CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 juin 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 7 July 2025   FIFTH SECTION Application no. 35190/23 M.L. against Switzerland lodged on 15 September 2023 communicated on 17 June 2025 SUBJECT MATTER OF THE CASE The application concerns the decision of the competent authorities to place the applicant, against his will, under a cooperative legal guardianship ( Mitwirkungsbeistand ) in order to protect him against his wife, after he had transferred significant sums of money to her. The applicant is a Swiss national who married in 2017. In 2019 divorce proceedings were initiated between the applicant and his wife, but ultimately not followed up. At the same time the applicant’s mother died (summer 2019) and he inherited considerable assets (real estate, investment portfolio, bank accounts, and 1.9 million Swiss Francs (CHF) in cash). In the wake of this inheritance, the applicant’s bank informed the competent authority ( Kinder- und Erwachsenenschutzbehörde, KESB ) of the canton of Lucerne about its concerns relating to the applicant’s handling of his assets. There were indications that he was psychologically and/or physically pressured by his wife to transfer large amounts of money and/or real estate to the latter. As a result, the KESB provisionally revoked the applicant’s right to dispose of his money except for a limited sum and appointed a legal guardian to supervise the totality of his transactions. These provisional measures were upheld by the competent domestic courts. The applicant subsequently commissioned an expert opinion which concluded that he was in full possession of his powers, able to handle his financial business and did not suffer from any psychological deficits (opinion of 23 June 2020). The expert commissioned by the KESB however concluded, in their opinion of 10 November 2020, that the applicant was emotionally immature and suffered from a non-specified disorder of adult personality and behaviour. The expert concluded that the applicant was not able to oppose his wife’s financial demands effectively and needed support in this respect, and that the applicant did not seem capable of having a reasonably critical approach towards his wife. The applicant subsequently commissioned another expert with a methodological assessment, which concluded that the KESB expert’s findings were methodologically untenable (opinion of 19 February 2021). On 30 July 2021, based on its expert opinion and despite the expert opinions adduced by the applicant, the KESB took the final decision to assign a cooperative legal guardian ( Mitwirkungsbeistand ) concerning the applicant’s real estate, his investment portfolio, as well as loans and donations surpassing a certain amount. As a result, more important financial transactions in this respect, including to his wife, only become effective after approval of the legal guardian. On 5 August 2022 the Cantonal Court dismissed the applicant’s appeal against this measure. On 8 June 2023 the Federal Supreme Court (in a composition of five judges), dismissed the applicant’s appeal on points of law. Before the Court, the applicant claims, referring to Article 8 of the Convention, that he was disenfranchised without any valid reason. It was untenable to partly deprive a law-abiding citizen from his legal capacity only because he was transferring assets to his wife. He argues that the KESB, the expert commissioned by the KESB and the bank had been biased against him from the beginning. His arguments and the evidence that he had adduced – notably the expert opinions – had effectively been ignored and misread by the KESB and the courts. QUESTIONS TO THE PARTIES 1.     Has there been interference in the right to respect for the private and family life (Article 8 of the Convention) of the applicant as a result of the appointment of a legal guardianship and, as a consequence, of the restrictions imposed on his capacity to dispose freely of his assets?   In the affirmative, was the interference in accordance with the law, did it pursue a legitimate aim and was it necessary in a democratic society, as prescribed by paragraph 2 of Article 8 of the Convention?   2.     Was the decision-making process leading to the imposition of the legal guardianship fair and such as to ensure due respect of the interests safeguarded by Article 8 ( Ivinovic v. Croatia , no.   13006/13, § 36, 18   September 2014, and M.K. v.   Luxembourg , no.   51746/18, § 63, 18   May 2021)?   In particular, did the competent authorities sufficiently take into account the two expert opinions submitted by the applicant or, at least, give convincing reasons why they were not capable of challenging the conclusions drawn in the opinion commissioned by the KESB?   3.     Has the applicant raised in substance a complaint under Article 6 § 1 of the Convention regarding an alleged breach of the right to a fair hearing, in particular the principle of equality of arms for the reasons set forth in question   2? If so, has there been a violation of that provision?