteed in Article 2 of Protocol No. 4 to the Convention were closely intertwined with those of Article 8. Circumstances in which an interference would be justified were limited and had to be restrictively construed. Persons with disabilities needed to be able to choose where and with whom to live, and had to be given the opportunity to live independently in the community on the basis of their own choice and, on an equal basis with others.
2. The Court’s assessment
(a) Preliminary remarks
69. The Court observes that the main issue in the present case concerns the refusal of the domestic authorities to allow a partial change in the applicant’s mentor arrangements, requested with a view to permitting the applicant to decide for himself where and with whom to live. The Court must consider this matter in the light of the general principles governing interferences by State authorities in the private and family life of individuals guaranteed under Article 8 of the Convention, taking into account the principles governing the State’s positive obligations, especially those relating to the protection of particularly vulnerable persons. The Court notes that the applicant has not lodged a complaint under Article 14 of the Convention. However, due to the nature and scope of the applicant’s complaint under Article 8, lodged by an intellectually disabled young man, the Court considers that within the particular context of its examination regard must be had to the requirement of non-discrimination, bearing in mind that discriminatory treatment can consist of treating differently persons in relevantly comparable situations without an objective and reasonable justification, or of failing to make, without objective and reasonable justification, differentiations between persons whose situations are not relevantly comparable (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).
(b) Recapitulation of general principles
70. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. Any interference in the rights protected under this Article must, in order to be permissible, satisfy the conditions set out in paragraph 2 of Article 8 in terms of lawfulness and necessity, including the requirements of legitimate aim and proportionality.
71. However, Article 8 does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013; and Airey v. Ireland, 9 October 1979, § 32, Series A no. 32). The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests, the aims in the second paragraph of Article 8 being of a certain relevance (see Hämäläinen v. Finland [GC], no. 37359/09, § 65, ECHR 2014; and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 165, ECHR 2016). The positive obligations may also require measures designed to provide special protection to persons who are in a particularly vulnerable position (see, for example, Paposhvili v. Belgium [GC], no. 41738/10, § 221, ECHR 2016).
72. The applicant’s complaint concerns a situation where, in the context of the freedom of choice regarding his place of residence, the applicant was put in a position different from others as, due to his intellectual disability, his right of self-determination was restricted through the powers conferred on his mentor. As regards this aspect of the case, the Court recalls that discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV; and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008).
73. The Court further recalls its findings to the effect that where a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (see Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010). In the past, the Court has identified a number of such vulnerable groups that suffered different treatment on account of their sex (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94; and Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280-B), sexual orientation (see Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010; and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999-VI), race or ethnicity (see D.H. and Others, cited above, § 182; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005-XII), mental faculties (see Alajos Kiss, cited above, § 42; and, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 95, ECHR 2008), or disability (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009).
74. Furthermore, the Court reiterates its consistent practice according to which the Court takes into account relevant international instruments and reports in order to interpret the guarantees of the Convention and to establish whether there is a common standard in the field concerned. It is for the Court to decide which international instruments and reports it considers relevant and how much weight to attribute to them (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010; and Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 85-86, ECHR 2008). In the present case, the Court considers relevant the United Nations Convention on the Rights of Persons with disabilities (see paragraphs 39-41 above), having also regard to the interpretation given by the UN Committee (see paragraphs 42-45 above), as well as the related recommendations, resolutions and strategy statements adopted by the Council of Europe bodies (see paragraphs 46-48 above).
(c) Whether there was an interference
75. The Court notes that the parties disagree on whether there was an interference with the applicant’s rights under Article 8 of the Convention.
76. The Court observes that the present case concerns primarily the private life aspect of Article 8 rather than the family life aspect. Article 8 “secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality” (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission’s report of 12 July 1977, Decisions and Reports 10, p. 115, § 55; and Shtukaturov, cited above, § 83). Article 8 concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; and, mutatis mutandis, Gillow v. the United Kingdom, 24 November 1986, § 55, Series A no. 109).
77. In the present case, a mentor had been appointed to the applicant soon after he had reached the age of 18, i.e. prior to the impugned proceedings (see paragraphs 10 and 13 above), and he has not contested or complained about these decisions, nor does he deny the need for a mentor. The applicant’s complaint, in essence, is directed at the fact that by their decisions in the impugned proceedings, the domestic courts refused to change the mentor arrangements as a result of which the applicant was restrained from deciding for himself where and with whom to live. The Court therefore considers that there has been an interference with the applicant’s right to respect for his private life under Article 8 of the Convention.
(d) Whether the interference was in accordance with the law and pursued a legitimate aim
78. To comply with Article 8 § 2 of the Convention, the interference in issue must have been imposed “in accordance with the law” and pursue a legitimate aim enumerated in Article 8 § 2 of the Convention.
79. The Court notes that, according to the Government, the interference had a basis in Finnish law, in particular in sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and that it pursued the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The applicant did not dispute this.
80. The Court agrees with the parties that the interference in question had a legal basis in the provisions of the Guardianship Services Act and considers that the quality of that law is not at issue. Moreover, the legitimate aim of this Act, as expressed in its section 1, is to protect the rights and interests of persons who cannot themselves take care of their financial or non-financial affairs owing to incapacity, illness, absence or another reason. The interference was thus clearly justified by the legitimate aim of protecting the health, interpreted in the broader context of well-being, of the applicant.
(e) Whether the interference was necessary in a democratic society
81. Under Article 8, an interference will be considered “necessary in a democratic society” in respect of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation of whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady, cited above, § 88).
82. As regards the legal position underlying the applicant’s case, namely that there was a measure in place under which the mentor was required not to abide by the applicant’s wishes and instead to give precedence to his best interests, if and where the applicant was deemed unable to understand the significance of a specific matter, the Court recalls that in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. In accordance with the principle of subsidiarity, the quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see, mutatis mutandis, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)).
83. A margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions (see Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005-IX). This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Parrillo v. Italy [GC], no. 46470/11, § 169, ECHR 2015; and Dubská and Krejzová, cited above, § 178). As noted in paragraph 73 above, the margin is also reduced where a particularly vulnerable group is subjected to differential treatment on grounds that are not specifically linked to relevant individual circumstances.
84. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Connors, cited above, § 83; Buckley, cited above, § 76; and Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001-I).
85. Turning to the present case, the Court notes that under Finnish law, the appointment of a mentor does not entail a deprivation or restriction of the legal capacity of the person for whom the mentor is designated (see paragraph 29 above). The powers of the mentor to represent the ward cover the latter’s property and financial affairs to the extent set out in the appointing court’s order, but these powers do not exclude the ward’s capacity to act for him- or herself. If, like in the present case, the court has specifically ordered that the mentor’s function shall also cover matters pertaining to the ward’s person, the mentor is competent to represent the ward in such a matter only where the latter is unable to understand its significance (see paragraph 30 above). In a context such as the present one, the interference with the applicant’s freedom to choose where and with whom to live that resulted from the appointment and retention of a mentor for him was therefore solely contingent on the determination that the applicant was unable to understand the significance of that particular issue. This determination in turn depended on the assessment of the applicant’s intellectual capacity in conjunction with and in relation to all the aspects of that specific issue. The Court also notes that Finland, having recently ratified the UNCRPD, has done so while expressly considering that there was no need or cause to amend the current legislation in these respects (see Government Bill HE 284/2014 vp., p. 45).
86. The Court further observes that, as regards the impugned proceedings, the domestic courts, having considered expert testimony and having heard the applicant in person as well as several witnesses, concluded that the applicant was clearly unable to understand the significance of the underlying issue of the proceedings, namely the plan move to a remote place in order to live with his former foster parents. In reaching this conclusion, the courts took into account the evidence relating to the applicant’s intellectual capacity as well as the evidence relating to the applicant’s present and prospective circumstances in the case of a move. In this context, the domestic courts also expressed some doubts as to whether the plan actually represented the applicant’s own genuine will.
87. The Court recalls, as it has held in various contexts, that where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, 24 March 2011). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (ibid).
88. In the present case, the Court sees no reason to call into question the factual findings of the domestic courts. In this regard, the Court takes note, in particular, of the fact that according to the expert evidence, the applicant’s decision-making skills had been assessed as corresponding to those of a child between six and nine years of age. The Court also observes that it is apparent from the factual circumstances and the findings of the domestic courts that, apart from the fact that the former foster parents were well known and close to the applicant, the plan to move to a remote and isolated place in the North of Finland would have entailed a radical change in the applicant’s living conditions (see paragraph 17 above).
89. In the light of the above mentioned findings, the Court is satisfied that the impugned decision was taken in the context of a mentor arrangement that had been based on, and tailored to, the specific individual circumstances of the applicant, and that the impugned decision was reached on the basis of a concrete and careful consideration of all the relevant aspects of the particular situation. In essence, the decision was not based on a qualification of the applicant as a person with a disability. Instead, the decision was based on the finding that, in this particular case, the disability was of a kind that, in terms of its effects on the applicant’s cognitive skills, rendered the applicant unable to adequately understand the significance and the implications of the specific decision he wished to take, and that therefore, the applicant’s well-being and interests required that the mentor arrangement be maintained.
90. The Court is mindful of the need for the domestic authorities to reach, in each particular case, a balance between the respect for the dignity and self-determination of the individual and the need to protect the individual and safeguard his or her interests, especially under circumstances where his or her individual qualities or situation place the person in a particularly vulnerable position. The Court considers that a proper balance was struck in the present case: there were effective safeguards in the domestic proceedings to prevent abuse, as required by the standards of international human rights law, ensuring that the applicant’s rights, will and preferences were taken into account. The applicant was involved at all stages of the proceedings: he was heard in person and he could put forward his wishes. The interference was proportional and tailored to the applicant’s circumstances, and was subject to review by competent, independent and impartial domestic courts. The measure taken was also consonant with the legitimate aim of protecting the applicant’s health, in a broader sense of his well-being.
91. For the above mentioned reasons, the Court considers that, in the light of the findings of the domestic courts in this particular case, the impugned decision was based on relevant and sufficient reasons and that the refusal to make changes in the mentor arrangements concerning the applicant was not disproportionate to the legitimate aim pursued.
92. Consequently, there has been no violation of Article 8 in the present case.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 TO THE CONVENTION
93. Article 2 of Protocol No. 4 to the Convention reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
94. In support of his complaint, the applicant also invoked the provisions of Article 2 of Protocol No. 4 to the Convention. In view of the content of that Article as cited above, in particular the fact that paragraph 3 of the Article is closely aligned with paragraph 2 of Article 8, and taking into account the conclusions reached under Article 8 of the Convention above, the Court does not consider that an examination of the applicant’s complaint can lead to different findings when reviewed under Article 2 of Protocol No. 4. There has therefore been no violation of that Article, either.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 8 of the Convention;
3. Holds that there has been no violation of Article 2 of Protocol No. 4 to the Convention.
Done in English, and notified in writing on 23 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Linos-Alexandre