CASE OF X AND Y v. CROATIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
4. The applicants were born in 1923 and 1948 respectively and live in I. 5. The applicants are mother and daughter. Until 17 July 2006 they lived together in a house in B. owned by the first applicant. 6. On an unspecified date in 2006 the I. Social Welfare Centre (Centar za socijalnu skrb I. – the “Centre”) instituted proceedings with a view to establishing the first applicant’s right to care outside her family (pravo na skrb izvan obitelji). On 6 July 2006 the Centre appointed its employee Z.J. as the first applicant’s special guardian (poseban skrbinik) in these proceedings on the ground that the first applicant, owing to old age and illness, was unable to undertake acts in these proceedings on her own. It was also stated that her daughter Y, the second applicant, could not adequately care for the first applicant, since she suffered from muscular dystrophy. This decision was served on the second applicant on 12 July 2006. 7. On 11 July 2006 the second applicant submitted a statement to the Centre, stating that she was unable to contribute towards the expenses arising from her mother’s care. 8. An official note drawn up by Z.J. on 16 July 2006 indicates that the second applicant urged that her mother be placed in a home and had entered into a private agreement with the I. Caritas Home for elderly and dependent persons (“the Caritas Home”) in order to place her mother there at her own expense until such time as the decision in the above-mentioned proceedings had been adopted. The first applicant was moved to the Caritas Home. She was placed in a room with three other persons. 9. The agreement, dated 17 July 2006, stipulated that the second applicant was to bear the costs of her mother’s accommodation in the Caritas Home, which in turn would provide the first applicant with accommodation and food, medical care and care for her social needs. In order to stay close to her mother and to be able to visit her frequently, the second applicant moved to her own flat in I. 10. A medical report drawn up on 19 July 2006 indicates that the first applicant was an elderly and disabled person, suffering from psycho-organic changes and dementia, and required the constant (full-day) help and care of another person. 11. On 31 August 2006 the Centre established the first applicant’s right to permanent placement in the Caritas Home from 1 September 2006. She was to cover the costs of her accommodation up to the amount of her pension, and the difference between that amount and the full price was to be paid by the Ministry of Health. The first applicant’s pension was to be paid directly into the Centre’s bank account. 12. On 23 November 2006 Z.J. ceased to be the first applicant’s special guardian. 13. On 18 February 2008 the second applicant asked the Caritas Home to allow her mother single-room occupancy on health grounds. She offered to pay the difference between the costs of such accommodation and her mother’s pension. The Caritas Home informed her that if her mother was placed in a single room she would have to pay the full cost. 14. Since the first applicant was a person in care of the State, Z.J., as the social worker from the Social Welfare Centre with responsibility for the first applicant, drew up a report on 28 February 2008, in which she stated that the first applicant was disoriented and dependent on help from others and that it was impossible to establish contact with her. She suggested that proceedings be instituted with a view to divesting the first applicant of legal capacity, because she was unable to care for her rights and interests. She also stated that the second applicant often behaved strangely, in the sense that she showed constant dissatisfaction and had locked herself in her home, refusing food. 15. On 3 March 2008 the second applicant again asked the Home to allow her mother single-room occupancy on health grounds, stating that her mother needed calm and rest. On 10 March 2008 the Caritas Home informed the second applicant that her mother had been provided with adequate health and other care and that they were waiting for a reply from the Ministry of Health and Social Care on payment for a single-occupancy room. 16. On 25 March 2008 the second applicant urged the transfer of her mother to a single-occupancy room. She also asked the Home to provide her with information on the amount of her mother’s pension in order to pay the difference in the cost of single-room occupancy. 17. On 31 March 2008 the Head Nurse of the Caritas Home drew up an official note stating that over the previous year the second applicant had frequently expressed discontent with regard to the care provided to her mother by nurses, physiotherapist and physicians at the Home; this had disrupted the work of the personnel. She had held an interview with the second applicant, who denied these allegations and was very pleasant in communication with the Head Nurse during the interview. The Head Nurse further stated that the second applicant had been in the habit of visiting her mother twice a day, in the morning and afternoon, staying for a few hours. Over the previous two weeks she had been coming to the front of the Home before the reception’s opening hours and had stayed until the end of working hours; she had stopped communicating with the Head Nurse, but continued to intervene in the dynamics of her mother’s health care and to insult the other patients. 18. In her letter of 1 April 2008 the Directress of the Caritas Home informed the Centre of the above. In her letter of 5 April 2008 the second applicant denied these allegations and reiterated that, owing to her mother’s health, it was necessary to place her in a single-occupancy room. 19. On 8 April 2008 the Caritas Home informed the second applicant that she was free to seek her mother’s placement in a single-occupancy room at her own expense and that the cost of such accommodation was 4,680 Croatian kuna (HRK) per month. On 14 April 2008 the Caritas Home further explained that, in order to place her mother in a single-occupancy room she would first have to terminate her mother’s accommodation on the basis of a decision adopted by the Centre and then apply in writing for her mother’s placement in the Home on the basis of a private contract. 20. On 10 April 2008 the second applicant again sought to have her mother placed in a single room. 21. On 18 April 2008 the Centre informed the second applicant that the price of accommodation in the Caritas Home for persons placed there on the basis of a decision by a social welfare centre was HRK 3,000 per month. This amount had been partly covered by her mother’s pension in the monthly amount of HRK 2,237.80. 22. On 22 April 2008 the Centre invited the second applicant to come to the Centre on 5 May 2008 in order to give a statement in connection with appointing a guardian for her mother in the proceedings to divest her of legal capacity. On 28 April 2008 the second applicant asked the Centre that she be appointed as her mother’s guardian in these proceedings. 23. On 21 May 2008, in a letter to the V. Diocese, the owner of the Caritas Home, the second applicant sought help in placing her mother in a single room. There was no reply. 24. On 27 May 2008 the Caritas Home limited visits to multi-occupancy rooms in the Intensive Care Ward to one hour a day. Visits were allowed in the common premises between 9 a.m. and 7 p.m. in winter and between 9 a.m. and 8 p.m. in summer. 25. It appears that the second applicant did not thereafter pursue the question of placing her mother in a single room. In 2009 the second applicant submitted that she no longer had problems with the Caritas Home’s management and that she was peacefully spending time with her mother. 26. The relevant part of a discharge letter of 28 February 2002 issued by the Varaždin Hospital reads: “The patient was hospitalised at the neurological ward of the V. Hospital owing to a cerebral-vascular accident, brain atrophy and psycho-organic changes. During her stay respiratory difficulties occurred and continuation of treatment in our institution was indicated. ... On admission she was not febrile, was able to move about, communication was possible (kontaktibilna), she was eupneic ..., disoriented in time. ... Conclusion: The patient was hospitalised for exacerbation of chronic bronchitis, post-CVA [cerebral vascular accident] condition and psycho-organic changes. During her stay she was treated with Irumed, Andol and Prazine. Clinical status has improved and she is discharged with a recommendation to continue therapy with Irumed, Andol and Prazine. She is in need of care and the aid of others.” 27. The relevant part of the medical report of 13 December 2005 reads: “The patient has been unable to control her sphincter for three years; she is confused and moves about with difficulty. Today she got lost and became even more confused. Neurological status: psycho-organic syndrome, free neck [movement], no focal neurological excess, she walks with assistance ...” 28. The relevant part of a medical report of 19 July 2006 reads: “The patient is eighty-three years old and in 2000 she suffered an (ischemic) brain stroke. She subsequently developed psycho-organic syndrome, high blood pressure and incontinence. The medical documentation shows that she underwent cataract surgery. In 2002 she was hospitalised in a neurological ward for CVA and was then transferred to the Special Hospital for Lung Diseases in K. ... Examination reveals that she moves about with difficulty but does walk slowly with aid. She answers basic and short questions, but is disoriented in time and space and towards persons. ... Eupneic... Since the patient is an elderly person who moves about with difficulty, has undergone psycho-organically changes [and] suffers from dementia, I consider that she needs the constant care and aid of others.” 29. On 17 April 2008 D.P.D., the first applicant’s niece, was heard in the Centre with a view to appointing her as the first applicant’s guardian. 30. On 16 June 2008 the Centre appointed D.P.D. as the first applicant’s guardian. On the same day the Centre asked the I. Municipal Court to institute proceedings with a view to having the first applicant divested of her legal capacity. The relevant part of the Centre’s submission reads: “Owing to a brain stroke and brain atrophy the respondent has suffered psycho-organic changes, is incapable of independent life and entirely dependent on the help and care of others. In view of the above, this Centre recognised her right to care outside her family and she was accommodated in the Caritas Home for elderly and dependent persons ... in I. The level of the respondent’s social and intellectual functioning is significantly reduced; no communication is possible, she is disoriented and suffers from dementia. In order to protect her [person], her rights and interests it appears reasonable to give her protection through the institution of guardianship. In view of the above, the Centre considers that the respondent is incapable of caring for her own needs, rights and interests and that the conditions for divesting her entirely of her legal capacity under section 159 of the Family Act have been met.” Z.J.’s opinion of 28 February 2008 and medical documentation in respect of the first applicant was enclosed. 31. In a letter to the Centre of 17 June 2008 the second applicant objected that the decision appointing D.P.D. as her mother’s guardian had not been served either on her or her mother. She also objected to statements in the report drawn up by Z.J. on 28 February 2008, enclosed in the Municipal Court’s case file, and in particular to the statements concerning her ability to be her mother’s guardian and alleging that her behaviour had been strange and that she had locked herself in her house and refused food. In particular, she questioned how Z.J. could have established these facts, since she lived alone. She further stressed that she had moved to I. only to be close to her mother and that she had been caring for her mother, while D.P.D. lived in Z. and only occasionally contacted the first applicant by telephone. The first applicant considered that she was the most appropriate person to be appointed as her mother’s guardian. 32. A note from the Caritas Home of 20 June 2008 confirmed that the first applicant had received the decision of 16 June 2008 and had confirmed that fact with her fingerprint. 33. On 24 June 2008 the second applicant informed the Centre that she objected to the institution of the above court proceedings. 34. At a hearing held before the I. Municipal Court on 10 July 2008 in the presence of the Centre’s representative and the first applicant’s guardian D.P.D., a psychiatric report on the first applicant’s mental state was commissioned. D.P.D. stated that Z.J.’s allegations in her report on the first applicant were true and added that the first applicant was bed-ridden, disoriented and completely incapable of autonomous life. She depended on the constant help of others and was unable to feed herself. Her condition was not improving but was expected to deteriorate. She was able to use only one hand, could move it and put food into her mouth, but even that hand was not functional to the extent that she could properly feed herself. D.P.D. suggested that a medical examination of the first applicant be carried out. 35. The psychiatrist submitted his report on the basis of an examination of the first applicant on 18 July 2008 and medical documentation from 2002. The relevant part of the report reads: “For the purposes of this examination the patient was seen by a psychiatrist on 18 July 2008 in the Home where she is placed. I found her lying awake in her bed. It is not possible to establish meaningful verbal contact because she is unable to talk clearly. To my question about her name and where she is from, she incomprehensibly repeats the same word. From her mimics and gestures it is possible to conclude that the patient has preserved a basic idea of herself. Clinical findings on her mental status: General impression: she lies in the typical “embryo” posture – on her side with legs bent in to the knees and drawn towards the chest, the upper body and head bent forward, so that her chin almost touches her knees (posture typical for persons with serious brain damage). Impression: a gravely ill person, completely dependent on the help of others, bed-ridden. Contact: it is obvious that she can hear and understands something, but she is not able to form comprehensible words. It is to be expected that she [has] only a basic idea of herself. During the interview she looks aside with a dull, expressionless look or closes her eyes. When asked something loudly and directly she pays only brief attention to the speaker. Occasionally she mumbles incomprehensibly. General facial expression reveals a mentally impaired person: empty stare and empty facial mimic. Only basic orientation towards self is preserved. Thought functions completely reduced – no thought process. Movement-impaired – central psychomotor damage (brain). No coordination of hands, incapable of feeding herself. Comprehension, understanding and ability to connect causes and consequences of events are completely damaged – non-existent. Gravely reduced overall mental capacity, with only basic idea of herself preserved. She has no idea of relations between persons or of her own interests. Disabled to the extent that she is dependent on help of another person for mere survival. ... Conclusion: Severe impairment of global cognitive ability, with emphasis on memory, thought process, ability to develop new ideas and make conclusions and decisions; impaired motor functions, to the extent that it renders the person so incapable that she is dependent for her survival on the care of another person. Prognosis unfavourable. Incapable of caring for herself and her rights and interests. On medical grounds protection of the person’s interest under guardianship is indispensable; the court is recommended to divest her entirely of legal capacity.” 36. On 14 August 2008 the first applicant submitted a power of attorney, authorising the second applicant to represent her in the proceedings. She signed the letter in her handwriting. 37. The second applicant objected to the psychiatric report in her written submission to the I. Municipal Court, arguing that it was based on fiveyearold medical documentation and a twenty-minute observation by the psychiatrist and that the conclusions of the report were therefore superficial, imprecise and untrue. She maintained that the first applicant could pronounce words, had good hand movement and was able to sit and dress with help. She also claimed that the psychiatrist saw the first applicant in the afternoon, when the first applicant was tired and drowsy, under the influence of medication and alarmed by the presence of an unknown person and of the Head Nurse of the Home. She also objected to the statement given by D.P.D., and argued that D.P.D. had not even seen the first applicant. 38. The second applicant also requested the withdrawal of the judge conducting the proceedings, alleging bias. 39. On 21 August 2008 the request for withdrawal was declared inadmissible by the President of the I. Municipal Court because the second applicant was not a party to the proceedings. At a hearing held the same day in that court D.P.D. stated that she had no objections to the psychiatric report but noted that there was no medical documentation in respect of the first applicant more recent than 2002. 40. On the same day the I. Municipal Court divested the first applicant of legal capacity. The decision states that the persons present at the hearing were the Centre’s representative lawyer M.G., and the first applicant’s special guardian D.P.D. The relevant part of the decision reads: “The requesting party lodged a request to divest the respondent of her legal capacity, alleging that the respondent, owing to psycho-organic changes caused by a brain stroke and brain atrophy, was incapable of autonomous life. She was entirely dependent on the help and care of others. By a decision of the requesting party her right to care outside her family had been established and she was placed in the Caritas Home for elderly and dependent persons ... in I. Her social and intellectual functioning was significantly reduced, it was not possible to establish contact with her, and she was disoriented and demented. She was in need of protection through the institution of guardianship because she was incapable of caring for her own needs, rights and interests, and therefore all requirements under section 159 of the Family Act for divesting her of legal capacity had been met. The respondent’s guardian ad litem replied that the allegations in the request were true and added that the respondent was bedridden, disoriented and completely incapable of autonomous life. She depended on the constant help of others and was unable to feed herself. Her condition was not improving but was expected to deteriorate. She was able to use only one hand, [and] could move it and put food into her mouth; however, even that hand was not functional to the extent that she could properly feed herself. In view of the respondent’s old age, the guardian suggested that a medical examination of the respondent be carried out. She did not oppose the requesting party’s application. This court consulted the opinion of a social worker (page 2), a birth certificate (page 3), medical records (pages 4-5), a decision of the I. Social Welfare Centre of 26 June 2008 (page 6) and a report by medical expert Š.D., doctor in psychiatry, of 18 July 2008 (pages 21-24). On the basis of the above evidence, this court has found the requesting party’s application founded and has accepted it. This court has established that the respondent is an eighty-three-year-old who suffered a brain stroke, after which she developed psycho-organic syndrome, high blood pressure and incontinence. In 2002 she underwent cataract surgery and was hospitalised at the neurological ward for a CVA [cerebral vascular accident]; she was subsequently placed in the Special Hospital for Lung Diseases in K. on account of exacerbated COLD [chronic obstructive lung disease]. Furthermore, this court has established that the respondent’s entire mental capacity, in particular as regards her memory, thought processes, ability to form new ideas and reach conclusions and decisions, together with her psychomotor functions, is damaged to such an extent that it renders the respondent incapable, so that she is dependent on the help of another person for mere survival. She is incapable of caring for herself, her rights and interests and protecting them, and therefore it is necessary to protect the respondent by means of social care, since the prognosis is unfavourable. This court accepted the report and opinion of the medical expert Š.D., doctor in psychiatry, to which the parties made no objections, because the report is detailed, objective and drawn up in accordance with the rules of the profession.” 41. This decision was not served on the applicants. 42. On 22 August 2008 the first applicant asked the I. Municipal Court that the decision of 21 August 2008 be served on the second applicant. She signed the authorisation with her full name. There was no reply. 43. The first applicant is today still accommodated in the Caritas Home. 44. The relevant part of a discharge letter of 20 December 2006, issued by the psychiatric ward of the V. Hospital, reads: “Brought for treatment by ambulance... there is information that her behaviour has altered since July when her mother, with whom she had lived, was accommodated in a Caritas Home in I. She subsequently locked herself in the house [and] isolated herself from everyone. The relatives who visited her noticed that she had weakened, refused communication and food; she lost a lot of weight, neglected personal hygiene. On admission she appeared as a chronic mental patient, [was] skinny, manic conduct, affectively inadequate... she verbalised fear and the feeling of being threatened, was suspicious and complained of hallucinatory experience. Treatment She has been treated in a closed psychiatric ward with classical pharmacotherapy (Moditen together with Normabel). By the second day following admission and therapy the patient started to take normal meals (first light food and then a regular diet). She has visibly recovered physically. The psychopathology for which she was hospitalised has completely ceased – she has no fears, no psychosis towards her environment, is joyful about every visit and when information has been sought about her. She has good introspection with regard to her physical weakness. She is willing to talk and accept solutions for her life. Optimistic prognosis for further treatment is based on the fact that her first hospitalisation in 1994, which involved deterioration of her mental health and the same clinical picture, was provoked by an external factor, as in the current episode, and in the meantime she has been in good remission, and functioned satisfactorily in society.” 45. On 17 September 2008 the Centre held a hearing with a view of appointing a guardian for the second applicant, since they intended to institute court proceedings divesting her of legal capacity as well. The second applicant objected to the institution of these proceedings and stated that she had not been informed of the grounds for their institution. 46. On 18 September 2008 the Centre appointed a lawyer, N.C., as guardian ad litem for the second applicant in the forthcoming proceedings to divest her too of the capacity to act. The relevant part of the decision reads: “... the case-file of this Centre shows that ... it instituted proceedings to divest Y of legal capacity in a competent court because owing to her illness and altered personality, she is not able to care for her personal needs, rights and interests. ... Y stated that she had no objections with regard to the person [proposed] as her legal representative, but that she considered it entirely unnecessary to appoint a guardian for her and to institute proceedings before a court to divest her of legal capacity.” 47. On the same day the Centre asked the I. Municipal Court to institute proceedings with a view to having the second applicant divested of her legal capacity. The relevant part of the Centre’s submission reads: “From early youth the respondent has suffered from muscular dystrophy, which makes it difficult for her to move about. Since two years ago, when her mother X was placed in the Home for elderly and dependent persons... the respondent has started to behave in a strange manner and once locked herself in her family house in B., refusing food and any contact with her doctor and worried neighbours. ... the medical documentation shows that the respondent was treated in the psychiatric ward of the V. General Hospital in 1994 with a diagnosis of reactive depressive psychosis. There is no evidence that the respondent continued with medical checkups following a check-up in July 1994, when she had received therapy; this shows that she does not see the need to take care of her own health. The attitude of the respondent towards her mother X ... is possessive. At the beginning the Home’s administration tolerated her whole-day visits. As a result of constant objections concerning the Home’s employees as regards care [to her mother] and verbal and sometimes physical aggression, and also the fact that she disturbed other patients, necessitating a police intervention, her visits have been restricted ... The respondent has unrealistic demands concerning her mother (she constantly seeks her placement in a single room, not accepting the explanations given as to why that is not possible). In her contacts with the employees of the institutions involved in the proceedings conducted for the protection of her own rights and interests and those of her mother, she does not see the purpose [of these proceedings], viewing them as planned personal attacks. She has a very low tolerance level, is unable to preserve self-control [and] insults and denigrates the employees. Also, the fact that she often changes her legal representatives, who refuse to provide further services after a short while, shows the respondent’s increasing problem in establishing and maintaining any kind of social relations in everyday life. In view of the above, the Centre considers that the respondent is not capable of caring for her personal needs, rights and interests ...” 48. The second applicant lodged an appeal against the decision of 18 September 2008 to appoint a special guardian for her, arguing that she was capable of taking care of herself and that there was no need to appoint a guardian for her. 49. On 28 October 2008 the second applicant also filed her submissions opposing the request to divest her of legal capacity lodged by the Centre. She argued that it was not correct that she had been suffering from muscular dystrophy since early youth, but that she had had a road accident in 1991, since when she had been using a walking stick. She denied the Centre’s allegations as regards her behaviour over the previous two years. She stressed that she had been taking care of her elderly mother, had placed her in the Caritas Home at her own initiative and then continued to visit her regularly; she also bought a wheelchair for her mother, had been taking her out in the Home’s courtyard, had succeeded in teaching her again how to feed herself and to hold a bottle with water, and provided her with all necessary care. She had also been caring for her own needs, preparing her meals or paying a maid to prepare her meals and clean her flat. She had also been regularly seeing her doctor. In 1994 she had retired and had been hospitalised in a psychiatric ward of the V. Hospital. She had not subsequently seen a psychiatrist since there had been no need and her doctor had not recommended it. She had had regular contacts with others; she was a member of two libraries, had been reading a lot, growing flowers, doing handcrafts and going on short trips. For the purposes of these proceedings she had engaged the services of a lawyer, which showed her ability to care for her interests. 50. On 2 June 2009 the Ministry of Health and Social Welfare quashed the decision of 18 September 2008 on the ground that the same person could not be a legal representative and a special guardian. 51. On 27 July 2009 the Centre issued a fresh decision appointing lawyer I.R. as Y.’s special guardian. The relevant part of the decision reads: “On 18 September 2008 ... N.C. was appointed as a special guardian to Y. in order to represent her in the proceedings with a view of divesting her of legal capacity ... The guardian was also authorised to ... represent her in all personal matters and matters concerning her property, to manage her assets and to take proper care of her person, rights, obligations and wellbeing. ... The Ministry also referred to a wide range of powers given to the special guardian, calling into question the need for such powers. In this connection and on the basis of the evidence presented ... this Centre assessed that the special guardian would properly protect her person, rights and interests, with understanding of the purpose of the proceedings to divest her of legal capacity and the protection provided through the institution of guardianship. It therefore gave [N.C.] the authority to care for [Y.’s] assets, because this Centre is doubtful as to whether Y. is capable of caring for her rights and interests, including her property rights, and has therefore instituted proceedings to divest her of legal capacity, the final decision on which is to be taken by a court. ... N.C. will continue to represent Y in these proceedings on the basis of a power of attorney [given to her by Y] ... ...I.R. is appointed as special guardian for Y ...” 52. On 7 August 2009 the second applicant lodged an appeal against the above decision, arguing that there was no need to appoint a guardian for her or to institute proceedings to divest her of legal capacity because she had been adequately protecting her needs, rights and interests. She explained that she had been caring for her material needs, paying all bills, preparing her meals and maintaining social contacts, as well as regularly seeing her doctor, attending cultural events and visiting her mother. Her way of life did not show in any respect that there was a need to place her under guardianship. It appears that no decision has been adopted upon this appeal. 53. On 30 June 2009 a psychiatric report concerning a telephone interview with the second applicant was submitted to the I. Municipal Court. The relevant part of the report reads: “The respondent is sixty years old. She has been receiving an invalidity pension for some fifteen years. She lives alone in her own flat. She is unmarried [and] has no children. Her physical health is impaired – and that is about all that we can establish without doubt with regard to her physical condition. Owing to the lack of cooperation on the part of the respondent, we have no medical records ... At the outset it should be pointed out that the respondent refused to cooperate. During an interview (organised with great difficulty!) she held a monologue for a whole hour, in which she referred to all the injustice done to her and her mother. She ignored any attempt by the doctor to conduct a dialogue, let alone a structured one. The respondent’s biography or her present life was not addressed. The only thing that happened was her raised voice, rudeness, hostility, a clearly paranoid attitude towards her surroundings, the feeling of being persecuted and a need to defend herself from the institutions that had been interfering with her life, ill-treating her, etc. The expert’s expectation that during a home visit, on her own territory, the respondent would participate in the interview in a more cooperative manner was not met. More than ten telephone calls were not answered. The attempts to find her at her home address were also unsuccessful. After a few weeks she made a telephone call - shouting, accusing, insulting and attacking – in which she did not want to hear any answers. On the basis of all this information and the expert’s personal experience with the respondent, it is easy to conclude that she is a person of a very bizarre mental structure. She suffers from serious emotional disharmony and grave dysphoria and a flood of uncontrolled affective outbursts. In the background, a general paranoid attitude towards her entire surroundings is perceptible, with a fixation on institutions. She is ruled by a feeling that she is exposed to injustice, and to ill-treatment, abuse and systematic denial of her rights. She has succeeded in developing a strong hatred for the employees of the I. Social Welfare Centre and that whole institution. The same is true (maybe even more so) about the Home where her mother is placed. She is argumentative. Her behaviour is often disorganised and chaotic. She has deeply estranged herself from everyone, chased away all good-willed people, broken all threads of cooperation. She is entirely uncooperative and is prone to describe everyone who dares to say or do anything she dislikes as an ignorant person, an adversary, [or] even an enemy. In all that ‘rashomon’ the respondent does not even make an attempt to control herself, does not try to hide her hostility, does not try even for a second to reflect and analyse her own contribution to the situation; she rejects any suggestion that there had been any wrong on her part. She is entirely uncritical and has no introspection; she automatically seeks the guilty parties in her surroundings. She opposes any suggestion that she address problems regarding her own person or her behaviour and threatens [to appeal to] a higher instance. In her entire mental world there is a lot of system, that is, logical concepts – and this would all be fine if that logic were not based on an entirely false, at times even psychotic, basis. ... her entire mental world is of a paranoid nature. In the best case we are speaking of a paranoid personality disorder, that is, the condition of personal derangement in which feelings of insecurity, being exploited and having suffered damage prevail. Without restrictions and with no basis she seeks enemies in her surroundings, people who are against her, who want to exploit her or injure her. She has difficulty in trusting anyone, if that is possible at all. She is mistrustful, negative towards others who are or could become traitors; she sees hidden meaning in everything. Such an attitude warrants constant guard, suspicion and defensiveness. It is difficult to assert that this all amounts to a definitive paranoia, but the respondent – even if she is not in paranoia – is surely approaching it. We stress that paranoia is a real psychotic disorder (that is to say mental derangement) characterised by the development of and fixation on one psychotic thought – usually of a persecuting type – or on several such thoughts which are grouped, interconnected and systematised (connected in a psychotic system). In any case, the respondent is not far from mental derangement, which, unfortunately, she does not see and does not understand and therefore refuses any professional help. Overwhelmed with this personal condition, the respondent most often estimates the world around her entirely wrongly, giving immense importance to trivialities and at the same time ignoring crucial things. By insisting on the irrelevant, she seriously neglects her vital interests and thus directly compromises them. She exhausts her limited resources on irrelevant, sporadic things, thus calling into question her ability to organise her existence, to structure it adequately and to exploit what she has at her disposal in her best interests. Her mental condition is entirely (which still does not mean irreversibly) impaired. She has lost the ability to anticipate and to react and adapt in a preventive manner. Her understanding of the world and her position in it is limited by a feeling of injustice, and is also superficial, wrong and strict. She is incapable of locating herself correctly in the complex, abstract laws of the outside world. She is not capable of recognising the institutional resources at her disposal; even when they are presented to her, she rejects them uncritically, putting herself in a dangerous, unacceptable and miserable position. In her mental condition she has no chance of exploiting outside resources and protecting her rights and interests. She will follow – without caution, without reflection – her first impression and thus immediately puts at risk her economic, material and health interests. At the same time she will ignore favourable outcomes and situations and potential opportunities for improvement. On account of her clearly deeply impaired mental vitality, the respondent is in a perilous condition - her physical, economic, social and health safety is compromised and she has no resources to resist peril constructively and properly. She is not able to participate actively in the outside world and to act in a constructive manner. She is lost in everyday specific situations and exhausts herself in trivialities. Therapeutic possibilities in her condition are still possible. The problem is that the respondent will refuse them categorically and systematically, seeing them as an attack on herself or a sign of grave hostility. The respondent is in a situation which absolutely excludes any possibility for her to take care of her rights and interests and to show responsibility towards her obligations. Her only interest is to confirm her paranoid views – and here she does not spare her mental, financial or institutional resources. In this respect it is not possible to leave her on her own, since that will immediately put her at risk at all levels. Her mental resources have brought her to a critical mental and social situation where it is not to be expected that those same resources could save her. I recommend that the request by the requesting party be accepted and that the respondent be entirely divested of legal capacity. There is no aspect of legal capacity that she could perform responsibly and to her own advantage. It is to be stressed that the above statement could and should be revised in the case of a fortunate outcome, that is, if the respondent starts psychiatric treatment, offers her cooperation in therapy and achieves mental rehabilitation. However, no new assessment of her mental condition ... is recommended for at least one year in view of the nature and gravity of her disorder.” 54. At a hearing held on 25 November 2009 in the I. Municipal Court the second applicant was heard. The relevant part of the written record of the hearing reads: “... the respondent alleges that she is entirely capable of caring for her needs and interests, that she receives a pension and lives in her own flat; her next-door neighbour M.Š. prepares her lunches and sometimes she goes to a restaurant. She further alleges that she is able to address all issues concerning her household and paying her bills. She is seeing her doctor and is able to carry out all administrative and other tasks in the city. She retired fifteen years ago because of a road accident; she is an economist with a high school education. She had enrolled in a law faculty, but had not completed her studies ... She watches television, reads daily newspapers, books, has a wide circle of friends who visit her and sometimes she also visits them; in particular, she is also visited by her relatives. She is a very communicative person and leaves a good impression on others and has never had any problems in communication with others. When her mother was placed in a home, she was overwhelmed by sadness because until then they had been living together. However, she did not lock herself in and she does not know who called the doctors and the ambulance - that happened after a report by the Centre. The discharge letters following her two hospitalisations show that her condition was good and satisfactory. Since 2006 she has not been taking any medication save for her underlying illness, which is muscle weakness (a mild form of paraplegia). Between 9 October and 10 November 2009 she was hospitalised for rheumatic diseases and rehabilitation, in order to maintain her customary condition as regards her ability to walk ... She specifically stresses that she has reacted very badly to the institution of these proceedings to divest her of legal capacity because she considers herself entirely legally capable and healthy and able to care for her rights and interests and fulfil all her obligations as she has already described. To the question what her condition would be if she were divested of legal capacity, she answers that she could not even imagine it... it would be bad, such a decision would lead to depression and exacerbation of her illness; her soul would thus be killed and her whole life as well. She stresses that her condition does not require a guardian ... She stresses further that before these proceedings were instituted she had not been given a chance by the Centre or the expert who prepared a report in these proceedings, to give her own overview of her condition, and therefore she has now explained her situation. She also drew up a six-page statement which she attaches to the case file. ... She stresses further that the guardian did not contact her at all ... ... she also stresses that in her view these proceedings were instituted because the Centre wants to deprive her of her property (a flat in I. and part of a family house in B.) and various other property that she might inherit from her mother, since she has no spouse or children, but only a sister. She alleges that her current situation is such that she is capable of caring for herself, even if her illness were to worsen, so as to choose by herself a person to care for her; she also has enough assets to pay for the care that she wishes. She has been thinking about it and she always tries to find solutions for the future. She wants to continue to live in her own flat and does not wish to leave it. Should she be divested of legal capacity, her condition would worsen; she had seen it happen to others. Then she could be placed somewhere she would not want to be. She does not want to live in a home ... because she is used to her own home ... and wishes to be left in peace ...” 55. On 29 March 2010 the same expert in psychiatry submitted his additional report on the second applicant, in which he repeated his previous conclusions, without any further contact with her. 56. The above court proceedings are apparently still pending. 57. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read: “(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 ....” “(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 ...” “The competent social welfare centre shall place under guardianship a person ... divested of legal capacity ...” (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. ...” “(1) The guardian represents the ward. ...” “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.” “(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.” ...” “An appeal may be lodged against a decision adopted at first instance where this Act does not provide otherwise. ...” “(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.” (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 reopening 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.