The ECHR found a violation of the requirements of paragraph 1 of Article 6, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of paragraph 1 of Article 6, Article 8 of the Convention for Сведения: 2020-05-19 04:07:22

The ECHR judgment of October 3, 2019 in the case of Nikolyan v. Armenia (application No. 74438/14).

In 2014, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Armenia.

In the case, the application was successfully considered regarding the court declaring the applicant legally incompetent on the basis of the lawsuit of his wife and son, termination of the proceedings on the applicant’s claim for divorce and eviction of his wife from his apartment at the request of the applicant’s son, who was appointed his guardian. The case has violated the requirements of paragraph 1 of Article 6, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Circumstances of the case

In April 2012, the applicant initiated a procedure for divorcing his wife and evicting him from his apartment. In response, the applicant’s wife and their son filed a lawsuit, demanding that the applicant be declared legally incompetent. Later that year, a panel of psychiatrists admitted that the applicant suffered from delusional disorders, which prevented him from understanding his actions and controlling them. In November 2013, the district court declared the applicant incompetent, this decision was upheld by the court of appeal. Divorce and eviction from the apartment were subsequently terminated at the request of the applicant’s son, who was appointed guardian of the applicant.


Concerning compliance with article 6, paragraph 1, of the Convention. (a) Access to court through divorce and eviction procedures. The applicant’s claims for the divorce and eviction of his wife and son from his apartment were never considered by the Armenian courts. Having completely lost their legal capacity and, therefore, according to the legislation of Armenia, the right to access to the court, the only appropriate and effective way for the applicant to defend his legal interests in the courts was to use the help of an independent legal representative (guardian). The authority responsible for appointing the guardians did not listen to the applicant, despite the statutory requirement to take into account, if possible, the wishes of the person deprived of legal capacity, and appointed the applicant’s son as guardian, despite conflicts between them and the applicant’s objection to the appointment of the son as his guardian.

Given the circumstances of the present case, doubts arose as to whether the applicant’s son really maintained a neutral position in the proceedings and whether there was a conflict of interest regarding the applicant’s specific claim against his wife for divorce and eviction from her apartment. The District Court did not examine the issue of whether the request of the applicant’s son to withdraw the claim was in the best interests of the applicant and did not indicate the reasons for which he had granted the request. The district court did not show the necessary thoroughness and did not exercise proper control, making a decision on the satisfaction of the application for withdrawal of the applicant’s claim, and, therefore, the termination of the proceedings was unreasonable.


In the case, there was a violation of the requirements of paragraph 1 of Article 6 of the Convention in connection with access to the court during the divorce and eviction procedure (adopted unanimously).

(b) Access to court to restore legal capacity. The right to petition a court to consider a complaint against a decision to declare incapacity was one of the fundamental procedural rights to protect those who were partially or completely deprived of their legal capacity. The general prohibition on recourse of persons deprived of legal capacity in Armenia during the period related to the circumstances of the case did not provide for exceptions. The legislation of Armenia did not contain guarantees that the issue of restoration of legal capacity should be considered by the court at reasonable intervals, despite the requirement of article 12, paragraph 4, of the United Nations Convention on the Rights of Persons with Disabilities, according to which a restrictive legal capacity measure should be regularly reviewed by a competent authority. The situation of the applicant was aggravated by the fact that the authorities did not provide for conflict-free custody of the applicant. The applicant’s inability to directly apply for the restoration of his legal capacity at the time in question was disproportionate to any legitimate aim.


In the case, there was a violation of the requirements of paragraph 1 of Article 6 of the Convention in connection with access to a court to restore legal capacity (adopted unanimously).

Regarding compliance with article 8 of the Convention. Depriving the applicant of legal capacity constituted an interference with his right to privacy. This interference was provided for in article 31 of the Civil Code. The court decision declaring the applicant legally incompetent was based solely on the conclusion of a psychiatric examination. The presence of a mental illness, even a serious one, cannot be the only reason for the complete deprivation of a person's legal capacity. By analogy with cases of deprivation of liberty, in order to justify the complete deprivation of a person's legal capacity, mental illness must be “of this kind or to such an extent” to justify the application of such a measure. The legislation of Armenia did not establish any limits or possibilities for a personal response in situations such as in the applicant’s case, and made a distinction only between legal capacity and its absence.

At the conclusion of the psychiatric examination, the degree of incapacity of the applicant was not analyzed in sufficient detail. The conclusion did not explain which actions the applicant did not understand or could not control. Nevertheless, assuming that the applicant's condition required some protection against him, the court had no choice but to apply full incapacity, the most severe measure, which meant a complete loss of independence in almost all areas of life.

The objectivity of medical evidence implied the requirement that evidence be obtained fairly recently. The question of the limitation of evidence depended on the special circumstances of the case. The psychiatric examination report was prepared in September 2012, almost 14 months before the decision to declare the applicant legally incompetent and a year and a half before the Court of Appeal upheld the decision of the trial court. This conclusion could not be considered “timely” (Principle 8 of the Recommendation of the Committee of Ministers of the Council of Europe of February 23, 1999 N R (99) 4 “On the Principles of Legal Protection of Disabled Adults”). This was the first time that the applicant had undergone a medical psychiatric examination, had no history of mental illness, and nothing led to suggest that his condition was irreversible. In such circumstances, the Armenian courts had to give a new assessment of the applicant's mental state.

The district court referred only to the indicated expert opinion, without analyzing whether it reliably reflected the applicant’s mental health status in the relevant period. As regards the Court of Appeal, he mentioned the absence of any evidence refuting the conclusions of the indicated medical report or suggesting that the applicant had recovered, despite the fact that the duty to seek such evidence and, if necessary, to schedule new medical examinations was assigned to the Armenian courts. The measure applied to the applicant was disproportionate to the legitimate aim pursued. As a result, the applicant's rights guaranteed by Article 8 of the Convention were limited to a greater extent than was necessary.


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).


In application of Article 41 of the Convention. The Court awarded the applicant EUR 7,800 in respect of non-pecuniary damage.



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