Lashin v Russia 33117/02  ECHR 63,  MHLO 14
"The applicant complained, in particular, about his status as a legally incapacitated person, his non-voluntary commitment to a psychiatric hospital and his inability to marry." [Summary required; detailed external summary available.]
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: MHLR 2014. 2014 109
Whether the inability of the applicant to seek a court order to restore his capacity breached Art 8 ECHR; whether detention in a psychiatric hospital on the basis of a provisional court order and then with the consent of a guardian breached Art 5 - Lashin v Russia –  MHLR 109
Points Arising: (1) To comply with Art 8 ECHR, decisions as to the removal or restoration of legal capacity must strike a fair balance between competing interests, in relation to which the national authorities have a margin of appreciation, which will be reviewed by the ECtHR, more strictly if the measure has a drastic effect. A mental disorder must be of a kind or degree to warrant a loss of capacity. (2) There must be procedural fairness in the decision-making process as to capacity; this includes ensuring equality of arms in relation to expert evidence. (3) The trend in law is to allow those without capacity direct access to seek to restore capacity; if the person is entirely dependent on the guardian, that is incompatible with Art 8. (4) To comply with Art 5(1), detention must comply with domestic law and be necessary, ie not be arbitrary. (5) Detention on the basis of mental disorder requires a reliable demonstation of unsound mind, the disorder has to be of a kind or degree that warrants compulsory confinement (for treatment or to prevent harm to others), and it must persist. (6) Appointing a guardian who will consent to detention is a breach of Art 5(1); and if there are reasons to doubt the neutrality of a guardian, the ECtHR will review the validity of the evidence.
Facts and Outcome: The case involved a man, APL, diagnosed as having schizophrenia; he was hospitalised several times, and an order was made in June 2000 on the basis of an April 2000 medical report that he lose his capacity (which had to be total rather than partial if mental disorder was involved). An application by his daughter (supported by his father as guardian) to have capacity restored led to the confirmation of the guardianship in March 2001, though without fresh medical evidence because APL did not trust local doctors and would only be examined by them if it was recorded, which the court did not order.
A further application to restore capacity was made by the guardian in July 2001. The court rejected an application to order a report from a non-state psychiatrists, ruling in February 2002 that only reports from state hospitals could be used, and that the April 2000 report remained valid; the hearing was held without APL on the basis that he could not participate and his presence would be prejudicial to his health. The ECtHR found that this breached Art 8 ECHR because (i) there was no fresh assessment of his condition, either through a fresh medical report or an examination of him by the court, even though there was nothing to indicate that his medical condition was irreversible or too short a time had passed for a re-examination and there was no medical evidence to indicate that he could not attend, (ii) it seemed that there was an error in the court’s view that only state-employed experts could give evidence, and the neutrality of an expert is important to ensure equality of arms when basic rights are at stake. As such, the conclusion that the test for incapacitation was still met was not reliable. In addition, it was doubtful that full incapacitation was justified: the presence of a mental disorder does not by itself justify a loss of capacity, since the disorder must be of a kind or degree to warrant such a measure; the absence of evidence of violence, self-harming or grossly irresponsible behaviour, meant that deprivation of capacity – which domestic law required to be total - was disproportionate.
In December 2002, he was admitted to hospital, leading to an application for a court order for further detention: during that process, when time limits in domestic law were not complied with, the hospital was made his guardian and so detention continued with their consent. This left APL without any way to seek to restore capacity, which was incompatible with Art 8; it was noted that the trend across Europe is to allow those without capacity to have direct access to a court. There were also a breach of Art 5(1) in that detention during the court proceedings was in breach of domestic procedural requirements and so not in accordance with domestic law (and so in breach of Art 5(1)); and detention on the basis of the consent of the guardian, by-passing the legal process, breached Art 5(1); in addition, there were reasons to doubt the impartiality of the guardian, and so it was appropriate to review the medical evidence, which on the facts did not support detention. The lack of a court review also breached Art 5(4).
There was also a complaint that APL and his fiancée had not been allowed to marry: it was decided that this did not need separate consideration under Art 12 because the loss of the ability to marry was one of the consequences of the loss of capacity. The lack of an effective remedy was also part of the reasoning under Art 8 and so was not considered separately under Art 13.
The breaches of Arts 5 and 8 ECHR led to €25,000 being awarded as just satisfaction.