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X AND Y v. CROATIA - 5193/09 [2011] ECHR 1835 (3 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1835.html
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[2011] ECHR 1835
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FIRST
SECTION
CASE OF
X AND Y v. CROATIA
(Application
no. 5193/09)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment ill 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 X and Y v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 5193/09) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Croatian nationals, Ms X and Ms Y (“the
applicants”), on 15 January 2009. The President of the Chamber
granted the applicants’ request not to have their names
disclosed (Rule 47 § 3 of the Rules of Court).
The
applicants were represented by Ms Lovorka Kušan and Mr Zlatko
Kušan, lawyers practising in Ivanić Grad. The Croatian
Government (“the Government”) were represented by their
Agent, Ms Š. StaZnik.
On
8 June 2010 the President of the First Section decided to give notice
of the application to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1923 and 1948 respectively and live in I.
The
applicants are mother and daughter. Until 17 July 2006 they lived
together in a house in B. owned by the first applicant.
A. Placement of the first applicant in the Caritas Home
in I.
On
an unspecified date in 2006 the I. Social Welfare Centre (Centar
za socijalnu skrb I. – the “Centre”)
instituted proceedings with a view to establishing the first
applicant’s right to care outside her family (pravo na skrb
izvan obitelji). On 6 July 2006 the Centre appointed its employee
Z.J. as the first applicant’s special guardian (poseban
skrbinik) in these proceedings on the ground that the first
applicant, owing to old age and illness, was unable to undertake acts
in these proceedings on her own. It was also stated that her daughter
Y, the second applicant, could not adequately care for the first
applicant, since she suffered from muscular dystrophy. This decision
was served on the second applicant on 12 July 2006.
On
11 July 2006 the second applicant submitted a statement to the
Centre, stating that she was unable to contribute towards the
expenses arising from her mother’s care.
An
official note drawn up by Z.J. on 16 July 2006 indicates that the
second applicant urged that her mother be placed in a home and had
entered into a private agreement with the I. Caritas Home for elderly
and dependent persons (“the Caritas Home”) in order to
place her mother there at her own expense until such time as the
decision in the above-mentioned proceedings had been adopted. The
first applicant was moved to the Caritas Home. She was placed in a
room with three other persons.
The
agreement, dated 17 July 2006, stipulated that the second applicant
was to bear the costs of her mother’s accommodation in the
Caritas Home, which in turn would provide the first applicant with
accommodation and food, medical care and care for her social needs.
In order to stay close to her mother and to be able to visit her
frequently, the second applicant moved to her own flat in I.
A
medical report drawn up on 19 July 2006 indicates that the first
applicant was an elderly and disabled person, suffering from
psycho-organic changes and dementia, and required the constant
(full-day) help and care of another person.
On
31 August 2006 the Centre established the first applicant’s
right to permanent placement in the Caritas Home from 1 September
2006. She was to cover the costs of her accommodation up to the
amount of her pension, and the difference between that amount and the
full price was to be paid by the Ministry of Health. The first
applicant’s pension was to be paid directly into the Centre’s
bank account.
On
23 November 2006 Z.J. ceased to be the first applicant’s
special guardian.
On
18 February 2008 the second applicant asked the Caritas Home to allow
her mother single-room occupancy on health grounds. She offered to
pay the difference between the costs of such accommodation and her
mother’s pension. The Caritas Home informed her that if her
mother was placed in a single room she would have to pay the full
cost.
Since
the first applicant was a person in care of the State, Z.J., as the
social worker from the Social Welfare Centre with responsibility for
the first applicant, drew up a report on 28 February 2008, in which
she stated that the first applicant was disoriented and dependent on
help from others and that it was impossible to establish contact with
her. She suggested that proceedings be instituted with a view to
divesting the first applicant of legal capacity, because she was
unable to care for her rights and interests. She also stated that the
second applicant often behaved strangely, in the sense that she
showed constant dissatisfaction and had locked herself in her home,
refusing food.
On
3 March 2008 the second applicant again asked the Home to allow her
mother single-room occupancy on health grounds, stating that her
mother needed calm and rest. On 10 March 2008 the Caritas Home
informed the second applicant that her mother had been provided with
adequate health and other care and that they were waiting for a reply
from the Ministry of Health and Social Care on payment for a
single-occupancy room.
On
25 March 2008 the second applicant urged the transfer of her mother
to a single-occupancy room. She also asked the Home to provide her
with information on the amount of her mother’s pension in order
to pay the difference in the cost of single-room occupancy.
On
31 March 2008 the Head Nurse of the Caritas Home drew up an official
note stating that over the previous year the second applicant had
frequently expressed discontent with regard to the care provided to
her mother by nurses, physiotherapist and physicians at the Home;
this had disrupted the work of the personnel. She had held an
interview with the second applicant, who denied these allegations and
was very pleasant in communication with the Head Nurse during the
interview. The Head Nurse further stated that the second applicant
had been in the habit of visiting her mother twice a day, in the
morning and afternoon, staying for a few hours. Over the previous two
weeks she had been coming to the front of the Home before the
reception’s opening hours and had stayed until the end of
working hours; she had stopped communicating with the Head Nurse, but
continued to intervene in the dynamics of her mother’s health
care and to insult the other patients.
In
her letter of 1 April 2008 the Directress of the Caritas Home
informed the Centre of the above. In her letter of 5 April 2008 the
second applicant denied these allegations and reiterated that, owing
to her mother’s health, it was necessary to place her in a
single-occupancy room.
On
8 April 2008 the Caritas Home informed the second applicant that she
was free to seek her mother’s placement in a single-occupancy
room at her own expense and that the cost of such accommodation was
4,680 Croatian kuna (HRK) per month. On 14 April 2008 the Caritas
Home further explained that, in order to place her mother in a
single-occupancy room she would first have to terminate her mother’s
accommodation on the basis of a decision adopted by the Centre and
then apply in writing for her mother’s placement in the Home on
the basis of a private contract.
On
10 April 2008 the second applicant again sought to have her mother
placed in a single room.
On
18 April 2008 the Centre informed the second applicant that the price
of accommodation in the Caritas Home for persons placed there on the
basis of a decision by a social welfare centre was HRK 3,000 per
month. This amount had been partly covered by her mother’s
pension in the monthly amount of HRK 2,237.80.
On
22 April 2008 the Centre invited the second applicant to come to the
Centre on 5 May 2008 in order to give a statement in connection with
appointing a guardian for her mother in the proceedings to divest her
of legal capacity. On 28 April 2008 the second applicant asked the
Centre that she be appointed as her mother’s guardian in these
proceedings.
On
21 May 2008, in a letter to the V. Diocese, the owner of the Caritas
Home, the second applicant sought help in placing her mother in a
single room. There was no reply.
On
27 May 2008 the Caritas Home limited visits to multi-occupancy rooms
in the Intensive Care Ward to one hour a day. Visits were allowed in
the common premises between 9 a.m. and 7 p.m. in winter and between
9 a.m. and 8 p.m. in summer.
It
appears that the second applicant did not thereafter pursue the
question of placing her mother in a single room. In 2009 the second
applicant submitted that she no longer had problems with the Caritas
Home’s management and that she was peacefully spending time
with her mother.
B. Medical reports in respect of the first applicant
The
relevant part of a discharge letter of 28 February 2002 issued by the
VaraZdin Hospital reads:
“The patient was hospitalised at the neurological
ward of the V. Hospital owing to a cerebral-vascular accident, brain
atrophy and psycho-organic changes. During her stay respiratory
difficulties occurred and continuation of treatment in our
institution was indicated.
...
On admission she was not febrile, was able to move
about, communication was possible (kontaktibilna), she was
eupneic ..., disoriented in time.
...
Conclusion:
The patient was hospitalised for exacerbation of chronic
bronchitis, post-CVA [cerebral vascular accident] condition and
psycho-organic changes. During her stay she was treated with Irumed,
Andol and Prazine. Clinical status has improved and she is discharged
with a recommendation to continue therapy with Irumed, Andol and
Prazine. She is in need of care and the aid of others.”
The
relevant part of the medical report of 13 December 2005 reads:
“The patient has been unable to control her
sphincter for three years; she is confused and moves about with
difficulty. Today she got lost and became even more confused.
Neurological status: psycho-organic syndrome, free neck
[movement], no focal neurological excess, she walks with assistance
...”
The
relevant part of a medical report of 19 July 2006 reads:
“The patient is eighty-three years old and in 2000
she suffered an (ischemic) brain stroke. She subsequently developed
psycho-organic syndrome, high blood pressure and incontinence. The
medical documentation shows that she underwent cataract surgery. In
2002 she was hospitalised in a neurological ward for CVA and was then
transferred to the Special Hospital for Lung Diseases in K. ...
Examination reveals that she moves about with difficulty
but does walk slowly with aid. She answers basic and short questions,
but is disoriented in time and space and towards persons. ...
Eupneic...
Since the patient is an elderly person who moves about
with difficulty, has undergone psycho-organically changes [and]
suffers from dementia, I consider that she needs the constant care
and aid of others.”
C. Proceedings to divest the first applicant of legal
capacity
On
17 April 2008 D.P.D., the first applicant’s niece, was heard in
the Centre with a view to appointing her as the first applicant’s
guardian.
On
16 June 2008 the Centre appointed D.P.D. as the first applicant’s
guardian. On the same day the Centre asked the I. Municipal Court to
institute proceedings with a view to having the first applicant
divested of her legal capacity. The relevant part of the Centre’s
submission reads:
“Owing to a brain stroke and brain atrophy the
respondent has suffered psycho-organic changes, is incapable of
independent life and entirely dependent on the help and care of
others. In view of the above, this Centre recognised her right to
care outside her family and she was accommodated in the Caritas Home
for elderly and dependent persons ... in I. The level of the
respondent’s social and intellectual functioning is
significantly reduced; no communication is possible, she is
disoriented and suffers from dementia. In order to protect her
[person], her rights and interests it appears reasonable to give her
protection through the institution of guardianship.
In view of the above, the Centre considers that the
respondent is incapable of caring for her own needs, rights and
interests and that the conditions for divesting her entirely of her
legal capacity under section 159 of the Family Act have been met.”
Z.J.’s
opinion of 28 February 2008 and medical documentation in respect of
the first applicant was enclosed.
In
a letter to the Centre of 17 June 2008 the second applicant objected
that the decision appointing D.P.D. as her mother’s guardian
had not been served either on her or her mother. She also objected to
statements in the report drawn up by Z.J. on 28 February 2008,
enclosed in the Municipal Court’s case file, and in particular
to the statements concerning her ability to be her mother’s
guardian and alleging that her behaviour had been strange and that
she had locked herself in her house and refused food. In particular,
she questioned how Z.J. could have established these facts, since she
lived alone. She further stressed that she had moved to I. only to be
close to her mother and that she had been caring for her mother,
while D.P.D. lived in Z. and only occasionally contacted the first
applicant by telephone. The first applicant considered that she was
the most appropriate person to be appointed as her mother’s
guardian.
A
note from the Caritas Home of 20 June 2008 confirmed that the first
applicant had received the decision of 16 June 2008 and had confirmed
that fact with her fingerprint.
On
24 June 2008 the second applicant informed the Centre that she
objected to the institution of the above court proceedings.
At
a hearing held before the I. Municipal Court on 10 July 2008 in the
presence of the Centre’s representative and the first
applicant’s guardian D.P.D., a psychiatric report on the first
applicant’s mental state was commissioned. D.P.D. stated that
Z.J.’s allegations in her report on the first applicant were
true and added that the first applicant was bed-ridden, disoriented
and completely incapable of autonomous life. She depended on the
constant help of others and was unable to feed herself. Her condition
was not improving but was expected to deteriorate. She was able to
use only one hand, could move it and put food into her mouth, but
even that hand was not functional to the extent that she could
properly feed herself. D.P.D. suggested that a medical examination of
the first applicant be carried out.
The
psychiatrist submitted his report on the basis of an examination of
the first applicant on 18 July 2008 and medical documentation from
2002. The relevant part of the report reads:
“For the purposes of this examination the patient
was seen by a psychiatrist on 18 July 2008 in the Home where she
is placed.
I found her lying awake in her bed. It is not possible
to establish meaningful verbal contact because she is unable to talk
clearly. To my question about her name and where she is from, she
incomprehensibly repeats the same word. From her mimics and gestures
it is possible to conclude that the patient has preserved a basic
idea of herself.
Clinical findings on her mental status:
General impression: she lies in the typical “embryo”
posture – on her side with legs bent in to the knees and drawn
towards the chest, the upper body and head bent forward, so that her
chin almost touches her knees (posture typical for persons with
serious brain damage).
Impression: a gravely ill person, completely dependent
on the help of others, bed-ridden.
Contact: it is obvious that she can hear and understands
something, but she is not able to form comprehensible words. It is to
be expected that she [has] only a basic idea of herself. During the
interview she looks aside with a dull, expressionless look or closes
her eyes. When asked something loudly and directly she pays only
brief attention to the speaker.
Occasionally she mumbles incomprehensibly. General
facial expression reveals a mentally impaired person: empty stare and
empty facial mimic.
Only basic orientation towards self is preserved.
Thought functions completely reduced – no thought
process. Movement-impaired – central psychomotor damage
(brain). No coordination of hands, incapable of feeding herself.
Comprehension, understanding and ability to connect
causes and consequences of events are completely damaged –
non-existent. Gravely reduced overall mental capacity, with only
basic idea of herself preserved. She has no idea of relations between
persons or of her own interests.
Disabled to the extent that she is dependent on help of
another person for mere survival.
...
Conclusion:
Severe impairment of global cognitive ability, with
emphasis on memory, thought process, ability to develop new ideas and
make conclusions and decisions; impaired motor functions, to the
extent that it renders the person so incapable that she is dependent
for her survival on the care of another person.
Prognosis unfavourable.
Incapable of caring for herself and her rights and
interests.
On medical grounds protection of the person’s
interest under guardianship is indispensable; the court is
recommended to divest her entirely of legal capacity.”
On
14 August 2008 the first applicant submitted a power of attorney,
authorising the second applicant to represent her in the proceedings.
She signed the letter in her handwriting.
The
second applicant objected to the psychiatric report in her written
submission to the I. Municipal Court, arguing that it was based on
five year old medical documentation and a twenty-minute
observation by the psychiatrist and that the conclusions of the
report were therefore superficial, imprecise and untrue. She
maintained that the first applicant could pronounce words, had good
hand movement and was able to sit and dress with help. She also
claimed that the psychiatrist saw the first applicant in the
afternoon, when the first applicant was tired and drowsy, under the
influence of medication and alarmed by the presence of an unknown
person and of the Head Nurse of the Home. She also objected to the
statement given by D.P.D., and argued that D.P.D. had not even seen
the first applicant.
The
second applicant also requested the withdrawal of the judge
conducting the proceedings, alleging bias.
On
21 August 2008 the request for withdrawal was declared inadmissible
by the President of the I. Municipal Court because the second
applicant was not a party to the proceedings. At a hearing held the
same day in that court D.P.D. stated that she had no objections to
the psychiatric report but noted that there was no medical
documentation in respect of the first applicant more recent than
2002.
On
the same day the I. Municipal Court divested the first applicant of
legal capacity. The decision states that the persons present at the
hearing were the Centre’s representative lawyer M.G., and the
first applicant’s special guardian D.P.D. The relevant part of
the decision reads:
“The requesting party lodged a request to divest
the respondent of her legal capacity, alleging that the respondent,
owing to psycho-organic changes caused by a brain stroke and brain
atrophy, was incapable of autonomous life. She was entirely dependent
on the help and care of others. By a decision of the requesting party
her right to care outside her family had been established and she was
placed in the Caritas Home for elderly and dependent persons ... in
I. Her social and intellectual functioning was significantly reduced,
it was not possible to establish contact with her, and she was
disoriented and demented. She was in need of protection through the
institution of guardianship because she was incapable of caring for
her own needs, rights and interests, and therefore all requirements
under section 159 of the Family Act for divesting her of legal
capacity had been met.
The respondent’s guardian ad litem replied
that the allegations in the request were true and added that the
respondent was bedridden, disoriented and completely incapable of
autonomous life. She depended on the constant help of others and was
unable to feed herself. Her condition was not improving but was
expected to deteriorate. She was able to use only one hand, [and]
could move it and put food into her mouth; however, even that hand
was not functional to the extent that she could properly feed
herself. In view of the respondent’s old age, the guardian
suggested that a medical examination of the respondent be carried
out. She did not oppose the requesting party’s application.
This court consulted the opinion of a social worker
(page 2), a birth certificate (page 3), medical records (pages
4-5), a decision of the I. Social Welfare Centre of 26 June 2008
(page 6) and a report by medical expert Š.D., doctor in
psychiatry, of 18 July 2008 (pages 21-24).
On the basis of the above evidence, this court has found
the requesting party’s application founded and has accepted it.
This court has established that the respondent is an
eighty-three-year-old who suffered a brain stroke, after which she
developed psycho-organic syndrome, high blood pressure and
incontinence. In 2002 she underwent cataract surgery and was
hospitalised at the neurological ward for a CVA [cerebral vascular
accident]; she was subsequently placed in the Special Hospital for
Lung Diseases in K. on account of exacerbated COLD [chronic
obstructive lung disease]. Furthermore, this court has established
that the respondent’s entire mental capacity, in particular as
regards her memory, thought processes, ability to form new ideas and
reach conclusions and decisions, together with her psychomotor
functions, is damaged to such an extent that it renders the
respondent incapable, so that she is dependent on the help of another
person for mere survival. She is incapable of caring for herself, her
rights and interests and protecting them, and therefore it is
necessary to protect the respondent by means of social care, since
the prognosis is unfavourable.
This court accepted the report and opinion of the
medical expert Š.D., doctor in psychiatry, to which the
parties made no objections, because the report is detailed, objective
and drawn up in accordance with the rules of the profession.”
This
decision was not served on the applicants.
On
22 August 2008 the first applicant asked the I. Municipal Court that
the decision of 21 August 2008 be served on the second
applicant. She signed the authorisation with her full name. There was
no reply.
The
first applicant is today still accommodated in the Caritas Home.
D. Medical reports in respect of the second applicant
The
relevant part of a discharge letter of 20 December 2006, issued by
the psychiatric ward of the V. Hospital, reads:
“Brought for treatment by ambulance... there is
information that her behaviour has altered since July when her
mother, with whom she had lived, was accommodated in a Caritas Home
in I.
She subsequently locked herself in the house [and]
isolated herself from everyone. The relatives who visited her noticed
that she had weakened, refused communication and food; she lost a lot
of weight, neglected personal hygiene.
On admission she appeared as a chronic mental patient,
[was] skinny, manic conduct, affectively inadequate... she verbalised
fear and the feeling of being threatened, was suspicious and
complained of hallucinatory experience.
Treatment
She has been treated in a closed psychiatric ward with
classical pharmacotherapy (Moditen together with Normabel).
By the second day following admission and therapy the
patient started to take normal meals (first light food and then a
regular diet).
She has visibly recovered physically. The
psychopathology for which she was hospitalised has completely ceased
– she has no fears, no psychosis towards her environment, is
joyful about every visit and when information has been sought about
her. She has good introspection with regard to her physical weakness.
She is willing to talk and accept solutions for her life.
Optimistic prognosis for further treatment is based on
the fact that her first hospitalisation in 1994, which involved
deterioration of her mental health and the same clinical picture, was
provoked by an external factor, as in the current episode, and in the
meantime she has been in good remission, and functioned
satisfactorily in society.”
E. Proceedings for divesting the second applicant of
legal capacity
On
17 September 2008 the Centre held a hearing with a view of appointing
a guardian for the second applicant, since they intended to institute
court proceedings divesting her of legal capacity as well. The second
applicant objected to the institution of these proceedings and stated
that she had not been informed of the grounds for their institution.
On
18 September 2008 the Centre appointed a lawyer, N.C., as guardian ad
litem for the second applicant in the forthcoming proceedings to
divest her too of the capacity to act. The relevant part of the
decision reads:
“... the case-file of this Centre shows that ...
it instituted proceedings to divest Y of legal capacity in a
competent court because owing to her illness and altered personality,
she is not able to care for her personal needs, rights and interests.
...
Y stated that she had no objections with regard to the
person [proposed] as her legal representative, but that she
considered it entirely unnecessary to appoint a guardian for her and
to institute proceedings before a court to divest her of legal
capacity.”
On
the same day the Centre asked the I. Municipal Court to institute
proceedings with a view to having the second applicant divested of
her legal capacity. The relevant part of the Centre’s
submission reads:
“From early youth the respondent has suffered from
muscular dystrophy, which makes it difficult for her to move about.
Since two years ago, when her mother X was placed in the Home for
elderly and dependent persons... the respondent has started to behave
in a strange manner and once locked herself in her family house in
B., refusing food and any contact with her doctor and worried
neighbours. ... the medical documentation shows that the respondent
was treated in the psychiatric ward of the V. General Hospital in
1994 with a diagnosis of reactive depressive psychosis. There is no
evidence that the respondent continued with medical checkups
following a check-up in July 1994, when she had received therapy;
this shows that she does not see the need to take care of her own
health.
The attitude of the respondent towards her mother X ...
is possessive. At the beginning the Home’s administration
tolerated her whole-day visits. As a result of constant objections
concerning the Home’s employees as regards care [to her mother]
and verbal and sometimes physical aggression, and also the fact that
she disturbed other patients, necessitating a police intervention,
her visits have been restricted ...
The respondent has unrealistic demands concerning her
mother (she constantly seeks her placement in a single room, not
accepting the explanations given as to why that is not possible).
In her contacts with the employees of the institutions
involved in the proceedings conducted for the protection of her own
rights and interests and those of her mother, she does not see the
purpose [of these proceedings], viewing them as planned personal
attacks. She has a very low tolerance level, is unable to preserve
self-control [and] insults and denigrates the employees.
Also, the fact that she often changes her legal
representatives, who refuse to provide further services after a short
while, shows the respondent’s increasing problem in
establishing and maintaining any kind of social relations in everyday
life.
In view of the above, the Centre considers that the
respondent is not capable of caring for her personal needs, rights
and interests ...”
The
second applicant lodged an appeal against the decision of
18 September 2008 to appoint a special guardian for her, arguing
that she was capable of taking care of herself and that there was no
need to appoint a guardian for her.
On
28 October 2008 the second applicant also filed her submissions
opposing the request to divest her of legal capacity lodged by the
Centre. She argued that it was not correct that she had been
suffering from muscular dystrophy since early youth, but that she had
had a road accident in 1991, since when she had been using a walking
stick. She denied the Centre’s allegations as regards her
behaviour over the previous two years. She stressed that she had been
taking care of her elderly mother, had placed her in the Caritas Home
at her own initiative and then continued to visit her regularly; she
also bought a wheelchair for her mother, had been taking her out in
the Home’s courtyard, had succeeded in teaching her again how
to feed herself and to hold a bottle with water, and provided her
with all necessary care. She had also been caring for her own needs,
preparing her meals or paying a maid to prepare her meals and clean
her flat. She had also been regularly seeing her doctor. In 1994 she
had retired and had been hospitalised in a psychiatric ward of the V.
Hospital. She had not subsequently seen a psychiatrist since there
had been no need and her doctor had not recommended it. She had had
regular contacts with others; she was a member of two libraries, had
been reading a lot, growing flowers, doing handcrafts and going on
short trips. For the purposes of these proceedings she had engaged
the services of a lawyer, which showed her ability to care for her
interests.
On
2 June 2009 the Ministry of Health and Social Welfare quashed the
decision of 18 September 2008 on the ground that the same person
could not be a legal representative and a special guardian.
On
27 July 2009 the Centre issued a fresh decision appointing lawyer
I.R. as Y.’s special guardian. The relevant part of the
decision reads:
“On 18 September 2008 ... N.C. was appointed as a
special guardian to Y. in order to represent her in the proceedings
with a view of divesting her of legal capacity ... The guardian was
also authorised to ... represent her in all personal matters and
matters concerning her property, to manage her assets and to take
proper care of her person, rights, obligations and wellbeing.
...
The Ministry also referred to a wide range of powers
given to the special guardian, calling into question the need for
such powers.
In this connection and on the basis of the evidence
presented ... this Centre assessed that the special guardian would
properly protect her person, rights and interests, with understanding
of the purpose of the proceedings to divest her of legal capacity and
the protection provided through the institution of guardianship. It
therefore gave [N.C.] the authority to care for [Y.’s] assets,
because this Centre is doubtful as to whether Y. is capable of caring
for her rights and interests, including her property rights, and has
therefore instituted proceedings to divest her of legal capacity, the
final decision on which is to be taken by a court.
... N.C. will continue to represent Y in these
proceedings on the basis of a power of attorney [given to her by Y]
...
...I.R. is appointed as special guardian for Y ...”
On
7 August 2009 the second applicant lodged an appeal against the above
decision, arguing that there was no need to appoint a guardian for
her or to institute proceedings to divest her of legal capacity
because she had been adequately protecting her needs, rights and
interests. She explained that she had been caring for her material
needs, paying all bills, preparing her meals and maintaining social
contacts, as well as regularly seeing her doctor, attending cultural
events and visiting her mother. Her way of life did not show in any
respect that there was a need to place her under guardianship. It
appears that no decision has been adopted upon this appeal.
On
30 June 2009 a psychiatric report concerning a telephone interview
with the second applicant was submitted to the I. Municipal Court.
The relevant part of the report reads:
“The respondent is sixty years old. She has been
receiving an invalidity pension for some fifteen years. She lives
alone in her own flat. She is unmarried [and] has no children. Her
physical health is impaired – and that is about all that we can
establish without doubt with regard to her physical condition. Owing
to the lack of cooperation on the part of the respondent, we have no
medical records ...
At the outset it should be pointed out that the
respondent refused to cooperate. During an interview (organised with
great difficulty!) she held a monologue for a whole hour, in which
she referred to all the injustice done to her and her mother. She
ignored any attempt by the doctor to conduct a dialogue, let alone a
structured one. The respondent’s biography or her present life
was not addressed. The only thing that happened was her raised voice,
rudeness, hostility, a clearly paranoid attitude towards her
surroundings, the feeling of being persecuted and a need to defend
herself from the institutions that had been interfering with her
life, ill-treating her, etc. The expert’s expectation that
during a home visit, on her own territory, the respondent would
participate in the interview in a more cooperative manner was not
met. More than ten telephone calls were not answered. The attempts to
find her at her home address were also unsuccessful. After a few
weeks she made a telephone call - shouting, accusing, insulting and
attacking – in which she did not want to hear any answers.
On the basis of all this information and the expert’s
personal experience with the respondent, it is easy to conclude that
she is a person of a very bizarre mental structure. She suffers from
serious emotional disharmony and grave dysphoria and a flood of
uncontrolled affective outbursts. In the background, a general
paranoid attitude towards her entire surroundings is perceptible,
with a fixation on institutions. She is ruled by a feeling that she
is exposed to injustice, and to ill-treatment, abuse and systematic
denial of her rights. She has succeeded in developing a strong hatred
for the employees of the I. Social Welfare Centre and that whole
institution. The same is true (maybe even more so) about the Home
where her mother is placed. She is argumentative. Her behaviour is
often disorganised and chaotic. She has deeply estranged herself from
everyone, chased away all good-willed people, broken all threads of
cooperation. She is entirely uncooperative and is prone to describe
everyone who dares to say or do anything she dislikes as an ignorant
person, an adversary, [or] even an enemy.
In all that ‘rashomon’ the respondent does
not even make an attempt to control herself, does not try to hide her
hostility, does not try even for a second to reflect and analyse her
own contribution to the situation; she rejects any suggestion that
there had been any wrong on her part. She is entirely uncritical and
has no introspection; she automatically seeks the guilty parties in
her surroundings. She opposes any suggestion that she address
problems regarding her own person or her behaviour and threatens [to
appeal to] a higher instance.
In her entire mental world there is a lot of system,
that is, logical concepts – and this would all be fine if that
logic were not based on an entirely false, at times even psychotic,
basis.
... her entire mental world is of a paranoid nature. In
the best case we are speaking of a paranoid personality disorder,
that is, the condition of personal derangement in which feelings of
insecurity, being exploited and having suffered damage prevail.
Without restrictions and with no basis she seeks enemies in her
surroundings, people who are against her, who want to exploit her or
injure her. She has difficulty in trusting anyone, if that is
possible at all. She is mistrustful, negative towards others who are
or could become traitors; she sees hidden meaning in everything. Such
an attitude warrants constant guard, suspicion and defensiveness. It
is difficult to assert that this all amounts to a definitive
paranoia, but the respondent – even if she is not in paranoia –
is surely approaching it. We stress that paranoia is a real psychotic
disorder (that is to say mental derangement) characterised by the
development of and fixation on one psychotic thought – usually
of a persecuting type – or on several such thoughts which are
grouped, interconnected and systematised (connected in a psychotic
system). In any case, the respondent is not far from mental
derangement, which, unfortunately, she does not see and does not
understand and therefore refuses any professional help.
Overwhelmed with this personal condition, the respondent
most often estimates the world around her entirely wrongly, giving
immense importance to trivialities and at the same time ignoring
crucial things. By insisting on the irrelevant, she seriously
neglects her vital interests and thus directly compromises them. She
exhausts her limited resources on irrelevant, sporadic things, thus
calling into question her ability to organise her existence, to
structure it adequately and to exploit what she has at her disposal
in her best interests. Her mental condition is entirely (which still
does not mean irreversibly) impaired. She has lost the ability to
anticipate and to react and adapt in a preventive manner. Her
understanding of the world and her position in it is limited by a
feeling of injustice, and is also superficial, wrong and strict. She
is incapable of locating herself correctly in the complex, abstract
laws of the outside world. She is not capable of recognising the
institutional resources at her disposal; even when they are presented
to her, she rejects them uncritically, putting herself in a
dangerous, unacceptable and miserable position.
In her mental condition she has no chance of exploiting
outside resources and protecting her rights and interests. She will
follow – without caution, without reflection – her first
impression and thus immediately puts at risk her economic, material
and health interests. At the same time she will ignore favourable
outcomes and situations and potential opportunities for improvement.
On account of her clearly deeply impaired mental
vitality, the respondent is in a perilous condition - her physical,
economic, social and health safety is compromised and she has no
resources to resist peril constructively and properly. She is not
able to participate actively in the outside world and to act in a
constructive manner. She is lost in everyday specific situations and
exhausts herself in trivialities.
Therapeutic possibilities in her condition are still
possible. The problem is that the respondent will refuse them
categorically and systematically, seeing them as an attack on herself
or a sign of grave hostility.
The respondent is in a situation which absolutely
excludes any possibility for her to take care of her rights and
interests and to show responsibility towards her obligations. Her
only interest is to confirm her paranoid views – and here she
does not spare her mental, financial or institutional resources. In
this respect it is not possible to leave her on her own, since that
will immediately put her at risk at all levels. Her mental resources
have brought her to a critical mental and social situation where it
is not to be expected that those same resources could save her.
I recommend that the request by the requesting party be
accepted and that the respondent be entirely divested of legal
capacity. There is no aspect of legal capacity that she could perform
responsibly and to her own advantage.
It is to be stressed that the above statement could and
should be revised in the case of a fortunate outcome, that is, if the
respondent starts psychiatric treatment, offers her cooperation in
therapy and achieves mental rehabilitation. However, no new
assessment of her mental condition ... is recommended for at least
one year in view of the nature and gravity of her disorder.”
At
a hearing held on 25 November 2009 in the I. Municipal Court the
second applicant was heard. The relevant part of the written record
of the hearing reads:
“... the respondent alleges that she is entirely
capable of caring for her needs and interests, that she receives a
pension and lives in her own flat; her next-door neighbour M.Š.
prepares her lunches and sometimes she goes to a restaurant. She
further alleges that she is able to address all issues concerning her
household and paying her bills. She is seeing her doctor and is able
to carry out all administrative and other tasks in the city. She
retired fifteen years ago because of a road accident; she is an
economist with a high school education. She had enrolled in a law
faculty, but had not completed her studies ... She watches
television, reads daily newspapers, books, has a wide circle of
friends who visit her and sometimes she also visits them; in
particular, she is also visited by her relatives. She is a very
communicative person and leaves a good impression on others and has
never had any problems in communication with others. When her mother
was placed in a home, she was overwhelmed by sadness because until
then they had been living together. However, she did not lock herself
in and she does not know who called the doctors and the ambulance -
that happened after a report by the Centre. The discharge letters
following her two hospitalisations show that her condition was good
and satisfactory. Since 2006 she has not been taking any medication
save for her underlying illness, which is muscle weakness (a mild
form of paraplegia). Between 9 October and 10 November 2009 she was
hospitalised for rheumatic diseases and rehabilitation, in order to
maintain her customary condition as regards her ability to walk ...
She specifically stresses that she has reacted very
badly to the institution of these proceedings to divest her of legal
capacity because she considers herself entirely legally capable and
healthy and able to care for her rights and interests and fulfil all
her obligations as she has already described. To the question what
her condition would be if she were divested of legal capacity, she
answers that she could not even imagine it... it would be bad, such a
decision would lead to depression and exacerbation of her illness;
her soul would thus be killed and her whole life as well. She
stresses that her condition does not require a guardian ...
She stresses further that before these proceedings were
instituted she had not been given a chance by the Centre or the
expert who prepared a report in these proceedings, to give her own
overview of her condition, and therefore she has now explained her
situation. She also drew up a six-page statement which she attaches
to the case file. ...
She stresses further that the guardian did not contact
her at all ...
... she also stresses that in her view these proceedings
were instituted because the Centre wants to deprive her of her
property (a flat in I. and part of a family house in B.) and various
other property that she might inherit from her mother, since she has
no spouse or children, but only a sister.
She alleges that her current situation is such that she
is capable of caring for herself, even if her illness were to worsen,
so as to choose by herself a person to care for her; she also has
enough assets to pay for the care that she wishes. She has been
thinking about it and she always tries to find solutions for the
future. She wants to continue to live in her own flat and does not
wish to leave it. Should she be divested of legal capacity, her
condition would worsen; she had seen it happen to others. Then she
could be placed somewhere she would not want to be. She does not want
to live in a home ... because she is used to her own home ... and
wishes to be left in peace ...”
On
29 March 2010 the same expert in psychiatry submitted his additional
report on the second applicant, in which he repeated his previous
conclusions, without any further contact with her.
The
above court proceedings are apparently still pending.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Family Act (Obiteljski zakon,
Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read:
Section 159
“(1) An adult who, on account of mental
illness or other reasons, is unable to care for his or her own needs,
rights and interests, or who presents a risk to the rights and
interests of others, shall be partly or completely divested of legal
capacity by a court of law in non-contentious proceedings.
(2) Before adopting a decision under
subsection 1 of this section, a court shall obtain the opinion of a
medical expert concerning the health condition of the person
concerned and the effect of that condition on his or her ability to
protect all or individual personal needs, rights and interests and
whether it could put at risk the rights and interests of others ....”
Section 161
“(1) A social welfare centre shall
initiate court proceedings when it assesses that, on the grounds set
out in section 159(1) of this Act, there is a need to divest a person
of legal capacity either completely or in part.
(2) A social welfare centre shall appoint a
special guardian to a person in respect of whom the proceedings for
divesting him or her of legal capacity have been instituted ...”
Section 162
“The competent social welfare centre shall place
under guardianship a person ... divested of legal capacity ...”
Section 179
(1) The guardian shall care for the person
and his or her rights, obligations and well-being with due diligence,
manage his or her assets and take measures aimed at enabling the ward
to have an independent professional and personal life.
...”
Section 184
“(1) The guardian represents the ward.
...”
Section 185
“In order to take more important measures
concerning the person, personal status or health of the ward, the
guardian shall obtain prior consent from a social welfare centre.”
COURT PROCEEDINGS
Section 315
“(1) Where a decision alters the
personal status of a party or his or her rights and obligations, such
a decision comes into effect when it becomes final.”
...”
Section 316
“An appeal may be lodged against a decision
adopted at first instance where this Act does not provide otherwise.
...”
PROCEEDINGS FOR DIVESTING AND RESTORING LEGAL
CAPACITY
Section 326
“(1) A court shall invite to a hearing
the requesting party, the person concerned, his or her guardian and a
representative of a social welfare centre.
(2) Persons mentioned in subsection 1 and a
social welfare centre may participate in the presentation of
evidence, hearings and the presentation of the outcome of the entire
proceedings.
(3) A court shall try to hear the person concerned.
Where that person has been placed in a psychiatric or social
institution, he or she shall be heard in that institution.
(4) A court may decide not to invite and hear the person
concerned where it could be detrimental for that person or where it
is not possible to hear that person in view of his or her mental
impairment and health condition.”
Section 329
(1) A court decision divesting someone of
legal capacity shall be served on the requesting party, the person
concerned, his or her guardian and a social welfare centre.
(2) The court is not obliged to serve the
decision on the person concerned where he or she cannot understand
the legal consequences of that decision or where it would be
detrimental to his or her health.
...”
The
relevant part of section 190 of the Social Welfare Act (Official
Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001, 103/ 2003 and
44/2006, Zakon o socijalnoj skrbi) provides:
“(1) An adult accommodated on the basis
of a decision by a social welfare centre is obliged to pay for his or
her accommodation, up to the full price, using all of his or her
income and monetary assets.
...”
Section 428(a) of the Civil Procedure Act (Zakon o
parničnom postupku) enables an applicant in respect of whom
the European Court of Human Rights has found a violation of the
Convention or its Protocols to request, within 30 days of the Court’s
judgment becoming final, the re opening of the domestic
proceedings in question. In the new proceedings the domestic courts
are obliged to follow the reasons given in the Court’s
judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 8
OF THE CONVENTION IN RESPECT OF THE PROCEEDINGS DIVESTING THE FIRST
APPLICANT OF LEGAL CAPACITY
The
first applicant complained that the manner in which the proceedings
divesting her of legal capacity had been conducted violated her right
to a fair trial and to respect for her private life. She relied on
Article 6 § 1 and Article 8 of the Convention, the relevant part
of which provides:
Article 6 § 1
“1. 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.
...”
Article 8
“1. Everyone has the right to respect
for his private ... 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 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.”
A. Admissibility
1. Exhaustion of domestic remedies
(a) The parties’ arguments
The
Government argued that the first applicant had failed to exhaust
domestic remedies because she had not lodged a constitutional
complaint in the proceedings with regard to her legal capacity. Had
she done so, the Constitutional Court would have invited her guardian
to give her consent to such a complaint and, had the guardian given
her consent, the Constitutional Court would have examined the
complaint on the merits.
The
first applicant argued that a constitutional complaint was not an
effective remedy because it depended on the discretion of a guardian
and that the Constitutional Court sometimes took more than two years
after the lodging of a constitutional complaint to ask for a
guardian’s consent. In any event, the decision divesting the
first applicant of legal capacity had not been served on her, so she
had been unable to use any remedies against it.
(b) The Court’s assessment
The
rule of exhaustion of domestic remedies referred to in Article 35 §
1 of the Convention obliges those seeking to bring a case against a
State to use first the remedies provided by the national legal
system, thus allowing States the opportunity to put matters right
through their own legal systems before being required to answer for
their acts before an international body. In order to comply with the
rule, normal recourse should be had by an applicant to remedies which
are available and sufficient to afford redress in respect of the
breaches alleged; there is no obligation to have recourse to remedies
which are inadequate or ineffective (see, among many other
authorities, Akdivar and Others v. Turkey, 16 September 1996,
§§ 65-67, Reports of Judgments and Decisions
1996-IV; and Demopoulos and Others v. Turkey (dec.), nos.
46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04
and 21819/04, § 70, ECHR 2010-...).
Remedies
the use of which depends on the discretionary powers of public
officials and which are, as a consequence, not directly accessible to
the applicant cannot be considered as effective remedies within the
meaning of Article 35 § 1 of the Convention (see Tumilovich
v. Russia (dec.), no. 47033/99, 2 June 1999; Gurepka v.
Ukraine, no. 61406/00, § 60, 6 September 2005; and
Tănase v. Moldova [GC], no. 7/08, § 122,
ECHR 2010-...).
As
to the present case, the Court notes firstly that the first applicant
was not informed of the proceedings initiated before the I. Municipal
Court with a view to divesting her of legal capacity and was never
given an opportunity to participate in these proceedings, but was
represented by a guardian ad litem, who appears to have had no
contact with her.
Under
the relevant procedural rules, before lodging a constitutional
complaint an applicant has first to exhaust all previous remedies.
Thus, the first applicant should first have lodged an appeal against
the first-instance decision of the I. Municipal Court. However, the
decision of the I. Municipal Court divesting the first applicant of
her legal capacity was never served on her and she was therefore
unable to use any remedies against it.
Furthermore,
had the first applicant lodged a constitutional complaint, the
Constitutional Court would not have examined it before obtaining the
consent of the first applicant’s guardian. Although a guardian
ad litem is not a public official, the Court still considers
that in these circumstances it cannot be said that the remedies
relied on by the Government were accessible to the first applicant.
It follows that the Government’s objection must be dismissed.
2. Compliance with the six-month time-limit
The
Government argued that the first applicant had lodged her application
with the Court out of the six-month time-limit, because she had
received a decision on appointing D.P.D. as her special guardian on
20 June 2008.
The
first applicant argued that the only relevant decision was that
adopted by the I. Municipal Court on 21 August 2008.
The
Court notes that the last decision in connection with the proceedings
whereby the first applicant was divested of her legal capacity was
adopted by the I. Municipal Court on 21 August 2008. The present
application was lodged with the Court on 15 January 2009. It follows
that the Government’s objection must be rejected.
3. Conclusion
The
parties did not dispute the applicability of Article 6, under its
“civil” head, to the proceedings at issue concerning the
first applicant, and the Court does not see any reason to hold
otherwise (see Winterwerp v. the Netherlands, 24
October 1979, Series A no. 33, § 73; and Shtukaturov v.
Russia, no. 44009/05, § 64, 27 March 2008).
The
Court notes that the first applicant’s complaints under Article
6 § 1 and Article 8 of the Convention are not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The
first applicant argued that the proceedings concerning her legal
capacity were unfair because she had not participated in them. Nor
had she been given an opportunity to participate in the proceedings
whereby the special guardian appointed to represent her in the court
proceedings had been selected. The same body, the I. Centre for
Social Welfare, had appointed a guardian against her will and had
instituted the proceedings to divest her of legal capacity before the
I. Municipal Court. The authorisation she had given to her daughter,
entitling the latter to represent her in these proceedings at a time
when she still had legal capacity, had been ignored and the
submissions made by her daughter in these proceedings, although
containing arguments relevant to assessment of her condition, had
been ignored. The decision divesting her of legal capacity had not
been served on either her or her daughter. All this had been in
contravention of the Family Act, which required that an individual
concerned by proceedings to divest him or her of legal capacity was
to be heard in the proceedings.
The
decision divesting her of legal capacity contained only one and a
half page and was not adequately reasoned.
The
consequence of the decision to divest her of legal capacity was that
she had completely lost her autonomy and had no right to make any
decisions concerning her life. Furthermore, her daughter, as her sole
living close relative, had not been appointed as her guardian and had
also been completely excluded from taking any decision as regards the
first applicant’s life. There had been no reason to divest her
completely of legal capacity, since she had never in any manner put
at risk her own or others’ interests.
The
Government argued that the measure to divest the first applicant of
her legal capacity had been adopted in proceedings conducted in
accordance with the relevant provisions of domestic law, and that she
had been represented by her niece as her special guardian, which had
ensured the adversarial nature of the proceedings. The guardian
attended the hearings and had requested that the first applicant be
seen by a medical expert.
Furthermore,
the first applicant had not lodged an appeal against the decision
appointing D.P.D. as her special guardian, although that decision had
been served on her and she must have known that it concerned the
proceedings to divest her of legal capacity.
The
measure as such was based on the relevant provisions of the Family
Act, pursued the legitimate aim of protecting the interests of the
first applicant as a demented and disoriented person, incapable of
caring for her interests, and was proportionate since no other, less
stringent measure, would suffice in the circumstances. The decision
was based on a report by the Centre, a statement given by D.P.D. and
the report by an expert in psychiatry, who established that the first
applicant, owing to her various health problems, was unable to care
for her interests.
2. The Court’s assessment
(a) General principles
In
the context of Article 6 § 1 of the Convention, the Court
assumes that in cases involving a mentally ill person the domestic
courts should also enjoy a certain margin of appreciation. Thus, for
example, they can make the relevant procedural arrangements in order
to secure the good administration of justice, protection of the
health of the person concerned, etc. However, such measures should
not affect the very essence of the applicant’s right to a fair
hearing as guaranteed by Article 6 of the Convention. In assessing
whether or not a particular measure, such as exclusion of the
applicant from a hearing, was necessary, the Court will take into
account all relevant factors (such as the nature and complexity of
the issue before the domestic courts, what was at stake for the
applicant, whether his appearance in person represented any threat to
others or to himself, etc. (see Shtukaturov, cited above, §
68)). In particular, the Court considers that stricter scrutiny is
called for where measures which have such a strong impact on one’s
private life as divesting one of legal capacity are at stake.
Furthermore,
according to the Court’s established case-law, reflecting a
principle linked to the proper administration of justice, judgments
of courts and tribunals should adequately state the reasons on which
they are based. The extent to which this duty to give reasons applies
may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case. Although
Article 6 § 1 obliges courts to give reasons for their
decisions, it cannot be understood as
requiring a detailed answer to every argument (see García
Ruiz v. Spain,
21 January 1999, Reports 1999-I, § 26, and
Helle v. Finland, 19 December
1997, Reports 1997-VIII, §§ 59).
(b) Application of these principles in the
present case
As
regards the present case, the Court notes that it is not disputed
that the first applicant was not notified of the proceedings
concerning her legal capacity before the I. Municipal Court. Further,
she was neither summoned by the Municipal Court in order to give
evidence nor seen by the judge conducting the proceedings. The Court
concludes that the first applicant was unable to participate
personally in the proceedings before the I. Municipal Court in any
form. It remains to be ascertained whether, in the circumstances,
this was compatible with the requirements of Articles 6 and 8 of the
Convention.
The
Government argued that, according to the relevant provisions of the
Family Act, the fact that the first applicant was not heard in the
proceedings concerning her legal capacity had been lawful in domestic
terms. However, the crux of the complaint is not the domestic
legality but the “fairness” of the proceedings from the
standpoint of the Convention and the Court’s case-law (see
Shtukaturov, cited above, § 70) and ensuring the relevant
procedural safeguards when taking a decision seriously affecting the
applicant’s private life.
The
Court has already held in its above-cited Shtukaturov
judgment:
“72. ... the Court notes that the
applicant played a double role in the proceedings: he was an
interested party, and, at the same time, the main object of the
court’s examination. His participation was therefore necessary
not only to enable him to present his own case, but also to allow the
judge to form her personal opinion about the applicant’s mental
capacity (see, mutatis mutandis, Kovalev v. Russia,
no. 78145/01, §§ 35-37, 10 May 2007).”
The
same is true in respect of the first applicant in the present case.
The Court considers that judges adopting decisions with serious
consequences for a person’s private life, such as those
entailed by divesting someone of legal capacity, should in principle
also have personal contact with those persons.
The
Court is aware of the relevance of medical reports concerning persons
suffering from impairment to their mental capacities and agrees that
any decision based on the assessment of mental health has to be
supported by relevant medical documents. However, at the end of the
day, it is the judge and not a physician, albeit a psychiatrist, who
is to assess all relevant facts concerning the person in question and
his or her personal circumstances. It is the function of the judge
conducting the proceedings to decide whether such an extreme measure
is necessary or whether a less stringent measure might suffice. When
such an important interest for an individual’s private life is
at stake a judge has to balance carefully all relevant factors in
order to assess the proportionality of the measure to be taken. The
necessary procedural safeguards require that any risk of
arbitrariness in that respect is reduced to a minimum.
The
psychiatrist who saw the first applicant concluded that she was a
gravely ill person, bedridden, completely dependent on the help of
others, demented and that meaningful contact with her was not
possible, suffering form severe impairment of global cognitive
ability, with an unfavourable prognosis for the future (see above, §
35). She also found that the first applicant was incapable of caring
for herself and her rights and interests and recommended that the
court divest her entirely of legal capacity. However, in the Court’s
view it would still be preferable for the judge conducting the
proceedings to verify that these conclusions were not arbitrary; to
hear witnesses as well as the doctor. In particular, it was for the
judge to make any conclusions as regards the issue of divesting the
first applicant of her legal capacity.
In
this connection the Court notes that, even if the psychiatrist
examined the first applicant of 18 July 2008, the medical
documentation which served as a basis for the psychiatric report
dated from 2002. In this respect it should be noted that the second
applicant submitted that the psychiatrist saw the first applicant for
only twenty minutes, at a time when the first applicant was tired and
under the influence of medication. She also drew attention to the
fact that both letters, the first of 14 August 2008 and the second of
22 August 2008, by which the first applicant sought to be represented
by the second applicant were signed by the first applicant with her
full name.
The
Court takes note of the second applicant’s submissions to the
I. Municipal Court that D.P.D. had not seen the first applicant.
While it is true that the reasoning in the decision to divest the
first applicant of her legal capacity also cited the statement given
by D.P.D. concerning the first applicant’s condition, it was
exactly D.P.D. who asked the court to carry out a medical examination
of the first applicant.
The
Court also notes that on 14 August 2008 the first applicant
authorised the second applicant to represent her in the proceedings
at issue. At that time the first applicant still had legal capacity
and according to domestic law her authorisation was thus legally
valid, irrespective of the fact that a special guardian had already
been appointed. However, the second applicant was not informed of the
hearing held on 21 August 2008 before the I. Municipal Court and her
submissions, although containing important arguments, were not
addressed by that court in any manner. In addition, the decision
divesting the first applicant of her legal capacity was not served on
her.
As
regards the reasons adduced by the national authorities for divesting
the first applicant of her legal capacity, the Court notes that the
I. Municipal Court based its decision on the findings of a medical
expert stating that, on account of her mental illness, she was not
capable of caring for herself, her rights and interests, was demented
and was entirely dependant on the care and help of others. In this
connection the Court stresses that it is legitimate to provide care
for the sick or elderly, or persons with diminished capacity who are
unable to care for themselves. It is, however, an entirely different
thing to deprive someone of legal capacity. Divesting someone of
legal capacity entails serious consequences. The person concerned is
not able to take any legal action and is thus deprived of his or her
independence in all legal spheres. Such persons are put in a
situation where they depend on others to take decisions concerning
various aspects of their private life, such as, for example, where to
live or how to dispose of their assets and all income. Numerous
rights of such persons are extinguished or restricted. For example,
such person is not able to make a will, cannot be employed, and
cannot marry or form any other relationship creating consequences for
their legal status, etc.
In
order to ensure that the sick and elderly are properly cared for, the
State authorities have at their disposal other means than divesting
such persons of their legal capacity. Divesting someone of legal
capacity is a very serious measure which should be saved for
exceptional circumstances.
Finally,
the Court reiterates that it must always assess the proceedings as a
whole, including any decisions of the appeal courts (see C.G. v.
the United Kingdom, no. 43373/98, § 35, 19 December 2001).
The Court notes that in the present case the decision divesting the
first applicant of legal capacity was not served on her, despite the
fact that at that time she still preserved legal capacity since the
decision in question had not yet become final. However, by failing to
inform the first applicant of that decision, the Municipal Court also
deprived her of the possibility of using any remedies against it.
Therefore, any possible defects in the proceedings before the
first-instance court could not be remedied at further instance.
The
Court finds also that the fact that the judge who divested the first
applicant of legal capacity completely ignored the second applicant’s
arguments in his assessment of the first applicant’s condition,
although the first applicant had authorised the second applicant to
represent her in the proceedings at a time when she still had legal
capacity, ran contrary to the guarantees of a fair hearing and also
deprived the first applicant of adequate procedural safeguards in
proceedings where a decision adversely affecting her private life was
adopted.
There
has therefore been a violation of Article 6 § 1 of the
Convention. In view of that finding, the Court considers that no
separate issue remains to be examined under Article 8 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
CONCERNING THE INSTITUTION OF COURT PROCEEDINGS WITH A VIEW TO
DIVESTING THE SECOND APPLICANT OF LEGAL CAPACITY
The
second applicant, relying on Article 8 of the Convention complained
that the institution of proceedings with a view to divesting her of
legal capacity had violated her right to respect for her private
life.
A. Admissibility
The
Government argued that any complaint in respect of the proceedings
concerning the second applicant’s legal capacity was premature
since these proceedings were still pending.
The
Court notes that the second applicant is complaining that the
institution of court proceedings with a view to divesting her of
legal capacity amount to an unjustified interference with her right
to respect for her private life. In view of the nature of this
complaint, the Court considers that the question whether the second
applicant’s complaint under Article 8 of the Convention in
connection with the institution of proceedings to divest her of legal
capacity is premature because these proceedings are still pending is
closely linked to the merits of this complaint. It should therefore
be joined to the merits.
The
Court further considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3(a) of the
Convention. Moreover, it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The
second applicant argued that there had been no need to appoint a
guardian for her and to institute the court proceedings to divesting
her of legal capacity, since she had been entirely capable of caring
for her needs and interests. She challenged the Centre’s
arguments for initiating those proceedings, namely that in 2006 she
had refused to leave her home and to communicate with others for
several days; that in 1994 she had been treated in a psychiatric
institution; that her attitude towards her mother had been overly
possessive; that she had constantly complained about the treatment of
her mother in the Caritas Home; that she had repeatedly made
unrealistic requests concerning her mother; and that she had changed
the lawyers who represented her on several occasions.
As
regards her complaints about her mother’s treatment in the
Caritas Home, the second applicant submitted that at the time that
same Home had been the subject of widespread criticism by many
persons; this had been reported in the media, and she enclosed press
clippings. Furthermore, she did not agree that the love and care she
had been showing her mother could be a sign of mental illness. In her
view, the proceedings to divest her of legal capacity had been
instituted because of her complaints against the Caritas Home and her
opposition to the Centre’s actions with regard to her mother.
The
Government argued that the rights of the second applicant in the
proceedings at issue had been adequately protected since a special
guardian had been appointed for her and the second applicant had also
been represented by a lawyer of her own choice. She had been invited
to every hearing and given an opportunity to present her arguments.
Her mental condition had been assessed by an expert in psychiatry.
2. The Court’s assessment
(a) Whether there has been an interference
The
Court considers that a measure such as divesting one of legal
capacity amounts to a serious interference with that person’s
private life. In this connection the Court notes that the mere
institution of these proceedings already has serious consequences.
Thus, a special guardian is appointed for the person concerned and
represents him or her in the court proceedings, and the person is
subject to various assessments, including a psychiatric report, all
of which concern one’s private life.
Further,
in the present case the guardian appointed to the second applicant
was given a wide range of powers, such as representing her in all
personal matters and matters concerning her property, managing her
assets and taking proper care of her person, rights, obligations and
well-being. The Court therefore considers that the institution of the
proceedings with a view to divesting the second applicant of legal
capacity amounted to an interference with her private life within the
meaning of Article 8 of the Convention.
Any such interference with the right to respect
for one’s private life will constitute a violation of Article 8
unless it is “in accordance with the law”, pursues an aim
or aims that are legitimate under paragraph 2 of this provision and
can be regarded as “necessary in a democratic society”(see
Anayo v. Germany, no. 20578/07, § 63,
21 December 2010; and Mikolajová v. Slovakia,
no. 4479/03, § 58, 18 January 2011).
(b) Whether the interference was based on
law, pursued a legitimate aim and was necessary in a democratic
society
In
the circumstances of the present case the Court considers that the
issues of the legality of the interference, the legitimate aim
pursued and its necessity are closely interconnected, and it will
examine them together.
As
to the legal basis for the interference concerned, the Court notes
that section 159 of the Family Act provides that an adult unable to
care for his or her own needs, rights and interests, or who presents
a risk to the rights and interests of others on account of mental
illness or other reasons may be partially or completely divested of
legal capacity.
In
the Court’s view, in order to be able to institute such
proceedings a social welfare centre (or any other authority) should
be able to present convincing evidence that the person concerned is
either unable to care for his or her own needs, rights and interests,
or presents a risk to the rights and interests of others. This cannot
be done on the basis of general statements but only on the basis of
specific facts.
In
the present case the Centre claimed that the second applicant was
unable to protect her rights and interests, without relying in its
statement on any specific fact. The general nature of the statements
made by the Centre raises doubts as to the compliance with the
statutory requirements for the institution of the proceedings to
divest the second applicant of legal capacity (see above, § 47).
The Court considers that in deciding whether the
proceedings to divest a person of capacity were proportionate, the
national authorities are to be recognised as having a certain margin
of appreciation. It is in the first place for the national
authorities to evaluate the evidence adduced before them in a
particular case; the Court’s task is to review under the
Convention the decisions of those authorities (see, mutatis
mutandis, Winterwerp v. the Netherlands, 24
October 1979, § 40, Series A no. 33; Luberti v. Italy,
23 February 1984, Series A no. 75, § 27; and Shtukaturov
v. Russia, no. 44009/05, § 67, 27 March 2008). In this
connection the Court would like to stress once again that strict
scrutiny is called for where measures that have such adverse effect
on one’s personal autonomy are at stake. In this connection the
Court is mindful that divesting someone of legal capacity entails
grave consequences for various spheres of that person’s life.
The
Government in their submissions before the Court and the Centre in
its request to the I. Municipal Court both stressed that the purpose
of instituting the proceedings to divest the second applicant of
legal capacity was to ensure the protection of her interests through
the institution of guardianship.
In
the Court’s view, however, the institution of such proceedings,
which oblige the person concerned to submit himself or herself to
court proceedings in which he or she is represented by a guardian and
where various aspects of his or her private life are examined and
questioned and that person’s mental condition, behaviour and
personality are assessed, is justified where convincing evidence
exists that a measure to divest that person of legal capacity is an
adequate answer to the situation at issue.
As
regards the second applicant’s mental health, the Court notes
that it is true that she was twice hospitalised in a psychiatric
ward, the first time in 1994 and the second in 2006. The discharge
letter of 20 December 2006 states that she had visibly recovered
physically, had reacted positively to therapy, that the
psychopathology for which she had been hospitalised had completely
ceased and that there was an optimistic prognosis for further
treatment (see above, § 44).
As
regards the psychiatric report commissioned for the court proceedings
to divest the second applicant of legal capacity, the Court notes
firstly that the report, which is clearly negative with regard to the
applicant’s condition, was drawn up by a psychiatrist who had
not previously treated the applicant and who held only a telephone
conversation with her. The Court is sceptical as to whether a
person’s mental condition could be assessed with sufficient
certainty after only a single telephone conversation, albeit of one
hour, in particular given the significance of such a report in the
present case.
The
Court notes that under section 161 taken together with section 159 of
the Family Act a social welfare centre shall institute the
proceedings for divesting a person of legal capacity where it is
shown that that person, on account of mental illness or other
reasons, is unable to care for his or her own needs, rights and
interests, or who presents a risk to the rights and interests of
others.
The
applicant in the present case, when heard by the national
authorities, explained that she lived alone and had taken care of all
her needs. She stressed that she regularly paid all her bills, was
seeing regularly her general physician, had taken care of her meals
and organised her social life. Further to her statements, the Court
notes that there is no indication, either before the institution of
the proceedings in question or during them, of specific damage that
the second applicant had committed against her own interests or the
interests of others which would warrant divesting her of legal
capacity.
Against
the above background, the Court finds that in the circumstances of
the present case the institution of the court proceedings with a view
to divesting the applicant of legal capacity did not observe the
procedure and requirements prescribed by law, did not pursue a
legitimate aim and was not necessary in a democratic society, and
dismisses the Government’s objections as to the exhaustion of
domestic remedies.
There
has accordingly been a violation of Article 8 in that respect.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
CONCERNING THE FIRST APPLICANT’S PLACEMENT IN A CARITAS HOME
Relying
on Article 8 of the Convention, the applicants also complained about
the refusal to place the first applicant in a single room in the
Caritas Home and about the limitation on the frequency of visits
allowed.
Admissibility
1. The parties’ arguments
The
applicants argued that they were not allowed to place the first
applicant in a single room in the Caritas Home, although that would
have been beneficial for her health. Furthermore, visits in
multi-occupancy rooms were limited to one hour a day, which prevented
the applicants from spending more time together; it also prevented
the second applicant from spending more quality time with the first
applicant, since the first applicant had been the only person who
visited her.
The
Government argued that the applicants were able at all times to enter
into a private agreement with the Caritas Home with a view to placing
the first applicant in a single room at their own expense. As regards
contacts between the applicants, these were structured in such a way
that the second applicant was able to visit the first applicant for
an hour a day in her room and otherwise in the communal premises of
the Caritas Home between 9 a.m. and 7 p.m. or 8 p.m. in the
winter and summer periods respectively. The second applicant had been
spending almost entire days with the first applicant at the Caritas
Home.
2. The Court’s assessment
The
Court notes that in July 2006 the first applicant was placed in the
Caritas Home at the request of her daughter, the second applicant,
who claimed that, owing to the special needs caused by her mother’s
illness, and her own illness, she was no longer able to care for her
mother alone. Shortly afterwards, in August 2006 the first
applicant’s right to care outside her family was established
and she continued to reside in the Caritas Home. She was accommodated
in a multi-occupancy room with three other persons and until May 2008
the second applicant was able to spend whole days with her.
The
second applicant made frequent requests that her mother be placed in
a single room, offering to pay the difference between the amount
covered by the State and the full price for a single room. However,
this request was denied on the ground that such an arrangement was
not possible; she could only ask that her mother be placed in a
single room on the basis of a private contract with the Caritas Home,
and then pay the full price herself.
In
assessing whether a fair balance has been struck as regards the
measure adopted, the Court reiterates that in choosing the most
appropriate manner in order to comply with their obligations under
the Convention, the States enjoy a certain margin of appreciation. In
matters concerning its social policy this margin has been recognised
as being quite wide (see, mutatis mutandis, James and
Others v. the United Kingdom, 21 February 1986, § 46, Series
A no. 98; and Şerife Yiğit v. Turkey [GC], no.
3976/05, § 100, ECHR 2010 ...). Furthermore, effective
protection of respect for private and family life cannot require the
national authorities to enable persons benefiting from State
assistance to have a single room in an institution caring for them,
unless prevailing health or other relevant reasons require it.
The
applicants never explained on what exact grounds they sought a single
room for the second applicant and why her placement in a room with
three other persons was incompatible with her right to respect for
her private and family life. The second applicant repeatedly invoked
health grounds in her requests before the national authorities and
the Caritas Home. However, she never gave any details concerning such
grounds nor did she support her claim with any relevant medical
opinion. Thus, the applicants failed to present any convincing
reasons for placing the first applicant in a single room.
By
placing the first applicant in the Caritas Home at the partial
expense of the State, the national authorities satisfied their duty
to provide the first applicant with adequate social care. The fact
that she is placed in a multi-occupancy room and that visits in such
rooms might be limited to an hour a day cannot be said to be
disproportionate and in contravention of the applicants’ right
to respect for their private and family life, in particular in view
of the fact that visits in communal premises are allowed from 9 a.m.
to 7 p.m. and 8 p.m. in the winter and summer periods respectively
(see paragraph 24 above).
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
The
applicants further complained that the decision to pay the first
applicant’s pension directly to the Caritas Home and her
inability to freely dispose of her assets had violated her right to
peaceful enjoyment of her possessions. They relied on Article 1 of
Protocol No. 1, which provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
1. The parties’ arguments
The
applicants argued that by ordering that the first applicant’s
pension was to be used to cover the costs of her accommodation in the
Caritas Home, and by preventing her, as a person divested of legal
capacity, from freely disposing of her pension and other assets, the
State had violated her right to peaceful enjoyment of her
possessions.
The
Government argued that the right of the first applicant to care
outside her family had been established on a request by her daughter,
the second applicant, and that ordering the first applicant to bear
part of the costs of her accommodation in a home had been based on
the Social Welfare Act, since she was in receipt of a pension.
However, the first applicant could have sought termination of that
arrangement at any time.
The
decision that the first applicant was to bear part of the costs of
her accommodation was proportionate, since all her needs had been
satisfied in the Caritas Home. The State had still been paying more
than half of the costs of the first applicant’s accommodation.
(a) Payment of the first applicant’s
pension to the Caritas Home
The
Court notes that the decision of 31 August 2006 established the first
applicant’s right to care outside her family. However, she was
still ordered to bear the costs of her accommodation, since she was
in receipt of a pension. The difference between the full costs of the
first applicant’s accommodation and the amount of her pension,
the former being higher, has been covered by the State.
The
Court notes that neither the first nor the second applicant used any
remedies against that decision. Therefore, the decision of 31 August
2006 which arguably represented an interference with the first
applicant’s right to peaceful enjoyment of her possession was
the final decision taken by the national authorities in this respect.
However, the present application was lodged with the Court on 15
January 2009.
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
(b) The first applicant’s inability
to dispose of her assets
The
Court notes that the first applicant’s inability to dispose of
her assets is a consequence of the decisions to divest her of legal
capacity. For this reason the Court considers that this part of the
application must be declared admissible.
B. Merits
The
Court notes that it has addressed the issue of the proceedings
divesting the first applicant of legal capacity under Article 6 of
the Convention and that the first applicant will be able to seek that
the proceedings concerning her legal capacity be reopened.
Therefore
the Court considers that there is no need to examine separately the
complaint under Article 1 of Protocol No. 1 to the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained further that they had no effective domestic
remedy at their disposal as regards their Convention complaints. They
relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
1. Article 13 in connection with Article 6 and 8 of the
Convention as regards the proceedings divesting the applicants of
legal capacity
The
Court considers that this complaint is closely linked to that
concerning Article 6 and Article 8 of the Convention as regards the
proceedings divesting the applicants of legal capacity, and must also
therefore be declared admissible.
2. Article 13 in connection with the complaint under
Article 1 of Protocol No. 1 concerning the first applicant’s
inability to dispose of her assets
This
complaint, being closely related to the complaint under Article 1
of Protocol No. 1 which the Court has declared admissible, must
therefore also be declared admissible.
3. Article 13 in connection with the remaining
complaints under Article 8 of the Convention and under Article 1 of
Protocol No. 1
The
Court notes that these complaints have been declared inadmissible and
that Article 13 has no autonomous standing. It follows that the
complaints under Article 13, in so far as they are related to the
complaints under the substantive Articles of the Convention which
have been declared inadmissible as manifestly ill-founded, must also
be rejected as manifestly ill-founded in accordance with Article 35
§§ 3(a) and 4 of the Convention.
B. Merits
1. Article 13 in connection with Article 6 and 8 of the
Convention as regards the proceedings divesting the applicants of
legal capacity
The
applicants argued that they were unable to use any remedy in the
proceedings concerning their legal capacity. As regards the first
applicant, the judge conducting the proceedings had not allowed the
second applicant to represent the first applicant in those
proceedings and the first instance decision had not been served
on them. As regards the second applicant, she had at her disposal no
means to prevent the national authorities to institute the
proceedings for divesting her of legal capacity.
The
Government maintained that the first applicant could have lodged an
appeal against the decision appointing D.P.D. as her guardian and
filed a constitutional complaint.
The
Court is of the opinion that this complaint, although somewhat
rephrased, is essentially the same as those already examined under
Article 6 § 1 and Article 8 of the Convention. Having regard to
its findings in relation to these provisions, the Court considers
that the applicants’ complaint under Article 13 does not
require a separate examination on the merits (see Salontaji-Drobnjak,
cited above, § 147).
2. Article 13 in connection with the complaint under
Article 1 of Protocol No. 1 concerning the first applicant’s
inability to dispose of her assets
As
already stated above, the first applicant will have the possibility
of seeking the reopening of the proceedings at issue in which the
issue of her ability to dispose of her assets will also be addressed.
Having regard to this the Court concludes that this complaint does
not require a separate examination.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
first applicant claimed 20,000 euros (EUR) in respect of
non-pecuniary damage and the second applicant EUR 10,000 on the same
account.
The
Government deemed the sums claimed excessive and unsubstantiated.
As
regards the first applicant, the Court notes that section 428(a) of
the Civil Procedure Act provides for the reopening of domestic
proceedings if the Court has found a violation of the Convention and
in view of that possibility the Court considers that in the
circumstances of the present case the finding of a violation
constitutes sufficient redress.
As
regards the second applicant, the Court considers that she must have
suffered non-pecuniary damage as a result of the institution of the
proceedings to divest her of legal capacity. Making its assessment on
an equitable basis, the Court awards the second applicant EUR 2,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The
applicants also claimed EUR 4,400 for the costs and expenses incurred
before the Court.
The
Government contested the claim.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and have
been reasonable as to quantum. In the present case, regard being had
to the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 for the
proceedings before the Court, plus any tax that may be chargeable to
the applicants on this amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to
join
to the merits
the Government’s objection as to the exhaustion of domestic
remedies in connection with the second applicant’s complaint
under Article 8 of the Convention as regards the proceedings to
divest her of legal capacity and rejects it;
Declares the following complaints admissible:
- the
complaints under Article 6 and Article 8 of the Convention concerning
the fairness of the proceedings to divest the first applicant of her
legal capacity and the complaint under Article 13 of the Convention
in that connection;
- the
complaint under Article 8 concerning the institution of proceedings
to divest the second applicant of legal capacity and the complaint
under Article 13 of the Convention in that connection;
- the
complaint under Article 1 of Protocol No. 1 concerning the first
applicant’s inability to dispose of her assets and the
complaint under Article 13 of the Convention in that connection;
- and
the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the flaws in the
proceedings divesting the first applicant of legal capacity;
Holds that there is no need to examine the first
applicant’s complaint under Article 8 of the Convention;
Holds that there has been a violation of Article
8 of the Convention on account of the institution of the proceedings
to divest the second applicant of legal capacity;
Holds that there is no need to examine
separately the complaints under Article 1 of Protocol No. 1 to the
Convention;
Holds that there is no need to examine
separately the complaints under Article 13 of the Convention;
Holds
(a) that
the finding of a violation constitutes sufficient just satisfaction
in respect of the first applicant;
(b) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Croatian kunas at the rate applicable at the date of settlement:
(i) EUR
2,000 (two thousand euros) to the second applicant, plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros) to the applicants jointly, plus any tax
that may be chargeable to the applicants, in respect of costs and
expenses;
(c) 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;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly Kovler
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Lorenzen joined by Judge Steiner is annexed to this judgment.
A.K.
S.N.
CONCURRING OPINION OF JUDGE LORENZEN, JOINED BY JUDGE
STEINER
We
have voted with the majority in finding violations of Articles 6 and
8 of the Convention in the present case. However, we are unable to
agree with the reasons which have been given for finding a violation
of Article 8 in respect of the proceedings instituted with a view to
divesting the second applicant of her legal capacity. Our reasons are
the following:
It is
obvious that divesting someone of his or her legal capacity is a
serious interference with that person´s private life and we can
also agree that the mere fact of instituting proceedings with that
aim, given the consequences, amounts to an interference. Accordingly,
the conditions in Article 8 § 2 must be fulfilled.
Contrary
to the Court´s normal practice, the majority considers that the
issues of the legality of the interference, the legitimate aim
pursued and its necessity are closely interconnected and should be
examined together (see paragraph 105 of the judgment). In our
opinion, this manner of proceeding complicates the analysis of the
case and leads the Court to consider questions which it is not
necessary to examine.
In
the present case the proceedings to divest the second applicant of
her legal capacity were instituted on 17 September 2008 and,
according to the information available to the Court, they are still
pending. Accordingly, no decision whatsoever as to whether the
authorities’ claim is well-founded has yet been made by the
domestic courts. In the absence of any rulings by the domestic
courts, the judgment of the majority takes it upon itself to rule not
only on the legality of the proceedings under Croatian law and the
legitimate aim behind them, but also on their proportionality. The
majority concludes that the proceedings did not comply with the
relevant procedure and conditions prescribed by law, did not pursue a
legitimate aim and were not necessary in a democratic society.
Apart
from the lack of a sufficient basis for the Court to make such an
assessment of the factual evidence and the application of national
law in this case, it is in our opinion not properly in accordance
with the principle of subsidiarity and the requirement of exhaustion
of domestic remedies to do so. It interferes with the principle that
the national courts have primary responsibility for guaranteeing the
rights under the Convention. The reasoning of the majority implies
that merely instituting proceedings to divest someone of his or her
legal capacity may be found to be a violation of the Convention,
without the national courts having had the possibility to redress the
interference, unless the latter recognise the violation.
However, in the circumstances of the present case we can agree that
there has been a violation of Article 8, but on different grounds.
In
our opinion, section 161 taken together with section 159 of the
Croatian Family Act provided a sufficient legal basis in national law
for the institution of such proceedings and the question whether the
conditions for proceeding with the request were fulfilled is
primarily for the national courts to decide. We are not able to
conclude, however, that national law was in conformity with the
requirements of Article 8 § 2 of the Convention. According to
the Court´s case-law, the expression “in accordance with
the law” within the meaning of Article 8 § 2 requires not
only that the interference should have some basis in domestic law; it
also refers to the quality of the law in question, requiring it to be
accessible and foreseeable to the person concerned as well as
compatible with the rule of law (see, mutatis mutandis,
Uzun v. Germany, no 3523/05, § 60, 2 September 2010).
Depending on the circumstances of the case, the rule of law may
require that domestic law provide adequate protection against
arbitrary interference with Article 8 rights enabling the Court to be
satisfied that there exist effective guarantees against abuse (see
Uzun, § 63).
We
consider that such requirements should also apply in proceedings
instituted with the aim of divesting someone of his or her legal
capacity because of the serious consequences that the mere
institution of such proceedings may have. In this connection not only
are procedural guarantees that the person concerned may adequately
take part in the proceedings necessary, but we also consider it
indispensable, in order to avoid abuse, for the national law to
provide that a court decision be given on the well-foundedness of an
application to divest a person’s legal capacity – at
least on a provisional basis - within a reasonably short time-limit.
The Croatian Family Act contains no guarantees as to the speediness
of such proceedings and there is no evidence that the Croatian courts
attempted, of their own motion, to expedite proceedings which have
now been pending for more than three years. Accordingly, Croatian law
did not, in our opinion, comply in the present case with the
requirement under Article 8 § 2 that the interference be “in
accordance with the law”, and on that ground we can agree that
there has been a violation of Article 8 of the Convention in respect
of the second applicant as well.
