3019/67 - 2 - - the Commission's Partial Decision of 5th October, 1967, by which it was decided 1, to communicate the application to the G-overnment of Denmark for its observations on admissibility of the applicant's complaint concerning denial of access to courts and 2, to declare the remainder of the application to be inadmissible; - the respondent Government'e observations on admissibility of 14th November, 1967; - the Gonmiission's decision of 16th Dcccmber, 1967, instructing the Secretary to transmit these observations to the applicant and to invite him to submit his observations in reply; - the applicant's observations in reply dated 21st January, 1968; J - the second report made by a group of three members on 25th January, 1968; Having deliberated, THE PACTS I, Whereas the facts as presented by the applicant hâve been summarisedTn the partial decision of 5th October, 1^67, by which the Commission declared inadmissible certain of the applicant's complaints; whereas, with regard to the general background it appears sufficient for the purposes of the present decision to recall the following: The applicant is a Danish citizen, born in 1908 and living in Copenhagen. In connection with various criminal convictions the applicant has been interned in institutions for psychopaths or mental hospitals from 1950 to 1959, from 1961 to 1963, and apparently a^ain for shorter periods in 1965 and in 1966, Two previous applications (Nos,'665/59 and 874/60) and the complaints of his present application concerning his detention in a mental hospital and the actions of certain psychiatrists have been declared inadinicsiblo by the Commission's previous decisions, .A - 3 - 3019/67 II, Whereas the applicant's^ complaint forming the subject of the present decision concerns the follo\,'ing facts; Pollowing his discharge from the mental hospital in 1959, tho applicant v/ished to institute legal proceedings against the Gity of Copenhaccn claiming compensation in respect of his internment, as the city v/as responsible for'the particular hospital in vvrhich he had been interned. By decision of 21st Pebruary, 1966, the High Court for Eastern Den'nark (0stre Landsret) refused to accept the applicant's claim. The applicant appealed to the Supreme Court (H/jesteret) which, on 24th June, 1966, refused to accept his appeal. In its decision, the 'Supreme Court referred to an expert opinion produced by the legal Medical Council (Retslaegerêdet) in regard to the applicant's mental state and to the contents of various letters written by him. On the basis of this material, the Supreme Court concluded that the applicant suffered from delusions in regard to the background of his internment in hospital; that, by reason of his mental state, he should not be allowed to institute proceedings in respect of the legal basis of his internment; and that consequently, his claim should not be admitted for an examination as to its substance. The applicant tried to obtain a reconsideration of the decision of the Supreme Court, but the Committee of Appeals . . of the Supreme Court (ll/jesterets anke- og kaeremâlsujifvalg) j (k. informed him, on 18th August, 1966, that the matter had been finally_dealt with by the Supreme Court, The Special Court of Revision (saerlige Klageret) to which he had also addressed himself replied, on 21&t October,'19"S6, that it was not competent to deal with the matter. The applicant then apparently asked the Prederiksberg District €ourt (Prederiksberg birks' skifteret) to appoint a guardian ad. .litem who should take care- of his interests in the proceedings v;hich he wished to introduce against the City of Copenhagen. Subsequently, a lawyer informed the Court that he was willimg to be appointed guardian ad litem. However, by letter of 30th December, 1966, the Court informed the applicant that, after consulting the Ministry of Justice, it had decided not to appoint a guardian. .y. 3019/67 - 4 - The applicant apparently complains that he had not been given the possibility of having his civil claim examined • by a court, since the courts have refused both to let him present a claim himself and to appoint a guardian to represent him' in these proceedings, SUBMISSIONS OP TI-IE PARTIES Whereas the Commissipn in its partial decision of 5th October, 1967, decided to give notice to the respondent Government of the applicant's complaint concerning denial of accesp to courts and to invite the respondent Government ta submit its observations; on the question of admissibility; I, Whereas" the respondent Government in its observations of 14th November, 1967, makes inter alia the following submissions: ."By his letter of 27th October, 1966, to the Probate Court of Pred,eriksberg the applicant petitioned for appoint- ment of a guardian ad hoc to have the lawsuit against the City of Copenhagen resumed. Provision for appointment of a guardian ad hoc is to be found in "the Minority and Guardianship Act (No, 277 of 30th June, 1922), section 59 which reads: 'If a person is prevented iemporarily, by illness or absence, froin attending to his interests, a guard- ian may, if necessary be appointed for the duration of such circumstances to attend to his interests to a specified extent. The consent of the person con- cerned must, if possible, be obtained before the appointment is made,* Pursuant to the Minority and Guardianship Act, section 17, such appointments are to be made by the local probate court if the person concerned is domiciled outside Copenhagen; for this purpose the probate court acts as an administrative authority and is therefore responsible to the Minister of Justice to whom probate court decisions on guardianships may be referred. As the applicant was presumed to be not merely temporarily prevented from acting on his own behalf in a lawsuit - cf, the Minority and Guardianship Act, section 59 - the probate court referred the petition to the Ministry of Justice, stating at the same time that the applicant's counsel would be willing to accept an appointment as guardian ad hoc, / - 5 - 3019/67 However, the Ilinistry informed the probate court that the Ministry had decided against appointment of a guardian ad hoc for the r.pplicant, whereupon the probate court, by letter of 30th December, 1966, refused the applicant's petition ■ . "The decision of the Ministry of Justice and, con- sequentljr, that of the probate court as well, v/ere based on the Minority and Guardianship Act, section 59, which by its tenor allov/s appointment of a guardian ad hoc only if the"illness of the person concerned is of a temporary nature. In practice, very few exemptions have been made from this condition and, as far as the Ministry of Justice is aware, never in cases where the appointment of a guardian was intended to serve purposes of litigation, Ono of the reasons for the restraint exercised by the administrative authorities in the appointment of guardians ad'hôc is that when the Minority and Guardianship Aôt was enacte'd the power of decision as to the legal stR.tus of citizens v/as vested, in the first instance, in the law courts in order to ensure the resulting legal protection of citizens. In pursuance of the Minority and Guardianship Act, section 2, persons who are unfit to attend to their interests may be declared incapable of managing their own affairs, and such a (Teclaration may, in pursuance of section 10, be followed by appointment of a guardian. This provision covers Inter alia persons who are insane or suffer from other forms of mental disturbance. Such decisions to declare persons incapable of managing their own affairs a re taken by lav/ courts which, for that purpoF3e, act as judicial authorities. Petitions for such decisions may be submitted by the person himself, his relatives or a public authority, cf, the Administration of Justice Act, section 457. If a petition is made by the person himself, it is enough, if his ability to manage his own affairs is reduced by a physical defect, illness or other infirmity. The Danish Government submits that the present application be declared inadmissible and rejected in accordance with Article 26 of the Convention, (vide I belov/) If the Commission should' find that domestic remedies have been exhausted, the Government submits that the application be declared inadmissible in accordance with Article 27 (2) as being manifestly ill-founded and incompatible with the provisions of the Convention, (vide II below) ./. 3019/67 - 6 - I, Domestic ^remedies have not been exhausted The only legal remedy against a decision by a district court v^hich refuses to appoint a guardian ad hoc is to file a complaint with the Ministry of Justice, As the Ministry in the present case had been consulted by the Prederiksberg District Court and as the court in its letter of 30th December, 1966,-referred to this consultation, it is not contended that the applicant was under an obligation to ask for a decision formally taken"by the Ministry, In point of fact, however, the present applicat'ion is concernée"! with the judgment given by the Supreme Court on 24th Juhe, 1966, seeing that the applicant presmnably seeks to obtain a legal position in which a new action brought by him cannot be dismissed by reason of his legal incapacity, cf. Article 6 (l) of the Human Rights Convention " ... "-Por this purpose, the applicant has not exhausted all remedies available to him: he has only petitioned for appoint- ment of a guardian _ad hoc but not for appointment of a guardian in pursuance of sections 2 and 10 of the Minority and Guardian- ship Act. The application is manifestly ill-founded and incompatible with the Convention The provision of Article 6 (l) 'In the determination of his civil rights ,,, everyone is entitled to a fair and public hearing ,,,' is so general and wide that it must of necessity be subject to certain limitations for legal as well as practical reasons. Legal and practical considerations must necessarily imply that persons who are minors, insane or for other reasons unfit to attend to their iaterests cannot be given personal access to law courts. On the other hand, such persons must generally be entitled by appointment of a guardian or otherwise, to have another person (acting on their behalf and in their interest) decide whether they can be presumed to have a civil claim and whether an action should be brought, ./. - 7 - 3019/67 It must be left to the discretion of the High Contra,Gting Parties hov/ they \iash to ensure such legal protection, whether this should be done by appointing a guardian ad hoc, by declaring a person incapable of managing his own affairs and appointing a guardian for him, or in any other way. Prom the facts explained in the foregoing paragraphs it will be seen that Danish legislation complies with all the requirements of the Convention in this respect. The * application is therefore manifestly ill-founded. If the application is to be understood to concern merely the refusal of the petition for appointment of a guardian ad hoc, the Dcnish Government submits that it is incompatible with the Convention. Article 6 (l) of the Convention cannot be taken to require the laws of the High Contracting Parties to entitle a person who has no personal access to the lav; courts to have a guardian ad litem appointed for him, if he can have a iP:uardian appointed, to attend to his interests in generalj_ including the bringing of -ictions," II, Whereas the applicrnt's observations in reply, submitted on 21st January, 1968, are of a rather incoherent character and do not contain any argument referring to the above submissions of the respondent Government; whereas in his observations he complains generally of unlawful internment and treatment which he describes Inter alia rs follows: "circumstances dangerous to health, loss of personal liberty, physical/mental assault, etc., \