Information Note on the Court’s case-law 233
October 2019
Nikolyan v. Armenia - 74438/14
Judgment 3.10.2019 [Section I]
Article 6
Civil proceedings
Article 6-1
Access to court
Lack of direct access to a court for person deprived of legal capacity with no corresponding safeguards: violation
Article 8
Article 8-1
Respect for private life
No possibility of tailor-made response in deprivation of legal capacity proceedings: violation
Facts – In April 2012 the applicant instituted proceedings seeking to divorce his wife and evict her from his flat. In response, the applicant’s wife and their son instituted court proceedings seeking to declare him incapable. Later that year a panel of psychiatric experts concluded that the applicant suffered from a delusional disorder which deprived him of his ability to understand and control his actions. In November 2013 the District Court declared the applicant incapable; that judgment was upheld by the Court of Appeal. The divorce and eviction proceedings were subsequently terminated at the request of the applicant’s son, who had been appointed as the applicant’s guardian.
Law – Article 6 § 1
(a) Access to court in divorce and eviction proceedings – The applicant’s divorce and eviction claim had never been examined by the domestic courts. Having been fully deprived of his legal capacity and as a result – and in line with domestic law – of his right of access to a court, the only proper and effective means of protection of his legal interests before the courts was through a conflict-free guardianship. The body responsible for the appointment of guardians had failed to hear the applicant, despite the legal requirement to take into account, if possible, his wishes, and had appointed the applicant’s son as guardian, despite their conflictual relationship and the applicant’s opposition to his son’s appointment.
Given the circumstances of the case, it was doubtful whether the applicant’s son was genuinely neutral and that no conflict of interests existed as regards specifically the applicant’s claim filed against his wife seeking to divorce and evict her. The District Court had failed to carry out any examination of the question of whether the applicant’s son’s request to withdraw the claim had been in the applicant’s best interests or to provide any explanation for its decision to accept that request. The domestic court had failed to carry out the necessary scrutiny and oversight when deciding to accept the request to withdraw the applicant’s claim and consequently the termination of those proceedings had been unjustified.
Conclusion: violation (unanimously).
(b) Access to court for restoration of legal capacity – The right to ask a court to review a declaration of incapacity was one of the fundamental procedural rights for the protection of those who had been partially or fully deprived of legal capacity. The general prohibition in Armenia at the material time on direct access to a court by persons declared incapable did not leave any room for exception. The domestic law did not provide safeguards to the effect that the matter of restoration of legal capacity was to be reviewed by a court at reasonable intervals despite the requirement of Article 12 § 4 of the United Nations Convention on the Rights of Persons with Disabilities that measures restricting legal capacity be subject to regular review by a competent authority. The applicant’s situation had been further exacerbated by the fact that the authorities had failed to ensure a conflict-free guardianship. The applicant’s inability to seek restoration of his legal capacity directly at the material time was disproportionate to any legitimate aim pursued.
Conclusion: violation (unanimously).
Article 8: The deprivation of the applicant’s legal capacity amounted to an interference with his right to private life. That interference was based on Article 31 of the Civil Code. The judgment declaring the applicant incapable had relied solely on the psychiatric expert opinion. The existence of a mental disorder, even a serious one, could not be the sole reason to justify full deprivation of legal capacity. By analogy with the cases concerning deprivation of liberty, in order to justify full deprivation of legal capacity the mental disorder had to be “of a kind or degree” warranting such a measure. Armenian law did not provide for any borderline or tailor-made response in situations such as that of the applicant and distinguished only between full capacity and full incapacity.
The psychiatric expert report had not analysed the degree of the applicant’s incapacity in sufficient detail. The report had not explained what kind of actions the applicant was incapable of understanding or controlling. Assuming, nevertheless, that the applicant’s condition had required some sort of measure of protection in his respect, the domestic court had had no other choice than to apply and maintain full incapacity – the most stringent measure which meant total loss of autonomy in nearly all areas of life.
The objectivity of medical evidence entailed a requirement that it be sufficiently recent. The question whether evidence was sufficiently recent depended on the specific circumstances of the case. The psychiatric expert opinion had been issued in September 2012, more than fourteen months before the judgment declaring the applicant incapable and almost a year and a half before the decision of the Civil Court of Appeal upholding that judgment. That opinion could not be regarded as “up to date”.* It had been the first time that the applicant had been subjected to a psychiatric medical examination, as he had had no history of mental illness, and nothing suggested that the applicant’s condition was irreversible. In such circumstances, the domestic courts should have sought some sort of fresh assessment of the applicant’s condition.
The District Court had relied solely on that opinion without questioning whether it credibly reflected the applicant’s state of mental health at the material time. As for the Civil Court of Appeal, it had made reference to the absence of any evidence rebutting the findings of that report or suggesting that the applicant had recovered, despite the fact that it was the duty of the domestic courts to seek such evidence and, if necessary, to assign a new medical examination. The measure imposed on the applicant was disproportionate to the legitimate aim pursued. As a result, the applicant’s rights under Article 8 were restricted more than was strictly necessary.
Conclusion: violation (unanimously).
Article 41: EUR 7,800 in respect of non-pecuniary damage.
(See also Stanev v. Bulgaria [GC], 36760/06, 17 January 2012, Information Note 148; Nataliya Mikhaylenko v. Ukraine, 49069/11, 30 May 2013, Information Note 163; Shtukaturov v. Russia, 44009/05, 27 March 2008, Information Note 106; Lashin v. Russia, 33117/02, 22 January 2013, Information Note 159; and compare A.-M.V. v. Finland, 53251/13, 23 March 2017, Information Note 205)
* See Principle 8 of Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe to member States on principles concerning the legal protection of incapable adults, adopted on 23 February 1999.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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