In Ivinovicv Croatia, the European Court of Human Rights has dealt with procedural aspects of the decision on a partial deprivation of legal capacity.
The applicant had suffered from cerebral palsy since her early childhood. In 1968 she had been deprived of her legal capacity, but in in 1979 it had been restored.
In 2009, the local Social Welfare Centre instituted proceedings before the Zagreb Municipal Court aimed ad depriving the applicant partially of her legal capacity. It relied on statements of a social worker and the applicant’s son. Allegedly, the applicant had undergone personality changes following her hospitalization and surgery. She had stopped making payments on the mortgage for her apartment, entailing the risk of her eviction, had not paid utility bills and started buying large amounts of phone vouchers. The Social Welfare Centre submitted bills and final demands for payments in support of their request.
The Social Welfare Center appointed an employee of the center as a legal guardian to represent the applicant during the procedure; in addition to that, the applicant retained a lawyer of her own choosing. The employee of the Social Welfare Center representing the applicant consented to the (partial) deprivation of the applicant’s legal capacity during the proceedings. The applicant, on the other hand, objected. She pointed out that she had fallen behind with the bills due to her hospitalization. She had asked her son to withdraw money from her account and to pay the bills for her, but he had failed to do so.
The competent court commissioned a psychiatric report. The psychiatric expert tasked to carry out the examination found that the applicant was not entirely able to look after her needs and that she might jeopardize the interests of others. In the oral hearing, the psychiatrist endorsed the report. The court partially deprived the applicant of her legal capacity. The applicant appealed against this judgment. She advanced the argument that main reason for the court to deprive her partially of her legal capacity had been her allegedly lacking ability to handle her financial matters. In this regard, the court had heavily relied on the expert report by the psychiatrist. However, in her opinion the expert had not had neither sufficient insight into her financial matters nor the requisite expertise to come to these conclusions.
The appeal court rejected the appeal. It relied on the psychiatric report and added that the applicant’s hospitalization could not explain the applicant’s debts, since they, according to the dates on the bills, had been over a period lasting longer than the applicant’s stay in hospital.
After her complaint was rejected by the Constitutional Court, the applicant submitted an application to the European Court of Human Rights. She alleged that the way in which the proceedings had been conducted infringed on her rights under article 8 ECHR (right to private life)
The European Court of Human Rights reiterated that the deprivation as well as the partial deprivation of legal capacity amounted to an interference with a person’s private life.
It pointed out that article 8 ECHR did not contain any explicit procedural requirements. Still, the procedure in which the decision on the interference had been made had to meet certain standards so as to provide adequate protection of the interests protected by article 8 ECHR. The Court stated that it was not its task to substitute its own judgment for the judgment of the domestic courts and that states enjoyed a certain margin of appreciation when securing the rights enshrined in the Convention. However, this margin was limited where decisions affecting a person’s private autonomy were at stake. Domestic courts dealing with the total or partial deprivation of a person’s legal capacity were required to adduce sufficient reasons for their decisions which reflected that all factors to be considered for the decision had been pondered carefully.
The European Court of Human Rights pointed out that the domestic courts had heavily relied on the psychiatric reports when deciding to deprive the applicant in part of her legal capacity. While it recognized the important role of expert reports, it reiterated that it was for the judge to make the decision, not for the expert. It was also for the judge to decide whether a far-reaching measure such as the (partial) deprivation of legal capacity was called for or whether less intrusive means could be sufficient. The judge had to assess this bearing in mind all circumstances of the case.
The Court pointed out that the domestic courts had chiefly relief on two reasons: the danger to the applicant’s health and her alleged inability to make sound financial decisions. It stated that it had not been established during the domestic proceedings that the applicant did not take care of her health. With regard to the applicant’s financial situation, the European Court of Human Rights found that the Croatian courts had not established all relevant facts. The appeal court had simply referred to the bills and stated that the debts had been incurred during a longer period than the applicant’s hospitalization. It had never ascertained during which times exactly the utility bills had remained unpaid; also, it had never scrutinized the applicant’s statement that her son had taken money from her account.
The Court also criticized that the domestic courts never had dealt with the question whether less intrusive means than the partial deprivation of legal capacity could have achieved the aim of protecting the applicant.
Finally, the European Court of Human Rights pointed out that the Social Welfare Center had appointed one of its employees as the legal representative of the applicant. Thus, the person to protect the interests of the applicant had at the same time been subordinated to the institution which had filed the request, which did not guarantee and independent and effective representation.
In view of these procedural shortcomings, the European Court of Human Rights found a violation of article 8 ECHR.