"(b) APPLICATION of these PRINCIPLES in the PRESENT CASE ( §§ 121 - 132)
121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a "deprivation of liberty" within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arragements and is based on civil - law agreements signed with an appropiate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities ' role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.
122. It observes that there are special circumstances in the present case. No members of the applicant ' s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State - run institution by the social services , which likewise did not interview the applicant (see §§ 12 - 15 above). The applicant was never consulted about his guardian ' s choices, even though he would have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see § 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the bais of a voluntary private - law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials , from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant's guardian acted in bad faith, the above considerations set the present case apart from NIELSEN (cited above), in which the applicant's mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rigthts over a child who was not capable of expressing a valid opinion.
123. The applicant's placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from the measure amounted to a "deprivation of liberty" within the meaning of Article 5.
124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see ASHINGDANE, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed expressed permission to do so (see § 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.
125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see §§ 26 - 28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that thus leave of absence was entirely at the discretion of the home's management, who kept the applicant's identity papers and administered his finances, including transport costs (see §§ 25 - 26 above). Furthermore, it would appear to the Court that the home's location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.
126. The Court considers that this system of leave of absence and the fact that the management kept the applicant's identity papers placed significant restriction on his personal liberty
127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home's management asked the Ruse police to search for and return him ( see § 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he had not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.
128. Accordingly, although the applicant was able to untertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the DODOV - case (cited above) , the Government maintained that the restrictions in issue had been necessary in view of the authorities' positive obligations to protect the applicant's life and health. The Court notes that in the above - mentioned case, the applicant's mother suffered from Alzheimer's disease and that, as a result , her memory and other mental capacities had progressivly deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended . In the present case, however, the Government have not shown that the applicant's state of health was such as to put him at immediate risk , or to require the imposition of any special restrictions to protect his life and limb.
129. As regards the duration of the measure, the Court observes that is was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains ( having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him.
130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see § 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situatios where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see SHTUKATUROV , cited above, § 108). In the present case, domestic law attached a certain weight to the applicant's wishes and it appears that he was well aware of his situation. The Court notes that. at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship ( see §§ 37 - 41 above.)
131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival on the Pastra social care home or at any later date , the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and troughout his stay.
132. Having regard to the particular circumstances of the present case, specially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant's lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable."
Mit dieser eindeutigen und klaren Aussage der GRAND CHAMBER ist nun also ohne den geringsten Zweifel festgestellt, daß diese überfallsartige Verbringung des Beschwerdeführers in ein Behindertenheim unter staatlicher Leitung eine
D E P R I V A T I O N O F L I B E R T Y
F R E I H E I T S - B E R A U B U N G
darstellt und in völlig vergleichbarer Weise handelte es sich bei der ebenso überfallsartigen Verbringung des WOLFGANG S. am 17.Oktober 2003 um dieselbe schwerwiegende Menschenrechtsverletzung und eben nicht um eine Rettungsaktion oder eine besonders wohltätige Aktion !
Damit stellt sich nun im Gefolge die nächste Hauptfrage : gab es für dieses Einschreiten irgendeine ausreichende gesetzliche Ermächtigung im nationalen Recht ? Das schauen wir uns nun auch noch ganz genau an !
121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a "deprivation of liberty" within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arragements and is based on civil - law agreements signed with an appropiate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities ' role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations.
122. It observes that there are special circumstances in the present case. No members of the applicant ' s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State - run institution by the social services , which likewise did not interview the applicant (see §§ 12 - 15 above). The applicant was never consulted about his guardian ' s choices, even though he would have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see § 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the bais of a voluntary private - law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials , from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant's guardian acted in bad faith, the above considerations set the present case apart from NIELSEN (cited above), in which the applicant's mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rigthts over a child who was not capable of expressing a valid opinion.
123. The applicant's placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from the measure amounted to a "deprivation of liberty" within the meaning of Article 5.
124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see ASHINGDANE, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed expressed permission to do so (see § 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.
125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see §§ 26 - 28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that thus leave of absence was entirely at the discretion of the home's management, who kept the applicant's identity papers and administered his finances, including transport costs (see §§ 25 - 26 above). Furthermore, it would appear to the Court that the home's location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.
126. The Court considers that this system of leave of absence and the fact that the management kept the applicant's identity papers placed significant restriction on his personal liberty
127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home's management asked the Ruse police to search for and return him ( see § 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he had not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.
128. Accordingly, although the applicant was able to untertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the DODOV - case (cited above) , the Government maintained that the restrictions in issue had been necessary in view of the authorities' positive obligations to protect the applicant's life and health. The Court notes that in the above - mentioned case, the applicant's mother suffered from Alzheimer's disease and that, as a result , her memory and other mental capacities had progressivly deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended . In the present case, however, the Government have not shown that the applicant's state of health was such as to put him at immediate risk , or to require the imposition of any special restrictions to protect his life and limb.
129. As regards the duration of the measure, the Court observes that is was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains ( having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him.
130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see § 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situatios where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see SHTUKATUROV , cited above, § 108). In the present case, domestic law attached a certain weight to the applicant's wishes and it appears that he was well aware of his situation. The Court notes that. at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship ( see §§ 37 - 41 above.)
131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival on the Pastra social care home or at any later date , the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and troughout his stay.
132. Having regard to the particular circumstances of the present case, specially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant's lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable."
Mit dieser eindeutigen und klaren Aussage der GRAND CHAMBER ist nun also ohne den geringsten Zweifel festgestellt, daß diese überfallsartige Verbringung des Beschwerdeführers in ein Behindertenheim unter staatlicher Leitung eine
D E P R I V A T I O N O F L I B E R T Y
F R E I H E I T S - B E R A U B U N G
darstellt und in völlig vergleichbarer Weise handelte es sich bei der ebenso überfallsartigen Verbringung des WOLFGANG S. am 17.Oktober 2003 um dieselbe schwerwiegende Menschenrechtsverletzung und eben nicht um eine Rettungsaktion oder eine besonders wohltätige Aktion !
Damit stellt sich nun im Gefolge die nächste Hauptfrage : gab es für dieses Einschreiten irgendeine ausreichende gesetzliche Ermächtigung im nationalen Recht ? Das schauen wir uns nun auch noch ganz genau an !
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