FIFTH SECTION
FINAL DECISION
Application no. 8702/04
by Virve VÄÄRI
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 8 July 2008 as a Chamber composed of:
and Stephen Phillips, ,
Having regard to the above application lodged on 23 February 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the partial decision of 22 May 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Virve Vääri, was an Estonian national who was born in 1928 and lived in Tartu. She was represented before the Court by Mr Valdek Vääri, her son. On 23 September 2007 the applicant died. On 3 December 2007 Mr Vääri made an application to a notary declaring that he was the applicant’s sole heir and accepted the succession. He wished to pursue the case before the Court and assigned Mr M. Männik, a lawyer practising in Tallinn, to act as his representative.
The Estonian Government (“the Government”) are represented by their Agent, Ms M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Proceedings concerning the applicant’s legal capacity
On 1 March 2001 the Tartu County Court (maakohus) divested the applicant of her active legal capacity. The court relied, inter alia, on a psychiatric expert opinion according to which the applicant suffered from dementia and was persistently unable to understand the meaning of her actions or to direct them; moreover, she was unable to cope with her everyday life without assistance and care by other persons. The court appointed the Tartu City Government as the applicant’s guardian.
2.  Proceedings concerning the applicant’s placement in a social welfare institution
On 23 October 2002 the Tartu City Government lodged an application with the Tartu County Court, requesting that the applicant be placed in a social welfare institution (hoolekandeasutus) without her consent. According to the City Government, the applicant lived with Mr Vääri in an apartment which was in poor sanitary condition. Mr Vääri did not take sufficient care of his mother, and at the same time actively hindered the assistance offered by the social workers. He had also persuaded her to reject the City Government’s proposals concerning her placement in a welfare institution. On 26 November 2002 Mr Vääri was involved in the proceedings. The applicant and Mr Vääri opposed the City Government’s request. By a judgment of 29 January 2003 the County Court decided to place the applicant, without her consent, in a social welfare institution.
On 4 February 2003 the applicant was taken to a social welfare institution in Jõgeva, 50 kilometres away from her domicile in Tartu.
By a judgment of 25 April 2003 the Tartu Court of Appeal (ringkonnakohus) dismissed Mr Vääri’s appeal against the County Court’s judgment.
On 26 August 2003 the Supreme Court (Riigikohus) refused Mr Vääri leave to appeal.
3.  Proceedings concerning the lawfulness of the applicant’s further stay in the social welfare institution
On 4 February 2004 Mr Vääri took the applicant from the social welfare institution in Jõgeva back to their earlier place of residence in Tartu.
On the same date a social worker of the Tartu City Government requested the local police prefecture to provide assistance in taking the applicant back to the social welfare institution.
On 5 February 2004 the applicant was taken by police officers to the premises of the prefecture. From there, a social worker transferred her to Jõgeva, using a taxi specially adapted for disabled persons.
On 28 March 2004 the applicant lodged a complaint with the Tartu Administrative Court (halduskohus), requesting that the actions of the police prefecture and the City Government be declared unlawful and that she be released and taken back to her permanent residence in Tartu.
By a judgment of 21 December 2004 the Administrative Court dismissed the complaints. It found that according to the Social Welfare Act it was not necessary that a court decide by a judgment on the placement of a person in a social welfare institution or the extension of his or her stay therein if the guardian of the person had agreed to that course of action. Accordingly, the applicant’s stay in the institution had not been limited to one year and her son had had no right to take her away.
On 11 May 2005 the Tartu Court of Appeal dismissed an appeal lodged by the applicant and upheld the Administrative Court’s judgment. However, it amended the lower court’s reasoning. The Court of Appeal considered that the guardian had been obliged, under section 19 (3) of the Social Welfare Act, to request once a year judicial authorisation for a person’s involuntary stay in a social welfare institution. Nevertheless, it found that in the present case the applicant had had no place to live and, therefore, the impugned acts had to be considered as urgent social assistance within the meaning of section 28-1 of the Social Welfare Act.
The applicant appealed against the Court of Appeal’s judgment. On 24 November 2005 the Supreme Court quashed the lower courts’ judgments and referred the case back to the Tartu Administrative Court for a new consideration. It found that judicial authorisation was required for the placement of a person without his or her knowing consent in a social welfare institution even in cases where a guardian had been appointed. Furthermore, the Supreme Court held that a person could not be placed against his or her will in such an institution under the provisions concerning urgent social assistance. The Supreme Court considered it impossible, on the basis of the evidence collected and analysed by the lower courts, to decide whether the applicant had been deprived of her liberty.
On 5 December 2005 the Tartu Administrative Court severed the complaints against the police prefecture and the City Government into separate proceedings.
By a judgment of 9 February 2006, the Administrative Court declared the placement of the applicant in the social welfare institution by the City Government on 5 February 2004, and her ongoing holding therein, unlawful as no legal ground had existed for keeping the applicant there without her consent after 3 February 2004 or for taking her back to it. The court considered that the applicant’s placement in the social welfare institution and her ongoing stay therein did not amount to a deprivation of liberty. Rather, it constituted a restriction upon her liberty.
By a separate judgment delivered on 9 February 2006, the Tartu Administrative Court declared that the taking of the applicant by the police officers onto the premises of the police prefecture on 5 February 2004 had been unlawful. On 10 May 2006 the Tartu Court of Appeal dismissed an appeal by the police prefecture.
The applicant appealed against the Administrative Court’s judgment concerning the unlawfulness of her placement in the social welfare institution and her ongoing stay therein. She argued that she had been deprived of her liberty in violation of Article 5 § 1 of the Convention.
By a judgment of 25 May 2006 the Tartu Court of Appeal dismissed the applicant’s appeal, considering that the restrictions imposed on her had not amounted to a deprivation of liberty.
On 1 September 2006 the Supreme Court refused the police prefecture leave to appeal against the Tartu Court of Appeal’s judgment of 10 May 2006. On the same date it refused the applicant leave to appeal against the Court of Appeal’s judgment of 25 May 2006.
4.  Proceedings concerning Mr Vääri’s complaints
On 15 April 2004 Mr Vääri lodged a complaint with the Tartu Administrative Court, requesting that the actions of the police prefecture and the City Government related to the taking of the applicant to the social welfare institution in Jõgeva be declared unlawful. These actions had violated his right to respect for family life.
On 15 October 2004 the Administrative Court dismissed the complaint, finding that Mr Vääri’s rights had not been violated as the relationship between him and the applicant had not amounted to family life. On 16 March 2005 the Tartu Court of Appeal upheld the judgment. On 13 October 2005 the Supreme Court quashed the lower courts’ judgments and referred the case to the first-instance court for a new consideration. It found that the fact that a third person had been appointed as the applicant’s guardian did not exclude the possible existence of family life between the applicant and Mr Vääri and that he could have had a legitimate expectation that after the expiry of the one-year term for the applicant’s placement in the social welfare institution she could start living with him.
The Tartu Administrative Court severed the complaints against the police prefecture and the City Government into separate proceedings. On 9 February 2006 it delivered two judgments. The complaint against the actions of the police prefecture was dismissed as Mr Vääri’s rights had not been violated. By the second judgment, the court declared the actions of the City Government unlawful and found that Mr Vääri’s right to respect for his private and family life had been violated.
The judgments were not appealed against.
5.  Subsequent developments
On 1 December 2005, the City Government lodged an application with the Tartu County Court, requesting that the term of the applicant’s placement in the social welfare institution be extended. The applicant was given free legal assistance and a psychiatric expert examination of the applicant was ordered by the court. Mr Vääri was involved in the proceedings. On 24 March 2006 the County Court dismissed the City Government’s application, finding that at the time the applicant was voluntarily staying in the Jõgeva social welfare institution, as she had admitted that she would not cope alone and agreed to stay in the Jõgeva institution until the completion of an appropriate care centre in Tartu in August or September 2006.
Mr Vääri appealed against the decision, challenging the constitutionality of certain provisions of the Code of Civil Procedure. He did not challenge the operative part of the decision. On 8 June 2006 the County Court dismissed his appeal. On 19 February 2007 his appeal was dismissed by the Tartu Court of Appeal.
In the meantime, on 24 August 2006, the applicant was placed, with her consent, in the newly completed Tartu Mental Health Care Centre, in the section for elderly people. It appears that she resided in the care centre until her death on 23 September 2007.
COMPLAINTS
The applicant complained that her placement in the social welfare institution pursuant to the Tartu County Court’s judgment of 29 January 2003 and her further stay in the institution constituted a violation of her right to liberty under Article 5 § 1.
She further complained about the length of the administrative court proceedings concerning the lawfulness of her further stay in the social welfare institution. She relied on Articles 5 § 4 and 6 § 1.
THE LAW
The Court must first address the question of Mr Vääri’s right to pursue the application originally lodged by the applicant, who died on 23 September 2007.
In the Government’s opinion Mr Vääri could not automatically become an applicant in place of Ms Vääri. They considered that the allegations of the violation of Ms Vääri’s rights were so closely and directly bound to the deceased applicant’s person that her successors could not assert any specific legal interest that would enable them to continue the proceedings in her stead. Moreover, the case was an isolated one raising no question of general interest.
Mr Vääri considered that according to the settled case-law of the Court he should be considered the applicant.
The Court observes at the outset that in his several submissions Mr Vääri expressly indicated that the victim of the violations alleged in the present case was his mother. He also provided a letter of authority whereby his mother had authorised him to represent her in any court proceedings. Moreover, in a letter of 11 March 2007 to the Registry he stated that there was no need to complain to the Court about a violation of Article 8 as the violation of this Article had already been established by a domestic court. In this connection, he referred to the Tartu Administrative Court judgment of 9 February 2006 in the case concerning his complaint against the actions of the City Government. Thus, the Court concludes that Mr Vääri initially acted as his mother’s representative and did not complain about a violation of his own rights. Only after his mother’s death did he wish to pursue the case as an applicant in his mother’s stead.
The Court notes that in several cases where the applicant has died after having lodged the application, it has taken into account the intention of the applicant’s heirs or close members of his or her family to pursue the proceedings (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, with further references). In this connection the Court has considered whether or not the persons wishing to pursue the proceedings were the applicant’s close relatives (see Thévenon v. France (dec.), no. 2476/02, 2006‑...; and Scherer v. Switzerland, judgment of 25 March 1994, Series A no. 287, pp. 14-15, §§ 31-32). Moreover, as a second criterion, the Court has examined whether the rights concerned were transferable. On the one hand, the Court has continued the examination of cases involving pecuniary claims that were transferable to the deceased applicant’s heirs (see, for example, Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions1996‑V, p. 1652, § 26; and, mutatis mutandis, Karner v. Austria, . 40016/98, § 25, ECHR 2003‑IX). On the other hand, the Court has found that certain other rights, such as those guaranteed by Articles 5 and 8 (Thévenon, cited above) or 2, 3, 5, 8, 9 and 14 (Sanles Sanles v. Spain(dec.), no. 48335/99, ECHR 2000‑XI) were of an eminently personal and non-transferable nature (see also Biç and Others v. Turkey, no. 55955/00, §§ 22-23, 2 February 2006, with further references).
The Court has also considered whether the case concerned involved an important question of general interest transcending the person and the interests of the applicant (see Karner, above, §§ 25-27; Marie-Louise Loyen and Bruneel v. France, no. 55929/00, § 29, 5 July 2005; and Biç and Others, cited above, § 23).
Turning to the present case, the Court observes at the outset that Mr Vääri is seeking to pursue the case concerning the alleged violation of the rights of his mother, the original applicant. Thus, the first condition of close kinship is met. However, the case concerns complaints about restriction of or limitation upon Ms Vääri’s liberty and the proceedings by which she sought to challenge the lawfulness of her alleged detention. The Court finds that these issues falling under Article 5 §§ 1 and 4 of the Convention are so closely linked to her person that they cannot be regarded as transferable. In this context the Court also reiterates Mr Vääri’s submission that the victim of the alleged violations had been Ms Vääri and that insofar as Article 8 might have been concerned, the case had been resolved by the domestic courts.
Consequently, considering that there exists no general interest in the present case which necessitates proceeding with the examination of the complaints raised, the Court finds that the conditions in which a case may be struck out of its list, as provided in Article 37 §1 of the Convention, are satisfied.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
	Stephen Phillips	Peer Lorenzen
	Deputy Registrar	President