FIFTH SECTION

Application no. 62507/12 Jaroslav ÄŒERVENKA against the Czech Republic lodged on 29 September 2012

STATEMENT OF FACTS

The applicant, Mr Jaroslav Červenka , is a Czech national, who was born in 1956 and lives in Prague . He is represented bef ore the Court by Ms B. Rittichová , Mr M. Matiaško , lawyers from the Mental Disability Advocacy Center (MDAC) in Brno , and Mr R. Cholenský , a lawyer practising in Brno .

A. The circumstances of the case

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

The applicant used to work as a teacher but because of excessive drinking he was diagnosed with alcoholic dementia. He owns a flat in Prague where he lives on his own.

In a judgment of 25 January 2005 the Prague 4 District Court declared the applicant legally incapacitated upon a request of the applicant ’ s doctor. Based on an expert opinion and testimony of the applicant ’ s father, the court concluded that the applicant suffered from alcoholic dementia, which was a permanent mental disability, and he was unable to perform any legal acts on his own. The applicant was not heard by the court and the judgment was not delivered to him.

Since 10 July 2009 Prague 11 Municipality Office has been the applicant ’ s guardian.

The applicant petitioned the District Court several times to return him legal capacity but the requests were always refused.

On 4 March 2010, while rejecting another request to return legal capacity to the applicant, the District Court banned him from lodging further requests for one year because there was no possibility of a change of the applicant ’ s condition in that period.

On 7 February 2011 an employee of the Prague 11 Municipal Office, Ms J., accompanied the applicant to a social care home in Letiny purportedly as he needed rehabilitation treatment for his leg. There she signed an agreement with the social care home on provision of residential social services to the applicant and the applicant stayed there.

The Letiny social care home provides residential social services primarily for patients with Alzheimer disease and dementia. Most of the patients are elderly and severely physically and mentally disable d. It is a closed institution, which the applicant could not leave. The only possibility for outdoor activities is a small garden with a high fence. Patients share rooms. The applicant could not send any correspondence on his own but only through employees of the home who sent some letters to the applicant ’ s guardian instead of the address determined by the applicant based on their assessment whether it was an official or a private correspondence. Some letters that the applicant received were opened.

The applicant ’ s health condition was not examined before or at the time of arrival to the social care home. Once there he was prescribed medication, in particular Buronil , Tiapridal and Rispen . When he refused to take this medication he was threatened that it would be applied by injection.

On 10 February 2011 the Municipal Office informed the Prague 4 District Court about the placement of the applicant in the social care home. They maintained that the placement was necessary because the applicant had been spending most of his money on alcohol, had been spending most of his time sitting before his house on a bench and verbally harassing passers-by, he had been unable to dress appropriately and sometimes he had been so intoxicated as to be unable to receive a lunch that had been being brought to his door every day. Further, the applicant had been excessively visiting doctors, requesting various examinations of his brain, thumb, knee, eyes, etc. He had been also sending confusing submissions to various institutions, such as courts, ministries or animal rights organisations.

On an unspecified date the District Court required by telephone more information from the Municipal Office about the applicant ’ s placement in the social care home.

On 2 May 2011 the Office answered in a letter repeating the reasons set out in its submission of 10 February and informing the District Court that the applicant had been placed there for an indefinite period as he was not able to live on his own.

The applicant disagreed with his placement in the social care home and contacted a number of authorities, including his guardian, complaining about it. On 28 March 2011 he also called the emergency line and contacted the police, who however set his complaint aside not finding any unlawfulness.

On 11 February, 5 May, 6 May and 1 June 2011 respectively, the applicant infor med the Prague 4 District Court that he was held in the social care home against his will and demanding his release. The District Court did not react to any of his motions.

On 21 July 2011, after having been contacted by the applicant, a lawyer from the MDAC office in Brno visited the applicant in the social care home. The applicant signed a power of attorney authorising Ms. B. Rittichová to act on his behalf.

On 26 July 2011 the latter sent a request for immediate release of the applicant to the director of the social care home and to the Municipal Office, the applicant ’ s guardian.

The director replied on 1 August 2011 stating that the applicant ’ s placement was legal as he was deprived of legal capacity and his guardian had given consent to it. On 3 August 2011 the applicant received a similar answer from his guardian that further considered the power of attorney signed by the applicant as invalid given that he had been deprived of his legal capacity.

On 27 September 2011 the applicant was released from the social care home after his guardian terminated the agreement on provision of residential social services. He was not informed in advance about it.

On 25 October 2011 Municipal Office, in a reaction to the findings of the ombudsman (see below), requested the District Court to approve the guardian ’ s signature of the agreement on provision of residential social services of 7 February 2011.

On 10 November 2011 the District Court approved ex post the signature of the guardian. The reasoning contained only one sentence stating that the approval of the agreement was in accordance with the law and in accordance with the interests of the applicant. The decision became final as the guardian ad litem , Prague 4 Municipal Office, waived its right of appeal. The applicant was not summoned to appear before the court in these proceedings and he was not informed about them.

B. Proceedings brought by the applicant ’ s lawyers

1. Submissions to ordinary courts

On 22 July 2011 the applicant requested the Plzeň-jih District Court to issue a decision on the lawfulness of his involuntary hospitalisation under Article 191b of the Code on Civil Procedure. As the District Court was inactive, the applicant lodged a request with the Plzeň Regional Court o n 22 August 2011, pursuant to Act no. 6/2002 on Courts and Judges to set a time-limit for a procedural step.

On 4 October 2011 the Plzeň Regional Court rejected his request holding that the lawyer was not a person who could lodge such a request because the applicant ’ s signature on the power of attorney was invalid as he was deprived of legal capacity.

On 23 August 2011 the applicant lodged a request with the Municipal Court under Act no. 6/2002 on Courts and J udges to set a time-limit for a procedural step arguing that the guardianship court (Prague 4 District Court) was inactive in the mater of his detention and not reacting to his submissions. He argued that the guardianship court should have informed the relevant court ( Plzeň-jih District Court) about the applicant ’ s involuntary hospitalisation in order to institute proceedings on its lawfulness under Article 191b of the Code on Civil Procedure. Furthermore, the guardianship court itself should have instituted proceedings to supervise the applicant ’ s guardian under Article 178 of the Code on Civil Procedure.

On 19 September 2011 the Prague Municipal Court decided not to undertake any action on the applicant ’ s request because the power of attorney submitted by his lawyer was invalid due to the lack of legal capacity of the applicant.

2. Constitutional appeals

On 23 August 2011 the applicant lodged his first constitutional appeal alleging violations of his rights to private life, liberty, freedom from discrimination and fair trial by Prague 11 Municipal Office and the Prague 4 District Court on the account of his detention in the social care home. He argued that the Municipal Office had violated those rights by placing him in the social care home without his consent and the District Court by remaining inactive in this situation. He also requested the court to issue an interim measure and release him from detention.

On 28 March 2012 the Constitutional Court dismissed his appeal as inadmissible. It held that the applicant was no longer detained and therefore the court had no power to assess the alleged violations, which had already ceased. As to the inactivity of the Prague 4 District Court, it referred to a previous case (no. IV. ÚS 1348/09), where it had declared manifestly ill-founded a complaint that a court had not instituted a review of lawfulness under Article 191b of the Code on Civil Procedure when a legally incapacitated person was detained with the consent of his guardian.

On 28 November 2011 the applicant lodged his second constitutional appeal alleging the same violations as in his first one. This appeal however challenged also the decisions of the Prague Municipal Court of 19 September 2011 and the Plzeň Regional Court of 4 October 2011.

On 17 April 2012 the Constitutional Court dismissed as inadmissible also this second appeal. It held that the applicant had failed to challenge both decisions by a plea of nullity under Article 229 § 1(c) of the Code of Civil Procedure. It added that the applicant was no longer detained and, therefore, it was not appropriate to apply section 75(2) of the Act on Constitutional Court by which it can waive the obligation to exhaust other effective remedies if the significance of the appeal extends substantially beyond the personal interests of the appellant.

3. Proceedings for just satisfaction against the State

On 27 March 2012 the applicant lodged a claim for just satisfaction against the State under the State Liability Act (no. 82/1998). He alleged that his rights had been violated by the guardian on the account of his unlawful detention.

The request appears to be pending before the Ministry of Justice.

On 30 March 2012 he lodged another claim under the same law, arguing that his rights had been violated by the courts. He claimed that the Plzeň-jih District Court and the Plzeň Regional Court had erred in not instituting the proceedings for determination of lawfulness of his detention under Article 191b of the Code on Civil Procedure. Furthermore, the Prague 4 District Court and the Prague Municipal Court had remained inactive despite the applicant ’ s numerous submissions describing his detention.

On 27 September 2012 the Ministry of Justice rejected this second claim of the applicant holding that under the State Liability Act the State was liable only for damage caused either by a final unlawful decision, which had been later quashed, or by irregular official conduct. Regarding the latter it held that the alleged shortcomings in the proceedings could not constitute irregular official conduct for which the State could be held responsible, because the conduct had resulted in a decision. The former situation did not arise in the present case, either, as there was no final decision that was later quashed as illegal. Furthermore, the Ministry did not find that the applicant had suffered any damage. It considered that the applicant had caused the facts he had been complaining about himself, because of his excessive drinking. It added that in any case the applicant ’ s lawyer had no right to submit these claims to the Ministry as the applicant had been legally incapacitated and he had a different guardian to act on his behalf.

C. Ombudsman ’ s report

On 12 October 2011 the ombudsman, having been contacted by the applicant, issued a report on his case. He found that the applicant had been deprived of his liberty in the social care home. He considered that the guardian had erred when it had not sought a prior court ’ s consent to the applicant ’ s placement in the social care home. Furthermore, under Article 5 § 4 of the Convention there was a legal obligation of judicial review of the applicant ’ s placement there and therefore proceedings under Article 191b of the Code on Civil Procedure should have been instituted.

D. Relevant domestic law and international instruments

The relevant domestic law and international instruments are set out in the Court ’ s judgment Sýkora v. the Czech Republic , no. 23419/07 , §§ 35-45, 22 November 2012 (not final).

In addition Article 178 in conjunction with Article 193 § 3 of the Code on Civil Procedure stipulates that guardianship courts guide guardians to proper fulfilment of their duties towards their wards and take appropriate actions in that regard.

Under Article 28 of the Civil Code guardians are required to acquire consent of a court for an act, which is not a common matter, taken on their ward ’ s behalf. The provision, however, does not stipulate, and legal opinion seems to be divided, whether the consent must be sought prior to the act or whether ex post consent suffices. In practice it seems that ex post consent is accepted.

COMPLAINTS

The applicant complains under Article 8 of the Convention that by his placement and stay in the social care home his rights to home, correspondence and private life on account of the limitation arising from his detention and involuntary medication during his stay in the social care home were violated.

Further relying on Article 5 § 1 of the Convention he complains that his detention in the social care home violated his right to liberty.

Under Article 5 § 4 of the Convention he complains that he could not have taken any court proceedings in which the lawfulness of his detention would be decided and his release ordered.

He also complains that his right under Article 5 § 5 of the Convention was violated because under domestic law he does not have any enforceable right to compensation for his unlawful detention.

Further, under Article 13 of the Convention the applicant complains that he had no effective remedy for violations of his rights under Articles 5 § 1, 5 § 4, 5 § 5 and 8 of the Convention.

Lastly, relying on Article 14 of the Convention in conjunction with Articles 5 and 8 of the Convention, he complains that he was discriminated against on the ground of his mental disability and that he was denied reasonable accommodation as he was placed in the social care home instead of being provided services in the community.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? Did the deprivation of liberty fall within paragraph (e) of this provision? And, if so, was the applicant, in particular, reliably shown to be o f unsound mind and was the deprivation of liberty accompanied by sufficient guarantees against arbitrariness?

2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detent ion, as required by Article 5 § 4 of the Convention?

3. Did the applicant have an effective and enforceable right to compensation as required by Article 5 § 5 of the Convention, in particular in view of the alleged lack of a claim under Act no. 182/1998 as described in the decision of the Ministry of Justice of 27 September 2012 and the fact that he is legally incapacitated?

4. Has there been a violation of the applicant ’ s right to respect for his private life, home and correspondence during the applicant ’ s placement and stay in the social care home, contrary to Article 8 of the Convention?

5. Regarding the applicant ’ s complaints relating to the alleged involuntary medication and alleged interferences with his correspondence under Article 8 of the Convention, did the applicant, being legally incapacitated, have the possibility to institute any proceedings against the social care home in which these complaints could be considered? Regarding the alleged involuntary medication did he have access to any preventive remedy ( see X v. Finland , no. 34806/04, § 220, 3 July 2012)?

6. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?

7. Has the applicant suffered discrimination in the enjoyment of his rights under Articles 5 and 8 of the Convention on the ground of his disability, contrary to Article 14 of the Convention, on the account of the alleged lack of reasonable accommodation as he was placed in the social care home instead of being provided services in the community?

8. Has the applicant suffered discrimination in the enjoyment of his right under Article 5 of the Convention on the ground of his disability, contrary to Article 14 of the Convention on the account of his placement in the social care home only with the consent of his guardian?