Published on 17 October 2022

FIRST SECTION

Application no. 21371/22 Iva PAVUŠEK RAKARIĆ against Croatia lodged on 23 April 2022 communicated on 30 September 2022

SUBJECT MATTER OF THE CASE

The application concerns proceedings in which the applicant’s father, S.P., was partly deprived of his legal capacity.

In 2009 S.P. suffered a stroke as a consequence of which he has very limited communication abilities.

In 2018 the Sisak Social Welfare Centre instituted court proceedings to have S.P. partly incapacitated.

During the proceedings, in which the applicant had been granted the status of an intervenor, S.P. was appointed a guardian ad litem who agreed with the Centre’s proposal for partial incapacitation and did not attend three court hearings. The court obtained two expert opinions, which concluded that, due to his physical and mental condition, S.P. was unable to make any decisions. In light of his limited communication abilities, the court could not determine his true will regarding his incapacitation. It also refused to call a defectologist-logopaedist, as proposed by the applicant, to assist the court’s communication with S.P. on the matter.

On 21 February 2020 the Sisak Municipal Court partly deprived S.P. of his legal capacity, preventing him from making decisions concerning his health and medical treatment, choosing his place of residence or accommodation, undertaking actions before authorities, concluding agreements or disposing of his property. In its reasoning the court stated that S.P. suffered from a number of cognitive and motoric health problems, that he was unable to read, write, count or efficiently communicate with others or understand the meaning of the proceedings.

The applicant’s appeal against the first-instance decision was dismissed by the Split County Court on 25 May 2020, and her subsequent constitutional complaint was dismissed by the Constitutional Court on 21 December 2021.

The applicant complains, under Article 6 § 1 of the Convention, that her father did not enjoy equality of arms, in particular in that the court refused to call a defectologist-logopaedist in order to facilitate communication with him. She also complains, under Article 8 of the Convention, that her father was inadequately represented by the guardian ad litem, who failed to show up at court hearings and did not represent the interests of the disabled person. Finally, the applicant complains that her father was discriminated against in the proceedings on account of his disability (inability to speak).

QUESTIONS TO THE PARTIES

1. Did the applicant’s father have a fair hearing in the determination of his civil rights and obligations concerning his legal capacity, as required by Article 6 § 1 of the Convention?

2. Has there been an interference with the applicant’s father’s right to respect for his private life within the meaning of Article 8 § 1 of the Convention? If so, was the interference in accordance with the law and necessary in a democratic society, as required by Article 8 § 2?

In particular, were the reasons adduced to justify the applicant’s father partial incapacitation “relevant and sufficient”? Was the decision-making process fair and such as to ensure due respect fpr the applicant’s father’s rights under Article 8 of the Convention (see Görgülü v. Germany , no. 74969/01, § 52, 26 February 2004 and Ivinović v. Croatia , no. 13006/13, § 36, 18 September 2014)?

3. Has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention in conjunction with Article 8?