SHAKULINA v. RUSSIA and 5 other applications

Communicated on 22 June 2015

FIRST SECTION

Application no. 24688/05
Lyudmila SHAKULINA against Russia
and 5 other applications
(see list appended)

The applicants are Russian nationals.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 24688/05, Shakulina v. Russia

The application has been lodged on 21 June 2005 by Ms Lyudmila Shakulina who was born on 1 October 1954 and lives in St. Petersburg. She is represented by Mr D. Bartenev, a lawyer practicing in the same city.

(a) Incapacitation proceedings in 2003-2004

In 2001 the applicant was diagnosed with a chronic paranoid mental disorder and placed, by a judicial order, in a psychiatric hospital for involuntary treatment. She stayed in the hospital for almost two years, having then been transferred to out-patient care in May 2003. On 28 November 2008 the Vyborgskiy District Court of St. Petersburg cancelled the applicant’s involuntary out-patient treatment.

On 23 April 2003 the applicant’s daughter sought to declare the applicant legally incapable. A psychiatric assessment to which the applicant was subjected on 23 January 2004 upon a court order showed that she suffered from paranoid schizophrenia. At the same time psychiatrists noted that her intellectual abilities and communication skills were not significantly impaired.

On 5 April 2004 the Vyborgskiy District Court of St. Petersburg held a hearing in absentia and declared the applicant legally incapable. The judgment, insofar as relevant, read as follows:

“...

The plaintiff, the daughter of [the applicant], asked the court to declare [the applicant] legally incapable because she has mental disorders, stays for a long time in a psychiatric hospital, and exhibits strange behaviour.

Evidence collected in this case supports the request: report no. 136 of out-patient forensic psychiatric assessment on 23 January 2004 states that [the applicant] cannot understand the meaning of her actions or govern them and requires guardianship.

In the hearing the prosecutor has supported the request.

Representatives of [the social services] and of the plaintiff also consider that the request should be granted.

...

On the basis of Article 29 of the Civil Code of the Russian Federation a court may declare a person legally incapable, if he or she, due to psychiatric disorder, cannot understand the meaning of his or her actions or govern them.

Having said that, the court declares [the applicant] incapable and places her under the guardianship in accordance with Articles 194-199, 284, 285 of the Civil Procedure Code of the Russian Federation ...”

The applicant submitted that she had only learnt about that judgment from her daughter on 19 April 2004. Three days later she asked the court to restore the time-limit for filing an appeal as she had not been informed about the court hearing and the judgment of 5 April 2004.

On 29 April 2004 the District Court returned the applicant’s statement of appeal because she had missed the time-limit for lodging it and had not asked to restore it. However, it was not until 15 May 2004 that the applicant found out about the decision of 29 April 2004. She did not challenge the decision, having been convinced that there were no prospects of success as she had again been informed of the decision outside the time-limit set to appeal.

On 20 May 2004 the applicant re-submitted her appeal against the judgment of 5 April 2004 together with the renewed motion to restore the time-limit for filing the appeal.

On 11 October 2004 the District Court rejected the applicant’s motion. The judge clarified that he had not summoned the applicant because the experts in their report of 23 January 2004 had established that the she suffered from a mental disorder.

The applicant appealed. She argued that she had missed the time-limit as she had not been called to the court hearing and had not been duly notified of the judgment stripping her of legal capacity. The applicant further argued that her mental state had never been assessed as to determine whether she had been fit to take part in the court proceedings. Having cited the experts’ findings that she had maintained her intellectual and communication abilities, the applicant stressed that she had been fit to effectively participate in the court hearing.

On 22 December 2004 the St. Petersburg City Court dismissed the applicant’s appeal, having endorsed the reasoning of the decision issued on 11 October 2004. In particular, the City Court noted that while the applicant had received a copy of the judgment of 5 April 2004 on 19 April 2004, she had only filed her appeal statement on 20 May 2004.

(b) Ruling of the Constitutional Court of the Russian Federation

On 27 February 2009 the Constitutional Court of the Russian Federation declared unconstitutional the practice of legal capacity divestment in the absence of persons concerned unless their absence resulted from specific circumstances (a threat posed by a person to himself or to others, health problems, etc.). It further banned the practice barring, should a guardian object, incapacitated persons from lodging an appeal against a legal incapacity decision. The Constitutional Court also clarified that only a court could order an incapacitated person’s involuntary treatment even if that person’s guardian had consented to hospitalisation.

(c) Re-opening of the applicant’s case in 2009

On 8 June 2009 the applicant sought the re-opening of the incapacitation proceedings in view of newly discovered circumstances, such as the judgment of the Constitutional Court of 27 February 2009.

On 27 July 2009 her application was dismissed. The Vyborgskiy District Court held that the applicant had not been a party to the proceedings before the Constitutional Court and had failed to submit evidence that her participation in the incapacitation proceedings could not endanger her own life and health or the lives and health of others. The applicant appealed.

On 24 September 2009 the St. Petersburg City Court quashed the judgment of 5 April 2004 and remitted the case for a fresh examination. The City Court found that in 2004 the applicant had not been summoned to a court hearing and the courts had not examined her ability to participate in it. Given the unconstitutional nature of that omission, the City Court held that the applicant was not required to prove her ability to participate in the hearings. It also concluded that the unconstitutional nature of the legal provision on the basis of which the applicant’s case had been decided, the proceedings should be re-opened and the matter should be examined anew.

On 26 November 2009 the District Court discontinued the proceedings on the incapacitation issue as the applicant’s daughter, the plaintiff, had failed to attend.

(d) The applicant’s confinement to a psychiatric hospital in 2008. Problems of communication with a lawyer

On 7 March 2008 an emergency doctor was called to attend to the applicant and found that she was to be admitted to a psychiatric hospital. The applicant was transported to psychiatric hospital no. 3 in St. Petersburg. A psychiatrist examined the applicant on admission to the hospital and confirmed that she was in need of in-patient care.

On 10 March 2008 the applicant’s brother, who was her guardian at the relevant time, consented to the applicant’s hospitalisation. Four days later his guardianship status was cancelled and transferred to the hospital which, again, already in the capacity of the applicant’s guardian, confirmed the need for her involuntary psychiatric confinement.

According to the applicant, the hospital dismissed her requests for release and did not allow her to meet a lawyer. It appears that between June 2008 and March 2009 the applicant was not allowed to see visitors, and could not use a mobile phone or send correspondence.

The applicant’s lawyer lodged a complaint against the hospital, having argued that he had been prevented from communicating with client in private. The lawyer supported his complaint with a copy of the power of attorney that the applicant had issued to him on 21 June 2005. On 9 February 2009 the Primorskiy District Court of St. Petersburg dismissed the complaint, having noted that the applicant lacked legal capacity to appoint a lawyer.

On 10 March 2009 an expert commission examined the applicant and concluded that she suffered from schizophrenia with paranoid syndrome. Having concluded that the applicant was legally incapable and had no guardian, they further stressed a court order was necessary to authorise her involuntary psychiatric care.

On the same day the Primorskiy District Court allowed the applicant’s involuntary placement in a psychiatric hospital. It referred to her medical history, the experts’ report of 10 March 2009 and opinion of her attending doctor. The applicant attended the hearing but, for unknown reasons, was removed from it during the pleadings of the representative of the hospital. Court-appointed counsel representing the applicant consented to the applicant’s confinement. The applicant argued that she had been unable to invite a lawyer of her choice to the hearing.

On 21 April 2009 the St. Petersburg City Court quashed the judgment of 9 February 2009, having flagged a violation of the counsel’s right to meet with the applicant in private.

The applicant’s lawyer met with the applicant on 25 May 2009 who informed him of the authorisation for her involuntary hospitalisation on 10 March 2009.

On 8 June 2009 the applicant asked the court to restore the time-limit for bringing an appeal against the decision of 10 March 2009. On 30 June 2009 the District Court rejected the request.

In August 2009 the hospital informed the applicant that her daughter became her official guardian and that the daughter objected to her release. It appears that the applicant’s opinion on the issue of guardianship was never sought.

On 15 September 2009 the St. Petersburg City Court quashed the decision of 30 June 2009 and restored the time-limit for filing the appeal against the judgment of 10 March 2009.

On 30 September 2009 the City Court examined the appeal and found the applicant’s involuntary treatment lawful.

It is not clear whether the applicant is still being kept in the hospital.

2. Application no. 62679/11, Delova v. Russia

The application has been lodged on 15 September 2011 by Ms Irina Borisovna Delova who was born on 23 February 1968 and lives in St. Petersburg. She is represented by Mr D. Bartenev, a lawyer practicing in the same city.

Since birth the applicant has suffered from cerebral palsy. She is wheelchair-bound and uses gesture to communicate.

In 1968 the applicant was admitted to an orphanage for children with intellectual disabilities. Since 1982 she has lived in psycho-neurological social care home no. 3 (thereafter – the social care home) in St. Petersburg. Having been diagnosed with mental retardation, she did not receive any educational assistance until 2000 when she took part in rehabilitation activities organised by volunteers and learned to read and write.

(a) Incapacitation proceedings

On 12 December 2007 the social care home filed a motion with a court seeking the applicant’s legal incapacitation.

On 28 January 2010 the Petrodvortsovyy District Court of St. Petersburg authorised the assessment of the applicant’s mental capacity in psychiatric hospital no. 6 in St. Petersburg. It appears that, upon District Court’s instruction, an expert psychiatric commission was to include two independent experts selected by the applicant. The latter instruction was not followed through with the hospital having failed to call on the applicant’s experts.

Two separate expert reports were prepared:

(a) on 24 March 2010 the hospital issued its report;

(b) on 5 October 2010 two independent experts of the applicant’s choice prepared a separate report.

The hospital’s report stated that the applicant suffered from mild intellectual retardation (oligophrenia). It noted that since 2000 the applicant was taking part in the rehabilitation activities and her condition exhibited positive dynamics. However, a significant mental impairment prevented the applicant’s sufficient understanding or her capacity to make, communicate and control responsible decisions and actions, including in civil matters such as real estate transactions, family and marriage relations and assessment of her medical needs. The experts noted that the applicant was able, with assistance, to determine and perform simple everyday tasks, such as to dispose of small amounts of money and to choose her leisure activities taking into account her physical abilities.

In its turn, the expert report commissioned by the applicant and issued on 5 October 2010 also indicated that the applicant had a mild intellectual disability resulting in her being in need of assistance with complex legal issues such as real estate. At the same time the experts concluded that the disability did not impair the applicant to the extent that she lacked sufficient capacity to understand or control her actions in everyday transactions.

On 11 November 2010 the District Court declared the applicant legally incapacitated. It noted that in view of the fact that the Russian law did not provide for partial incapacitation to take into account the degree of a person’s mental disorder, it had no alternative but to deprive the applicant of her full legal capacity.

On 17 March 2011 the St. Petersburg City Court dismissed the applicant’s appeal, having fully endorsed the District Court’s reasoning.

(b) Ruling of the Constitutional Court of the Russian Federation and subsequent legal developments

On 27 June 2012 the Constitutional Court of the Russian Federation (the “Constitutional Court”) accepted the applicant’s complaint challenging the incapacitation provisions and declared them unconstitutional in view of their failure to provide for alternatives to total incapacitation taking into account a degree of a mental disorder. The Constitutional Court found that total incapacitation could only be possible when other measures of protection were insufficient. It instructed the Parliament to amend the relevant legal provisions by 1 January 2013.

The Constitutional Court indicated that courts should continue applying the existing norms until the adoption of amendments, having stressed that incapacitation, as a legal instrument, was constitutional and sought to protect interests of mentally-ill persons , as well as others around them.

On 30 December 2012 the Russian Civil Code was amended, having provided, inter alia, for partial incapacitation of persons suffering from mental disorders but maintaining their capacity to understand and control their actions, even if with assistance. The amendment entered into force on 1 March 2015.

(c) Re-examination of the applicant’s case

On 26 March 2013 the District Court remitted the applicant’s case for a fresh examination following the Constitutional Court’s ruling of 27 June 2012.

The applicant argued that, even though the relevant amendments had not yet entered into force, her full incapacitation was unnecessary. In particular, she had no valuable assets and lived in a social care home under permanent supervision.

On 6 August 2013 the District Court confirmed its previous decision stripping the applicant of her full capacity, having stated that new amendments had not yet entered in force. The court again relied on the expert report of 24 March 2010.

On 28 November 2013 the St. Petersburg City Court upheld the judgment on appeal.

3. Application no. 51907/13, Stavitskiy v. Russia

The application has been lodged on 26 July 2013 by Mr Yuriy Mikhaylovich Stavitskiy who was born on 21 February 1977 and lives in the village of Tonnelnyy, Stavropol Region.

(a) Incapacitation proceedings

On 29 June 2009 the Promyshlennyy District Court of Stavropol, acting on a motion by the applicant’s mother and in the applicant’s absence, stripped him of legal capacity.

In June 2010, against his will, the applicant was admitted to the Nadzornenskiy psycho-neurological dispensary (the “PND”) which on 28 July 2010 became his legal guardian.

(b) Restoration of legal capacity

In October 2012 the applicant sought the restoration of his legal capacity.

On 29 November 2012 the Kochubeyevskiy District Court of the Stavropol Region commissioned a psychiatric expert examination of the applicant. Five questions were put to the experts:

(a) whether the applicant suffered from any psychological disorder;

(b) whether he was able to comprehend and control his actions;

(c) whether there were any improvements of his mental health;

(d) whether the grounds which called for the applicant’s incapacitation in the first place, still persisted;

(e) whether he was fit to participate in the court proceedings.

On 12 February 2013 three experts from the Stavropol regional psychiatric hospital no. 1 issued a report which, insofar as relevant, stated as follows.

(i) The overview of the applicant’s personal and medical history

The applicant’s father was an alcoholic who had committed a suicide. Therefore, the applicant’s medical history involved psychopathological heredity factors. During his military service in the 90s the applicant had taken part in military operations in the Chechen Republic where he had sustained a brain contusion. In 2000 he had lost vision in the left eye as a result of a beating. He had started abusing alcohol. In 2001 in another fight he had received another head injury resulting in a complete loss of vision in both eyes.

On 28 May 2002 a forensic psychiatric expert examination, carried out in the course of criminal proceedings instituted against the applicant on charges of, inter alia, disorderly behaviour and property destruction, had established that he had not suffered from a mental disorder. In 2003, on a number of occasions, the applicant had been admitted for in-patient care to psychiatric medical facilities, but he had failed to follow the treatment and had continued abusing alcohol.

Having applied for a psychiatric assistance to a hospital, he had been diagnosed with organic personality disorder in connection with concomitant illnesses (consequences of repeated closed cranio-cerebral injuries and alcohol addiction syndrome) and a chronic psycho-organic syndrome.

During an expert examination initiated by the hospital upon the request by the applicant’s mother on 27 March 2009, it had been established that the applicant had not exhibited any psychotic disorders, albeit he had been confused, had had slow reactions, had suffered from occasional memory loss and mood swings, had demonstrated defensive attitude, had been indifferent to his personal situation. The experts had recorded a decrease in his communication skills, abstract thinking and ability to find constructive solutions to problems and had concluded that he had suffered from organic amnestic syndrome and had been unable to comprehend and control his actions. On 5 May 2009 the applicant was released from the hospital. That expert report served as the basis for the decision of 29 June 2009 by which Promyshlennyy District Court had divested the applicant of legal capacity.

Following the release from the hospital, the applicant had failed to follow his treatment, had continued abusing alcohol, had been aggressive towards his mother, and had become an occasional vagrant and beggar. Between 1 June and 1 October 2009 and then from 5 October 2009 to 21 June 2010 he had undergone in-patient treatment in the psychiatric hospital. On 21 June 2010 he had been admitted to the PND for treatment.

(ii) Psychiatric expert conclusions

That part of the report contained expert assessment of the applicant’s mental capacity upon his examination on 17 January 2013. In particular, the experts had noted that the applicant had not been disoriented and had fully understood the general purpose of the psychiatric care, albeit had not considered himself mentally ill. He had insisted on the restoration of his legal capacity as he complained of the circumvention of his rights by the PND. The applicant had been verbally expressive, had been unable to recall correctly certain periods of his life, had been a slow-thinker and had tried to provoke empathy. The experts had been of the view that he had lacked ability to critically assess his condition and alcohol-related problems and had construed unrealistic plans regarding his future following the release from the PND (“he had intended to work and to have a family”). With reference to their findings in 2009, the experts again concluded that the applicant had suffered from an organic personality disorder in connection with concomitant illnesses. They further noted that the applicant’s in-patient treatment in the psychiatric facilities with the limited access to alcohol had led to the stabilisation of his condition and certain improvements in his cognitive and communication abilities. However, the applicant had still been unable to critically assess his disease, had lacked social adaptation skills, had suffered from irregular emotional conditions and had been unable to understand or control his actions. The experts also stressed that the applicant had been fit to take part in court hearings.

At a court hearing on 6 March 2013 the applicant and his lawyer supported the motion for the restoration of legal capacity.

On 6 March 2013, having heard an expert from the hospital commission who supported the expert conclusions and the parties to the proceedings, including a prosecutor and representatives of the social services and of the PND, the District Court dismissed the applicant’s motion. It heavily relied on the conclusions by the hospital expert commission.

On 4 June 2013 the Stavropol Region Court upheld that decision on appeal.

4. Application no. 69488/13, Lanskikh v. Russia

The application has been lodged on 30 October 2013 by Mr Vladimir Petrovich Lanskikh who was born on 9 July 1952 and lives in the village of Lugovoy, Moscow Region. He is represented by Mr Y. Yershov, a lawyer practicing in Moscow.

(a) Incapacitation proceedings

In 2008 the applicant’s son applied to a court with a motion seeking to deprive the applicant of legal capacity and to place him under the guardianship. The son argued that the applicant was a long-term alcoholic, that he had become aggressive, and occasionally suffered from a memory loss. The applicant was receiving treatment in psychiatric hospital no. 1.

On 29 September 2008 the Koptevskiy District Court of Moscow invited the applicant to present his written pleadings and to attend a hearing. The applicant, however, submitted that he had not been informed about the proceedings and that the District Court had not checked whether he had been notified of the proceedings and whether he had been able to attend.

On 14 October 2008 the District Court commissioned a psychiatric expert examination of the applicant to be performed by psychiatric hospital no. 1. Experts were to answer the following questions:

(a) whether the applicant had a mental disorder;

(b) whether he was capable to understand and control his actions; and

(c) whether he needed a guardian.

The hospital received the District Court’s expert examination order on 13 November 2008. On the following day it issued a report, having relied on the applicant’s medical history and his visual examination. The expert findings, insofar as relevant were as follows.

The applicant had no inherited psychic pathologies and had never been registered in a psycho-neurological dispensary. At the age of 18 he had started abusing alcohol and had become a heavy drinker. He had been aggressive and violent towards his family members. On 28 July 2008 the applicant had been admitted to a hospital on suspicion of a stroke. After 5 September 2008 he had been restless, delusional and aggressive and had had memory losses. He had been diagnosed with an acute condition of medium-stage chronic alcoholism, chronic pancreatitis, alcohol withdrawal syndrome accompanied by delirium, and psychopathic personality disorder. On 13 September 2008 the applicant had been transferred to the psychiatric hospital.

A visual examination of the applicant had disclosed that he had not been disoriented. He had not truly understood the purpose of the expert examination but had remained unemotional and indifferent. He had been unable to grasp complicated questions and had exhibited memory loss. The applicant had admitted to being a heavy drinker but had not critically assessed his addiction and behaviour. He had insisted on having telepathic abilities and hearing voices.

Tests had revealed that he had been capable to understand and remember instructions, and had readily performed the tasks put before him by the experts, albeit had performed them inconsistently and in a subjective manner. The experts concluded that he had been unable to adequately and thoroughly comprehend matters and to conduct them in a constructive way.

The final diagnosis had been delusional schizoid personality disorder due to peripheral vascular and toxic diseases. The applicant had, thus, been unable to understand and control his actions.

The experts had not touched upon the applicant’s ability to attend the hearing and had refused to pronounce on the necessity of the guardianship, having considered the later issue falling outside of their competence.

On 27 January 2009 the District Court held a hearing on the merits. The applicant’s son, who attended the hearing, maintained his claims. The prosecutor also appeared to support the motion. Representatives of the psycho-neurological dispensary where the applicant resided and of the social services did not attend.

The District Court relied on the expert diagnosis of delusional schizoid personality disorder and their finding that the applicant was incapable to understand or control his actions. It therefore declared the applicant legally incapable. As no appeal was filed against that judgment within the ten-day time-limit established by the law, the judgment became final.

(b) Appeal against the judgment of 27 January 2009

On 20 January 2013 the applicant’s representative lodged an appeal against the judgment of 27 January 2009, having asked a court to restore the time-limit for filing the appeal as the applicant had not been informed about the proceedings, had not attended them and had not received a copy of the judgment.

On 14 February 2013 the District Court restored the time-limit for lodging an appeal as the applicant had never received a copy of the judgment of 27 January 2009.

The applicant’s son challenged the decision of 14 February 2013.

On 10 September 2013 the Moscow City Court quashed that decision and dismissed the applicant’s request to restore the time-limit. It indicated that the applicant had had a mental disorder, had been in in-patient care in the psychiatric hospital and had not been fit to participate in the proceedings in which the issue of his legal capacity had been determined. A copy of the judgment of 27 January 2009 had been forwarded to the hospital where he had been kept and to the social services. The Moscow City Court concluded that the procedural rules had been complied with and that there was no reason to afford the applicant an opportunity to challenge the final judgment of 27 January 2009.

5. Application no. 69523/13, Lukin v. Russia

The application has been lodged on 30 October 2013 by Mr Nikolay Nikolayevich Lukin who was born on 22 April 1978 and lives in the village of Lugovoy, Moscow Region. He is represented by Mr Y. Yershov, a lawyer practicing in Moscow.

(a) Incapacitation proceedings in 2003

In 2003 psycho-neurological dispensary no. 3 (“the PND”) sought to declare the applicant legally incapable, having argued that for many years he suffered from schizophrenia, had been repeatedly admitted for psychiatric in-patient care and had resided in a care facility since 1995. The PND claimed that the mental illness impaired the applicant’s capacity to understand and control his actions.

A judge-ordered expert examination of the applicant was performed without the actual assessment of the applicant. According to the expert report issued on 30 June 2003 the applicant demonstrated moderate mental retardation and alcohol-dependence syndrome. The experts concluded that he was unable to comprehend and control his actions and had to be placed under the guardianship.

On 7 August 2003 the Dmitrovskiy City Court of the Moscow Region divested the applicant of full legal capacity. The court hearing was only attended by a prosecutor who had supported the incapacitation claim. Neither the applicant nor a representative of the PND was present.

The judgment of 7 August 2003 was not appealed against and became final.

(b) Incapacitation proceedings in 2013

It was not until 2012 that the applicant learned about his having been stripped of legal capacity. On 24 December 2012 his representative asked the District Court to restore the time-limit to appeal against the judgment of 7 August 2003.

On 22 January 2013 the District Court dismissed the request.

On 29 May 2013 the Moscow Regional Court examined the applicant’s appeal against the decision of 22 January 2013. The applicant and his court-appointed lawyer, Mrs Z., as well as representatives of the PND and of local social protection services attended the hearing which lasted twenty-five minutes.

The Moscow Regional Court restored the time-limit and in the same hearing examined the merits of the applicant’s appeal against the judgment of 7 August 2003.

Having found that in 2003 the District Court had examined the applicant’s case in his absence despite the absence of any information on the applicant’s ability to attend, the Regional Court quashed the judgment of 7 August 2003. It proceeded to the examination of the merits of the case itself, and heard representatives of the PND and of the social services in support of the request to strip the applicant of the legal capacity.

The applicant, in his turn, insisted on the restoration of his legal capacity and the flowing right to work and found a family. He argued that the experts had erred in their assessment of his mental capacity.

Without ordering a new psychiatric examination of the applicant, the Regional Court confirmed the findings of the District Court in 2003 with the reference to the expert report prepared in the same year and declared the applicant legally incapacitated.

6. Application no. 51480/14, Berunenko v. Russia

The application has been lodged on 4 July 2014 by Ms Natalya Vasilyevna Berunenko who was born on 17 April 1971 and lives in Moscow. She is represented by Mr Y. Yershov, a lawyer practicing in Moscow.

On 4 September 2006 the Zuzinskiy District Court of Moscow, acting on a motion by the applicant’s mother, referred to an expert examination report and the applicant’s medical history, and in particular, her diagnosis of chronic schizophrenia and declared the applicant legally incapable. The applicant, who was kept in a psycho-neurological dispensary at the time, did not attend the hearing. A representative of the dispensary did not attend the hearing, but informed the court that they supported the motion to incapacitate. The same position was taken by a prosecutor present at the hearing. The court hearing lasted fifteen minutes.

The applicant only learned about that judgment in 2013. She asked the court to restore the time-limit to lodge an appeal in view of the District Court’s failure to inform her of the proceedings and to ensure her presence at the hearing.

On 24 October 2013 the District Court refused to restore the time-limit, having also noted that the Russian law in force at the material time had not called for the mandatory presence of the applicant at the court hearing. Moreover, a representative of the psycho-neurological dispensary where the applicant had resided at the time, had informed the District Court that the applicant had been told, without undue delay, that she had lost legal capacity. The District Court’s concluding remark concerned the existing possibility for the applicant to seek the restoration of her legal capacity in court.

On 28 January 2014 the Moscow City Court upheld the decision of 24 October 2013 on appeal.

COMPLAINTS

Application no. 24688/05, Shakulina v. Russia

1. The applicant complained under Article 5 §§ 1 and 4 of the Convention that her confinement in the psychiatric hospital had been unlawful and that she had been unable to obtain judicial review of her involuntary hospitalisation.

2. The applicant further complained under Article 6 of the Convention that she had not been afforded an opportunity to attend hearings concerning her legal capacity and she had not been able to appeal against the relevant judgment.

3. In addition, the applicant argued under Article 8 of the Convention that she had been stripped of full legal capacity for over five years, had been placed in the psychiatric hospital and had had no say in the appointment of the guardian.

4. The applicant finally complained under Article 34 of the Convention that she had been prevented from consulting her lawyer for almost a year and that she had been unable to effectively exercise her rights, including her right to file an application before the Court in respect of her unlawful hospitalisation.

Application no. 62679/11, Delova v. Russia

The applicant complained under Article 8 of the Convention that she had been deprived of her total legal capacity.

Application no. 51907/13, Stavitskiy v. Russia

The applicant complained that he had been deprived of his legal capacity without any alternative solution to his situation having been envisaged by the authorities.

Application no. 69488/13, Lanskikh v. Russia

The applicant complained about his full legal incapacitation and lack of a fair trial. He invoked Article 6 of the Convention.

Application no. 69523/13, Lukin v. Russia

1. The applicant complained under Article 6 of the Convention that the appeal hearing on 29 May 2013 had been too short and had not afforded him an adequate opportunity to state his case as it had been scheduled without any delay. He was also unhappy with the fact that the judgment of the Moscow Regional Court had been based on the ten-year-old expert findings which had no relevance to the current state of his mental health and his legal capacity.

2. The applicant also complained that he had been deprived of full legal capacity.

Application no. 51480/14, Berunenko v. Russia

The applicant complained under Articles 6 and 8 of the Convention that she had not been afforded an opportunity to attend the court hearing in which she had lost her full legal capacity.

COMMON QUESTIONS

1. Has there been a violation of the applicant’s right to respect for private life contrary to Article 8 of the Convention in the light of the domestic court’s decision to declare him or her legally incapable?

2. Has the applicant’s situation evolved, in view of the Constitutional Court’s rulings of 27 February 2009 and/or 27 June 2012? Did the applicant’s full incapacitation comply with the substantive and procedural requirements of the Russian law, as interpreted by the Constitutional Court?

3. In 2009-2015 did the Russian law or practice envisage any alternative to stripping a person of full capacity? The parties are requested to provide information on the Russian courts’ cases for the years of 2009-2015 in which an issue of legal capacity/incapacity of persons suffering from mental disorders has been determined (approach, statistics, etc.).

CASE SPECIFIC QUESTIONS

Application no. 24688/05

1. Was the applicant’s hospitalisation for involuntary treatment “lawful” and “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 (e) of the Convention? In particular, did the procedure of her confinement to a psychiatric hospital provide sufficient guarantees against arbitrariness (see Winterwerp v. the Netherlands, 6301/73, 24 October 1979, § 45, Series A no. 33)?

2. Did the national authorities authorising the applicant’s involuntary placement in a psychiatric hospital demonstrate, as required by the applicable provisions of the Russian law, that

(a) the applicant’s disorder was “severe”;

(b) the applicant’s condition posed “an immediate danger to herself or others” and/or “significant damage to [her] health due to the deterioration or aggravation of the psychiatric condition in the absence of psychiatric assistance”;

(c) there were no other less restrictive measures available?

3. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her confinement in the hospital, as required by Article 5 § 4 of the Convention? Were the court proceedings in 2009 by which the domestic courts authorised the applicant’s continued confinement fair and adversarial as required by Article 5 § 4 of the Convention? In particular, was the applicant provided with the effective legal assistance by court-appointed counsel? Did the domestic courts comply with their obligation to ensure due judicial review of the applicant’s involuntary hospitalisation?

4. Did the applicant have a fair hearing in the case concerning her legal capacity as required by Article 6 § 1 of the Convention? In particular, did the applicant have an effective “right to a court” given her absence from the proceedings and courts’ refusals to consider her appeals?

5. Has there been an interference with the applicant’s right to respect for her private life contrary to Article 8 § 1 of the Convention in view of her guardianship regime and confinement for involuntary treatment (a) during the period of time between 7 March 2008 and 10 March 2009 and (b) since 10 March 2009? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? The Parties are requested to provide information and relevant documents as to (a) what kind of treatment was prescribed to the applicant and (b) what kind of treatment did she receive in the hospital. Were alternative treatments available and/or considered in respect of the applicant’s health situation? Did the applicant have at her disposal an effective procedure by which she could challenge (a) her involuntary confinement in the hospital and (b) the hospital’s guardian function? Did the authorities make a sufficient effort to provide the applicant with a guardian, other than the hospital? If not, did this state of affairs and the double function of the hospital (guardian and detaining authority) comply with Article 8 § 1 of the Convention?

6. Did the applicant have an effective “right to a court” as required by Article 6 of the Convention in respect of her hospitalisation?

Applications nos. 69488/13, 51480/14

Did the applicant have a fair hearing in the case concerning his or her legal capacity, as required by Article 6 § 1 of the Convention?

Application no. 69523/13

Did the applicant have a fair hearing in the case concerning his legal capacity, as required by Article 6 § 1 of the Convention? Was the domestic court under an obligation to ask for a fresh expert examination of the applicant’s mental health during the 2013 round of proceedings?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by 

24688/05*

21/06/2005

Lyudmila SHAKULINA

01/10/1954

Saint-Petersburg

Dmitriy Gennadyevich BARTENEV 

62679/11*

15/09/2011

Irina Borisovna DELOVA

23/02/1968

Saint-Petersburg

Dmitriy Gennadyevich BARTENEV 

51907/13*

26/07/2013

Yuriy Mikhaylovich STAVITSKIY

21/02/1977

Tonnelnyy

69488/13*

30/10/2013

Vladimir Petrovich LANSKIKH

09/07/1952

Lugovoy

Yuriy Lvovich YERSHOV 

69523/13*

30/10/2013

Nikolay Nikolayevich LUKIN

22/04/1978

Lugovoy

Yuriy Lvovich YERSHOV 

51480/14*

04/07/2014

Natalya Vasilyevna BERUNENKO

17/04/1971

Moscow

Yuriy Lvovich YERSHOV

 

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