Last Updated on November 17, 2021 by LawEuro
Information Note on the Court’s case-law 256
November 2021
N. v. Romania (no. 2) – 38048/18
Judgment 16.11.2021 [Section IV]
Article 8
Article 8-1
Respect for private life
No possibility of tailor-made response in deprivation of legal capacity proceedings: violation
Facts – The present application concerns proceedings in which the domestic courts, basing their decisions mainly on medical expert opinions, divested the applicant of his legal capacity and placed him under the full authority of a legal guardian. The applicant also complained that he had had no say in the subsequent proceedings leading to the change of his legal guardian.
Law
Merits – Article 8:
a) Legal incapacitation – The applicant’s rights had been restricted by law more than had been strictly necessary. The consequences of that interference had been very serious. As a result of his incapacitation, the applicant had become fully dependent on his legal guardians, to whom the courts had transferred the exercise of his rights. Admittedly, in reaching their decision, the courts had referred to medical expert reports prepared for the purposes of the proceedings in question after direct examination of the applicant, who had participated in the proceedings and benefited from the assistance of counsel. However, that measure could not be modulated and the applicant’s actual needs and wishes could not be factored into the decision‑making process. Indeed, the existing legislative framework did not leave the judges, or in this case the forensic experts, any room for an individualised assessment of the applicant’s situation. The civil code distinguished between full capacity and full incapacity, but did not provide for a “tailor‑made response”.
The Court, however, noted with satisfaction that, in its recent decision no. 601 of 16 July 2020, the Constitutional Court has declared the legal provisions in question to be unconstitutional and in violation of the State’s international obligations with respect to the protection of the rights of people with disabilities.
Conclusion: violation (unanimously).
b) Change of legal guardian – On account of his legal incapacitation, the applicant had been ultimately prevented from deciding for himself about who would protect his interests and exercise his rights. Given the significant role of a legal guardian, that aspect was accordingly to be considered as another interference with the applicant’s right to respect for his private life.
The said procedure had lacked safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake. The proceedings had taken place between the social welfare authorities and the two legal guardians. The applicant had not been present in court. He had been excluded from those proceedings for the sole reason that he had been placed under guardianship, without any consideration for his actual condition or capacity to understand the matter and express his preferences. Although the applicant at one point appeared to have given his consent to the change of legal guardian, his opinion had not featured in the court’s reasoning (in fact, it had not even been part of the court file). The Court was not convinced that he would have had a real opportunity to appeal against the impugned decision. It had never been served on the applicant. Moreover, at that time, the only instance in which a person divested of legal capacity could apply to a court was to seek to have his or her incapacitation measure lifted.
In sum, the decision‑making process had not been conducted so as to ensure that the applicant’s current state of health was properly assessed and that all views and interests were duly taken into account. The interference had not been based on “relevant and sufficient reasons”.
Conclusion: violation (unanimously).
Article 46: The Court found it crucial that the respondent State adopted the appropriate general measures with a view to bringing its legislation and practice on legal incapacitation into line with the findings of the Constitutional Court in its decision of 16 July 2020 and with the international standards, including the Court’s case‑law, in the matter.
Article 41: EUR 7,500 in respect of non-pecuniary damage.
(See also Shtukaturov v. Russia, 44009/05, 27 March 2008, Legal Summary, A.N. v. Lithuania, 17280/08, 31 May 2016, Legal Summary, and Nikolyan v. Armenia, 74438/14, 3 October 2019, Legal Summary).
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