Information Note on the Court’s case-law 251

May 2021

M.K. v. Luxembourg - 51746/18

Judgment 18.5.2021 [Section III]

Article 8

Article 8-1

Respect for private life

Proportionate and foreseeable nature of the placement under protective supervision of an elderly and vulnerable person on the grounds of her extravagant spending, a concept interpreted by reference to the former French Civil Code: no violation

Facts – The applicant was placed under protective supervision ( curatelle simple ). She challenged, in vain, the grounds for the measure, namely a finding of “extravagant spending” on her part.

Law – Article 8:

The decision to place the applicant under protective supervision had constituted interference with her private life.

(a) Whether the interference was “in accordance with the law”

The decision to place the applicant under protective supervision had been taken on the basis of two Articles of the Civil Code, taken together. One of them provided that an adult who, on account of his or her “extravagant spending”, was likely to face hardship, could require such protection. No definition of “extravagant spending” could be found in Luxembourg statute law or case-law and the Court of Appeal had given its own definition in its judgment in the applicant’s case.

Despite this lack of definition in statute law and case-law prior to the facts of the present case, the concept could nevertheless reasonably be regarded as comprehensible to a litigant who was assisted by counsel. It was undeniable that both lawyers and courts in Luxembourg regularly referred to French judicial decisions or legal writings in matters where, as in the present case, the institutions were similar. However, the relevant case-law based on a defunct Article of the French Civil Code indicated that “extravagant spending” referred to the squandering of income or excessive expenditure leading to a state of need and that the production of a medical certificate was not required for a measure of protective supervision on such grounds. Whilst these principles were no longer in force in France, this did not mean that they could not be relied upon in cases heard in Luxembourg, where the provisions of the former Article of the French Civil Code (identical in wording to the Luxembourg provision) were still relevant.

In these circumstances, the applicant had been in a position to foresee to a reasonable degree in the circumstances of the case that she could be considered to fall within the scope of the relevant Articles of the Luxembourg Civil Code, if necessary by seeking appropriate legal advice. Therefore, the interference had been "in accordance with the law".

(b) Whether there was a legitimate aim

The interference had pursued the legitimate aims of the economic well-being of the country and the protection of the applicant. The fact of preventing a person from falling into a state of need through rash conduct had the effect, first, of protecting society from the risk of having to provide financially for that person and, secondly, of protecting him or her from hardship.

(c) Whether the interference was necessary in a democratic society

The decision to partially deprive the applicant of her legal capacity was not based on a finding of impairment of her mental faculties by doctors. The Court of Appeal had been careful to point out that it was not necessary for a doctor to make a formal finding of impairment of mental or physical faculties, since extravagant spending was not a medical concept but a factual type of behaviour which was for the judge to assess in a discretionary manner. The Government had also clearly confirmed this approach in their observations. In these circumstances, the Court had to verify more carefully whether the national courts had carefully weighed up all the relevant factors before taking their decision.

Before taking the various judicial decisions, the national courts had investigated the matter and had sought to establish the relevant facts, in particular by means of a social enquiry report and an interview with the applicant.

Subsequently, in the context of the decisions they handed down, the judges had been careful to hear the applicant in turn and to examine the facts in detail. In particular, the Court of Appeal had analysed the applicant’s personal and financial situation, based on the doubts expressed by the social worker as to her capacity, given her age (86) and a certain weakness, to make judgments, and on questions raised by the social worker as to whether she might be fragile, easily influenced and manipulated. The Court of Appeal also had at its disposal the decision of the court of first instance which had seen the applicant and had noted that she had, at the request of an acquaintance S., initiated the formation of two commercial companies, but that she was not able to give any details concerning their corporate purpose. The lower court had added that she had lost her discernment with regard to invoices relating to work and care ordered by S.

While the Court did not underestimate the impact that the various proceedings might have had on the applicant’s private life and was not unaware of the complications and even suffering that inevitably stemmed from the measures imposed, it nevertheless took the view that the judicial authorities had made a thorough assessment of the applicant’s situation and that she had been involved, through her personal participation, in the examination of the case. They had endeavoured to strike a balance between respect for the applicant’s dignity and self-determination and the need to protect her and safeguard her interests in the face of her vulnerability, which they believed they had identified based on their impression that she was unaware of the object and scope of important decisions taken on her behalf. The interference, which was ultimately minimal on the scale of possible measures, had been proportionate and appropriate to her individual circumstances, while being consistent with the legitimate aim of protecting her welfare in the broadest sense. Accordingly, the interference had remained within the margin of appreciation afforded to the judicial authorities in the present case.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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