FIFTH SECTION
CASE OF SÝKORA v. THE CZECH REPUBLIC
(Application no. 23419/07)
JUDGMENT
STRASBOURG
22 November 2012
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 1
In the case of Sýkora v. the Czech Republic,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Angelika Nußberger,
André Potocki,
Paul Lemmens, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23419/07) against the
Czech Republic lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Czech national, Mr Milan Sýkora (“the applicant”), on
30 May 2007.
2. The applicant was represented by Mr D. Zahumenský,
Ms B. Bukovská, and Mr J. Fiala, lawyers from the Mental Disability
Advocacy Center in Brno. The Czech Government (“the Government”)
were represented by their Agent, Mr Vít A. Schorm, of the Ministry of
Justice.
3. The applicant alleged, in particular, that his right to liberty and private
life had been violated on account of the removal of legal capacity from him
and his subsequent detention in a psychiatric hospital.
4. On 29 June 2010 the application was communicated to the
Government.
5. The applicant and the Government each submitted observations on the
admissibility and merits. In addition, third-party comments were received
from the Harvard Law School Project on Disability, which had been granted
leave by the President of the Chamber to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 2).
2 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1949 and lives in Brno. He is a person with
a psycho-social disability. He has been treated in psychiatric hospitals in the
past, most recently in 1995. He has not taken any medication for many
years, because he considers that it has an adverse impact on his eyesight,
and has used other methods to cope with his illness.
A. Proceedings concerning the removal of the applicant’s legal
capacity
7. In a judgment of 15 November 2000 the Brno Municipal Court
(městský soud) deprived the applicant of his legal capacity at the request of
the City of Brno, which maintained that the applicant had not collected his
pension since 1996 because he did not have an identity card. The court
based its decision on an expert report by Dr. H., who had concluded in 1998
that the applicant was suffering from paranoid schizophrenia. The applicant,
although aware of the proceedings, was not summoned to appear before the
court and the decision was not served on him, the court referring to an
opinion of Dr. H., who was heard by the court and did not recommend that
this be done. The applicant was represented by Ms. M., an employee of the
court, who had never met him, did not participate at the hearing and took no
substantive part in the proceedings. The judgment became final on
21 December 2000.
8. On an unspecified date the applicant became aware of the court’s
judgment and appealed. On 27 August 2001 the Brno Regional Court
(krajský soud) quashed the first-instance decision and remitted the case to
the Municipal Court which, in a judgment of 24 November 2004, again
deprived the applicant of his legal capacity and appointed the City of Brno
as his guardian.
9. It based its decision on a new expert report drawn up by Dr. H. on
20 May 2004 who, however, had not been able to examine the applicant
because of his refusal to have any medical examinations. She concluded that
there had been no improvement in the applicant’s mental health since the
first report. She reiterated her findings in the 1998 report that the applicant
was unable to care for himself or to manage any property, and that he was
dependent on others even for daily needs. The report further stated that the
applicant’s presence at the hearing would not be appropriate, because he did
not understand the purpose of the proceedings and was denying his mental
illness, but a court judgment could be sent to him. At a hearing, the expert
stated that the notification of the court judgment to the applicant would not
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 3
worsen his health, but he would not understand. She thus recommended that
the judgment not be sent to the applicant.
10. The court did not hear the applicant, who continued to be formally
represented by a court employee. The judgment was not served on him and
became final on 1 January 2005.
11. The applicant became aware of the judgment on 20 June 2006 and
appealed on 4 July 2006. He stated that the court had not notified him about
the institution and outcome of the incapacitation proceedings and that Dr. H
had drawn up her expert opinion without examining him. The applicant was
represented by a lawyer from the Mental Disability Advocacy Center (“the
MDAC”).
12. On 25 October 2006 the Regional Court again quashed the
Municipal Court’s judgment and sent the case back to it, disputing the
relevance of the expert opinion which had been drawn up without the
applicant being examined. It suggested that the Municipal Court should
appoint a new expert.
13. On 19 September 2007 the Municipal Court decided not to deprive
the applicant of his legal capacity, basing its decision on an expert report by
Dr. B., who had concluded on 11 May 2007 that the applicant was mentally
ill but did not show signs of schizophrenia, was not dangerous or aggressive
and was fully capable of making legal assessments. The court heard the
expert, the applicant, who was legally represented, and his guardian. The
judgment became final on 23 November 2007.
14. In total the applicant was deprived of legal capacity from
21 December 2000 to 27 August 2001 and from 1 January 2005 to
25 October 2006, that is for two years and six months.
B. Proceedings for damages against the State
15. On 15 January 2008, in two separate documents, the applicant
requested the Ministry of Justice to award him non-pecuniary damages for
the unreasonable length of incapacitation proceedings and violations of
other procedural rights.
16. The Ministry joined the two requests of the applicant and on
1 September 2008 awarded him 102,000 Czech korunas (CZK, 4,602 euros
(EUR)) in damages for the unreasonable length of proceedings. Regarding
the rest of the applicant’s claims, the Ministry accepted that the judgments
had not been served on the applicant and that his rights had therefore been
violated. It stated, however, that a finding of a violation constituted in itself
sufficient satisfaction for any non-pecuniary damage he might have
sustained.
17. The applicant brought proceedings for damages at the Prague 2
District Court (obvodní soud), claiming violations of his procedural rights in
the incapacitation proceedings.
4 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
18. On 12 November 2008 the District Court rejected the applicant’s
action. On the basis of established case-law it held that the alleged
shortcomings in the incapacitation proceedings could not constitute irregular
official conduct for which the State could be held responsible, because there
had been a decision. The applicant could have claimed damages only for a
decision that became final but was later quashed as illegal. That situation
however did not arise in the present case.
19. On 10 December 2009 the Municipal Court upheld the judgment of
the lower court.
20. On 16 February 2012 the Constitutional Court (Ústavní soud)
dismissed a constitutional appeal by the applicant as manifestly ill-founded.
It held that the legal opinion of the ordinary courts was not unconstitutional.
It noted that by claiming damages for irregular official conduct the applicant
had been trying to circumvent the fact that he had not met the conditions for
claiming damages for an unlawful decision. Furthermore, the decisions for
which the applicant was claiming damages had never become final and so
could not have interfered with his rights.
C. The applicant’s detention in the Brno-Černovice Psychiatric
Hospital and the ensuing proceedings
21. On 9 November 2005 the applicant had a verbal, non-violent
argument with his partner, Ms J., who called the police and an ambulance.
Although the police found no signs of violence and the applicant’s partner
confirmed that the applicant had not been aggressive, the ambulance doctor
decided to take the applicant to a psychiatric hospital. The applicant
disagreed but did not resist.
22. At his admission to the Brno-Černovice Psychiatric Hospital, the
applicant was subjected to two specialist medical examinations. They both
concluded that the applicant suffered from schizophrenia. The applicant
insisted at the examinations that there were no reasons for his detention.
Despite his warning that neuroleptic psychiatric medication had a negative
effect on his eyesight, he was nevertheless ordered to take the medication,
and when he refused it was administered by injection. As a result, according
to the applicant, his eyesight deteriorated.
23. On 10 November 2005 the applicant complained about his treatment
in a letter to the director of the hospital, but his letter was retained by the
staff; he was informed of this on 14 November 2005. He has never received
any reply from the director.
24. On 11 November 2005 the hospital notified the Municipal Court of
the applicant’s involuntary admission so that the court could start to review
its lawfulness under Article 191a of the Code of Civil Procedure. On an
unspecified date the hospital contacted the applicant’s guardian (the City of
Brno) which, on 14 November 2005, consented to his detention. The
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 5
employee who signed the consent had never met the applicant and did not
inform him that consent had been given.
25. On an unspecified date the applicant was moved to a department
with a more lenient regime, but was still not allowed to leave.
26. On 14 November 2005 he contacted the MDAC. On the same day,
an MDAC lawyer stated to the Municipal Court that the applicant’s
involuntary detention was unlawful, and requested his release.
27. On 29 November 2005 the applicant was released from the hospital.
He stated that he suffered from impaired vision and mental health for almost
a year as a consequence of the treatment he received in the hospital.
28. On an unspecified date a judge of the Municipal Court informed the
MDAC lawyer that the applicant had been deprived of legal capacity and
that a power of attorney therefore had to be signed by his guardian. Due to
the applicant’s poor health after his release from the hospital, the applicant
was able to visit his guardian in an office of the City of Brno only on
8 November 2006. The employee of the City of Brno he approached refused
however to sign the power of attorney. On the same day, the applicant
himself asked the Municipal Court for a further review of the lawfulness of
his involuntary admission to the psychiatric hospital. On 24 November 2006
he was told in a letter that no proceedings in that regard had been instituted.
29. On 2 January 2007 the applicant complained to the President of the
Municipal Court about delays in the proceedings. On 5 March 2007 he
received a reply that no such proceedings had been instituted because his
guardian had consented to his detention.
30. On 31 January 2007 the applicant lodged a constitutional appeal
(ústavní stížnost) alleging a violation of his rights to liberty, fair hearing,
respect for private life and non-discrimination due to his involuntary
hospitalisation and removal of his legal capacity.
31. On 8 January 2009 the Constitutional Court dismissed his
constitutional appeal for non-exhaustion of ordinary remedies. Regarding
the proceedings on the review of the lawfulness of his involuntary
hospitalisation, the court held that the applicant had not lodged a complaint
under section 174a of the Act on Courts and Judges (no. 6/2002) requesting
the court to set a date for action. Regarding the incapacitation proceedings,
it held that at the time the constitutional appeal was lodged those
proceedings were pending before the Municipal Court.
32. On 6 February 2009 the applicant lodged a new complaint of delays
in the proceedings on the review of the lawfulness of his involuntary
admission to the psychiatric hospital, and requested the court to set a date
for action. On 13 March 2009 the Regional Court refused his request on the
grounds that since the applicant was no longer detained no proceedings on
lawfulness of his detention had been held, so there were no proceedings in
which any delays could be found and which could be expedited.
6 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
33. On 21 May 2009 the applicant lodged a constitutional appeal,
claiming that his psychiatric detention had never been reviewed by a court.
34. On 11 January 2012 the Constitutional Court dismissed his
constitutional appeal as unsubstantiated, holding that the courts had rightly
not instituted proceedings to review the applicant’s detention, because his
guardian had consented to it, and moreover when the applicant had
requested the continuation of the proceedings he was no longer detained,
which was another reason why the proceedings had had to be abandoned. It
added that the applicant could institute civil proceedings for damages
against the hospital, in which the lawfulness of its actions could be
reviewed.
II. RELEVANT DOMESTIC LAW
A. Civil Code (Act no. 40/1964) in force at the material time
35. Under Article 10 § 1, if a natural person, because of a mental
disorder which is not temporary, is totally unable to make legal decisions,
the court will deprive him of legal capacity.
36. Under Article 26, if natural persons are legally incapacitated, their
guardians act in their name.
B. Code of Civil Procedure (Act no. 99/1963)
37. Under Article 191a a hospital which admits a patient against his or
her will must inform an appropriate court within twenty-four hours; the
court will review the lawfulness of the person’s involuntary admission to
the hospital.
C. The Public Health Care Act (Act no. 20/1966) in force at the
material time
38. Under section 23(4)(b) a person may be compulsorily medically
treated and even hospitalised if he appears to show signs of a mental illness
and endangers himself or his surroundings.
D. Act no. 82/1998 on State liability for damage caused in the
exercise of public authority by an irregularity in a decision or the
conduct of proceedings
39. Under sections 7 and 8 individuals who suffer loss because of a final
unlawful decision that is later quashed or changed are entitled to claim just
satisfaction.
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 7
40. Section 13 provides that the State is also liable for damage caused by
an irregularity in the conduct of proceedings, including non-compliance
with the obligation to perform an act or to give a decision within the
statutory time-limit.
III. RELEVANT INTERNATIONAL INSTRUMENTS
A. Convention on the Rights of Persons with Disabilities, adopted by
the United Nations General Assembly on 13 December 2006
(Resolution A/RES/61/106)
41. This Convention entered into force on 3 May 2008. It was ratified by
the Czech Republic on 28 September 2009. The relevant parts of the
Convention provide:
Article 12
Equal recognition before the law
“1. States Parties reaffirm that persons with disabilities have the right to recognition
everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity
on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse in
accordance with international human rights law. Such safeguards shall ensure that
measures relating to the exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of interest and undue influence, are
proportional and tailored to the person’s circumstances, apply for the shortest time
possible and are subject to regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to the degree to which
such measures affect the person’s rights and interests. ...”
Article 14
Liberty and security of person
“1. States Parties shall ensure that persons with disabilities, on an equal basis with
others:
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any
deprivation of liberty is in conformity with the law, and that the existence of a
disability shall in no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their
liberty through any process, they are, on an equal basis with others, entitled to
guarantees in accordance with international human rights law and shall be treated in
8 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
compliance with the objectives and principles of the present Convention, including by
provision of reasonable accommodation.”
B. Recommendation No. R (99) 4 of the Committee of Ministers of
the Council of Europe on principles concerning the legal
protection of incapable adults (adopted on 23 February 1999)
42. The relevant parts of this Recommendation read as follows:
Principle 3 – Maximum reservation of capacity
“1. The legislative framework should, so far as possible, recognise that different
degrees of incapacity may exist and that incapacity may vary from time to time.
Accordingly, a measure of protection should not result automatically in a complete
removal of legal capacity. However, a restriction of legal capacity should be possible
where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person
concerned of the right to vote, or to make a will, or to consent or refuse consent to any
intervention in the health field, or to make other decisions of a personal character at
any time when his or her capacity permits him or her to do so. ...”
Principle 6 – Proportionality
“1. Where a measure of protection is necessary it should be proportional to the
degree of capacity of the person concerned and tailored to the individual
circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and
freedoms of the person concerned to the minimum extent which is consistent with
achieving the purpose of the intervention. ...”
Principle 9 – Respect for wishes and feeling of the person concerned
“3. [This principle] also implies that a person representing or assisting an incapable
adult should give him or her adequate information, whenever this is possible and
appropriate, in particular concerning any major decision affecting him or her, so that
he or she may express a view.”
Principle 13 – Right to be heard in person
“The person concerned should have the right to be heard in person in any
proceedings which could affect his or her legal capacity.”
Principle 14 – Duration, review and appeal
“1. Measures of protection should, whenever possible and appropriate, be of limited
duration. Consideration should be given to the institution of periodical reviews ...
3. There should be adequate rights of appeal. ...”
Principle 16 – Adequate control
“There should be adequate control of the operation of measures of protection and of
the acts and decisions of representatives.”
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 9
Principle 19 – Limitation of powers of representatives
“1. It is for national law to determine which juridical acts are of such a highly
personal nature that they can not be done by a representative.
2. It is also for national law to determine whether decisions by a representative on
certain serious matters should require the specific approval of a court or other body...”
Principle 22 – Consent
“1. Where an adult, even if subject to a measure of protection, is in fact capable of
giving free and informed consent to a given intervention in the health field, the
intervention may only be carried out with his or her consent. The consent should be
solicited by the person empowered to intervene.
2. Where an adult is not in fact capable of giving free and informed consent to a
given intervention, the intervention may, nonetheless, be carried out provided that:
- it is for his or her direct benefit, and
authorisation has been given by his or her representative or by an
authority or a person or body provided for by law.
3. ... Consideration should also be given to the need to provide for the authorisation
of a court or other competent body in the case of certain serious types of
intervention.”
C. Report to the Czech Government on the visit to the Czech
Republic carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 27 March to 7 April 2006 and from 21 to
24 June 2006
43. In this report the CPT also assessed the guardianship regime in the
Czech Republic in connection with the admission of incapacitated persons
to social care institutions and psychiatric hospitals. It noted that guardians
have far-reaching powers with respect to their wards, and criticised the fact
that they may also decide on the question of admission to a psychiatric
hospital or a social care home (§ 149). It recommended that the Czech
authorities consider incorporating the Council of Europe’s Principles
Concerning the Legal Protection of Incapable Adults and, in particular,
Principle 19 (2), into the legal norms governing guardianship in the Czech
Republic (§ 154).
D. Concluding Observations of the Human Rights Committee on the
Czech Republic, 25 July 2007
44. The Committee expressed concern that confinement in psychiatric
hospitals can be based on mere “signs of mental illness”. It regretted that
court reviews of admissions to psychiatric institutions do not sufficiently
10 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
ensure respect for the views of the patient, and that guardianship is
sometimes assigned to attorneys who do not meet the patient. It concluded:
“The State party should ensure that no medically unnecessary psychiatric
confinement takes place, that all persons without full legal capacity are placed under
guardianship that genuinely represents and defends the wishes and interest of those
persons, and that an effective judicial review of the lawfulness of the admission and
detention of such person in health institutions takes place in each case.”
E. Report of the UN Special Rapporteur on the right of everyone to
the enjoyment of the highest attainable standard of physical and
mental health, Paul Hunt, Doc. no. E/CN.4/2005/51, 11 February
2005
45. In his report the Special Rapporteur emphasised that human rights
must be supported by a system of accountability, and called for the
introduction of appropriate safeguards against abuse of the rights of people
with mental disabilities. He advocated that an independent review body
must be made accessible to individuals with mental disabilities to
periodically review cases of involuntary admission and treatment (§ 71). He
was further concerned by the fact that guardianship had been overused and
abused in the medical, as well as other, contexts, including at the most
extreme level the compulsory admission of individuals with learning
disabilities in psychiatric institutions (§ 79).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
46. The applicant complained that his admission and detention in the
Brno-Černovice Psychiatric Hospital violated his right to liberty. He relied
on Article 5 § 1 of the Convention, the relevant part of which reads:
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law: ...
(e) the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
A. Admissibility
47. The Court first notes that the applicant was confined to a psychiatric
hospital from 9 November 2005 to 29 November 2005, that is a total of
twenty days, without his consent. While his confinement was confirmed
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 11
after five days by the guardian this does not alter the fact that the applicant
was deprived of his liberty involuntarily and that his continued
hospitalisation against his will constituted a deprivation of liberty within the
meaning of that provision (see Stanev v. Bulgaria [GC], no. 36760/06,
§§ 122-123, ECHR 2012; D.D. v. Lithuania, no. 13469/06, § 122,
14 February 2012; and Shtukaturov v. Russia, no. 44009/05, § 109, ECHR
2008).
48. The Government maintained that the applicant had lost his status as a
victim after the Ministry of Justice had acknowledged that incorrect official
procedure had taken place both as a result of delays in the proceedings and
as a result of failure to serve courts’ decisions on the applicant, and had
awarded him CZK 102,000 (see paragraph 16 above). Even though the
acknowledgement concerned the proceedings on legal capacity, this must be
viewed in the context of the narrow inter-connection of these proceedings
and the admission of the applicant to the hospital with the consent of his
guardian.
49. The applicant disagreed, arguing that his right to liberty was not an
issue in those proceedings, which concerned only his incapacitation.
50. The Court observes that while compensating the applicant for the
unreasonable length of the incapacitation proceedings, the Ministry did not
acknowledge a violation of the applicant’s right to liberty. It cannot
therefore be said that the authorities have acknowledged the breach of
Article 5 of the Convention and afforded redress for it. As a result, the
Government’s objection must be dismissed.
51. The Government further argued that the applicant had failed to
exhaust domestic remedies, pointing out that his first constitutional appeal
had been dismissed for non-compliance with procedural requirements.
Moreover, the applicant should have instituted proceedings for damages
against the State on the basis that the Brno Municipal Court had failed to
decide on the lawfulness of his involuntary admission to the hospital.
52. The applicant disagreed, maintaining that he could not claim
compensation from the State for unlawful detention given that his detention
had been based on the national law.
53. Regarding the dismissal of the applicant’s first constitutional appeal
for formal reasons, the Court notes that, subsequently, the applicant’s
second constitutional appeal was dismissed on the merits (see paragraph 33
above). It cannot therefore be said that the applicant failed to exhaust this
remedy in compliance with the procedural requirements.
54. As regards the possibility of bringing an action for damages against
the State, the Court recalls that the Constitutional Court, in its decision of
11 January 2012, found the approach of the courts in the applicant’s case to
have been lawful and constitutional. Moreover, the Government have failed
to submit any example of a decision in which an action for damages in
comparable circumstances was successful. The Court therefore concludes
12 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
that an action for damages was not a remedy which the applicant was
required to exhaust, and dismisses the Government’s objection of nonexhaustion
of domestic remedies.
55. Lastly, the Government requested the Court to apply the
admissibility criterion under Article 35 § 3 (b) of the Convention,
maintaining that the applicant had suffered no significant disadvantage.
56. The Court does not accept that questions going to the lawfulness of
a deprivation of liberty which lasted twenty days could constitute an
“insignificant” disadvantage. It accordingly dismisses this objection.
57. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions of the parties and third-party intervener
58. The applicant complained that his detention could not have been
justified under Article 5 § 1 (e) of the Convention because he was not
a person of unsound mind of a kind or degree warranting compulsory
confinement. He stated that his detention had been neither lawful nor in
accordance with a procedure prescribed by law. He had been detained on
the basis of retrospective consent given by his guardian, who had never met
him and had showed no interest in his hospitalisation. In his view, the
Convention did not allow guardians to decide on questions of such
fundamental importance without court approval and thus his detention could
not be lawful as there had been no safeguards against his detention. The
guardian’s powers were total and unchecked.
59. The Government maintained that the applicant had a serious and
long term mental disorder. He had been taken to the health care institution
as a result of an emergency call by Ms J., who had reported that the
applicant was being aggressive and that she had felt threatened by him. It
can therefore be assumed that from the perspective of the medical
specialists at the time of the confinement, the applicant’s disorder had
required hospitalisation, even though the aggressive behaviour had not been
confirmed and Ms J. later described it as fabricated.
60. They added that the applicant’s hospitalisation had been in
compliance with the domestic law. As far as compliance with the procedural
criteria in the light of the requirements of the Convention was concerned,
the Government left that assessment to the Court’s discretion.
61. The Harvard Law School Project on Disability, as third party to the
proceedings, referred in their submissions to the Convention on the Rights
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 13
of Persons with Disabilities, which the Court should, in their view, take into
account in interpreting the Convention.
2. The Court’s assessment
62. The Court reiterates that in order to comply with Article 5 § 1, the
detention in issue must first of all be “lawful”, including the observance of a
procedure prescribed by law; in this respect the Convention refers back
essentially to national law and lays down the obligation to conform to the
substantive and procedural rules thereof. Moreover, any deprivation of
liberty should be consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness. Furthermore, the detention of an individual is
such a serious measure that it is only justified where other, less severe
measures have been considered and found to be insufficient to safeguard the
individual or public interest which might require that the person concerned
be detained. That means that it does not suffice that the deprivation of
liberty is in conformity with national law; it must also be necessary in the
circumstances (see Stanev, cited above, § 143).
The Court has outlined three minimum conditions for the lawful
detention of an individual on the basis of unsoundness of mind under
Article 5 § 1 (e) of the Convention: he must reliably be shown to be of
unsound mind, that is, a true mental disorder must be established before a
competent authority on the basis of objective medical expertise; the mental
disorder must be of a kind or degree warranting compulsory confinement;
and the validity of continued confinement must depend upon the persistence
of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979,
§ 39, Series A no. 33; and Stanev, cited above, § 145).
63. Moreover, a detention cannot be considered “lawful” within the
meaning of Article 5 § 1 if the domestic procedure does not provide
sufficient guarantees against arbitrariness (see H.L. v. the United Kingdom,
no. 45508/99, § 124, ECHR 2004-IX; Shtukaturov, cited above, § 113; and
L.M. v. Latvia, no. 26000/02, § 54, 19 July 2011). In addition, deprivations
of liberty must be subject to thorough scrutiny by the domestic authorities
(Ťupa v. the Czech Republic, no. 39822/07, §§ 37 and 61, 26 May 2011).
64. In the H.L. v. the United Kingdom case the Court found that the
detention had not been lawful because of the absence of safeguards,
understood both in the sense of procedural safeguards and of substantive
guarantees to prevent arbitrariness (§ 120).
65. Turning to the present case, the Court first observes that the
applicant was admitted to the psychiatric hospital as an emergency case, the
doctors acting on the belief that he had been aggressive to his partner. He
underwent two independent medical examinations on his admission and
both doctors concluded that the applicant suffered from a mental disorder.
Therefore, his detention was initially based on an objective medical
expertise. However, before deciding whether also the other above
14 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
mentioned Winterwerp criteria were complied with in the present case, the
Court must establish whether the applicant’s detention was “lawful”, in
particular whether the domestic procedure provided sufficient guarantees
against arbitrariness (see L.M. v. Latvia, cited above, § 45).
66. The Court notes that no domestic court reviewed the lawfulness of
the applicant’s detention as would be the normal procedure in cases of
involuntary hospitalisations (see § 37 above). The reason was that since the
guardian gave consent to the applicant’s detention the applicant was
considered, as a matter of domestic law, to be in the psychiatric hospital
voluntarily. As a result, he was deprived of his liberty for twenty days solely
on the basis of the consent of his guardian. The requirements for involuntary
hospitalisation, both substantive in section 23(4)(b) of the Public Health
Care Act and procedural in the Code of Civil Procedure, did not apply.
67. The Court observes that the opinions and reports issued by the
various international bodies indicate a trend in international standards to
require that detentions of incapacitated persons be accompanied by requisite
procedural safeguards, namely by way of judicial review (see Principles 3,
16, 19 and 22 in paragraph 42 above; the views of the international bodies
in paragraphs 42-44 above; and also Ťupa v. the Czech Republic, cited
above, §§ 37 and 61). Judicial review, instituted automatically or brought
about by the ward or some other suitable person, of a guardian’s consent to
deprivation of liberty of their ward could provide, in view of the Court, a
relevant safeguard against arbitrariness. The trend towards such judicial
review has not yet found full implementation in most Council of Europe
Member States (see the Comparative Law part in Stanev, cited above,
§§ 91-95), and it is not available in the Czech Republic in circumstances
like the present case.
68. The Court observes that the only possible safeguard against
arbitrariness in respect of the applicant’s detention was the requirement that
his guardian, which was the City of Brno, consent to the detention.
However, the guardian consented to the applicant’s detention without ever
meeting or even consulting the applicant. Moreover, it has never been
explained why it would have been impossible or inappropriate for the
guardian to consult the applicant before taking this decision, as referred to
in the relevant international standards (see Principle 9 in paragraph 42
above). Accordingly, the guardian’s consent did not constitute a sufficient
safeguard against arbitrariness.
69. There were no other substantive safeguards protecting the applicant
from detention than the guardian’s consent, which was not sufficient as
found above. Even the protection of section 23(4)(b) of the Public Health
Care Act was inapplicable once the guardian gave his consent.
70. The Court considers that, even after the applicant’s detention became
voluntary under domestic law, it was not lawful as it was not accompanied
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 15
by sufficient guarantees against arbitrariness. It is thus not necessary to
consider the other arguments of the applicant.
71. There has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
72. The applicant further complained that he did not have any
opportunity to seek a judicial review of his detention. He relied on Article 5
§ 4 of the Convention:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
A. Admissibility
73. The Government repeated their objection of inadmissibility already
raised under Article 5 § 1 (see paragraphs 48, 51 and 55 above). They
further maintained that Article 5 § 4 of the Convention was applicable only
when a person was in detention, and that therefore this complaint as far as it
concerned proceedings after 29 November 2005 was incompatible ratione
materiae with the Convention.
74. The applicant disagreed. He challenged the accuracy of the
Government’s objection ratione materiae, and maintained furthermore that
it was irrelevant, as his complaint concerned the absence of any opportunity
to seek judicial review of his detention.
75. The Court has already rejected the Government’s objection as to the
victim status of the applicant above (see paragraph 50 above). As to their
view that any disadvantage to the applicant was insignificant, the Court
does not accept that the absence of an opportunity for the applicant to seek
judicial review of his detention, which goes to the essence of Article 5 § 4
of the Convention, can constitute an insignificant disadvantage and,
accordingly, dismisses the Government’s objection.
76. The Court further agrees with the applicant that the question whether
Article 5 § 4 applied to any proceedings after the applicant’s release is not
relevant to the present complaint.
77. It finally considers that the Government’s objection of nonexhaustion
of domestic remedies must be joined to the examination of the
merits of the complaint (see Rashed v. the Czech Republic, no. 298/07, § 46,
27 November 2008).
78. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.
16 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
B. Merits
79. The applicant complained that having been deprived of his legal
capacity he had had no access to any judicial proceedings for a review of the
lawfulness of his detention. He argued that Article 5 § 4 guaranteed this
right to everyone, and therefore the consent of his guardian could not forfeit
this right on his behalf without any safeguards. If that were the case the
whole purpose of Article 5, which was to prevent arbitrary detentions,
would be compromised.
80. The Government pointed out that under the domestic law the
applicant had been admitted to the psychiatric hospital with the consent of
his guardian. Moreover, his detention had not been particularly lengthy. Had
it been a long-term detention the situation would have been different, as
after the quashing of the Municipal Court’s judgment depriving the
applicant of his legal capacity, the applicant would no longer have been
considered a patient detained by consent, and remedies in respect of his
detention would have been available to him.
81. Article 5 § 4 of the Convention deals only with those remedies
which must be made available during a person’s detention with a view to
that person obtaining speedy judicial review of the lawfulness of the
detention leading, where appropriate, to his or her release (Slivenko
v. Latvia [GC], no. 48321/99, § 158, ECHR 2003-X).
82. As to the substantive content of the provision, the Court has recently
considered the requirements of Article 5 § 4 of the Convention in the case of
Stanev (cited above). It recalled that Article 5 § 4 entitles detained persons
to institute proceedings for a review of compliance with the procedural and
substantive conditions which are essential for the “lawfulness” of their
deprivation of liberty (§ 168). The remedy must be accessible to the
detained person and must afford the possibility of reviewing compliance
with the conditions to be satisfied if the detention of a person of unsound
mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e). The
Convention requirement for an act of deprivation of liberty to be amenable
to independent judicial scrutiny is of fundamental importance in the context
of the underlying purpose of Article 5 of the Convention to provide
safeguards against arbitrariness; in the case of mental illness, special
procedural safeguards may be called for in order to protect the interests of
persons who, on account of their mental illness, are not fully capable of
acting for themselves (§ 170, with further references). In the case of
Shtukaturov (cited above), the Court found that a remedy which could only
be initiated through the applicant’s mother – who was opposed to his release
– did not satisfy the requirements of Article 5 § 4 (§ 124).
83. Turning to the present case, the Court notes that the applicant’s
detention lasted twenty days, which cannot be considered too short to
initiate judicial review (compare for example, a contrario, Slivenko, cited
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 17
above, § 158 and Fox, Campbell and Hartley v. the United Kingdom,
30 August 1990, § 45, Series A no. 182). Accordingly, Article 5 § 4 is
applicable in the present case.
84. The Court observes that the domestic courts were not empowered to
intervene in the applicant’s psychiatric confinement, the applicant having
been considered to be in the psychiatric hospital voluntarily because of the
consent of his guardian (see paragraph 66 above), and the Government did
not indicate any other adequate remedy available to the applicant.
85. In the light of these considerations, the Court concludes that there
were no proceedings in which the lawfulness of the applicant’s detention
could have been determined and his release ordered.
86. Consequently, it dismisses the Government’s objection of failure to
exhaust domestic remedies, and finds that there has been a violation of
Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
87. The applicant complained that during his detention he had been
subjected to medical treatment against his will which had negatively
affected his health. He further complained that the total removal of his legal
capacity had interfered with his right to private and family life and that the
proceedings depriving him of legal capacity suffered from procedural
deficiencies. He relied on Articles 6 and 8 of the Convention. The Court
considers it appropriate to examine the complaints under Article 8, which
reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
A. Admissibility
88. The Court first reiterates that under Article 35 § 1 it may only deal
with a matter after all domestic remedies have been exhausted. Applicants
must have provided the domestic courts with the opportunity, in principle
intended to be afforded to Contracting States that have the primary
responsibility for implementing and enforcing the guaranteed rights, of
preventing or putting right the violations alleged against them. In this way,
it is an important aspect of the principle that the machinery of protection
established by the Convention is subsidiary to the national systems
safeguarding human rights (see McFarlane v. Ireland [GC], no. 31333/06,
18 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
§ 112, 10 September 2010; Kudła v. Poland [GC], no. 30210/96, § 152,
ECHR 2000-XI; and Selmouni v. France [GC], no. 25803/94, § 74, ECHR
1999-V).
89. Regarding the complaint about the medical treatment in the
psychiatric hospital, the Court notes that the applicant did not institute
proceedings for damages against the hospital as he could have, at the latest
from 25 October 2006, when the decision once to deprive him of legal
capacity had been quashed. The Court considers that in these proceedings
the question of compliance of the involuntary administration of medication
with the applicant’s rights would have been assessed and the actions of the
psychiatric hospital could have been found unlawful and just satisfaction
awarded to the applicant (see Storck v. Germany, no. 61603/00, §§ 24
and 40, ECHR 2005-V). The instant case, where the forced administration
of medication lasted for twenty days, differs from the case of X v. Finland
(no. 34806/04, § 220, 3 July 2012) where the Court did not consider a
compensatory remedy sufficient, and required a preventive remedy because
there the forced administration of medication lasted for almost a year. In
failing to institute those proceedings, the applicant did not give the State the
opportunity to put right the violations alleged against it before those
allegations were submitted to the Convention institutions.
90. This part of the application must thus be rejected for non-exhaustion
of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
91. Regarding the applicant’s complaint about deprivation of legal
capacity the Government maintained that he had lost his victim status. They
referred to the decision of the Ministry of Justice acknowledging the
violation of the applicant’s rights by the failure to notify him of the
judgments, which constituted sufficient just satisfaction given the limited
time when the applicant had been deprived of his legal capacity and the not
very severe consequences for the applicant.
92. The applicant argued that the consequences for him had been serious
and that he had been deprived of his legal capacity for a substantial period
of time.
93. The Court reiterates that an applicant may lose his victim status if
two conditions are met: first, the authorities must have acknowledged, either
expressly or in substance, the breach of the Convention and, second, they
must have afforded redress for it. The alleged loss of the applicant’s victim
status involves an examination of the nature of the right in issue, the reasons
advanced by the national authorities in their decision and the persistence of
adverse consequences for the applicant after the decision. The
appropriateness and sufficiency of redress depend on the nature of the
violation complained of by the applicant (see Sakhnovskiy v. Russia [GC],
no. 21272/03, §§ 67 and 70, 2 November 2010).
94. In the instant case the Court observes that the Ministry
acknowledged a violation of the applicant’s rights because the judgments
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 19
depriving him of his legal capacity had not been delivered to him but
awarded no just satisfaction for that. The Court takes the view that such
redress is only partial and insufficient under the case-law to deprive the
applicant of his status of a victim for two primary reasons. First, the lack of
delivery of the judgments, even though crucial, is just one of the applicant’s
complaints. The other alleged violations were thus not acknowledged.
Second, a mere acknowledgement of a violation without affording redress is
insufficient to deprive the applicant of his status as a victim in the context of
deprivation of his legal capacity, which is a serious interference with his
rights (see, mutatis mutandis, Radaj v. Poland (dec.), nos. 29537/95
and 35453/97, 21 March 2002).
95. The Court adds that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
96. The applicant complained that the removal of his legal capacity had
not been in accordance with the law, which was not sufficiently precise, nor
was its application foreseeable. The law also had not provided sufficient
procedural guarantees, only requiring that a decision must be based on an
opinion of an expert who is, however, not even required to appear before the
a court.
97. Furthermore, the interference had not pursued any legitimate aim
and was not necessary in a democratic society. The court depriving him of
legal capacity had not established any valid reasons for doing so. Moreover,
he had not benefited from adequate procedural safeguards: he had not
participated in the proceedings, he had not been heard at them or even
notified of them, he had not been adequately represented, he could not
appeal and the decision had been based only on one opinion of an expert
who had not examined him.
98. The Government maintained that the proceedings on legal capacity
as a whole, in connection with the compensation proceedings, had resulted
in the due protection of the applicant’s rights against arbitrary interference
and remedy of grievances caused to him. In the end, the proceedings had
resulted in an explicit rejection of the application for removal of legal
capacity and acceptance of the relevant arguments of the applicant. Any
interference with the applicant’s rights by the decisions of the first-instance
court had been very limited, as for most of the time the applicant had not
even been aware that he had been deprived of legal capacity.
20 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
99. They added that the applicant was a person with a serious mental
illness, and the removal of his legal capacity had also protected his own
interests, such as protecting him from entering into disadvantageous or
fraudulent legal contracts, or from neglecting contact with social welfare
authorities or health care. Moreover, because of his often unknown official
and actual place of residence, delivery of documents and contact with him
had been objectively very difficult for the authorities. The applicant himself
had sometimes refused to give the authorities a usable delivery address. The
applicant had generally distrusted and often refused to cooperate with the
authorities and especially with the expert in the period before the second
judgment of the Municipal Court, which had resulted in elaboration of the
expert testimony without direct examination of the applicant.
2. The Court’s assessment
100. The Court notes that the applicant in the present case was initially
deprived of legal capacity on 15 November 2000, on the request of the City
of Brno, as he had not collected his pension for four years. The applicant,
represented by a court employee who had never met him, was not
summoned or present, although he was aware of the proceedings. The
decision was quashed on 27 August 2001, and a fresh decision was taken on
24 November 2004. The new decision was taken on the basis of a fresh
report, although the applicant had refused to be examined. The applicant,
still nominally represented by a court employee, was not present and did not
receive a copy of the judgment. The applicant, now represented by the
MDAC, appealed on 4 July 2006, and on 25 October 2006 the first instance
decision was quashed as the applicant had not been examined. In September
2007, the court decided not to deprive the applicant of his legal capacity.
The applicant was thus deprived of his legal capacity for a total of two years
and six months (see § 14 above).
101. The Court considers that the removal of the applicant’s legal
capacity for two and a half years over a period of six years constituted an
interference with his private life within the meaning of Article 8 of the
Convention, and notes that indeed there is no dispute between the parties on
this point. It recalls that any interference with an individual’s right to
respect for his private life will constitute a breach of Article 8 unless it was
“in accordance with the law”, pursued a legitimate aim or aims under
paragraph 2, and was “necessary in a democratic society” in the sense that it
was proportionate to the aims sought.
102. In such a complex matter as determining somebody’s mental
capacity the authorities should enjoy a wide margin of appreciation. This is
mostly explained by the fact that the national authorities have the benefit of
direct contact with those concerned, and are therefore particularly well
placed to determine such issues. However, whilst Article 8 of the
Convention contains no explicit procedural requirements, the decision-
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 21
making process involved in measures of interference must be fair and such
as to ensure due respect of the interests safeguarded by Article 8. The extent
of the State’s margin of appreciation thus depends on the quality of the
decision-making process. If the procedure was seriously deficient in some
respect, the conclusions of the domestic authorities are more open to
criticism (see Shtukaturov, cited above, § 87-89). Regarding the procedural
guarantees, the Court considers that there is a close affinity between the
principles established under Articles 5 § 1 (e), 5 § 4, 6, and 8 of the
Convention (see Shtukaturov, cited above, §§ 66 and 91).
103. Any deprivation or limitation of legal capacity must be based on
sufficiently reliable and conclusive evidence. An expert medical report
should explain what kind of actions the applicant is unable to understand or
control and what the consequences of his illness are for his social life,
health, pecuniary interests, and so on. The degree of the applicant’s
incapacity should be addressed in sufficient detail by the medical reports
(see Shtukaturov, cited above, §§ 93-94).
104. The Court takes note of the applicant’s contention that the measure
applied to him had not been lawful and did not pursue any legitimate aim.
However, in its opinion, it is not necessary to examine these aspects of the
case, since the decision to remove legal capacity from the applicant was in
any event disproportionate to the legitimate aim invoked by the Government
for the reasons set out below (see Shtukaturov, cited above, § 86). In taking
this approach, the Court notes also the fact that the Civil Code on the basis
of which the applicant was deprived of his legal capacity will be superseded
by a new Civil Code which takes effect on 1 January 2014. Consequently,
the effect of any pronouncement by the Court on the current domestic
provisions concerning deprivation of legal capacity would be limited.
105. The Court first considers, unlike the Government, that, even though
only temporary, the removal of the applicant’s legal capacity had serious
consequences for him. In particular, once the authorities realised that he was
subject to guardianship, he no longer benefitted from the guarantees
available in domestic law to persons who were detained under the Public
Health Care Act as in domestic law consent had been granted by the
guardian without any reference being made to the applicant (see above,
§ 68).
106. The Court next notes that although the domestic courts ultimately
decided not to deprive the applicant of his legal capacity (in the decision of
19 September 2007), the applicant was nevertheless substantially affected
by the deprivation of capacity. In the second period, which lasted from
24 November 2004 until 25 October 2006, the applicant was detained,
ultimately on the sole ground that the guardian had consented. The Court
thus considers, unlike the Constitutional Court (see paragraph 20 above),
that the first-instance decisions taken in this respect did seriously interfere
with the applicant’s rights (see Berková v. Slovakia, no. 67149/01, § 175,
22 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
24 March 2009 and Shtukaturov, cited above, § 90). Furthermore, the
applicant was not compensated for the alleged violations of his rights in the
subsequent civil proceedings against the State for damages (see paragraph
94 above).
107. The Court observes that the Municipal Court did not hear the
applicant, either in the first round or the second round of proceedings, and
indeed he was not even notified formally that the proceedings had been
instituted (see Shtukaturov, cited above, §§ 69-73 and 91). The Court does
not accept the Government’s argument that the applicant’s place of
residence was unknown to the authorities and therefore it was difficult to
deliver official mail to him. Nowhere in the case file is there anything to
indicate that the Municipal Court made an attempt to inform the applicant of
the proceedings and summon him to the hearings. In such circumstances it
cannot be said that the judge had “had the benefit of direct contact with
those concerned”, which would normally call for judicial restraint on the
part of this Court. The judge had no personal contact with the applicant (see
X and Y v. Croatia, no. 5193/09, § 84, 3 November 2011).
108. As to the way in which the applicant was represented in the legal
capacity proceedings, the Court is of the opinion that given what was at
stake for him proper legal representation, including contact between the
representative and the applicant, was necessary or even crucial in order to
ensure that the proceedings would be really adversarial and the applicant’s
legitimate interests protected (see D.D. v. Lithuania, cited above, § 122;
Salontaji-Drobnjak v. Serbia, no. 36500/05, §§ 127 and 144, 13 October
2009; and Beiere v. Latvia, no. 30954/05, § 52, 29 November 2011). In the
present case, however, the representative never met the applicant, did not
make any submissions on his behalf and did not even participate at the
hearings. She effectively took no part in the proceedings.
109. Moreover, the judgments were not served on the applicant (see
X and Y v. Croatia, cited above, § 89). The judgments expressly stated that
they would not be delivered to the applicant, with a simple reference to the
opinion of the court-appointed expert, even though in her second report the
expert in fact stated that a judgment could be sent to the applicant. Even at
the hearing she did not give any warnings about adverse effects if the
applicant received the judgment, but merely recommended not sending it
because he would not understand it.
110. The Court, however, considers that being aware of a judgment
depriving oneself of legal capacity is essential for effective access to
remedies against such a serious interference with private life. Whilst there
may be circumstances in which it is appropriate not to serve a judgment on
the person whose capacity is being limited or removed, no such reasons
were given in the present case and, indeed, in the present case, when the
applicant was aware of the judgment and was able to appeal, his appeal was
successful. Therefore, had the Municipal Court respected the applicant’s
SÝKORA v. THE CZECH REPUBLIC JUDGMENT 23
right to receive the judgments, the interference would not have happened at
all as the judgments would not have become final.
111. Finally, the Court observes that the 2004 decision was based only
on the opinion of an expert who last examined the applicant in 1998 (see
paragraph 9 above). In this context the Court cannot lose sight of the fact
that development takes place in mental illness, as is also evidenced in the
present case by the expert report on the applicant drawn up in 2007, on the
basis of which the request to deprive the applicant of legal capacity was
refused. Consequently, relying to a considerable extent on the medical
examination of the applicant conducted six years earlier cannot form
sufficiently reliable and conclusive evidence justifying such a serious
interference with the applicant’s rights (see, mutatis mutandis, Stanev, cited
above, § 156). The Court notes that the expert attempted to examine the
applicant between 2002 and 2004, but he refused to cooperate.
Nevertheless, in the absence of strong countervailing considerations, this
fact alone is not enough to dispense with a recent medical report involving
direct contact with the person concerned.
112. Overall, the Court considers that the procedure on the basis of
which the Municipal Court deprived the applicant of legal capacity suffered
from serious deficiencies, and that the evidence on which the decision was
based was not sufficiently reliable and conclusive.
113. In the light of these considerations, the Court finds that the
interference with the applicant’s private life was disproportionate to the
legitimate aim pursued and there has been a violation of Article 8 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
114. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
115. The applicant claimed EUR 25,000 in respect of non-pecuniary
damage.
116. The Government considered the claim excessive.
117. The Court is of the view that as a result of the circumstances of the
case the applicant must have experienced considerable anguish and distress
which cannot be made good by a mere finding of a violation of the
Convention. Having regard to the circumstances of the case seen as a whole
and deciding on an equitable basis, the Court awards the applicant
EUR 20,000 for non-pecuniary damage.
24 SÝKORA v. THE CZECH REPUBLIC JUDGMENT
118. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints concerning Article 5 and 8 as far as it concerns
the deprivation of applicant’s legal capacity admissible, and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention;
3. Holds that there has been a violation of Article 5 § 4 of the Convention;
4. Holds that there has been a violation of Article 8 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three
months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 20,000
twenty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Czech
korunas at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 November 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Dean Spielmann
Deputy Registrar President