FIFTH SECTION

DECISION

Application no. 21703/05 by M.V. against Estonia

The European Court of Human Rights (Fifth Section), sitting on 7 October 2008 as a Chamber composed of:

Karel Jungwiert , President, Rait Maruste , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 3 June 2005,

Having regard to the formal joint declaration accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms M . V . , is an Estonian national who was born in 1948 and lives in Tartu . Sh e was represented before the Court by Ms E. Pilt, a lawyer practising in Tallinn , and also by Mr O. Lewis, Ms B. Bukovska and Mr Y. Marchenko, lawyers practising in Budapest . The Estonian Government (“the Government”) were represented by their Agent, Ms M. Hion , Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs .

The circumstances of the case

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

In 2003 I.V., the applicant ' s son, lodged an application with the Tartu County Court ( maakohus ), requesting that the applicant ' s active legal capacity be restricted ( teovõime piiramine ) and that a guardian ( eestkostja ) be appointed because of her mental condition .

On 16 October 2003 a County Court hearing took place in the absence of the applicant. I.V. amended his application, requesting that the applicant be placed in a special care facility ( erihooldekodu ), since she posed a threat to the persons around her.

By a judgment of 27 October 2003 the County Court appointed I.V. as the applicant ' s guardian and prohibited her from entering into transactions without his consent. The court also decided to place the applicant without her consent in a social welfare institution with increased supervision ( h oolekandeasutuse tugevdatud jär elvalvega osakond ) for a period of one year. The court ordered that its judgment be enforced immediately, as the applicant posed a threat to the members of her family.

On 13 May 2004 the applicant was compulsorily committed to the Kernu social welfare institution.

From 25 May to 4 June 2004 the applicant was hospitalised in a psychiatric clinic. She was diagnosed with paranoid schizophrenia and received treatment which continued after she was discharged from the clinic.

On 5 August 2004 the applicant, assisted by Ms Pilt, a lawyer from the Estonian Patients Advocacy Association, lodged “an application to correct a court error” ( kohtuvigade parandamise avaldus ) with the Supreme Court ( Riigikohus ).

By a judgment of 14 December 2004, the Supreme Court quashed the County Court ' s judgment and referred the case back to the same court. It found that the applicant should have b een involved in the proceedings if her mental state had allowed that ; the expert should have e xamined the applicant in person; she should have been provided with legal aid, free of charge if necessary.

Despite the Supreme Court ' s judgment, the applicant stayed in the social welfare institution, as she had no money and no where to go.

On 7 February 2005 the applicant was transferred from the social welfare institution to the Tartu psychiatric hospital for an examination of her mental state , as ordered by the County Court, which had resumed the proceedings . She was discharged from the hospital on 29 March 2005.

By a judgment of 23 May 2005 the County Court dismissed I.V. ' s application for guardianship of the applicant.

Thereafter, the applicant unsuccessfully sought compensation for unlawful deprivation of liberty from the Ministry of Finance. Subsequently, she lodged a complaint with the Tallinn Administrative Court ( halduskohus ). On 23 November 2006 the court awarded her 168,210 Estonian kroons (EEK; approximately 10,750 euros (EUR)).

On 20 June 2007 the Tallinn Court of Appeal quashed the judgment and referred the case back to the first-instance court for a new examination.

On 15 November 2007 the Administrative Court granted the applicant ' s request to stay the court proceedings as a legislative amendment concerning payment of compensation to persons unjustly deprived of their liberty by being placed in welfare institutions was being prepared by the Ministry of Justice.

COMPLAINTS

1. The applicant complain ed under Article 5 § 1 of the Convention that:

a) her compulsory admission had been decided without examining whether her mental disorder was of a kind or degree warranting compulsory admission ;

b) Estonian law lack ed the necessary clarity to determin e in which cases persons of unsound mind could be detained;

c) her detention had not been decided in accordance with a procedure prescribed by law;

d) the enforcement of the judgment according to which she had been deprived of her liberty had lacked an appropriate procedural framework;

e) the place of her detention, the Kernu social welfare institution, lacked the necessary therapeutic environment and the conditions of detention were inappropriate for mental health patients.

2. She further complain ed , relying on Article 5 § 2, that she had not been informed of the reasons for her detention.

3. She argue d that she had had no recourse to the courts in order to have the lawfulness of her detention examined. Thereby Article 5 § 4 had been violated.

4. According to the applicant, there wa s no possibility in Estonian law to award compensation to a person who had been a victim of an Article 5 violation in a social welfare institution. Thereby her rights guaranteed under Article 5 § 5 had been violated.

5. She complain ed that, in violation of Article 13, she had had no possibility to challenge her detention before the domestic authorities and receive appropriate relief.

6. Finally, she complain ed that she had been prohibited from instructing a lawyer and making applications to court concerning her detention and in respect of her other rights protected by the Convention , because she was a person under guardianship. Thus, she had been discriminated against on the basis of her legal status and there was accordingly a violation of Article 14 in conjunction with Article 5 §§ 1, 2, 4 and Article 13.

THE LAW

On 11 July 2008 the Government and the representative of the applicant signed the following joint declaration:

“The Estonian Government (“the Government”) and the applicant have now reached the following friendly settlement on the basis of respect for human rights, as defined in Article 37 § 1 of the European Convention on Human Rights and Rule 62 § 3 of the Rules of Court, in order to terminate the proceedings before the European Court of Human Rights.

The Ministry of Justice is currently drafting amendments to relevant legal acts in order to amend the legislation related to damages for unlawful placement in welfare institutions that will provide clear rules on the right to receive compensation for any violation of the rights to liberty and security.

The Government will pay, the sum of EUR 5,500 (five thousand five hundred euros) to the applicant. This sum, which is to cover any pecuniary and non-pecuniary damage as well as all costs and expenses, will be converted into Estonian kroons at the rate applicable on the date of payment, and free of any taxes that may be applicable. This amount will be paid directly to the bank account given by the applicant within three months of the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement interest shall be payable on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government and the applicant declare that this payment will constitute the final resolution of the case and the applicant waives any further claims against Estonia in respect of the facts giving rise to this application.

The Government and the applicant respectfully ask the European Court of Human Rights to strike the case out of the list of cases under Article 39 of the European Convention on Human Rights.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

             Claudia Westerdiek Karel Jungwiert Registrar President