CASE OF KRUSKOVIC v. CROATIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
4. The applicant was born in 1966 and lives in Jurdani. 5. On 25 February 2003 the applicant was divested of his legal capacity (poslovna sposobnost) by a decision of the Opatija Municipal Court (Općinski sud u Opatiji). The decision was based on a report by a psychiatrist, who established that the applicant suffered from organic personality disorder and antisocial personality disorder as a result of his long-term drug abuse. The psychiatrist recommended that the applicant be divested of his legal capacity for a period of at least five years in order to undergo psychiatric treatment. 6. On 2 April 2003 the Opatija Social Welfare Centre (Centrar za socijalnu skrb Opatija) appointed the applicant’s mother, Lj.I.G., as his guardian. 7. On 29 September 2006 the Opatija Social Welfare Centre appointed the applicant’s father, D.K., as his guardian since his mother had fallen ill. On an unspecified date the same centre appointed its employee J.L as the applicant’s guardian. 8. On 30 June 2007 K.S. gave birth to a daughter, K., and named the applicant as the child’s father. On 17 August 2007 the applicant, with the consent of the child’s mother, gave a statement at the Rijeka Birth Registry (Matični ured Rijeka) saying that he was the father of the child, and he was subsequently registered as such on the child’s birth certificate. On 14 September 2007 the applicant gave the same statement before the Rijeka Welfare Centre (Centar za socijalnu skrb Rijeka). 9. On 19 October 2007 the Rijeka Social Welfare Centre informed the Birth Registry that the applicant had been divested of his legal capacity. 10. The Rijeka Birth Registry instituted proceedings in the Primorsko-goranska County Office of State Administration (Ured državne uprave u Primorsko-goranskoj županiji) for the annulment of the registration of the applicant as K.’s father. On 29 October 2007 the County Office gave a decision ordering that an amendment be made to the child’s birth certificate annulling the previous note stating that the applicant was the father of the child, on the ground that as a person divested of his legal capacity he did not have the right to recognise K. as his child before the law. 11. This decision was not served on the applicant, since he had been divested of his legal capacity. It was served on his mother. 12. On 21 March 2010 the Opatija Welfare Centre brought a civil action in the Opatija Municipal Court against the applicant, K.S., and K., seeking that the Municipal Court establish that the applicant was K.’s father. The proceedings are still pending. 13. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read: “(1) ... paternity may be recognised before a registrar of a registry office, a social welfare centre or a court ... ...” “(1) The child’s mother shall give consent to the registering of the recognition of paternity. ...” “A social welfare centre may lodge a civil claim seeking ... to establish paternity up until the child’s eighteenth birthday.” “(1) An adult who, owing to mental illness or for other reasons, is not able to care for his or her own needs, rights and interests, or who presents a risk for the rights and interests of others, shall be partially or completely divested of his or her legal capacity by a court of law in non-contentious proceedings. (2) Before adopting a decision under paragraph 1 of this section, a court shall obtain the expert opinion of a medical expert about the health conditions of the person concerned ...” “The competent social welfare centre shall place under guardianship any person ... divested of his or her legal capacity ...” “(1) The guardian shall take care of the person, rights, obligations and well-being of the ward with due diligence, manage his or her assets and take measures to enable the ward to have an independent working and personal life. ...” “(1) The guardian represents the ward. ...” “In order to undertake more extensive measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.”