ITEMID: 001-109091
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF D.D. v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-3 - Abuse of the right of petition);Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 6. The applicant was born in 1963 and currently lives in the Kėdainiai Social Care Home (hereinafter “the Kėdainiai Home”) for individuals with general learning disabilities.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. The applicant has had a history of mental disorder since 1979, when she experienced shock having discovered that she was an adopted child. She is classed as Category 2 disabled.
9. In 1980, the applicant was diagnosed with schizophrenia simplex. In 1984 she was diagnosed with circular schizophrenia. In 1999, the applicant was diagnosed with paranoid schizophrenia with a predictable course. She has been treated in psychiatric hospitals more than twenty times. During her most recent hospitalisation at Kaunas Psychiatric Hospital in 2004, she was diagnosed with continuous paranoid schizophrenia (paranoidinė šizofrenija, nepertraukiama eiga). The diagnosis of the applicant remains unchanged.
10. In 2000 the applicant’s adoptive father applied to the Kaunas City District Court to have the applicant declared legally incapacitated. The court ordered a forensic examination of the applicant’s mental status.
11. In their report (no. 185/2000 of 19 July 2000), the forensic experts concluded that the applicant was suffering from “episodic paranoid schizophrenia with a predictable course” (šizofrenija/paranoidinė forma, epizodinė liga su prognozuojančiu defektu) and that she was not able “to understand the nature of her actions or to control them”. The experts noted that the applicant knew of her adoptive father’s application to the court for her incapacitation and wrote that she “did not oppose it”. The experts also wrote that the applicant’s participation in the court hearing for incapacitation was “unnecessary”.
12. On 15 September 2000 the Kaunas City District Court granted the request by the applicant’s adoptive father and declared the applicant legally incapacitated. In a one-page ruling, the court relied on medical expert report no. 185/2000. Neither the applicant nor her adoptive father was present at the hearing. The Social Services Department of the Kaunas City Council was represented before the court.
13. On 17 May 2001 the applicant’s adoptive father requested her admission to the Kėdainiai Home for individuals with general learning disabilities. The applicant’s name was put on a waiting list.
14. On 13 August 2002 the Kaunas City District Court appointed D.G., the applicant’s psychiatrist at the Kaunas out-patient health centre (Kauno Centro Poliklinika), as her legal guardian. The applicant was present at the hearing. Her adoptive father submitted that “he himself did not agree with being appointed her guardian because he was in disagreement with his daughter (jis pats nepageidauja būti globėju, nes su dukra nesutaria)”. Nonetheless, he promised to take care of her in future and to help her financially.
15. By a decision of 24 March 2003, the director of the health care centre dismissed D.G. from her work for a serious violation of her working duties. The decision was based on numerous reports submitted by D.G.’s colleagues and superiors.
16. On 16 July 2003 D.G. wrote to the Kaunas City District Court asking that she be relieved of her duties as the applicant’s guardian. She mentioned that she had only agreed to become the applicant’s guardian because she had observed a strained relationship between the applicant and her adoptive father. However, D.G. claimed that the applicant’s adoptive father had asked her to hand over the applicant’s pension to him, even though the applicant had been receiving her pension and had been using the money perfectly well on her own for many years. D.G. also contended that the applicant’s adoptive father had attempted to unlawfully appropriate the applicant’s property.
17. On 1 October 2003 the Kaunas City District Court relieved D.G. of her duties as the applicant’s guardian at her own request. In court D.G. had argued that as she was litigating for unlawful dismissal she could not take proper care of the applicant.
18. By letter of 9 December 2003, the Kaunas City Social Services Department suggested to the district court that the applicant’s adoptive father be appointed her guardian, although the Department noted that relations between the two of them were tense.
19. On 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The court relied on the request by the Kaunas City Council Department of Health, which was represented at the hearing. The applicant’s adoptive father did not object to the appointment. The applicant was not present at the hearing.
20. Upon the initiative and consent of the applicant’s adoptive father, on 30 June 2004 the applicant was taken to the Kaunas Psychiatric Hospital for treatment. The applicant complained that she had been treated against her will. A letter by the hospital indicates that the applicant’s adoptive father had asked the hospital staff to ensure that her contacts with D.G. were limited on the ground that the latter had had a negative influence on the applicant. However, on 3 September 2004 the prosecutor for the Kaunas City District dismissed the applicant’s allegations, finding that she had been hospitalised due to deterioration in her mental state upon the order of her psychiatrist. The applicant had also expressed her consent to being treated.
21. On 8 July 2004 a panel designated by Kaunas City Council to examine cases of admission to residential psychiatric care (Kauno miesto savivaldybės asmenų su proto negalia siuntimo į stacionarias globos įstaigas komisija) adopted a unanimous decision to admit the applicant to the Kėdainiai Home.
22. On 20 July 2004 a medical panel of the Kaunas Psychiatric Hospital concluded that the applicant was suffering from “continuous paranoid schizophrenia” (paranoidinė šizofrenija nepertraukiama eiga). The commission also stated that it would be appropriate for the applicant to “live in a social care institution for the mentally handicapped”.
23. On 28 July 2004 a social worker examined the conditions in which the applicant lived in her apartment in Kaunas city. The report reads that “the applicant is not able to take care of herself, does not understand the value of money, does not clean her apartment, is not able to cook on her own and wanders in the city hungry. Sometimes the applicant gets angry at people and shouts at them without a reason; her behaviour is unpredictable. The applicant does not have bad habits and likes to be in other persons’ company”. The social worker recommended that the applicant be placed in a social care institution because her adoptive father could not “manage” her.
24. On 2 August 2004 an agreement was concluded between the Kėdainiai Home, the Guardianship Department of Kaunas City Council and the Social Services Department of the Kaunas Regional Administration. On the basis of that agreement, the applicant was transferred from the Kaunas Psychiatric Hospital to the Kėdainiai Home, where she continued her treatment.
25. On 6 October 2004 the applicant signed a document stating that she agreed to be examined by the doctors in the Kėdainiai Home and to be treated there.
26. On 10 August 2004 the applicant’s adoptive father wrote to the director of the Kėdainiai Home with a request that during the applicant’s settling into the Kėdainiai Home she should be temporarily restricted from receiving visits by other people. The director granted the request. Subsequently, the Kaunas District Administration upheld the director’s decision on the ground that the latter was responsible for the safety of patients in the Kėdainiai Home and thus was in a better position to determine what steps were necessary.
27. On 18 August 2004, upon the decision of the Kėdainiai Home director, D.G. was not allowed to visit the applicant. The applicant’s medical record, which a treating psychiatrist signed the following day, states that “[the applicant] is acclimatising at the institution with difficulties, as her former guardian and former doctor [D.G.] keeps calling constantly and telling painful matters from the past (...) [the applicant] is crying and blaming herself for being not good, for not preserving her mother, for having lived improperly. Verbal correction is not effective”.
28. According to a document signed by Margarita Buržinskienė on 23 February 2005, she had called the Kėdainiai Home to speak to the applicant but the employees had told her that, on the director’s orders, the applicant was not allowed to answer the phone (vykdant direktorės nurodymą Daivos prie telefono nekviečia).
29. On 15 June 2006 the applicant’s adoptive father removed her from institutional care and taken her to his flat. On 15 July 2006 the applicant left his home on her own. A police investigation was started following a report by the applicant’s adoptive father of the allegedly unlawful deprivation of the applicant’s liberty. She was eventually found and apprehended by the police on 31 October 2006, and was taken back to the Kėdainiai Home.
30. On 6 September 2007 the applicant left the Kėdainiai Home without informing its management. She was found by the police and taken back to the institution on 9 October 2007.
31. As can be seen from a copy of the record of the Kėdainiai Home’s visitors submitted by the Government, between 2 August 2004 and 25 December 2006 the applicant received one or more visitors on forty-two separate occasions. In particular, her adoptive father saw her thirteen times, her friends and other relatives visited her twenty-six times and she was visited by D.G. on twelve occasions.
32. On 15 July 2004 the applicant asked the Kaunas Psychiatric Hospital to initiate a change of guardianship from her adoptive father to D.G. The applicant wrote that her adoptive father had had her admitted to the psychiatric hospital by force and deception, thus depriving her of her liberty. The hospital refused her request as it did not have competence in guardianship matters.
33. The applicant states that a similar request was rejected by the Kėdainiai Home.
34. On 2 September 2005, assisted by her former guardian and then friend, D.G., the applicant brought an application before the courts, requesting that the guardianship proceedings be reopened and a new guardian appointed. She submitted that she had been unable to state her opinion as to her guardianship, because she had not been informed of and summoned to the court hearing during which her adoptive father had been appointed her guardian. The applicant relied on Article 507 § 3 of the Code of Civil Procedure and stated that her state of health in the previous year could not have been an obstacle to her expressing her opinion as to the appropriateness of the guardian proposed at the court hearing. She claimed that in 2004 she had used to visit her friend in a village for a couple of weeks at a time. The applicant also noted that when she returned to Kaunas, her adoptive father had often threatened to have her committed to a mental asylum.
35. The applicant also argued that by appointing her adoptive father to be her guardian without informing her and without her being able to state her opinion as to his prospective appointment, in contravention of Article 3.242 of the Civil Code and Article 507 § 4 of the Code of Civil Procedure, the court had disregarded the strained relationship between the two of them. The applicant drew the court’s attention to the ruling of the Kaunas City District Court of 13 August 2002, in which the applicant’s adoptive father had himself stated that their relationship had been tense. The applicant drew the court’s attention to Article 491 § 2 of the Code of Civil Procedure, stipulating that the court had to take all necessary measures to avoid a possible conflict between the incapacitated person and her potential guardian.
Lastly, she stated that she had only learned of her adoptive father’s appointment in April 2004.
36. By a ruling of 29 September 2005 the Kaunas City District Court decided to accept the applicant’s request for examination.
37. On 27 October 2005 the applicant wrote to the Chairman of the Kaunas City District Court. She complained of her incapacitation on her adoptive father’s devious initiative without having being informed of the incapacitation proceedings. The applicant also pleaded that she had been unlawfully deprived of her liberty and involuntarily admitted to the Kėdainiai Home for an indefinite time and where she had been unable to obtain legal aid.
38. On 7 November 2005 judge R.A. of the Kaunas City District Court held a closed hearing in which the applicant, her guardian (her adoptive father) and his lawyer, and D.G. took part. The relevant State institutions were also represented at the hearing: the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor and the Social Services Department of Kaunas City Council. The applicant’s doctor did not take part in the hearing. The court noted that the doctor had been informed of it and had asked the court to proceed without him.
39. In her application form to the Court, the applicant alleged that at the beginning of the hearing the judge had ordered her to leave her place next to D.G. and to sit next to the judge. The judge had also ordered D.G. “to keep her eyes off the applicant”. Given that this was not reflected in the transcript of the hearing, on 19 November 2005 D.G. had written to the court asking that the transcript be rectified accordingly.
40. According to the transcript of the hearing, at the beginning thereof D.G. requested that an audio recording be made. The judge refused the request. The applicant asked to be assisted by a lawyer. The judge refused her request, deeming that her guardian was assisted by a lawyer before the court. Without the agreement of her guardian, a separate lawyer could not be appointed. The lawyer hired by the applicant’s guardian was held to represent both the interests of the applicant and her guardian.
41. As the transcript of the hearing shows, the applicant went on to unequivocally state that she stood by her request that the guardianship proceedings be reopened. She argued that she had neither been informed of the proceedings as to her incapacitation, nor those pursuant to which her guardian had been appointed. The decisions had been taken while she had been in hospital. During the hearing, the applicant expressed her willingness to leave the Kėdainiai Home and stated that she was being kept and treated there by force. She submitted that she would prefer to live at her adoptive father’s home and to attend a day centre (lankys dienos užimtumo centrą). The applicant also argued that D.G. had been forced to surrender her duties as her guardian and to allow the applicant’s adoptive father to become her guardian because of pressure from him with the aim of transferring the applicant’s flat to him. The applicant also noted that in the Kėdainiai Home she was cut off from society and had been deprived of the opportunity to make telephone calls. Her friends could not visit her and she was not allowed to go to the cinema. In the Kėdainiai Home “she was isolated and saw only a fence”. The other parties to the proceedings opposed the applicant’s wish that the guardianship proceedings be reopened.
42. In her application to the Court, the applicant alleged that during a break in the hearing she had been ordered to follow the judge to her private office. When the applicant had refused, she had been threatened with restraint by psychiatric personnel. In private, the judge had instructed her not to say anything negative about her adoptive father and that, should she not comply, her friend D.G. would also be declared legally incapacitated. As stated in D.G.’s letter seeking rectification of the transcript (paragraph 39 above), after the break was announced the applicant had wished to stay in the hearing room. However, she had been taken away and had returned very depressed (prislėgta). Responding to a question by the judge as to her guardianship, the applicant replied: “I agree that [my adoptive father] should be my guardian, because God asks that people be forgiving. I just wish that he [would] take me [away] from [the Kėdainiai Home] to Kaunas, to his place... and let me see D.G. and my friends”.
43. It appears from the transcript of the hearing that after the break, when giving her submissions to the court, the applicant agreed to keep her adoptive father as guardian, but insisted on being released from institutional care in order to live with her adoptive father. The relevant State institutions – the Kėdainiai Home, the Kaunas Psychiatric Hospital, the prosecutor, the Social Services Department of Kaunas City Council – and the applicant’s guardian’s lawyer each argued that the applicant’s request for reopening was clearly unfounded and should be dismissed.
44. On 17 November 2005 the Kaunas City District Court refused to reopen the guardianship proceedings on the basis of Article 366 § 1 (6) of the Code of Civil Procedure, ruling that there were no grounds to change the guardian (see Relevant domestic law part below). The court noted that before appointing the applicant’s adoptive father as her guardian, the Kaunas City Council Department of Health had prepared a report on the proposed appointment of the applicant’s guardian and had questioned the applicant, who had not been able to provide an objective opinion about that appointment. The court confirmed that the applicant had not been summoned to the hearing of 21 January 2004, when her guardian was appointed, as the court had taken into consideration the applicant’s mental state and, on the basis of the findings of the relevant health care officials, had not considered her involvement in the hearing necessary. The court further noted that the findings had disclosed tense relations between the applicant and her adoptive father. Even so, the applicant’s adoptive father had been duly performing his duties. The court also referred to statements of the representatives of the Kaunas Psychiatric Hospital and the director of the Kėdainiai Home to the effect that the applicant’s contact with D.G. had had a negative influence on her mental health.
45. The Kaunas City District Court proceeded to fine D.G. 1,000 Lithuanian litai (LTL) (approximately 290 euros (EUR)) for abuse of process. It noted that D.G. had filed numerous complaints before various State institutions and the courts of alleged violations of the applicant’s rights. Those complaints had prompted several inquiries which had revealed a lack of substantiation. The court noted:
“... by such an abuse of rights, [D.G.] caused damage to the State, namely the waste of time and money of the court and the participants in the proceedings. The court concludes that [D.G.] has abused her rights ... and the vulnerability of the incapacitated person”.
46. D.G. appealed against the above decision. She noted, inter alia, that the 21 January 2004 ruling to appoint the applicant’s adoptive father as her guardian had been adopted by judge R.A. The same judge had dismissed the applicant’s request that the court proceedings be reopened, although this was explicitly prohibited by Article 370 § 5 of the Code of Civil Procedure.
The applicant also submitted a brief in support of D.G.’s appeal, arguing that persons admitted to psychiatric institutions should have a right to know the reasons for their admission. Moreover, they should be able to contact a lawyer who is independent from the institution to which they have been admitted.
47. The appeal by D.G. was dismissed by the Kaunas Regional Court on 7 February 2006 in written proceedings. The court did not rule on the plea that the district court judge R.A. had been partial.
48. On 11 May 2006 the Supreme Court declared D.G.’s subsequent appeal on points of law inadmissible, as it had not been submitted by a lawyer and raised no important legal issues.
49. By a ruling of 7 February 2007 the Kaunas City District Court, following a public hearing attended by social services representatives and the applicant’s legal guardian, granted the guardian’s request to be relieved from the duties of guardian and property administrator. The applicant’s adoptive father had argued that he was no longer fit to be her guardian because of his old age (seventy-seven years at that time) and state of health. The Kėdainiai Home was appointed temporary guardian and property administrator. The applicant was not present at the hearing.
50. On 25 April 2007, the Kaunas City District Court held a public hearing and appointed the Kėdainiai Home as the applicant’s permanent guardian and administrator of her property rights. The applicant was not present at that hearing; the court did not give reasons for her absence.
51. On 1 February 2006 a criminal inquiry was opened on the initiative of some of the applicant’s acquaintances, who alleged that the applicant had been the victim of Soviet-style classification of illnesses which was designed to repress those who fall foul of the regime. The complainants submitted that, as a result of the persistent diagnoses of schizophrenia, the applicant had been unlawfully deprived of her liberty, had been ill-treated and had been overmedicated in the Kėdainiai Home, and that her property rights had been violated by her guardian.
52. On 31 July 2006 the investigation was discontinued, no evidence having been found of an abuse of the applicant’s interests, either pecuniary or personal. It was established that the immovable property belonging to the applicant had been let to a third person, with the proceeds used to satisfy the applicant’s needs. The applicant had had a bank account opened in her name on 6 October 2005, and the deposit made on that date had since been left untouched. Moreover, the applicant’s guardian had transferred to her account the sum received from the sale of their common property. There was thus no indication that the applicant’s adoptive father had abused his position as guardian.
53. As regards the deprivation of the applicant’s liberty, the prosecutor noted that the applicant had been admitted to an institutional care facility in accordance with the applicable legislation. The prosecutor acknowledged that the freedom of the applicant “to choose her place of residence [was] restricted (laisvė pasirinkti buvimo vietą yra ribojama)”, but further noted that she was:
“... constrained to an extent no greater than necessary in order to take due care of her as a legally incapacitated person. The guardian of [the applicant] can change her place of residence without first obtaining a separate official decision; she is not unlawfully hospitalised. Therefore, her placement in the Kėdainiai Home cannot be classified as an unlawful deprivation of liberty, punishable under Article 146 § 2 (3) of the Criminal Code”.
54. The prosecutor had also conducted an inquiry into an incident which had occurred at the Kėdainiai Home on 25 January 2005. After questioning the personnel of the Home, it was established that on that day the applicant had been placed in the intensive supervision ward (intensyvaus stebėjimo kambarys), had been given an additional dose of tranquilisers (2 mg of Haloperidol) and had been tied down (fiksuota) for fifteen to thirty minutes by social care staff.
55. The prosecutor noted the explanation of the psychiatrist at the Home, who admitted that the applicant’s restraint had been carried out in breach of the applicable rules, without the approval of medical personnel. However, after having read written reports on the incident produced by the social care personnel, he considered the tying down to have been undertaken in order to save the applicant’s life and not in breach of her rights.
56. Questioned by the prosecution as witnesses, social workers at the Kėdainiai Home testified that 25 January 2005 had been the only occasion on which the applicant had been physically restrained and placed in isolation. The measures had only been taken because at that particular time the applicant had shown suicidal tendencies.
57. The prosecutor concluded that the submissions made by the complainants were insufficient to find that the applicant’s right to liberty had been violated by unnecessary restraint or that she had suffered degrading treatment.
58. On 30 August 2006 the higher prosecutor upheld that decision.
59. With the assistance of D.G., the applicant addressed a number of complaints to various State authorities.
60. On 30 July 2004, in reply to a police inquiry into the applicant’s complaint of unlawful detention in the Kėdainiai Home, the Kaunas City Council Social Services department wrote that “[in] the last couple of years, relations between the applicant and her adoptive father have been tense. Therefore, on the wish of both of them, until 21 January 2004 [the applicant’s] legal guardian was D.G. and not her adoptive father”.
61. The Ministry of Social Affairs also commissioned an inquiry, including conducting an examination of the applicant’s living conditions at the Kėdainiai Home and interviews with the applicant and the management of the Home. The commission established that the applicant’s living conditions were not exemplary (nėra labai geros), but it was promised that the inhabitants would soon move to new premises with better conditions. However, it was noted that the applicant received adequate care. The commission opined that it was advisable not to disturb the applicant, given her vulnerability and instability. It was also emphasised that the State authorities were under an obligation to be diligent as regards supervision of how the guardians use their rights.
62. On 6 January 2005 D.G. filed a complaint with the police, alleging that the applicant had been unlawfully deprived of her liberty and of contact with people from outside the Kėdainiai Home. By letter of 28 February 2005, the police replied that no violation of the applicant’s rights had been found. They explained that, in accordance with the internal rules of the Kėdainiai Home, residents could be visited by their relatives and guardians, but other people required the approval of the management. At the request of the applicant’s guardian, the management had prohibited other people from visiting her.
63. On 17 May 2005 upon the inspection performed by food safety authorities out-of-date frozen meat (best before 12 May 2005) was found in the Kėdainiai Home. However, there was no indication that that meat would have been used for cooking. On 20 February 2006 the Kaunas City Governor’s office inspected the applicant’s living conditions in Kėdainiai and found no evidence that she could have been receiving food of bad quality.
64. On 28 April 2006 the applicant complained to the Ministry of Health about her admission to long-term care. By letter of 12 May 2006, the Ministry noted that no court decision to hospitalise the applicant had been issued, and that she had been admitted to the Kėdainiai Home after her adoptive father had entrusted that institution with her care.
65. On 6 October 2006, the Ministry of Health and Social Services, in response to the applicant’s complaints of alleged violations of her rights, wrote to the applicant stating that it was not possible to investigate her complaints because she had left the Kėdainiai Home and her place of living was unknown. Prosecutors were in the middle of a pre-trial investigation into the circumstances of the applicant’s disappearance from where she had previously been living.
66. By a decision of 18 December 2006, the Kaunas City District prosecutor discontinued a pre-trial investigation into alleged unlawful deprivation of the applicant’s liberty.
67. Article 21 of the Lithuanian Constitution prohibits torture or degrading treatment of persons. Article 22 thereof states that private life is inviolable.
68. The Law on Mental Heath Care provides:
“1. Main Definitions
...
5. “Mental health facility” means a health care institution (public or private), which is accredited for mental health care. If only a certain part (a “unit”) of a health care institution has been accredited to engage in mental health care, the term shall only apply to the unit. In this Law, the term is also applicable to psychoneurological facilities...”
“The parameters of a patient’s health care shall be determined by a psychiatrist, seeking to ensure that the terms of their treatment and nursing offer the least restrictive environment possible.
The actions of a mentally ill person may be subject to restrictions only provided that the circumstances specified in section 27 of this Law are manifest. A note to that effect must be promptly made in the [patient’s] clinical record.”
“In emergency cases, in seeking to save a person’s life when the person himself is unable to express his will and his life is seriously endangered, necessary medical care may be taken without the patient’s consent.
Where instead of a patient’s consent, the consent of his representative is required, the necessary medical care may be provided without the consent of such person provided that there is insufficient time to obtain it in cases where immediate action is needed to save the life of the patient.
In those cases when urgent action must be taken in order to save a patient’s life, and the consent of the patient’s representative must be obtained in lieu of the patient’s consent, immediate medical aid may be provided without the said consent, if there is not enough time to obtain it.”
69. Article 24 of the Law on Mental Health Care stipulated that if a patient applied with a request to be hospitalised, he or she could be hospitalised only provided that: 1) at least one psychiatrist, upon examining the patient, recommended that he or she had to be treated as an inpatient at a mental health facility; 2) he or she had been informed about his or her rights at a mental health facility, the purpose of hospitalisation, the right to leave the psychiatric facility and restrictions on the right, as specified in Article 27 of the law. The latter provision read that a person who was ill with a severe mental illness and refused hospitalisation could be admitted involuntarily to the custody of the hospital only if there was real danger that by his or her actions he or she was likely to commit serious harm to his or her health or life or to the health or life of others. When the circumstances specified in Article 27 of that law did exist, the patient could be involuntarily hospitalised and given treatment in a mental health facility for a period not exceeding 48 hours without court authorisation. If the court did not grant the authorisation within 48 hours, involuntary hospitalisation and involuntary treatment had to be terminated (Article 28).
70. As concerns legal incapacity and guardianship, the Civil Code provides:
“1. A natural person who, as a result of mental illness or imbecility, is not able to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship.
2. Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian...
3. Where a person who was declared incapacitated gets over his illness or the state of his health improves considerably, the court shall reinstate his capacity. After the court judgement becomes res judicta, guardianship of the said person shall be revoked.
4. The spouse of the person, parents, adult children, a care institution or a public prosecutor shall have the right to request the declaration of a person’s incapacity by filing a declaration to the given effect. They shall also have the right to apply to the courts requesting the declaration of a person’s capacity.”
“1. Guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person.
2. Guardianship of a person subsumes guardianship of the person’s property, but if necessary, an administrator may be designated to manage the person’s property.”
“1. Guardians and curators shall represent their wards under law and shall defend the rights and interests of legally incapacitated persons or persons of limited active capacity without any special authorisation.
2. The guardian shall be entitled to enter into all necessary transactions in the interests and on behalf of the represented legally incapacitated ward...”
“1. Guardianship and curatorship authorities are the municipal or regional [government] departments concerned with the supervision and control of the actions of guardians and curators.
2. The functions of guardianship and curatorship in respect of the residents of a medical or educational institution or [an institution run by a] guardianship (curator) authority who have been declared legally incapacitated or of limited active capacity by a court shall be performed by the respective medical or educational establishment or guardianship (curator) authority until a permanent guardian or curator is appointed...”
“1. Having declared a person legally incapacitated or of limited active capacity, the court shall appoint the person’s guardian or curator without delay.
...
3. Only a natural person with legal capacity may be appointed a guardian or a curator, [and] provided he or she gives written consent to that effect. When appointing a guardian or curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, relations with the ward, the guardian’s or curator’s preferences and other relevant circumstances...”
“...
6. After the circumstances responsible for the declaration of the ward’s legal incapacity or limited active capacity [are no longer in existence], the guardian or curator shall apply to the courts for the cancellation of guardianship or curatorship. Guardianship and curatorship authorities, as well as prosecutors, shall also have a right to apply to the courts for the cancellation of guardianship or curatorship.”
“1. An adult person declared legally incapacitated by the courts shall be placed under guardianship by a court judgment.”
“1. Guardianship and curatorship authorities shall be obliged to monitor whether the guardian/curator is fulfilling his or her duties properly.”
71. The Code of Civil Procedure stipulates that rights and interests of [disqualified] natural persons protected by law shall be defended in court by their representatives (parents, foster-parents, guardians) (Article 38 § 2). A prosecutor has the right to submit a claim to protect the public interest (Article 49).
72. Article 366 § 1 (6) of the Code of Civil Procedure provides that proceedings may be reopened if one of the parties to them was incapacitated and did not have a representative.
Article 370 § 5 stipulates that when deciding upon a request that proceedings be reopened, the judge who took the decision against which the request has been lodged may not participate.
73. An application to declare a person legally incapacitated may be submitted by a spouse of that person, his or her parents or full-age children, a guardianship/care authority or a public prosecutor (Article 463). The parties to the proceedings for incapacitation consist, besides the applicant, of the person whose legal capacity is at issue, as well as the guardianship (care) authority. If it is impossible, due to the state of health, confirmed by an expert opinion, of the natural person whom it has been requested to declare incapacitated, to call and question him or her in court or to serve him or her with court documents, the court shall hear the case in the absence of the person concerned (Article 464 §§ 1 and 2).
74. Article 491 § 2 of the Code of Civil procedure stipulates that the courts are obliged to take all measures necessary to ensure that the rights and interests of persons who need guardianship are protected.
75. Pursuant to Article 507 § 3 of the Code of Civil Procedure, a case concerning the establishment of guardianship and the appointment of a guardian shall be heard by means of oral proceedings. The guardianship authority, the person declared incapacitated, the person recommended to be appointed as guardian and any parties interested in the outcome of the case must be notified of the hearing.
The case is to be heard with the attendance of a representative of the guardianship authority, who is to submit the authority’s opinion to the court. The person to be appointed the guardian must also attend.
The person declared incapacitated is entitled to give his or her opinion at the hearing, if his or her health allows, as regards the prospective appointment of the guardian. The court may hold that it is necessary that the person declared incapacitated attend the hearing.
Article 507 § 4 provides that in appointing a guardian his moral and other qualities, his capability to perform the functions of a guardian, his relationship with the person who requires guardianship, and, if possible, the wishes of the person who requires guardianship or care shall be taken into consideration.
76. The Law on Prosecutor’s Office provides that prosecutors have the right to protect the public interest, either on their own initiative or if the matter has been brought to their attention by a third party. In so doing, prosecutors may institute civil or criminal proceedings.
77. In a ruling of 9 June 2003 the Supreme Court stated that a public prosecutor could submit an application for reopening of proceedings, if the court’s decision had been unlawful and had infringed the rights of a legally incapacitated person having limited opportunity to defend his or her rights or lawful interests.
78. The Law on Social Services provides that the basic goal of social services is to satisfy the vital needs of an individual and, when an individual himself is incapable of establishing such conditions, to create living conditions for him that do not debase his dignity (Article 2 (2)).
79. The Requirements for residential social care institutions and the Procedure for admission of persons thereto, approved by Order No. 97 of the Minister of Social Security and Labour on 9 July 2002 and published in State Gazette (Valstybės žinios) on 31 July 2002, regulate the methods of admission to a social care institution. The rules provide that an individual is considered to be eligible for admission to such an institution, inter alia, if he or she suffers from mental health problems and therefore is not able to live on his or her own. The need for care is decided by the municipal council of the place of his or her residence in cooperation with the founder of the residential care institution (the county governor). Individuals are admitted to care institutions in the event that the provision of social services at their home or at a non-statutory care establishment is not possible. A guardian who wishes to have a person admitted to a residential care institution must submit a request in writing to the social services department of the relevant municipal council. The reasons for and motives behind admission must be indicated. An administrative panel of the municipal council, comprising at least three persons, is empowered to decide on the proposed admission. Representatives of the institution to which the person is to be admitted as well as the founder (the governor) must participate.
80. The Government submitted to the Court an application by the Kėdainiai Home of 6 October 2009 to the Kaunas City District Court for the restoration of capacity (dėl neveiksnumo panaikinimo) of an individual, G.P. The Kėdainiai Home had been G.P.’s guardian. The director of the Kėdainiai Home had noted that after G.P.’s condition had become better and he had become more independent, it had accordingly become necessary for the court to order a fresh psychiatric examination and make an order restoring G.P.’s legal capacity.
81. The Bylaws of the Kėdainiai Home (Kėdainių pensionato gyventojų vidaus tvarkos taisyklės), as approved by an order of the director dated 17 March 2003, provide that the institution shall admit adults who suffer from mental health problems and are in need of care and medical treatment. A patient may leave the institution for up to ninety days per year, but only to visit his or her court-appointed guardian. The duration and conditions of such leave must be confirmed in writing. The rules also stipulate that a patient is not allowed to leave the grounds of the facility without informing a social worker. If a patient decides to leave the Kėdainiai Home on his or her own, the management must immediately inform the police and facilitate finding him or her. A patient may be visited by relatives and guardians. Other visitors are allowed only upon the management’s approval. The patients may have personal mobile phones. They may follow a religion, attend church services and receive magazines.
82. In a ruling of 11 September 2007 in civil case No. 3K-3-328/2007, the Supreme Court noted that the person whom it is asked to declare incapacitated is also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure). As a result, he or she enjoys the rights of an interested party, including the right to be duly informed of the place and time of any hearing. The fact that the case had been heard in the absence of D.L. – the person whom the court had been asked to declare incapacitated – was assessed by the Supreme Court as a violation of her right to be duly informed of the place and time of court hearings, as well as of other substantive procedural rights safeguarding her right to a fair trial. The Supreme Court also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the firstinstance court had breached the principle of equality of arms, as well as D.L.’s right to appeal against the decision to declare her incapacitated, because the decision had not been delivered to her. The Supreme Court also referred to Principle no. 13 of Recommendation No. R (99) 4 by the Committee of Ministers of the Council of Europe (see paragraph 85 below), stating that the person concerned should have the right to be heard in any proceedings which could affect his or her legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court’s case-law to the effect that a mental illness could result in appropriate restrictions of a person’s right to a fair hearing. However, such measures should not affect the very essence of that right (Golder, Winterwerp, both cited below, and Lacárcel Menéndez v. Spain, no. 41745/02, 15 June 2006).
83. In the same ruling, the Supreme Court also emphasised that determining whether the person can understand his or her actions was not only a scientific conclusion, namely that of forensic psychiatry. It was also a question of fact which should be established by the court upon assessing all other evidence and, if necessary, upon hearing expert evidence. Taking into consideration the fact that the declaration of a person’s incapacity is a very serious interference into his or her right to private life, one can only be declared incapacitated in exceptional cases.
84. This Convention entered into force on 3 May 2008. It was signed by Lithuania on 30 March 2007 and ratified on 18 August 2010. The relevant parts of the Convention provide:
“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”
“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”
85. The relevant parts of this Recommendation read as follows:
“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations.
...
4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”
“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”
“1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...”
“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”
“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews.
...
3. There should be adequate rights of appeal.”
86. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency. Part C of the report (paragraphs 120, 125-132) analyses situation in the Skemai Residential Care Home.
87. The CPT noted that Lithuanian legislation does not provide for an involuntary placement procedure in social welfare establishments. At Skemai Residential Care Home, residents were admitted on their own application or that of their guardian through the competent district authority (Panevėžys District Administration). The decision on the placement was taken by the social affairs unit of Panevėžys District Administration on the basis of a report drawn up by a social worker and a medical certificate issued by a psychiatrist stating that the applicant’s mental health permitted his/her placement in a social welfare institution of this type. An agreement was then signed between the applicant and the authorised representative of the local government for an indefinite period.
That said, it appeared that even legally competent residents admitted on the basis of their own application were not always allowed to leave the home when they so wished. The delegation was informed that their discharge could only take place by decision of the social affairs unit of the Panevėžys District Administration. This was apparently due to the need to ascertain that discharged residents had a place and means for them to live in the community; nevertheless, this meant that such residents were de facto deprived of their liberty (on occasion for a prolonged period).
88. Specific reference was made to the situation of residents deprived of their legal capacity. Such persons could be admitted to the Skemai Home solely on the basis of the application of their guardian. However, they were considered to be voluntary residents, even when they opposed such a placement. In the CPT’s view, placing incapacitated persons in a social welfare establishment which they cannot leave at will, based solely on the consent of the guardian, entailed a risk that such persons will be deprived of essential safeguards.
89. It was also a matter of concern that all 69 residents who were deprived of their legal capacity were placed under the guardianship of the Home. In this connection, the delegation was surprised to learn that in the majority of these cases, the existing guardianship arrangements had been terminated by a court decision upon admission to the establishment and guardianship of the person concerned entrusted to the Home.
The CPT stressed that one aspect of the role of a guardian is to defend the rights of incapacitated persons vis-à-vis the hosting social welfare institution. Obviously, granting guardianship to the very same institution could easily lead to a conflict of interest and compromise the independence and impartiality of the guardian. The CPT reiterated its recommendation that the Lithuanian authorities strive to find alternative solutions which would better guarantee the independence and impartiality of guardians.
90. In the context of discharge from psychiatric institution procedures, the CPT recommended that the Lithuanian authorities took steps to ensure that forensic patients were heard in person by the judge in the context of judicial review procedures. For that purpose, consideration may be given to the holding of hearings at psychiatric institutions
91. Lastly, the CPT found that at the establishment visited the existing arrangements for contact with the outside world were generally satisfactory. Patients/residents were able to send and receive correspondence, have access to a telephone, and receive visits.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-120606
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: METS v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Mr Jüri Mets, is an Estonian national who was born in 1983 and lives in Tallinn. He is represented before the Court by Mr A. Pilv, a lawyer practising in Tallinn.
2. The Estonian Government (“the Government”) are represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 31 October 2002 criminal proceedings were initiated in respect of the applicant, who was suspected of fraud.
5. On 2 April 2003 he was taken into custody. He was released on 30 April 2003. An obligation not to leave his place of residence was imposed on him.
6. In the meantime, on 7 April 2003 the applicant’s property, including his share in a house and his bank accounts, was attached. One of the bank accounts was released on 7 July 2004; the house was attached until 11 April 2007. The remaining bank accounts were released by a judgment of the Tartu Court of Appeal (see paragraph 9 below).
7. In August 2007 the applicant was committed for trial before the Viru County Court.
8. On 29 April 2009 the Viru County Court convicted the applicant of fraud.
9. By a judgment of 23 November 2009 the applicant was acquitted by the Tartu Court of Appeal. It was noted in the judgment that the applicant had no right to compensation under the Unjust Deprivation of Liberty (Compensation) Act (Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus) for the period of detention from 2 April to 30 April 2003, since his detention had been ordered because he had evaded the criminal proceedings; in such a case the law did not provide for compensation.
10. On 28 January 2010 the Supreme Court declined to accept an appeal lodged by the Public Prosecutor’s Office.
11. On 22 February 2010 the Ministry of Justice rejected the applicant’s claim for compensation for the pecuniary and non-pecuniary damage he had allegedly sustained as a result of the criminal proceedings. The Ministry was of the opinion that the length of the proceedings before the courts – two years and five months – had not been excessive, and that eleven months of that period were attributable to the applicant.
12. On 31 March 2010 the Police and Border Guard Board (“the Board”) rejected a claim by the applicant for compensation. In respect of the deprivation of liberty it was noted that the applicant had not appealed against the Tartu Court of Appeal’s judgment whereby it had been determined that he was not entitled to compensation. With regard to the criminal proceedings, it was found that the case had been complicated and that no unlawful measures had been taken in respect of the applicant. The Board considered that no non-pecuniary or pecuniary damage had been proved that would justify an award of compensation. The applicant was informed in the Board’s refusal that a complaint against its decision could be lodged with the Tallinn Administrative Court within thirty days.
13. On 3 May 2010 the State Prosecutor’s Office refused to pay the applicant compensation for the pecuniary and non-pecuniary damage he claimed in respect of the criminal proceedings against him. The State Prosecutor’s Office considered that the restrictions imposed on the applicant during the criminal proceedings (attachment of his property, obligation not to leave his place of residence) had been lawful and not exceptionally harsh.
14. On 4 May 2011 the applicant lodged with the Tallinn Administrative Court a claim for compensation for pecuniary damage caused by the criminal proceedings. The case (no. 3-11-1108) was transferred to the Tartu Administrative Court, which had jurisdiction over the matter. By amendments he had made to his claim on 4 and 26 April 2012, the applicant had also claimed compensation for the non-pecuniary damage allegedly caused by the excessive length of the criminal proceedings and the obligation not to leave his place of residence. In the course of the proceedings before the Administrative Court the applicant also referred to his application pending before the European Court of Human Rights (that is, the present case) and mentioned the sum proposed to him by the Government under the friendly-settlement procedure.
15. By a judgment of 30 November 2012 the Tartu Administrative Court granted the applicant’s claim in part. It awarded him 1,800 euros (EUR) as compensation for the non-pecuniary damage caused by the excessive length of the criminal proceedings and the obligation not to leave his place of residence. In determining the sum of the award, the court also made reference to the sum proposed to the applicant in the friendly-settlement procedure. The compensation claim for pecuniary damage was dismissed.
16. In a judgment of 22 March 2011 in the case of Osmjorkin (no. 3318509) the Supreme Court declared the State Liability Act (Riigivastutuse seadus) unconstitutional in so far as it did not provide for compensation for non-pecuniary damage caused by excessive length of a preliminary investigation in criminal proceedings, and awarded the complainant a sum of money. It further considered that the enactment of a special regulation for compensation for damage arising from criminal proceedings was required (for a more complete summary of the judgment, see Raudsepp v. Estonia, no. 54191/07, §§ 38-42, 8 November 2011).


ITEMID: 001-87003
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MELTEX LTD AND MOVSESYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant company was established in 1995 and has its registered office in Yerevan. The second applicant was born in 1950 and lives in Yerevan.
5. The second applicant first became involved in TV broadcasting in January 1991 when he established the A1+ television company, the first independent television company in Armenia. Initially, A1+ operated as a collector, producer and disseminator of news and information. Information was gathered from and sent to all districts of Armenia, as well as foreign television broadcasting companies via satellite communication.
6. In 1994 A1+ acquired a State television licensed frequency on which it broadcast during assigned periods. According to the second applicant, in 1995 A1+ experienced difficulties with the State regarding its broadcasts: telephone calls were received from public officials on a daily basis threatening to deprive A1+ of its assigned broadcasting hours and criticising the contents of A1+ programmes perceived to be directed against Government policy. A1+ was informed that the broadcast frequencies were granted by the State in order to defend and further State interests rather than to criticise State authorities. During the run-up to the presidential election, A1+ refused to broadcast only pro-Government material. As a result, its State broadcasting operation was suspended in May 1995.
7. In 1995 the second applicant established and registered the applicant company. The applicant company was set up as an independent broadcasting company outside State control. Later the second applicant created the A1+ television company within the structure of the applicant company. On 1 January 1996, in preparation for broadcasting, the applicant company opened a school to train personnel, such as journalists, cameramen and technicians, who were later employed by the applicant company and other television companies. On 25 August 1996 the applicant company started television broadcasting, sharing capacity and content with Moscow “REN” TV, a Russian television company. Over time, the volume of the content produced by the applicant company increased significantly.
8. On 22 January 1997 the applicant company was granted a licence by the then Ministry of Communication (ՀՀ կապի նախարարություն) permitting it to install a television transmitter in Yerevan and to broadcast within the decimetric wave band via its A1+ television channel. The licence was granted for a period of five years.
9. In September 1999 the applicant company established “Hamaspyur”, a network of nine private licensed regional television companies, broadcasting 24 hours a day. According to the applicants, the television network was widely recognised as one of the few independent voices in television broadcasting in Armenia. The primary focus was upon the dissemination of independent, well-processed news information and analysis. The content of the broadcasts included international and domestic news analysis (30%), advertising (32%) and various entertainment programmes.
10. In 2000-2001 legislative changes were introduced in the sphere of television and radio broadcasting. The Television and Radio Broadcasting Act («Հեռուստատեսության և ռադիոյի մասին» ՀՀ օրենք – “the Broadcasting Act”), passed in October 2000, established a new authority, the National Television and Radio Commission (Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies. The NTRC was a public body composed of nine members appointed by the President of Armenia. The Broadcasting Act also introduced a new licensing procedure, according to which a broadcasting licence was granted on the basis of a call for tenders conducted by the NTRC in respect of the list of available frequencies.
11. During 2001 all existing broadcasting licences were temporarily re-registered by the NTRC until the relevant calls for tenders were announced.
12. On 3 September 2001 the NTRC replaced the applicant company's licence with a new licence. The new licence was granted for band 37 and was due to expire on 22 January 2002.
13. On 23 November 2001 the NTRC decided to postpone the call for tenders for band 37 until the adoption of relevant rules and regulations and to permit the applicant company to continue to operate on band 37 for an indefinite period of time until such call for tenders was announced.
14. On 28 December 2001 the National Television and Radio Commission Regulations Act («Հեռուստատեսության և ռադիոյի ազգային հանձնաժողովի կանոնակարգ» ՀՀ օրենք – “the NTRC Regulations Act”) was passed.
15. On 24 January 2002 the NTRC adopted Decision no. 4 approving the Tendering Rules for Television and Radio Broadcasting Licences (ՀՀ հեռուստատեսության և ռադիոյի ազգային հանձնաժողովի որոշում Հեռուստառադիոհաղորդումների հեռարձակման լիցենզավորման մրցույթի կարգը հաստատելու մասին – “the Tendering Rules”).
16. On 19 February 2002 the NTRC announced calls for tenders for various broadcasting frequencies, including band 37.
17. The applicant company and two other companies, Sharm Ltd and Dofin TV Ltd, submitted bids for band 37. The applicant company alleged that Sharm Ltd had never previously operated in the field of television broadcasting and its main focus had been as the organiser of entertainment shows for young people and students. None of its employees had a background in professional journalism and the company had no premises, equipment or financial or technical infrastructure to commence broadcasting at the time of its bid. It further alleged that Dofin TV Ltd had been registered less than a month before the tender process took place and had had no previous experience of any sort in the field of broadcasting.
18. On 1 April 2002, before the winner of the tender process was announced, the applicant company instituted proceedings against the NTRC before the Commercial Court (ՀՀ տնտեսական դատարան), claiming that the NTRC had violated a number of legal provisions when announcing the call for tenders.
19. On 2 April 2002 the NTRC held a points-based vote and recognised Sharm Ltd as the winner of the call for tenders for band 37.
20. On 3 April 2002 the A1+ television channel ceased to broadcast.
21. On 16 April 2002 the applicant company lodged an additional claim with the Commercial Court seeking, inter alia, to annul the decision of 2 April 2002.
22. On 25 April 2002 the Commercial Court rejected the applicant company's claims.
23. On an unspecified date the applicant company lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան).
24. On 14 June 2002 the Court of Cassation dismissed that appeal. Those proceedings are the object of application no. 37780/02 before the Court, examined separately.
25. According to the applicants, due to their lack of broadcasting experience and sufficient resources, Sharm Ltd never managed to commence broadcasting and, after only nine months, sold a controlling interest in the company to another legal entity.
26. On 27 May 2003 the NTRC put out a call for tenders for band 25. The applicant company and another company, Armenia TV, submitted tenders.
27. The bidding was held on 7 June 2003. The bidders were allowed 30 minutes each to make their presentations and a further 15 minutes each were allotted for questions from the NTRC.
28. On 11 June 2003 the NTRC held a points-based vote and recognised Armenia TV as the winner of the tender process. A copy of that decision was sent to the applicant company on 12 June 2003. It stated:
“Based on sections 37 and 50 of [the Broadcasting Act], sections 30, 31 and 63 of [the NTRC] Regulations Act and Paragraph 19 of Decision no. 4 of [the NTRC] of 24 January 2002 approving [the Tendering Rules], and taking into account the results of the call for tenders for television broadcasting on decimetric band 25 in the area of Yerevan, [the NTRC] decides (1) to recognise Armenia TV CJSC as the winner of the call for tenders for television broadcasting on decimetric band 25 in the area of Yerevan, and (2) to grant a television broadcasting license to Armenia TV CJSC.”
29. On 24 June 2003 the second applicant submitted a letter to the Head of the NTRC requesting the latter to give reasons for the refusal of its bid.
30. By a letter of 1 July 2003 the NTRC informed the second applicant that:
“...when granting a licence through a tendering procedure, [the NTRC] only takes a decision recognising the best organisation as the winner and granting or refusing a broadcasting licence. [The applicant company] was not selected as the best organisation in the call for tenders for band 25.”
31. On 15 October 2002 the NTRC announced a new call for tenders for five other bands.
32. The applicant company submitted bids for three of the five bands, namely bands 31, 39 and 51.
33. On 18 November 2002 the tender process was suspended in connection with court proceedings instituted against the NTRC by some other participants in the call for tenders.
34. On 18 July 2003 the NTRC held points-based votes and recognised the winners of the call for tenders: band 31 was assigned to ArmenAakob TV, band 39 to TV 5 and band 51 to Yerevan TV. The NTRC's decisions were identical in wording to its decision of 11 June 2003. Copies of these decisions were sent to the applicant company on 19 July 2003.
35. On an unspecified date, the second applicant submitted a letter to the Chairman of the NTRC requesting the latter to inform him of the reasons for the refusal of a licence in accordance with section 51 of the Broadcasting Act. The second applicant also requested the NTRC to adopt a decision refusing a licence following its consideration of the applicant company's bid, as required by sections 63 and 67 of the NTRC Regulations Act. He further requested the NTRC to provide the results of the examination of the applicant company's bid, the minutes of its hearings and the separate opinions of its members.
36. In another letter, the second applicant requested the Chairman of the NTRC to provide copies of the bids submitted by the companies which submitted the winning tenders for bands 25, 31, 39 and 51.
37. By two letters, both dated 11 August 2003, the NTRC replied to the second applicant in terms identical to its letter of 1 July 2003. The letters added that the second applicant could familiarise himself with the minutes of the hearings and the relevant bids at the NTRC's office, where he could also make photocopies of the bids with his own technical means.
38. On an unspecified date, the NTRC announced a call for tenders for bands 3 and 63.
39. The applicant company and two other companies, AR TV and Cinemax, submitted bids for both bands.
40. On 13 October 2003 the NTRC held points-based votes and selected the winning tenders: band 3 was assigned to AR TV and band 63 went to Cinemax. The NTRC's decisions were identical in wording to its previous decisions. Copies of these decisions were sent to the applicant company on 14 October 2003.
41. On 21 October 2003 the NTRC replied to the second applicant's request for a reasoned decision in the same manner as before.
42. On 19 November 2003 the NTRC put out a call for tenders for the last vacant band, namely band 56.
43. The applicant company and three other companies submitted their bids.
44. On 29 December 2003 the NTRC held a points-based vote and awarded the licence to Yerkir Media TV. The NTRC's decision was identical in wording to its previous decisions. A copy was sent to the applicant company on 30 December 2003.
45. On 22 January 2004 the NTRC replied to the second applicant's request for a reasoned decision in the same manner as before.
46. On 29 September 2003 the applicant company lodged two applications with the Commercial Court complaining about the NTRC's inaction. In particular, the applicant company submitted that the NTRC was obliged under Section 51 of the Broadcasting Act to notify in writing the reasons for the refusal of a licence in the calls for tenders for band 25 and bands 31, 39 and 51 within ten days after taking the relevant decisions, and under section 63 of the NTRC Regulations Act to take a decision to grant or refuse a licence in respect of each bid submitted. The applicant company sought, inter alia, a declaration that the failure of the NTRC to notify the reasons for the refusals and to take any decision in respect of its bids was unlawful, and an order obliging the NTRC to give reasons for the refusals.
47. On 22 March 2004 the applicant company lodged another application, supplementing the initial two with similar complaints in respect of the calls for tenders for bands 3 and 63 and band 56.
48. On 23 March 2004 the Commercial Court decided to dismiss the applicant company's applications as unfounded. In doing so, having examined the parties' arguments, the Commercial Court found, inter alia, that:
“It is understood from section 47 of [the Broadcasting Act], sections 30, 47, 61 and 63 of [the NTRC] Regulations Act, and Paragraphs 18 and 19 of [the Tendering Rules] that [the NTRC] must adopt only one of the decisions envisaged by section 63 of [the NTRC] Regulations Act, and in the cases in question [the NTRC] adopted the decision recognising the winner and granting a television and radio broadcasting licence not in respect of each bid but based on the results of the call for tenders. The above is also directly implied in the wording of section 61 Paragraph 2 of [the NTRC] Regulations Act, according to which decisions to award television and radio broadcasting licences shall be adopted by [the NTRC] based on the results of the tender process and not as a result of the examination of a bid.
The law actually distinguishes between cases where licences are awarded on the basis of the results of a tender process and cases where they are awarded without a call for tenders, as in the case of cable broadcasting licences. That being so, [the NTRC], based on the results of the tender process, adopted one of the decisions envisaged by section 63 of [the NTRC] Regulations Act, namely to grant a television and radio broadcasting licence.
...
[The NTRC's] decision to grant a licence to the winner of the call for tenders cannot be interpreted other than as a decision refusing a licence to the other participants in the bidding. Following the adoption of a decision by [the NTRC] determining the winner of the call for tenders and awarding a licence to it, there can be no uncertainty for the other participants in the tender process as to whether their bid has or has not been refused, since they are told who the winner is and, consequently, that they have not won.
...
It has been established in the court proceedings that [the NTRC], in keeping with the requirements of section 50 of [the Broadcasting Act], section 63 of [the NTRC] Regulations Act and Paragraph 19 of the Rules, adopted decisions granting television broadcasting licences and sent them to [the applicant company] within the period prescribed by section 67 of [the NTRC] Regulations Act and Paragraph 22 of the Rules, as evidenced by [the letters of 12 June, 19 July, 14 October and 30 December 2003].
The above-mentioned letters actually serve as evidence that [the NTRC] informed [the applicant company] that it was not selected as the best organisation in the tender process, and, having been informed of the decisions concerned, [the applicant company] also learnt that it had not won the television broadcasting licences for decimetric bands 25, 31, 39, 51, 56 and 63, and metric band 3 in the Yerevan area, meaning that its bid was rejected, which substantiates the fact that [the applicant company] was informed of the reasons and legal grounds for the above-mentioned decisions of [the NTRC], and in particular that [the NTRC], in adopting its decision, was guided by the requirements of section 50 of [the Broadcasting Act], which establishes the selection criteria for licence holders.
Thus, in the light of the above the court concludes that [the second applicant] was informed in a timely and lawful manner about the decisions concerning the results of the television broadcasting licensing tender processes for decimetric bands 25, 31, 39, 51, 56 and 63, and metric band 3 in the Yerevan area, which in substance contained the grounds and reasons for the refusal of [the applicant company's] bids. Consequently, [the NTRC] did not display inaction and did not violate [the applicant company's] rights guaranteed by law, therefore these claims are unfounded and must be dismissed.”
49. On 1 April 2004 the applicant company lodged an appeal on points of law, raising the same arguments as in its initial applications.
50. On 23 April 2004 the Court of Cassation dismissed that appeal, repeating verbatim the relevant findings of the Commercial Court and concluding that:
“In such circumstances the arguments raised in the appeal on points of law are unfounded because they are rebutted in detail by the findings contained in the Commercial Court's judgment.”
51. On 11 December 2003 the applicant company instituted proceedings in the Commercial Court against the NTRC, contesting its decision of 13 October 2003 awarding the licence for band 63 to Cinemax Ltd. The applicant company submitted, inter alia, that Cinemax Ltd had provided false, incomplete and misleading information in its tender which the NTRC had ignored when granting the licence. It further submitted that Cinemax Ltd had neither the means nor the intention to broadcast on that frequency and would effectively pass on its broadcasting licence to a company called Armnews TV, which was unregistered as a media entity.
52. In the proceedings before the Commercial Court, the applicant company lodged several requests for the NTRC to be ordered to provide certain documents which it allegedly had in its possession and which, according to the applicant company, were relevant to the outcome of the case, including an agreement signed between Cinemax Ltd and Armnews TV allegedly contained in the former's tender documents. It also requested the court to call Mr S., the head of Armnews TV, as a witness.
53. The Commercial Court examined and dismissed these requests. As to the request to order the provision of certain documents, the Commercial Court found that the applicant company had failed to substantiate its inability to obtain this evidence on its own, as required by the law. Nor was it proven that the evidence in question was actually in the NTRC's possession. As to the request to call Mr S., the Commercial Court found this to be unnecessary because there was sufficient written evidence to decide on the disputed matters.
54. On 21 January 2004 the Commercial Court decided, in a judgment containing two and a half pages of legal reasoning, to reject the applicant company's claims as unfounded. In doing so, having examined the parties' arguments, the Commercial Court found, inter alia, that the relevant tender process had been conducted, and the resulting decision taken, in compliance with the law.
55. On 4 February 2004 the applicant company lodged an appeal on points of law, which it later supplemented on 10 February 2004, raising the same arguments as in its initial application.
56. On 27 February 2004 the Court of Cassation dismissed that appeal, repeating verbatim the relevant findings of the Commercial Court and concluding that:
“In such circumstances the arguments raised in the appeal on points of law are unfounded because they are rebutted in detail by the findings contained in the Commercial Court's judgment.”
57. As to the dismissal of the applicant company's requests, the Court of Cassation found that the Commercial Court had examined and dismissed them in reasoned decisions, and that there was therefore no issue of equality of arms.
58. The relevant provisions of the Code, as in force at the material time, read as follows:
“Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant's rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.”
59. The relevant provisions of the Broadcasting Act, as in force at the material time, read as follows:
“In Armenia television and radio broadcasting shall be conducted on the basis of a licence.”
“Physical or legal persons can be licensed to operate only one television and radio company or one television and/or one radio company having on-air broadcasting in the same coverage area.”
“The National Television and Radio Commission (hereafter, the National Commission) is an independent body with the status of a public agency whose activity is regulated by this law, its regulations and the legislation of Armenia. The National Commission deals with licensing and monitoring of only private television and radio companies (television companies or radio companies).
The National Commission: (a) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders; ... (c) shall grant licences...”
“The National Commission shall have nine members appointed by the President of Armenia for a term of six years, with the exception of the first composition...”
“...The Commission shall be composed of eight members.”
“The National Commission is an independent regulatory public authority half of whose members shall be elected by the National Assembly for a term of six years and the other half appointed by the President of the Republic for a term of six years with the exception of the first composition.”]
“A licence shall be the only legal basis authorising the broadcast of television and radio programmes and the use of a particular frequency or a cable network for broadcasting in the territory of Armenia, except for the cases prescribed by law.
A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders...”
“When selecting the licence-holder, the National Commission shall take into account:
(a) the predominance of programmes produced in-house;
(b) the predominance of programmes produced in Armenia;
(c) the technical and financial capacity of the applicant; and
(d) the professional level of the staff.”
“...The National Commission shall give proper reasons for its decisions to select a licence-holder, refuse a licence or invalidate a licence”]
“A licence shall not be granted if:
(a) the applicant cannot be a licence-holder pursuant to this law;
(b) the information contained in the bid is inaccurate; or
(c) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient.
An applicant shall be informed in writing of the reasons for the refusal of a licence within ten days from the date of the decision.
The refusal of a licence can be contested before the courts.”
“...A licence to broadcast television and radio programmes or to produce and broadcast [such programmes] shall be granted to television and radio companies: (a) ...; (b) for a period of five years for on-air television and radio broadcasting.”
60. The relevant provisions of the NTRC Regulations Act read as follows:
“The Commission shall define the procedure, conditions and time-limits of the tender process for television and radio broadcasting licences.
Two months before the expiry of a television and radio broadcasting licence or once a vacant (unassigned) frequency becomes available, the Commission shall announce a call for tenders for a licence to broadcast on that frequency.”
“The Commission shall: ... (c) grant licences...”
“...
In order to grant a broadcasting licence, the Commission, at its meeting and within the period prescribed by the tendering rules, shall adopt a decision on the basis of the results of a call for tenders.
The Commission shall publish information on the place, time and agenda of its meeting in the press not later than five days before the date of the meeting.”
“Following the consideration of a bid, the Commission shall adopt one of the following decisions: (a) to grant a licence; or (b) to refuse a licence.”
“A copy of the decision granting or refusing a licence shall be duly sent to the applicant within ten days from its adoption.”
61. The relevant provisions of the Tendering Rules, as in force at the material time, read as follows:
“18. The Commission shall hold an open point-based vote in the order in which the bids are examined. The best organisation shall be selected according to the results of the point-based vote.
19. The Commission shall adopt a decision recognising the best organisation as the winner and granting a television and radio broadcasting licence.
20. The Commission shall deliver its decision immediately after its adoption.
...
22. A copy of the Commission's decision shall be duly sent to the participants in the tender process within ten days after its adoption.”
62. On 20 December 2000 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2000)23 to Member States on the independence and functions of regulatory authorities for the broadcasting sector, in which it recommended that the Member States, inter alia, “include provisions in their legislation and measures in their policies entrusting the regulatory authorities for the broadcasting sector with powers which enable them to fulfil their missions, as prescribed by national law, in an effective, independent and transparent manner, in accordance with the guidelines set out in the appendix to this recommendation”.
63. The guidelines appended to the recommendation, provide, as relevant:
“...
3. The rules governing regulatory authorities for the broadcasting sector, especially their membership, are a key element of their independence. Therefore, they should be defined so as to protect them against any interference, in particular by political forces or economic interests.
4. For this purpose, specific rules should be defined as regards incompatibilities in order to avoid that:
– regulatory authorities are under the influence of political power;
– members of regulatory authorities exercise functions or hold interests in enterprises or other organisations in the media or related sectors, which might lead to a conflict of interest in connection with membership of the regulatory authority.
5. Furthermore, rules should guarantee that the members of these authorities:
– are appointed in a democratic and transparent manner;
– may not receive any mandate or take any instructions from any person or body;
– do not make any statement or undertake any action which may prejudice the independence of their functions and do not take any advantage of them.
...
13. One of the essential tasks of regulatory authorities in the broadcasting sector is normally the granting of broadcasting licences. The basic conditions and criteria governing the granting and renewal of broadcasting licences should be clearly defined in the law.
14. The regulations governing the broadcasting licensing procedure should be clear and precise and should be applied in an open, transparent and impartial manner. The decisions made by the regulatory authorities in this context should be subject to adequate publicity.
...
27. All decisions taken and regulations adopted by the regulatory authorities should be:
– duly reasoned, in accordance with national law;
– open to review by the competent jurisdictions according to national law;
– made available to the public.”
64. The relevant extracts of this Declaration provide as follows:
“13. In most Council of Europe member states, the members of regulatory authorities are appointed by the parliament or by the head of state at the proposal of parliament. In some member states, in order to ensure that the membership of the regulatory authority reflects the country's social and political diversity, part or all of the members are nominated by non-governmental groups which are considered to be representative of society. Further, in a few member states, the law provides objective selection criteria for the appointment of members.
By contrast, in a number of countries, members are appointed by sole decision of one state authority, e.g. the head of state or a state department, often without clearly specified selection criteria. The appointment of members of regulatory authorities by the head of state and/or parliament has sometimes been criticised advancing that, in such cases, membership would represent or reproduce political power structures.
14. Concerns have often been raised that the nominating or appointing bodies could exert pressure on the members after their appointment. In fact, in some member states, the members of regulatory authorities are frequently accused of acting on behalf of the state body that designated them or political formation behind the designating or appointing authority.”
65. In paragraph 19 of this Resolution the PACE stated:
“As regards freedom of expression and media pluralism, the Assembly is concerned at developments in the audiovisual media in Armenia and expresses serious doubts as to pluralism in the electronic media, regretting in particular that the vagueness of the law in force has resulted in the National Television and Radio Commission being given outright discretionary powers in the award of broadcasting licences, in particular as regards the television channel A1+.”
VIOLATED_ARTICLES: 10


ITEMID: 001-71679
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ZAUGOLNOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (non-enforcement of judgment);Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1946 and lives in Neryungri.
5. On 10 April 2002 the Nyuringri Town Court granted the applicant’s civil action against the Neryungri Town police department and awarded her 16,683.23 Russian roubles (“RUR”). On 5 June 2002 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment on appeal. On the same day the judgment became final and enforceable.
6. On 3 December 2002 the Nyuringri Town Court issued a writ of execution.
7. On 16 July 2003 the applicant submitted the writ of execution to the Neryungri Town police department.
8. On 8 December 2004 the Neryungri Town Administration transferred RUR 16,683.23 to the applicant’s account.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1