EUROPEAN COURT OF HUMAN RIGHTS Council of Europe Strasbourg, France APPLICATION under Article 34 of the European Convention on Human Rights and Rules 45 and 47 of the Rules of the Court THE PARTIES THE APPLICANT Surname Delova First name (s) Irina Borisovna Sex female Nationality – Russian Occupation disability pensioner Date and place of birth – 23 February 1964, Leningrad Permanent address 3 Zayachiy Lane, Psychoneurological Social Care Home no. 3, Petrodvorets, St. Petersburg, Russia Tel. N( 7 812 9828915 Present address (if different from 6.) Name and occupation of representatives Dmitri Bartenev, Attorney-at-law, MDAC Legal Monitor Address of representative 3 Furazhnyi Pereulok 210, St. Petersburg, 191015 RUSSIA Tel. N( (Russia) 7 812 9828915 Fax N( (Russia) 7 812 6801384 THE HIGH CONTRACTING PARTY Russian Federation II. STATEMENT OF THE FACTS The applicant Irina Borisovna Delova was born in 1964 and has lived in Leningrad. In 1968 the applicant was placed into state care. From 1968 till 1982 she stayed at the orphanage for children with intellectual disabilities. Since 1982 the applicant has lived in specialized (psycho-neurological) Social Care Home no. 3 in St. Petersburg (hereinafter the social care home). The applicant has suffered from cerebral palsy since her childhood. Because of this disability she is unable to walk and therefore can only move using a wheel chair. The applicant has substantial difficulties in writing and in oral communication. In fact, the applicant cannot clearly articulate words or phrases due to severe muscle spasms however, she can easily communicate with those who are used to her way of articulation and her own sign language, including her room-mates, her mother, staff of social care home and volunteers. During her stay at the orphanage and subsequently at the social care home for over forty years the applicant did not receive any formal education or any meaningful rehabilitation aimed at enhancing her independent living or decision-making. However, since 2000 the applicant benefitted from interaction with volunteers of disability charities who would spend time with the applicant teaching her reading and writing skills or otherwise communicate with her. The applicants mother has been visiting the applicant regularly at the social care home for the past ten years and has been supporting her by purchasing her those items which the applicant would request and which were unavailable the institution. The applicant allocated her disability pension for this purpose. In December 2007 the social care home lodged an application with the Petrodvortsovyi District Court of St. Petersburg in order to declare the applicant legally incapable (appendix a). The applicant was accordingly judged legally incapable on 27 March 2008 as a result of the court proceedings in which she did not take part (appendix c). The judgment was based on the 21 February 2008 expert report which concluded that the applicant had severe intellectual deficiency and therefore could not understand the meaning of her actions and govern them (appendix b). The 27 March 2008 judgment was reversed on 10 December 2009 on the basis of procedural violations and the incapacity proceedings were reopened. On 28 January 2010 the District Court ordered Psychiatric Hospital no. 6 of St. Petersburg to conduct expert assessment of the applicants mental capacity. The court requested that the commission of experts of the mental hospital included independent experts indicated by the applicant a psychiatrist (Ms. Martsinkevich) and a clinical psychologist (Ms. Artamonova). However Psychiatric Hospital no. 6 refused to include in the commission the experts indicated by the applicant. Consequently there were two separate reports prepared on 28 March 2010 by the mental hospital (hereinafter the experts report, appendix e) and on 5 October 2010 by the experts indicated by the applicant (hereinafter the specialists report, appendix f). The 28 March 2010 experts report, unlike the 21 February 2008 report, concluded that the applicant had mild intellectual deficiency. The report noted that since 2000 when the applicant started rehabilitation activities there has been a positive dynamics in her condition. As to the applicants mental capacity the report stated that the applicants intellectual disability prevented her from sufficient everyday orientation and environment assessment, comprehensive evaluation of a situation, its processing and systematization of the information received for its later use. Due to her intellectual disability the applicant was considered unable to understand the meaning of her actions and govern them in the sphere of civil relations, protection of her housing rights, family relations and health care relations. However, the report noted that the applicant was capable of deciding simple everyday issues with the help of others, including disposal of small amounts of money for satisfying everyday needs and spend her leisure taking into account her capabilities. The descriptive part of the experts report further detailed the applicants mental faculties (appendix e page 5). The 5 October 2010 specialists report also concluded that the applicant had mild intellectual deficiency. As to the applicants mental capacity the report stated that the above intellectual deficiency did not influence the applicants capacity to understand the meaning of her actions and govern them in the civil relations related to everyday transactions as the applicant knows the amount of her pension, she is able to dispose of her money both immediately (for purchasing things which she needs) and in a long-term perspective (for planning her expenses to cover trips outside social care home). However, the specialists noted that in order to deal with more complex legal issues, such as disposal of real estate, the applicant needs the help of others, a high level of support and protection of her rights in this sphere. As to the medical issues the specialists concluded that the applicant had sufficient level of understanding of her health care needs taking into account her limited experience. In conclusion, the report stated that the applicants mental disorder did not render her unable to understand the meaning of her actions and govern them, and that she had virtually full capacity to understand the meaning of her actions and govern them in most spheres of life. Taking into account the applicants specific micro environment and severe physical impairments and restrictions, lack of formal education, insufficient social experience, the applicant is sufficiently adapted to her everyday needs by having mastered adequate living strategy which provides her with psychological security and access to required care. On 11 November 2010 the Petrodvortsovyi District Court of St. Petersburg ruled on the merits of the case and judged the applicant legally incapable (appendix j). The judgment noted, however, that the arguments of the applicants attorney that full deprivation of the applicant of her legal capacity would not comply with the necessity and proportionality criteria had been assessed by the court taking into account the provisions of the legislation in force which did not provide for partial limitation of legal capacity in accordance with the degree of the persons mental disorder. The applicant unsuccessfully appealed against this judgment (appendix k) and it became final on 17 March 2011 when the applicants appeal was dismissed by the St. Petersburg City Court (appendix l). III. STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS The applicant submits that the judgment depriving her of her legal capacity constitutes a violation of her rights under Articles 8 and 14 of the Convention. It has been established by the European Court of Human Rights that there is no doubt that deprivation of legal capacity is a serious interference with the applicants rights under Article 8 1 (see Matter v. Slovakia, application no. 31534/96, judgment of 5 July 1999, 68, see also Shtukaturov v. Russia, application no. 44009/05, judgment of 28 March 2008, 83). As a result of her incapacitation the applicant in the present case became fully dependent on her official guardian (the social care home) in almost all areas of life. She is thus subject to full limitation of her substantive and procedural rights, which constitutes an interference with her right to private life under Article 8(1) of the Convention. The applicant maintains that the interference with her private life cannot be justified under Article 8(2) of the Convention. She supports her position with the following reasoning. The applicant has been entirely deprived of her legal capacity according to Article 29 of the Civil Code, which reads Article 29. Recognizing the Citizen as Legally Incapable 1. The citizen who, as a result of a mental disorder, can neither understand the meaning of his actions nor control them, may be recognized by the court as legally incapable in conformity with the procedure laid down by the procedural legislation. In this case, he shall be placed under guardianship. 2. The deeds on behalf of the citizen, who has been recognized as legally incapable, shall be carried out by his guardian. 3. If the grounds because of which the citizen was recognized as legally incapable, have ceased to exist, the court shall recognize him as legally capable. On the grounds of the courts ruling, the guardianship, formerly established over him, shall be recalled. Thus, Russian law allows for depriving a person who has been diagnosed with a mental disorder of legal capacity if the person cannot understand the meaning of his actions nor control them. The law does not explain what kind of actions the applicant should understand and control. There is no distinction made between legal actions and actions in ones private life. Neither is there an explanation of what is meant by controlling actions and what the level of the control is required for retaining legal capacity. The laws deficiency is evident in the applicants case. Even though the medical report stated that the applicant had only a mild intellectual disorder, the district judge found that the requirements of Article 29 of the Civil Code were met. The judge was not called upon to establish the degree to which the applicant could understand and control her actions or assess her capacity to make independent decisions on specific aspects of her life, for the law in question does not require even such basic questions. According to the Courts assessment of the same legislation in Shtukaturov, the existing legislative framework did not leave the judge another choice. The Russian Civil Code distinguishes between full capacity and full incapacity, but it does not provide for any borderline situation other than for drug or alcohol addicts. The Court refers in this respect to the principles formulated by Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe Although these principles have no force of law for this Court, they may define a common European standard in this area. Contrary to these principles, Russian legislation did not provide for a tailor-made response ( 95). Recently the United Nations Human Rights Committee took a similar view in its concluding observations (UN Doc. CCPR/C/RUS/6 of 23 November 2009) 19. The Committee expresses concern about the significant number of persons with mental disabilities who are deprived of their legal capacity in the State party and the apparent lack of adequate procedural and substantive safeguards against disproportionate restrictions in their enjoyment of rights guaranteed under the Covenant. In particular, the Committee is concerned that there are no procedural safeguards and no recourse to appeal against the judicial decision based on the mere existence of a psychiatric diagnosis to deprive an individual of his/her legal capacity, as well as against the decision to institutionalize the individual which often follows legal incapacitation. The Committee is also concerned that persons deprived of legal capacity have no legal recourse to challenge other violations of their rights, including ill-treatment or abuse by guardians and/or staff of institutions they are confined to, which is aggravated by the lack of an independent inspection mechanism regarding mental health institutions. (arts. 9 and 10) The State party should (a) Review its policy of depriving persons with mental disabilities of their legal capacity and establish the necessity and proportionality of any measure on an individual basis with effective procedural safeguards, ensuring in any event that all persons deprived of their legal capacity have prompt access to an effective judicial review of the original decision, and, when applicable, of the decision to subject them to institutionalization This deficiency of the law was acknowledged by the district court in the instant case. The court noted in its judgment of 11 November 2010 that the provisions of the legislation in force did not provide for partial limitation of legal capacity in accordance with the degree of the persons mental disorder. As follows from the judgment this all-or-nothing legislative framework was taken into account by the district court in dismissing the argument that full deprivation of the applicant of her legal capacity would not comply with the necessity and proportionality criteria (appendix j page 5). The applicant submits that the judgment of the district court and the relevant Russian legislation are not in conformity with principles contained in Recommendation R(99)4 of the Council of Europe Committee of Ministers Principles concerning the legal protection of incapable adults (hereinafter Incapacity Principles). As the Court pointed out on a previous occasion, the above principles may define a common European standard in this area (see Shtukaturov, cited above, 95). Principle 5 of the recommendation requires that no measure of protection should be established for an incapable adult unless the measure is necessary, taking into account the individual circumstances and the needs of the person concerned. The relevant parts of the Incapacity Principles further provide as follows Principle 2 Flexibility in legal response 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 a 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. Principle 3 Maximum preservation of capacity 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. Principle 5 Necessity and subsidiarity 1. No measure of protection should be established for an incapable adult unless the measure is necessary, taking into account the individual circumstances and the needs of the person concerned. A measure of protection may be established, however, with the full and free consent of the person concerned. 2. In deciding whether a measure of protection is necessary, account should be taken of any less formal arrangements which might be made, and of any assistance which might be provided by family members or by others. Principle 6 Proportionality 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. Principle 8 Paramouncy of interests and welfare of the person concerned 1. In establishing or implementing a measure of protection for an incapable adult the interests and welfare of that person should be the paramount consideration. The applicant notes that the Russian Civil Code does not allow for a partial limitation of a persons legal capacity, and only full incapacitation is possible. What Russian law does require, however, is that a persons lack of capacity to understand the meaning of their actions and exercise control over them must result from a mental illness. In the applicants individual case, however, her limited ability to live independently and lack of certain basic living skills and knowledge is to a great extent the result of (1) the complete neglect of her education by the care institution she grew up in, (2) her isolation from any meaningful decision-making situations due to life in the social care institution, and (3) her physical disability manifested in reduced mobility and impaired articulation. The applicant submits that if there is a need to restrict her legal capacity in order to protect her from the consequences of her unwise decisions it should be restricted only with regard to the actions which meaning she is unable to understand fully in accordance with the above proportionality principles. In assessing the applicants mental capacity, the District Court relied almost exclusively on the expert medical opinion of 28 March 2010 which concluded that the applicant was unable to understand the meaning of her actions and govern them in the sphere of civil relations, protection of her housing rights, family relations and health care relations. However, the report noted that the applicant was capable of deciding simple everyday issues with the help of others, including disposal of small amounts of money for satisfying everyday needs and spend her leisure taking into account her capabilities. The 5 October 2010 specialists report disagreed with the above assessment of the extent of the impact of the applicants intellectual disability on her decision-making capacity. It found that the applicants mental disorder did not render her completely unable to understand the meaning of her actions and govern them and that she had virtually full capacity to understand the meaning of her actions and govern them in most spheres of life. On the other hand the specialists report agreed with the conclusion that in order to deal with more complex legal issues, such as disposal of real estate, the applicant needs help of others, high level of support and protection of her rights in this sphere. The applicant is aware that it is primarily a matter for the domestic courts to assess the evidence before them and therefore she does not ask the European Court to weigh the above medical reports. However, the key finding in both reports on which the experts agreed is that despite her intellectual disability the applicant is capable of understanding and managing everyday issues, at least with the help of others. Such everyday issues include disposal of the applicants pension, making simple health care decisions etc. This has also been explicitly corroborated by the applicants statements during her interrogation by the district court (see minutes of the proceedings appendix d, page 5) and by the pedagogical report (appendix g). In approaching the issue of the applicants legal capacity the district court, unlike the experts and the specialists reports, made no distinction between, on the one hand, everyday issues, which the applicant can manage independently or with minimal help of others, and on the other hand, complex legal issues, with regard to which the applicant may require assistance or protection. Accordingly the district court decided that due to the applicants diminished capacity to manage complex legal issues she should be completely deprived of her decision-making capacity and the right to make all decisions for the applicant should be vested in another person her legal guardian. Apparently in the present case the district court disregarded the importance of retaining the formal decision-making capacity with regard to everyday issues for the applicant whose entire life has been limited to making everyday decisions only. In this context an assessment of the applicants decision-making capacity with regard to complex legal issues has no practical value and is totally moot as the applicant does not own any valuable possessions (such as real estate) and she has never had a chance to be involved in any legal transactions. There has accordingly been no pressing social need to deprive the applicant of her right to make legal decision in complex relations taking into account the individual circumstances and the needs of the person concerned (The Incapacity Principle 5). The same is true for the test applied for assessing the applicants housing decisions the applicant is fully aware of her physical limitations and does not intend to move away from the social care institution where she currently lives. Were she to do so, the State should provide her with whatever supports she would require in order to be able to live in the community, not deprive her of her legal capacity. One of the general principles of The United Nations Convention on the Rights of Persons with Disabilities (the UN CRPD), which was signed by Russia on 24 September 2008, is Respect for inherent dignity, individual autonomy including the freedom to make ones own choices, and independence of persons. (Article 3(a). Equal recognition of persons with disabilities before the law is a core right of the CRPD, and is articulated in Article 12, under which States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life (Article 12(2)). In order for persons with disabilities who may require help in making decision to be able to exercise their legal capacity in all areas of life, the CRPD requires States to take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity (Article 12(3)). Therefore, rather than depriving persons with disabilities, including persons with intellectual disabilities, of their legal capacity, States have an obligation to allow all persons to exercise their legal capacity by providing them access to supports. This requirement reflects the paradigm shift of the UN CRPD which emphasizes autonomy and freedom of choice and shifts the responsibility of States to the removal of barriers to such autonomy. Laws and practices whose purported purpose is to protect individuals with disabilities who neither seek nor require such protection are completely inconsistent with the CRPD model. The maximum preservation of legal capacity principle of the Incapacity Principles, also promotes the use of supports rather than restrictions and requires that substituted decision-making be used as a measure of last resor.t Principle 5(2) of the Incapacity Principles explicitly provides that in deciding whether a measure of protection is necessary, account should be taken of any less formal arrangements which might be made, and of any assistance which might be provided by family members or by others. It further follows from the judgment of the district court that its assessment disregarded the value of informal support of the applicant in making everyday transactions by her mother, her roommates and the social care staff. The importance of informal support is further stressed in Article 26 of the UN CRPD which requires the states to take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. The relevance of support measures in the applicants situation was highlighted by the psychologist (see minutes of the proceedings appendix h, page 202). In a case concerning a blanket prohibition to vote imposed on all people under guardianship in Hungary the Court has found a violation of the Convention because an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties does not fall within an acceptable margin of appreciation of the states (Alajos Kiss v. Hungary, application no. 38832/06, judgment of 20 May 2010, 42). The applicant invites the Court to take similar approach in the present case as she has been deprived of her right to decide on all personal and financial issues irrespective of her actual ability to do so. In the light of the above, the applicant submits that the decision of the Petrodvortsovyi District Court which deprived her of legal capacity violates her right to respect for private life under Article 8 because It is not mandated by any pressing social need as substituted decision-making (plenary guardianship based on full legal incapacity) protects the applicant only from the negative consequences of decisions which are not relevant to her situation It fails to take into account the proportionality requirement because it restricts the applicants rights under Article 8 of the Convention in all spheres of private life disproportionately to her abilities or to her needs It disregards the fact that in exercising her legal capacity with regard to most decisions the applicant can adequately benefit from informal support of her relatives, roommates or the social care home staff which does not require removal of legal capacity and full substitution of her decisions in all areas of life. Full legal incapacity is thus not at all tailored to the applicants circumstances. Violation of Article 14 of the Convention The applicant has been discriminated against on the basis of her disability in violation of Article 14 in conjunction with Article 8 because the Russian law under which she was deprived of her legal capacity can only be applied to a person who has a mental disorder. This is in clear violation of the Convention on the Rights of Persons with Disabilities, which defines discrimination on the basis of disability as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. (CRPD Article 2). Clearly, deprivation of legal capacity is a restriction which has the purpose and effect of impairing and nullifying the recognition, enjoyment and exercise of numerous economic, social and civil rights. The applicant does not argue that the Russian courts finding that limitations on her ability to make complex decisions were based solely on her status as a person with a disability. Rather she argues that the restriction can only be applied to her because she has a disability. A person in similar circumstances to the applicant who had not received an education, who had been isolated from society, or who for social and economic reasons had difficulty making complex decisions but was not diagnosed with a mental disorder could not be subject to the same restriction under Russian law. This is precisely the type of distinction the CRPD prohibits because it limits the ability of persons with disabilities to enjoy rights on an equal basis with others and contributes to their continued exclusion. As the applicant has argued in regard to her claim under Article 8, there was no legitimate reason for the courts to deprive her of her legal capacity since she is capable of making all of the decisions she actually has to make in her life and has a support network of family and others who can assist her should she require such assistance. In the Courts jurisprudence, the lack of a reasonable relationship of proportionality between a restrictive measure and its purpose based on a category to which a person belongs violates Article 14 (see Glor v. Switzerland, application no. 13444/04, para. 72). The Court found that distinctions made on the basis of disability violate Article 14 in conjunction with Article 8 in the case of Glor v. Switzerland (application no. 13444/04, judgment of 30 April 2009), referring to the existence of a European and universal consensus on the necessity of protecting persons with disabilities from discriminatory treatment. In finding such a consensus, the Court referred to the CRPD. Since the Glor judgment, the CRPD has gained even wider acceptance worldwide and in Europe, having been ratified by 103 States and the European Union. The Court has also held that if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered historical discrimination in the past, such as the mentally disabled, then the States margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question. (Alajos Kiss v. Hungary, application no. 38832/06, judgment of 20 May 2010). The applicants asks the Court to find that the law under which she was deprived of her legal capacity and its application to her particular circumstances discriminated against her on the basis of her disability in violation of Article 14. IV. STATEMENT RELATIVE TO ARTICLE 35 1 OF THE CONVENTION 16. Final decision (date, court or authority and nature of decision) Final decision with regard to a violation of Article 8 of the Convention is decision of St. Petersburg City Court of 17 March 2011. The applicant has no effective remedies with regard to other violations argued in the application. 17. Other decisions (list in chronological order, giving date, court or authority and nature of decision for each of them) 11 November 2010Judgment of the Petrodvortsovyi District Court of St. Petersburg which declared the applicant legally incapable 18. Is there or was there any other appeal or other remedy available to you which you have not used If so, explain why you have not used it. There are no more effective remedies available to the applicant domestically. V. STATEMENT OF THE OBJECT OF THE APPLICATION I ask that the European Court of Human Rights to find that the applicant has been a victim of violations of Articles 8 and 14 of the European Convention on Human Rights because her status as a person fully deprived of legal capacity violates her right to respect for private life under Article 8 and her right to be free from discrimination on grounds of her intellectual disability. Accordingly, the applicant seeks compensation for non-pecuniary damages in accordance with Article 41 of the Convention. VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS 20. Have you submitted the above complaints to any other procedure of international investigation or settlement If so, give full details. The applicant has not lodged any applications on the above issues with any other international bodies. VII. LIST OF DOCUMENTS 21. Application of the social care home to declare the applicant legally incapable, of 12 December 2007. Experts report of 21 March 2008 Judgment of the Petrodvortsovyi District Court of St. Petersburg of 27 March 2008. The minutes of the proceedings of 17 December 2009. Experts report of 28 March 2010 Specialists report of 5 October 2010 Pedagogical report of 5 October 2010 The minutes of the proceedings of 28 October 2010. Written submission of 11 November 2010 Judgment of the Petrodvortsovyi District Court of St. Petersburg of 11 November 2010 Appeal against the 11 November 2011 judgment Decision of the St. Petersburg City Court of 17 March 2011 Power of attorney. VIII. DECLARATION AND SIGNATURE I hereby declare that, to the best of my knowledge and belief, the information I have given in the present application form is correct. 12 September 2011, St. Petersburg Dmitri Bartenev, Representative A form of authority signed by the applicant should be submitted if a representative is appointed. PAGE PAGE 2 File-number Y, dXiJ(x( I_TS 1EZBmU/xYy5g/GMGeD3Vqq8K)fw9
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