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OLLILA v. FINLAND
Doc ref: 18969/91 • ECHR ID: 001-1438
Document date: November 30, 1992
- Inbound citations: 1
- •
- Cited paragraphs: 0
- •
- Outbound citations: 16
OLLILA v. FINLAND
Doc ref: 18969/91 • ECHR ID: 001-1438
Document date: November 30, 1992
Cited paragraphs only
AS TO THE ADMISSIBILITY OF
Application No. 18969/91
by Touko OLLILA
against Finland
The European Commission of Human Rights sitting in private on
30 November 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 July 1991 by
Touko OLLILA against Finland and registered on 21 October 1991 under
file No. 18969/91;
Having regard the observations submitted by the respondent
Government on 4 and 23 June 1992 and 18 August 1992 as well as the
applicant's observations of 17 and 18 September 1992;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Finnish citizen born in 1925 and resident at
Juornaankylä. He is a doctor of radiology, an agronomist and a farmer
by profession. He is divorced and has seven grown-up children.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
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).
Before the District Court the applicant was represented by
counsel.
It does not appear on the basis of what expert opinions, if any,
the placement under guardianship was decided.
On the applicant's appeal the Court of Appeal (hovioikeus,
hovrätten) of Kouvola on 28 August 1986 quashed the decision following
a re-hearing. It had regard to written expert opinions of 7 June and
8 November 1985 submitted at the applicant's request by
Mr. Aarne Harenko, doctor of neurology, psychiatry and geriatry, a
written opinion of 12 February 1986 submitted at the Court's request
by the National Medical Board (lääkintöhallitus, medicinalstyrelsen),
and a written opinion of 13 June 1986 by the hospital of Kellokoski.
Only the opinion by the National Medical Board supported a placement
order.
On appeal the Supreme Court (korkein oikeus, högsta domstolen)
on 27 October 1988 (by 3 votes to 2) quashed the Court of Appeal's
decision and upheld that of the District Court. The Supreme Court had
regard to a written opinion of 14 January 1988 submitted at the Court's
request by the National Medical Board (and based on a written opinion
of 16 July 1987 submitted by Mr. Erkki Väisänen, associate professor
and a permanent expert to the Board), a written opinion of 25 May 1987
by Mr. Juhani Vartiainen, doctor of cancer diseases and radiology, and
a written opinion of 5 March 1988 submitted by the afore-mentioned
Dr. Harenko. Only the opinion submitted by the National Medical Board
supported a placement order.
On 14 December 1988 the applicant lodged a petition with the
Chancellor of Justice (oikeuskansleri, justitiekanslern), alleging that
the grounds for placing him under guardianship had been insufficient.
He further complained of S.P.'s administration of his possessions and
requested that another person be appointed his guardian.
Following petitions by the applicant the Parliamentary Ombudsman
(eduskunnan oikeusasiamies, riksdagens justitieombudsman) on 10 April
1989 found no grounds for a request for an annulment of the Supreme
Court's decision, nor did he find the length of the proceedings before
the Supreme Court to be condemnable or further investigation
necessary as regards two decisions of the Public Prosecutor not to
bring charges on the basis of reports lodged by the applicant.
On 13 February 1989 the Central Criminal Police decided to take
no further measure in respect of a report lodged by the applicant.
By a petition lodged with the District Court on 13 April 1989 the
applicant requested that his guardian be dismissed and replaced by
Mr. B.V.
On 17 April and 30 May 1989 the District Court requested the
applicant to supplement his petition. By an opinion of 7 July 1989 the
Guardianship Board (holhouslautakunta, förmyndarenämnden) of Askola
objected to the change of guardian.
On 21 September 1989 the Deputy Chancellor of Justice (apulais-
oikeuskansleri, biträdande justitiekanslern) found no grounds for
taking further measures in the case, inter alia as the request that
another person be appointed as the applicant's guardian was currently
being examined by the District Court.
In a further petition lodged with the District Court on
27 September 1989 the applicant, now represented by a lawyer, again
requested that his guardianship be revoked. He submitted inter alia:
(translation from Finnish)
"...
Following the placement under guardianship I have been
subjected to mental and even physical ill-treatment. In no
way have I been informed of the administration of my large
possessions and in spite of these I have been placed to
live in a [room] with a surface of less than 10m2 without
even the most primitive possibilities of taking care of my
health and personal hygiene. Moreover, my guardian has also
in other harsh ways interfered with my privacy and
restricted my possibilities to write, which has always been
an ... important interest of mine. My guardian ... has not
visited me for five years, but nevertheless he is charging
6.000 FIM per month in guardianship fees and 2.000 FIM per
month for costs. I, however, do not have recourse even to
my monthly pension of 3.600 FIM. There is complete distrust
between me and my guardian. ..."
On 4 December 1989 the applicant's children requested that the
placement order be prolonged and S.P. re-appointed guardian.
By a letter of 21 December 1989 to the local post office the
applicant complained that for five years he had not received any mail,
although he used to receive up to 1,5 kg of mail per month. Copies were
sent to the Minister of Justice, the Parliamentary Ombudsman and the
Chancellor of Justice.
On 3 January 1990 the applicant withdrew his petitions of
13 April and 27 September 1989 to the District Court.
At the District Court's hearing on the same day in respect of the
request for a prolongation of the guardianship both the applicant's
children and the guardian were assisted by counsel. The applicant was
not; he told the Court that this was unnecessary. At the request of
counsel for the applicant's children the Court adjourned the hearing
in order to receive further evidence to be presented by them.
On 28 March 1990 the District Court in application of Section 3
of the 1983 Guardianship Decree (holhousasetus 851/83, förmynderskaps-
förordning 851/83; hereinafter "the 1983 Decree") and Section 65 of the
1898 Act appointed a guardian ad litem (a lawyer) to represent the
applicant.
On 4 April 1990 the District Court prolonged the guardianship for
a further five years and re-appointed S.P. as guardian. It had regard
to a written opinion of 29 March 1990 submitted at the Court's request
by Ms. Tarja Pohjasvara, assistant physician, and Mr. Matti Iivanainen,
associate professor, both of the Neurological Clinic of the Central
University Hospital of Helsinki, noting that for a period of three
years there had been no improvement in the applicant's mental capacity
or general state of health and concluding that he was suffering from
an incurable brain damage probably caused by disturbances in his blood
circulation and abuse of tranquillisers. The Court also had regard to
a written opinion of 8 March 1990 submitted at the Court's request by
Ms. Marjatta Rosenberg, a physician at the Public Health Centre of
Porvoo considering, inter alia, that the applicant's general state of
health and his psychosocial situation had improved. In a supplementary
written opinion of 21 March 1990 submitted at the request of the
applicant's relatives she stated, however, that she was not taking any
position as regards the question whether the applicant needed to be
placed under guardianship.
On 18 September 1990 the Court of Appeal rejected the applicant's
appeal.
On 9 October 1990 the Central Criminal Police took note of a
further report lodged by the applicant.
According to the Government, the President of the District Court
on 23 October 1990 visited the applicant in order to acquaint himself
with his living conditions.
On 18 December 1990 Ms. Riitta Kauppinen, a physician and Member
of Parliament, requested the Parliamentary Ombudsman to investigate
alleged irregularities as regards the applicant's everyday living
conditions, financial situation and his requests for a change of
guardian. The request was based on a visit paid by her to the
applicant's place of residence, where she had formed the impression
that compared with his previous circumstances and standard of living
his conditions had deteriorated and were inadequate.
Leave to appeal against the Court of Appeal's decision of 18
September 1990 was refused by the Supreme Court on 24 January 1991.
On 23 April 1991 the Guardianship Board approved the guardian's
settlement of the applicant's accounts (holhoustili, förmyndareräkning)
for 1990.
That settlement indicated inter alia the following:
- assets 3.447.343 FIM;
- debts 1.140.923 FIM;
- deposits 929.547 FIM;
- new credits 314.101 FIM;
- receivable from [the applicant's son] J.O. 100.000 FIM;
- salary and [employment] pension 38.763 FIM;
- national pension 6.948 FIM;
- withdrawals from deposits 26.638 FIM;
- costs of living and [use of]
disposable funds 46.629 FIM;
- costs for treatment 1.059 FIM;
- the guardian's fees and expenses 34.753 FIM;
- lawyers' fees 49.478 FIM;
- costs for new farming machines 251.500 FIM.
On 30 April 1992 the Police District of Porvoo decided to take
no measures in respect of the applicant's report of suspected murder
attempts and breaches of the 1898 Act.
On 2 May 1991 Ms. Pirkko Turpeinen, doctor of psychiatry,
submitted the following petition to the Deputy Ombudsman:
(translation from Finnish)
"... I confirm having visited ... [the applicant] at his
request and at the request of his friend S.J. and M.V., a
lawyer. [The applicant] himself as well as his friends felt
that his human rights are not respected. They also feel
that not only has [the applicant] been wrongfully placed
under guardianship, but that the guardianship is being used
to suppress him.
I meet [the applicant] on 19 March 1991 in his "home". At
the front door I am being met by a young man who reacts [to
me] in an aggressive and suspicious way ..., [the
applicant's son] M.O. who wants to know why I have come. He
allows me to pass after all and I enter a side room of the
small farm building ...
I have never seen a room like that in which [the applicant]
is living. [The applicant] is lying on a bed, which is
surrounded by papers in disorder, old remnants, dirt.
I discuss with [the applicant] in private for about an
hour. I ask about his childhood, his early stages of life,
his studies, his professional activities, his family and
children. [The applicant] speaks to the point and answers
all my questions. His relationship with his family is
bitter due to the placing of him under guardianship (the
reasons for which I am unaware of). He states his interest
in rehabilitation, which would be needed in order to re-
establish his mobility. He would also be interested in
participating in the administration of his agricultural
property.
During this meeting I do not detect any such mental
abnormality as could form the basis for his guardianship.
[The applicant] is self-centered and has a short patience,
which may be due at least partly to his treatment, which he
considers unfair, and to the regression caused by this.
[The applicant] feels that his treatment is due to the fact
that the relatives want to take control over the large
possessions acquired by him through his own work.
In my opinion measures should be taken to have [the
applicant] undergo rehabilitation and to have his human
rights and [his right to] a decent life restored.
..."
On 4 June 1991 the applicant addressed a letter to the President
of the District Court requesting that his guardianship be revoked. It
included a copy of Ms. Turpeinen's petition. In particular, he alleged
that he was unjustifiably placed under guardianship; that the guardian
was embezzling his possessions; and that he was being refused recourse
to his pension.
The applicant received no reply to his request.
On 20 June 1991 the President of the District Court audited the
guardian's settlement of the applicant's accounts for 1990 in
accordance with Section 54 para. 3 of the 1898 Act, but referred it to
a separate examination. He noted inter alia that already in the
settlement of the accounts for 1989 the applicant's agricultural
activity had shown a loss; that in 1990 the guardian had agreed to
lease 85 hectares of farming land to three of the applicant's sons;
that part of the land had been turned into fallow; that the guardian
had lent 100.000 FIM to one of the sons; that it was unclear what
security had been given for the loan and what interest had been charged
for it; and that the applicant had submitted that he had been refused
recourse to funds stated as disposable in the settlement. The President
requested the Guardianship Board to supply clarification on a number
of points pertaining to the administration of the applicant's
possessions.
On 23 July 1991 the Guardianship Board submitted information
according to which inter alia the farming on the applicant's property
had been taken over by a consortium run by three of the sons by means
of a lease of 100.000 FIM signed in the spring of 1990; that no loan
had been given and that the outstanding account was due to the fact
that the applicant had received no payment for the lease; and that "an
agreement had been reached" to charge a penal interest of 16 per cent
for this account.
On the same day the Guardianship Board further considered a
proposal by the President of the District Court that the Board together
with the applicant's guardian take measures in order to arrange for
rehabilitation of the applicant. The Board noted that the guardian had
informed the Secretary to the Board by telephone that the applicant was
awaiting rehabilitation at a rehabilitation centre at Punkaharju. The
guardian had further promised to submit documentation showing when the
request for rehabilitation had been made.
Having also regard to the fact that on 28 June 1991 the applicant
had been recommended by the local Public Health Centre to receive
rehabilitation the Board found no reason to take any measures.
In the summer of 1991 the applicant underwent rehabilitation as
a result of which his mobility improved. His state of health has,
however, again deteriorated and he now appears to be almost immobile.
It appears that the applicant's care in the private hospital of
Eira in Helsinki in 1991 was interrupted by the guardian.
By a letter of August 1991 to the President of the District Court
the applicant alleged that the guardian had been causing him great
financial losses; that he was not receiving his pension; that he was
being refused access to the settlements of his accounts; that his eye-
sight was decreasing as the guardian was refusing him means enabling
him to undergo an operation; that he was becoming immobile due to lack
of rehabilitation; and that the guardian was refusing to pay for
certain subscriptions.
The applicant received no reply to his letter.
On 30 September 1991 the President of the District Court found
that the necessary information had been provided by the Guardianship
Board. Having regard to this, as well as the information obtained by
the Court itself and the fact that the Board had approved the
settlement of accounts without remarks, and concluding that it could
not carry out a detailed audit of the settlement, the Court, referring
to Sections 45 and 55 of the 1898 Act, found that there was no need at
this point to appoint a guardian ad litem to contest the settlement.
On 28 January 1992 the Central Criminal Police took note of a
further report lodged by the applicant.
In 1992 the Guardianship Board approved the settlement of the
applicant's accounts for 1991 with one remark as to the fees charged
by the guardian S.P. The President of the District Court subsequently
referred the settlement for separate audit.
On 10 April and 29 May 1992 the President of the District Court
considered the applicant's requests of 1991. On the last-mentioned day
the matter was referred for examination at a hearing on 2 June 1992.
On 1 June 1992 the Deputy Ombudsman rendered her decision in
regard to the applicant's and Ms. Kauppinen's petitions (see the
Appendix).
On 2 June 1992 the District Court held a hearing, where the
applicant was represented by a guardian ad litem (a lawyer) appointed
on that day in application of Sections 65 and 66 of the 1898 Act. The
Court heard the applicant and the Chairman of the Guardianship Board.
It further noted that it had not yet received any reply to the
President's letter to the Board of 19 December 1991. The case was
adjourned in order to enable the guardian ad litem to study the case-
file. The applicant was ordered to summon Ms. Turpeinen as a witness,
provided he wanted to invoke her report of 2 May 1991.
On 14 July 1992 the District Court dismissed S.P. as the
applicant's guardian and provisionally appointed the Official Guardian
of the municipality of Askola as guardian as from 1 September 1992. The
District Court had regard to the statements by the applicant and S.P.
according to which they had been unable to negotiate about matters
relating to the guardianship, the separate audit of S.P.'s settlement
of the applicant's accounts for 1991, and the Deputy Ombudsman's
finding that S.P. is a member of the Municipal Board of Askola.
The District Court adjourned its consideration of the applicant's
request for revocation of the guardianship.
On 27 July 1992 Dr. Matti Tuovinen, a forensic psychiatrist and
a permanent expert to the Ministry of Social and Health Affairs
(sosiaali- ja terveyshallitus, social- och hälsostyrelsen) submitted
an opinion to the National Board of Social Welfare for the purposes of
the proceedings before the Commission. It reads, inter alia, as
follows:
(translation from Finnish)
"...
By letter of 12 June 1992 the National Board of Social
Welfare has requested me to study, in my capacity as
expert, the application to [the Commission] lodged by [the
applicant], doctor of radiology, as well as the documents
pertaining to it, and to submit my opinion as to the
questions put to [the Board] by the Ministry for Foreign
Affairs. ...
I have had at my disposal the files relating to [the
applicant] at the National Medical Board / the National
Board of Social Welfare spanning over a period of
approximately ten years. He has now - by letter of 30 March
1992 - lodged an application against Finland in which he
alleges defects in the administration of his guardianship.
He has, inter alia, submitted that on six occasions his
guardian has taken him for treatment in a mental hospital
against his will and for no reason. It appears that he has
been treated at least in the hospitals of Lapinlahti,
Kellokoski and Tammiharju, for other reasons at the
neurological department ... of the Central University
Hospital of Helsinki as well as at the rehabilitation
centre at Punkaharju.
The Ministry for Foreign Affairs has put the following
questions to the National Board of Social Welfare:
- Has [the applicant] been taken for treatment in a
mental hospital in the way alleged in his submissions;
has he been discharged due to lack of reasons
justifying treatment; or has he been detained for
treatment against his will ?
- How has [the applicant's] health care been organised
and has it been possible to give him the treatment
necessary in view of his condition ?
[The applicant] ... received a university degree in
agriculture ... in 1952, became a graduate in medicine ...
in 1963 and a specialist doctor in radiology in 1973. He
submits that he has been a farmer since 1979. He has been
married and has seven children, born between 1953 and 1970.
In the summer of 1985 Juhani Leistén, medical counsellor
and a permanent expert to the National Medical Board,
assessed [the applicant's] personality: '... [He] has been
an intelligent, original person with a hidden inferiority
complex, but [he has been] ambitious. [His] behaviour may
be placed in the biological grey zone close to manic
depression. [He] has had almost overactive stages in his
life. Growing old and the family growing up [he] became
depressive, dependent on alcohol and drugs, started
producing paranoid tendencies, became projective and
sometimes goes into a serious state of regression and
psychotic behaviour, with the result that his reality
perception is seriously disturbed. ...'
[The applicant] had complained about his treatment between
3 June and 7 July 1981 at [the hospital of] Tammiharju and
of his treatment at the psychiatric clinic from 11 November
1984 to 19 January 1985. [He] was found to have brain
symptoms caused by polyneuropathy and possibly by a
radiation injury or a degenerating process, as well as from
rectum cancer. For the last-mentioned condition he has been
operated on at least thrice since 1985. Being from time to
time immobile he has, during the last years, been
helplessly dependent on home medical treatment. [He] has,
however, remained active enough to write criticising
letters and try to fight legally against his placement
under guardianship. [He has further] complained of having
been detained in hospitals as well of alleged acts of
negligence. On the other hand, his relatives have on
several occasions requested investigations by the National
Board as to why effective measures have not been taken in
order to remedy his occasional helplessness, noting that
several recommendations that he be taken to a mental
hospital have not been followed. [Guardian S.P.] has kept
contact both with the physician at the Public Health Centre
and the National Board and has described [the applicant's]
problematic behaviour. The physician at the Public Health
Centre has stated in her opinion that even in behavioural
crises [the applicant] has not shown any disturbance
justifying detention against his will. For example, in 1988
he was sent to [the hospital of] Kellokoski, but he was ...
returned, no grounds justifying detention against his will
having been found. In 1986 he [also] underwent an
examination at Kellokoski, that time for the purpose of the
guardianship [proceedings]. In 1982 [he was examined] at
the private mental hospital of Sanerva following a request
by the National Medical Board. These two sets of hospital
treatment were, accordingly, voluntary ... The previously
mentioned stays at the psychiatric clinic of the Central
University Hospital of Helsinki and Tammiharju took place
against his will. Numerous previous investigations
instituted at [the applicant's] request have found those
stays to be justified. As soon as the conditions for
compulsory treatment ceased to exist he was, at his
request, immediately discharged. According to the material
at my disposal [the applicant] has been detained in a
mental hospital on six occasions since 1981. In his
application he has not, however, specified which of those
six stays he refers to. It appears, however, that although
the ... responsibility for the medical care given to him in
his home lies with the physician at the Public Health
Centre, the guardian has normally, in accordance with his
own responsibility, attempted to monitor the situation and
at least institute an investigation in order to determine
whether there were grounds justifying care [against the
applicant's will]. At least on one occasion in 1988 the
finding, after a period of observation of [the applicant]
in a mental hospital, was that he had been sent there
unnecessarily. This, however, does not contain any opinion
as to whether there had been grounds for taking him in for
observation. It should be emphasised that a vigilant and
well-read paranoiac soon learns how to dissimulate, if need
be. It appears from the statements made by the home medical
service and the case records in the file that attempts have
been made to invest care and efforts in the monitoring of
[the applicant's] condition and in his care, despite the
fact that he is, as a patient, apparently occasionally very
ungrateful and regressively full of whims. His criticising
attitude and the effective compulsory means should
[,however,] keep the risk of realistically perceivable acts
of negligence small. Finally, it should be observed that
the symptomatic core of the paranoia suffered by this kind
of person does not consist only of suspicions arising out
of individual situations or a momentary distortion of his
reality perception - [symptoms which he manages to hide
quickly] during a psychiatric examination - but in an
extensive passion for complaints and attacks which may
occasionally use as their instrument ... defects which are
indeed real, although exaggerated. All in all, behind
everything we see a paranoid outlook forming the meaning of
[his] life.
..."
On 26 August 1992 the District Court replaced the Official
Guardian by Mr. P.V., a lawyer.
In its opinion of 8 October 1992 the Guardianship Board objected
to the revocation of the guardianship or the appointment of an
administrator.
On 20 October 1992 the District Court revoked the applicant's
placement under guardianship and appointed an administrator (a lawyer)
to take care of his financial and legal affairs. It had regard to,
inter alia, Ms. Turpeinen's statement of 2 May 1991, now confirmed as
a medical opinion in accordance with Section 12 para. 1 of the Medical
Practice Act.
The District Court stated inter alia the following:
(translation from Finnish)
"...
In her medical report of 13 October 1992 Pirkko Turpeinen has not
detected any symptoms in [the applicant] justifying [his]
placement under guardianship.
[The applicant] is in the District Court's view unable, because
of a physical illness, to take care of his affairs. Nobody shall,
however, be placed under guardianship due to a physical illness.
..."
The District Court's decision is subject to appeal both by the
applicant's children, himself and his guardian ad litem.
In 1985 the market value of the applicant's possessions was
estimated at 10.000.000 FIM. His agricultural property amounts to 115
hectares of farming land and 250 hectares of forest land.
According to the applicant his possessions include, inter alia,
2 km of undeveloped lakeside property and 51 buildings. He claims to
be the former owner of large toy and shoe factories.
The applicant has submitted a copy of the results of an
intelligence test carried out by a psychologist of Mensa of Finland on
28 August 1990 according to which his intelligence quotient is 142,
which is higher than that of 96 per cent of the population.
Relevant domestic law
Under Section 17 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 (para. 1). A request may be submitted by the
person himself, his or her spouse, a relative of his or the
Guardianship Board (Section 17d paras. 1 and 2, as amended by Act
no. 368/83).
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).
The placement under guardianship shall be ordered for an
indefinite period or for a period defined by the court (Section 17a,
as amended by Act no. 368/83).
The guardianship shall be revoked, if the grounds for placing the
person under guardianship no longer exist (Section 17c, as amended by
Act no. 368/83). Such a request may be lodged by the persons mentioned
in Section 17d paras. 1 and 2 as well as by the guardian.
Under Section 17d para. 3 the ward may request that his
guardianship be revoked by submitting a petition to the District Court.
Under Section 30, as amended by Act no. 368/83, he may also request
that his guardian be dismissed provided the ward has attained the age
of fifteen.
Section 6 of the Act on the Handling of Petitions at Courts of
First Instance (laki 307/86 hakemusasioiden käsittelystä yleisessä
alioikeudessa, lag 307/86 om behandling av ansökningsärenden vid allmän
underrätt) prescribes certain formal requirements of a petition. If a
petition is found to be incomplete the petitioner shall be requested
to complete it, unless this is considered unnecessary. If the petition
is not completed it shall in principle be dismissed.
Under Section 3 of the 1983 Decree the court shall ex officio
appoint a guardian ad litem inter alia when examining a petition for
the revocation of a guardianship, provided the ward's interests are,
or may become, in conflict with those of his guardian.
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 of 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.
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).
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).
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).
Under Section 39 the guardian may not without the court's consent
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. Any such transaction shall be considered void
unless the court subsequently approves it (Section 41).
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. 368/83).
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).
Where a person under guardianship has received, by way of either
a donation or a will, written instructions on the administration of the
possessions given to him, these are to be complied with unless,
following changed circumstances, the court grants permission to deviate
from them (Section 45).
Under Section 51 the guardian shall submit annual settlements of
the ward's accounts to the Guardianship Board.
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.
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).
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.
Under Section 65 a guardian ad litem shall be appointed inter
alia in matters where the ward's interests are or may become in
conflict with those of the guardian.
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).
Under Section 75 para. 3 a decision whereby a placement under
guardianship has been revoked shall be enforced only when it has
acquired legal force.
Section 12 of the 1978 Medical Practice Act (laki 562/78
lääkärin-toimen harjoittamisesta, lag 562/78 om utövning av läkaryrket)
provides that an opinion submitted by a person practising medicine to
a court or to other authorities shall be confirmed with the wording:
"Which I affirm on my honour and conscience" (para. 1). Such an opinion
is valid without a confirmation under oath unless the court or the
authority for special reasons orders such a confirmation (para. 2).
Under Chapter 17, Section 11 of the 1948 Code of Judicial
Procedure (oikeudenkäymiskaari 571/48, Rättegångs Balk 571/48) a
private written statement submitted for the purpose of pending or
future legal proceedings shall not be used as evidence before a court
of first instance unless otherwise prescribed by law. For a special
reason, however, the evidence may be permitted by the court.
Under Chapter 31 the Supreme Court may upon request annul a
legally final decision under certain conditions. According to the
prevailing practice such a request may be lodged inter alia by the
Parliamentary Ombudsman.
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.
According to Section 2 of the 1987 Act on Pre-trial Investigation
(esitutkintalaki 449/87, förundersökningslag 449/87) a pre-trial
investigation shall be carried out where, having regard to the report
of the offence or otherwise, there are reasons for suspecting that an
offence has been committed.
Under Section 1 of the 1988 Decree on Pre-trial Investigation and
Coercive Criminal Investigation Means (asetus 575/88 esitutkinnasta ja
pakkokeinoista, förordning 575/88 om förundersökning och tvångsmedel;
hereinafter "the 1988 Decree") such a report shall immediately be
registered and, if necessary, completed by the person filing the
report. A complainant who has requested that a pre-trial investigation
be carried out shall be informed by the investigating authority of its
reasons for not complying with such a request (Section 4).
COMPLAINTS
1. The applicant complains that he has been placed under
guardianship for no justifying reason and that his placement under
guardianship has been instigated by his relatives so as to enable them
to have access to his large possessions.
2. He complains of lack of sufficient access to court and refers,
in particular, to the District Court's refusal to examine his requests
of June and August 1991.
3. He complains that his relatives, in cooperation with his
guardian, have been embezzling his property; that he has been prevented
by guardian S.P. from receiving his pension; and that he has been
refused the means necessary for him to undergo an eye-operation. He
also submits that he has been unable to comment properly in writing on
the information submitted by the Government, as due to his radiation
injury he is unable to write legibly and has been refused access to a
typewriter as well as to means enabling him to hire a typist.
4. He complains that he has been subjected to ill-treatment by
guardian S.P. and assaults by family members and that on eight
occasions he has been sent to mental hospitals by S.P., but that no
grounds for detaining him have been found.
5. He complains of continuous interference with his correspondence.
He submits that he used to receive a substantial amount of mail, but
that during his guardianship he has received only three post-cards and
a few letters, the last-mentioned after they had been opened by
guardian S.P. In his submissions of 17 September 1992 he further
alleged that his telephone calls are being tapped and taped by one of
his sons.
6. He finally complains that he has lodged six reports with the
police alleging that his former wife has attempted to murder him by
secretly giving him overdoses of drugs. Only once has the police taken
any action, resulting in the Public Prosecutor deciding not to bring
charges.
The applicant does not invoke any particular provision of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 July 1991 and registered on
21 October 1991.
On 24 October 1991 the Rapporteur, pursuant to Rule 47 para. 2
(a) of the Commission's Rules of Procedure, decided to request further
information from the respondent Government. The information was
submitted by the Government on 25 November 1991. The applicant's
comments were conveyed to the Secretariat by telephone on 11 February
1992. On 30 March 1992 the Commission decided, pursuant to Rule 48
para. 2 (b), to bring the application to the notice of the respondent
Government and to invite them to submit written observations on the
admissibility and merits of the application, with the exception of the
complaint regarding the initial guardianship proceedings and the
decision to place the applicant under guardianship as upheld by the
Supreme Court on 27 October 1988. The Commission further decided,
pursuant to Rule 33, to give the application precedence.
The Government's observations were submitted on 4 and 23 June and
18 August 1992. The applicant submitted observations by telephone on
17 September and in writing on 18 September 1992.
THE LAW
1. The applicant complains that his placement under guardianship is
unjustified and that it has been instigated by his relatives in order
to enable them to obtain access to his large possessions.
The Commission has examined this complaint under Article 8
(Art. 8) of the Convention, which reads:
"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."
(a) The Commission first recalls that in accordance with the
generally recognised rules of international law the Convention only
governs, for each Contracting Party, facts subsequent to its entry into
force in respect of that Party (e.g. No. 9453/81, Dec. 13.12.82,
D.R. 31 p. 204, at p. 208). The Commission observes that the initial
guardianship proceedings terminated with the Supreme Court's decision
rendered on 27 October 1988, that is prior to 10 May 1990, which is the
date of the entry into force of the Convention in respect of Finland.
It follows that this part of the complaint is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
(b) As regards the prolongation of the applicant's guardianship as
upheld by the Supreme Court's decision of 24 January 1991 the
Government argue that it was and continues to be a lawful and justified
interference with the applicant's rights under Article 8 (Art. 8).
Section 17 of the 1898 Act reflects a legitimate aim for the purposes
of paragraph 2 of Article 8 (Art. 8-2), namely social control. The
prolongation was based on an evaluation of evidence as well as an
interpretation and application of domestic law, tasks which fall
exclusively within the competence of domestic authorities. The
Government finally refer to the expert opinion of 27 July 1992
concluding that the applicant is still suffering from paranoia.
The applicant contends that there are no sufficient reasons
justifying his placement under guardianship. The expert opinion of July
1992 is exclusively based on previous opinions in his file at the
National Medical Board. He has never been examined by Dr. Tuovinen.
The Commission considers that the applicant's placement under
guardianship, which the District Court has decided to replace by the
appointment of an administrator, constitutes an interference with his
right to respect for his private life within the meaning of Article 8
(Art. 8) of the Convention (No. 8509/79, Dec. 5.5.81, D.R. 24 p. 131).
In order to be justified under the terms of paragraph 2 of
Article 8 (Art. 8) such an interference must satisfy three conditions:
it must be "in accordance with the law", it must pursue one or more of
the aims enumerated in paragraph 2 and it must be "necessary in a
democratic society" for that aim or those aims (Eur. Court H.R.,
Beldjoudi judgment of 26 March 1992, para. 68, to be published in
Series A no. 234-A). The necessity requirement implies that the
relevant decisions must be shown to be justified by a pressing social
need and, in particular, be proportionate to the legitimate aim or aims
pursued (Eur.Court H.R., Moustaquim judgement of 18 February 1991,
Series A no. 193, p. 19, para. 43). Regard should further be had to the
margin of appreciation afforded to the Contracting States (Eur. Court
H.R., Berrehab judgment of 21 June 1988, Series A no. 138, pp. 15-16,
para. 28).
In examining the justification under paragraph 2 of Article 8
(Art. 8-2) of a placement under guardianship the Commission finds it
appropriate to seek guidance from the interpretation of Article 5 para.
1 (e) (Art. 5-1-e) of the Convention. The Court has held that the fact
that a person is "of unsound mind" within the meaning of that provision
must be established conclusively by means of objective medical reports.
In this respect the national authorities have a certain discretion as
it is for them in the first place to evaluate the evidence put before
them. The Convention organs' task is to review the decisions of the
national authorities from the point of view of the Convention (Eur.
Court H.R., Herczegfalvy judgment of 24 September 1992, para. 63, to
be published in Series A no. 242-B). In the Commission's view similar
considerations must apply in respect of the placement of a person under
guardianship.
In the case at issue the District Court's decision of 4 April
1990 was based, in particular, on an expert opinion concluding that the
applicant was suffering from incurable brain damage and that for three
years there had been no improvement in his mental capacity or general
state of health. Although another opinion by the physician in charge
of the applicant's care at the local Public Health Centre concluded
that his psychosocial situation had clearly improved it did not
indicate whether or not the placement under guardianship should have
been prolonged. Moreover, a further expert opinion of 27 July 1992
confirms that the applicant is still suffering from paranoia.
In these circumstances the Commission finds no indication that
the placement order was tainted by arbitrariness or that in any other
way it was not made in accordance with the law, nor is there any
indication that it was not made in the interest of preventing disorder
and for the protection of the rights and freedoms of others, these
being legitimate aims under paragraph 2 of Article 8 (Art. 8-2).
The question could be raised whether the placement order may be
considered necessary in a democratic society in view of the fact that
the order was revoked in October 1992. However, the Commission
concludes that the order did not exceed the margin of appreciation
which the Contracting States have in this field. The same applies a
fortiori to the recent decision whereby an administrator was appointed
to take care of the applicant's interests.
Accordingly, the Commission cannot find that the placement order
of 1990 was not necessary in a democratic society for the above-
mentioned legitimate aims.
It follows that this part of the complaint is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that he did not have sufficient
access to court. He refers, in particular, to his requests of June and
August 1991 to have the guardianship revoked or, in the alternative,
guardian S.P. dismissed.
(a) The Commission has examined this complaint under Article 6
para. 1 (Art. 6-1) of the Convention, which reads, in its relevant
parts:
"In the determination of his civil rights ..., everyone is
entitled to a ... hearing within a reasonable time by [a]
tribunal ..."
The Government contend that the complaint is manifestly ill-
founded. Over the years the President of the District Court has
received numerous letters and telephone calls from the applicant, who
has also been in contact with other members of the Court's legal staff.
His request of September 1989 for a revocation of the guardianship was
withdrawn in January 1990. His requests of 1991 were lodged only about
half a year after the prolongation of his guardianship had become
final. These facts may have been of significance when the President did
not deem it expedient or well-founded immediately to examine the
requests. The contents of the requests were, however, examined by the
Court in July and October 1992, when the applicant was represented by
a guardian ad litem. As a result guardian S.P. was dismissed. The
Government conclude that, although there was a certain delay, the
applicant did have access to court with regard to his requests.
The Commission recalls that Article 6 para. 1 (Art. 6-1) not only
secures to everyone the right to a fair trial in already pending court
proceedings, but also the right to have any claim relating to his civil
rights or obligations brought before a "tribunal". Thus, Article 6
para. 1 (Art. 6-1) embodies, inter alia, the right to institute
proceedings before courts in civil matters (Eur. Court H.R., Golder
judgment of 21 February 1975, Series A no. 18, p. 18, para. 36).
The right of access to court may, however, be subject to certain
limitations; those are permitted by implication, since the right of
access by its very nature calls for regulation by the State, and this
regulation may vary in time and place according to the needs and
resources of the community and of individuals. In laying down such
regulation the Contracting States enjoy a certain margin of
appreciation. The limitations applied must not, however, restrict or
reduce the access so as to impair the very essence of the right of
access. Furthermore, a limitation will not be compatible with Article
6 para. 1 (Art. 6-1) if it does not pursue a legitimate aim and if
there is no reasonable relationship between the means employed and the
aim sought to be achieved (ibid., p. 19, para. 38; Ashingdane judgment
of 28 May 1985, Series A no. 93, pp. 24-25, para. 57).
In his requests the applicant alleged in essence, on the one
hand, that the guardianship was unjustified and, on the other, that he
did not have sufficient access to the means necessary for his medical
treatment. In the first-mentioned respect the Commission observes that
the Supreme Court's decision upholding the prolongation of the
applicant's placement under guardianship had been rendered less than
five months prior to the applicant's first request of 4 June 1991.
True, the applicant referred to a statement by a psychiatrist to the
Deputy Ombudsman finding no reasons justifying the guardianship. The
statement, however, formed part of a petition to the Deputy Ombudsman
and was apparently not intended for use in a court of law. The
remainder of the petition was to some extent a repetition of
allegations previously submitted by the applicant to the District
Court.
In so far as the applicant's requests pertained to guardian
S.P.'s administration of his possessions the Commission observes that
somewhat similar allegations had been made in his petition of 27
September 1989 requesting the District Court to revoke his placement
under guardianship. It appears that, despite his withdrawal of that
petition, the applicant had previously expressed, by means of numerous
letters and telephone calls to the President of the District Court, his
discontent with the guardian. However, in re-appointing S.P. as
guardian the District Court apparently concluded that the applicant's
allegations were not well-founded. The re-appointment of S.P. was
upheld by the Supreme Court together with the prolongation of the
placement under guardianship, that is, again only about half a year
prior to the applicant's requests of June and August 1991.
The Commission notes that on 20 October 1992 the applicant's
placement under guardianship was revoked and an administrator appointed
for the administration of his financial and legal matters. In the
absence of any evidence to the contrary the delay in processing the
applicant's requests must, therefore, be considered to have been based
on considerations of judicial economy, these constituting a legitimate
aim.
Whilst the District Court's delay in processing the requests is
open to certain criticism the Commission cannot, on balance, and in
view of the circumstances as a whole, find that the tacit refusals to
deal with the requests at an earlier stage impaired the very essence
of the applicant's right of access to court or transgressed the
principle of proportionality.
It follows that the complaint in this respect must be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
(b) The Commission has further examined whether the District Court's
decision of 30 September 1991 not to appoint a guardian ad litem in the
proceedings reviewing the settlement of the applicant's accounts for
1990 impaired his right of access to court.
In this respect the Government contend that the complaint is
manifestly ill-founded. The District Court's decision was made only
after the settlement had been referred to a separate examination and
the Court had been provided with the further information requested from
the Guardianship Board. In view of this information the Court deemed
it unnecessary to appoint a guardian ad litem to contest the
settlement. Furthermore, the Deputy Ombudsman has found nothing
warranting a further examination of the District Court's conduct of the
case in this respect.
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention cannot be interpreted as including an unlimited right to
have an ad hoc guardian appointed for the purpose of bringing a court
action (cf. No. 10877/84, Dec. 16.5.85, D.R. 43 p. 184). It observes
that under Section 55 para. 2 of the 1898 Act the court shall, when
considering it necessary and provided the guardian has not resigned,
appoint a guardian ad litem to contest the guardian's administration
or the settlement of the ward's accounts. In the present case the
District Court, in view of the outcome of its further investigations,
including the clarification submitted by the Guardianship Board, found
no reason to take such action.
In these circumstances the Commission concludes that the District
Court's refusal to appoint a guardian ad litem did not impair the
applicant's right of access to court.
It follows that the complaint in this respect must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that his property has been
embezzled by his relatives in cooperation with guardian S.P.; that he
has been prevented by S.P. from receiving his pension; and that he has
been refused access to the means necessary for him to undergo an eye
operation. He finally submits that he has been unable to comment
properly in writing on the Government's observations, as due to his
radiation injury he is unable to write legibly and has been refused
access to a typewriter as well as to means enabling him to hire a
person to type his submissions intended for the Commission.
(a) The Commission has first examined the complaint regarding the
applicant's possibility effectively to bring an application and to
participate in the proceedings before the Commission. This complaint
falls within the ambit of Article 25 (Art. 25) of the Convention, which
reads, in its relevant part:
"The Commission may receive petitions addressed to the
Secretary General of the Council of Europe from any person
... claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in this
Convention, provided that the High Contracting Party
against which the complaint has been lodged has declared
that it recognises the competence of the Commission to
receive such petitions. Those of the High Contracting
Parties who have made such a declaration undertake not to
hinder in any way the effective exercise of this right."
The Government submit that the complaint is manifestly ill-
founded. A violation of Article 25 (Art. 25) would only have occurred
had the applicant been unable to submit his application in a
sufficiently complete and detailed form. The documents do not show
whether the applicant has asked guardian S.P. for additional funds for
the purpose of hiring a typist. On one occasion, however, S.P. refused
to pay a bill regarding typing costs, considering that it should have
been paid out of the applicant's disposable funds, as the guardian has
done in respect of most bills addressed to the applicant.
The Commission recalls that Article 25 para. 1 (Art. 25-1) of the
Convention imposes an obligation on the Contracting States not to
interfere with the right of the individual effectively to present and
pursue his application before the Commission. Such an obligation
confers upon the applicant a right of a procedural nature
distinguishable from the substantive rights set out under Section I of
the Convention or under its Protocols. It flows from the very essence
of this right that it must be open to individuals to complain of
alleged infringements of it in the proceedings before the Commission.
In this respect the Convention must be interpreted as guaranteeing
rights which are practical and effective as opposed to theoretical and
illusory (Eur. Court H.R., Cruz Varas and Others judgment of 20 March
1991, Series A no. 201, pp. 35-36, para. 99).
In the case at issue the Commission observes that the applicant
initially contacted the Secretariat by means of a handwritten letter.
Subsequently he submitted several further letters as well as the
application form, all transcribed from dictaphone recordings. He has
also been in telephone contact with the Secretariat on numerous
occasions. His last submission of September 1992 was again transcribed
from a dictaphone recording. The Commission further notes that the
applicant has been informed of the possibility to be legally
represented in the proceedings before the Commission. He has not,
however, availed himself of this possibility.
In these circumstances, the Commission cannot find any evidence
showing that he has been hindered in the exercise of his right of
petition to any significant degree (cf. ibid., p. 37, para. 104).
No action is therefore called for.
(b) The Commission has next considered the complaint in so far as it
pertains to guardian S.P.'s administration of the applicant's
possessions. These complaints have been examined under Article 1 of
Protocol No. 1 (P1-1) to the Convention, which reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject
to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
The Government contend that this complaint is also manifestly
ill-founded. A violation of Article 1 of Protocol No. 1 (P1-1) could
in the Government's view be at hand, had guardian S.P. used the
applicant's possessions in a way generally insufficient for the
applicant's needs. However, the applicant's poor accommodation
conditions are the result of the applicant's own choice. He has been
provided with home service to an extent chosen by himself as well as
health and rehabilitation services.
As regards the alleged refusal of access to the applicant's
pension and disposable funds the Government admit that the settlements
of his accounts do not distinguish the disposable funds used from the
costs of living incurred and therefore do not specify the amounts
factually at his disposal. However, the guardianship has been and is
being supervised by the Guardianship Board and the District Court in
accordance with domestic legislation governing guardianships. These
organs have approved the administration of the applicant's possessions
on the basis of the settlements of his accounts submitted by guardian
S.P. The funds at his disposal have been considered adequate by both
organs. At present the applicant receives about 2.000 FIM per month.
Neither the domestic authorities' assessment of facts nor their
application of domestic law has been arbitrary or otherwise
inappropriate. Any review of their decisions thus falls outside the
Commission's competence. Finally, the Deputy Ombudsman's criticism of
the Guardianship Board's supervision of the guardianship does not
contain any opinion as to whether the applicant's possessions were
adequately used for his benefit.
The Commission first notes that the applicant's possessions were
being administered by a guardian appointed by a court of law. In
performing his duties the guardian is under the supervision of the
local court and the municipal Guardianship Board. The administration
of the applicant's possessions, therefore, entails State responsibility
under the Convention.
The Commission further considers that guardian S.P.'s
administration of the applicant's possessions constitutes an
interference with his right to the peaceful enjoyment of his
possessions and amounts to a control of the use of his property to be
examined under the second paragraph of Article 1 of Protocol No. 1
(P1-1) as to its lawfulness, purpose and proportionality (e.g. Eur.
Court H.R., Tre Traktörer AB judgment of 7 July 1989, Series A no. 159,
pp. 22-24, paras. 55-62).
The Convention organs' power to review compliance with domestic
law is limited. It is in the first place for the national authorities
to interpret and apply that law. The requirement of lawfulness includes
the requirement that the impugned measures have some basis in domestic
law. Furthermore, the law must have a certain quality, that is, it
must be accessible, foreseeable and compatible with the rule of law.
A law which confers a discretion on the authorities must indicate the
scope of that discretion. The degree of precision required will depend
on the particular subject-matter (e.g. Eur. Court H.R., Huvig judgment
of 24 April 1990, Series A no. 176-B, pp. 52-55, paras. 26 and 28-29).
As to the lawfulness of the interference in the present case the
Commission observes that, although the 1898 Act prescribes, in essence,
that the measures taken on behalf of the ward shall be in his interest,
it is inherent in a placement under guardianship that a certain
discretion must be afforded to the guardian in choosing the means for
the proper implementation of it. It is further inevitable that the
guardian's and the ward's views will not always correspond. The fact
that in performing his duty the guardian is under the supervision of
both the local Guardianship Board and the District Court affords a
safeguard as to the propriety of any measure taken by him or any
negligence for which he is found to be responsible. In its review of
such acts or of any negligence the Commission must to a large extent
rely on the assessment of facts as well as the interpretation of
domestic law by those supervisory bodies.
In the particular circumstances of the present case the
Commission cannot find that the interference complained of was not, and
is not at present, in accordance with the law.
As to the purpose of the interference the Commission considers
that a control of the use of property may be "in accordance with the
general interest", even if the community at large has no direct use or
enjoyment of that property, provided that the interference is effected
in pursuance of a legitimate aim such as the safeguarding of
possessions belonging to persons found incapable of handling their own
affairs (cf. Eur. Court H.R. James and Others judgment of 21 February
1986, Series A no. 98, pp. 30-32, paras. 39-45).
Finally, as regards the proportionality between the interference
and the aim pursued the Commission notes, in particular, the guardian's
refusal to accept the applicant's medical treatment in the private
hospital of Eira. It cannot be excluded that this hospital had been
chosen by the applicant on the basis of his experience as a practising
physician. Moreover, it does not appear that the guardian consulted
a physician before refusing to pay for the care. In these circumstances
and judging from the accounts of the applicant's financial situation
at the Commission's disposal this particular incident is therefore open
to criticism.
In the Commission's view, however, regard must primarily be had
to the administration of the guardianship in general, which in the case
at issue involved considerable efforts, due to the applicant's medical
situation and his large amount of real property. On the basis of the
evidence before it the Commission cannot conclude that the guardian did
not carry out the administration in good faith, nor can the supervisory
bodies be considered to have acted in a way disproportionate to the aim
of the placement under guardianship. The Commission notes in this
respect that requests lodged by the applicant as well as measures in
relation to the guardianship have been subject to examination by the
Guardianship Board. His requests of 1991 to the District Court
apparently resulted in a recommendation by its President that the
Guardianship Board take measures in order to have the applicant undergo
rehabilitation. Furthermore, the settlement of his accounts have been
audited and approved by both the Guardianship Board and the District
Court.
The Commission finally notes the finding by the Deputy Ombudsman
that the applicant's treatment is largely due to his own choices as
regards medication, rehabilitation, home service and hygiene.
In these circumstances and having regard to the wide margin of
appreciation afforded to the Contracting States under the second
paragraph of Article 1 of Protocol No. 1 (P1-1), the Commission cannot
find that the control of the use of the applicant's possessions was
disproportionate to the aim pursued.
It follows that the complaint in this respect must be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicant further complains of ill-treatment by guardian S.P.
and assaults by members of his family. He alleges, in particular, that
on several occasions he has been sent to mental hospitals by guardian
S.P., but that no grounds for detaining him against his will have been
found.
This complaint has been considered under Article 3 (Art. 3) of
the Convention, which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Government submit that the complaint is manifestly ill-
founded.
(a) In so far as the complaint is directed against members of the
applicant's family the Commission recalls that under Article 25 para.
1 (Art. 25-1) of the Convention the Commission may only receive an
application from a person, non-governmental organisation or group of
individuals where the applicant alleges a violation by one of the
Contracting Parties of the rights and freedoms set out in the
Convention and where that Party has recognised this competence of the
Commission. The Commission may not, therefore, receive applications
directed against private individuals. In this respect the Commission
refers to its established case-law (e.g. No. 172/56, Dec. 20.12.57,
Yearbook 1 pp. 211, 215; No. 852/60, Dec. 19.9.61, Yearbook 4 pp. 346,
352; No. 3925/69, Collection 32 pp. 56, 58; No. 4072/69, Dec. 3.2.70,
Yearbook 13 pp. 708, 716; No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21,
36).
It follows that the complaint in this respect is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
(b) In so far as the complaint is directed against S.P. the
Commission has examined above the complaint under Article 1 of Protocol
No. 1 (P1-1) relating to the alleged mismanagement by S.P. of the
applicant's possessions, wich allegedly deprived the applicant of
adequate medical treatment. In this respect no separate issue arises
under Article 3 (Art. 3) of the Convention. Moreover, even assuming
that at least some of the incidents involving the taking of the
applicant to various mental hospitals occurred less than six months
prior to the date of introduc-tion of his application the Commission
cannot in this respect find any indication of treatment contrary to
Article 3 (Art. 3) of the Convention.
It follows that the complaint in this respect must be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
5. The applicant further complains of continuous interference with
his correspondence. During his guardianship he has received a very
small number of postcards or letters, the last-mentioned opened by the
guardian. In his submissions of 17 September 1992 he further alleged
that his telephone calls are being tapped by one of his sons.
(a) The Commission considers that the complaint or interference with
the applicant's correspondence falls to be examined under the above-
cited Article 8 (Art. 8) of the Convention.
The Government first point to a contradiction in the applicant's
submissions. In his request to the District Court of 27 September 1989
he stated that for five years he has received no mail. In his contacts
with the Commission's Secretariat he initially stated that he had
received only three postcards and a few letters which had been opened
by the guardian. In February 1992, however, he stated that he had not
received any mail for a period of six years.
The Government further submit that with the exception of
magazines and postcards all incoming correspondence goes via the
guardian. Official correspondence such as bills was addressed to
"Touko Ollila/S.P." The applicant, however, is given all correspondence
pertaining to his personal matters. In these circumstances the
Government admit that there has been an interference with the
applicant's right to respect for his correspondence, but leaves it to
the Commission to determine whether this has been justified under
Article 8 para. 2 (Art. 8-2).
As regards, in particular, the lawfulness of the interference the
Government submit that, although the 1898 Act does not explicitly allow
interference with a ward's correspondence, the guardian's right of
access to correspondence necessary for the administration of the ward's
possessions may be derived from that Act. The guardian may have to
screen correspondence in order to determine whether the contents
pertain to the administration of the ward's possessions. The Government
admit that it is doubtful whether the provisions of the 1898
Guardianship Act fulfil the conditions as to foreseeability of the
interference and the discretion afforded to the authorities. However,
any interference with a ward's correspondence is being supervised by
a court. If the interference exceeds what is allowed under the
Constitution Act and the 1898 Act, criminal proceedings may be
instituted. In any case, the interference with the applicant's
correspondence is necessary for the prevention of disorder and the
protection of the rights and freedoms of others.
As regards outgoing mail the Government accept that there is no
need for an interference for the purpose of administering the ward's
possessions, legal transactions concluded by him being null and void.
The home service officials and friends help the applicant with sending
mail.
The Commission has carried out a preliminary examination of this
complaint in the light of the parties' submissions. It considers that
it raises questions of fact and law which are of such a complex nature
that their determination requires an examination of the merits. The
complaint cannot therefore be declared inadmissible as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
(b) The alleged telephone tapping does not entail any responsibility
of the respondent Government under the Convention.
It follows that this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article 27
para. 2 (Art. 27-2).
6. The applicant finally complains that the police have not taken
any action in respect of his reports regarding murder attempts
allegedly carried out by his former wife.
The Commission has examined this complaint under Article 2
para. 1 (Art. 2-1) of the Convention, which reads, in its relevant
part:
"Everyone's right to life shall be protected by law..."
The Government submit that the complaint is manifestly ill-
founded. The police authority of Askola did investigate the first
report made by the applicant. However, as no new evidence or other
information was presented by him or received from other sources the
police did not deem it necessary to investigate his later reports. This
finding was subsequently confirmed by the Police Inspector of the
County of Uusimaa. Thrice the local Prosecutor has decided not to press
charges. Also the Deputy Ombudsman concluded in 1989 that the
applicant's allegations contained no grounds for further
investigations. Following a further report lodged by the applicant in
1990 additional investigations were carried out, terminating in a
decision to close the investigations. The Central Criminal Police have
registered the applicant's reports of 1989 and 1992 and these are still
pending. The local police is currently reviewing measures previously
taken in order to consider whether further investigations are needed.
The Commission recalls that, whilst the Convention does not
safeguard a right as such to have a pre-trial investigation carried
out, Article 2 (Art. 2) of the Convention imposes a broad obligation
on the Contracting States to take appropriate steps to safeguard life
(e.g. No. 11604/85, Dec. 10.10.86, D.R. 50 p. 259). However, even
assuming that Article 2 (Art. 2) would apply in the particular
circumstances of the present case, the Commission concludes that the
investigations carried out in respect of the applicant's reports amount
to a sufficient safeguarding of his right under Article 2 (Art. 2).
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaint under Article 8 of the
Convention in so far as it pertains to interference with
his correspondence;
DECIDES TO TAKE NO ACTION with respect to the complaint under
Article 25 of the Convention; and
by a majority,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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