Legal capacity
II. RELEVANT DOMESTIC LAW A. The Constitution 26. Article 9, paragraph 1, of the Finnish Constitution ( Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides the following: “Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.” B. The Guardianship Services Act 27. Section 1 of the Guardianship Services Act ( laki holhoustoimesta, lagen om förmyndarverksamhet, Act no. 442/1999) provides the following: “The objective of guardianship services is to look after the rights and interests of persons who cannot themselves take care of their financial affairs owing to incompetence, illness, absence or another reason. If the interests of someone in respect of a non-financial affair need to be looked after, this shall be a task for guardianship services in so far as provided below.” 28. Section 8 of the Act sets out the basic provisions concerning the appointment of deputies: “ If an adult, owing to illness, disturbed mental faculties, diminished health or another comparable reason, is incapable of looking after his/her interests or taking care of personal or financial affairs in need of management, a court may appoint a mentor for him/her. Where necessary, a guardianship authority shall file a petition with a district court for the appointment of the mentor. The mentor may be appointed if the person whose interests need to be looked after does not object to the same. If he/she objects to the appointment of the mentor, the appointment may nonetheless be made if, taking into account his/her state and need for a mentor, there is no sufficient reason for the objection. The task of the mentor may be restricted to cover only a given transaction or property. ” 29. Section 14 makes it clear that the appointment of a mentor does not deprive the ward of his or her legal capacity: “ The appointment of a mentor shall not disqualify the ward from administering his/her property or entering into transactions, unless otherwise provided elsewhere in the law. ” 30. Section 29, subsections 1 and 2, of the Act govern the powers of a mentor : “ The mentor shall be competent to represent the ward in transactions pertaining to the ward ’ s property and financial affairs, unless the appointing court has otherwise ordered or unless it has been otherwise provided elsewhere in the law. If the court has so ordered, the mentor shall be competent to represent the ward also in matters pertaining to his/her person, if the ward cannot understand the significance of the matter. However, the mentor shall not have such competence in matters subject to provisions to the contrary elsewhere in the law. ” 31. Under section 42 of the Act, “[a] mentor appointed for an adult shall see to it that the ward is provided with the treatment, care and therapy ... deemed appropriate in view of the ward ’ s need of care and other circumstances, as well as the ward ’ s wishes.” 32. Section 43, subsections 1 and 2, of the Act provide that “[b]efore the mentor makes a decision in a matter falling within his or her remit, he or she shall ask for the opinion of the ward if the matter is deemed important from the ward ’ s point of view and if a hearing can be arranged without considerable inconvenience. However, no hearing shall be necessary if the ward cannot understand the significance of the matter.” 33. According to the travaux préparatoires to the Guardianship Services Act (LaVM 20/1998 vp and HaVL 19/1998 vp), the most central substantive principle of the Act is that of respect for human dignity. This means that any decision on the protection of a person with deficient functional ability ( “ the ward ” ) must be based on the inviolability of human and basic rights and liberties. Preference is to be given to the ward ’ s interests and to the need to safeguard the ward ’ s opportunities to participate in the decision-making concerning him or her. The principle of respect for human dignity is supplemented by the principles of necessity and proportionality. The principle of necessity means that the ward must be permitted to maintain his or her legal competence as extensively as possible, and that that competence can be restricted only to the extent necessary to protect the ward. The principle of proportionality means that the measures to protect the ward must be determined on a case-by-case basis and according to the need for such protection. On the other hand, it may be necessary to restrict the right of self-determination of the ward in certain situations in order to protect his or her own interests. Thus, a balance must be struck between the need for protection and the right of self-determination. C. The Act on the status and rights of social welfare clients 34. A social welfare client ’ s rights and obligations are defined in Chapter 2 of the Act on the status and rights of social welfare clients ( laki sosiaalihuollon asiakkaan asemasta ja oikeuksista, lagen om klientens ställning och rättigheter inom socialvården, Act no. 812/2000). According to section 4 of the Act, a client has a right to receive from the service provider social welfare services of good quality and good non-discriminatory treatment. A client must be served in such a manner that his or her human dignity is not violated and his or her convictions and privacy are respected. When providing social welfare services, the client ’ s wishes, opinions, interests and personal needs must be taken into account, as well as his or her mother tongue and cultural background. 35. Section 5 of the same Act provides that the social welfare authorities must explain the client his or her rights and obligations, the different options available and their effects as well as other factors that may have relevance in his or her matter. This explanation must be given in such a manner that the client sufficiently understands its content and significance. If the social welfare staff does not master the language the client uses, or if the client cannot make him- or herself understood due to a sensory or speech impediment or for some other reason, the staff must take care of interpretation and obtaining of an interpreter. 36. According to section 7 of the same Act, a service, treatment, rehabilitation or a similar plan must be drawn for the client, unless he or she only needs occasional advice or guidance, or if the drawing of such a plan is otherwise manifestly unnecessary. Unless there are evident obstacles, the plan must be drawn in agreement with the client, the client and his or her legal mentor, or with the client and his or her next-of-kin or close relative. The content of the plan and the parties to the matter are subject to specific regulation. 37. Section 8, subsection 1, of the Act provides that, when providing social welfare services, the authorities must primarily take into account the wishes and opinions of the client, and also otherwise respect his or her right to self-determination. 38. According to section 9 of the Act, if an adult client cannot, due to an illness, diminished mental capacity or for other similar reason, participate or contribute to the planning of services or other measures or in their realisation, or to understand the nature of proposed alternatives or the consequences of decisions taken, the client ’ s will must be clarified in cooperation with his or her legal mentor, next-of-kin or other close person. If an adult person is, in a matter pertaining to his or her person or property, in an apparent need of mentoring, relevant authorities must be contacted in order to have a mentor appointed to the client. III. RELEVANT INTERNATIONAL MATERIALS A. United Nations 1. United Nations Convention on the Rights of Persons with disabilities 39. In December 2006 the United Nations Convention on the Rights of Persons with Disabilities (hereinafter “the UNCRPD”) was adopted. It entered into force internationally in May 2008. By the end of September 2016, 44 out of the 47 Council of Europe member States have ratified the Convention. It has also been ratified by the European Union. Finland ratified the Convention in 2016 and it entered into force on 10 June 2016 (the ratification was based on Government Bill HE 284/2014 vp., from which it transpires that it was considered that there was no need or cause to amend the current relevant Finnish legislation). 40. Article 12 of the Convention is entitled “Equal recognition before the law” and provides the following: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person ’ s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person ’ s rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” 41. Article 16 of the Convention is entitled “Freedom from exploitation, violence and abuse” and provides the following: 1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects. 2. States Parties shall also take all appropriate measures to prevent all forms of exploitation, violence and abuse by ensuring, inter alia, appropriate forms of gender- and age-sensitive assistance and support for persons with disabilities and their families and caregivers, including through the provision of information and education on how to avoid, recognise and report instances of exploitation, violence and abuse. States Parties shall ensure that protection services are age-, gender- and disability-sensitive. 3. In order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. 4. States Parties shall take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs. 5. States Parties shall put in place effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.” 2. UN Committee on the Rights of Persons with Disabilities 42. In 2014 the United Nations Committee on the Rights of Persons with Disabilities adopted its General Comment No. 1 concerning Article 12 of the UNCRPD, i.e. equal recognition before the law. 43. The Committee considers that States parties must “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person ’ s autonomy, will and preferences” (§ 26). 44. In this context, the Committee defines substitute decision-making regimes as systems where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective “best interests” of the person concerned, as opposed to being based on the person ’ s own will and preferences (§ 27). 45. The Committee considers that the States parties ’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with Article 12 of the Convention (§ 28). B. Council of Europe 46. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows: Principle 2 – Flexibility in legal response “1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations. ... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” Principle 3 – Maximum reservation of capacity “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” Principle 6 – Proportionality “1. Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...” Principle 13 – Right to be heard in person “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” Principle 14 – Duration review and appeal “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3. There should be adequate rights of appeal.” 47. On 2 February 2005 the Committee of Ministers adopted a Resolution on safeguarding adults and children with disabilities against abuse, ResAP(2005)1, the relevant parts of which read as follows: “I. Definition of abuse 1. In this Resolution abuse is defined as any act, or failure to act, which results in a breach of a vulnerable person ’ s human rights, civil liberties, physical and mental integrity, dignity or general well-being, whether intended or through negligence, including sexual relationships or financial transactions to which the person does not or cannot validly consent, or which are deliberately exploitative. ... 3. These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but one which recognises vulnerability and exploitation. The term ‘ abuse ’ therefore refers to matters across a wide spectrum, which includes criminal acts, breaches of professional ethics, practices falling outside agreed guidelines or seriously inadequate care. As a consequence, measures to prevent and respond to abuse involve a broad range of authorities and actors, including the police, the criminal justice system, the government bodies regulating service provision and professions, advocacy organisations, user networks and patient councils, as well as service providers and planners. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49. The applicant complained under Article 8 of the Convention that, following his decision to move to the North of Finland in order to live with his former foster parents, the powers of his mentor had been enlarged to encompass matters pertaining to his person. His wishes had not been respected and it had been impossible to have his mentor replaced in matters concerning his place of residence and his education, even though he had lost confidence in her. All these measures violated his right to respect for private and family life. 50. Article 8 of the Convention reads as follows: “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.” 51. The Government contested that argument. A. Admissibility 52. The Government raised several preliminary objections in their observations. First of all, they noted that the applicant had lived for one year in Northern Finland but had been back in his home town for more than eight and a half years. He had not raised the idea of moving away from his home town for a long time. There was no guarantee that a change of mentor would have led to a different outcome as far as the applicant ’ s place of residence was concerned since another mentor would also have been obliged to safeguard his best interests. The applicant ’ s allegation was thus purely hypothetical. Therefore the applicant could not, at least any longer, be considered as a victim within the meaning of Article 34 of the Convention. His complaint was thus incompatible ratione materiae with the provisions of the Convention or the Protocols thereto, and should be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. 53. Secondly, the Government argued that the applicant had failed to substantiate any disadvantage he had allegedly suffered as a result of the alleged violation. Therefore this complaint should be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention. 54. Thirdly, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decision to place him back in his home town on 31 July 2007. Nor had he challenged the decisions of 4 November 2008 and 18 June 2009 respectively to appoint a mentor for him. Therefore, this complaint should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention. 55. In any case, the Government maintained that this complaint had been lodged with the Court more than six months after the alleged violations had taken place in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009. It should therefore be declared inadmissible under Article 35 §§ 1 and 4 of the Convention. 56. The applicant maintained that he was still a victim. He had been forced to remain in his home town for the past nine years against his own will. This situation could not be justified by reference to the fact that it had continued for several years. He had repeatedly told his lawyer that he wanted to move and live with his former foster mother since she was like a mother to him. It was true that another mentor might have also refused the applicant permission to move but that was unlikely. The applicant was still a victim as he still had the same mentor. 57. The applicant claimed that it was also evident that he had suffered a significant disadvantage. Nothing could bring back the years of lost shared life with his former foster mother. He should be allowed to live wherever he wanted; this was a matter of basic human rights. There were always welfare services available and persons to look after him wherever he lived. 58. The applicant claimed that it had been impossible for him to exhaust the domestic remedies concerning the decisions referred to in the Government ’ s preliminary objection since he had been without any legal assistance during the years 2007 to 2009. He could not have exhausted those remedies by himself. However, concerning the impugned proceedings, his complaint had been lodged with the Court within the six-month time-limit and was thus admissible. 59. The Court notes that the parties disagree as to whether the applicant can still be regarded as a victim. Although the applicant has lived for more than nine years back in his home town, he has continued to express his wish to live with his former foster mother. Since neither the applicant ’ s mentor nor his position has changed, he must still be regarded as a victim within the meaning of Article 34 of the Convention. Nor does the Court consider that the applicant has, taking into account the subject matter and the circumstances of his complaint, failed to substantiate any significant disadvantage in connection with the present case. 60. Furthermore, the Government argued that the applicant had failed to exhaust the domestic remedies available to him in respect of the decisions of 31 July 2007, 4 November 2008 and 18 June 2009 respectively. However, none of these decisions is the subject of the present application, which only concerns the proceedings initiated by the applicant on 8 April 2011 requesting the District Court to discharge the mentor appointed to him from her duties as far as his place of residence and education were concerned. For the same reason, the Government ’ s objection concerning the six-month time-limit is not relevant since it does not concern the impugned proceedings. The Court notes that the Government have not even argued that the applicant ’ s complaint relating to the impugned proceedings was lodged with the Court too late. 61. Accordingly, the Court rejects the Government ’ s preliminary objections and notes that the applicant ’ s complaint under Article 8 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 62. The applicant pointed out that he had not denied his need for a mentor as he understood that a having one would protect him from serious harm. That did not mean, however, that any authority should be entitled to prevent him from moving to another municipality, because such a move would not bring him into danger. Under the travaux préparatoires to the Guardianship Services Act, primacy was to be given to the ward ’ s interests and to safeguarding his or her opportunities to participate in decision-making. 63. The case concerned the question of the applicant ’ s right to respect for his private and family life and there had been a clear interference with these rights in the present case. This interference had not been necessary in a democratic society since it had been contrary to the ideas of equality and democracy. There had thus been a violation of Article 8 of the Convention. (b) The Government 64. The Government noted that the applicant had not denied his need for a mentor. It was inherent in the nature of the powers given to the mentor that he was not bound by the expressions of will of the ward but had to make all decisions in the interests of the ward. Otherwise such an appointment would be pointless. The partial dismissal of the applicant ’ s mentor would not be decisive for his right to respect for private life or family life. Therefore, no real interference with the applicant ’ s Article 8 rights had taken place. 65. Were the Court to have a different opinion, then any alleged interference would in any case have a basis in Finnish law, in particular under sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and pursue the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The alleged interference was also necessary in a democratic society, taking into account the wide margin of appreciation accorded to the States. There was thus no violation of Article 8 of the Convention. (c) The third party submissions 66. The Mental Disability Advocacy Centre noted that States were required to ensure that the will and preferences of persons with disabilities were respected at all times and could not be overridden or ignored by paternalistic “best interests ” decision-making. The will and preferences expressed by persons with disabilities in respect of their family relationships and their right to choose their place of residence had to be respected and protected as these issues were an inherent part of a person ’ s autonomy, independence, dignity and self-development and central to a person ’ s independent living in a wider community. In order to ensure that persons with disabilities were both protected from violations and that they had the ability to obtain effective remedies when violations occurred, States had a positive obligation to apply stringent and effective safeguards in order to ensure that their rights to exercise legal capacity were “practical and effective” rather than “theoretical and illusory”. 67. The starting point, based on the current international standards, was that the will and preferences of a person with disabilities should take precedence over other considerations when it came to decisions affecting that person. This was clear from the text of the United Nations Convention on the Rights of Persons with Disabilities. Even in jurisdictions with a former reliance on the “ best interests ” approach, there was an emerging trend towards placing more emphasis on the will and preferences of the person. There was a clear move from a “ best-interests ” model to a “ supported decision-making ” approach. 68. The Centre noted that the Court had held on a number of occasions that guardianship systems constituted a very serious interference with a person ’ s Article 8 rights. Article 8 § 2 of the Convention needed to be interpreted in a manner consistent with international standards, taking into account the international recognition of the importance of autonomy and supported decision-making for individuals with disabilities. Rights guaranteed in Article 2 of Protocol No. 4 to the Convention were closely intertwined with those of Article 8. Circumstances in which an interference would be justified were limited and had to be restrictively construed. Persons with disabilities needed to be able to choose where and with whom to live, and had to be given the opportunity to live independently in the community on the basis of their own choice and, on an equal basis with others. 2. The Court ’ s assessment (a) Preliminary remarks 69. The Court observes that the main issue in the present case concerns the refusal of the domestic authorities to allow a partial change in the applicant ’ s mentor arrangements, requested with a view to permitting the applicant to decide for himself where and with whom to live. The Court must consider this matter in the light of the general principles governing interferences by State authorities in the private and family life of individuals guaranteed under Article 8 of the Convention, taking into account the principles governing the State ’ s positive obligations, especially those relating to the protection of particularly vulnerable persons. The Court notes that the applicant has not lodged a complaint under Article 14 of the Convention. However, due to the nature and scope of the applicant ’ s complaint under Article 8, lodged by an intellectually disabled young man, the Court considers that within the particular context of its examination regard must be had to the requirement of non-discrimination, bearing in mind that discriminatory treatment can consist of treating differently persons in relevantly comparable situations without an objective and reasonable justification, or of failing to make, without objective and reasonable justification, differentiations between persons whose situations are not relevantly comparable (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). ( b ) Recapitulation of general principles 70. The Court reiterates that the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. Any interference in the rights protected under this Article must, in order to be permissible, satisfy the conditions set out in paragraph 2 of Article 8 in terms of lawfulness and necessity, including the requirements of legitimate aim and proportionality. 71. However, Article 8 does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013; and Airey v. Ireland, 9 October 1979, § 32, Series A no. 32 ). The principles applicable to assessing a State ’ s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests, the aims in the second paragraph of Article 8 being of a certain relevance (see Hämäläinen v. Finland [GC], no. 37359/09, § 65, ECHR 2014; and Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 165, ECHR 2016 ). The positive obligations may also require measures designed to provide special protection to persons who are in a particularly vulnerable position (see, for example, Paposhvili v. Belgium [GC], no. 41738/10, § 221, ECHR 2016). 72. The applicant ’ s complaint concerns a situation where, in the context of the freedom of choice regarding his place of residence, the applicant was put in a position different from others as, due to his intellectual disability, his right of self-determination was restricted through the powers conferred on his mentor. As regards this aspect of the case, the Court recalls that discrimination means treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007-IV; and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 73. The Court further recalls its findings to the effect that where a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State ’ s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (see Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011 ). The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010 ). In the past, the Court has identified a number of such vulnerable groups that suffered different treatment on account of their sex (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94; and Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280 ‑ B ), sexual orientation (see Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010; and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 90, ECHR 1999 ‑ VI), race or ethnicity (see D.H. and Others, cited above, § 182; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 56, ECHR 2005 ‑ XII), mental faculties (see Alajos Kiss, cited above, § 42; and, mutatis mutandis, Shtukaturov v. Russia, no. 44009/05, § 95, ECHR 2008), or disability (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009 ). 74. Furthermore, the Court reiterates its consistent practice according to which the Court takes into account relevant international instruments and reports in order to interpret the guarantees of the Convention and to establish whether there is a common standard in the field concerned. It is for the Court to decide which international instruments and reports it considers relevant and how much weight to attribute to them (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010; and Demir and Baykara v. Turkey [GC], no. 34503/97, § § 85-86, ECHR 2008). In the present case, the Court considers relevant the United Nations Convention on the Rights of Persons with disabilities (see paragraphs 3 9 - 4 1 above), having also regard to the interpretation given by the UN Committee (see paragraphs 42-45 above), as well as the related recommendations, resolutions and strategy statements adopted by the Council of Europe bodies (see paragraphs 4 6 - 48 above). (c) Whether there was an interference 75. The Court notes that the parties disagree on whether there was an interference with the applicant ’ s rights under Article 8 of the Convention. 76. The Court observes that the present case concerns primarily the private life aspect of Article 8 rather than the family life aspect. Article 8 “secure[s] to the individual a sphere within which he can freely pursue the development and fulfilment of his personality” (see Brüggemann and Scheuten v. Germany, no. 6959/75, Commission ’ s report of 12 July 1977, Decisions and Reports 10, p. 115, § 55; and Shtukaturov, cited above, § 83 ). Article 8 concerns rights of central importance to the individual ’ s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 ‑ III; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI; and, mutatis mutandis, Gillow v. the United Kingdom, 24 November 1986, § 55, Series A no. 109 ). 77. In the present case, a mentor had been appointed to the applicant soon after he had reached the age of 18, i.e. prior to the impugned proceedings (see paragraphs 10 and 13 above), and he has not contested or complained about these decisions, nor does he deny the need for a mentor. The applicant ’ s complaint, in essence, is directed at the fact that by their decisions in the impugned proceedings, the domestic courts refused to change the mentor arrangements as a result of which the applicant was restrained from deciding for himself where and with whom to live. The Court therefore considers that there has been an interference with the applicant ’ s right to respect for his private life under Article 8 of the Convention. (d) Whether the interference was in accordance with the law and pursued a legitimate aim 78. To comply with Article 8 § 2 of the Convention, the interference in issue must have been imposed “in accordance with the law” and pursue a legitimate aim enumerated in Article 8 § 2 of the Convention. 79. The Court notes that, according to the Government, the interference had a basis in Finnish law, in particular in sections 8, 29, 37, 42 and 43 of the Guardianship Services Act, and that it pursued the legitimate aims of protecting the health of the applicant, as well as the rights and freedoms of others. The applicant did not dispute this. 80. The Court agrees with the parties that the interference in question had a legal basis in the provisions of the Guardianship Services Act and considers that the quality of that law is not at issue. Moreover, the legitimate aim of this Act, as expressed in its section 1, is to protect the rights and interests of persons who cannot themselves take care of their financial or non-financial affairs owing to incapacity, illness, absence or another reason. The interference was thus clearly justified by the legitimate aim of protecting the health, interpreted in the broader context of well-being, of the applicant. (e) Whether the interference was necessary in a democratic society 81. Under Article 8, an interference will be considered “necessary in a democratic society” in respect of a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation of whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady, cited above, § 88 ). 82. As regards the legal position underlying the applicant ’ s case, namely that there was a measure in place under which the mentor was required not to abide by the applicant ’ s wishes and instead to give precedence to his best interests, if and where the applicant was deemed unable to understand the significance of a specific matter, the Court recalls that in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. In accordance with the principle of subsidiarity, the quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (see, mutatis mutandis, Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)). 83. A margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions (see Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005 ‑ IX). This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual ’ s effective enjoyment of intimate or key rights (see, for example, Parrillo v. Italy [GC], no. 46470/11, § 169, ECHR 2015; and Dubská and Krejzová, cited above, § 178 ). As noted in paragraph 73 above, the margin is also reduced where a particularly vulnerable group is subjected to differential treatment on grounds that are not specifically linked to relevant individual circumstances. 84. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Connors, cited above, § 83; Buckley, cited above, § 76; and Chapman v. the United Kingdom [GC], no. 27238/95, § 92, ECHR 2001 ‑ I ). 85. Turning to the present case, the Court notes that under Finnish law, the appointment of a mentor does not entail a deprivation or restriction of the legal capacity of the person for whom the mentor is designated (see paragraph 2 9 above). The powers of the mentor to represent the ward cover the latter ’ s property and financial affairs to the extent set out in the appointing court ’ s order, but these powers do not exclude the ward ’ s capacity to act for him - or herself. If, like in the present case, the court has specifically ordered that the mentor ’ s function shall also cover matters pertaining to the ward ’ s person, the mentor is competent to represent the ward in such a matter only where the latter is unable to understand its significance (see paragraph 30 above). In a context such as the present one, the interference with the applicant ’ s freedom to choose where and with whom to live that resulted from the appointment and retention of a mentor for him was therefore solely contingent on the determination that the applicant was unable to understand the significance of that particular issue. This determination in turn depended on the assessment of the applicant ’ s intellectual capacity in conjunction with and in relation to all the aspects of that specific issue. The Court also notes that Finland, having recently ratified the UNCRPD, has done so while expressly considering that there was no need or cause to amend the current legislation in these respects (see Government Bill HE 284/2014 vp., p. 45). 86. The Court further observes that, as regards the impugned proceedings, the domestic courts, having considered expert testimony and having heard the applicant in person as well as several witnesses, concluded that the applicant was clearly unable to understand the significance of the underlying issue of the proceedings, namely the plan move to a remote place in order to live with his former foster parents. In reaching this conclusion, the courts took into account the evidence relating to the applicant ’ s intellectual capacity as well as the evidence relating to the applicant ’ s present and prospective circumstances in the case of a move. In this context, the domestic courts also expressed some doubts as to whether the plan actually represented the applicant ’ s own genuine will. 87. The Court recalls, as it has held in various contexts, that where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among others, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 179-80, 24 March 2011). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts ( ibid ). 88. In the present case, the Court sees no reason to call into question the factual findings of the domestic courts. In this regard, the Court takes note, in particular, of the fact that according to the expert evidence, the applicant ’ s decision-making skills had been assessed as corresponding to those of a child between six and nine years of age. The Court also observes that it is apparent from the factual circumstances and the findings of the domestic courts that, apart from the fact that the former foster parents were well known and close to the applicant, the plan to move to a remote and isolated place in the North of Finland would have entailed a radical change in the applicant ’ s living conditions (see paragraph 17 above). 89. In the light of the above mentioned findings, the Court is satisfied that the impugned decision was taken in the context of a mentor arrangement that had been based on, and tailored to, the specific individual circumstances of the applicant, and that the impugned decision was reached on the basis of a concrete and careful consideration of all the relevant aspects of the particular situation. In essence, the decision was not based on a qualification of the applicant as a person with a disability. Instead, the decision was based on the finding that, in this particular case, the disability was of a kind that, in terms of its effects on the applicant ’ s cognitive skills, rendered the applicant unable to adequately understand the significance and the implications of the specific decision he wished to take, and that therefore, the applicant ’ s well-being and interests required that the mentor arrangement be maintained. 90. The Court is mindful of the need for the domestic authorities to reach, in each particular case, a balance between the respect for the dignity and self-determination of the individual and the need to protect the individual and safeguard his or her interests, especially under circumstances where his or her individual qualities or situation place the person in a particularly vulnerable position. The Court considers that a proper balance was struck in the present case: there were effective safeguards in the domestic proceedings to prevent abuse, as required by the standards of international human rights law, ensuring that the applicant ’ s rights, will and preferences were taken into account. The applicant was involved at all stages of the proceedings: he was heard in person and he could put forward his wishes. The interference was proportional and tailored to the applicant ’ s circumstances, and was subject to review by competent, independent and impartial domestic courts. The measure taken was also consonant with the legitimate aim of protecting the applicant ’ s health, in a broader sense of his well-being. 91. For the above mentioned reasons, the Court considers that, in the light of the findings of the domestic courts in this particular case, the impugned decision was based on relevant and sufficient reasons and that the refusal to make changes in the mentor arrangements concerning the applicant was not disproportionate to the legitimate aim pursued. 92. Consequently, there has been no violation of Article 8 in the present case. II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 4 TO THE CONVENTION 93. Article 2 of Protocol No. 4 to the Convention reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 94. In support of his complaint, the applicant also invoked the provisions of Article 2 of Protocol No. 4 to the Convention. In view of the content of that Article as cited above, in particular the fact that paragraph 3 of the Article is closely aligned with paragraph 2 of Article 8, and taking into account the conclusions reached under Article 8 of the Convention above, the Court does not consider that an examination of the applicant ’ s complaint can lead to different findings when reviewed under Article 2 of Protocol No. 4. There has therefore been no violation of that Article, either.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Finnish courts’ refusal to replace the mentor, thus preventing him from living in the place of his choice, was justified. The Court considered in particular that the Finnish courts’ decision to refuse to make changes in the mentor arrangements, reached following a concrete and careful consideration of the applicant’s situation, had essentially taken into account his inability to understand what was at stake if he moved, namely that it would involve a radical change in his living conditions. Such a decision, taken in the context of protecting the applicant’s health and well-being, had not therefore been disproportionate. Moreover, the applicant had been involved at all stages of the proceedings and his rights, will and preferences had been taken into account by competent, independent and impartial domestic courts. The Court also held that there had been no violation of Article 2 (freedom of movement) of Protocol No. 4 to the Convention in the present case.