In the case of M.S. v. Croatia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 2 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
36337/10) 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 a Croatian national, Ms M.S. (“the applicant”),
on 21 August 2010.
The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. Stažnik.
On 18 May 2011 the application was communicated 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
A. Background to the case
The applicant lives in a flat in a building
situated in L., Croatia. The ground floor of the building is leased by the L.
Municipality to M.M., who runs a restaurant there, “N.”.
Between March 2002 and January 2007 the applicant
called the police on 137 occasions in connection with the restaurant “N.”.
On 5 September 2003 the R. State Inspectorate
lodged a request for the institution of minor-offence proceedings against M.M.
in connection with unspecified irregularities in his restaurant business.
On 16 December 2004 the O. Minor Offences Court (Prekršajni
sud u O.) found M.M. and M.Č., an employee of the restaurant, guilty
of disturbing public peace and order at night by making excessive noise while carrying
out some building work on the restaurant.
On 20 May 2005 M.M. lodged a complaint with the
police against the applicant and her sister, alleging that at about 3 a.m., when
about thirty guests were leaving his restaurant, the applicant and her sister had
thrown water on them from the applicant’s balcony.
On 1 September 2005 the O. Minor Offences court
found M.M. and M.Č. guilty of disturbing public peace and order by making
excessive noise while carrying out building work on the restaurant.
On the same day another family complained about
the noise coming from the restaurant at 2 a.m. and 4 a.m.
On 7 January 2006 the other occupants of the
building, including the applicant, lodged a request with the L. Municipality for
the lease of the ground floor to M.M. to be terminated owing to noise and foul
smells. The request referred to ten previous complaints lodged with various
authorities against M.M. in respect of noise, the poisoning of cats and disturbance
of public peace and order, all of which remained unanswered.
On an unspecified date, forty-three persons
signed a petition complaining about the foul smell of the rubbish bins at the
restaurant “N.”, and twenty-two persons signed another petition concerning
excessive nightly noise from the restaurant.
B. Criminal proceedings against M.Č.
On 22 May 2003 the applicant and her sister, I., brought a private prosecution in the O. Municipal Court (Općinski sud u O.)
against M.Č. for verbal assault and inflicting bodily injury. The
applicant alleged, inter alia, that at about 1 a.m. on 10 May 2003
M.Č. had kicked and hit her several times all over her body.
A medical report drawn up at 2.37 a.m. on 10 May
2003 in respect of the applicant established that she had arrived at 2 a.m.
escorted by the police and alleged that Mr M.Č. had hit and kicked her.
Her right ankle and right hand were swollen; a contusion and haematoma were
found on her right hand and a further contusion on her right shin. A further
medical report drawn up on 12 May 2010 confirmed the same injuries and also noted
a contusion and haematoma on her right hip and a painful neck.
A hearing was held on 26 November 2003, at which
criminal proceedings on charges of verbal assault against the applicant and her
sister following a private prosecution by M.Č. were joined to the criminal
proceedings instituted by the applicant and her sister. M.Č. alleged that
the applicant had called him “an idiot” and sworn at him.
On 20 January 2004 the applicant’s counsel
submitted an application for the expedition of the proceedings in order to avoid
the expiry of the statutory limitation period for prosecution.
At a hearing held on 25 August 2004 the
applicant’s sister gave her oral evidence.
Another hearing was held on 26 October 2004. At
a hearing held on 17 November 2004 witnesses V.I., M.S. and G.R. gave evidence.
At a hearing held on 16 December 2004 an expert in forensic medicine gave her
opinion that the injuries to the applicant’s leg and hand could have been caused
in the manner described by the applicant. Witness G.Š. also gave evidence.
At a hearing held on 10 February 2005 all the accused
gave their oral evidence and the trial was concluded. M.Č. was found
guilty of inflicting bodily injury on the applicant, and the applicant and her
sister were found guilty of insulting M.Č. A court warning was given in
respect of all the accused.
The applicant, her sister and M.Č. all
appealed.
On 21 February 2007 the R. County Court (Županijski
sud u R.) quashed the first-instance judgment on the ground that, contrary
to the requirements of the criminal procedure, some hearings had been conducted
by an assistant to a judge and not a judge.
Hearings in the fresh proceedings were held on 12
February and 26 March 2008.
On 3 July 2008 the criminal proceedings against
the applicant and her sister were terminated but those against M.Č.
continued.
On 20 October 2008 a claim for costs and expenses
lodged by the applicant and her sister was dismissed. They lodged an appeal.
Further hearings were held on 27 February and 17
March 2009.
On 10 April 2009 the judge conducting the
proceedings learned that the O. Social Welfare Centre (“the Centre”) had
instituted proceedings for divesting the applicant and her sister of their legal
capacity before the same court and that a special guardian had been appointed for
each of them. On 14 April 2009 the judge asked the Centre to extend the
guardian’s authority to the representation of the applicant in the criminal
proceedings in issue. This was complied with on 21 April 2009 on the basis that
the applicant and her sister were unaccountable (neubrojive) and thus not
capable of being parties to the proceedings because of their mental issues.
At a hearing held on 28 April 2009 the special
guardians appointed for the applicant and her sister both stated that they were
not able to pronounce on whether or not they gave their consent to the
continuation of the criminal proceedings in issue.
On 28 April 2009 the proceedings were terminated
on the ground that on 21 April 2009 a special guardian had been appointed for
the applicant who had not expressly given her consent to the proceedings being
conducted and that therefore there was no request by an authorised prosecutor for
proceedings to be conducted.
On 6 May 2009 the applicant and her sister
lodged an appeal.
On 17 June 2009 the R. County Court terminated
the proceedings on the ground that in the meantime the prosecution against
M.Č. had become time-barred and that therefore the appeal by the applicant
and her sister had become obsolete.
On 12 October 2009 the applicant’s sister lodged
a constitutional complaint about the fact, inter alia, that the criminal
proceedings against M.Č. had been terminated.
On 11 March 2010 the Constitutional Court
declared the applicant’s sister’s constitutional complaint inadmissible,
finding that the decision terminating the criminal proceedings against M.Č.
had not been arbitrary.
C. Criminal proceedings against the applicant and her
sister
On 30 August 2006 M.M. brought a private
prosecution in the same court against the applicant and her sister for defamation,
alleging that on 31 May 2006, at about 8.35 p.m., just as the President of
“the former Yugoslav Republic of Macedonia” was entering his restaurant, which
was situated below the applicant’s and her sister’s flat, they had shouted from
their balcony that M.M. was involved in illegal weapons trafficking.
In their defence the applicant and her sister
claimed that they had not known that the person concerned was the President of
“the former Yugoslav Republic of Macedonia”, and that the comment they had made
while standing on their balcony, that M.M. had been involved in trafficking in
weapons, had been only to each other.
In the course of the proceedings the applicant
filed several submissions with the trial court, analysing in detail the
hearings and the witnesses’ statements and alleging discrepancies between what
the witnesses had said and what the judge had dictated in the record of the
hearings.
On 27 December 2007 the judge conducting the
proceedings commissioned a psychiatric report in respect of the applicant and
her sister. The applicant then sought that judge’s removal from the proceedings.
On 10 May 2007 the Vice-president of the O. Municipal Court dismissed her request.
In several submissions the applicant expressed strong
opposition to psychiatric intervention.
Psychiatrist K.R. drew up a report on the basis of
the documents in the case-file, mostly consisting of the above-mentioned
submissions by the applicant, without direct contact with her. The relevant
part of a report drawn up by the psychiatrist on 21 March 2008, in so far as it
concerns the applicant, reads:
“The case file shows that the second defendant ... answered
that she understood the charges and pleaded not guilty. Her defence ... shows
that she sees these criminal proceedings as an attack by the plaintiff, who
wants to destroy her physically, mentally and economically (a feeling of fear for
her mental and physical integrity which has no basis in reality).
In her defence ... the second defendant describes two
situations which are prevalent in mental illness ... and indicate a psychotic
disorder.
The entire case file shows that the second defendant is a
person prone to writing lengthy and repetitive letters, which she sends to
various institutions (mostly to courts and, as she said herself, also to the
police, ministries, and the office of the President, [of the O. Municipal]
Court containing detailed descriptions and complaints. The submissions in the
case file show that the second defendant is very literate, giving detailed descriptions
(often insignificant for the court proceedings) which appear convincing. It is
also to be noted that she studied the Criminal Code and the Code of Criminal
Procedure for the purpose of communicating with this court, which indicates a high
degree of intelligence.
The medical documentation has no date and does not bear the stamp
of the institution or name of the person who carried out the examination. The
second defendant concealed that information by photocopying the document, owing
to her suspicion and distrust, which is typical of paranoid persons. For the
same reason, the second defendant took away her medical record on 24 April
2007, that is, the day after the hearing at which it was decided that a
psychiatric assessment should be carried out. It is not known whether she
submitted her medical record to another medical institution, but it would not be
surprising if, because of the nature of her mental disorder, she were holding
that record in her possession.
All the available information leads to the conclusion that the
second defendant, M. S., suffers from mental illness which may be diagnosed as
a psychotic disorder.
...”
The psychiatrist concluded that both the applicant and her
sister suffered from a persistent psychotic disorder and that tempore
criminis they had both been unaccountable.
On 10 April 2010 the proceedings were terminated
on the ground that both the applicant and her sister had committed the offence
while suffering from a mental illness.
D. Proceedings to divest the applicant of legal
capacity
On 14 April 2008 the judge conducting the
above-mentioned criminal proceedings against the applicant and her sister sent
a letter to the O. Social Welfare Centre informing them that a psychiatric
report had been drawn up in respect of the applicant and her sister for the
purposes of those criminal proceedings and that the psychiatrist had
established that both the applicant and her sister were “mentally disturbed
persons, suffering from a persistent psychotic disorder”.
On 19 June 2008 psychiatrist K.R. sent a letter
to the O. Social Welfare Centre (“the Centre”) informing them that she had
carried out a psychiatric assessment of the applicant and her sister for the purposes
of the criminal proceedings against them before the O. Municipal Court on the
basis of the medical documentation enclosed with the criminal case file but without
any personal contact with them, since they refused to undergo any examination.
The psychiatrist referred to the findings of her
expert report (see § 38 above). The relevant part of the letter reads:
“The available sources ... indicate a manifest mental illness
of the persons concerned which is expressed in psychosis of a paranoid
character (relational ideas, ideas of persecution) primarily directed at one
person (M.M., possibly together with a new tenant in the same building, E.L.),
and the number of persons by whom the persons concerned feel threatened is growing
(the trial judge, the President [of the O. Municipal] Court, police officers).
The persons concerned frequently make complaints against these persons in
which, for the time being, they simply insult, sully and threaten them. Given
that paranoid persons have no control over themselves, that they feel
threatened, that they insist on their rights, expecting a favourable outcome
(which does not happen - that is to say that their problems are not resolved
because the police do not respond - they fabricate their statements and encourage
the persons who are threatening them ...).
The persons concerned are obviously dissatisfied with the
system; they constantly write letters, fax submissions ... An abundance of psychopathology
is evident, in particular in the copies of material written by M.S. (enclosed
with your letter of 16 May 2008). Increasingly serious psychopathology is apparent,
their anxiety is growing and eventually, with the aim of resolving their
problems, the persons concerned may take justice into their own hands in an attempt
to resolve their problems, which could manifest as aggression directed at the persons
who are threatening them.
The behaviour of I. and M.S. shows that they do not take care
of their (mental) health, which is only logical since they have no awareness of
their condition and illness. But, their behaviour jeopardises the rights and
interests of other persons, namely those at whom their psychosis is directed,
or those that they feel threatened by. Their behaviour threatens the existence
of the M. family; they inundate the police and the State Attorney’s Office with
letters; they seek examinations by medical personnel ...
They behave in this way because of their mental illness, owing
to which they lack introspection and self-awareness.
Against the above [background], I am of the opinion that there
is a basis for depriving [them] of their legal capacity.”
On 26 June 2008 the Centre asked the O.
Municipal Court to institute proceedings with a view to divesting the applicant
and her sister of legal capacity. The relevant part of the Centre’s submission
reads:
“ ... the psychiatric report in respect of .... M.S. drawn up
for the purposes of the criminal proceedings against her ... indicates that she
is mentally disturbed, suffering from a chronic psychotic disorder. On 26 June
2008 the Centre also received an opinion by the same psychiatrist stressing
that, owing to the said illness, there were grounds for the institution of
proceedings to divest her of legal capacity.”
On 15 September 2008 the Centre decided to appoint
its employee T.T. as guardian ad litem for the applicant in the
proceedings to divest her of her legal capacity. The relevant part of the
decision reads:
“The O. Municipal Court informed this Centre that
non-contentious proceedings had been instituted with a view to divesting M.S.
of her legal capacity ... and that a guardian ad litem needed to be
appointed for her for the purposes of these proceedings.
In the proceedings [before this Centre] the following has been
established:
- that on 22 April 2008 the O. Municipal Court sent a
submission to this Centre stating that criminal proceedings had been instituted
against the person concerned and her sister I. ... and that a psychiatric assessment
had been carried out in the context of these proceedings by permanent court
expert K.R., who established that the person concerned was a mentally disturbed
person, suffering from persistent psychosis; that the criminal offence she was
accused of had been committed under the influence of her own psychotic
experiences ..., that she was not capable of being a party in the proceedings,
and that therefore this Centre had to take all the necessary steps within its
competence. A copy of the expert opinion was enclosed as evidence.
...
- this Centre sent requests to her general practitioner and the
permanent court expert K.R., asking for their opinions as regards the justification
for instituting proceedings before a competent municipal court with a view to divesting
her of her legal capacity. In his expert opinion, psychiatrist K.R. expressed the
view that, given the above-described diagnosis, the institution of such
proceedings was justified;
- that this Centre, having established all the relevant facts,
requested the O. Municipal Court to institute proceedings for divesting [the
applicant] of her legal capacity;
-...
- that this Centre repeatedly sent written notifications and
telegrams to the person concerned so as to inform her about the proceedings in issue
and to obtain her response; which remained unanswered, and [the receipt slips]
showed that she had not collected her mail ...;
- that on 28 August 2008 employees of this Centre paid a visit
to her address in order to establish contact with M.S. and I., but they were
not found at their address.
Section 168, paragraph 1, of the Family Act provides that “for
the protection of personal and property rights and interests, a social welfare centre
shall appoint a guardian ad litem for a person in respect of whom a
request for divesting him or her of legal capacity has been lodged”.
Against the above background, this Centre considers that the circumstances
of the present case and the wellbeing of M.S. require that a guardian ad
litem, an employee of this Centre, be appointed for her to represent her
rights and interests in the non-contentious proceedings for divesting her of
legal capacity pending before the O. Municipal Court.
...”
On 30 January 2009 the O. Municipal Court
ordered a psychiatric and psychological assessment of the applicant.
The proceedings are still pending.
E. Civil proceedings instituted by the applicant and
her sister
On 23 May 2006 the applicant and her sister
lodged a civil claim in the O. Municipal Court against M.M., seeking
repossession of their wood shed and compensation for the use of the shed by M.M.
On 26 April 2010 those proceedings were stayed
owing to the institution of the proceedings for divesting the applicant and her
sister of legal capacity. The applicant lodged an appeal against that decision
and the proceedings are currently pending before the R. County Court.
F. Medical documentation concerning the applicant
The relevant part of a report drawn up by a
psychologist on 26 March 1999 reads:
“Personality inventory MMPI-201
Personality profile on all clinical scales is entirely within
the normal limits, which shows a mentally healthy person.
Test of mental capacity Wb-sp
Memory function is normal and the results of the test show
regular general knowledge, orientation, good mental control, excellent
numerical memory, and average logical and associative memory and visual
reproduction.
Conclusion
The patient is mentally healthy with no evidence of impaired
mental capacity.”
Another report drawn up by a different
psychologist on 31 August 2009 reads:
“She is open and her speech is normal. When undergoing tests
she is cooperative and understands the instructions and the purpose of the
tests. She shows adequate effort in fulfilling the tasks.
... in the past ten years she has had property disputes with
her neighbours, she talks about the destruction of property and theft of some
documents. On a few occasions she was physically attacked ... she is worried
for her life and complains of feelings of exhaustion and intense anger as
regards the inefficiency of the system. She suffers from insomnia when at her
flat because of her anxiety about the situation with the neighbours.
...
PM [test] shows far above average intellectual efficiency in
relation to her chronological age.
Memory function is also above average in relation to her
chronological age. Despite this, there is a certain lack of concentration on
the task at hand and low ability to acquire new knowledge.
LB [test] does not indicate anomalies as regards thought and motor
functioning.
The MMPI-201 profile of pathological tendencies shows a
defensive attitude towards testing. She presents herself as an energetic
person, inclined towards the suppression of sadness. A perception of being
misunderstood by those around her is present.
The Emotions Profile Index shows a tendency to give socially
desirable answers. She has exaggerated self control. She presents herself as a
person who does not react impulsively, and desires stability and safety. In her
relations with others she is overly cautious but suggestible. She overcomes
aggressive impulses, remains passive.
General defensiveness is of a significantly lower level. She
mostly uses intellectualisation as a defence mechanism, distancing herself from
emotion (afekt izolira). Her capacity for regression and transfer is
insufficient.
The NS semi-projective technique shows emphasised conflict with
authority. Grief caused by her mother’s [death] is present. She has little insight
into her own fears.”
The relevant part of a report drawn up by a
different psychiatrist on 11 December 2009 reads:
“Mental status: conscious, adequately orientated, contact is
easily established and maintained. Affect: euthymic [regular mood]. No
psychotic thoughts. She denies sensory hallucinations. Above average
intelligence.
So far she has not been treated for any psychiatric condition.”
The medical report of 17 July 2010 shows that
the applicant had sustained haematomas to the back of her head and left cheek.
She alleged that on 16 and 17 July 2010 she had
been attacked by a person she knew.
II. RELEVANT DOMESTIC LAW
The relevant parts of the Criminal Code (Kazneni
zakon, Official Gazette no. 110/1997) read as follows:
Article 8
“(1) Criminal proceedings in respect of criminal offences shall
be instituted by the State Attorney’s Office in the interest of the Republic of Croatia and its citizens.
(2) In exceptional circumstances the law may provide for
criminal proceedings in respect of certain criminal offences to be instituted
on the basis of a private prosecution or for the State Attorney’s Office to
institute criminal proceedings following [a private] application.”
BODILY INJURY
Article 98
“Whoever inflicts bodily injury on another person or impairs
another person’s health shall be fined or sentenced to imprisonment for a term
not exceeding one year.”
Article 102
“Criminal proceedings for the offence of inflicting bodily
injury (Article 98) shall be instituted by means of private prosecution.”
The relevant provisions of the Code
of Criminal Procedure (Zakon o kaznenom postupku,
Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and
62/2003) provide as follows:
Article 2
“(1) Criminal proceedings shall be instituted and conducted at
the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution
the qualified prosecutor shall be the State Attorney and in respect of criminal
offences to be prosecuted privately the qualified prosecutor shall be a private
prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall
undertake a criminal prosecution where there is a reasonable suspicion that an
identified person has committed a criminal offence subject to public
prosecution and where there are no legal impediments to the prosecution of that
person.
(4) Where the State Attorney finds that there are no grounds to
institute or conduct criminal proceedings, the injured party as a subsidiary
prosecutor may take his place under the conditions prescribed by this Act.”
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 for other
reasons, is unable to care for his or her own needs, rights and interests, or
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 its effect on his or her ability
to protect all or certain of their personal needs, rights and interests and
whether it might put at risk the rights and interests of others ....”
Section 161
“(1) A social welfare centre shall initiate court proceedings
where 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 partly.
(2) A social welfare centre shall appoint a special guardian
for a person in respect of whom 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 take care of 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 lead 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.”
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) The persons mentioned in paragraph 1 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 or 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.
...”
III. RELEVANT INTERNATIONAL
INSTRUMENTS
A. Convention on the Rights of
Persons with Disabilities, adopted by the United Nations General Assembly on
13 December 2006 (Resolution A/RES/61/106)
This Convention entered into force on 3 May
2008. It was signed and ratified by Croatia in 2007. The relevant parts of the
Convention provide:
Article 12
Equal recognition before the law
“1. States Parties reaffirm that persons with
disabilities have the right to recognition everywhere as persons before the
law.
2. States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects
of life.
3. States Parties shall take appropriate measures to
provide access by persons with disabilities to the support they may require in
exercising their legal capacity.
4. States Parties shall ensure that all measures
that relate to the exercise of legal capacity provide for appropriate and
effective safeguards to prevent abuse in accordance with international human
rights law. Such safeguards shall ensure that measures relating to the exercise
of legal capacity respect the rights, will and preferences of the person, are
free of conflict of interest and undue influence, are proportional and tailored
to the person’s circumstances, apply for the shortest time possible and are
subject to regular review by a competent, independent and impartial authority
or judicial body. The safeguards shall be proportional to the degree to which
such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States
Parties shall take all appropriate and effective measures to ensure the equal
right of persons with disabilities to own or inherit property, to control their
own financial affairs and to have equal access to bank loans, mortgages and
other forms of financial credit, and shall ensure that persons with
disabilities are not arbitrarily deprived of their property.”
B. Recommendation No. R (99) 4 of the Committee of
Ministers of the Council of Europe on principles concerning the legal
protection of incapable adults (adopted on 23 February 1999)
The relevant parts of this Recommendation read
as follows:
Principle 2 - Flexibility in legal response
“1. The measures of protection and other legal
arrangements available for the protection of the personal and economic
interests of incapable adults should be sufficient, in scope or flexibility, to
enable suitable legal response to be made to different degrees of incapacity
and various situations.
...
4. The range of measures of protection should
include, in appropriate cases, those which do not restrict the legal capacity
of the person concerned.
...”
Principle 3 - Maximum reservation of capacity
“1. The legislative framework should, so far as
possible, recognise that different degrees of incapacity may exist and that
incapacity may vary from time to time. Accordingly, a measure of protection
should not result automatically in a complete removal of legal capacity.
However, a restriction of legal capacity should be possible where it is shown
to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not
automatically deprive the person concerned of the right to vote, or to make a
will, or to consent or refuse consent to any intervention in the health field,
or to make other decisions of a personal character at any time when his or her
capacity permits him or her to do so.
...”
Principle 6 - Proportionality
“1. Where a measure of protection is necessary it
should be proportional to the degree of capacity of the person concerned and
tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with
the legal capacity, rights and freedoms of the person concerned to the minimum
extent which is consistent with achieving the purpose of the intervention.”
Principle 13 - Right to be heard in person
“The person concerned should have the right to be heard in
person in any proceedings which could affect his or her legal capacity.”
Principle 14 - Duration, review and appeal
“1. Measures of protection should, whenever possible
and appropriate, be of limited duration. Consideration should be given to the
institution of periodical reviews.
...
3. There should be adequate rights of appeal.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION IN CONNECTION WITH THE ALLEGED ATTACK ON THE APPLICANT
The applicant complained under Article 3 and 8
of the Convention that the
domestic authorities had failed to afford her adequate protection from an act
of violence. The
Court considers that in the particular circumstances of the present case these
complaints fall to be examined under Article 8 of the Convention, which reads,
in so far as relevant:
“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
The Government argued that the applicant had not
exhausted all available domestic remedies. She had instituted criminal
proceedings against M.Č. by a private prosecution only, without attempting
to have criminal proceedings instituted by a competent State Attorney’s Office,
and had not asked for an investigation to be carried out. Furthermore, she had
not lodged a constitutional complaint against the decision of 17 June 2009
terminating the criminal proceedings against M.Č.
The applicant contended that she had exhausted
all available domestic remedies.
The Court reiterates that under Article
35 § 1 of the Convention it may only deal with a matter after all
domestic remedies have been exhausted. The purpose of the exhaustion rule is to
afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to
it (see, Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-IV). The obligation to exhaust domestic
remedies requires that an applicant make normal use of remedies which are
effective, sufficient and accessible in respect of his Convention grievances.
The Court further reiterates that the rule of
domestic remedies must be applied with some degree of flexibility and without
excessive formalism (see Cardot v. France, 19 March 1991, Series A no.
200, § 34). It has further recognised that the rule of exhaustion is neither
absolute nor capable of being applied automatically; in reviewing whether it
has been observed it is essential to have regard to the particular
circumstances of each individual case (see Van Oosterwijck v. Belgium, 6
November 1980, Series A no. 40, § 35).
The Croatian legislation distinguishes between criminal
offences to be prosecuted by the State Attorney’s Office, either of its own
motion or upon a private application, and those to be prosecuted by means of a
private prosecution.
Article 2 of the Code of Criminal Procedure allows
for criminal proceedings to be instituted only at the request of an qualified prosecutor.
In respect of criminal offences to be prosecuted by the State, the only qualified
prosecutor is the State Attorney, while in respect of other criminal offences,
the qualified prosecutor is a private prosecutor, in principle the injured
party.
Furthermore, Article 98 of the Criminal Code
expressly provides that criminal proceedings for the offence of inflicting
bodily injury shall be instituted by means of a private prosecution.
In the present case the applicant and her sister
brought a private prosecution in the O. Municipal Court against M.Č. on
charges of inflicting bodily injury. Had the Municipal Court considered that
they were not authorised to bring such a prosecution, it could not have
proceeded with the case. However, that court accepted its jurisdiction in the
case and conducted the criminal proceedings in the private prosecution brought
by the applicant and her sister. It thus accepted that they were authorised
prosecutors within the meaning of the Code of Criminal Procedure. Therefore,
the applicant had no reason to make a request to the State Attorney’s Office for
the prosecution of M.Č.
As regards the Government’s contention that the
applicant did not lodge a constitutional complaint, the Court notes that it is
true that the applicant herself did not lodge such a complaint. Her sister, who
was a party to the same proceedings, lodged a constitutional complaint whereby
she complained, inter alia, about the fact that the criminal proceedings
against M.Č. had been terminated. The Constitutional Court, however,
declared it inadmissible on the ground that the decision terminating the
criminal proceedings against M.Č. had not been arbitrary.
The Court considers that in this way the
domestic authorities were afforded the opportunity to remedy the violation
alleged. It further considers that there is no reason to believe that a
different decision would have been reached in respect of a constitutional
complaint lodged by the applicant herself. Accordingly, in the circumstances of
the present case the Government’s argument in this regard should be rejected.
The Court further considers that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It is not inadmissible on any other ground and must therefore
be declared admissible.
B. Merits
1. The parties’
arguments
The applicant maintained that the national
authorities had not provided her with adequate protection against a violent attack
by a private individual.
The Government maintained that the applicant’s
allegations of violence were not credible because the applicant had submitted a
large number of complaints to the police and the State Attorney’s Office which had
turned out to be unfounded. Furthermore, a police inquiry had shown that the
applicant had not been attacked by anyone.
2. The Court’s
assessment
While the essential object
of Article 8 is to protect the individual against arbitrary action by the
public authorities, there may in addition be positive obligations inherent in an
effective “respect” for private and family life, and these obligations may
involve the adoption of measures in the sphere of the relations of individuals
between themselves (see, mutatis mutandis, X and Y v. the Netherlands, X and Y v. Croatia, no. 5193/09, §§ 23-24, 3
November 2011; Mikulić
v. Croatia, no. 53176/99, § 57, ECHR 2002-I
and 27; and Sandra Janković v. Croatia, no. 38478/05, § 44, 5 March 2009).
. The
Court has previously held, in various contexts, that the concept of private
life includes a person’s physical and psychological integrity. Under Article 8
States have a duty to protect the physical and moral integrity of an individual
from other persons. To that end they are to maintain and apply in practice an
adequate legal framework affording protection against acts of violence by
private individuals (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts
v. the United Kingdom, 25 March
1993, § 36, Series A no. 247-C; D.P. and J.C.
v. the United Kingdom, no. 38719/97, § 118, 10
October 2002; M.C. v. Bulgaria, cited
above, §§ 150 and 152; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; and Sandra Janković, cited
above, § 45).
As to the present case,
the Court notes that the applicant alleged that the attacker had kicked
and hit her. The medical documentation shows that the
applicant sustained a contusion and haematoma on her right hand and her
right hip, and a further contusion on her right shin. Her right ankle and right
hand were swollen and she had a painful neck. Acts of
violence such as those alleged by the applicant require the States to adopt
adequate positive measures in the sphere of criminal-law protection. Where
attacks on one’s physical integrity come from a private individual, the Convention
does not necessarily require a State-assisted prosecution against the attacker
in order to secure the applicant’s Convention rights (see Sandra
Janković, cited above, §§ 50-51). Where the domestic law affords an applicant
a possibility to pursue the prosecution of his or her attacker, either as a
private prosecutor or as the injured party in the role of a subsidiary
prosecutor, and the applicant has availed him or herself of this possibility,
the Court must examine the effectiveness and the manner in which that criminal-law
mechanism was implemented (see, mutatis mutandis, V.D. v. Croatia,
no. 15526/10, § 84, 8 November 2011, and Butolen v. Slovenia,
no. 41356/08, §§ 69-70, 26 April 2012).
As to the criminal-law mechanisms provided in
the Croatian legal system, the Court found in the Sandra Janković
case that violent acts committed by private individuals were prohibited under a
number of separate provisions of the Croatian Criminal Code.
Furthermore, as to the sphere of criminal law,
Croatian legislation distinguishes between criminal offences to be prosecuted
by the State Attorney’s Office, either of its own motion or upon a private
application, and those to be prosecuted by means of a private prosecution. Thus,
the requirement of providing criminal-law mechanisms in respect of violent acts
by private parties has been satisfied.
However, providing an appropriate legal
framework for protecting individuals from violent attacks on their personal
integrity is not sufficient. The Court will next examine
whether or not the impugned regulations and practices, and in particular the
domestic authorities’ compliance with the relevant procedural rules, as well as
the manner in which the criminal-law mechanisms were implemented in the instant
case, were defective to the point of constituting a violation of the respondent
State’s positive obligations under Article 8 of the Convention (see Sandra
Janković, cited above, § 51).
As to the present case, on 22 May 2003 the
applicant and her sister, I., brought a private prosecution in the O. Municipal
Court against M.Č. for verbal assault and inflicting bodily injury. A
first-instance judgment finding M.Č. guilty of inflicting bodily injury on
the applicant was adopted on 10 February 2005, but was quashed upon appeal
by the R. County Court on 21 February 2007.
However, in the resumed proceedings the judge
conducting the proceedings, upon learning that proceedings for divesting the applicant
and her sister of their legal capacity had been instituted, asked that the
authority of the special guardians appointed for them in those proceedings be
extended to representing them also in the criminal proceedings in issue. Thus,
the consent of the guardians became a requirement for the continuation of the
proceedings, whereas there are no provisions in the Croatian legal system
addressing a possible conflict of wishes between a guardian and the person
placed under guardianship.
The guardians stated that they were not able to
pronounce on whether or not they gave their consent to the continuation of the
criminal proceedings in issue (see paragraph 27 above). On 28 April 2009 the
proceedings were terminated on the ground that on 21 April 2009 a special
guardian had been appointed for the applicant who had not expressly given her
consent to those proceedings being conducted, and that therefore there was no
request by an authorised prosecutor for the proceedings to be conducted.
Further remedies resorted to by the applicant and her sister were unsuccessful.
Thus, the facts surrounding the alleged attack
on the applicant were never established by a competent
court of law. In this connection, the Court notes that one of the main purposes
of imposing criminal sanctions is to restrain and deter the offender from
causing further harm. However, these aims can hardly be obtained without having
the facts of the case established by a competent criminal court.
. In
the Court’s view, the outcome of the criminal proceedings in the present case
cannot be said to have had a sufficient deterrent effect or to have been
capable of ensuring the effective prevention of unlawful acts such as those
complained of by the applicant.
. In
this light, and also having regard to the fact that the proceedings were
pending for almost six years, the Court considers that the impugned practices did
not, in the circumstances of the present case, provide adequate protection to
the applicant against an attack on her physical integrity, and that the manner
in which the criminal-law mechanisms were implemented in the instant case was defective
to the point of constituting a violation of the respondent State’s positive
obligations under Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION IN CONNECTION WITH THE PROCEEDINGS FOR DIVESTING THE APPLICANT OF
LEGAL CAPACITY
The 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. The text of Article 8 of the Convention is set out above.
A. Admissibility
. The
Government argued that any complaint in respect of the proceedings concerning
the applicant’s legal capacity was premature since they were still pending.
They further noted that the applicant had not lodged an appeal against
the decision of the Centre to appoint its employee T.T. as her guardian ad
litem for the proceedings to divest her of her legal capacity.
. The
Court notes that the applicant complains that the institution of court
proceedings with a view to divesting her of legal capacity amounted to an
unjustified interference with her right to respect for her private life. In
view of the nature of this complaint, the question whether the 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 the
proceedings are still pending is closely linked to the merits of this
complaint. Likewise, the issue of lodging an appeal against the said
decision is also closely linked to the substance of the applicant’s complaint concerning
the proceedings in issue. Therefore, the Government’s objection as to the
exhaustion of domestic remedies should 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 applicant argued that the institution of the
proceedings for divesting her of legal capacity violated her right to respect
for her private life.
The Government firstly maintained that the
institution of the proceedings in issue could not be seen as an interference
with the applicant’s right to respect for her private life. The legal
consequences of divesting a person of his or her legal capacity came into play only
after the decision to that effect became final. In the proceedings in issue a
complete psychiatric assessment of the applicant’s mental health would be
carried out. In these proceedings the applicant was represented by a guardian ad
litem whose competences were prescribed by law.
Were the Court to find that there had been an
interference with the applicant’s right to respect for her private life, the
Government argued that such an interference was based on law, namely, the
Family Act. Moreover, a competent social welfare centre was obliged to institute
proceedings for divesting of his or her legal capacity a person who placed at
risk the rights and interests of others.
The “interference” had also pursued a legitimate
aim, namely the protection of the rights and interests of others. It had been necessary
in a democratic society since the applicant, owning to her mental illness, had
lodged a large number of criminal complaints against various persons.
2. The Court’s
assessment
(a) Whether there has been an
interference
In the case of X and Y v. Croatia (cited
above) the Court held as follows:
“102. 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.
103. 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.
104. 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).
The Court does not see any reason to depart from these
conclusions in the present case.
(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 (see, by way of comparison, X and Y v.
Croatia, cited above, § 105).
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 partly 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 (see X
and Y v. Croatia, cited above, § 107).
. The
Court considers that in deciding whether proceedings to divest a person of legal
capacity are 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 that strict scrutiny is called for where measures that have such
adverse effect on a person’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 (see X and
Y v. Croatia, cited above, § 109).
. 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 his or her 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 in issue
(see X and Y v. Croatia, cited above, § 111).
In the present case, in its request of 26 June
2008 the Centre claimed that it had been established by a psychiatrist in a
report commissioned for the purposes of the criminal proceedings against the
applicant and her sister that both of them suffered from a persistent psychotic
disorder and that this in itself required the institution of proceedings for
divesting both of them of their legal capacity.
The Centre’s request relied solely on the
psychiatric report mentioned above. As to that report, the Court notes,
however, that it was drawn up in the context of criminal proceedings against
the applicant by a psychiatrist who had never had any contact with her. The
Court recalls that in its judgment X and Y v. Croatia it expressed
severe doubts as to a report drawn up by a psychiatrist
who had not previously treated the applicant and who had held only a telephone
conversation with her. Likewise, in the present case the Court is sceptical as
to whether the applicant’s mental condition could have been assessed with
sufficient certainty without the psychiatrist having seen the applicant, in
particular given the significance of such a report.
The Court also stresses that the institution of
proceedings to divest a person of his or her legal capacity has to be subject to the relevant procedural safeguards. The Court’s task
in the present case is to review under the Convention the decisions that the
Croatian authorities took in the exercise of their power of appreciation.
. The
proceedings in issue were instituted on the basis of the Centre’s request of 26
June 2008. However, the documents in the case file do not indicate that there had
been any contact between the Centre’s personnel and the applicant prior to the submission
of that request. The Centre had made only one attempt to visit the applicant at
her address.
. As
stated above, the request lodged by the Centre relied solely on the views
expressed by a psychiatrist who had had no contact with the applicant. There is
no indication that the opinion of any doctor who had had regular contact with
the applicant over a longer period of time was obtained. Even though the
decision of 15 September 2008 mentions an attempt to contact the applicant’s
general practitioner, there is no indication in the case file of any follow-up
in that regard.
. As
regards the representation of the applicant in those proceedings, the Court
notes that an employee of the Centre was appointed as the applicant’s guardian ad
litem. However, given that it was the Centre itself that had instituted the
proceedings for divesting the applicant of her legal capacity, it would be difficult
to expect an employee of that same Centre to oppose or challenge such a request.
The Court is also mindful of the fact that the national law does not provide
for obligatory representation of the person concerned by an independent lawyer,
despite the very serious nature of the issues concerned and the possible
consequences of such proceedings.
. The
Convention does not lay down for the Contracting States any given manner for
ensuring within their internal law the effective implementation of the
Convention. The choice as to the
most appropriate means of achieving this is in
principle a matter for the domestic authorities, who are in continuous contact
with the vital forces of their countries and are better placed to assess the
possibilities and resources afforded by their respective domestic legal systems
(see Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007-II). However, the Court notes
that in the present case neither was the request by the Centre supported by
adequate justification, arguments and evidence, nor was the applicant given a
possibility to object ab initio to the institution of the proceedings at
issue.
. Having
regard to this and to the specific situation where the Centre’s request relied
solely on a report drawn up by a psychiatrist who had never had any contact
with the applicant, where the Centre itself had had no contact with the
applicant, and where the applicant had no prior history of mental illness, the
Court considers that the institution of court proceedings with a view to
divesting the applicant of legal capacity did not comply with the procedure and
requirements prescribed by law (see paragraph 56 above), did not pursue a
legitimate aim and was not necessary in a democratic society.
. As
to the Government’s objection that the applicant did not exhaust domestic remedies
(see paragraphs 87 and 88 above), the Court notes that the institution of the proceedings
in issue amounted to an interference and therefore the fact that those proceedings
are still pending cannot render the complaint relating to them premature. As
regards the possibility for the applicant to challenge the appointment of the
guardian, the Court considers that the only relevant remedy as regards that complaint
would be a possibility for the applicant to challenge the institution of the proceedings
for divesting her of legal capacity, which is not an option under Croatian law.
. Against
the above background, the Court rejects the Government’s objection as to the
exhaustion of domestic remedies and finds that there has been a violation of
Article 8 as regards the institution of the proceedings for divesting the
applicant of legal capacity.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that her right to a
fair trial had been violated because the civil proceedings in which she had
sought repossession of a wood shed and compensation for its use had been stayed.
She relied on Article 6 § 1 of the Convention, the relevant part of which reads
as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Admissibility
The Court notes that the proceedings in issue
are still pending and therefore any complaint relating to them is premature.
It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also invoked Articles 5, 7 and 13
of the Convention, as well as Article 1 of Protocol No. 1, Article 2 of
Protocol No. 4 and Articles 2 and 4 of Protocol No. 7, without further
substantiation.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.”
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.”
The applicant did not submit a claim for just
satisfaction or for costs and expenses. Accordingly, the Court considers that
there is no call to award her any sum on these accounts.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to
the merits the Government’s objection as to the exhaustion of domestic remedies
and rejects it;
2. Declares the complaints under Article 8 of
the Convention concerning the alleged inadequacy of protection against the alleged
attack on the applicant by M.Č. and the institution of the proceedings for
divesting her of legal capacity admissible and the remainder of the application
inadmissible;
3. Holds that there has been a violation of
Article 8 of the Convention due to the inadequate protection against the
alleged attack on the applicant’s physical integrity;
4. Holds that there has been a violation of
Article 8 of the Convention due to the institution of the proceedings to divest
the applicant of legal capacity;
Done in English, and notified in writing on 25 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
