Dc presentation
Cases which chip away the guardianship edifice
Yüklə 246 Kb.
|
- Bu səhifədəki naviqasiya:
- Article 8 of the ECHR
- Article 6(1) of the ECHR
- Article 6 of the ECHR
- Some questions at this stage
5.Cases which chip away the guardianship edificeUnder this cluster I include everything about the guardianship order itself and how someone gets into and out of guardianship. So cases raising procedural issues might include the following sorts of scenarios:
It seems to me at least, that there are two main ways of challenging monolithic guardianship systems. The first is to challenge the guardianship itself, and the second is to challenge all the unfair ways in which it was imposed. In ECHR terms the first of these has been dealt with under Article 8 of the ECHR which is entitled “Right to respect for private and family life” and states: (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. And the second of these (challenging the unfair ways in which a person was deprived or restricted of legal capacity) has been challenged under Article 6(1) of the ECHR whose mother Article 6 is entitled “Right to a fair trial” and states: (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Article 8 of the ECHR Let’s deal first with Article 8 of the ECHR. The following is taken from MDAC’s amicus curiae brief in the Kedzior v. Poland case. I put on record the immense contribution which Professor Luke Clements made to developing MDAC’s brief. I go into these issues in some depth, not to suggest that MDAC’s arguments are correct (!), but to lay out some of the possible arguments which might be able to be deployed in other jurisdictions. In its brief, MDAC argues that that a decision that a person lacks sufficient functional capacity to make some or all decisions will invariably constitute an interference with that person’s private life and may amount to an interference with his or her family life, home and correspondence. Private life, for the purposes of Article 8(1) includes a person’s physical and psychological integrity and the guarantee which it affords is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see Botta v. Italy, judgment of 24 February 1998, para. 32). We argue that a court ruling that a person is incapable of making any decision will strip that person of the very essence of his or her personal autonomy, human dignity and human freedom. For more on these concepts, see Michael Bach’s incisive paper which is available to DC participants. Such a court decision renders a person in some respects a ‘non-person’, stripped of their identity as an individual human being (see, inter alia, Pretty v. UK, no. 2346/02, judgment of 29 April 2002, para. 62; Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, para. 53; Christine Goodwin v. UK, no. 28957/95, judgment of 11 July 2002, para. 90). Only in the face of compelling evidence and most anxious judicial scrutiny could such a determination be made. Such a finding denies the person the right to privacy in virtually every arena of his or her life; it gives third parties access to the person’s private papers and medical history; it places severe restrictions on the person’s ability to enter into social activities and relationships and almost certainly negates any possibility of his or her developing intimate or sexual relationships. Such a decision has the power to strip the individual of the right to refuse medical treatment and most probably render the person liable to forced medication – possibly without the person administering the medication requiring any prior judicial approval. A ruling that a person is incapable of making any decision will almost inevitably mean that he or she no longer has the right to keep their correspondence private (note that “correspondence” is specified in Article 8 ECHR), and will mean that the person’s letters will be read by others, and will interfere with the person’s ability to send letters, emails and so on. A ruling that a person is incapable of making any decision may well remove from that person the right to chose where to live and to move freely throughout the territory of the State. A ruling that a person is incapable of making any decision may give to others the right to make decisions about which of his family members she or he sees, corresponds with and indeed lives with. Because of the draconian consequences for an individual of such a decision being made, Article 8(1) ECHR places significant positive obligations on States to secure for such persons – to the maximum extent possible – effective respect for their integrity (see for example, Glass v. UK, paras. 74-83). Such an obligation has as an essential object the protection of the person from arbitrary interference by the public authorities (Botta v. Italy, at para 33) and brings with it procedural obligations to ensure that interferences in personal autonomy and all other aspects of the Article 8(1) right are minimised. A question at this stage:
You will notice that so far we have not even mentioned the CRPD. This is not because it slipped our mind: in fact we were itching to have Article 12 CRPD be a central component. The reason we didn’t rely on the CRPD too heavily was because: a) The ECtHR’s job is to interpret the ECHR not the CRPD; b) Many aspects of legal capacity cases speak directly to pre-existing human rights provisions; c) The Respondent State – Poland – has not yet ratified the CRPD; and d) We chose to pitch legal capacity not as a pre-existing right: judges rarely like to be seen to be leading a revolution.
Another question: So much for the substantive issues under Article 8 ECHR. In its amicus curiae brief in Kedzior, MDAC argued that there is an additional procedural component to Article 8 ECHR. Any interference with the rights of a person who is adjudged to lack sufficient functional capacity will be considered to be “necessary in a democratic society” (see Article 8(2) ECHR) for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. As the ECtHR has noted, although States enjoy a margin of appreciation, the margin is narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Dudgeon v. UK, judgment of 22 October 1981, para. 52; and Gillow v. UK, judgment of 24 November 1986, at para. 55). The Court has emphasised that the procedural safeguards available to the individual will be especially material in determining whether a State has, when fixing the regulatory framework, acted within the within the margins: in particular whether the decision-making process leading to measures of interference is fair and such as to afford due respect to the interests safeguarded (see Buckley v. UK, judgment of 26 September 1996 para. 76; and Chapman v. UK, no. 27138/95, judgment of 18 January 2001 at para. 92). The Court has additionally emphasised that the vulnerable position of a particular group of persons (in the instant case, people considered to lack sufficient functional capacity) means that some special consideration should be given to their particular needs both in the relevant regulatory framework and in reaching decisions in particular cases (Connors v. UK, no. 66746/01, judgment of 27 May 2004, para. 84). To this extent, MDAC argues, Article 8 ECHR creates a positive obligation to ensure that there is a procedure available to persons in similar situations to the Applicant, so that they are able to challenge significant interferences, such as medical treatment decisions, restrictions on their liberty and significant restraints (even if these interferences fall short of a deprivation of liberty in ECHR terms). MDAC argues that the obligation to provide a procedure for challenging such fundamental restrictions should exist even if the applicant is not resisting the measures (including medical treatment or detention), since the right to personal integrity protected by Article 8(1) is too important in a democratic society for a person to lose it simply for the reason that she or he is not considered to be resisting (see by analogy H.L. v UK cited above, para. 90; and De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, paras. 64-65). This sort of argument could be made in jurisdictions which provide for no appeal against a guardian’s decision by the person under guardianship. Article 6 of the ECHR Turning now to the second major provision which the European human rights system offers us in our mission to challenge the monolithic guardianship provisions. Admittedly the arguments are similar to those above under the procedural wing of Article 8 ECHR, but the Article 6 (right to fair trial) jurisprudence has some helpful principles specified in the treaty’s text itself, and the ECtHR has developed some helpful jurisprudence in mental disability cases under Article 5 ECHR (the provision which regulates deprivations of liberty) which we can draw into Article 6 ECHR arguments. We can say with some certainty that in assessing whether or not a particular measure meets the requirements of fair trial which is set out in Article 6(1) of the ECHR, all relevant factors fall to be considered, including the nature and complexity of the issue before the domestic courts, and what was at stake for the individual in question and so one (see Shtukaturov at para. 68). These sorts of issues can be argued, I think, under Article 13 of the CRPD, which sets out access to justice rights, although Article 13 CRPD may well be a wider provision than Article 6 of the ECHR. The ECtHR has clarified that when examining fair trial issues for persons with mental health disabilities under Article 6, it will read across from Articles 5(1) jurisprudence (legal criteria for legalising a deprivation of liberty) and Article 5(4) jurisprudence (court review of the necessity of detention) (see Salontaji-Drobnjak at para. 124). The fundamental requirements of fair trial in legal capacity cases include the following: a. Reasonable steps were taken to ensure that the individual was aware of the application for deprivation of legal capacity (Shtukaturov at para. 69). b. Reasonable steps were taken to ensure that the individual was aware of the fact that he or she was being subjected to a forensic psychiatric examination for the purposes of legal capacity proceedings (Shtukaturov at para. 69). c. The individual was afforded the right to participate in the proceedings, to present and challenge evidence, and to be heard either in person or, where necessary, through some form of representation (Winterwerp v. the Netherlands, judgment of 24 October 1979 at para. 79; Shtukaturov at paras. 69 and 71; Salontaji-Drobnjak at para. 127). d. Regardless of the individual’s wish to participate in the proceedings, where a major decision concerning legal capacity is to be taken, the presiding judge (or perhaps an independent and impartial professional with the requisite understanding of the law concerning mental incapacity) should have at the very least visual contact with the applicant and the opportunity to question him or her (Shtukaturov at para. 73). e. Although States have a “margin of appreciation” as to the means to be used in guaranteeing parties their fair trial rights, the obligation remains that these measures must ensure for all individuals, an effective right of access to the courts for the determination of their “civil rights and obligations” (this is the language of Article 6(1). See Airey v. Ireland, judgment of 9 October 1979, at para. 26). Accommodating the needs of persons with mental health disabilities “should not affect the very essence of the applicant’s right to a fair hearing as guaranteed by Article 6” (Shtukaturov at para. 68; Salontaji-Drobnjak at para. 126). f. States should ensure that applicants have the opportunity to present their case effectively and that they are able to enjoy “equality of arms” with the party making the application (see, among many other examples, De Haes and Gijsels v. Belgium, judgment of 24 February 1997 at para. 53). The question of whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon (a) the importance of what is at stake for the party in the proceedings, (b) the complexity of the relevant law and procedure and (c) the person’s capacity to represent him or herself effectively (see Steel and Morris v. UK, no. 68416/01, judgment of 15 February 2005 at para 59; Airey v. Ireland, judgment of 9 October 1979 at para. 26). Dealing with these three criteria: (i) in cases where the consequences could be a severe (or even a ‘total’) negation of a person’s ability to make decisions for him / herself, the importance of what is at stake – deprivation of legal capacity (including subsequent and automatic loss of the right to vote, work, associate, family life, privacy, deciding where to live), mental health detention, forced psychiatric treatment – cannot be overestimated; (ii) whilst it may be possible to envision domestic law and procedures of such elemental simplicity that legal advice and assistance could never be required, legal capacity issues are usually contested legal hearings with expert evidence (see Megyeri v. Germany, no. 13770/88, judgment of 12 May 1992 at para. 23); (iii) given that the substance of the proceedings relate to the person’s capacity to represent him or herself, it appears self evident that this requirement is also satisfied in such cases. It follows that in cases of this nature there must, at the very least, be a presumption that the measures taken by a State to satisfy its Article 6(1) obligation will include the provision of a lawyer who provides quality legal assistance to the person (not merely a cosmetic nicety in the courtroom as in Pereira v. Portugal, no. 44872/98, judgment of 26 February 2002; emphasised in Salontaji-Drobnjak at para. 127) together with a legal aid scheme. Some questions at this stage:
Yüklə 246 Kb. Dostları ilə paylaş:
|