Communicated on 16 January 2014

FOURTH SECTION

Application no. 14912/07 Vladimirs ARACKIS against Latvia lodged on 26 March 2007

STATEMENT OF FACTS

1 . The applicant, Mr Vladimirs Arackis, is a “permanently resident non ‑ citizen” of Latvia , who was born in 1947 and currently lives in a social care institution Gaiļezers in Riga .

2 . Since 2001 the applicant has been recognised as Category 2 disabled.

A. The circumstances of the case

3. The relevant facts of the case, as submitted by the applicant, may be summarised as follows.

1 . The applicant ’ s placement in a social care institution

4. In 2003 the applicant was placed in a social care institution Mežciems .

5. On 24 March 2006 the applicant was transferred, in his submission, by deception, to the Īle State Social and Psychological Rehabilitation Centre , located 20 km from Dobele in Īle parish (the “ Īle Centre”). The Īle Centre was used as a psychiatric hospital.

6. According to the applicant, he was placed and kept there unlawfully in a regime comparable to that of a closed type detention facility. A decision of a panel, composed of at least three doctors, was required for his confinement. Further, the applicant was not brought before a judge to examine the lawfulness of his deprivation of liberty .

7. On 25 April 2007 the applicant was not allowed to leave the Īle Centre premises to go to a post office.

8. On 29 October 2008 the applicant was transferred to a social care institution Gaiļezers .

2 . Incapacitation proceedings and appointment of a guardian

9. On 2 December 2005 the social care institution Mežciems submitted to the Riga City Northern District Court ( Rīgas pilsētas Ziemeļu rajona tiesa ) a claim that the applicant be divested of legal capacity.

10. On 30 March 2006 the District Court divested the applicant of legal capacity. It referred to the medical reports on his health and the expert ’ s report of 16 January 2006 following his outpatient forensic psychiatric examination ( ambulatorā tiesu psihiatriskā ekspertīze ) . It noted:

“ it follows from the expert ’ s report ... that [the applicant] does not suffer from a mental illness but he is [diagnosed with] a mixed aetiology intellectual disability with a mixed symptomatology ( jauktas etioloģijas plānprātība ar jauktu simptomātiku ) and alcohol dependency. Due to the said impairments [the applicant] has lost most of [his] mental ability which prevents him from understanding and directing his conduct ( saprast un vadīt savu rīcību ).

...the court finds that due to the intellectual disability [the applicant] lacks most of [his] mental ability and [he] is unable to dir ect or to understand ... his conduct , therefore, in accordance with section 358 of the Civil Law the court has grounds to declare [the applicant] legally incapable ( rīcībnespējīgs ) and appoint him a guardian. ”

11. On 23 October 2006 the Riga Regional Court ( RÄ«gas apgabaltiesa ) upheld, upon appeal, the foregoing decision. Its reasoning included the following:

“[The applicant] was ordered an outpatient forensic psychiatric examination ...

...

In the course of the examination, [the applicant] was [ diagnosed with ] distinct memory, thinking, perception [and] emotional impairments; difficulties to generalise [and] sum up. This impedes [his] understanding of ... correlations of surrounding things and phenomena [and] acting purposeful ly in order to satisfy [his] social needs. They correspond to the diagnosis: a mixed type intellectual disability with a mixed symptomatology ( jaukta tipa plānprātība ar jauktu simptomātiku ) (dysphoria, impulsiveness, increased irritability, impulsiveness, aggressiveness).

...

...the expert ’ s report states that [the applicant] does not suffer from a mental illness, but he is [diagnosed with] a mixed aetiology intellectual disabil ity with a mixed symptomatology ( jauktas etioloģijas plānprātība ar jauktu simptomātiku ) and alcohol dependency. Due to the said impairments [the applicant] has lost most of [his] mental ability which prevents him from understanding and directing his conduct ( saprast un vadīt savu rīcību ) ... he may participate in a court hearing, give explanations in the court hearing. [H]owever, being in an unusual environment ... may intensify the manifestation of his mental impairments... ”

12 . On 11 December 200 6 the Regional Court refused to accept the applicant ’ s appeal on points of law against the aforementioned decision on the grounds that the decision had become effective on the day of its pronouncement and the applicant did not have capacity to represent himself. This decision was subject to appeal. The applicant did not appeal.

13. On 26 January 2007 the custodial court ( Bāriņtiesa ) appointed A . S . to serve as the applicant ’ s guardian ( aizgādnis ).

14. On 26 November 2008 the custodial court appointed V.B. as the applicant ’ s guardian.

3 . Subsequent events

15. On 1 April 2009 V.B. claimed before the Civil Cases Chamber of the Supreme Court ( Augstākās tiesas Civillietu tiesu palāta ) various violations in the proceedings in which the applicant had been divested of legal capacity.

16. On 15 June 2009 the Civil Cases Chamber of the Supreme Court refused V.B. ’ s claim on the grounds that the information submitted did not amount to newly discovered circumstances. On 29 June 2009 V.B. lodged an ancillary complaint against that decision. T here is no information about the outcome of these proceedings .

B. Relevant domestic law, practice and other texts

17. The relevant domestic law and practice and other texts have been quoted in Mihailovs v. Latvia ( no. 35939/10, §§ 60-79, 22 January 2013) and L.M. v. Latvia ( no. 26000/02 , §§ 25-37 , 1 9 July 2011 ).

COMPLAINTS

1. The applicant complains under Article 5 of the Convention that he was unlawfully transferred and placed as of 24 March 2006 in the Īle Centre , a psychiatric hospital, in conditions comparable to those of a closed type detention facility. His freedom of movement was constrained .

2. He complains under Article 5 § 4 of the Convention that his release from the Īle Centre was not ensured.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty within the meaning of Article 5 § 1 of the Convention during his placement in the Īle Centre between 24 March 2006 and 29 October 2008?

2. Was the applicant ’ s placement in the Īle Centre compatible with Article 5 § 1 of the Convention (see Mihailovs v. Latvia , no. 35939/10, 22 January 2013 )?

3. Did the applicant have at his disposal a procedure by which the lawfulness of his initial and subsequent placement in the Īle Centre could be examined, as required by Article 5 § 4 of the Convention ( see Mihailovs v. Latvia , no. 35939/10, 22 January 2013)?

4 . In view of the facts and complaint s in the case, the Government are requested to present their views on the absence of the signature of the applicant on the application form (Rule 45 of the Rules of Court)?