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

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in DATE and currently lives in ORG ( hereinafter “ the Kėdainiai Home ” ) for individuals with general learning disabilities .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant has had a history of mental disorder since DATE , when she experienced shock having discovered that she was an adopted child . She is classed as Category CARDINAL disabled .

In DATE , the applicant was diagnosed with schizophrenia simplex . In DATE she was diagnosed with circular schizophrenia . In DATE , the applicant was diagnosed with paranoid schizophrenia with a predictable course . She has been treated in psychiatric hospitals CARDINAL times . During her most recent hospitalisation at ORG in DATE , she was diagnosed with continuous paranoid schizophrenia ( paranoidinė šizofrenija , nepertraukiama eiga ) . The diagnosis of the applicant remains unchanged .

In DATE the applicant ’s adoptive father applied to GPE to have the applicant declared legally incapacitated . The court ordered a forensic examination of the applicant ’s mental status .

In their report ( no . CARDINAL of DATE ) , 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 ” .

On DATE the Kaunas ORG granted the request by the applicant ’s adoptive father and declared the applicant legally incapacitated . In a CARDINAL - page ruling , the court relied on medical expert report no . CARDINAL . Neither the applicant nor her adoptive father was present at the hearing . ORG of ORG was represented before the court .

On DATE 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 .

On DATE the Kaunas ORG appointed PERSON , the applicant ’s psychiatrist at the GPE out - patient health centre ( FAC ) , 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 .

By a decision of DATE , the director of the health care centre dismissed ORG from her work for a serious violation of her working duties . The decision was based on numerous reports submitted by ORG colleagues and superiors .

On DATE PERSON wrote to GPE 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 , ORG 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 DATE . ORG also contended that the applicant ’s adoptive father had attempted to unlawfully appropriate the applicant ’s property .

On DATE the ORG relieved ORG her duties as the applicant ’s guardian at her own request . In court ORG had argued that as she was litigating for unlawful dismissal she could not take proper care of the applicant .

By letter of DATE , ORG suggested to the district court that the applicant ’s adoptive father be appointed her guardian , although the ORG noted that relations between the CARDINAL of them were tense .

On DATE the Kaunas City District Court appointed the applicant ’s adoptive father as her legal guardian . The court relied on the request by ORG , 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 .

Upon the initiative and consent of the applicant ’s adoptive father , on DATE the applicant was taken to ORG 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 ORG were limited on the ground that the latter had had a negative influence on the applicant . However , on DATE the prosecutor for GPE 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 .

On DATE a panel designated by ORG to examine cases of admission to residential psychiatric care ( ORG miesto savivaldybės asmenų su proto negalia siuntimo į stacionarias globos įstaigas komisija ) adopted a unanimous decision to admit the applicant to ORG .

On DATE a medical panel of ORG 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 ” .

On DATE a social worker examined the conditions in which the applicant lived in her apartment in GPE . 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 ORG company ” . The social worker recommended that the applicant be placed in a social care institution because her adoptive father could not “ manage ” her .

On DATE an agreement was concluded between the Kėdainiai Home , ORG of ORG and ORG of ORG . On the basis of that agreement , the applicant was transferred from ORG to ORG , where she continued her treatment .

On DATE the applicant signed a document stating that she agreed to be examined by the doctors in the Kėdainiai Home and to be treated there .

On DATE 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 , ORG 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 .

On DATE , upon the decision of the ORG director , ORG was not allowed to visit the applicant . The applicant ’s medical record , which a treating psychiatrist signed DATE , states that “ [ the applicant ] is acclimatising at the institution with difficulties , as her former guardian and former doctor [ ORG ] 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 ” .

According to a document signed by ORG on DATE , 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 PERSON prie telefono nekviečia ) .

On DATE the applicant ’s adoptive father removed her from institutional care and taken her to his flat . On DATE 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 DATE , and was taken back to the Kėdainiai Home .

On DATE the applicant left the Kėdainiai Home without informing its management . She was found by the police and taken back to the institution on DATE .

As can be seen from a copy of the record of the Kėdainiai Home ’s visitors submitted by the ORG , DATE and DATE the applicant received CARDINAL or more visitors on CARDINAL separate occasions . In particular , her adoptive father saw her CARDINAL times , her friends and other relatives visited her CARDINAL times and she was visited by ORG occasions .

On DATE the applicant asked ORG to initiate a change of guardianship from her adoptive father to PERSON 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 .

The applicant states that a similar request was rejected by ORG .

On DATE , assisted by her former guardian and then friend , PERSON , 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 LAW and stated that her state of health in DATE 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 DATE she had used to visit her friend in a village for DATE at a time . The applicant also noted that when she returned to GPE , her adoptive father had often threatened to have her committed to a mental asylum .

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 CARDINAL of LAW and LAW , the court had disregarded the strained relationship between the CARDINAL of them . The applicant drew the court ’s attention to the ruling of GPE of DATE , in which the applicant ’s adoptive father had himself stated that their relationship had been tense . The applicant drew the court ’s attention to LAW , 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 DATE .

By a ruling of CARDINAL DATE GPE decided to accept the applicant ’s request for examination .

On DATE the applicant wrote to the Chairman of GPE . 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 .

On DATE judge PERSON of GPE held a closed hearing in which the applicant , her guardian ( her adoptive father ) and his lawyer , and PERSON took part . The relevant ORG institutions were also represented at the hearing : ORG , ORG , the prosecutor and ORG of ORG . 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 .

In her application form to the ORG , the applicant alleged that at the beginning of the hearing the judge had ordered her to leave her place next to ORG and to sit next to the judge . The judge had also ordered ORG to keep her eyes off the applicant ” . Given that this was not reflected in the transcript of the hearing , on DATE PERSON had written to the court asking that the transcript be rectified accordingly .

According to the transcript of the hearing , at the beginning thereof ORG 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 .

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 ORG 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 .

In her application to the ORG , 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 PERSON would also be declared legally incapacitated . As stated in ORG ’s letter seeking rectification of the transcript ( paragraph CARDINAL 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 GPE , to his place ... and let me see PERSON and my friends ” .

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 ORG institutions – ORG , ORG , the prosecutor , ORG of ORG – and the applicant ’s guardian ’s lawyer each argued that the applicant ’s request for reopening was clearly unfounded and should be dismissed .

On DATE the Kaunas City District Court refused to reopen the guardianship proceedings on the basis of Article CARDINAL § CARDINAL ( CARDINAL ) of LAW , 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 , ORG 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 DATE , 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 ORG and the director of ORG to the effect that the applicant ’s contact with ORG had had a negative influence on her mental health .

GPE proceeded to fine ORG litai ( LTL ) ( MONEY ( ORG ) ) for abuse of process . It noted that ORG had filed numerous complaints before various ORG 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 , [ ORG ] caused damage to the ORG , namely the waste of time and money of the court and the participants in the proceedings . The court concludes that [ ORG ] has abused her rights ... and the vulnerability of the incapacitated person ” .

D.G. appealed against the above decision . She noted , inter alia , that the DATE ruling to appoint the applicant ’s adoptive father as her guardian had been adopted by judge PERSON The same judge had dismissed the applicant ’s request that the court proceedings be reopened , although this was explicitly prohibited by LAW .

The applicant also submitted a brief in support of ORG 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 .

The appeal by ORG was dismissed by ORG on DATE in written proceedings . The court did not rule on the plea that the district court judge PERSON had been partial .

On CARDINAL DATE ORG declared PERSON ’s subsequent appeal on points of law inadmissible , as it had not been submitted by a lawyer and raised no important legal issues .

By a ruling of CARDINAL DATE GPE , 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 ( DATE 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 .

On DATE , GPE 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 .

On DATE 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 NORP - 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 .

On DATE 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 DATE , and the deposit made on 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 .

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 ORG 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 can not be classified as an unlawful deprivation of liberty , punishable under LAW ( CARDINAL ) of LAW ” .

The prosecutor had also conducted an inquiry into an incident which had occurred at the Kėdainiai Home on DATE . After questioning the personnel of the Home , it was established that on DATE the applicant had been placed in the intensive supervision ward ( intensyvaus stebėjimo kambarys ) , had been given an additional dose of tranquilisers ( QUANTITY of PERSON ) and had been tied down ( fiksuota ) for TIME by social care staff .

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 .

Questioned by the prosecution as witnesses , social workers at the Kėdainiai Home testified that DATE 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 .

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 .

On DATE the higher prosecutor upheld that decision .

With the assistance of ORG , the applicant addressed a number of complaints to various ORG authorities .

On DATE , in reply to a police inquiry into the applicant ’s complaint of unlawful detention in the Kėdainiai Home , ORG department wrote that “ [ in ] DATE , relations between the applicant and her adoptive father have been tense . Therefore , on the wish of both of them , until DATE [ the applicant ’s ] legal guardian was PERSON and not her adoptive father ” .

ORG 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 LOC 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 ORG authorities were under an obligation to be diligent as regards supervision of how the guardians use their rights .

On DATE ORG filed a complaint with the police , alleging that the applicant had been unlawfully deprived of her liberty and of contact with people from outside FAC . By letter of CARDINAL DATE , the police replied that no violation of the applicant ’s rights had been found . They explained that , in accordance with the internal rules of ORG , 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 .

On DATE upon the inspection performed by food safety authorities out - of - date frozen meat ( best before CARDINAL DATE ) was found in the Kėdainiai Home . However , there was no indication that that meat would have been used for cooking . On DATE the GPE Governor ’s office inspected the applicant ’s living conditions in GPE and found no evidence that she could have been receiving food of bad quality .

On DATE the applicant complained to ORG about her admission to long - term care . By letter of CARDINAL DATE , ORG noted that no court decision to hospitalise the applicant had been issued , and that she had been admitted to ORG after her adoptive father had entrusted that institution with her care .

On DATE , ORG , 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 .

By a decision of DATE , the GPE prosecutor discontinued a pre - trial investigation into alleged unlawful deprivation of the applicant ’s liberty .

Article CARDINAL of LAW prohibits torture or degrading treatment of persons . Article CARDINAL thereof states that private life is inviolable .

DATE . The Law on Mental Heath Care provides :

“ CARDINAL . Main Definitions

“ 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 PERSON , 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 CARDINAL of this PERSON 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 . ”

DATE 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 : CARDINAL ) CARDINAL psychiatrist , upon examining the patient , recommended that he or she had to be treated as an inpatient at a mental health facility ; CARDINAL ) 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 LAW 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 LAW that law did exist , the patient could be involuntarily hospitalised and given treatment in a mental health facility for a period not exceeding TIME without court authorisation . If the court did not grant the authorisation within TIME , involuntary hospitalisation and involuntary treatment had to be terminated ( LAW ) .

As concerns legal incapacity and guardianship , the Civil Code provides :

“ CARDINAL . 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 .

Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian ...

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 .

NORP 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 . ”

“ CARDINAL . Guardianship shall be established with the aim of exercising , protecting and defending the rights and interests of a legally incapacitated person .

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 . ”

“ CARDINAL . 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 .

NORP The guardian shall be entitled to enter into all necessary transactions in the interests and on behalf of the represented legally incapacitated ward ... ”

“ CARDINAL . Guardianship and curatorship authorities are the municipal or regional [ government ] departments concerned with the supervision and control of the actions of guardians and curators .

NORP 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 ... ”

“ CARDINAL . Having declared a person legally incapacitated or of limited active capacity , the court shall appoint the person ’s guardian or curator without delay .

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 ... ”

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 . ”

“ CARDINAL . An adult person declared legally incapacitated by the courts shall be placed under guardianship by a court judgment . ”

“ CARDINAL . Guardianship and curatorship authorities shall be obliged to monitor whether the guardian / curator is fulfilling his or her duties properly . ”

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 ) ( LAW ) . A prosecutor has the right to submit a claim to protect the public interest ( LAW .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW provides that proceedings may be reopened if CARDINAL of the parties to them was incapacitated and did not have a representative .

LAW 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 .

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 CARDINAL ) . 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 ( LAW and CARDINAL ) .

Article CARDINAL § CARDINAL 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 .

Pursuant to LAW , 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 .

LAW 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 .

DATE . 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 .

In a ruling of CARDINAL DATE ORG 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 .

The Law on ORG 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 ( LAW ) .

The Requirements for residential social care institutions and the Procedure for admission of persons thereto , approved by Order No . CARDINAL of the Minister of ORG on DATE and published in ORG ( PERSON žinios ) on DATE , 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 CARDINAL 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 .

The Government submitted to the ORG an application by the Kėdainiai Home of DATE to GPE for the restoration of capacity ( dėl neveiksnumo panaikinimo ) of an individual , ORG had been ORG ’s guardian . The director of ORG had noted that after ORG ’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 ORG ’s legal capacity .

The Bylaws of the Kėdainiai Home ( ORG pensionato gyventojų vidaus tvarkos taisyklės ) , as approved by an order of the director dated DATE , 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 DATE , 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 .

In a ruling of CARDINAL DATE in civil case No . DATE , ORG noted that the person whom it is asked to declare incapacitated is also a party to the proceedings ( LAW ) . 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 DATE the person whom the court had been asked to declare incapacitated DATE was assessed by ORG 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 . ORG 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 PERSON ’s right to appeal against the decision to declare her incapacitated , because the decision had not been delivered to her . ORG also referred to Principle no . CARDINAL of Recommendation No . R ( CARDINAL ) CARDINAL by ORG ( see paragraph CARDINAL 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 LAW . In this regard , ORG also referred to the ORG ’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 ( PERSON , PERSON , both cited below , and PERSON v. GPE , no . CARDINAL , DATE ) .

In the same ruling , ORG 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 .

This Convention entered into force on DATE . It was signed by GPE on DATE and ratified on CARDINAL DATE . The relevant parts of the Convention provide :

“ CARDINAL . DATE States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law .

DATE States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life .

DATE States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity .

DATE 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 .

Subject to the provisions of this article , GPE 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 . ”

“ CARDINAL . DATE 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 .

DATE 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 . ”

The relevant parts of this Recommendation read as follows :

“ CARDINAL . 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 .

The range of measures of protection should include , in appropriate cases , those which do not restrict the legal capacity of the person concerned . ”

“ CARDINAL . NORP 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 .

NORP 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 . ... ”

“ CARDINAL . 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 .

NORP 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 . ”

“ CARDINAL . Measures of protection should , whenever possible and appropriate , be of limited duration . Consideration should be given to the institution of periodical reviews .

There should be adequate rights of appeal . ”

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 CARDINAL , CARDINAL - CARDINAL ) analyses situation in ORG .

The ORG noted that NORP legislation does not provide for an involuntary placement procedure in social welfare establishments . At ORG , residents were admitted on their own application or that of their guardian through the competent district authority ( ORG ) . The decision on the placement was taken by the social affairs unit of ORG 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 ORG . 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 ) .

Specific reference was made to the situation of residents deprived of their legal capacity . Such persons could be admitted to the ORG 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 ORG ’s view , placing incapacitated persons in a social welfare establishment which they can not leave at will , based solely on the consent of the guardian , entailed a risk that such persons will be deprived of essential safeguards .

It was also a matter of concern that all CARDINAL 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 ORG stressed that CARDINAL 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 ORG reiterated its recommendation that the NORP authorities strive to find alternative solutions which would better guarantee the independence and impartiality of guardians .

In the context of discharge from psychiatric institution procedures , the ORG recommended that the NORP 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

Lastly , the ORG 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 .


CASE OF ŘÍMSKOKATOLICKÁ FARNOST OBŘÍSTVÍ v. THE CZECH REPUBLIC

Violation of Art. 6-1;Non-pecuniary damage - financial award

The applicant is an organisational unit of ORG with its head office in GPE .

On DATE ( according to the applicant ) or DATE ( according to ORG ) , the applicant lodged an action with ORG ( okresní soud ) against PERSON , seeking to establish its ownership of plots of land with a church and belfry in Obříství .

On DATE ORG dismissed the applicant ’s request of DATE for an interim measure to secure the applicant ’s access to and use of the property in question . This decision was delivered to the applicant ’s lawyer and the defendant on CARDINAL and DATE respectively . On DATE , the defendant received a copy of the applicant ’s action .

On DATE the applicant ’s appeal of DATE against the decision on interim measures was delivered to the defendant , who sent his observations on DATE .

On DATE the case - file was submitted to ORG ( krajský soud ) , which on DATE quashed the lower court ’s decision and remitted the case to it for further consideration . It ordered ORG to hear the parties to the proceedings before deciding on the request .

In DATE ORG decision was received by the parties to the proceedings .

On DATE ORG fixed a hearing for DATE , at which it granted the requested interim measure .

Upon the defendant ’s appeal of DATE , received by the applicant ’s lawyer on CARDINAL DATE and after the submission of the case - file to ORG on DATE , the latter upheld ORG decision on DATE . This decision entered into force on DATE .

On DATE ORG held a hearing , at which it dismissed the applicant ’s action .

On DATE ORG , upon the applicant ’s appeal of DATE , supplemented on DATE , quashed ORG judgment and remitted the case to it for further consideration .

On DATE the applicant ’s received the ORG decision of DATE appointing an expert in the field of church law .

It appears that the proceedings are still pending .


Preliminary objection rejected (victim);Violation of P1-3;Violation of Art. 11;Not necessary to examine Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

NORP In DATE the applicant , who at the material time was a mathematics student at ORG , joined ORG of GPE ( hereafter “ the NORP ” ) . This organisation was in reality a regional branch of ORG of GPE ( hereafter “ the ORG ” ) , the GPE ’s single ruling party .

From DATE the applicant worked as a lecturer at ORG . Throughout this period she was a member of the ORG ’s university branch .

DATE there was considerable social pressure in GPE , as in several other countries of central and eastern LOC , for democratisation of political life and restoration of state independence , which in GPE ’s case had been lost in DATE .

In DATE the applicant was elected to ORG ) of the “ NORP GPE ” ( hereafter “ the NORP SSR ” ) as a representative for the PERSON constituency in GPE . She subsequently joined the ORG ’s local branch . In DATE this branch selected her to attend the ORG ’s ORG , where she was elected to the party ’s ORG . According to copies of that ORG ’s minutes , the applicant was a member of a sub - committee responsible for supervising the implementation of decisions and activities arising from the ORG ’s programme .

At the same congress , a group of delegates expressed their disagreement with the ORG ’s general policy , which remained loyal to GPE and the ORG , was opposed to any democratisation of public life and sought to maintain the status quo . These delegates publicly announced their withdrawal from the ORG and established a new party , ORG ” , which immediately declared its support for NORP independence and for a multi - party political system . The applicant did not join the dissident delegates and remained within the ORG .

On DATE ORG adopted a Declaration on the Restoration of the Independence of the Republic of Latvia , which declared GPE ’s incorporation into the GPE unlawful and void and restored legal force to the fundamental provisions of LAW ( PERSON ) of DATE . However , paragraph CARDINAL of the Declaration introduced a transition period , aimed at a gradual restoration of genuine State sovereignty as each institutional tie with the GPE was severed . During that transition period , various provisions of LAW NORP SSR would remain in force . A special governmental commission was given responsibility for negotiating with GPE on the basis of the Russo - Latvian Peace Treaty of DATE .

The above - mentioned LAW was adopted by CARDINAL out of a total of CARDINAL ORG members , with CARDINAL abstention . CARDINAL members of the “ NORP ” parliamentary bloc ( “ Equal Rights ” , in reality the ORG group ) , including the applicant , did not vote . On DATE , CARDINAL DATE , ORG of the CPL adopted a resolution strongly criticising the LAW and calling on the President of GPE to intervene .

On DATE ORG selected the government of ORG .

The parties dispute the events of DATE and DATE . According to the ORG , on CARDINAL DATE the NORP army launched military operations against the government of independent GPE , which had been formed in the same way as the NORP government . Several persons were killed in the course of those events . Against this background , an attempted coup was also launched in GPE . On DATE the ORG of ORG called for the resignation of the NORP government , the dissolution of ORG and the assumption of full powers by ORG ( PERSON glābšanas komiteja ) , set up on DATE by several organisations , including the ORG . On DATE this committee announced that ORG and the government were stripped of their respective powers and declared that it was assuming full powers . After causing the loss of several lives during armed confrontations in GPE , this attempted coup failed .

The applicant contested the version of events put forward by the Government . In her opinion , the NORP army ’s aggression against the NORP government and people was not a proven fact ; in this connection , she submitted a copy of a NORP newspaper article which claimed that it had been the NORP independence supporters themselves , rather than NORP soldiers , who fired into the crowd , with the aim of discrediting the NORP army . The applicant also claimed that , at the material time , a series of public demonstrations had been held in GPE to protest against the increase in food prices ordered by the government ; those demonstrations were thus the main reason for the events of DATE . Finally , the applicant argued that , in their respective statements of CARDINAL and DATE , the ORG of the ORG ’s ORG and ORG had not only called for or announced the removal of the NORP authorities , but had also stated that early elections would be held for ORG .

On DATE a national vote was held on NORP territory . According to the Government , this was a genuine national referendum ; the applicant argues that it was a simple consultative vote . Electors had to reply to a question worded as follows : “ Do you support a democratic and politically independent GPE ? ” According to figures supplied by the ORG , CARDINAL % of all residents registered on the electoral roll voted : CARDINAL % of them responded in the affirmative to the question posed . The applicant contests the above - mentioned turnout rate and thus the very legitimacy of the plebiscite .

On DATE there was an attempted coup in GPE . The self - proclaimed “ ORG ” declared that Mr PERSON , President of the GPE , was suspended from his duties , declared itself the sole ruling authority and imposed a state of emergency “ in certain regions of the GPE ” .

On DATE , CARDINAL DATE , ORG and ORG of the CPL declared their support for ORG and set up an “ operational group ” to provide assistance to it . According to the Government , on DATE the ORG , the “ NORP ” parliamentary bloc and various other organisations signed and disseminated an appeal called “ LOC iedzīvotāji ! ” ( “ Honourable residents of GPE ! ” ) , urging the population to comply with the requirements of the state of emergency and not to oppose the measures imposed by ORG in GPE . According to the applicant , the ORG ’s participation in all those events has not been proved ; in particular , the members of the “ LOC bloc were taking part in parliamentary debates over DATE and were not even aware that such an appeal was to be issued .

This coup also ended in failure . On CARDINAL DATE , ORG enacted a constitutional law on the state status of GPE and proclaimed the country ’s immediate and absolute independence . LAW DATE , concerning the transition period , was repealed .

By a decision of CARDINAL DATE ORG declared the ORG unconstitutional . The following day , the party ’s activities were suspended and the Minister of ORG was instructed “ to investigate the unlawful activities of the ORG and to put forward ... a motion on the possibility of authorising its continued operations ” . On the basis of the Minister of ORG ’s proposal , ORG ordered the party ’s dissolution on DATE .

In the meantime , on CARDINAL DATE , ORG set up a parliamentary committee to investigate the involvement of members of the “ LOC bloc in the coup . On the basis of that committee ’s final report , ORG revoked CARDINAL members’ right to sit in parliament on DATE ; the applicant was not CARDINAL of those concerned .

NORP In DATE the applicant became chairperson of ORG and Equal Rights in GPE ” ( “ GPE par sociālo taisnīgumu un līdztiesību FAC ) , which later became a political party , “ NORP ” ( “ Equal rights ” ) .

On DATE and DATE parliamentary elections were held in accordance with the restored LAW of DATE . For the first time since NORP independence had been regained , the population elected ORG ) , which took over from ORG . It was at that point that the applicant ’s term of office as a member of parliament expired . As a result of the NORP authorities’ refusal to include her on the ORG register as a NORP citizen , she was unable to take part in those elections , in the following parliamentary elections , held in DATE , or in the municipal elections of DATE . Following an appeal lodged by the applicant , the courts recognised her NORP nationality in DATE , instructing the authorities to register her as such and to supply her with the appropriate documents .

On DATE the “ ORG and Equal Rights in GPE ” submitted to ORG a list of CARDINAL candidates for the forthcoming municipal elections of DATE . The applicant was CARDINAL of those candidates . In line with the requirements of LAW , she signed the list and attached a written statement confirming that she was not one of the persons referred to in section CARDINAL of that Act . Under the terms of the LAW , individuals who had “ actively participated ” ( darbojušās ) in the ORG , the ORG and several other named organisations after DATE were not entitled to stand for office .

In a letter sent on DATE , DATE , the applicant informed ORG that she had been a member of the ORG ’s ORG branch and of its ORG until DATE , date of the ORG ’s official dissolution . However , she argued that the restrictions mentioned above were not applicable to her , since they were contrary to ORG and CARDINAL of LAW .

By a decision of CARDINAL DATE ORG registered the list submitted by the applicant . At the elections of DATE this list obtained CARDINAL of the CARDINAL seats on ORG ( ORG ) . The applicant was one of those elected .

With a view to participating in the parliamentary elections of CARDINAL October CARDINAL , ORG and Equal Rights in GPE ” formed a coalition with ORG ( PERSON partija ) , ORG ( PERSON partija ) and ORG ( PERSON partija ) . The CARDINAL parties formed a united list entitled “ ORG ” . The applicant appeared on this list as a candidate for the constituencies of GPE and Vidzeme .

On DATE the list was submitted to ORG for registration . In accordance with the requirements of LAW , the applicant signed and attached to the list a written statement identical to the one she had submitted prior to the municipal elections . As she had done for the DATE elections , she likewise sent a letter to ORG explaining her situation and arguing that the restrictions in question were incompatible with LAW and with LAW No . CARDINAL to the Convention .

On DATE ORG suspended registration of the list on the ground that the applicant ’s candidacy did not meet the requirements of LAW . Not wishing to jeopardise the entire list ’s prospects of being registered , the applicant withdrew her candidacy , after which the list was immediately registered .

By a letter of CARDINAL DATE the President of ORG asked the ORG Procurator General to examine the legitimacy of the applicant ’s election to ORG .

By a decision of CARDINAL DATE , a copy of which was sent to ORG , ORG ) noted that the applicant had not committed any action defined as an offence in LAW . The decision stated that , although the applicant had provided false information to ORG regarding her participation in the ORG , there was nothing to prove that she had done so with the specific objective of misleading the Commission . In that connection , ORG considered that the statement by the applicant , appended to the list of candidates for the elections of DATE , was to be read in conjunction with her explanatory letter of CARDINAL DATE .

On DATE the General Procurator ’s Office applied to ORG for a finding that the applicant had participated in the ORG after DATE . ORG attached the following documents to its submission : the applicant ’s letter of DATE ; TIME of the meeting of CARDINAL DATE of the ORG ’s ORG ; TIME of the joint meeting of DATE of ORG and the municipal and regional committees for supervision and audit ; the appendices to those TIME , indicating the structure and composition of the said committee and a list of the members of ORG at DATE .

Following adversarial proceedings , ORG allowed the request by ORG in a judgment of DATE . It considered that the submitted documents clearly attested to the applicant ’s participation in the party ’s activities after the critical date , and that the evidence provided by the applicant was insufficient to refute this finding . Consequently , the court dismissed the applicant ’s arguments to the effect that she was only formally a member of the ORG and that she did not participate in the meetings of its ORG , and that accordingly she could not be held to have “ acted ” , “ been a militant ” or “ actively participated ” ( darboties ) in the party ’s activities .

The applicant appealed against this judgment to ORG of ORG . On DATE ORG began examining the appeal . At the oral hearing , the applicant submitted that the content of the above - mentioned minutes of CARDINAL DATE and DATE , referring to her by name , could not be held against her since on both those dates she had been carrying out her duties in ORG and not in the ORG . After hearing evidence from CARDINAL witnesses who stated that the applicant had indeed been present at ORG , the ORG suspended examination of the case in order to enable the applicant to submit more cogent evidence in support of her statements , such as a record of parliamentary debates or TIME of the “ NORP ” parliamentary bloc ’s meetings . However , as the above - mentioned minutes had not been preserved by ORG , the applicant was never able to produce such evidence .

By a judgment of DATE ORG dismissed the applicant ’s appeal . It stated that the evidence gathered by ORG was sufficient to conclude that the applicant had taken part in the ORG ’s activities after DATE . The ORG further noted that the ORG ’s dissolution had been ordered “ in accordance with the interests of ORG in a specific historical and political situation ” and that the international conventions relied on by the applicant allowed for justified limitations on the exercise of electoral rights .

Following ORG judgment , enforceable from the date of its delivery , the applicant was disqualified from electoral office and lost her seat as a member of ORG .

The applicant applied to the ORG of ORG to have ORG judgment quashed . She stressed , inter alia , the disputed restriction ’s incompatibility with LAW . By a final order of DATE the ORG declared the appeal inadmissible . In the ORG ’s opinion , the proceedings in question were limited to a single strictly - defined objective , namely a finding as to whether or not the applicant had taken part in the ORG ’s activities after CARDINAL DATE . The ORG concluded that it did not have jurisdiction to analyse the legal consequences of this finding , on the ground that this was irrelevant to the finding itself . In addition , the ORG noted that any such analysis would involve an examination of the NORP legislation ’s compatibility with constitutional and international law , which did not come within the final appeal court ’s jurisdiction .

The next parliamentary elections took place on DATE . With a view to taking part in those elections , the “ NORP ” party , chaired by the applicant , formed an alliance entitled “ For Human Rights in a GPE ” ( “ ORG cilvēka tiesībām vienotā FAC , abbreviated to ORG ) with CARDINAL other parties , ORG and ORG . The alliance ’s electoral manifesto expressly referred to the need to abolish the restrictions on the electoral rights of persons who had been actively involved in the ORG after DATE .

In DATE ORG of the “ NORP ” party put forward the applicant as a candidate in the DATE elections ; ORG approved this nomination . Shortly afterwards , however , on DATE , the outgoing ORG dismissed a motion to repeal section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The alliance ’s council , which was fully aware of the applicant ’s situation and feared that her candidacy would prevent registration of the ORG ’s entire list , changed its opinion and decided not to include her name on the list of candidates . The applicant then decided to submit a separate list containing CARDINAL name , her own , entitled “ ORG ” .

On DATE the ORG electoral alliance submitted its list to ORG . In all , it contained the names of CARDINAL candidates for GPE ’s CARDINAL constituencies . On DATE the applicant asked the Commission to register her own list , for the constituency of ORG alone . As she had done for the DATE elections , she attached to her list a written statement to the effect that the disputed restrictions were incompatible with the LAW and with GPE ’s international undertakings . On DATE the Commission registered both lists .

By a decision of DATE ORG , referring to ORG judgment of DATE , removed the applicant from its list . In addition , having noted that the applicant had been the only candidate on the “ ORG ” list and that , following her removal , there were no other names , the ORG decided to cancel the registration of that list .

At the elections of CARDINAL DATE the ORG alliance ’s list obtained CARDINAL % of the vote and won CARDINAL seats in ORG .

The operative provisions of the Declaration of CARDINAL DATE on ORG read as follows :

“ ORG of the NORP SSR decides :

( CARDINAL ) in recognition of the supremacy of international law over the provisions of national law , to consider illegal the Pact of DATE between the GPE and GPE and the subsequent liquidation of the sovereignty of GPE through the GPE ’s military aggression on DATE ;

( CARDINAL ) to declare null and void the LAW by the Parliament [ Saeima ] of GPE , adopted on DATE , on GPE ’s integration into ORG ;

( CARDINAL ) to restore the legal effect of LAW [ Satversme ] of GPE , adopted on DATE by ORG [ ORG sapulce ] , throughout the entire territory of GPE . The official name of the NORP state shall be the REPUBLIC of GPE , abbreviated to GPE ;

( CARDINAL ) to suspend LAW pending the adoption of a new version of the LAW , with the exception of those articles which define the constitutional and legal foundation of ORG and which , in accordance with LAW , may only be amended by referendum , namely :

Article CARDINAL GPE is an independent and democratic republic .

DATE The sovereign power of ORG is vested in the NORP people .

Article DATE The territory of ORG , as established by international agreements , consists of ORG , NORP and GPE .

DATE ORG ) shall be elected in general , equal , direct and secret elections , based on proportional representation .

LAW shall be applied after the restoration of the state and administrative structures of the independent ORG , which will guarantee free elections ;

( CARDINAL ) to introduce a transition period for the re - establishment of GPE de facto sovereignty , which will end with the convening of ORG . During the transition period , supreme power shall be exercised by ORG ;

( CARDINAL ) during the transition period , to accept the application of those constitutional and other legal provisions of the NORP SSR which are in force in the territory of the NORP SSR when the present Declaration is adopted , in so far as those provisions do not contradict Articles CARDINAL , CARDINAL , DATE and CARDINAL of the LAW of GPE .

Disputes on matters relating to the application of legislative texts will be referred to ORG .

During the transition period , only ORG shall adopt new legislation or amend existing legislation ;

( CARDINAL ) to set up a commission to draft a new version of LAW that will correspond to the current political , economic and social situation in GPE ;

( CARDINAL) to guarantee social , economic and cultural rights , as well as universally recognised political freedoms compatible with international instruments of human rights , to citizens of GPE and citizens of other GPE permanently residing in GPE . This shall apply to citizens of the GPE who wish to live in GPE without acquiring NORP nationality ;

( CARDINAL ) NORP to base relations between GPE and the GPE on LAW of DATE between GPE and GPE , which is still in force and which recognises the independence of the NORP State for all time . A governmental commission shall be set up to conduct the negotiations with the GPE . ”

The operative provisions of LAW of DATE on ORG ( PERSON likums “ Par Latvijas Republikas valstisko statusu ” ) state :

“ ORG decides :

( CARDINAL ) to declare that GPE is an independent and democratic republic in which the sovereign power of the State of GPE belongs to the NORP people , the state status of which is defined by LAW of DATE ;

( CARDINAL ) NORP to repeal paragraph CARDINAL of the Declaration of CARDINAL DATE on ORG , establishing a transition period for the de facto restoration of GPE state sovereignty ;

( CARDINAL ) until such time as the occupation and annexation is ended and ORG is convened , supreme state power in GPE shall be fully exercised by ORG . Only those laws and decrees enacted by the supreme governing and administrative authorities of GPE shall be in force in its territory ;

( CARDINAL ) NORP this constitutional law shall enter into force on the date of its enactment . ”

NORP The role of the ORG in the former GPE was defined in LAW GPE ( DATE ) and in LAW SSR ( DATE ) , which were worded along identical lines . Those provisions stated :

“ The leading and guiding force of NORP society and the nucleus of its political system and of all state organizations and public organisations is ORG of GPE . The ORG exists for the people and serves the people .

ORG , armed with Marxism - Leninism , determines the general perspectives of the development of society and the course of the GPE ’s domestic and foreign policy , directs the great constructive work of the NORP people , and imparts a planned , systematic and theoretically - substantiated character to their struggle for the victory of communism .

All party organisations shall function within the framework of LAW GPE . ”

ORG decision of CARDINAL DATE on the suspension of the activities of certain non - governmental and political organisations was worded as follows :

“ On DATE ORG of the NORP SSR , ORG , ORG , ORG of ORG of GPE and ORG of GPE of Communist Youth issued a proclamation informing the LOC ’s population that a state of emergency had been decreed in GPE and encouraging all private individuals to oppose those who did not submit to the orders of ORG . In so doing , the above - mentioned organisations ... declared their support for the organisers of the coup ORG and encouraged other individuals to do the same .

The actions of those organisations are contrary to Articles CARDINAL , CARDINAL and DATE of LAW , which state that NORP citizens are entitled to form parties and other associations only if their objectives and practical activities are not aimed at the violent transformation or overturn of the existing constitutional order ... and that associations must observe the LAW and legislation and act in accordance with their provisions .

ORG decrees :

The activities of ORG of GPE [ and of the other above - mentioned organisations ] are hereby suspended ... ”

The relevant parts of ORG decision of DATE on the dissolution of the above - mentioned organisations read as follows :

“ ... In DATE ORG of GPE , ORG of the NORP SSR , ORG and ORG set up ORG and the NORP SSR and LAW , which was renamed ORG on DATE ...

On DATE ORG declared that it was seizing power and dissolving ORG and the Government of GPE .

In DATE ORG of ORG of GPE [ and the other above - mentioned organisations ] supported the coup ...

Having regard to the preceding , ORG decrees :

ORG of GPE [ and the other above - mentioned organisations ] , together with the coalition of these organisations , ORG , are hereby dissolved on the ground that they have acted against the LAW ; ...

Former members of ORG of GPE [ and of the other above - mentioned organisations ] are informed that they are entitled to associate within parties and other associations whose objectives and practical activities are not aimed at the violent transformation or overthrow of the existing constitutional order , and which are not otherwise contrary to LAW and the laws of GPE ... ”

The relevant provisions of LAW ( Satversme ) of GPE , adopted in DATE and amended by LAW October CARDINAL , are worded as follows :

Article CARDINAL

“ All citizens of GPE who enjoy full civic rights and who have reached DATE on DATE of the elections may be elected to ORG .

Article CARDINAL

Legislative power lies with ORG and with the people , in the conditions and to the extent provided for by LAW .

Article CARDINAL

All persons in GPE shall be equal before the law and the courts . Human rights shall be exercised without discrimination of any kind .

Article CARDINAL

All citizens of GPE are entitled to participate , in accordance with the law , in the activities of the ORG and of local government ... ”

The relevant provisions of LAW ( Saeimas vēlēšanu likums ) of CARDINAL DATE provide :

Section CARDINAL

“ All NORP citizens who have reached DATE on DATE of the elections may be elected to ORG , on condition that they are not concerned by CARDINAL of the restrictions provided for in section CARDINAL of the present law .

Section CARDINAL

The following may not stand as candidates in elections or be elected to ORG : ...

( CARDINAL ) persons who actively participated [ darbojušās ] after CARDINAL DATE in the ORG ( ORG ) , ORG of the NORP SSR , ORG , ORG or ORG , or in their regional committees ; ...

section CARDINAL

The following documents must be appended to the list of candidates : ...

( CARDINAL ) a signed declaration by each candidate on the list confirming that he or she meets the requirements of section CARDINAL of this Act and that he or she is not concerned by section CARDINAL ) DATE ( CARDINAL ) of the present Act ; ...

section CARDINAL

“ ... CARDINAL . Once registered , the candidate lists are definitive , and ORG may make only the following corrections :

CARDINAL ) removal of a candidate from the list , where : ...

( a ) the candidate is not a citizen enjoying full civic rights ( sections CARDINAL and CARDINAL above ) ; ...

... [ A ] candidate shall be removed from the list on the basis of a statement from the relevant authority or of a court decision . The fact that the candidate : ...

( CARDINAL ) actively participated after DATE in the ORG ( ORG ) , ORG of the NORP SSR , ORG , ORG or ORG , or in their regional committees , shall be attested by a judgment of the relevant court ; ... ”

The Law of DATE on elections to municipal councils and city councils ( ORG domes un pagasta padomes vēlēšanu likums ) contains similar provisions to the provisions of LAW cited above . In particular , section CARDINAL(CARDINAL ) is identical to section CARDINAL(CARDINAL ) of that Act .

The procedure for obtaining a judicial statement attesting to an individual ’s participation or non - participation in the above - mentioned organisations is governed by LAW of the Code of Civil Procedure ( ORG kodekss ) , which was inserted by LAW DATE and is entitled “ Examination of cases concerning the attestation of restrictions on electoral rights ” . The provisions of that chapter read as follows :

Article CARDINAL - CARDINAL

“ A request for a statement of restriction on electoral rights may be submitted by the prosecutor ...

The request must be submitted to the court in whose territorial jurisdiction is situated the home of the person in respect of whom the attestation of a restriction on electoral rights is requested .

The request may be submitted where an electoral commission has registered a list of candidates which includes ... a citizen in respect of whom there is evidence that , subsequent to CARDINAL DATE , he or she actively participated in the ORG ( in the ORG ) .... A request concerning a person included in the list of candidates may also be submitted once the elections have already taken place .

The request must be accompanied by a statement from the electoral commission confirming that the person in question has stood as a candidate in elections and that the list in question has been registered , as well as by evidence confirming the allegations made in the request . ”

Article CARDINAL

After examining the request , the court shall give its judgment :

( CARDINAL ) finding that , after CARDINAL DATE , the person concerned did actively participate in the ORG ( in the ORG ) ... ;

( CARDINAL ) declaring the request ill - founded and dismissing it ... ”

LAW was enacted on DATE by the first ORG elected after the restoration of GPE ’s independence , otherwise known as the “ FAC ” ( the first CARDINAL legislatures having operated DATE ) . The following legislature ( the Sixth ) , elected in DATE , examined CARDINAL different proposals seeking to repeal section CARDINAL(CARDINAL ) of the above - mentioned LAW . At the plenary session of DATE , the CARDINAL proposals were rejected by large majorities after lengthy debates . Likewise , on DATE , during a debate on a proposal to restrict section CARDINAL(CARDINAL ) , the provision ’s current wording was confirmed . Elected in DATE , the following legislature ( the Seventh ) examined a proposal to repeal section CARDINAL(CARDINAL ) at a plenary session on DATE . After lengthy discussions , the majority of members of parliament refused to accept the proposal .

Finally , the Eighth Legislature , elected in DATE , examined a similar proposal on DATE . It was also rejected .

In a judgment of CARDINAL DATE in case no . DATE , ORG ( PERSON tiesa ) found that the restrictions imposed by PERCENT ) of LAW and section CARDINAL(CARDINAL ) of LAW were compatible with LAW and with LAW , taken in conjunction with LAW No . CARDINAL .

In that judgment , adopted by CARDINAL votes to CARDINAL , ORG first reiterated the general principles laid down in the settled case - law of LAW in applying LAW No . CARDINAL . It further held :

“ ... CARDINAL . The argument that the provisions complained of , forbidding certain NORP citizens from standing as candidates or being elected to ORG and municipal councils , discriminate against them on the basis of their political allegiance , is without foundation .... The impugned provisions do not provide for a difference in treatment on the basis of an individual ’s political convictions ( opinions ) but for a restriction on electoral rights for having acted against the re - established democratic order after CARDINAL DATE ...

Accordingly , ORG limited the restrictions to the degree of each individual ’s personal responsibility [ individuālās atbildības pakāpe ] in carrying out those ORG objectives and programmes , and the restriction on the right to be elected to ORG or to a municipal council ... is related to the specific individual ’s activities in the respective ... associations .

In itself , formal membership of the above - mentioned organisations can not serve as a basis for preventing an individual from standing as candidate or being elected to ORG ....

Consequently , the impugned provisions are directed only against those who attempted , subsequent to CARDINAL DATE and in the presence of the army of occupation , to re - establish the former regime through active participation [ ar aktīvu darbību ] ; on the other hand , they do not affect persons who have differing political convictions ( opinions ) . The tendency of certain courts to concentrate solely on the finding of the fact of formal membership and not to evaluate the person ’s behaviour is inconsistent with the objectives sought by ORG in enacting the provision in issue ...

... Given that those ORG objectives were linked to the overthrow of the existing state regime [ pastāvošās valsts iekārtas graušana ] , they were essentially unconstitutional ...

Consequently , the aim of the restrictions on passive electoral rights is to protect the democratic state order , national security and territorial integrity of GPE . The impugned provisions are not directed against pluralism of ideas in GPE or against a person ’s political opinions , but against those who , through their active participation , have attempted to overthrow the democratic state order .... The exercise of human rights may not be directed against democracy as such ...

The substance and effectiveness of law is demonstrated in its ethical nature [ ētiskums ] . A democratic society has a legitimate interest in requiring loyalty to democracy from its political representatives . In establishing restrictions , the candidates’ honour and reputation is not challenged , in the sense of personal legal protection [ personisks tiesisks labums ] ; what is challenged is the worthiness of the persons in question to represent the people in ORG or in the relevant municipal council . These restrictions concern persons who were permanent agents of the occupying power ’s repressive regime , or who , after DATE , participated in the organisations mentioned in the impugned provisions and actively fought against the re - established NORP LAW and ORG ...

The argument ... that democratic state order must be protected against individuals who are not ethically qualified to become representatives of a democratic state at political or administrative level ... is well - founded ...

... The removal from the list of a candidate who was involved in the above - mentioned organisations is not an arbitrary administrative decision ; it is based on an individual judgment by a court . In accordance with the law , evaluation of individual responsibility comes under the jurisdiction of the courts ....

... In order to determine whether the measure applied , namely the restrictions on passive electoral rights , is proportionate to the objectives being pursued , namely the protection , firstly , of democratic state order and , secondly , of the national security and integrity of the NORP State , it is necessary to assess the political situation in the country and other related circumstances . ORG having evaluated the historical and political circumstances of the development of democracy on several occasions ... the ORG does not consider that at this stage there would be grounds for challenging the proportionality between the measure applied and its aim .

However , ORG , by periodically examining the political situation in the ORG and the necessity and merits of the restrictions , should decide to establish a time - limit on these restrictions ... since such limitations on passive electoral rights may exist only for a specific period . ”

CARDINAL of the Constitutional Court ’s CARDINAL judges who examined the above - mentioned case issued a dissenting opinion in which they expressed their disagreement with the majority ’s conclusions . Referring , inter alia , to the judgments in GPE v. GPE of DATE ( Series A no . CARDINAL ) and ORG v. GPE ( ORG , no . CARDINAL/CARDINAL , ORG CARDINAL-III ) , they argued that the disputed restrictions could be more extensive with regard to civil servants than to elected representatives . According to those judges , GPE ’s democratic regime and institutional system had become sufficiently stable in DATE for individuals who had campaigned against the system DATE previously no longer to represent a real threat to the ORG . Consequently , the restriction on those ORG electoral rights was not proportionate to the legitimate aim pursued .