FIRST SECTION

CASE OF M.S. v. CROATIA

(Application no. 36337/10)

JUDGMENT

STRASBOURG 

25 April 2013

FINAL

25/07/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

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

1. 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.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. 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

4. 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.”.

5. Between March 2002 and January 2007 the applicant called the police on 137 occasions in connection with the restaurant “N.”.

6. 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.

7. 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.

8. 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.

9. 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.

10. On the same day another family complained about the noise coming from the restaurant at 2 a.m. and 4 a.m.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. At a hearing held on 25 August 2004 the applicant’s sister gave her oral evidence.

18. 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.

19. 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.

20. The applicant, her sister and M.Č. all appealed.

21. 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.

22. Hearings in the fresh proceedings were held on 12 February and 26 March 2008.

23. On 3 July 2008 the criminal proceedings against the applicant and her sister were terminated but those against M.Č. continued.

24. On 20 October 2008 a claim for costs and expenses lodged by the applicant and her sister was dismissed. They lodged an appeal.

25. Further hearings were held on 27 February and 17 March 2009.

26. 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.

27. 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.

28. 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.

29. On 6 May 2009 the applicant and her sister lodged an appeal.

30. 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.

31. 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.

32. 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

33. 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.

34. 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.

35. 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.

36. 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.

37. In several submissions the applicant expressed strong opposition to psychiatric intervention.

38. 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.

39. 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

40. 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”.

41. 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.

42. 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.”

43. 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.”

44. 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.

...”

45. On 30 January 2009 the O. Municipal Court ordered a psychiatric and psychological assessment of the applicant.

46. The proceedings are still pending.

E. Civil proceedings instituted by the applicant and her sister

47. 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.

48. 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

49. 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.”

50. 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.”

51. 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.”

52. The medical report of 17 July 2010 shows that the applicant had sustained haematomas to the back of her head and left cheek.

53. She alleged that on 16 and 17 July 2010 she had been attacked by a person she knew.

II. RELEVANT DOMESTIC LAW

54. 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.”

55. 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.”

56. 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)

57. 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)

58. 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

59. 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

60. 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.

61. The applicant contended that she had exhausted all available domestic remedies.

62. 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.

63. 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).

64. 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.

65. 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.

66. 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.

67. 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.

68. 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.

69. 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.

70. 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

71. The applicant maintained that the national authorities had not provided her with adequate protection against a violent attack by a private individual.

72. 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

73. 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).

74. 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).

75. 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).

76. 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.

77. 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.

78. 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).

79. 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.

80. 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.

81. 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.

82. 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.

83. 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.

84. 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

85. 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

86. 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.

87. 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.

88. 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

89. The applicant argued that the institution of the proceedings for divesting her of legal capacity violated her right to respect for her private life.

90. 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.

91. 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.

92. 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

93. 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

94. 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).

95. 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.

96. 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).

97. 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).

98. 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).

99. 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.

100. 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.

101. 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.

102. 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.

103. 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.

104. 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.

105. 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.

106. 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.

107. 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.

108. 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

109. 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

110. The Court notes that the proceedings in issue are still pending and therefore any complaint relating to them is premature.

111. 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

112. 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.

113. 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

114. 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.”

115. 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 NielsenIsabelle Berro-Lefèvre
RegistrarPresident