Judge: European Court of Human Rights (Fourth Section)
Citation:  ECHR 462
In the most recent in a long string of cases considering “incapacitation” proceedings in Eastern European countries, the ECtHR has drawn together a number of important threads as regards the application of both articles 6 and 8 to these proceedings. The observations of the court are – again – ones that resonate in different ways for practice in the Court of Protection.
The Court reiterated a number of important general principles relating to proceedings for removal of legal capacity, thus:
In circumstances where the applicant had not been present at, or aware of, the proceedings for incapacitation (brought at the behest of his mother on the basis of the schizophrenia from which he was suffering), the court highlighted that:
The court could not, further, be satisfied that the hearing was fair despite the fact both the applicant’s mother and the prosecutor attended the hearing, because “there was no one at the court hearing who could, on the applicant’s behalf, rebut the arguments or conclusions by his mother or the prosecutor” (paragraph 98). The court placed particular weight upon the fact that there was a lack of any meaningful involvement by the relevant social services department in determining the merits of the applicant’s case. Furthermore, it transpired “that the court ruled exclusively on the basis of the psychiatric report without summoning the medical expert who wrote it for questioning (see D.D. v. Lithuania, cited above, § 120). Furthermore, that medical expert report to the effect that the applicant could not take care of himself appears to be based on an account by the applicant’s mother, without there being any proof that those circumstances had been verified by the State or municipal authorities themselves. Similarly, the Court observes that the Akmenė District Court did not call anyone else as a witness so that more light could be shed on the applicant’s state of health.”
The court was also distinctly unimpressed by the fact that, in subsequent proceedings for his forced hospitalization, “the lawyer appointed by the Legal Aid Service ‘represented’ him without even having seen or talked to him” (paragraph 103).
The court held that the applicant had deprived of a clear, practical and effective opportunity to have access to court in connection with his incapacitation proceedings, and particularly in respect of his request to restore his legal capacity which was (essentially) fobbed off on formal grounds, such that there had been a violation of article 6(1) ECHR.
The court noted that it has consistently held that:
… deprivation of legal capacity undeniably constitutes a serious interference with the right to respect for a person’s private life protected under Article 8 (see, for example, Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). It reiterates that Article 8 secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his personality (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003-IX (extracts)). It has not been disputed by the Government that the Akmenė District Court’s decision of 31 January 2007 deprived the applicant of his capacity to act independently in almost all areas of his life: at the relevant time he was no longer able to sell or buy any property on his own, work, choose a place of residence, marry, or bring a court action in Lithuania. The Court cannot but hold that the deprivation of legal capacity thus amounted to an interference with his right to respect for his private life (see Shtukaturov, cited above, § 83). (paragraph 111).
Further, whilst national authorities should enjoy a wide margin of appreciation in a “complex matter as determining somebody’s mental capacity”, “the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life” (paragraphs 116-117) The court reiterated that “whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State’s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see Shtukaturov, cited above, § 89)” (paragraph 118).
In finding that the applicant’s Article 8 rights had been infringed, the court had particular regard to the fact that the proceedings before the Akmenė District Court did not give the judge an opportunity to examine the applicant in person. “In such circumstances, it cannot be said that the judge had the benefit of direct contact with the person concerned, which would normally call for judicial restraint on the part of the Court. Furthermore, the applicant’s incapacitation proceedings ended at one level of jurisdiction, his participation in that decision-making process being reduced to nothing” (paragraph 120).
The court emphasised that “when restrictions on the fundamental rights apply to a particularly vulnerable group in society that has suffered considerable discrimination in the past, the Court has also held that then the State’s margin of appreciation is substantially narrower and must have very weighty reasons for the restrictions in question. 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. In the past, the Court has identified a number of such vulnerable groups that suffered different treatment, persons with mental disabilities being one of them (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011)” (paragraph 125).
In light of the principles set out above, what would the Strasbourg court make of a decision (say) by the Court of Protection made on the papers to appoint a property and affairs deputy for a person, a decision that can only be made on the basis of a determination that the person is factually incapable of making decisions as to their property and affairs? In light of Rule 3A of the Court of Protection Rules, introduced in July last year, and the express direction to the court to consider how the person concerned is to participate in what (in effect) are partial incapacitation proceedings, there are grounds to think that the court might think somewhat less dimly of such proceedings. However, the ringing – and consistent – statements that, in principle, persons to be subject to such proceedings should see the judge (and that judge should, in essence, conduct their own capacity assessment upon them) do not sit entirely easily with Court of Protection practice even as modified by Rule 3A. They should also – we suggest – serve as a reminder that justification will always be required in relation to any steps that are to be taken away from participation in CoP proceedings by way of full party status, together with representation by a representative charged with putting matters forward in support of P’s contentions (we suggest either as to capacity or best interests). In other words, party status and ‘direct’ representation (i.e. representation on the basis of such instructions as can be obtained from P, not ‘best interests’ representation as at present) should be the starting point, not the end point, in any consideration of how rights under Articles 6 and 8 ECHR (let alone 12 and 13 CRPD) are to be secured.