Communicated on 16 April 2020
Published on 2 June 2020
FIRST SECTION
Application no. 14028/20
Jasna TEPAVAC
against Croatia
lodged on 10 March 2020
SUBJECT MATTER OF THE CASE
The application concerns proceedings in which the applicant was partly deprived of her legal capacity.
On 21 March 2017 the Slunj Social Welfare Centre (hereinafter “the Centre”) asked the Karlovac Municipal Court to institute proceedings with a view to deprive the applicant partly of her legal capacity in order to prevent her from making decisions concerning her health. The Centre submitted that the applicant was unemployed, several times hospitalised in a psychiatric clinic and refused to take medication.
The applicant was appointed a legal guardian and a lawyer.
During the proceedings she was heard in the presence of her guardian, whereas her lawyer was not invited to attend the hearing. The applicant submitted that she finished high school and was currently unemployed, that she lived with her father, cooked for both of them, that she was taking medication and felt fine and that she had been hospitalised only once.
The court obtained an expert report from a psychiatrist who reported that the applicant suffered from chronic, severe and permanent mental disorder due to which she was unable to make any decisions. The applicant contested the expert report. Her guardian submitted that she had no objections to it and that she would not attend the following court hearing. The applicant’s lawyer was not served the expert report and was not invited to attend the next court hearing.
On 26 September 2018 the Karlovac Municipal Court partly deprived the applicant of her legal capacity, thereby preventing her her from making decisions concerning her health and medical treatment, choosing her place of residence and accommodation, undertaking actions before authorities, concluding agreements, getting a loan and disposing with her real-estates and with her money.
The applicant’s appeal was dismissed by the Zagreb County Court on 22 February 2019 and her subsequent constitutional complaint was dismissed by the Constitutional Court on 18 September 2019. The Constitutional Court held that the applicant’s lawyer, who had lodged the appeal against the first-instance decision on her behalf, had failed to complain about the alleged procedural deficiencies during the first-instance proceedings. It also observed that the independent expert report obtained by the applicant in April 2017, which advised against her being deprived of her legal capacity because her health condition was getting better, had been submitted only with her constitutional complaint. The Constitutional Court noted that the independent expert report in question had been given to the applicant’s lawyer by her 83-year-old father almost two years after it had been obtained.
The applicant complains under Article 6 § 1 of the Convention about the lack of fairness in the proceedings for deprivation of her legal capacity.
She also complains under Article 8 of the Convention that by partly depriving her of her legal capacity the domestic courts violated her right to respect for her private life.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of her civil rights and obligations concerning her legal capacity, as required by Article 6 § 1 of the Convention?
2. Has there been an interference with the applicant’s right to respect for her private life within the meaning of Article 8 § 1 of the Convention?
If so, was the interference in accordance with the law and necessary as required by Article 8 § 2?
In particular, were the reasons adduced to justify depriving the applicant partly of her legal capacity “relevant and sufficient”? Was the decision‑making process fair and such as to ensure due respect to the applicant’s rights under Article 8 of the Convention (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004 and Ivinović v. Croatia, no. 13006/13, § 36, 18 September 2014)?
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