Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 18969/91

Touko Ollila

against

Finland

REPORT OF THE COMMISSION

(adopted on 30 June 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 16). . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 11). . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12 -16). . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17 - 44) . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17 - 26) . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 27 - 44) . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 45 - 71) . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 45) . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 46) . . . . . . . . . . . . . . . . . . . . 6

C. Article 8 of the Convention

(paras. 47 - 70) . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 71) . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .10

APPENDIX II : DECISION ON ADMISSIBILITY. . . . . . . . . . . .12

APPENDIX III : EXCERPT FROM THE DEPUTY OMBUDSMAN'S

DECISION OF 1 JUNE 1992. . . . . . . . . . . . .37

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Finnish citizen born in 1925 and resident at

Juornaankylä. He is a doctor of radiology and an agronomist by

profession.

3. The application is directed against Finland. The respondent

government are represented by Ambassador Tom Grönberg, Director General

for Legal Affairs, Ministry for Foreign Affairs, Helsinki.

4. The application primarily relates to measures affecting the

applicant in his capacity as a ward. The complaint admitted by the

Commission concerns the justification under Article 8 of the Convention

of the screening and stopping of certain correspondence addressed to

the applicant.

B. The proceedings

5. The application was introduced on 1 July 1991 and registered on

21 October 1991.

6. On 24 October 1991 the Rapporteur decided to request certain

information from the Government.

7. The information was submitted by the Government on

25 November 1991. The applicant's comments in reply were submitted on

11 February 1992.

8. On 30 March 1992 the Commission decided to invite the Government

to submit written observations on the admissibility and merits of the

application.

9. The Government's observations were submitted on 4 and 23 June and

18 August 1992. The applicant's observations in reply were submitted

on 17 and 18 September 1992.

10. On 30 November 1992 the Commission declared the applicant's

complaint of interference with his correspondence admissible. It

further decided to take no action with respect to his complaint under

Article 25 of the Convention and declared inadmissible the remainder

of the application. The Commission finally referred the application

to the First Chamber.

11. After declaring the application admissible, the Commission (First

Chamber), acting in accordance with Article 28 para. 1 (b) of the

Convention, placed itself at the disposal of the parties with a view

to securing a friendly settlement of the case. Active consultations

with the parties took place between 11 December 1992 and

10 February 1993. In the light of the parties' reactions the

Commission finds that there is no basis upon which a settlement can be

effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

13. The text of the Report was adopted on 30 June 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I, the Commission's decision

on the admissibility of the application as Appendix II and an excerpt

from the Deputy Ombudsman's decision of 1 June 1992 as Appendix III.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. On 17 April 1985 the District Court (kihlakunnanoikeus,

häradsrätten) of Orimattila in application of Sections 17 and 17a of

the 1898 Guardianship Act (holhouslaki 34/1898, lag 34/1898 angående

förmynderskap; hereinafter "the 1898 Act") placed the applicant under

guardianship for a period of five years at the request of the

applicant's then wife and six of his children. The District Court

appointed Mr. S.P. as guardian (holhooja, förmyndare).

18. On the applicant's appeal the Court of Appeal (hovioikeus,

hovrätten) of Kouvola on 28 August 1986 quashed the decision following

a re-hearing.

19. Following a further appeal the Supreme Court (korkein oikeus,

högsta domstolen) on 27 October 1988 quashed the Court of Appeal's

decision and upheld that of the District Court.

20. On 4 April 1990 the District Court prolonged the guardianship for

a further five years and re-appointed S.P. as guardian.

21. On 18 September 1990 the Court of Appeal rejected the applicant's

appeal.

22. Leave to appeal against the Court of Appeal's decision was

refused by the Supreme Court on 24 January 1991.

23. During his placement under guardianship all correspondence

addressed to the applicant, with the exception of magazines and

postcards, was being screened by S.P. The applicant was subsequently

given all correspondence pertaining to his personal matters.

24. Following the applicant's requests to have his placement under

guardianship revoked, alternatively that S.P. be replaced by another

guardian the District Court on 14 July 1992 dismissed S.P. and

provisionally appointed the Official Guardian (virkaholhooja,

tjänsteförmyndare) of the municipality of Askola as guardian as from

1 September 1992. It further adjourned the applicant's request for a

revocation of his guardianship.

25. On 26 August 1992 the District Court replaced the Official

Guardian by Mr. P.V.

26. On 20 October 1992 the District Court revoked the applicant's

placement under guardianship and appointed an administrator (uskottu

mies, god man) to take care of his financial and legal affairs.

B. Relevant domestic law

a. Placement under guardianship or control by an administrator

27. Under Section 17 para. 1 of the 1898 Act, as amended by Act

no. 368/83, a person who is incapable of taking care of himself or of

matters concerning his possessions, and provided that his financial

situation, income or other important interests are obviously

jeopardised, may be placed under guardianship by an ordinary court of

law.

28. The Court may, at a person's request, appoint an administrator

to administer certain property or to take care of a certain matter,

provided the person himself is unable to do so for medical or other

similar reasons but it is unnecessary to place him under guardianship.

If the person is unable to lodge such a request it may be lodged by his

relatives or the Guardianship Board (Section 66).

29. If it is found that a person's interests may be sufficiently

safeguarded by appointing an administrator he shall not be placed under

guardianship (Section 17 para. 2).

30. The guardianship shall be revoked, if the grounds for placing the

person under guardianship no longer exist (Section 17c, as amended by

Act no. 368/830.

b. Rights and duties of the guardian

31. Under Section 20 para. 2 of the 1898 Act, as amended by Act

no. 368/83, the ward shall have control of any possessions acquired by

his own work while being placed under guardianship, as well as of any

yield of those possessions and any substitute possessions. Under

para. 3 the Guardianship Board may consent to the guardian taking

control of such possessions, provided this is called for in the

interests of the ward.

32. The guardian shall take care of the ward's possessions and

represent him in matters concerning the possessions. The guardian

shall further conscientiously safeguard the ward's rights and promote

the ward's interests (Section 33, as amended by Act no. 368/83).

33. The guardian shall further provide the ward with such care as is

regarded as necessary in view of the ward's needs as well as his other

circumstances (Section 34, as amended by Act no. 368/83).

34. The guardian shall hear the ward in matters of importance from

the ward's point of view. The hearing of the ward is not necessary if

he is unable to comprehend the meaning of the matter (Section 37, as

amended by Act no. 368/83).

35. Under Section 39 the guardian may not without the consent of an

ordinary court dispose of the ward's real property or let it on lease

for more than five years, in the latter case provided the guardianship

is based on a decision by a court.

36. Under Section 40 the guardian may not without the consent of the

Guardianship Board acquire real property on the ward's behalf against

payment, with one exception dispose of timber from the ward's forest,

with one exception let his real property on lease for a shorter period

than five years, and with some exceptions take out loans, draw a bill

or take over the responsibility for someone's debts.

37. Any transaction indicated in Sections 39 and 40 shall be

considered void unless the Court or the Guardianship Board subsequently

approves it (Section 41).

38. The ward's possessions shall be administered in such a way as to

ensure that they as well as any proceeds are used for his benefit

(Section 42, as amended by Act no. 368/830).

39. The ward shall have recourse to any possessions needed for his

personal use as well as to a reasonable amount of cash, having regard

to his needs and other circumstances. The guardian shall see to it

that the ward can keep any possessions necessary during the

guardianship or subsequently for housing or business activities or

which otherwise have a special value for him. Any further possessions

not used for the ward's subsistence or otherwise for his needs shall

be invested so as to ensure adequate preservation of their value as

well as reasonable proceeds (Section 43, as amended by Act no. 368/83).

40. Under Section 51 the guardian shall submit annual settlements of

the ward's accounts to the Guardianship Board.

41. Under Section 54 para. 3 the Guardianship Board shall, having

audited the settlement of the ward's accounts, refer it to the Court

together with any remarks.

42. Where a guardian submits an incorrect or a defective settlement

of the ward's accounts the Court shall, under penalty of a fine, order

him to fulfil his obligation (Section 55 para. 1). If there is a

reason to contest the guardian's administration or the settlement of

the ward's accounts before the guardian has resigned, the Court shall

appoint a guardian ad litem to institute proceedings on behalf of the

ward (para. 2).

43. Under Section 61 a ward who has the necessary understanding of

the matter may consult the settlement of his accounts as submitted to

the Guardianship Board and request that the Board or the Court take

measures necessary in view of the administration of his property.

c. Secrecy of correspondence

44. Under Section 12 of the 1919 Constitution Act (hallitusmuoto

94/19, regeringsformen 94/19) there shall be no interference with the

secrecy of correspondence other than by means of an exception provided

for by law. The 1898 Act contains no explicit provision for such an

exception, nor has any other legislation providing explicitly for an

exception been cited to the Commission.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

45. The Commission has admitted the complaint pertaining to the

interference with the applicant's correspondence as carried out by

S.P., one of the applicant's guardians.

B. Point at issue

46. The issue to be determined is whether there has been a violation

of Article 8 (Art. 8) of the Convention.

C. Article 8 (Art. 8) of the Convention

47. Article 8 (Art. 8) of the Convention reads as follows:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

48. The Government admit that there has been an interference with the

applicant's right to respect for his incoming correspondence. During

his placement under guardianship all correspondence, with the exception

of magazines and postcards, was being screened by guardian S.P.,

following which all correspondence pertaining to the applicant's

personal matters was handed over to him.

49. The Government consider, however, that the interference was in

accordance with the law. Whilst the 1898 Act does not explicitly allow

an interference with a ward's correspondence, a guardian's right of

access to correspondence necessary for the administration of his ward's

possessions may be derived from that Act. S.P. may have had to screen

the applicant's correspondence in order to determine whether its

contents pertained to the administration of the applicant's

possessions.

50. The Government admit that it is doubtful whether the provisions

of the 1898 Act fulfil the requirement of foreseeability of the

interference. Any interference with a ward's correspondence is,

however, subjected to supervision by an ordinary court of law. If the

interference at issue exceeds what is allowed under the Constitution

Act and the 1898 Act, criminal proceedings may be instituted.

51. The Government finally argue that the interference with the

applicant's correspondence was necessary in a democratic society for

the prevention of disorder and the protection of the freedom and rights

of others.

52. The Commission notes that the Government do not dispute State

responsibility for the interference as carried out by guardian S.P. The

Commission, for its part, finds that, in performing his duties, S.P.

was exercising public authority under the supervision of the District

Court and the Guardianship Board as a representative of the latter.

Thus, his acts undoubtedly gave rise to State responsibility.

53. The Commission further observes that the Government admit an

interference with the applicant's right to respect for correspondence

addressed to him. It has not been alleged that his outgoing

correspondence has been interfered with. The Commission will therefore

limit its examination to the justification under Article 8 para. 2

(Art. 8-2) of the screening and stopping of certain correspondence

addressed to the applicant.

54. The Commission must decide whether this interference was

justified under Article 8 para. 2 (Art. 8-2), which authorises certain

restrictions on the rights guaranteed by Article 8 para. 1 (Art. 8-1),

provided that such restrictions are "in accordance with the law" and

"necessary in a democratic society" for one or more of the aim or aims

enumerated in para. 2.

55. An interference cannot be held to be "in accordance with the law"

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention

unless, first of all, it has some basis in domestic law. However, the

expression "in accordance with the law" also relates to the quality of

the law in question. This implies that the law should be accessible to

the person concerned, who must moreover be able to foresee its

consequences for him. Finally, the law must be compatible with the rule

of law (Eur. Court H.R., Kruslin and Huvig judgments of 24 April 1990,

Series A nos. 176-A and 176-B, p. 20, para. 27, and p. 52, para. 26,

respectively; Herczegfalvy judgment of 24 September 1992, Series A

no. 244, p. 27, para. 88).

56. Moreover, the term "law" should be understood in its

"substantive" sense, not its "formal" one. It may therefore include

enactments of lower rank than statutes as well as unwritten law. In

a sphere covered by written law, the "law" is the enactment in force

as the competent courts have interpreted it (the above-mentioned

Kruslin and Huvig judgments, pp. 21-22, para. 29, pp. 53-54, para. 28,

respectively).

a. The existence of a legal basis for the interference

57. The Commission will first examine whether the first of the above-

mentioned conditions is fulfilled in the present case, i.e. whether the

interference with the applicant's correspondence had a basis in Finnish

law.

58. The Commission observes that Section 12 of the Constitution Act

prescribes that there shall be no interference with the secrecy of

correspondence other than by means of an exception provided for by law.

59. Indeed, such laws have been enacted and apply, for instance, to

patients in mental institutions in accordance with Section 28 para. 2

of the 1990 Act on Mental Health Care (mielenterveyslaki 1247/90,

mentalvårdslag 1247/90) as well as to prisoners in accordance with

Section 49 of the Decree of the Treatment of Prisoners (vankein-

hoitoasetus 431/75, fångvårdsförordning 431/75).

60. The 1898 Act does not, however, contain any provision authorising

a guardian to screen or stop his ward's correspondence.

61. The Government have not pointed to any other enactment of a lower

rank, nor have they referred to any unwritten law. They have argued,

however, that the guardian's right to screen his ward's correspondence

can be derived from his general duties under the 1898 Act and that any

screening of a ward's correspondence is subject to supervision by a

court.

62. The Commission observes that Section 33 of the 1898 Act

prescribes a general obligation for the guardian to safeguard

conscientiously the ward's rights and promote his interests. This

entails taking care of the ward's possessions and representing him in

matters relating to his possessions.

b. Foreseeability of the interference and compatibility with the

rule of law

63. Even assuming, however, that S.P.'s right to screen the

applicant's correspondence could be derived from his general duties

under the above-mentioned Section 33 which was accessible to the

applicant, there remain to be examined the required foreseeability of

the consequences of the law as well as the required compatibility of

the law with the rule of law.

64. As indicated above the concept of foreseeability requires that

the applicant should have been able to foresee the consequences of the

relevant law governing his placement under guardianship. Compatibility

with the rule of law implies that the applicant should have had access

to a measure of protection under national law against arbitrary

interferences with his right to respect for his correspondence.

65. If a law confers a discretion on a public authority or a person

exercising such authority, it must indicate the scope of that

discretion. The degree of precision required will depend on the

particular subject matter (cf. the above-mentioned Kruslin and Huvig

judgments, pp. 22-23, para. 30 and pp. 54-55, para. 29, respectively,

and the above-mentioned Herczegfalvy judgment, p. 27, para. 89).

66. In the light of the relevant provisions of the 1898 Act referred

to above the Commission finds that the Finnish legislation on

guardianships does not in any way specify the scope or conditions of

exercise of the discretionary power used by a guardian when interfering

with his ward's correspondence.

67. It may not be possible to formulate a law to cover every

eventuality arising in the implementation of a person's placement under

guardianship (cf. Eur. Court H.R., Silver and Others judgment of

25 March 1983, Series A no. 61, p. 33, para. 88). Finnish law, however,

discloses a total absence of any detail at all as to the permissibility

of an interference with a ward's correspondence and the purpose and

duration of such an interference.

68. Furthermore, there is no specification of the arrangements for

a review of the interference (cf. the above-mentioned Herczegfalvy

judgment, pp. 27-28, para. 91). Even with appropriate legal advice the

applicant could not know with a reasonable degree of certainty whether

the interference at issue was unlawful (cf. Herczegfalvy v. Austria,

Comm. Report 1.3.91, para. 270, Eur. Court H.R., Series A no. 244,

p. 51).

69. In sum, the applicant did not enjoy the minimum degree of

protection to which one is entitled under the rule of law in a

democratic society. Accordingly, the interference was not carried out

"in accordance with the law".

70. In view of this finding there is no need for the Commission to

examine whether the other requirements under Article 8 para. 2

(Art. 8-2) have been complied with, i.e. whether the interference

pursued a legitimate aim and whether it was proportionate and thus

necessary in a democratic society.

CONCLUSION

71. The Commission concludes, unanimously, that there has been a

violation of Article 8 (Art. 8) of the Convention.

Secretary to the First Chamber Acting President of the

First Chamber

(M. F. BUQUICCHIO) (F. ERMACORA)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

1 July 1991 Introduction of the application

21 October 1991 Registration of the application

Examination of admissibility

24 October 1991 Rapporteur's request for

information from the Government

25 November 1991 Information submitted by the

Government

11 February 1992 Comments in reply submitted by

the applicant

30 March 1992 Commission's decision to invite

the Government to submit observations

on the admissibility and merits of the

application

Commission's decision to give

the application precedence

4 June 1992 Government's observations

23 June 1992 Government's supplementary

observations

18 August 1992 Government's supplementary

observations

17 September 1992 Applicant's observations in reply

18 September 1992 Applicant's supplementary

observations in reply

30 November 1992 Commission's decision to declare the

application partly admissible and

party inadmissible.

Commission's decision to refer the

application to the First Chamber

11 December 1992 Communication to the parties of

the text of the decision on

admissibility

Examination of the merits

16 February 1993 Commission's consideration of

the state of proceedings

30 June 1993 Commission's deliberations on

the merits, final vote and adoption

of the Report

APPENDIX III

EXCERPT FROM THE DEPUTY OMBUDSMAN'S DECISION OF 1 JUNE 1992

(translation from Finnish)

"...

The Guardianship Board has stated that it has heard [the

guardian] ... [and] supervised his activities by inspecting

the settlement of [the applicant's] accounts. ... In 1990

[the Board] considered [the applicant's] guardianship on

several occasions. The guardian has informed [it] of the

plans for [the applicant's] follow-up treatment and

rehabilitation which, however, had remained unimplemented

following [the applicant's] refusal to accept treatment.

The visiting nurse at the Regional Health Centre of Porvoo

is responsible for [the applicant's] medication. [She]

visits him once a week. Everyday care is provided by the

home help of the municipality of Askola and the guardian

keeps regular contact with the home helper. According to

the guardian [the applicant] himself has chosen the room in

which he is living. He does not use any other room in his

house. The guardian has stated that he has shown him all

the documents relating to the guardianship.

[The Board] has found that the guardian has acted in the

interests of his ward and has tried by all means to fulfil,

as well as possible, his obligations under Section 34 of

the 1898 Act.

In her submission of 26 February 1991 the senior home

helper ... has stated that a home helper visits [the

applicant] on a daily basis and on weekends, if necessary.

[He] receives home help in the form of cleaning, bathing,

care of clothes and preparation of meals. He has been

offered a meals-on-wheels service but has refused this. ...

The home helpers have found that [the applicant] is in need

of help. The difficulty lies, however, in the fact that

[he] himself is unwilling to accept the home help offered.

In particular, [he] often considers the care of his

personal hygiene and clothes and the changing of bed linen

unnecessary. According to the senior home helper [he]

himself chooses to make use of only one of the rooms in the

house and not, for example, of the kitchen or the toilet.

[He] is mobile with the help of a walker.

...

In his submission of 16 May 1991 Mr. Pentti Soveri, senior

physician at the Regional Health Centre of Porvoo, has

stated that [the applicant] has received all of the

services which he is in need of and has been willing to

accept. [His] motivation for rehabilitation has been poor

[and] he has therefore not consented to more effective

means of rehabilitation.

...

... I conclude ... that [the applicant] has received home

medical care and rehabilitation. The rehabilitation,

however, has frequently been interrupted as a result of

[his] refusals to go on with it. ... [He] has further

consistently refused services such as care of his personal

hygiene, the making of his bed, the changing of his bed

linen and his clothes as well as the cleaning of his room,

sometimes for long periods of time.

...

Mr. Jukka Siltaloppi, an inspecting official from my Office

visited [the applicant] on 30 May 1991 together with

Ms. Marjatta Rosenberg, physician at the Public Health

Centre, and the Chairman of [the Board]...

Inspector Siltaloppi observed that [the applicant's]

conditions of living were inadequate in the way described

by Ms. Riitta Kauppinen in her petition. [The applicant]

stated ... that he did not get along with his guardian. He

had last met him in court about a year earlier, when the

guardianship had been prolonged. [He] further stated that

not once had he been allowed to study the settlements of

his accounts and that he had not received his pension

amounting to some 3.000 FIM [per month]. He further stated

that he was in no need of a full-time [home helper]. He

expressed his desire for rehabilitation services but

alleged that his guardian refuses to meet the expenses

incurred thereby.

...

On 1 October 1991 I requested a further report from [the

Board] as regards the supervision of [the applicant's]

guardianship. My request was partly due to what had earlier

been disclosed in the matter and partly as a result of the

written submissions by Ms. Pirkko Turpeinen, a psychiatrist

and senior physician, by Mr. Seppo Järvinen and by

Mr. Matti Schroderus, a psychiatrist. All of these

contained sharp criticism of [the applicant's] conditions.

[The Board] has been requested to submit a detailed account

of how and when [the applicant] has been able to study the

settlements of his accounts, how much in disposable funds

he is receiving and in what way, how he has been receiving

rehabilitation as from 30 May 1991 and of what kind, as

well as an account of his treatment at the hospital of Eira

and why this was discontinued. [The Board] has further been

requested to re-assess the guardian's actions in the light

of the additional information disclosed in the case.

In its submission of 7 November 1991 [the Board] has noted

that according to the settlement of accounts for 1990

approved by [the District Court] [the applicant] received

a pension income ... amounting to a total of 45.711 FIM.

His costs of living and disposable funds [used] ...

amounted to a total of 46.629 FIM. [His] pension had thus

been used for the upkeep of his welfare. In practice [the

home helpers] had handed over the money. Out of a cash

amount provided by the guardian they give [the applicant]

money for his needs against a receipt. No new information

concerning the guardian's actions on the basis of which its

opinion on the matter could change had come to [the

Board's] attention.

[The Board] has appended a statement by [the guardian's

lawyer] of 23 October 1991 ... indicating that [the

applicant] has been given an opportunity to examine the

settlement of his accounts by means of copies of the

[pertinent] documents. Except for a few initial years of

his guardianship [the applicant] had refused to receive the

documents or had torn them up immediately. Accordingly, it

had not been possible to hand him the receipts for

inspection. In recent years [he] had not even requested to

see the settlements of his accounts, but had remained

completely passive in this respect. It had never been

possible properly to discuss ... the settlements or indeed

any other matter related to his guardianship. As his

guardian, [S.P.] has given [the applicant] a monthly

average of FIM 2,000 in cash. [The applicant] uses his

disposable funds for the most multifarious attempts to file

totally unfounded criminal complaints and petitions for

review merely in order to torment his guardian and the

members of his family. All along [he] has had the right and

possibility to maintain, in accordance with his position,

a material standard of living corresponding to his

possessions, and the spiritual welfare and atmosphere

afforded by his mental abilities. Subsequent to

[30 May 1991] a place for [him] had been obtained in the

Punkaharju hospital for care and rehabilitation, a renowned

establishment of high standard, but [he] did not wish to

avail himself even of this opportunity in its entirety.

[Moreover,] [the applicant] had requested admission to the

hospital of Eira for no special medical reason, contrary to

[the guardian's] explicit prohibition and keeping this

secret from him. The cost of care at Eira hospital was

beyond [his] solvency, rendering treatment there

impossible.

...

By a letter of 9 March 1992 [the applicant's son M.O.] ...

has objected to the statement of Pirkko Turpeinen ...

By letters of 15 April 1992 [the applicant's sons J.O. and

P.O.] ... have, inter alia, drawn my attention to the

difficulties which have arisen in the care and

rehabilitation of their father because of his negative

attitude towards treatment.

...

I have had at my disposal copies of extracts of the minutes

of [the Board's] meetings from 1985 to 1991 considering

[the applicant's] guardianship; the settlements of his

accounts; the letter of guardianship [holhouskirja,

förmynderskapsbok] at the District Court; and the minutes

relating to [its] audits of the settlements for 1990 and

1991.

... Also the file of the Court of Appeal of Kouvola

pertaining to its decision of 18 September 1990 has been at

my disposal.

...

Under [the 1898 Act] the primary task of the Guardianship

Board is to see to it that the guardians under its

supervision take proper care of their wards and of the

ward's possessions. Also the court of first instance in the

district of the ward's domicile is entrusted with duties

relating to the supervision of the ward's possessions and

the use of his financial resources.

...

[The Board] ... has taken the following measures in

relation to [the applicant's] guardianship.

In 1985 [it] pronounced itself on [S.P.'s] suitability as

a guardian and took note of [the District Court's] decision

to place [the applicant] under guardianship.

In 1986 [it] considered a complaint by [the applicant]

regarding his guardian. No measures were taken. [It]

further considered the settlement of [the] accounts for

1985 and in this respect requested the guardian to submit

certain clarifications. The settlement was approved at a

subsequent meeting.

In 1987 [the Board] considered certain payments charged to

[the applicant] and approved the settlement of the accounts

for 1986.

In 1988 [the Board] considered [the] guardianship on four

occasions. [It] approved the settlement of the accounts for

1987; decided to grant the guardian permission to take up

a loan; ordered at [the applicant's] request that the

guardian was to show him, in his home, duplicates of the

settlement of his accounts; and approved a forestry plan.

In 1989 [the Board] considered matters relating to [the]

guardianship on five occasions. At its first meeting [it]

approved the settlement of the accounts [for 1988]. At the

following one it considered [the applicant's] request for

a change of guardian [and] unanimously found no grounds

thereto. At its third meeting [it] replied to an enquiry by

[the President of the District Court] regarding the fees

charged by the guardian in 1987 and 1988. [The Board]

considered them reasonable in view of the amount of work

involved. At its fourth meeting it took note of the

[District Court's] interim decision in respect of [the

applicant's request for a change of guardian and a

revocation of the guardianship]. At its fifth meeting it

pronounced itself on [the guardian's] suitability for his

duties.

In 1990 [the Board], at the request of [the President of

the District Court], proposed attorney-at-law [E.R.] to be

[the applicant's] guardian ad litem in the proceedings

before the District Court pertaining to [the requested]

extension of his placement under guardianship. Following an

enquiry by [the President of the District Court] [the

Board] further requested [the guardian to submit] a written

explanation regarding a payment order. In considering the

settlement of the accounts [for 1989] [it] further decided

to request clarification as to the payment of [the

applicant's] debts. Subsequently [it] approved the

settlement. [It] further considered a request by the

guardian to take out certain loans. It [finally] supplied

a clarification requested by [the President of the District

Court] in respect of fees paid to the guardian, and replied

to [the President's] enquiry regarding [the applicant's]

conditions of living.

In 1991 [the Board] considered matters relating to [the]

guardianship on ten occasions. [It] took note of the

Supreme Court's decision [of 24 January 1991] and supplied

the Deputy Ombudsman with an account of its supervision of

the guardianship. [It] further considered the guardian's

request for permission to take out a loan. It examined and

approved the settlement of the accounts for 1990 and

granted the guardian permission to take out a loan. [It]

further considered a proposal by [the President of the

District Court] that with the guardian it make arrangements

for [the applicant's] rehabilitation. [It] supplied the

District Court with further clarification of measures taken

by the guardian in connection with the settlement of

accounts. At the guardian's request it further pronounced

itself on a proposal to draft a shore or land parcelling

plan, and supplied a further account requested by the

Deputy Ombudsman.

The extracts of [the Board's] minutes clearly show that at

the guardian's request it has decided on various matters

relating to the administration of [the applicant's]

property. [It] has inspected the settlement of the

accounts presented to it and twice it has on its own

initiative requested clarification of the administration of

[the applicant's] possessions. [It] has also replied to

enquiries regarding the guardianship as well as to requests

addressed to it by [the applicant] himself.

It further appears ... that [the applicant's] conditions of

living have been such as described in [Ms. Kauppinen's]

petition. These conditions, however, are due to [the

applicant's] own choice and volition. [He] has at his

disposal a home help service working in a manner chosen by

himself as well as rehabilitation and medical services of

the Public Health Centre.

When assessing the supervisory activities of [the Board]

account must be taken of the fact that [the applicant] has

had a considerable amount of possessions and, in addition

to pension incomes, also other revenue. Regard must also be

had to the fact that [he] has been extremely dissatisfied

with his guardian and that justified arguments have been

made from many quarters that his rehabilitation has been

inadequate and his living conditions poor.

In spite of this [the Board] has not, on its own

initiative, taken any steps in order to assess, for

example, the propriety of [the applicant's] circumstances

and rehabilitation. In replying to enquiries regarding the

guardianship [it] has heard the guardian and then conveyed

his statements to the enquiring authority. [The Board's]

positions contain hardly any independent assessment of [the

applicant's] interests.

When supervising [the] guardianship [the Board] should have

taken a detailed and independent stand as to, for example,

the arrangements made for [the applicant's] rehabilitation

and conditions of living. In view of [his] possessions,

education and previous circumstances ... [the Board] should

have considered [the applicant's] possibility to undergo

private rehabilitation. Under Section 42 of [the 1898 Act]

... the ward's possessions must be administered in such a

way that the property and any proceeds deriving from it may

be used for his benefit. On the basis of the estimated

proceeds of [the applicant's] possessions alone the option

of using a private rehabilitation service would have been

available.

Questions pertaining to the administration of possessions

involve considerations of expediency the appraisal of which

is outside my competence as a legality supervisor. For this

reason I will not state any further position on this point.

In my view, however, [the Board] should also have made a

detailed assessment of the propriety of the administration

of [the applicant's] possessions.

[S.P.] has been a member of the Municipal Board

(kunnanhallitus, kommunstyrelsen) of Askola during both the

present and the previous electoral period. Given the

independent position of a Guardianship Board I do not

consider that [such a member] is obliged to refrain from

guardianship duties or that [a guardian] should resign from

a Municipal Board. In my view, however, it hardly enchances

the supervisory abilities of a Guardianship Board if a

guardian ... is an elected representative occupying a

position of trust on a superior level in the administration

of the municipality. The more influential this person is,

the more difficult it will be for the Guardianship Board to

implement its supervisory function.

Although a Municipal Board has no authority to issue

general instructions or specific orders affecting a

Guardianship Board and even though [the applicant's

guardian] has been re-appointed [his] guardian ... a member

of a Municipal Board serving as a guardian under the

supervision of a Guardianship Board is not a satisfactory

arrangement. Especially if the municipality has an Official

Guardian (virkaholhooja, tjänsteförmyndare) it should be

considered, as an alternative, to entrust him with [the

guardian's] duties, thereby ensuring both expertise and

practical opportunities of supervision.

In this connection I also call attention to Section 17,

subsection 2 of [the 1898 Act] according to which nobody is

to be placed under guardianship if his interests may be

adequately safeguarded by the appointment of an

administrator (uskottu mies, god man) to take care of his

interests. As in [the applicant's] case the need was

primarily to take care of [his] possessions the appointment

of an administrator [under Section 17, sub-section 2] and

Section 66 ... could have been an adequate measure for the

protection of his interests. This matter, however, has just

been decided by a binding decision of the Court of Appeal

of Kouvola of 18 September 1990 and I do not consider there

to be sufficient grounds for requesting an annulment of

that decision.

For the above reasons I conclude that [the Board] has not,

in supervising [the applicant's] guardianship, shown the

thoroughness, activity or independence required by [his]

situation and possessions.

In my consideration of [the Board's] acts I also observe

that there has existed and still exists a lack of national

guidance in respect of the administration of guardianships.

Due to this the municipal Guardianship Boards have lacked

[guidelines and supervision] assisting them in their work.

Taking this into consideration I will merely bring my

opinion regarding the deficiencies in its work to the

notice of [the Board] and stress the importance of

supervision by [the Guardianship Boards] in situations of

the kind as in [the applicant's] case, where there is

disagreement between the guardian and his ward, where the

latter has considerable possessions and where the

arrangement of his care and rehabilitation is particularly

difficult.

...

Nothing has been disclosed in this case calling for further

investigations of the acts of [the District Court].

...

In this case a deficiency has clearly emerged: the lack of

a national guardianship administration. The Guardianship

Boards have neither directives, guidelines or expert

assistance at their disposal, nor are they being

supervised. This leads to a situation where [a Board] is

practically unable to arrange a proper supervision of

guardianships of [the applicant's] kind, where the ward has

considerable possessions and the administration of his

interests is also otherwise difficult. The provisions of

[the 1898 Act] are partly outdated and an aggravating

factor is that its requirement of good care of possessions

is fulfilled [already] if their value is preserved.

I have therefore made a proposal to the Council of State

(valtioneuvosto, statsrådet) to the effect that it should

speed up the current reform of [the 1898 Act].

..."

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OLLILA v. FINLAND

OLLILA v. FINLAND

LEXI