SHAKULINA AND OTHERS v. RUSSIA - 24688/05 (Judgment : Article 8 - Right to respect for private and family life : Third Section Committee) [2018] ECHR 464 (05 June 2018)

In case of Shakulina and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 15 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in six applications (nos. 24688/05, 62679/11, 51907/13, 69488/13, 69523/13 and 51480/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by six Russian nationals, Ms Lyudmila Shakulina, Ms Irina Delova, Mr Yuriy Stavitskiy, Mr Vladimir Lanskikh, Mr Nikolay Lukin and Ms Natalya Berunenko ("the applicants"), on various dates (see Appendix for details).

2. The first three applicants were represented by Mr D. Bartenev, a lawyer practising in St Petersburg and acting on behalf of the Mental Disability Advocacy Center (MDAC), a non-governmental organisation with its seat in Budapest. The other three applicants were represented by Mr Yu. Yershov, a lawyer practising in Moscow. Two of them, Mr Lanskikh and Ms Berunenko, had been granted legal aid. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. All of the applicants complained about divestment of their legal capacity. Four applicants (application nos. 24688/05, 69488/13, 69523/13 and 51480/14) complained of serious irregularities in the court proceedings whereby they had been deprived of their legal capacity. One applicant (application no. 24688/05) also complained of her involuntary confinement in a psychiatric facility.

4. On 29 June 2015 the above complaints were communicated to the Government and the remainder of applications nos. 24688/05, 62679/11, 51907/13, 69488/13 and 51480/14 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The list of applicants and the relevant details of the applications are set out in the appended table.

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

1. Incapacitation proceedings in 2003-04

7. On 5 April 2004 the Vyborgskiy District Court of St Petersburg ("the Vyborgskiy District Court") declared the applicant legally incapable in her absence. The applicant submitted that she had only learnt about that judgment on 19 April 2004. She lodged her appeal twice, accompanied by requests that the court reset the time-limit for lodging the appeals. On 11 October 2004 the Vyborgskiy District Court rejected the applicant's latest request that the court examine her appeal. On 22 December 2004 the St Petersburg City Court upheld that decision on appeal.

2. Reopening of the applicant's case in 2009

8. On 27 February 2009 the Constitutional Court of Russia declared unconstitutional the practice of divesting people of their legal capacity in their absence, unless their absence resulted from specific circumstances.

9. On 8 June 2009 the applicant sought the reopening of her case in view of the judgment of the Constitutional Court of 27 February 2009. After an initial refusal, on 24 September 2009 the St Petersburg City Court quashed the judgment of 5 April 2004 and remitted the applicant's case for a fresh examination.

10. On 26 November 2009 the Vyborgskiy District Court discontinued the incapacitation proceedings, as the plaintiff, the applicant's daughter, had failed to attend. The applicant thus regained her legal capacity.

3. The applicant's confinement in a psychiatric hospital in 2008

11. On 7 March 2008 an emergency doctor was called to attend to the applicant and found that she required hospitalisation. A psychiatrist examined the applicant on her admission to the hospital and confirmed that she was in need of in-patient care.

12. On 10 March 2008 the applicant's brother, who was her legal guardian at the relevant time, consented to her confinement. Four days later his status as a legal guardian was cancelled and transferred to the hospital. On 31 March 2008 the hospital, in that capacity, agreed to the applicant's involuntary confinement.

13. According to the applicant, the hospital dismissed her requests to be discharged, and she was not allowed to use a mobile phone, send correspondence or receive visitors. When the applicant contacted her lawyer allegedly seeking to update her application before the Court and to challenge her involuntary confinement, he attempted to meet her at the hospital on 13 March and 1 April 2008, but was refused permission to do so.

14. The applicant's lawyer then lodged a complaint against the hospital, asserting his right to communicate with his client. The lawyer supported his complaint with a copy of the power of attorney that the applicant had issued to him on 21 June 2005 for her application to the Court. On 9 February 2009 the Primorskiy District Court of St Petersburg ("the Primorskiy District Court") dismissed the complaint, having noted that the applicant lacked legal capacity to appoint a lawyer.

15. On 10 March 2009 an expert commission issued a two-page report diagnosing the applicant with schizophrenia. It relied on the applicant's medical history since 2001 and her state of health leading to her hospitalisation in 2008. The experts further stated that during her stay at the hospital, the applicant had been avoiding contact; she had been complaining about her confinement; she had remained suspicious and negative and had maintained her delusional ideas about her neighbours, doctors and other patients. They concluded that the applicant required further psychiatric treatment in the hospital.

16. On the same day the Primorskiy District Court held a hearing concerning the applicant's involuntary treatment in the psychiatric hospital. The applicant's doctor presented to the court the expert commission's report of 10 March 2009 and her own opinion confirming that the applicant needed compulsory treatment in the hospital. The applicant was absent from the courtroom during that presentation, but her State-appointed lawyer, Ms L., was present. After the presentation the applicant was brought into the courtroom and was informed about her rights. She then said that she wanted to go home and did not wish to continue her treatment. The judge did not ask her any other questions. Ms L.'s only intervention during the whole hearing was to state that she "had no objections" to the applicant's continued confinement in the psychiatric hospital. The Primorskiy District Court concluded that the applicant required involuntary treatment in the hospital.

17. On 21 April 2009 the St Petersburg City Court quashed the judgment of 9 February 2009, having flagged a violation of counsel's right to meet with his client. On 25 May 2009 the applicant met her lawyer.

18. On 8 June 2009 the applicant asked the court to reset the time-limit for lodging an appeal against the judgment of 10 March 2009. On 30 June 2009 the District Court rejected the request.

19. On 15 September 2009 the St Petersburg City Court quashed the decision of 30 June 2009 and reset the time-limit for lodging an appeal against the judgment of 10 March 2009. On 30 September 2009 the St Petersburg City Court examined the appeal and found the applicant's involuntary treatment lawful.

20. Once the applicant had regained her legal status on 26 November 2009 (see paragraph 10 above), she refused to continue her treatment in the hospital and was discharged on 31 December 2009.

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

1. Incapacitation proceedings

21. On 11 November 2010 the Petrodvortsovyy District Court of St Petersburg ("the Petrodvortsovyy District Court") declared the applicant legally incapable. It noted that in view of the fact that 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 an appeal lodged by the applicant, having fully endorsed the Petrodvortsovyy District Court's reasoning.

2. Re-examination of the applicant's case

22. On 27 June 2012 the Constitutional Court of Russia examined a complaint lodged by the applicant in relation to her incapacitation and invited Parliament to amend the legislation and introduce the possibility of partial incapacitation (see paragraph 39 below). On 30 December 2012 the Russian Civil Code was amended accordingly; the entry into force of the amendment was delayed until 1 March 2015 (see paragraph 40 below).

23. Following the Constitutional Court's ruling, on 26 March 2013 the Petrodvortsovyy District Court remitted the applicant's case for a fresh examination. However, on 6 August 2013 the Petrodvortsovyy District Court confirmed its previous decision stripping the applicant of her full capacity, having stated that the amendment to the law had not yet entered into force. On 28 November 2013 the St Petersburg City Court upheld the judgment on appeal.

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

24. On 29 June 2009 the Promyshlennyy District Court of Stavropol, acting in the applicant's absence, stripped him of legal capacity. The judgment of 29 June 2009 was not appealed against and it therefore became final.

25. In October 2012 the applicant sought the restoration of his legal capacity. On 6 March 2013 the Kochubeyevskiy District Court of the Stavropol Region ("the Kochubeyevskiy District Court") dismissed the applicant's request. On 4 June 2013 the Stavropol Regional Court upheld that decision on appeal.

26. On 25 July 2016 the Kochubeyevskiy District Court granted the applicant's application to be declared partially capable.

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

27. On 27 January 2009 the Koptevskiy District Court of Moscow (the "Koptevskiy District Court") declared the applicant legally incapable in his absence. The judgment of 27 January 2009 was not appealed against and it therefore became final.

28. On 20 January 2013 the applicant appealed against the judgment of 27 January 2009, having asked a court to reset the time-limit for lodging the appeal as he had not been informed about the incapacitation proceedings, had not attended them and had not received a copy of the judgment.

29. On 14 February 2013 the Koptevskiy District Court reset the time-limit for lodging an appeal. On 10 September 2013 the Moscow City Court quashed that decision and dismissed the applicant's request to have the time-limit for submitting his appeal reset.

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

1. Incapacitation proceedings in 2003

30. On 7 August 2003 the Dmitrovskiy District Court of the Moscow Region ("the Dmitrovskiy District Court") divested the applicant of full legal capacity in his absence. The judgment of 7 August 2003 was not appealed against and it therefore became final.

2. Incapacitation proceedings in 2013

31. The applicant allegedly learnt that he had been stripped of legal capacity only in 2012. On 24 December 2012 he asked the Dmitrovskiy District Court to reset the time-limit for lodging an appeal against the judgment of 7 August 2003. On 22 January 2013 the Dmitrovskiy District Court dismissed the request.

32. On 29 May 2013 the Moscow Regional Court examined an appeal lodged by the applicant against the decision of 22 January 2013. It reset the time-limit and at the same hearing examined the merits of an appeal lodged by the applicant against the judgment of 7 August 2003. Having found that in 2003 the Dmitrovskiy District Court had examined the applicant's case in his absence despite the lack of any information on the applicant's ability to attend, the Moscow Regional Court quashed the judgment of 7 August 2003. It then proceeded to re-examine the merits of the case. After having heard the parties and basing its findings on a medical expert report of 2003, the Moscow Regional Court again declared the applicant legally incapable.

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

33. On 4 September 2006 the Zyuzinskiy District Court of Moscow ("the Zyuzinskiy District Court") declared the applicant legally incapable. The applicant, who was being treated in a psycho-neurological facility at the time, did not attend the hearing.

34. The applicant allegedly only learned about that judgment in 2013. She asked the court to reset the time-limit for lodging an appeal in view of the lack of notification about the proceedings and her absence from the hearing.

35. On 24 October 2013 the Zyuzinskiy District Court refused to reset 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. On 28 January 2014 the Moscow City Court upheld the decision of 24 October 2013 on appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Deprivation of legal capacity

36. For a summary of relevant domestic law and practice concerning deprivation of legal capacity at the material time, see Shtukaturov v. Russia, no. 44009/05, §§ 46-59, ECHR 2008.

37. On 27 February 2009 the Constitutional Court of the Russian Federation declared unconstitutional the practice of depriving people of their legal capacity in their absence, unless their absence resulted from specific circumstances (a risk posed by a person to himself or to others, or health problems). It further proscribed the barring of incapacitated persons, should a guardian object, 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.

38. On 6 April 2011 Parliament amended the Civil Procedural Code of the Russian Federation, guaranteeing to those concerned a right to participate in incapacitation proceedings and to lodge appeals without their guardian's consent.

39. On 27 June 2012 the Russian Constitutional Court, in the process of examining a complaint by one of the applicants, Ms Delova (application no. 62679/11), declared unconstitutional provisions of the Russian law governing the process of stripping a person of legal capacity. The major dissatisfaction of the Constitutional Court was caused by the disregard in the law of various degrees of mental disorders and the absence of any alternatives to full incapacitation. The court considered total incapacitation as a measure of last resort and invited the legislators to introduce partial incapacitation as an alternative.

40. On 30 December 2012 Parliament amended the Russian Civil Code with the introduction of partial incapacitation. The amendment entered into force on 1 March 2015.

41. On 23 June 2015 the Plenary of the Supreme Court of Russia issued Ruling no. 25, drawing the attention of the national courts to the need to examine the nature and degree of a person's capacity to understand and control his or her actions when deciding on that person's legal status.

B. Involuntary psychiatric confinement

42. For a summary of relevant domestic and international law concerning involuntary psychiatric confinement, see Mifobova v. Russia, no. 5525/11, §§ 32-44, 5 February 2015.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

43. The applicants complained that they had been deprived of legal capacity in breach of Article 8 of the Convention, which 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."

A. Admissibility

44. In respect of application no. 24688/05 the Government asserted that Ms Shakulina had failed to submit her application within six months of the final decision in her case. The applicant did not comment on the matter.

45. The Court reiterates that, in accordance with its established practice and Rule 47 § 5 of the Rules of Court, as in force at the relevant time, it normally considers the date of the introduction of an application to be the date of the first letter indicating an intention to lodge an application and setting out, even summarily, its object. On the basis of the available documentary evidence, the Court notes the following. The national courts rendered the final decision on the applicant's legal incapacitation on 22 December 2004. The applicant submitted her first letter on 21 June 2005 by fax (received by the Court on the same day) and two copies by post (one reached the Court on 27 June 2005, while the second arrived on 19 July 2005). The date of the first submission, 21 June 2005, falls within the six-�month period running from the adoption of the final decision of 22 December 2004. On 8 July 2005 the Court invited the applicant to submit a completed application form within six weeks of receipt of the Court's letter. On 5 August 2005 the Court received the completed application form signed by the applicant and dated 20 July 2005. In such circumstances the Court concludes that the applicant has complied with the six-month requirement.

46. The Court notes that this complaint and the other five applicants' complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties' submissions

(a) The Government

47. The Government referred to the medical experts' reports to demonstrate that the applicants had been suffering from mental disorders and, thus, had been unable to understand and control their actions. The Government asserted that the courts' decisions to declare the applicants legally incapable had therefore been based on objective medical assessments and had been issued in compliance with the applicable substantive and procedural legal norms. They claimed that the applicants had represented a danger to themselves and other people and that the courts' decisions to divest them of legal capacity had therefore been necessary and proportionate.

48. In respect of the applicants whose legal status had been determined in their absence (Ms Shakulina, Mr Lanskikh, Mr Lukin and Ms Berunenko), the Government observed that the law at the material time had allowed the national courts to examine incapacitation cases in the absence of the applicants if their health situation so required.

49. The Government also pointed out that legislative amendments had been adopted in 2012-15 and that changes had taken place in domestic practice on the issue of legal capacity and related court proceedings (see paragraphs 37-41 above).

(b) The applicants

50. The applicants asserted that the courts' decisions to declare them fully incapacitated had been based solely on the fact that they had been diagnosed as suffering from mental disorders. However, the courts had not examined the applicants' particular circumstances or any other relevant factors. Nor had they verified the supporting evidence, if there was any at all. The applicants doubted that their incapacitation had pursued a legitimate aim as, contrary to the Government's claims, there had been no concrete evidence to show that they represented a danger to themselves or other people. Even assuming that the applicants had represented some danger, the Government had failed to explain how their incapacitation, in comparison to, for instance, compulsory psychiatric treatment, would have removed that presumed danger. Lastly, the applicants argued that the national courts had failed to examine any alternatives to their legal incapacitation and that the law had not provided for partial incapacitation. They concluded that the deprivation of their legal status had not been lawful and proportionate to the declared aim.

51. Four applicants (Ms Shakulina, Mr Lanskikh, Mr Lukin and Ms Berunenko) maintained their complaints that the court proceedings in respect of their legal status had been held in their absence.

2. The Court's assessment

(a) Whether there has been interference

52. The Court has previously held that deprivation of legal capacity constitutes a serious interference with a person's private life (see Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999; Shtukaturov, cited above, § 83; and Lashin v. Russia, no. 33117/02, § 77, 22 January 2013). The Court sees no reason to conclude otherwise in the present cases.

(b) Whether the interference was justified

53. The Court reiterates that any interference with an individual's right to respect for his or her private life will constitute a breach of Article 8 of the Convention unless it was "in accordance with the law", pursued a legitimate aim or aims under paragraph 2 and was "necessary in a democratic society" in the sense that it was proportionate to the aims sought.

(i) "In accordance with the law" and "legitimate aim"

54. The Court takes note of the applicants' position that their legal incapacitation was not lawful and did not pursue any legitimate aim. However, in the Court's opinion it is not necessary to examine those aspects of the cases in view of the following findings.

(ii) "Necessary in a democratic society"

(α) General principles

55. As a rule, in such a complex matter as determining someone's mental capacity, the national authorities should have a wide margin of appreciation because they have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see, mutatis mutandis, Bronda v. Italy, 9 June 1998, § 59, Reports of Judgments and Decisions 1998-IV; Matter, cited above, § 69; Shtukaturov, cited above, § 87; and Lashin, cited above, § 80).

56. The extent of the State's margin of appreciation depends on two major factors (see, for instance, Lashin, cited above, § 81).

57. First, the margin of appreciation will vary according to the nature of the issues and the importance of the interests at stake. Thus, very serious limitations in the sphere of private life (see Shtukaturov, cited above, § 88) or restrictions on the fundamental rights of a particularly vulnerable social group (see, for instance, Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011) may warrant stricter scrutiny.

58. Secondly, the Court has to examine the quality of the domestic procedure which resulted in the interference (see Shtukaturov, cited above, § 91, and Lashin, cited above, § 81). Although Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004).

59. The Court has previously examined various aspects of the judicial decision-making process determining a person's legal capacity. As to the procedural aspects, the Court took into account whether or not the person concerned had had a possibility to participate personally (see Shtukaturov, § 91, and Lashin, § 82, both cited above) and/or had had some form of representation in the incapacitation proceedings (see A.N. v. Lithuania, no. 17280/08, § 97, 31 May 2016); whether the person concerned had been able to appeal against the incapacitation decision (see Shtukaturov, cited above, § 91); whether, after the lapse of a certain period of time, an automatic review of the legal status or direct access to the court had been available to incapacitated people (see Lashin, cited above, § 97); and whether the experts assessing the state of health of the incapacitated people had been neutral (see Lashin, §§ 87-88, and A.N. v. Lithuania, § 99, both cited above).

60. As to the substance of the domestic decisions, the Court has previously examined whether the national courts had relied on an up-to-date medical expert report (see Lashin, cited above, §§ 83-86); whether the medical experts and subsequently the national courts had not only found the existence of a mental disorder, but had also assessed the nature or degree of the disorder as warranting legal incapacitation (see Shtukaturov, §§ 93-94, and Lashin, § 90, both cited above); and whether the national courts had examined evidence other than the medical expert report and analysed other factors in their determination of a person's legal capacity (see A.N. v. Lithuania, cited above, § 99). The Court has also previously found violations of Article 8 of the Convention in situations where the national courts, by virtue of the domestic law, had been unable to provide a tailor-made response to a person's particular circumstances and had had the choice only between full capacity or total incapacitation of the person concerned (see Shtukaturov, § 95; Lashin, § 92; and A.N. v. Lithuania, § 124, all cited above).

(β) Application to the present cases

61. As for the interests at stake, the Court notes that the interference with the applicants' private lives was very serious. As a result of their incapacitation, the applicants lost autonomy in almost all spheres of their life for an indefinite period of time. They also belonged to a particularly vulnerable social group.

62. As for the substance of the decision-making process, the Court immediately observes that the major problem of the present cases was the unavailability, by virtue of the domestic law, of a tailor-made response to the applicants' particular circumstances. As the Court has previously found (see Shtukaturov, § 95, and Lashin, § 92, both cited above), Russian law at the material time did not provide for any intermediate form of restricting legal capacity by contrast to full capacity or full incapacitation. Therefore, the national courts could not take into account the kind and degree of a person's mental disorder and other relevant particular circumstances owing to the existing legislative framework (see Shtukaturov, cited above, § 94). This conclusion is further confirmed by the legislative amendments introducing partial incapacitation as of 1 March 2015. The Court takes note of those positive developments; however, they did not affect the applicants' situations during the periods prior to the entry into force of those amendments.

63. Furthermore, the Court notes the following procedural defects of the decision-making process in respect of the incapacitation of certain applicants. In particular, in four cases (application no. 24699/05 by Ms Shakulina, application no. 69488/13 by Mr Lanskikh, application no. 69523/13 by Mr Lukin, and application no. 51480/14 by Ms Berunenko) the national courts divested the applicants of their legal capacity in their absence. Thus, the applicants were unable to present their position and the national courts did not have the benefit of direct contact with them before forming an opinion about their situation (see Shtukaturov, § 91, and Lashin, § 82, both cited above). The Court observes that since the legislative amendments of 2011, the personal participation of those concerned has become mandatory, save for certain exceptions (see paragraph 38 above). However, the incapacitation proceedings in respect of the applicants took place before the entry into force of those amendments.

64. Moreover, three of those applicants (Ms Shakulina, Mr Lanskikh and Ms Berunenko) were unable to appeal against the first-instance court decisions to deprive them of legal capacity (see Shtukaturov, cited above) because, due to their unawareness of the first-instance court proceedings, they missed the time-limits for lodging appeals. Their requests to restore the time-limits were unsuccessful. The fourth applicant, Mr Lukin, managed to have the incapacitation judgment in respect of him quashed on account of his absence from the initial court hearing. However, after having agreed to re-examine the case, the national court confirmed the applicant's incapacitation on the basis of an expert report issued ten years previously.

65. The foregoing considerations are sufficient to enable the Court to conclude that there has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

66. Four of the applicants (application no. 24699/05 by Ms Shakulina, application no. 69488/13 by Mr Lanskikh, application no. 69523/13 by Mr Lukin, and 51480/14 by Ms Berunenko) complained under Article 6 of the Convention that their incapacitation proceedings had been unfair.

67. The Court notes that these complaints are linked to the applicants' complaints under Article 8 and must therefore likewise be declared admissible.

68. The Court reiterates that the different nature of the interests protected by Articles 6 and 8 of the Convention may require separate examination of the claims lodged under these provisions. However, in the present cases, having regard to the Court's findings under Article 8 about procedural defects in the incapacitation proceedings (see paragraphs 63-64 above), the Court considers that it is not necessary to separately examine the complaints under Article 6 of the Convention (see, for instance, Iosub Caras v. Romania, no. 7198/04, § 49, 27 July 2006; Fyodorov and Fyodorova v. Ukraine, no. 39229/03, § 93, 7 July 2011).

III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

69. One of the applicants, Ms Shakulina (application no. 24688/05) complained about her involuntary psychiatric confinement. She relied on Article 5 of the Convention which provides as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(e) the lawful detention of persons for the prevention ... of persons of unsound mind..."

A. The parties' submissions

1. The Government

70. The Government submitted that on 7 March 2008 an emergency doctor had ordered the applicant's urgent hospitalisation on account of her deteriorating state of health. In particular, they asserted that the applicant was living in insanitary conditions, had not been paying utility charges, had been using an open fire, had been cooking on a radiator, and had delusional ideas about her neighbours. On 10 March 2008 the applicant's brother, who was her legal guardian at the time, consented to her hospitalisation. On 14 March 2008 the psychiatric hospital became the applicant's guardian instead of her brother. On 31 March 2008, acting as the applicant's guardian, the hospital consented to her hospitalisation. The Government also pointed out that owing to her state of health, the applicant had initially been refused a meeting with her lawyer, but had been having visitors since June 2008.

71. The Government further submitted that on 10 March 2009 an expert commission had diagnosed the applicant with schizophrenia. On the same date the Primorskiy District Court had authorised her involuntary psychiatric care, relying on that expert opinion.

72. The Government, therefore, considered that the applicant's psychiatric confinement had been lawful.

2. The applicant

73. The applicant asserted that her involuntary treatment had not complied with the substantive and procedural requirements of domestic law or with Article 5 § 1 of the Convention. As for the substantive criteria, the Government had relied on her poor state of mental health. However, they had failed to provide any medical reports for the period of time between her emergency hospitalisation on 7 March 2008 and the expert examination on 10 March 2009. The expert report of 10 March 2009 only recounted the applicant's medical history and the symptoms leading to her emergency hospitalisation a year earlier. The applicant claimed that, even if those symptoms might have justified her initial emergency treatment, they could not be the basis for her continued confinement a year later. Furthermore, the Primorskiy District Court only relied on the medical report of 10 March 2010 without any actual analysis of the severity of her disorder, of the evidence of her alleged danger to herself or others, of the presumed risk to her health, or of any alternative, less restrictive measures. The applicant thus asserted that the authorities had failed to demonstrate that her disorder was of a kind or degree warranting her involuntary hospitalisation.

74. The applicant further claimed that the psychiatric confinement procedure had not provided her with any safeguards against arbitrariness. In particular, her treatment had been considered voluntary because her legal guardians, first her brother and then the psychiatric hospital itself, had consented to it. At no point did the authorities take into account her opinion on the matter because she had been legally incapacitated. No independent judicial body had reviewed the lawfulness of her confinement. Also, having been legally incapacitated, the applicant herself had had no direct access to a court to contest her compulsory psychiatric treatment. Furthermore, she had not been allowed to see her lawyer, which had left the question of her confinement completely at the hospital's discretion.

75. The applicant also referred to the following defects in the court proceedings authorising her involuntary confinement. First, she had been removed from the court hearing of 10 March when the hospital had presented its position. Secondly, the applicant complained of the poor legal services provided by her State-appointed lawyer. In particular, the lawyer, Ms L., had made no comments during the court hearing apart from consenting to the applicant's continued confinement, despite her client's objections to it.

B. The Court's assessment

1. Admissibility

76. If the Government may be understood to claim that the applicant's treatment in the psychiatric hospital had been voluntary because her guardians had consented to it and that, thus, the applicant was not deprived of her liberty within the meaning of Article 5 § 1 of the Convention, the Court notes that it has previously dealt with a similar situation in the case of Shtukaturov (cited above, § 108). In that case the Court found that the applicant, even though legally incapacitated, had still been able to understand his situation and had expressed his disagreement to his confinement. The Court then held that it could not agree that the applicant's treatment had been voluntary and that there had been no deprivation of liberty.

77. In the present case, similarly, even though the applicant was legally incapacitated, it did not preclude her from understanding her situation and expressing her opinion on the matter. After her hospitalisation, the applicant contacted her lawyer intending to complain about her confinement, but was refused permission to see him. After the applicant's lawyer had obtained access to his client by winning a separate legal action, he represented her interests until her legal capacity had been restored and she had been discharged from the hospital. In such circumstances, which are similar to those of the Shtukaturov case, the Court finds that the applicant was able to understand her situation and did not agree to her psychiatric confinement. Therefore, she was deprived of her liberty for the purposes of Article 5 § 1 of the Convention.

78. The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) General principles

79. In its Winterwerp v. the Netherlands judgment (24 October 1979, § 39, Series A no. 33) the Court set out three minimum conditions which have to be satisfied in order for the "detention of a person of unsound mind" to be lawful within the meaning of Article 5 § 1 (e) of the Convention. First, with the exception of emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical evidence; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; and thirdly, the validity of continued confinement is contingent on the persistence of such a disorder.

80. The Court has also consistently held that Article 5 § 1 essentially refers to domestic law, but at the same time obliges national authorities to comply with the Convention requirements (see, among other authorities, Hutchison Reid v. the United Kingdom, no. 50272/99, § 47, ECHR 2003-�IV, and Karamanof v. Greece, no. 46372/09, § 40, 26 July 2011). Moreover, the Court highlights that the notion of "lawfulness" in the context of Article 5 § 1 (e) of the Convention might have a broader meaning than in national legislation. Lawfulness of detention necessarily presumes a "fair and proper procedure", including the requirement "that any measure depriving a person of his [or her] liberty should issue from and be executed by an appropriate authority and should not be arbitrary" (see Winterwerp, cited above, § 45). In this context the domestic proceedings must themselves offer the applicant sufficient protection against a potentially arbitrary deprivation of his or her liberty (see Shtukaturov, cited above, § 113).

(b) Application to the present case

81. The Court notes that the applicant in the present case was undeniably suffering from a mental disorder and thus could be considered "a person of unsound mind". However, the Court was not provided with any medical documents which would demonstrate that the authorities had ever examined whether her disorder was "of a kind or degree warranting compulsory confinement". In fact, the Government did not provide any medical documents for the period of confinement lasting more than a year after the applicant's admission to hospital on 7 March 2008. The first medical expert opinion available to the Court was issued only on 10 March 2009. Furthermore, even that medical expert report did not explain which factors justified the applicant's continued involuntary confinement. The Primorskiy District Court then authorised the applicant's compulsory treatment on the basis of that expert report. It did not examine any other relevant factors to demonstrate that the applicant's mental disorder was of a kind or degree warranting compulsory confinement (see Vershinin v. Russia, [Committee], no. 42858/06, § 26, 20 September 2016).

82. As for the procedural safeguards available to the applicant, the Court notes as follows. First, as the national authorities considered the applicant's treatment as voluntary, no court was involved in its initial authorisation. Furthermore, at the relevant time Russian law did not provide for an automatic judicial review of confinement in a psychiatric hospital in situations similar to the applicant's (see Shtukaturov, cited above, § 126). Lastly, having been declared legally incapable, the applicant herself was unable to apply for a judicial review of her compulsory confinement (ibid). The Court notes the positive developments in the Russian law and practice since that time (see paragraph 37 above); however, the applicant was placed in the hospital before those positive changes occurred.

83. As for proceedings in respect of the judicial authorisation of a person's placement in a psychiatric facility without consent, the Court has considered that the participation of the person concerned, with the benefit of legal representation where appropriate, constituted important safeguards against arbitrariness (see, for example, Trutko v. Russia, no. 40979/04, § 40, 6 December 2016).

84. In the present case the applicant attended the court proceedings, but she was removed from the hearing room when the hospital presented its position. Although the State-appointed lawyer, Ms L., was present throughout the court hearing, she did not provide the applicant with any meaningful assistance, as the only comment she made was to agree to the confinement in full, disregarding the applicant's objections to it (see V.K. v. Russia, no. 9139/08, §§ 36-40, 4 April 2017). Consequently, the Court considers that the applicant did not have the benefit of proper procedural safeguards, which should have been available to her during the determination of her liberty.

85. Given the lack of analysis of the kind or degree of the applicant's mental disorder and the serious procedural defects in the judicial authorisation of her continued involuntary psychiatric confinement, the Court finds that the applicant's deprivation of liberty was not lawful within the meaning of Article 5 § 1 of the Convention.

86. Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 1 of the Convention on account of the applicant's compulsory confinement.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

87. Lastly, Ms Shakulina also complained that her involuntary hospitalisation had been in breach of Article 5 § 4 and Articles 6 and 8 of the Convention.

88. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible.

89. The Court observes that the applicant's placement in a psychiatric hospital is at the core of the complaints under consideration. Having held that the applicant's deprivation of liberty was unlawful for the purposes of Article 5 § 1 of the Convention, the Court does not consider it necessary to undertake a separate examination of the case under Article 5 § 4 (see, among others, Ruslan Makarov v. Russia, no. 19129/13, § 34, 11 October 2016 ), Article 6 (see, for example, Iosub Caras v. Romania and Fyodorov and Fyodorova v. Ukraine, both cited above) and Article 8 (see, for instance, Tkáčik v. Slovakia, no. 42472/98, § 39, 14 October 2003) of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

90. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

91. The applicants claimed pecuniary and non-pecuniary damage in the amounts indicated in the appended table.

92. The Government considered those claims excessive and unsubstantiated.

93. The Court cannot speculate as to whether the applicants would have been fully or partially incapacitated if the legislation allowed it; it therefore rejects the applicants' claims for pecuniary damage. On the other hand, it awards the applicants compensation for non-pecuniary damage in the amounts indicated in the appended table.

B. Costs and expenses

94. The first three applicants also claimed the costs and expenses incurred before the domestic courts and the Court in the amounts indicated in the appended table.

95. The Government considered those claims unreasonable.

96. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the third applicant the sums indicated in the appended table, covering costs under all heads, plus any tax that may be chargeable to him. As for the first two applicants, given that their claims are not supported by any agreements between the applicants and their representative, the Court rejects them (see, for an analogous situation, the case of V.K. v. Russia, no. 9139/08, §§ 51-52, 4 April 2017).

C. Default interest

97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applications admissible;

2. Holds that there has been a violation of Article 8 of the Convention in respect of all of the applicants;

3. Holds that there is no need to examine the complaints under Article 6 of the Convention lodged by four of the applicants (applications nos. 24688/05, 69488/13, 69523/13 and 51480/14);

4. Holds that there has been a violation of Article 5 § 1 of the Convention in respect of one of the applicants (application no. 24688/05);

5. Holds that there is no need to examine the complaints under Article 5 § 4 and Articles 6 and 8 of the Convention lodged by one of the applicants (application no. 24688/05);

6. Holds

(a) that the respondent State is to pay the applicants, within three months the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelen Keller
Deputy RegistrarPresident

APPENDIX

No.	Application no.	Lodged on	Applicant name date of birth place of residence	Represented by	Amounts requested for pecuniary and non-pecuniary damage and costs and expenses per applicant (in Russian roubles and euros)	Amounts awarded for pecuniary and non-�pecuniary damage and costs and expenses per applicant (in euros)
	24688/05	21/06/2005	Lyudmila Nikolayevna SHAKULINA 01/10/1954 St Petersburg	Dmitriy Gennadyevich BARTENEV	Non-pecuniary damage - EUR 25,000 (twenty-five thousand euros); Legal costs and expenses - EUR 18,136.80 (eighteen thousand one hundred thirty-six euros and eighty cents)	Non-pecuniary damage - EUR 25,000 (twenty-five thousand euros);
	62679/11	15/09/2011	Irina Borisovna DELOVA 23/02/1968 St Petersburg	Dmitriy Gennadyevich BARTENEV	Non-pecuniary damage - EUR 5,000(five thousand euros); Legal costs and expenses - EUR 12,457.50 (twelve thousand four hundred fifty-seven euros and fifty cents)	Non-pecuniary damage - EUR 5,000 (five thousand euros);
	51907/13	26/07/2013	Yuriy Mikhaylovich STAVITSKIY 21/02/1977 Tonnelnyy, Stavropol Region	Dmitriy Gennadyevich BARTENEV	Non-pecuniary damage - 3,000 EUR (three thousand euros); Legal costs and expenses - EUR 1,950 (one thousand nine hundred fifty euros)	Non-pecuniary damage - EUR 3,000 (three thousand euros); Legal costs and expenses - EUR 1,950 (one thousand nine hundred fifty euros);
	69488/13	30/10/2013	Vladimir Petrovich LANSKIKH 09/07/1952 Lugovoy, Moscow Region	Yuriy Lvovich YERSHOV	Pecuniary damage - 504,000 RUB (~EUR 7,000 (seven thousand euros)); Non-pecuniary damage - EUR 50,000 (fifty thousand euros); Legal costs and expenses - not requested	Non-pecuniary damage - EUR 7,500 (seven thousand five hundred euros);
	69523/13	30/10/2013	Nikolay Nikolayevich LUKIN 22/04/1978 Lugovoy, Moscow Region	Yuriy Lvovich YERSHOV	Pecuniary damage - 1,008,000 RUB (~EUR 14,400 (fourteen thousand four hundred euros)); Non-pecuniary damage - EUR 70,000 (seventy thousand euros); Legal costs and expenses - not requested	Non-pecuniary damage - EUR 7,500 (seven thousand five hundred euros);
	51480/14	04/07/2014	Natalya Vasilyevna BERUNENKO 17/04/1971 Moscow	Yuriy Lvovich YERSHOV	Pecuniary damage - 756,000 RUB (~EUR 10,800 (ten thousand eight hundred euros)); Non-pecuniary damage - EUR 50,000 (fifty thousand euros); Legal costs and expenses - not requested	Non-pecuniary damage - EUR 7,500 (seven thousand five hundred euros).

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You are here: BAILII >> Databases >> European Court of Human Rights >> SHAKULINA AND OTHERS v. RUSSIA - 24688/05 (Judgment : Article 8 - Right to respect for private and family life : Third Section Committee) [2018] ECHR 464 (05 June 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/464.html Cite as: CE:ECHR:2018:0605JUD002468805, [2018] ECHR 464, ECLI:CE:ECHR:2018:0605JUD002468805