CEDH · CASELAW;CLIN;ENG — 3 novembre 2011

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Croatia - 5193/09 Judgment 3.11.2011 [Section I] Article 6 Civil proceedings Article 6-1 Fair hearing Lack of procedural safeguards in proceedings divesting the applicant of legal capacity: violation   Article 8 Article 8-1 Respect for private life Unwarranted institution of proceedings to divest applicant of legal capacity: violation   Facts – The applicants were a mother and daughter who had lived together until 2006 when the mother (the first applicant) was placed in a care home for the elderly due to old age and illness. In 2008 the social-welfare centre appointed the first applicant’s niece as guardian ad litem and initiated proceedings with a view to divesting the first applicant of her legal capacity. A psychiatric report, based on medical records from 2002 and an interview, concluded that the first applicant was unable to take care of herself, her rights or interests. Although the second applicant contested the niece’s appointment as guardian and the psychiatric report, and submitted a power of attorney to represent her mother, she was not informed of the court hearing dates. In August 2008 the court divested the first applicant of her legal capacity on the basis of the available information and the psychiatric report. That decision was never served on the applicants. In September 2008 the social-welfare centre appointed a guardian ad litem for the second applicant and initiated proceedings for her to be divested of her legal capacity too, on the grounds that she was suffering from muscular dystrophy and mental-health problems and was incapable of looking after herself. She was also alleged to be overly protective of her mother, having constantly complained about the care provided to her in the home and strongly opposed the proceedings in which her mother had been divested of her legal capacity. A psychiatric report was drawn up on the basis of a one-hour telephone conversation with the second applicant. She was also heard by the domestic court dealing with her case. At the time the European Court gave its judgment, the proceedings were still pending. Law – Article 6 § 1: The first applicant was never notified of the proceedings concerning her legal capacity; she was neither summoned by the court to give evidence nor seen by the judge conducting the proceedings. She was therefore unable to participate personally in the proceedings in any way. Even though the proceedings had been conducted in line with the domestic law, the Court considered that judges adopting decisions with serious consequences for a person’s private life, such as those resulting in individuals being divested of their legal capacity, should in principle have personal contact with the individuals concerned. Any decision based on the assessment of a person’s mental health should also be supported by relevant medical evidence. However, at the end of the day, it was the judge, not a psychiatrist, who needed to assess all the relevant facts and decide whether such an extreme measure was necessary in the individual case. The psychiatrist who drew up the medical report had seen the first applicant only once and concluded that she was gravely ill, bedridden and entirely dependent on the help of others. In the Court’s view, it would still have been preferable for the judge conducting the proceedings to have verified whether those conclusions were arbitrary, and to hear the witnesses and doctor involved. Furthermore, the domestic authorities had attached no weight to the second applicant’s submissions concerning her mother’s condition, even though they contained important arguments. The power of attorney authorising the second applicant to represent the first applicant in the proceedings was also disregarded, despite being legally valid. Moreover, the court decision divesting her of her legal capacity was never served on the first applicant, which had effectively prevented her from using any remedies. As regards the reasons adduced by the domestic court for its decision, the Court could not but observe that in order to ensure proper care for the ill and elderly, the State authorities had at their disposal much less intrusive measures than divesting them of legal capacity. In conclusion, the first applicant was deprived of adequate procedural safeguards in proceedings resulting in a decision adversely affecting her private life. Conclusion : violation (unanimously). Article 8: The mere institution of proceedings to divest individuals of their legal capacity had serious consequences for their private life, such as the appointment of a special guardian and their being subjected to psychiatric and other assessments. The guardian appointed for the second applicant was given a wide range of powers, including the power to represent her in all her personal affairs, and to take care of her person, rights, obligations and well-being. The institution of those proceedings therefore constituted an interference with her private life. Under the domestic law, a State authority wishing to institute proceedings to divest a person of his or her legal capacity had to be able to provide convincing evidence that the person in question was unable to care for his or her own needs or posed a risk to the rights and interests of others. In the second applicant’s case, the social-welfare centre had not relied on any such specific facts. The general nature of their assertions raised doubts as to the lawfulness of their request. As to her personal circumstances, the second applicant had been hospitalised twice in mental institutions, but had been discharged on the grounds that she had recovered and was responding positively to therapy. Conversely, the negative psychiatric report drawn up during the court proceedings was based only on a telephone conversation with a psychiatrist who had never treated her before. In her statement before the domestic court, the second applicant had explained that she lived alone and took care of all her needs, paid all her bills, had medical check ups and organised her social life. The Court saw no indication that she had caused any specific damage to her own interests or those of others that would justify divesting her of her legal capacity. In sum, the institution of the proceedings failed to observe the procedure and requirements prescribed by law, did not pursue a legitimate aim and was not necessary in a democratic society. Conclusion : violation (unanimously). Article 41: Finding of a violation constituted sufficient just satisfaction of any non-pecuniary damage sustained by the first applicant in view of possibility of having domestic proceedings reopened; EUR 2,000 in respect of non-pecuniary damage to the second applicant. (See also Shtukaturov v.   Russia , no.   44009/05, 27   March 2008, Information Note no.   106 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes