EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 18969/91
Touko Ollila
against
Finland
REPORT OF THE COMMISSION
(adopted on 30 June 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 16). . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 11). . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12 -16). . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17 - 44) . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17 - 26) . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 27 - 44) . . . . . . . . . . . . . . . . . 3
III. OPINION OF THE COMMISSION
(paras. 45 - 71) . . . . . . . . . . . . . . . . . . . . 6
A. Complaint declared admissible
(para. 45) . . . . . . . . . . . . . . . . . . . . 6
B. Point at issue
(para. 46) . . . . . . . . . . . . . . . . . . . . 6
C. Article 8 of the Convention
(paras. 47 - 70) . . . . . . . . . . . . . . . . . 6
CONCLUSION
(para. 71) . . . . . . . . . . . . . . . . . . . . . . . 9
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10
APPENDIX II : DECISION ON ADMISSIBILITY. . . . . . . . . . . .12
APPENDIX III : EXCERPT FROM THE DEPUTY OMBUDSMAN'S
DECISION OF 1 JUNE 1992. . . . . . . . . . . . .37
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Finnish citizen born in 1925 and resident at
Juornaankylä. He is a doctor of radiology and an agronomist by
profession.
3. The application is directed against Finland. The respondent
government are represented by Ambassador Tom Grönberg, Director General
for Legal Affairs, Ministry for Foreign Affairs, Helsinki.
4. The application primarily relates to measures affecting the
applicant in his capacity as a ward. The complaint admitted by the
Commission concerns the justification under Article 8 of the Convention
of the screening and stopping of certain correspondence addressed to
the applicant.
B. The proceedings
5. The application was introduced on 1 July 1991 and registered on
21 October 1991.
6. On 24 October 1991 the Rapporteur decided to request certain
information from the Government.
7. The information was submitted by the Government on
25 November 1991. The applicant's comments in reply were submitted on
11 February 1992.
8. On 30 March 1992 the Commission decided to invite the Government
to submit written observations on the admissibility and merits of the
application.
9. The Government's observations were submitted on 4 and 23 June and
18 August 1992. The applicant's observations in reply were submitted
on 17 and 18 September 1992.
10. On 30 November 1992 the Commission declared the applicant's
complaint of interference with his correspondence admissible. It
further decided to take no action with respect to his complaint under
Article 25 of the Convention and declared inadmissible the remainder
of the application. The Commission finally referred the application
to the First Chamber.
11. After declaring the application admissible, the Commission (First
Chamber), acting in accordance with Article 28 para. 1 (b) of the
Convention, placed itself at the disposal of the parties with a view
to securing a friendly settlement of the case. Active consultations
with the parties took place between 11 December 1992 and
10 February 1993. In the light of the parties' reactions the
Commission finds that there is no basis upon which a settlement can be
effected.
C. The present Report
12. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
13. The text of the Report was adopted on 30 June 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I, the Commission's decision
on the admissibility of the application as Appendix II and an excerpt
from the Deputy Ombudsman's decision of 1 June 1992 as Appendix III.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. On 17 April 1985 the District Court (kihlakunnanoikeus,
häradsrätten) of Orimattila in application of Sections 17 and 17a of
the 1898 Guardianship Act (holhouslaki 34/1898, lag 34/1898 angående
förmynderskap; hereinafter "the 1898 Act") placed the applicant under
guardianship for a period of five years at the request of the
applicant's then wife and six of his children. The District Court
appointed Mr. S.P. as guardian (holhooja, förmyndare).
18. On the applicant's appeal the Court of Appeal (hovioikeus,
hovrätten) of Kouvola on 28 August 1986 quashed the decision following
a re-hearing.
19. Following a further appeal the Supreme Court (korkein oikeus,
högsta domstolen) on 27 October 1988 quashed the Court of Appeal's
decision and upheld that of the District Court.
20. On 4 April 1990 the District Court prolonged the guardianship for
a further five years and re-appointed S.P. as guardian.
21. On 18 September 1990 the Court of Appeal rejected the applicant's
appeal.
22. Leave to appeal against the Court of Appeal's decision was
refused by the Supreme Court on 24 January 1991.
23. During his placement under guardianship all correspondence
addressed to the applicant, with the exception of magazines and
postcards, was being screened by S.P. The applicant was subsequently
given all correspondence pertaining to his personal matters.
24. Following the applicant's requests to have his placement under
guardianship revoked, alternatively that S.P. be replaced by another
guardian the District Court on 14 July 1992 dismissed S.P. and
provisionally appointed the Official Guardian (virkaholhooja,
tjänsteförmyndare) of the municipality of Askola as guardian as from
1 September 1992. It further adjourned the applicant's request for a
revocation of his guardianship.
25. On 26 August 1992 the District Court replaced the Official
Guardian by Mr. P.V.
26. On 20 October 1992 the District Court revoked the applicant's
placement under guardianship and appointed an administrator (uskottu
mies, god man) to take care of his financial and legal affairs.
B. Relevant domestic law
a. Placement under guardianship or control by an administrator
27. Under Section 17 para. 1 of the 1898 Act, as amended by Act
no. 368/83, a person who is incapable of taking care of himself or of
matters concerning his possessions, and provided that his financial
situation, income or other important interests are obviously
jeopardised, may be placed under guardianship by an ordinary court of
law.
28. The Court may, at a person's request, appoint an administrator
to administer certain property or to take care of a certain matter,
provided the person himself is unable to do so for medical or other
similar reasons but it is unnecessary to place him under guardianship.
If the person is unable to lodge such a request it may be lodged by his
relatives or the Guardianship Board (Section 66).
29. If it is found that a person's interests may be sufficiently
safeguarded by appointing an administrator he shall not be placed under
guardianship (Section 17 para. 2).
30. The guardianship shall be revoked, if the grounds for placing the
person under guardianship no longer exist (Section 17c, as amended by
Act no. 368/830.
b. Rights and duties of the guardian
31. Under Section 20 para. 2 of the 1898 Act, as amended by Act
no. 368/83, the ward shall have control of any possessions acquired by
his own work while being placed under guardianship, as well as of any
yield of those possessions and any substitute possessions. Under
para. 3 the Guardianship Board may consent to the guardian taking
control of such possessions, provided this is called for in the
interests of the ward.
32. The guardian shall take care of the ward's possessions and
represent him in matters concerning the possessions. The guardian
shall further conscientiously safeguard the ward's rights and promote
the ward's interests (Section 33, as amended by Act no. 368/83).
33. The guardian shall further provide the ward with such care as is
regarded as necessary in view of the ward's needs as well as his other
circumstances (Section 34, as amended by Act no. 368/83).
34. The guardian shall hear the ward in matters of importance from
the ward's point of view. The hearing of the ward is not necessary if
he is unable to comprehend the meaning of the matter (Section 37, as
amended by Act no. 368/83).
35. Under Section 39 the guardian may not without the consent of an
ordinary court dispose of the ward's real property or let it on lease
for more than five years, in the latter case provided the guardianship
is based on a decision by a court.
36. Under Section 40 the guardian may not without the consent of the
Guardianship Board acquire real property on the ward's behalf against
payment, with one exception dispose of timber from the ward's forest,
with one exception let his real property on lease for a shorter period
than five years, and with some exceptions take out loans, draw a bill
or take over the responsibility for someone's debts.
37. Any transaction indicated in Sections 39 and 40 shall be
considered void unless the Court or the Guardianship Board subsequently
approves it (Section 41).
38. The ward's possessions shall be administered in such a way as to
ensure that they as well as any proceeds are used for his benefit
(Section 42, as amended by Act no. 368/830).
39. The ward shall have recourse to any possessions needed for his
personal use as well as to a reasonable amount of cash, having regard
to his needs and other circumstances. The guardian shall see to it
that the ward can keep any possessions necessary during the
guardianship or subsequently for housing or business activities or
which otherwise have a special value for him. Any further possessions
not used for the ward's subsistence or otherwise for his needs shall
be invested so as to ensure adequate preservation of their value as
well as reasonable proceeds (Section 43, as amended by Act no. 368/83).
40. Under Section 51 the guardian shall submit annual settlements of
the ward's accounts to the Guardianship Board.
41. Under Section 54 para. 3 the Guardianship Board shall, having
audited the settlement of the ward's accounts, refer it to the Court
together with any remarks.
42. Where a guardian submits an incorrect or a defective settlement
of the ward's accounts the Court shall, under penalty of a fine, order
him to fulfil his obligation (Section 55 para. 1). If there is a
reason to contest the guardian's administration or the settlement of
the ward's accounts before the guardian has resigned, the Court shall
appoint a guardian ad litem to institute proceedings on behalf of the
ward (para. 2).
43. Under Section 61 a ward who has the necessary understanding of
the matter may consult the settlement of his accounts as submitted to
the Guardianship Board and request that the Board or the Court take
measures necessary in view of the administration of his property.
c. Secrecy of correspondence
44. Under Section 12 of the 1919 Constitution Act (hallitusmuoto
94/19, regeringsformen 94/19) there shall be no interference with the
secrecy of correspondence other than by means of an exception provided
for by law. The 1898 Act contains no explicit provision for such an
exception, nor has any other legislation providing explicitly for an
exception been cited to the Commission.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
45. The Commission has admitted the complaint pertaining to the
interference with the applicant's correspondence as carried out by
S.P., one of the applicant's guardians.
B. Point at issue
46. The issue to be determined is whether there has been a violation
of Article 8 (Art. 8) of the Convention.
C. Article 8 (Art. 8) of the Convention
47. Article 8 (Art. 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."
48. The Government admit that there has been an interference with the
applicant's right to respect for his incoming correspondence. During
his placement under guardianship all correspondence, with the exception
of magazines and postcards, was being screened by guardian S.P.,
following which all correspondence pertaining to the applicant's
personal matters was handed over to him.
49. The Government consider, however, that the interference was in
accordance with the law. Whilst the 1898 Act does not explicitly allow
an interference with a ward's correspondence, a guardian's right of
access to correspondence necessary for the administration of his ward's
possessions may be derived from that Act. S.P. may have had to screen
the applicant's correspondence in order to determine whether its
contents pertained to the administration of the applicant's
possessions.
50. The Government admit that it is doubtful whether the provisions
of the 1898 Act fulfil the requirement of foreseeability of the
interference. Any interference with a ward's correspondence is,
however, subjected to supervision by an ordinary court of law. If the
interference at issue exceeds what is allowed under the Constitution
Act and the 1898 Act, criminal proceedings may be instituted.
51. The Government finally argue that the interference with the
applicant's correspondence was necessary in a democratic society for
the prevention of disorder and the protection of the freedom and rights
of others.
52. The Commission notes that the Government do not dispute State
responsibility for the interference as carried out by guardian S.P. The
Commission, for its part, finds that, in performing his duties, S.P.
was exercising public authority under the supervision of the District
Court and the Guardianship Board as a representative of the latter.
Thus, his acts undoubtedly gave rise to State responsibility.
53. The Commission further observes that the Government admit an
interference with the applicant's right to respect for correspondence
addressed to him. It has not been alleged that his outgoing
correspondence has been interfered with. The Commission will therefore
limit its examination to the justification under Article 8 para. 2
(Art. 8-2) of the screening and stopping of certain correspondence
addressed to the applicant.
54. The Commission must decide whether this interference was
justified under Article 8 para. 2 (Art. 8-2), which authorises certain
restrictions on the rights guaranteed by Article 8 para. 1 (Art. 8-1),
provided that such restrictions are "in accordance with the law" and
"necessary in a democratic society" for one or more of the aim or aims
enumerated in para. 2.
55. An interference cannot be held to be "in accordance with the law"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention
unless, first of all, it has some basis in domestic law. However, the
expression "in accordance with the law" also relates to the quality of
the law in question. This implies that the law should be accessible to
the person concerned, who must moreover be able to foresee its
consequences for him. Finally, the law must be compatible with the rule
of law (Eur. Court H.R., Kruslin and Huvig judgments of 24 April 1990,
Series A nos. 176-A and 176-B, p. 20, para. 27, and p. 52, para. 26,
respectively; Herczegfalvy judgment of 24 September 1992, Series A
no. 244, p. 27, para. 88).
56. Moreover, the term "law" should be understood in its
"substantive" sense, not its "formal" one. It may therefore include
enactments of lower rank than statutes as well as unwritten law. In
a sphere covered by written law, the "law" is the enactment in force
as the competent courts have interpreted it (the above-mentioned
Kruslin and Huvig judgments, pp. 21-22, para. 29, pp. 53-54, para. 28,
respectively).
a. The existence of a legal basis for the interference
57. The Commission will first examine whether the first of the above-
mentioned conditions is fulfilled in the present case, i.e. whether the
interference with the applicant's correspondence had a basis in Finnish
law.
58. The Commission observes that Section 12 of the Constitution Act
prescribes that there shall be no interference with the secrecy of
correspondence other than by means of an exception provided for by law.
59. Indeed, such laws have been enacted and apply, for instance, to
patients in mental institutions in accordance with Section 28 para. 2
of the 1990 Act on Mental Health Care (mielenterveyslaki 1247/90,
mentalvårdslag 1247/90) as well as to prisoners in accordance with
Section 49 of the Decree of the Treatment of Prisoners (vankein-
hoitoasetus 431/75, fångvårdsförordning 431/75).
60. The 1898 Act does not, however, contain any provision authorising
a guardian to screen or stop his ward's correspondence.
61. The Government have not pointed to any other enactment of a lower
rank, nor have they referred to any unwritten law. They have argued,
however, that the guardian's right to screen his ward's correspondence
can be derived from his general duties under the 1898 Act and that any
screening of a ward's correspondence is subject to supervision by a
court.
62. The Commission observes that Section 33 of the 1898 Act
prescribes a general obligation for the guardian to safeguard
conscientiously the ward's rights and promote his interests. This
entails taking care of the ward's possessions and representing him in
matters relating to his possessions.
b. Foreseeability of the interference and compatibility with the
rule of law
63. Even assuming, however, that S.P.'s right to screen the
applicant's correspondence could be derived from his general duties
under the above-mentioned Section 33 which was accessible to the
applicant, there remain to be examined the required foreseeability of
the consequences of the law as well as the required compatibility of
the law with the rule of law.
64. As indicated above the concept of foreseeability requires that
the applicant should have been able to foresee the consequences of the
relevant law governing his placement under guardianship. Compatibility
with the rule of law implies that the applicant should have had access
to a measure of protection under national law against arbitrary
interferences with his right to respect for his correspondence.
65. If a law confers a discretion on a public authority or a person
exercising such authority, it must indicate the scope of that
discretion. The degree of precision required will depend on the
particular subject matter (cf. the above-mentioned Kruslin and Huvig
judgments, pp. 22-23, para. 30 and pp. 54-55, para. 29, respectively,
and the above-mentioned Herczegfalvy judgment, p. 27, para. 89).
66. In the light of the relevant provisions of the 1898 Act referred
to above the Commission finds that the Finnish legislation on
guardianships does not in any way specify the scope or conditions of
exercise of the discretionary power used by a guardian when interfering
with his ward's correspondence.
67. It may not be possible to formulate a law to cover every
eventuality arising in the implementation of a person's placement under
guardianship (cf. Eur. Court H.R., Silver and Others judgment of
25 March 1983, Series A no. 61, p. 33, para. 88). Finnish law, however,
discloses a total absence of any detail at all as to the permissibility
of an interference with a ward's correspondence and the purpose and
duration of such an interference.
68. Furthermore, there is no specification of the arrangements for
a review of the interference (cf. the above-mentioned Herczegfalvy
judgment, pp. 27-28, para. 91). Even with appropriate legal advice the
applicant could not know with a reasonable degree of certainty whether
the interference at issue was unlawful (cf. Herczegfalvy v. Austria,
Comm. Report 1.3.91, para. 270, Eur. Court H.R., Series A no. 244,
p. 51).
69. In sum, the applicant did not enjoy the minimum degree of
protection to which one is entitled under the rule of law in a
democratic society. Accordingly, the interference was not carried out
"in accordance with the law".
70. In view of this finding there is no need for the Commission to
examine whether the other requirements under Article 8 para. 2
(Art. 8-2) have been complied with, i.e. whether the interference
pursued a legitimate aim and whether it was proportionate and thus
necessary in a democratic society.
CONCLUSION
71. The Commission concludes, unanimously, that there has been a
violation of Article 8 (Art. 8) of the Convention.
Secretary to the First Chamber Acting President of the
First Chamber
(M. F. BUQUICCHIO) (F. ERMACORA)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
1 July 1991 Introduction of the application
21 October 1991 Registration of the application
Examination of admissibility
24 October 1991 Rapporteur's request for
information from the Government
25 November 1991 Information submitted by the
Government
11 February 1992 Comments in reply submitted by
the applicant
30 March 1992 Commission's decision to invite
the Government to submit observations
on the admissibility and merits of the
application
Commission's decision to give
the application precedence
4 June 1992 Government's observations
23 June 1992 Government's supplementary
observations
18 August 1992 Government's supplementary
observations
17 September 1992 Applicant's observations in reply
18 September 1992 Applicant's supplementary
observations in reply
30 November 1992 Commission's decision to declare the
application partly admissible and
party inadmissible.
Commission's decision to refer the
application to the First Chamber
11 December 1992 Communication to the parties of
the text of the decision on
admissibility
Examination of the merits
16 February 1993 Commission's consideration of
the state of proceedings
30 June 1993 Commission's deliberations on
the merits, final vote and adoption
of the Report
APPENDIX III
EXCERPT FROM THE DEPUTY OMBUDSMAN'S DECISION OF 1 JUNE 1992
(translation from Finnish)
"...
The Guardianship Board has stated that it has heard [the
guardian] ... [and] supervised his activities by inspecting
the settlement of [the applicant's] accounts. ... In 1990
[the Board] considered [the applicant's] guardianship on
several occasions. The guardian has informed [it] of the
plans for [the applicant's] follow-up treatment and
rehabilitation which, however, had remained unimplemented
following [the applicant's] refusal to accept treatment.
The visiting nurse at the Regional Health Centre of Porvoo
is responsible for [the applicant's] medication. [She]
visits him once a week. Everyday care is provided by the
home help of the municipality of Askola and the guardian
keeps regular contact with the home helper. According to
the guardian [the applicant] himself has chosen the room in
which he is living. He does not use any other room in his
house. The guardian has stated that he has shown him all
the documents relating to the guardianship.
[The Board] has found that the guardian has acted in the
interests of his ward and has tried by all means to fulfil,
as well as possible, his obligations under Section 34 of
the 1898 Act.
In her submission of 26 February 1991 the senior home
helper ... has stated that a home helper visits [the
applicant] on a daily basis and on weekends, if necessary.
[He] receives home help in the form of cleaning, bathing,
care of clothes and preparation of meals. He has been
offered a meals-on-wheels service but has refused this. ...
The home helpers have found that [the applicant] is in need
of help. The difficulty lies, however, in the fact that
[he] himself is unwilling to accept the home help offered.
In particular, [he] often considers the care of his
personal hygiene and clothes and the changing of bed linen
unnecessary. According to the senior home helper [he]
himself chooses to make use of only one of the rooms in the
house and not, for example, of the kitchen or the toilet.
[He] is mobile with the help of a walker.
...
In his submission of 16 May 1991 Mr. Pentti Soveri, senior
physician at the Regional Health Centre of Porvoo, has
stated that [the applicant] has received all of the
services which he is in need of and has been willing to
accept. [His] motivation for rehabilitation has been poor
[and] he has therefore not consented to more effective
means of rehabilitation.
...
... I conclude ... that [the applicant] has received home
medical care and rehabilitation. The rehabilitation,
however, has frequently been interrupted as a result of
[his] refusals to go on with it. ... [He] has further
consistently refused services such as care of his personal
hygiene, the making of his bed, the changing of his bed
linen and his clothes as well as the cleaning of his room,
sometimes for long periods of time.
...
Mr. Jukka Siltaloppi, an inspecting official from my Office
visited [the applicant] on 30 May 1991 together with
Ms. Marjatta Rosenberg, physician at the Public Health
Centre, and the Chairman of [the Board]...
Inspector Siltaloppi observed that [the applicant's]
conditions of living were inadequate in the way described
by Ms. Riitta Kauppinen in her petition. [The applicant]
stated ... that he did not get along with his guardian. He
had last met him in court about a year earlier, when the
guardianship had been prolonged. [He] further stated that
not once had he been allowed to study the settlements of
his accounts and that he had not received his pension
amounting to some 3.000 FIM [per month]. He further stated
that he was in no need of a full-time [home helper]. He
expressed his desire for rehabilitation services but
alleged that his guardian refuses to meet the expenses
incurred thereby.
...
On 1 October 1991 I requested a further report from [the
Board] as regards the supervision of [the applicant's]
guardianship. My request was partly due to what had earlier
been disclosed in the matter and partly as a result of the
written submissions by Ms. Pirkko Turpeinen, a psychiatrist
and senior physician, by Mr. Seppo Järvinen and by
Mr. Matti Schroderus, a psychiatrist. All of these
contained sharp criticism of [the applicant's] conditions.
[The Board] has been requested to submit a detailed account
of how and when [the applicant] has been able to study the
settlements of his accounts, how much in disposable funds
he is receiving and in what way, how he has been receiving
rehabilitation as from 30 May 1991 and of what kind, as
well as an account of his treatment at the hospital of Eira
and why this was discontinued. [The Board] has further been
requested to re-assess the guardian's actions in the light
of the additional information disclosed in the case.
In its submission of 7 November 1991 [the Board] has noted
that according to the settlement of accounts for 1990
approved by [the District Court] [the applicant] received
a pension income ... amounting to a total of 45.711 FIM.
His costs of living and disposable funds [used] ...
amounted to a total of 46.629 FIM. [His] pension had thus
been used for the upkeep of his welfare. In practice [the
home helpers] had handed over the money. Out of a cash
amount provided by the guardian they give [the applicant]
money for his needs against a receipt. No new information
concerning the guardian's actions on the basis of which its
opinion on the matter could change had come to [the
Board's] attention.
[The Board] has appended a statement by [the guardian's
lawyer] of 23 October 1991 ... indicating that [the
applicant] has been given an opportunity to examine the
settlement of his accounts by means of copies of the
[pertinent] documents. Except for a few initial years of
his guardianship [the applicant] had refused to receive the
documents or had torn them up immediately. Accordingly, it
had not been possible to hand him the receipts for
inspection. In recent years [he] had not even requested to
see the settlements of his accounts, but had remained
completely passive in this respect. It had never been
possible properly to discuss ... the settlements or indeed
any other matter related to his guardianship. As his
guardian, [S.P.] has given [the applicant] a monthly
average of FIM 2,000 in cash. [The applicant] uses his
disposable funds for the most multifarious attempts to file
totally unfounded criminal complaints and petitions for
review merely in order to torment his guardian and the
members of his family. All along [he] has had the right and
possibility to maintain, in accordance with his position,
a material standard of living corresponding to his
possessions, and the spiritual welfare and atmosphere
afforded by his mental abilities. Subsequent to
[30 May 1991] a place for [him] had been obtained in the
Punkaharju hospital for care and rehabilitation, a renowned
establishment of high standard, but [he] did not wish to
avail himself even of this opportunity in its entirety.
[Moreover,] [the applicant] had requested admission to the
hospital of Eira for no special medical reason, contrary to
[the guardian's] explicit prohibition and keeping this
secret from him. The cost of care at Eira hospital was
beyond [his] solvency, rendering treatment there
impossible.
...
By a letter of 9 March 1992 [the applicant's son M.O.] ...
has objected to the statement of Pirkko Turpeinen ...
By letters of 15 April 1992 [the applicant's sons J.O. and
P.O.] ... have, inter alia, drawn my attention to the
difficulties which have arisen in the care and
rehabilitation of their father because of his negative
attitude towards treatment.
...
I have had at my disposal copies of extracts of the minutes
of [the Board's] meetings from 1985 to 1991 considering
[the applicant's] guardianship; the settlements of his
accounts; the letter of guardianship [holhouskirja,
förmynderskapsbok] at the District Court; and the minutes
relating to [its] audits of the settlements for 1990 and
1991.
... Also the file of the Court of Appeal of Kouvola
pertaining to its decision of 18 September 1990 has been at
my disposal.
...
Under [the 1898 Act] the primary task of the Guardianship
Board is to see to it that the guardians under its
supervision take proper care of their wards and of the
ward's possessions. Also the court of first instance in the
district of the ward's domicile is entrusted with duties
relating to the supervision of the ward's possessions and
the use of his financial resources.
...
[The Board] ... has taken the following measures in
relation to [the applicant's] guardianship.
In 1985 [it] pronounced itself on [S.P.'s] suitability as
a guardian and took note of [the District Court's] decision
to place [the applicant] under guardianship.
In 1986 [it] considered a complaint by [the applicant]
regarding his guardian. No measures were taken. [It]
further considered the settlement of [the] accounts for
1985 and in this respect requested the guardian to submit
certain clarifications. The settlement was approved at a
subsequent meeting.
In 1987 [the Board] considered certain payments charged to
[the applicant] and approved the settlement of the accounts
for 1986.
In 1988 [the Board] considered [the] guardianship on four
occasions. [It] approved the settlement of the accounts for
1987; decided to grant the guardian permission to take up
a loan; ordered at [the applicant's] request that the
guardian was to show him, in his home, duplicates of the
settlement of his accounts; and approved a forestry plan.
In 1989 [the Board] considered matters relating to [the]
guardianship on five occasions. At its first meeting [it]
approved the settlement of the accounts [for 1988]. At the
following one it considered [the applicant's] request for
a change of guardian [and] unanimously found no grounds
thereto. At its third meeting [it] replied to an enquiry by
[the President of the District Court] regarding the fees
charged by the guardian in 1987 and 1988. [The Board]
considered them reasonable in view of the amount of work
involved. At its fourth meeting it took note of the
[District Court's] interim decision in respect of [the
applicant's request for a change of guardian and a
revocation of the guardianship]. At its fifth meeting it
pronounced itself on [the guardian's] suitability for his
duties.
In 1990 [the Board], at the request of [the President of
the District Court], proposed attorney-at-law [E.R.] to be
[the applicant's] guardian ad litem in the proceedings
before the District Court pertaining to [the requested]
extension of his placement under guardianship. Following an
enquiry by [the President of the District Court] [the
Board] further requested [the guardian to submit] a written
explanation regarding a payment order. In considering the
settlement of the accounts [for 1989] [it] further decided
to request clarification as to the payment of [the
applicant's] debts. Subsequently [it] approved the
settlement. [It] further considered a request by the
guardian to take out certain loans. It [finally] supplied
a clarification requested by [the President of the District
Court] in respect of fees paid to the guardian, and replied
to [the President's] enquiry regarding [the applicant's]
conditions of living.
In 1991 [the Board] considered matters relating to [the]
guardianship on ten occasions. [It] took note of the
Supreme Court's decision [of 24 January 1991] and supplied
the Deputy Ombudsman with an account of its supervision of
the guardianship. [It] further considered the guardian's
request for permission to take out a loan. It examined and
approved the settlement of the accounts for 1990 and
granted the guardian permission to take out a loan. [It]
further considered a proposal by [the President of the
District Court] that with the guardian it make arrangements
for [the applicant's] rehabilitation. [It] supplied the
District Court with further clarification of measures taken
by the guardian in connection with the settlement of
accounts. At the guardian's request it further pronounced
itself on a proposal to draft a shore or land parcelling
plan, and supplied a further account requested by the
Deputy Ombudsman.
The extracts of [the Board's] minutes clearly show that at
the guardian's request it has decided on various matters
relating to the administration of [the applicant's]
property. [It] has inspected the settlement of the
accounts presented to it and twice it has on its own
initiative requested clarification of the administration of
[the applicant's] possessions. [It] has also replied to
enquiries regarding the guardianship as well as to requests
addressed to it by [the applicant] himself.
It further appears ... that [the applicant's] conditions of
living have been such as described in [Ms. Kauppinen's]
petition. These conditions, however, are due to [the
applicant's] own choice and volition. [He] has at his
disposal a home help service working in a manner chosen by
himself as well as rehabilitation and medical services of
the Public Health Centre.
When assessing the supervisory activities of [the Board]
account must be taken of the fact that [the applicant] has
had a considerable amount of possessions and, in addition
to pension incomes, also other revenue. Regard must also be
had to the fact that [he] has been extremely dissatisfied
with his guardian and that justified arguments have been
made from many quarters that his rehabilitation has been
inadequate and his living conditions poor.
In spite of this [the Board] has not, on its own
initiative, taken any steps in order to assess, for
example, the propriety of [the applicant's] circumstances
and rehabilitation. In replying to enquiries regarding the
guardianship [it] has heard the guardian and then conveyed
his statements to the enquiring authority. [The Board's]
positions contain hardly any independent assessment of [the
applicant's] interests.
When supervising [the] guardianship [the Board] should have
taken a detailed and independent stand as to, for example,
the arrangements made for [the applicant's] rehabilitation
and conditions of living. In view of [his] possessions,
education and previous circumstances ... [the Board] should
have considered [the applicant's] possibility to undergo
private rehabilitation. Under Section 42 of [the 1898 Act]
... the ward's possessions must be administered in such a
way that the property and any proceeds deriving from it may
be used for his benefit. On the basis of the estimated
proceeds of [the applicant's] possessions alone the option
of using a private rehabilitation service would have been
available.
Questions pertaining to the administration of possessions
involve considerations of expediency the appraisal of which
is outside my competence as a legality supervisor. For this
reason I will not state any further position on this point.
In my view, however, [the Board] should also have made a
detailed assessment of the propriety of the administration
of [the applicant's] possessions.
[S.P.] has been a member of the Municipal Board
(kunnanhallitus, kommunstyrelsen) of Askola during both the
present and the previous electoral period. Given the
independent position of a Guardianship Board I do not
consider that [such a member] is obliged to refrain from
guardianship duties or that [a guardian] should resign from
a Municipal Board. In my view, however, it hardly enchances
the supervisory abilities of a Guardianship Board if a
guardian ... is an elected representative occupying a
position of trust on a superior level in the administration
of the municipality. The more influential this person is,
the more difficult it will be for the Guardianship Board to
implement its supervisory function.
Although a Municipal Board has no authority to issue
general instructions or specific orders affecting a
Guardianship Board and even though [the applicant's
guardian] has been re-appointed [his] guardian ... a member
of a Municipal Board serving as a guardian under the
supervision of a Guardianship Board is not a satisfactory
arrangement. Especially if the municipality has an Official
Guardian (virkaholhooja, tjänsteförmyndare) it should be
considered, as an alternative, to entrust him with [the
guardian's] duties, thereby ensuring both expertise and
practical opportunities of supervision.
In this connection I also call attention to Section 17,
subsection 2 of [the 1898 Act] according to which nobody is
to be placed under guardianship if his interests may be
adequately safeguarded by the appointment of an
administrator (uskottu mies, god man) to take care of his
interests. As in [the applicant's] case the need was
primarily to take care of [his] possessions the appointment
of an administrator [under Section 17, sub-section 2] and
Section 66 ... could have been an adequate measure for the
protection of his interests. This matter, however, has just
been decided by a binding decision of the Court of Appeal
of Kouvola of 18 September 1990 and I do not consider there
to be sufficient grounds for requesting an annulment of
that decision.
For the above reasons I conclude that [the Board] has not,
in supervising [the applicant's] guardianship, shown the
thoroughness, activity or independence required by [his]
situation and possessions.
In my consideration of [the Board's] acts I also observe
that there has existed and still exists a lack of national
guidance in respect of the administration of guardianships.
Due to this the municipal Guardianship Boards have lacked
[guidelines and supervision] assisting them in their work.
Taking this into consideration I will merely bring my
opinion regarding the deficiencies in its work to the
notice of [the Board] and stress the importance of
supervision by [the Guardianship Boards] in situations of
the kind as in [the applicant's] case, where there is
disagreement between the guardian and his ward, where the
latter has considerable possessions and where the
arrangement of his care and rehabilitation is particularly
difficult.
...
Nothing has been disclosed in this case calling for further
investigations of the acts of [the District Court].
...
In this case a deficiency has clearly emerged: the lack of
a national guardianship administration. The Guardianship
Boards have neither directives, guidelines or expert
assistance at their disposal, nor are they being
supervised. This leads to a situation where [a Board] is
practically unable to arrange a proper supervision of
guardianships of [the applicant's] kind, where the ward has
considerable possessions and the administration of his
interests is also otherwise difficult. The provisions of
[the 1898 Act] are partly outdated and an aggravating
factor is that its requirement of good care of possessions
is fulfilled [already] if their value is preserved.
I have therefore made a proposal to the Council of State
(valtioneuvosto, statsrådet) to the effect that it should
speed up the current reform of [the 1898 Act].
..."
Full & Egal Universal Law Academy