Proceedings to divest individuals of their legal capacity
II. RELEVANT DOMESTIC LAW 57. 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 other reasons, is unable to care for his or her own needs, rights and interests, or who 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 the effect of that condition on his or her ability to protect all or individual personal needs, rights and interests and whether it could put at risk the rights and interests of others ....” Section 161 “(1) A social welfare centre shall initiate court proceedings when 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 in part. (2) A social welfare centre shall appoint a special guardian to a person in respect of whom the 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 care for 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 have 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.” COURT PROCEEDINGS Section 315 “(1) Where a decision alters the personal status of a party or his or her rights and obligations, such a decision comes into effect when it becomes final.” ...” Section 316 “An appeal may be lodged against a decision adopted at first instance where this Act does not provide otherwise. ...” 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) Persons mentioned in subsection 1 and a social welfare centre 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 and 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. ...” 58. The relevant part of section 190 of the Social Welfare Act (Official Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001, 103/ 2003 and 44/2006, Zakon o socijalnoj skrbi ) provides: “(1) An adult accommodated on the basis of a decision by a social welfare centre is obliged to pay for his or her accommodation, up to the full price, using all of his or her income and monetary assets. ...” 59. Section 428(a) of the Civil Procedure Act ( Zakon o parničnom postupku ) enables an applicant in respect of whom the European Court of Human Rights has found a violation of the Convention or its Protocols to request, within 30 days of the Court’s judgment becoming final, the re ‑ opening of the domestic proceedings in question. In the new proceedings the domestic courts are obliged to follow the reasons given in the Court’s judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 8 OF THE CONVENTION IN RESPECT OF THE PROCEEDINGS DIVESTING THE FIRST APPLICANT OF LEGAL CAPACITY 60. The first applicant complained that the manner in which the proceedings divesting her of legal capacity had been conducted violated her right to a fair trial and to respect for her private life. She relied on Article 6 § 1 and Article 8 of the Convention, the relevant part of which provides: Article 6 § 1 “1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” Article 8 “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 1. Exhaustion of domestic remedies (a) The parties’ arguments 61. The Government argued that the first applicant had failed to exhaust domestic remedies because she had not lodged a constitutional complaint in the proceedings with regard to her legal capacity. Had she done so, the Constitutional Court would have invited her guardian to give her consent to such a complaint and, had the guardian given her consent, the Constitutional Court would have examined the complaint on the merits. 62. The first applicant argued that a constitutional complaint was not an effective remedy because it depended on the discretion of a guardian and that the Constitutional Court sometimes took more than two years after the lodging of a constitutional complaint to ask for a guardian’s consent. In any event, the decision divesting the first applicant of legal capacity had not been served on her, so she had been unable to use any remedies against it. (b) The Court’s assessment 63. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996-IV; and Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010-...). 64. Remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999; Gurepka v. Ukraine, no. 61406/00, § 60, 6 September 2005; and Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010-...). 65. As to the present case, the Court notes firstly that the first applicant was not informed of the proceedings initiated before the I. Municipal Court with a view to divesting her of legal capacity and was never given an opportunity to participate in these proceedings, but was represented by a guardian ad litem, who appears to have had no contact with her. 66. Under the relevant procedural rules, before lodging a constitutional complaint an applicant has first to exhaust all previous remedies. Thus, the first applicant should first have lodged an appeal against the first-instance decision of the I. Municipal Court. However, the decision of the I. Municipal Court divesting the first applicant of her legal capacity was never served on her and she was therefore unable to use any remedies against it. 67. Furthermore, had the first applicant lodged a constitutional complaint, the Constitutional Court would not have examined it before obtaining the consent of the first applicant’s guardian. Although a guardian ad litem is not a public official, the Court still considers that in these circumstances it cannot be said that the remedies relied on by the Government were accessible to the first applicant. It follows that the Government’s objection must be dismissed. 2. Compliance with the six-month time-limit 68. The Government argued that the first applicant had lodged her application with the Court out of the six-month time-limit, because she had received a decision on appointing D.P.D. as her special guardian on 20 June 2008. 69. The first applicant argued that the only relevant decision was that adopted by the I. Municipal Court on 21 August 2008. 70. The Court notes that the last decision in connection with the proceedings whereby the first applicant was divested of her legal capacity was adopted by the I. Municipal Court on 21 August 2008. The present application was lodged with the Court on 15 January 2009. It follows that the Government’s objection must be rejected. 3. Conclusion 71. The parties did not dispute the applicability of Article 6, under its “civil” head, to the proceedings at issue concerning the first applicant, and the Court does not see any reason to hold otherwise (see Winterwerp v. the Netherlands, 24 October 1979, Series A no. 33, § 73; and Shtukaturov v. Russia, no. 44009/05, § 64, 27 March 2008). 72. The Court notes that the first applicant’s complaints under Article 6 § 1 and Article 8 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ arguments 73. The first applicant argued that the proceedings concerning her legal capacity were unfair because she had not participated in them. Nor had she been given an opportunity to participate in the proceedings whereby the special guardian appointed to represent her in the court proceedings had been selected. The same body, the I. Centre for Social Welfare, had appointed a guardian against her will and had instituted the proceedings to divest her of legal capacity before the I. Municipal Court. The authorisation she had given to her daughter, entitling the latter to represent her in these proceedings at a time when she still had legal capacity, had been ignored and the submissions made by her daughter in these proceedings, although containing arguments relevant to assessment of her condition, had been ignored. The decision divesting her of legal capacity had not been served on either her or her daughter. All this had been in contravention of the Family Act, which required that an individual concerned by proceedings to divest him or her of legal capacity was to be heard in the proceedings. 74. The decision divesting her of legal capacity contained only one and a half page and was not adequately reasoned. 75. The consequence of the decision to divest her of legal capacity was that she had completely lost her autonomy and had no right to make any decisions concerning her life. Furthermore, her daughter, as her sole living close relative, had not been appointed as her guardian and had also been completely excluded from taking any decision as regards the first applicant’s life. There had been no reason to divest her completely of legal capacity, since she had never in any manner put at risk her own or others’ interests. 76. The Government argued that the measure to divest the first applicant of her legal capacity had been adopted in proceedings conducted in accordance with the relevant provisions of domestic law, and that she had been represented by her niece as her special guardian, which had ensured the adversarial nature of the proceedings. The guardian attended the hearings and had requested that the first applicant be seen by a medical expert. 77. Furthermore, the first applicant had not lodged an appeal against the decision appointing D.P.D. as her special guardian, although that decision had been served on her and she must have known that it concerned the proceedings to divest her of legal capacity. 78. The measure as such was based on the relevant provisions of the Family Act, pursued the legitimate aim of protecting the interests of the first applicant as a demented and disoriented person, incapable of caring for her interests, and was proportionate since no other, less stringent measure, would suffice in the circumstances. The decision was based on a report by the Centre, a statement given by D.P.D. and the report by an expert in psychiatry, who established that the first applicant, owing to her various health problems, was unable to care for her interests. 2. The Court’s assessment (a) General principles 79. In the context of Article 6 § 1 of the Convention, the Court assumes that in cases involving a mentally ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make the relevant procedural arrangements in order to secure the good administration of justice, protection of the health of the person concerned, etc. However, such measures should not affect the very essence of the applicant’s right to a fair hearing as guaranteed by Article 6 of the Convention. In assessing whether or not a particular measure, such as exclusion of the applicant from a hearing, was necessary, the Court will take into account all relevant factors (such as the nature and complexity of the issue before the domestic courts, what was at stake for the applicant, whether his appearance in person represented any threat to others or to himself, etc. (see Shtukaturov, cited above, § 68)). In particular, the Court considers that stricter scrutiny is called for where measures which have such a strong impact on one’s private life as divesting one of legal capacity are at stake. 80. Furthermore, according to the Court’s established case-law, reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see García Ruiz v. Spain, 21 January 1999, Reports 1999-I, § 26, and Helle v. Finland, 19 December 1997, Reports 1997-VIII, §§ 59). (b) Application of these principles in the present case 81. As regards the present case, the Court notes that it is not disputed that the first applicant was not notified of the proceedings concerning her legal capacity before the I. Municipal Court. Further, she was neither summoned by the Municipal Court in order to give evidence nor seen by the judge conducting the proceedings. The Court concludes that the first applicant was unable to participate personally in the proceedings before the I. Municipal Court in any form. It remains to be ascertained whether, in the circumstances, this was compatible with the requirements of Articles 6 and 8 of the Convention. 82. The Government argued that, according to the relevant provisions of the Family Act, the fact that the first applicant was not heard in the proceedings concerning her legal capacity had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court’s case-law (see Shtukaturov, cited above, § 70) and ensuring the relevant procedural safeguards when taking a decision seriously affecting the applicant’s private life. 83. The Court has already held in its above-cited Shtukaturov judgment: “72. ... the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court’s examination. His participation was therefore necessary not only to enable him to present his own case, but also to allow the judge to form her personal opinion about the applicant’s mental capacity (see, mutatis mutandis, Kovalev v. Russia, no. 78145/01, §§ 35-37, 10 May 2007).” 84. The same is true in respect of the first applicant in the present case. The Court considers that judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons. 85. The Court is aware of the relevance of medical reports concerning persons suffering from impairment to their mental capacities and agrees that any decision based on the assessment of mental health has to be supported by relevant medical documents. However, at the end of the day, it is the judge and not a physician, albeit a psychiatrist, who is to assess all relevant facts concerning the person in question and his or her personal circumstances. It is the function of the judge conducting the proceedings to decide whether such an extreme measure is necessary or whether a less stringent measure might suffice. When such an important interest for an individual’s private life is at stake a judge has to balance carefully all relevant factors in order to assess the proportionality of the measure to be taken. The necessary procedural safeguards require that any risk of arbitrariness in that respect is reduced to a minimum. 86. The psychiatrist who saw the first applicant concluded that she was a gravely ill person, bedridden, completely dependent on the help of others, demented and that meaningful contact with her was not possible, suffering form severe impairment of global cognitive ability, with an unfavourable prognosis for the future (see above, § 35). She also found that the first applicant was incapable of caring for herself and her rights and interests and recommended that the court divest her entirely of legal capacity. However, in the Court’s view it would still be preferable for the judge conducting the proceedings to verify that these conclusions were not arbitrary; to hear witnesses as well as the doctor. In particular, it was for the judge to make any conclusions as regards the issue of divesting the first applicant of her legal capacity. 87. In this connection the Court notes that, even if the psychiatrist examined the first applicant of 18 July 2008, the medical documentation which served as a basis for the psychiatric report dated from 2002. In this respect it should be noted that the second applicant submitted that the psychiatrist saw the first applicant for only twenty minutes, at a time when the first applicant was tired and under the influence of medication. She also drew attention to the fact that both letters, the first of 14 August 2008 and the second of 22 August 2008, by which the first applicant sought to be represented by the second applicant were signed by the first applicant with her full name. 88. The Court takes note of the second applicant’s submissions to the I. Municipal Court that D.P.D. had not seen the first applicant. While it is true that the reasoning in the decision to divest the first applicant of her legal capacity also cited the statement given by D.P.D. concerning the first applicant’s condition, it was exactly D.P.D. who asked the court to carry out a medical examination of the first applicant. 89. The Court also notes that on 14 August 2008 the first applicant authorised the second applicant to represent her in the proceedings at issue. At that time the first applicant still had legal capacity and according to domestic law her authorisation was thus legally valid, irrespective of the fact that a special guardian had already been appointed. However, the second applicant was not informed of the hearing held on 21 August 2008 before the I. Municipal Court and her submissions, although containing important arguments, were not addressed by that court in any manner. In addition, the decision divesting the first applicant of her legal capacity was not served on her. 90. As regards the reasons adduced by the national authorities for divesting the first applicant of her legal capacity, the Court notes that the I. Municipal Court based its decision on the findings of a medical expert stating that, on account of her mental illness, she was not capable of caring for herself, her rights and interests, was demented and was entirely dependant on the care and help of others. In this connection the Court stresses that it is legitimate to provide care for the sick or elderly, or persons with diminished capacity who are unable to care for themselves. It is, however, an entirely different thing to deprive someone of legal capacity. Divesting someone of legal capacity entails serious consequences. The person concerned is not able to take any legal action and is thus deprived of his or her independence in all legal spheres. Such persons are put in a situation where they depend on others to take decisions concerning various aspects of their private life, such as, for example, where to live or how to dispose of their assets and all income. Numerous rights of such persons are extinguished or restricted. For example, such person is not able to make a will, cannot be employed, and cannot marry or form any other relationship creating consequences for their legal status, etc. 91. In order to ensure that the sick and elderly are properly cared for, the State authorities have at their disposal other means than divesting such persons of their legal capacity. Divesting someone of legal capacity is a very serious measure which should be saved for exceptional circumstances. 92. Finally, the Court reiterates that it must always assess the proceedings as a whole, including any decisions of the appeal courts (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). The Court notes that in the present case the decision divesting the first applicant of legal capacity was not served on her, despite the fact that at that time she still preserved legal capacity since the decision in question had not yet become final. However, by failing to inform the first applicant of that decision, the Municipal Court also deprived her of the possibility of using any remedies against it. Therefore, any possible defects in the proceedings before the first-instance court could not be remedied at further instance. 93. The Court finds also that the fact that the judge who divested the first applicant of legal capacity completely ignored the second applicant’s arguments in his assessment of the first applicant’s condition, although the first applicant had authorised the second applicant to represent her in the proceedings at a time when she still had legal capacity, ran contrary to the guarantees of a fair hearing and also deprived the first applicant of adequate procedural safeguards in proceedings where a decision adversely affecting her private life was adopted. 94. There has therefore been a violation of Article 6 § 1 of the Convention. In view of that finding, the Court considers that no separate issue remains to be examined under Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION CONCERNING THE INSTITUTION OF COURT PROCEEDINGS WITH A VIEW TO DIVESTING THE SECOND APPLICANT OF LEGAL CAPACITY 95. The second 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. A. Admissibility 96. The Government argued that any complaint in respect of the proceedings concerning the second applicant’s legal capacity was premature since these proceedings were still pending. 97. The Court notes that the second applicant is complaining that the institution of court proceedings with a view to divesting her of legal capacity amount to an unjustified interference with her right to respect for her private life. In view of the nature of this complaint, the Court considers that the question whether the second 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 these proceedings are still pending is closely linked to the merits of this complaint. It should therefore be joined to the merits. 98. 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 99. The second applicant argued that there had been no need to appoint a guardian for her and to institute the court proceedings to divesting her of legal capacity, since she had been entirely capable of caring for her needs and interests. She challenged the Centre’s arguments for initiating those proceedings, namely that in 2006 she had refused to leave her home and to communicate with others for several days; that in 1994 she had been treated in a psychiatric institution; that her attitude towards her mother had been overly possessive; that she had constantly complained about the treatment of her mother in the Caritas Home; that she had repeatedly made unrealistic requests concerning her mother; and that she had changed the lawyers who represented her on several occasions. 100. As regards her complaints about her mother’s treatment in the Caritas Home, the second applicant submitted that at the time that same Home had been the subject of widespread criticism by many persons; this had been reported in the media, and she enclosed press clippings. Furthermore, she did not agree that the love and care she had been showing her mother could be a sign of mental illness. In her view, the proceedings to divest her of legal capacity had been instituted because of her complaints against the Caritas Home and her opposition to the Centre’s actions with regard to her mother. 101. The Government argued that the rights of the second applicant in the proceedings at issue had been adequately protected since a special guardian had been appointed for her and the second applicant had also been represented by a lawyer of her own choice. She had been invited to every hearing and given an opportunity to present her arguments. Her mental condition had been assessed by an expert in psychiatry. 2. The Court’s assessment (a) Whether there has been an interference 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). (b) Whether the interference was based on law, pursued a legitimate aim and was necessary in a democratic society 105. 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. 106. 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 partially or completely divested of legal capacity. 107. 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. 108. In the present case the Centre claimed that the second applicant was unable to protect her rights and interests, without relying in its statement on any specific fact. The general nature of the statements made by the Centre raises doubts as to the compliance with the statutory requirements for the institution of the proceedings to divest the second applicant of legal capacity (see above, § 47). 109. The Court considers that in deciding whether the proceedings to divest a person of capacity were 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 once again that strict scrutiny is called for where measures that have such adverse effect on one’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. 110. The Government in their submissions before the Court and the Centre in its request to the I. Municipal Court both stressed that the purpose of instituting the proceedings to divest the second applicant of legal capacity was to ensure the protection of her interests through the institution of guardianship. 111. In the Court’s view, however, 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 that person’s 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 at issue. 112. As regards the second applicant’s mental health, the Court notes that it is true that she was twice hospitalised in a psychiatric ward, the first time in 1994 and the second in 2006. The discharge letter of 20 December 2006 states that she had visibly recovered physically, had reacted positively to therapy, that the psychopathology for which she had been hospitalised had completely ceased and that there was an optimistic prognosis for further treatment (see above, § 44). 113. As regards the psychiatric report commissioned for the court proceedings to divest the second applicant of legal capacity, the Court notes firstly that the report, which is clearly negative with regard to the applicant’s condition, was drawn up by a psychiatrist who had not previously treated the applicant and who held only a telephone conversation with her. The Court is sceptical as to whether a person’s mental condition could be assessed with sufficient certainty after only a single telephone conversation, albeit of one hour, in particular given the significance of such a report in the present case. 114. The Court notes that under section 161 taken together with section 159 of the Family Act a social welfare centre shall institute the proceedings for divesting a person of legal capacity where it is shown that that person, on account of mental illness or other reasons, is unable to care for his or her own needs, rights and interests, or who presents a risk to the rights and interests of others. 115. The applicant in the present case, when heard by the national authorities, explained that she lived alone and had taken care of all her needs. She stressed that she regularly paid all her bills, was seeing regularly her general physician, had taken care of her meals and organised her social life. Further to her statements, the Court notes that there is no indication, either before the institution of the proceedings in question or during them, of specific damage that the second applicant had committed against her own interests or the interests of others which would warrant divesting her of legal capacity. 116. Against the above background, the Court finds that in the circumstances of the present case the institution of the court proceedings with a view to divesting the applicant of legal capacity did not observe the procedure and requirements prescribed by law, did not pursue a legitimate aim and was not necessary in a democratic society, and dismisses the Government’s objections as to the exhaustion of domestic remedies. 117. There has accordingly been a violation of Article 8 in that respect. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION CONCERNING THE FIRST APPLICANT’S PLACEMENT IN A CARITAS HOME 118. Relying on Article 8 of the Convention, the applicants also complained about the refusal to place the first applicant in a single room in the Caritas Home and about the limitation on the frequency of visits allowed. Admissibility 1. The parties’ arguments 119. The applicants argued that they were not allowed to place the first applicant in a single room in the Caritas Home, although that would have been beneficial for her health. Furthermore, visits in multi-occupancy rooms were limited to one hour a day, which prevented the applicants from spending more time together; it also prevented the second applicant from spending more quality time with the first applicant, since the first applicant had been the only person who visited her. 120. The Government argued that the applicants were able at all times to enter into a private agreement with the Caritas Home with a view to placing the first applicant in a single room at their own expense. As regards contacts between the applicants, these were structured in such a way that the second applicant was able to visit the first applicant for an hour a day in her room and otherwise in the communal premises of the Caritas Home between 9 a.m. and 7 p.m. or 8 p.m. in the winter and summer periods respectively. The second applicant had been spending almost entire days with the first applicant at the Caritas Home. 2. The Court’s assessment 121. The Court notes that in July 2006 the first applicant was placed in the Caritas Home at the request of her daughter, the second applicant, who claimed that, owing to the special needs caused by her mother’s illness, and her own illness, she was no longer able to care for her mother alone. Shortly afterwards, in August 2006 the first applicant’s right to care outside her family was established and she continued to reside in the Caritas Home. She was accommodated in a multi-occupancy room with three other persons and until May 2008 the second applicant was able to spend whole days with her. 122. The second applicant made frequent requests that her mother be placed in a single room, offering to pay the difference between the amount covered by the State and the full price for a single room. However, this request was denied on the ground that such an arrangement was not possible; she could only ask that her mother be placed in a single room on the basis of a private contract with the Caritas Home, and then pay the full price herself. 123. In assessing whether a fair balance has been struck as regards the measure adopted, the Court reiterates that in choosing the most appropriate manner in order to comply with their obligations under the Convention, the States enjoy a certain margin of appreciation. In matters concerning its social policy this margin has been recognised as being quite wide (see, mutatis mutandis, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 100, ECHR 2010 ‑ ...). Furthermore, effective protection of respect for private and family life cannot require the national authorities to enable persons benefiting from State assistance to have a single room in an institution caring for them, unless prevailing health or other relevant reasons require it. 124. The applicants never explained on what exact grounds they sought a single room for the second applicant and why her placement in a room with three other persons was incompatible with her right to respect for her private and family life. The second applicant repeatedly invoked health grounds in her requests before the national authorities and the Caritas Home. However, she never gave any details concerning such grounds nor did she support her claim with any relevant medical opinion. Thus, the applicants failed to present any convincing reasons for placing the first applicant in a single room. 125. By placing the first applicant in the Caritas Home at the partial expense of the State, the national authorities satisfied their duty to provide the first applicant with adequate social care. The fact that she is placed in a multi-occupancy room and that visits in such rooms might be limited to an hour a day cannot be said to be disproportionate and in contravention of the applicants’ right to respect for their private and family life, in particular in view of the fact that visits in communal premises are allowed from 9 a.m. to 7 p.m. and 8 p.m. in the winter and summer periods respectively (see paragraph 24 above). 126. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 127. The applicants further complained that the decision to pay the first applicant’s pension directly to the Caritas Home and her inability to freely dispose of her assets had violated her right to peaceful enjoyment of her possessions. They relied on Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The parties’ arguments 128. The applicants argued that by ordering that the first applicant’s pension was to be used to cover the costs of her accommodation in the Caritas Home, and by preventing her, as a person divested of legal capacity, from freely disposing of her pension and other assets, the State had violated her right to peaceful enjoyment of her possessions. 129. The Government argued that the right of the first applicant to care outside her family had been established on a request by her daughter, the second applicant, and that ordering the first applicant to bear part of the costs of her accommodation in a home had been based on the Social Welfare Act, since she was in receipt of a pension. However, the first applicant could have sought termination of that arrangement at any time. 130. The decision that the first applicant was to bear part of the costs of her accommodation was proportionate, since all her needs had been satisfied in the Caritas Home. The State had still been paying more than half of the costs of the first applicant’s accommodation. (a) Payment of the first applicant’s pension to the Caritas Home 131. The Court notes that the decision of 31 August 2006 established the first applicant’s right to care outside her family. However, she was still ordered to bear the costs of her accommodation, since she was in receipt of a pension. The difference between the full costs of the first applicant’s accommodation and the amount of her pension, the former being higher, has been covered by the State. 132. The Court notes that neither the first nor the second applicant used any remedies against that decision. Therefore, the decision of 31 August 2006 which arguably represented an interference with the first applicant’s right to peaceful enjoyment of her possession was the final decision taken by the national authorities in this respect. However, the present application was lodged with the Court on 15 January 2009. 133. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. (b) The first applicant’s inability to dispose of her assets 134. The Court notes that the first applicant’s inability to dispose of her assets is a consequence of the decisions to divest her of legal capacity. For this reason the Court considers that this part of the application must be declared admissible. B. Merits 135. The Court notes that it has addressed the issue of the proceedings divesting the first applicant of legal capacity under Article 6 of the Convention and that the first applicant will be able to seek that the proceedings concerning her legal capacity be reopened. 136. Therefore the Court considers that there is no need to examine separately the complaint under Article 1 of Protocol No. 1 to the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 137. The applicants complained further that they had no effective domestic remedy at their disposal as regards their Convention complaints. They relied on Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. Article 13 in connection with Article 6 and 8 of the Convention as regards the proceedings divesting the applicants of legal capacity 138. The Court considers that this complaint is closely linked to that concerning Article 6 and Article 8 of the Convention as regards the proceedings divesting the applicants of legal capacity, and must also therefore be declared admissible. 2. Article 13 in connection with the complaint under Article 1 of Protocol No. 1 concerning the first applicant’s inability to dispose of her assets 139. This complaint, being closely related to the complaint under Article 1 of Protocol No. 1 which the Court has declared admissible, must therefore also be declared admissible. 3. Article 13 in connection with the remaining complaints under Article 8 of the Convention and under Article 1 of Protocol No. 1 140. The Court notes that these complaints have been declared inadmissible and that Article 13 has no autonomous standing. It follows that the complaints under Article 13, in so far as they are related to the complaints under the substantive Articles of the Convention which have been declared inadmissible as manifestly ill-founded, must also be rejected as manifestly ill-founded in accordance with Article 35 §§ 3(a) and 4 of the Convention. B. Merits 1. Article 13 in connection with Article 6 and 8 of the Convention as regards the proceedings divesting the applicants of legal capacity 141. The applicants argued that they were unable to use any remedy in the proceedings concerning their legal capacity. As regards the first applicant, the judge conducting the proceedings had not allowed the second applicant to represent the first applicant in those proceedings and the first ‑ instance decision had not been served on them. As regards the second applicant, she had at her disposal no means to prevent the national authorities to institute the proceedings for divesting her of legal capacity. 142. The Government maintained that the first applicant could have lodged an appeal against the decision appointing D.P.D. as her guardian and filed a constitutional complaint. 143. The Court is of the opinion that this complaint, although somewhat rephrased, is essentially the same as those already examined under Article 6 § 1 and Article 8 of the Convention. Having regard to its findings in relation to these provisions, the Court considers that the applicants’ complaint under Article 13 does not require a separate examination on the merits (see Salontaji-Drobnjak, cited above, § 147). 2. Article 13 in connection with the complaint under Article 1 of Protocol No. 1 concerning the first applicant’s inability to dispose of her assets 144. As already stated above, the first applicant will have the possibility of seeking the reopening of the proceedings at issue in which the issue of her ability to dispose of her assets will also be addressed. Having regard to this the Court concludes that this complaint does not require a separate examination. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 145. 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.” A. Damage 146. The first applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and the second applicant EUR 10,000 on the same account. 147. The Government deemed the sums claimed excessive and unsubstantiated. 148. As regards the first applicant, the Court notes that section 428(a) of the Civil Procedure Act provides for the reopening of domestic proceedings if the Court has found a violation of the Convention and in view of that possibility the Court considers that in the circumstances of the present case the finding of a violation constitutes sufficient redress. 149. As regards the second applicant, the Court considers that she must have suffered non-pecuniary damage as a result of the institution of the proceedings to divest her of legal capacity. Making its assessment on an equitable basis, the Court awards the second applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 150. The applicants also claimed EUR 4,400 for the costs and expenses incurred before the Court. 151. The Government contested the claim. 152. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and have been reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicants on this amount. C. Default interest 153. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention in respect of the first applicant, finding that she had been deprived of adequate procedural safeguards in proceedings resulting in a decision adversely affecting her private life. As regards in particular 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 older, the State authorities had at their disposal much less intrusive measures than divesting them of legal capacity.