Ruling on legal capacity welcomed
The European Group of National Human Rights Institutions (European Group) has welcomed the judgment of the European Court of Human Rights in the case of DD v Lithuania, as a significant clarification of the human rights obligations on States in relation to legal capacity. The European Group had made a third party intervention in the case drawing the attention of the Court to the evolving human rights principles which have emerged over recent years in relation to the rights of persons with disabilities.
The case concerns the placement of a Lithuanian national into what is known in Lithuania as a 'social care home for the mentally handicapped'. On being placed in the home she was automatically stripped of her legal capacity. She alleged that her confinement and forced treatment in a Social Care Home was unlawful and violated several articles of the European Convention on Human Rights (ECHR), including Article 5 (freedom from arbitrary detention) and Article 6 (right to a fair trial).
Yesterday (14 Feb) the European Court upheld her claim.
The submission of the European Group to the Court specifically drew attention to Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) which essentially safeguards the legal capacity of persons with intellectual and mental disabilities. The submission also provided an overview of trends emerging across European States in relation to the protection of the rights of persons with disabilities. Article 12 of the CRPD emphasises the decision making capacity of everyone which may not be taken away simply by reason of the person’s disability. Article 12 thus moves away from a status based, medical or paternalistic view of persons with disabilities, to a functional approach, centred on respecting the will of the person and ensuring they are supported in decision-making. This is in contrast to the system that prevails in a number of countries where another person or State authority is permitted to make decisions on behalf of the person.
In relation to Article 5 of the ECHR, the Court found that the applicant had been deprived of her liberty in the care home she was admitted to. The absence of a periodic review of her detention, and the fact she could not initiate judicial review proceedings in her own name as she had been legally incapacitated constituted a breach of Article 5(4) which guarantees review of detention. In considering Article 6(1), the Court found that there was an overall lack of fairness in the domestic proceedings regarding determinations as to the applicant’s mental capacity and the subsequent appointment of a guardian to manager her affairs. The Court observed that she had not attended two sets of proceedings, and that even when she was able to attend subsequent proceedings, she was not provided with independent legal representation, which the Court noted was necessary in light of her psychiatric history, the complexity of the legal proceedings and more generally the importance of what was at stake for her. The Court took particular note that there was a conflict between her guardian (her adoptive father) and the applicant, and therefore her guardian could not be regarded as an appropriate person to represent her interests.
Professor Alan Miller, Chair of the Scottish Human Rights Commission and European Group said: “We very much welcome this significant judgment and we are happy the intervention of the European Group in relation to the important issue of legal capacity is reflected in the decision. The European Court is now developing its jurisprudence with reference to the standards in the CRPD, a very welcome development. This means that all the Council of Europe Member States must come up to a common standard in relation to the recognition of the rights of person with disabilities under the ECHR and in particular ensure there is a system of supported decision making, which is legally recognised and available to all person with an intellectual or mental disability.”
Des Hogan of the Irish Human Rights Commission, which chairs the Legal Working Group within the European Group of the NHRIs also welcomed the judgment. He said: “This judgment follows a very definite line of jurisprudence which has recently emerged from the European Court of Human Rights, recognising that specific legal safeguards must be in place to protect a person’s legal capacity, and which cannot be arbitrarily stripped away by the State. This is a new and challenging area of human rights law, and even those European States which have not ratified the CRPD are already bound by the evolving standards being established by the European Court.”
Romas Valentukevičius, the Seimas Ombudsman, the Head of the Seimas Ombudsmen Office of the Republic of Lithuania also welcomed the decision of the Court.
Read the intervention submission in Word format.
Notes to Editors
- The tile of the proceedings is D.D. V Lithuania, (Application No. 13469/06), Judgment, Strasbourg, 14 February 2012.
- The European Group is a representative group of thirty six (36) National Human Rights Institutions (“NHRIs”) within the Council of Europe, of whom, twenty two (22) are deemed to be fully compliant with the United Nations (“UN”) “Paris Principles”. These principles govern independent NHRIs and broadly set out the competences and responsibilities of NHRIs and the criteria under which they should function, namely:
- Independence guaranteed by Statute or Constitution
- Pluralism, including in membership, and
- A broad mandate covering all human rights and based on universal human rights standards.
- The Scottish Human Rights Commission currently chairs the European Group of Human Rights Institutions, and the Irish Human Rights Commission chairs the Legal Working Group, that prepared the third party intervention before the European Court. This was the first amicus curiae or third party intervention by a regional grouping of national human rights institutions.
- The Court’s Judgment today follows a line of recent Judgments in which the rights of persons with disabilities has been stressed. Thus in Shtukaturov v Russia (EHRR, 44009/05, 27 March 2008) the European Court stated that, “…the existence of a mental disorder, even a serious one cannot be the sole reason to justify full incapacitation.” In Alajos Kiss v Hungary (application no. 38832/06), judgment 20 May 2010 the Court found that guardianship orders should only be as extensive in scope and time as necessary and In Stanev v Bulgaria, Judgment 17 January 2012, the European Court found that the inability of a person, who had been legally deprived of their capacity to apply to court in their own name to have their capacity restored, was a breach of Article 6 of the European Convention on Human Rights.
- Article 5(4) of the ECHR provides:
- “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful.”
- In assessing the applicant’s ability to challenge her ongoing involuntary detention in the care home the Court, having noted that her adoptive father and subsequently the care home itself could have brought a challenge to detention as her guardians, stated: “In this context the Court considers that where a person capable of expressing a view, despite having been deprived of legal capacity, is deprived of his liberty at the request of his guardian, he must be accorded an opportunity of contesting that confinement before a court, with separate legal representation. Lastly, as to the prospect of an inquiry carried out by the prosecuting authorities, the Court shares the applicant’s observation that a prosecutorial inquiry cannot as such be regarded as judicial review satisfying the requirements of Article 5 § 4 of the Convention.” (at para 166)
- Article 6(1) of the ECHR provides:
- “In the determination of his civil rights and obligations…, everyone is entitled to a fair…hearing…by [a]..tribunal…”
- In determining whether the proceedings regarding the applicants capacity and the appointing a guardian to her were fair for the purposes of Article (1) the Court stated:
- “The Court accepts that there may be situations where a person deprived of legal capacity is entirely unable to express a coherent view or give proper instructions to a lawyer. It considers, however, that in many cases the fact that an individual has to be placed under guardianship because he lacks the ability to administer his affairs does not mean that he is incapable of expressing a view on his situation and thus of coming into conflict with the guardian. In such cases, when the conflict potential has a major impact on the person’s legal situation, such as when there is a proposed change of guardian, it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right, except in very exceptional circumstances such as those mentioned above. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental health issues, are not fully capable of acting for themselves.” (at para 118).