THIRD SECTION
DECISION
Application no. 28621/10
by Sergejs DUDAREVS
against Latvia
The European Court of Human Rights (Third Section), sitting on 14 June 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 21 May 2010,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sergejs Dudarevs, is a Latvian national who was born in 1965 and lives in Latvia. He was represented before the Court by Mr E. Endzelis, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The civil proceedings divesting the applicant of legal capacity
3. Since childhood the applicant has suffered from mental disorders. In 1995 for the first time he was hospitalized and diagnosed with paranoid schizophrenia. He also obtained the status of a disabled person. From March 2000 to March 2001 the applicant received continuous in-patient treatment in a psychiatric hospital. In 2000 a commission of medical experts established that the applicant had serious disorders in his thought processes, a persecution complex with a tendency to paraphrenia. It was concluded that these developments were so serious that he had lost the ability to fully understand and control his actions.
4. On 12 June 2000, at the request of the applicant’s mother, the Rīga City Northern District Court, relying, inter alia, on the expert’s report, decided to divest the applicant of his legal capacity.
5. On 1 August 2000 the Rīga Orphans Court appointed the applicant’s mother as his legal guardian. After that judgment the applicant continued to receive in-patient treatment at the psychiatric hospital. Since March 2001 he has been residing in Allaži social care centre (hereafter “the Centre”) where he continues to receive medical treatment and work towards rehabilitation.
2. The civil proceedings to restore the applicant’s legal capacity
6. In August 2007 the director of the Centre informed the applicant’s guardian that as a result of the rehabilitation course the applicant had regained the skills needed to take care of himself, and in this connection she was invited to express her permission concerning restoration of the applicant’s legal capacity. In September 2007 the guardian gave her permission in a letter addressed to the director of the Centre.
7. On 15 October 2007 the Centre asked the Allaži Orphans Court to institute proceedings for the restoration of the applicant’s legal capacity. The application contained the opinions of various specialists, including a psychologist working at the Centre, who concluded, inter alia, that the applicant’s condition had improved and that he was able to take care of himself, to communicate with others and to manage his own budget.
8. On 1 November 2007 the Allaži Orphans Court asked the Sigulda Court to restore the applicant’s legal capacity. It was also stated that the applicant was able to attend court hearings.
9. On 5 December 2007, upon an order by the Sigulda Court, the applicant underwent forensic psychiatric tests. During the interview the applicant stated that since childhood various poisonous substances had been circulating in his body. He also stated that he would like to live alone in social housing and work as an electrician or as a loader. The experts observed that in general the applicant responded adequately to simple questions, but that it took effort for him to reply to more complicated ones and that he showed a lack of awareness of his previous and current mental health issues. It was concluded that the applicant still suffered from a chronic mental illness – “continuous paranoid schizophrenia” – and that the condition still prevented him from fully understanding and controlling his actions.
10. On 27 March 2008 the Sigulda Court, by referring to section 270 § 1 of the Law of Civil Procedure and the outcome of the forensic psychiatric tests, dismissed the application to restore the applicant’s legal capacity.
11. On 15 April 2008 the Allaži Orphans Court submitted an appeal where they argued that the lower court had relied exclusively on the outcome of the medical forensic tests, which had been narrow and had not disclosed the applicant’s capabilities, and that the court had failed to assess the other evidence brought before it.
12. On 1 October 2008 the Rīga Regional Court allowed the request brought by the Allaži Orphans’ Court and ordered another in-patient forensic medical expert report to determine whether the applicant was still suffering from a mental illness; whether owing to his illness he was capable of understanding and controlling his actions and whether he could participate in a court hearing.
13. From 5 May to 9 June 2009 the applicant underwent an in-patient examination in the Rīga Psychiatric and Drug Rehabilitation Centre. The expert report concluded that the applicant continued to suffer from a chronic mental illness – “continuous paranoid schizophrenia” – and that as a result of that illness he was not capable of understanding and controlling his actions, and that his mental capacity was seriously reduced.
14. On 14 October 2009 the Rīga Regional Court dismissed the appeal. It referred to sections 270 and 358 of the Law of Civil Procedure and the above-mentioned expert report. It observed that it was not in dispute that the applicant’s condition had improved as compared to 2000, but that that could not serve as a basis for restoring the applicant’s legal capacity. It reasoned as follows:
“... [The applicant] has not recovered and, disregarding the fact that his condition is gradually improving, and taking into consideration [his] diagnosis, unfortunately [his] full recovery is not possible. ... [The court] concludes that if legal capacity were to be restored [the applicant] would be socially vulnerable, as without the help and assistance of others he would not be able to deal with the everyday problems he would face in that event. ... [I]t transpires from the submissions of his mother ... that she does not wish to care for her son .... As full recovery of [the applicant] ... is not possible, ... in order to prevent further deterioration of his health it is desirable that his use of medicaments is supervised on a daily basis. [The court] considers that [the applicant’s] ideas about his employment [prospects] are unrealistic, taking into consideration the current situation in the country as well as his diagnosis. ... [The court] considers that the improvement in [the applicant’s] condition is not sufficient in order to rule that he is capable of representing himself and managing his property and its daily use, because in spite of those improvements, [his] mental capacity is still seriously reduced.”
15. On 12 November 2009 and 16 November 2009 both the applicant’s legal guardian’s counsel and the representative of the Centre asked the Sigulda Orphans Court to submit an appeal on points of law against the above-mentioned judgment, arguing that the national courts had wrongly interpreted procedural provisions.
16. In letters dated 19 and 26 November 2009 the Sigulda Orphans Court informed the applicant’s representatives that the national courts had correctly applied the law and that they did not find grounds for submitting an appeal on points of law.
3. The proceedings before the Constitutional court
17. On 15 April 2010 counsel for the applicant sought to lodge a constitutional complaint seeking a ruling that sections 266, 268 § 1 and 270 § 1 of the Law of Civil Procedure were in breach of the rights protected under the Constitution and the Convention.
18. On 12 May 2010 the Constitutional Court adopted a decision by which it refused to institute proceedings. It noted that the contested provisions of the Law of Civil Procedure regulated only the procedural aspects of the proceedings on divesting a person of legal capacity, whereas the applicant had failed to contest the constitutionality of the substantive norms concerning incapacitation as laid down in the Civil Law.
COMPLAINTS
19. The applicant complains under Article 8 of the Convention that his right to respect for his private life was disproportionately restricted by the decisions of the domestic courts, which left him fully divested of his legal capacity.
20. The applicant further complains under Article 6 of the Convention that he was denied access to a court to seek the reinstatement of his legal capacity, owing to the fact that the Sigulda Orphans’ Court refused to submit an appeal of points of law in the proceedings concerning restoration of the applicant’s legal capacity.
THE LAW
21. The Court received the following declaration from the Government:
“I, Inga Reine, the Agent for the Government, declare that the Government of Latvia offer to pay, ex gratia, to Mr Sergejs Dudarevs, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights 18,000 euros, plus any tax that may be chargeable to the applicant.
This sum will be converted into Latvian lats (LVL) at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
22. The Court received the following declaration signed by the applicant’s representative:
“I, Edgars Endzelis, note that the Government of Latvia are prepared to pay, ex gratia, to Mr Sergejs Dudarevs, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 18,000 euros, plus any tax that may be chargeable to the applicant.
This sum will be converted into Latvian lats (LVL) at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Latvia in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.”
23. The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy