CASE OF SALONTAJI-DROBNJAK v. SERBIA
(Application no. 36500/05)
13 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Salontaji-Drobnjak v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 22 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
B. The first set of criminal proceedings and other related facts
C. The proceedings for the assessment of the applicant's legal capacity and other related facts
“Considering the fact that [the applicant] is involved in many legal cases and that the number of these cases ... is sharply on the increase, it is in the court's interest that his decision-making ability be examined ... [as already] ... pointed out by the District Court in Novi Sad and the Supreme Court of Serbia ...”
D. The second set of criminal proceedings
“It is evident that at the time when ... [the criminal act in question was allegedly committed by the applicant] ... he had had distorted ideas ... [about] ... the court ... [as well as] ... the judges and other ... [persons] ... involved in the proceedings ... Taking into account ... [the applicant's] ... personality and his ... disorder ... we consider that his capacity to comprehend the meaning of his actions, as well as to control them, was significantly reduced ... [but not excluded] ...”
E. The attempted restoration of the applicant's legal capacity and other related facts
II. RELEVANT DOMESTIC LAW
A. General Criminal Code (Osnovni krivični zakon, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 46/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, as well as the Official Gazette of the Republic of Serbia – OG RS – no. 39/03)
“1. A perpetrator [was] mentally incompetent if, at the time of commission of the offence in question, he was unable to understand the significance of his own actions or control his behaviour due to a permanent or temporary mental illness, a temporary mental disorder or mental retardation ...
2. A perpetrator ... whose ability to understand the significance of his own actions or control his behaviour was substantially diminished due to any of the conditions referred in paragraph 1 of this Article ... may be punished with more leniency ...”
B. Marriage and Family Relations Act (Zakon o braku i porodičnim odnosima; published in OG RS nos. 22/80, 11/88, 22/93, 25/93, 35/94, 46/95 and 29/01)
C. Family Act (Porodični zakon; published in OG RS no. 18/05)
D. Non-contentious Proceedings Act (Zakon o vanparničnom postupku; published in OG RS nos. 25/82, 48/88, 46/95 and 18/05)
E. Civil Procedure Act 1977 (Zakon o parničnom postupku; published in OG SFRY nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91, as well as OG FRY nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02)
“A party with full legal capacity may personally undertake all acts in the proceedings (litigation capacity).
A person of legal age whose legal capacity has been partially restricted ... [shall be able to litigate] ... within the limits of his or her [existing] legal capacity.
“Throughout the proceedings the [civil] court shall ex officio monitor whether the person appearing as a party may [indeed] be a party to the proceedings, as well as whether he or she has the [necessary] litigation capacity ...”
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.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ...”
A. As regards the applicant's complaint about the fairness of the proceedings concerning the assessment of his legal capacity
1. The parties' arguments
2. The Court's assessment
B. As regards the applicant's complaint that he has been denied access to a court concerning his request to have his legal capacity fully restored
1. The parties' arguments
2. The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life ...
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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties' arguments
B. The Court's assessment
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following sums, to be converted into Serbian dinars at the rate applicable on the date of settlement:
(i) EUR 12,000 (twelve thousand euros) in respect of the non-pecuniary damage suffered, plus any tax that may be chargeable,
(ii) EUR 3,000 (three thousand euros) for costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 13 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Deputy Registrar President