CASE OF X v. CROATIA
Violation of Art. 8;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1972 and lives in Zagreb. 5. On 15 December 1998 the S. Welfare Centre (Centar za socijalni rad S., “the Centre”) instituted proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) with a view to divesting the applicant of her capacity to act (to perform acts with legal effect; poslovna sposobnost). On 9 December 1998 the Centre temporarily appointed the applicant’s mother as her guardian so that she could represent her daughter in the above proceedings. The Centre based its request on the notice from the V. Psychiatric Hospital of 27 October 1998 in which it was stated that the applicant was suffering from schizophrenia. The relevant part of the notice read as follows: “[The applicant] has been recurrently treated at the V. Psychiatric Hospital, on the last occasion from 4 to 26 September this year, and diagnosed [as suffering from] schizophrenia (depressive disorder), after a suicide attempt. During the last few treatments [at the hospital] the patient had left the hospital of her own will. While being in a phase of exacerbation she returned [to the hospital] on several occasions, after swallowing a large quantity of pills. We are aware that the patient has had problems with her mother and also that she is occasionally inclined to take drugs. As regards the main disease (sch[izophrenia]), we have not observed productive psychotic symptoms for a long period, but her behaviour and functioning has lately been compromised with so called deficiency symptoms which impede a more structured therapeutic process to a significant degree. We consider that the above indicates the need to deprive the patient of her capacity to act...” 6. On 4 June 1999 the applicant was heard by the Municipal Court’s judge for the first time. The transcript of her statement reads as follows: “The [applicant] says that her problems started when she went to London where she felt lost and begun to consume pot [meaning marijuana]. Since then she’s been suffering from hallucinations which at that time seemed tolerable to her. After 4 years, in 1993, she returned to Zagreb where she started her treatment. She is presently receiving therapy. Her latest hospitalisation was in September last year. She is presently receiving Depot and Haldol. She sells environmentally-friendly carrier bags. She neither wishes to be placed under guardianship nor does she wish to have her mother as her guardian, for private reasons. She is presently two months pregnant and ever since she learned of this she has not taken any drugs. Most lately she has been taking pot but no heavy drugs. She is planning to terminate the pregnancy. She does not feel good on Haldol, she feels depressed and in particular it bothers her at work. She has finished elementary school but has never been employed. She went to London when she was seventeen with a group of people. She now lives in a flat owned by her mother. She lives alone since her mother lives with her new husband. However, her mother is paying the bills and the rest she earns herself. It is true that she attempted suicide by [swallowing] pills, most recently in March last year. She is aware that she has been diagnosed with paranoid schizophrenia.” In view of the opinion given by the medical expert and the fact that the applicant was undergoing psychiatric treatment, the court stayed the proceedings. 7. On 25 December 1999 the applicant gave birth to a daughter, A. 8. In his letter to the Centre of 11 April 2000, a psychiatrist of the V. Psychiatric Hospital stated as follows: “... we consider it necessary that the proceedings for divesting the patient of her capacity to act be resumed because her behavioural disorder has become exacerbated lately owing to her uncontrolled intake of psychoactive substances by which she has endangered her own safety and in particular the safety of her child.” 9. On an unspecified date in 2000 the court resumed the proceedings and on 7 November 2000 paid a visit to the applicant’s home, in the presence of the applicant and her mother as her guardian, a judge conducting the proceedings and her secretary, a representative of the Centre and a psychiatrist. The relevant parts of the report of the visit read as follows: “The [applicant] in the company of her mother and child is met at the premises. The representative of the Centre states that a decision to place the child in foster care was issued and that the [applicant]’s mother was appointed as carer. The [applicant] states that she agrees to that as well as to being placed under guardianship in the best interests of her child since she is aware that she is unable to care for the child or for herself. However, she asks whether she can apply to have her capacity to act restored if her condition improves. In the meantime she has twice been admitted to hospital but does not see any results and does not know what to do with herself. From time to time she says that she might go back to London to earn some money. It is true that she has been taking drugs, though rarely and only pot and also larger quantities of Plivadon together with the prescribed therapy. In fact, she is not working, she is mostly at home caring for the child. Only after being asked by her mother and the representative of the Centre does she admit that she is still receiving company at home and that she gave some kitchen cupboards to Caritas because she did not like them (the mother says that she sold them). The father of the child, living in the same building, occasionally visits her and the child, but she has no committed relationship although two weeks ago she terminated another pregnancy. Although she expresses a wish to do any job, she admits that so far she has taken no steps to that end.” 10. The court also ordered a psychiatric assessment of the applicant’s mental condition. The assessment was carried out by the psychiatrist present at the visit to the applicant’s home. The conclusion of the report drawn up on 25 November 2000 read as follows: “... The patient suffers from a chronic mental illness with progressive tendency. Addiction to opiates has also been fixed and motivation for abstention is weak. Prognosis quoad sanationem is exceptionally unfavourable. The patient is unable to protect herself or her rights and interest and might endanger the rights and interests of others. I propose that she be entirely divested of the capacity to act.” 11. On 14 May 2001 the Zagreb Municipal Court divested the applicant of the capacity to act. The operative part of this decision reads as follows: “X ... is entirely divested of her capacity to act.” In its reasoning the Municipal Court summarised the findings of the applicant’s psychiatric assessment and concluded as follows: “... this court has established without doubt that the [applicant], owing to her mental illness and addiction to opiates, is not able to care for her personal needs, rights and interest, and therefore also endangers the rights and interests of others. Accordingly, she has to be entirely divested of her capacity to act under section 182 of the Family Act.” The applicant did not appeal against that decision, and it became final on 8 October 2001. An ex lege consequence was that the applicant was also deprived of her parental rights although the decision to divest the applicant of her capacity to act did not state it expressly. The court appointed her mother as her guardian. Following a request made by the applicant’s mother, on 27 December 2001 the applicant was placed under the guardianship of N.J., an employee at the Centre. 12. On 16 February 2004 the applicant applied to the Zagreb Municipal Court in order to have her capacity to act restored. On 23 April 2004 the court asked the V. Psychiatric Hospital to make an assessment of the applicant’s mental condition. The relevant parts of the report drawn up by a different psychiatrist on 8 September 2004 read as follows: “... Psychiatric expertise in this case commenced in June this year when the patient answered the Centre’s invitation. However, during the first interview she showed transparent psychosis with delusional elements and disjointed breathless speech, and when an attempt was made to carry out a urine test for psychoactive substances the patient did not appear at the interview scheduled for the next day. ... The second interview was held on 2 September at the time of her hospitalisation in the V. Psychiatric Hospital, unrelated to these proceedings, and being the result of the evident exacerbation and bad condition of the main illness. The patient was hospitalised on 21 August 2004. During the present interview, despite the therapy administered, just the same as during the interview held in June, she manifests florid psychosis with all elements of schizophrenic psychosis. Paranoid manic ideas, relational delusions as well as delusions of persecution and bizarre manic ideas are dominant. Her interpretation of reality, of herself and others is completely distorted. [The patient] represents a typical phenomenon of derealisation and depersonalisation. Her emotions are engaged only with regard to her manic perception; otherwise she is emotionally cold and aloof. Emotional resonance is lacking during the interview. Her overall behaviour has a manic quality. There is no doubt that her everyday functioning is also determined by the above-described psychopathological perception. ... In my opinion the problems associated with the intake of addictive substances, those being cannabis, are at the time being of secondary importance. She took other psychoactive substances only experimentally and occasionally and her psychotic picture, clinically manifested for a long time, cannot be associated with it. However, it is clear that her previous intake of cannabis had a role in forming her behaviour, possibly even in inducing her psychotic behaviour and her overall clinical picture. In comparison to the previous psychiatric assessments, her psychopathology, that is to say her clinical picture of schizophrenic psychosis became more pronounced, delusions are now barely susceptible to any corrections, dislocation of the thought process is noticeable, emotional coldness and aloofness, loss of the reality test, utmost lack of critical insight towards herself. Owing to her psychopathological drives she is aggressive, hostile and paranoid towards others. In these circumstances I consider that the conditions for restoring the capacity to act to X do not exist. On the contrary, the psychopathological reasons which led to her being divested of the capacity to act are now even more conspicuous and more numerous. Owing to her mental disturbances (schizophrenia) the patient is still not able to look after her personal needs, rights and interests and moreover she is endangering the rights and interests of others. Therefore, I propose that the court maintain [its decision] that she be entirely divested of the capacity to act and placed under guardianship. ...” 13. At the hearing on 12 October 2004, the applicant objected to the above assessment and requested a new one. The second psychiatric assessment carried out by the Psychiatric Clinic of the Zagreb Medical School supported the first one. The relevant parts of the report drawn up by a psychiatrist, M.K., on 27 January 2005 read as follows: “... Mental status: conscious, uncertain about time, well oriented in space, auto and allopsychic orientation preserved. Contact is easily established, she answers questions without latency. Psychomotorically tense, worried about the outcome of the proceedings. Affected behaviour. Basic disposition slightly uneasy. Emotionally distant. Thought flow regular in its form, in content [includes] description of previous manic experiences and sensory delusions, currently without florid psychopathological deviations. [She] denies delusions and none are perceived. Her intellectual and mnestic capacities are devoid of strong deviations. Her will-instinct dynamism is preserved. She is neither aggressive nor suicidal. 4. Opinion The patient ... has been suffering for ten years from chronic mental illness, schizophrenic psychosis. In addition, as is commonly found with such an illness, she is also an addict, she has been consuming various opiates and even today her abstinence cannot be established with certainty. She has been hospitalised on more than ten occasions. The [medical] documentation and the information obtained from the patient both show that there was no single period of systematic clinical monitoring after her release from hospital or a sustained period of social functioning. Therefore, we can fully agree with the above assessment of our colleagues who gave their opinion of the patient’s mental health and agree that it is good for her not to have her capacity to act restored. There has been no improvement of her clinical picture or her social functioning in relation to the opinion expressed at the latest assessment, which is understandable given the nature of her disorder, i.e. chronic mental illness. 5. Conclusion [The applicant] is suffering form schizophrenic psychosis of paranoid disposition and in addition is still consuming opiates, which altogether indicates that the disorder, which is in any case chronic, has also been progressing and renders X incapable of taking care of her interests, rights and responsibilities, so that there is no ground for restoring her capacity to act, of which she has been divested since 2001.” 14. On 10 March 2005 the court, relying on the above psychiatric assessment, refused the applicant’s request to restore her capacity to act. The applicant did not appeal against that decision. 15. In a decision of 13 July 2000 the Centre placed the applicant’s child in foster care, relying on section 99(1) of the 1998 Family Act, and also appointed the applicant’s mother as a carer. The relevant operative parts of the decision read as follows: “1. A. (personal data of the child) has the right to foster care outside her own family – placement in the foster family of [maternal grandmother] ..., beginning from 13 July 2000. 2. ... 3. ... 4. Contacts between the child A. with her mother X shall be arranged in consultation with the foster carer and with her father R. every Tuesday and Thursday from 5 p.m. to 7 p.m. and every Sunday from 4. p.m. to 7. p.m. ...” The relevant part of the reasoning reads as follows: “... The following has been established in these proceedings: The child A. is registered with this Centre as having parents of asocial behaviour. She was born out of wedlock. Her mother X, born on 10 March 1972 is chronically ill, under treatment for mental problems and addiction. In 1998 proceedings with a view to divesting her of the capacity to act were instituted and her mother, [the child’s maternal grandmother], was appointed her temporary guardian. The proceedings are still pending. The father (his personal data) is a minor who has left school and is unemployed and a drug addict ... The quality of the parents’ relationship has significantly deteriorated lately, including frequent verbal and physical conflicts requiring police intervention. The parents have neglected the child. On 13 July 2000 the expert panel of this Centre decided to allow placement of the child A. in the foster family of ..., maternal grandmother, who has helped [the parents] both by providing care for the child and financially. Contacts [between the child and her parents] are [to be] arranged according to the agreement between the parents and the foster carer.” 16. In a decision of 22 November 2001 the Centre deprived the applicant of the right to live with her daughter, ordering that she be placed in SOS – Children’s Village L., in the care of one of their employees, M.V. The contacts between the child and her parents were to be arranged with the custodian and according to the House Rules of the above institution. The relevant part of the decision reads as follows: “The proceedings have been instituted by the Centre of its own motion. The interviews with the child’s mother, X, and maternal grandmother, ..., as well as an on-the-spot inspection and the relevant documents show the following facts: The S. Welfare Centre’s decision ... of 13 July 2000 ordered placement of the child A. under the foster care of her maternal grandmother ... since the child’s parents had been assessed as persons who, owing to their asocial behaviour and consumption of opiates, were not capable of caring for the child. In respect of the child’s mother, X, proceedings with a view to divesting her of the capacity to act were instituted owing to her mental problems and problems with addiction. She was divested of her capacity to act in a final judgment (no. ...) of 8 October 2001 on the ground that, owing to her disturbed mental state (schizophrenia) and addiction to opiates, she had been incapable of caring for her personal needs, rights and interests and was endangering the rights and interests of others ... Supervision of the child’s family circumstances, however, revealed that the child, although placed in her grandmother’s foster care, had continued to live in the same household with her mother, who had interfered with her upbringing and taken part in caring for the child, which the foster carer could not prevent ... The child’s mother had not allowed the foster carer to care for the child. She was often under the influence of opiates which made her behave in an aggressive and unpredictable manner. The child’s mother X admitted to consumption of opiates but considered that the child had not been at risk since, when feeling that she could not care for the child, she had been in the habit of taking the child to her paternal great-grandmother who then cared for the child since she, the mother, did not trust her own mother. She was aware of the overall situation and that the child’s surroundings were not beneficial for her but she blamed her mother and was looking for a solution (statement given on 8 November 2001). The child’s father is currently doing his military service and is therefore not in a position to care for the child. Bearing in mind the overall family circumstances, the expert panel for family protection considered that the current living conditions endangered the child and that her placement under the foster care of M.V. in Institution L. was urgent (the expert panel’s conclusion of 22 November 2001). The decision on [the child’s] contacts with [her] parents has been adopted in view of the mother’s opposition to the taking of the child and her placement in an institution as well as the child’s need for regular contacts with her parents, which contacts, having regard to the parents’ state of health, shall take place under expert supervision.” According to the applicant, she continued to visit her daughter on a regular basis. According to the Government, the applicant visited her daughter once in two months. 17. On 4 July 2003 the Centre placed the applicant’s child, A., under the guardianship of M.B. The relevant part of this decision reads as follows: “These proceedings have been instituted by the Centre of its own motion. The following has been established in the proceedings: - that A is a child without parental care since her father R. died on 16 April 2003 and her mother X was entirely divested of her capacity to act in the Zagreb Municipal Court’s decision ... of 8 October 2001; - that a social worker, Ms N.J., an employee of this Centre is currently a guardian of X ...; - that the child A. has been placed in Institution L.; - that [the Centre’s employees] paid a visit to L; -that a social worker, Ms M.B., an employee of L, was heard and agreed to be appointed as a guardian of A.; - that the prescribed conditions for her guardianship have been fulfilled.” 18. The above decision was not served on the applicant. In 2003 the Centre instituted proceedings for the adoption of A. of its own motion, without the applicant’s knowledge. On 21 August 2003 M.B., as A.’s guardian, gave her consent to the adoption. The Government submitted that on 25 August 2003 the applicant’s mother and the child’s paternal grandmother had been informed about the ongoing adoption proceedings. They also submitted that the applicant had been informed thereof during a telephone conversation on 26 August 2003. 19. On 2 September 2003 the Centre issued a decision authorising the adoption of A. That decision became final on 11 September 2003. 20. Under the domestic legislation in force, the applicant, being a person divested of the capacity to act, was not a party to the adoption proceedings, nor was she informed that they had taken place. Only later did the applicant find out that her daughter had been given up for adoption. 21. The Family Act (Obiteljski zakon, Official Gazette no. 162/1998 of 22 December 1998), in so far as relevant, read as follows: “(1) Parental rights encompass protection of a child’s personal and economic interests and parental responsibility for his or her wellbeing. (2) Parental rights may be restricted or divested only by a decision of a competent body for the reasons and in the procedure prescribed under this Act.” “(1) Where parents do not live together a Social Welfare Centre shall designate the parent with whom the child shall live and arrange contacts between the child and the other parent except where this Act has placed such decisions within the jurisdiction of the courts. ... (5) In the case mentioned in paragraph (1), where both parents are incapable of caring for their child or are otherwise unable to do so or are putting the child’s wellbeing at risk by their acts a Social Welfare Centre shall place the child [under the care of] another person or an institution. (6) Where a Social Welfare Centre makes a decision under paragraph (5) it shall establish the duties and rights of each parent in respect of their care for the child.” “(1) Where parents incapable of caring for their child, owing to their absence or health or other grounds, have not placed the child under the care of a person fulfilling the conditions for a guardian, a Social Welfare Centre is empowered to place the child under the care of another person or an institution without the parents’ consent. (2) Placement or care of the child under paragraph (1) shall not exceed three months in duration.” “(1) A Social Welfare Centre shall deprive of the right to live with his or her child a parent who seriously neglects or puts at risk the upbringing and education of the child and shall place the child under the care of another person or an institution. ... (4) Deprivation of rights under paragraph (1) ... does not terminate other duties and rights of a parent in respect of his or her child.” “(1) Measures under [section 112] ... shall not exceed one year in duration. ...” “(1) A parent who abuses or gravely neglects parental duties and rights shall be divested of these rights by a decision of a court adopted in non-contentious proceedings. ...” “(1) An adult who, owing to mental damage or illness, addiction to opiates, senility (dementia) or on other grounds, is incapable of taking care of his or her personal needs, rights and interests or is endangering the rights and interests of others shall be partly or entirely divested of the capacity to act. ...” 22. The Family Act (Obiteljski zakon, Official Gazette no. 116/2003 of 22 July 2003), in so far as relevant, reads as follows: “(1) Once adoption has been established parental custody [of the adopted child] shall cease. ...” “(1) Adoption may be established if it is in the interest of the child. ...” “(1) Adoption shall require the consent of both parents, except where otherwise provided. ...” “Adoption shall not require consent of a parent who is... 2. Divested of the capacity to act...” “(1) Adoption proceedings shall be carried out of its own motion by the competent welfare centre...” ... “(3) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings.” “If necessary, the competent welfare centre shall hear the child’s other relatives about the circumstances relevant to the adoption decision.” “(1) Once adoption has taken place, all rights and obligations between the child and his blood relatives shall cease. ...” 23. The UN Convention on the Rights of the Child of 20 November 1989, which entered into force in respect of Croatia on 8 October 1991 (Official Gazette - International Agreements 15/1990), in so far as relevant reads as follows: 24. The European Convention on Adoption of Children of 24 April 1967, in so far as relevant, reads as follows: 1. “...an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a. the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect; b. the consent of the spouse of the adopter. 2. The competent authority shall not: a. dispense with the consent of any person mentioned in paragraph 1 of this article, or b. overrule the refusal to consent of any person or body mentioned in the said paragraph 1, save on exceptional grounds determined by law. 3. If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent. ” 25. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles 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.”