Judgement 46412/21

Applicant name CALVI ET C.G.
Applicant type Natural person
Number of applicants 2
Country Italy
Application no. 46412/21
Date 06/07/2023
Judges Marko Bošnjak, président,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Ivana Jelić,
 Gilberto Felici,
 Erik Wennerström,
 Raffaele Sabato
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Disproportionate (rights and freedoms of others/health and morals?); procedural requirements
Type of privacy Private life
KeywordsForced placement in nursing home; no adequate safeguards and procedural requirments not respected
Facts of the caseAn elderly person is placed under legal protection and put in a nursing home in social isolation from the outside world for three years. This decision is based on his excessive prodigality and his physical and psychological deterioration, but he is not declared legally incapable. A complaint is submitted under Articles 5 and  8 ECHR.
AnalysisThe case is interesting for four reasons:
1. First, there is a discussion by the Court as to the extent to which the first applicant can bring a claim on behalf of the second applicant. In principle, the Court reiterates, such is only allowed when someone has received detailed instructions from a person to file a case on her behalf, but there are exceptions, the Court recalls. On the one hand, it can take account factors of vulnerability, such as age, gender or disability, which may prevent certain victims from submitting their case to the Court and, on the other hand, in can look at the relationship between the victim and the applicant. In this case, the former exception applies.
2.  The applicants rely on both Articles 5 and 8, but the Court decides to approach the matter solely under the latter provision.
3. The Court quickly finds that the measures adopted by the domestic authorities interfered with the right to privacy, that these measures were based on a law and were aimed at protecting the second applicant. Whether that is grounded in the ‘rights and freedoms of others’ or ‘health and morals’ is left open. Because of the impact of the measure and because the second applicant’s deprived legal capacity was not based on a finding of impairment of his mental faculties which had been established by doctors, but on excessive profligacy and on the physical and mental weakening which he showed from 2020 onwards, the Court feels that there is a need   to verify more carefully than normal whether the national courts carefully weighed all the relevant factors before taking the decisions to subject him to the said measure of legal protection and to have him admitted to a nursing home with limited contact with the outside world.
4. As to the evaluation of the proportionality of the measures, the Court obviously reiterates that there were far-reaching implications for an individual’s private life are at stake. Interestingly, it emphasizes the procedural requirements implicit in Article 8 ECHR and the need to adopt procedures to avoid mistakes and minimize the risk of arbitrariness. The Court found no explanation as to why it had been necessary to make any meetings of the second applicant subject to the authorization and to isolate him from his relatives for such a long period. This decision was not taken on the basis of a concrete and careful examination of all the relevant aspects of the second applicant’s particular situation. No measures aimed at reintegrating the applicant into his home were taken in the three years that elapsed, even though the placement had been decided on a provisional basis and experts suggested that he had a good capacity for socialization. Therefore, the Court finds a violation of Article 8 ECHR.
Other Article violation?
Damage awarded The second applicant did not submit a claim for just satisfaction. Consequently, the Court considers that there is no reason to award him any sum under this head.
Documents Judgment