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					II. ÚS 2630/07 #2

Conditions for deprivation of legal capacity

                                             Czech Republic
                                               DECISION
                                       of the Constitutional Court
                                      in the name of the Republic


The Constitutional Court has decided in the panel of judges composed of the presiding judge Dagmar
Lastovecká and judges Stanislav Balík and Jiří Nykodým upon the constitutional complaint of the
complainant M. F., represented by Mgr. Luďek Šikola, attorney-at-law with registered office at
Dvořákova 13, Brno, contesting the judgment of the District Court of Prague 5 of 22 January 2007, ref.
No. 6 P 334/2000 – 241, and the judgment of the Metropolitan Court in Prague of 20 June 2007, ref.
No. 12 Co 165/2007-257, connected with a proposal for the cancellation of Section 10 para 1 of the
Civil Code and Section 186 para 3 of the Civil Procedure Code, having the District Court of Prague 5
and the Metropolitan Court in Prague participating on the procedure as the parties in the proceedings,
as follows:

The judgment of the District Court of Prague 5 of 22 January 2007, ref. No. 6 P334/2000-241,
and the judgment of the Metropolitan Court in Prague of 20 June 2007, ref. No. 12 Co 165/2007-
257, are overturned.

With respect to the remaining issues, the complaint has been dismissed.

Reasoning:

I.

The complainant contested the above mentioned judgments in the Constitutional Court and sought
that they be overturned; and at the same time, she proposed that Section 10 para 1 of the Civil Code
(hereinafter “the CC“) and Section 186 para 3 of the Civil Procedure Code ( hereinafter “the CPC“) be
annulled.

The complainant feels that her rights protected by the Constitution have been violated by the
judgments contested. She claims that her rights to the inviolability of a person, protection of her private
and family life, capacity to possess rights and right to vote have been violated by the procedure of
both courts. These interventions have occurred due to the fact that her proposal for restoring her legal
capacity, which she was deprived of by the judgment of the District Court of Prague 5 of 20 March
2000, file No. 5 Nc 961/98, was not granted. At the same time, once in the past, in 2002, she already
attempted to have her legal capacity restored but was not successful. She refers to the Decision of the
Constitutional Court, file No. IV. ÚS 412/04, from which she cites that “the limitation of legal capacity is
always a serious intervention in the personal integrity of the person subject to the limitation. Such
intervention needs to be examined from the perspective of potential interventions into the fundamental
rights of the person subject to such limitation, protected in particular under Article 5 and Article 10 para
1, 2 of the Charter, interpreted in the extent limited by human dignity.“ Although in the contested
judgments, the courts did not decide about the deprivation of legal capacity but about her motion for
restoring thereof, which in her opinion does not release them from the duty to consider whether the
conditions for such intervention in her private life have been fulfilled; since such a measure influences
daily life in the most ordinary situations. In addition, she points out that such decision has
automatically deprived her of the right to vote and, with regard to the provision of Section 14 para 1 of
the Law on Family, the right to enter into marriage, which has precluded her from leading a normal
family life.

II.

From an extensive material contained in the files of the lower courts, obtained by the Constitutional
Court for the purposes of the review, there have arisen the following facts as substantial for the
proceedings. In December 1998, the District Authority of the City District of Prague 5 sent a motion to
commence the proceedings on the complainant‟s legal capacity. It stated that she was not able to
manage her money, did not pay rent in a duly manner and therefore, there was a need for the court to
determine at least the possibility that the rent be paid by her guardian. A report of the Fokus Praha
Association providing services to people with mental illness was attached to the motion. It has arisen
from the report that the main problem of the complainant was that until the age of 50, she had lived in
the common household with her overprotective mother who died at the beginning of 1998; and after
her death, she was unable to cope with daily situations. Upon this motion, the District Court of Prague
5 commenced the proceedings on deprivation of legal capacity of the complainant and with respect to
these proceedings, it appointed for her a guardian ad litem, V. D., an employee of the City District of
Prague 5; and it also appointed certified experts to assess her mental health. The experts concluded
that she suffered from mental illness which was of a permanent nature and that limited her ability to
independently make any significant legal acts. They also mentioned that her ability to dispose of a
part of her financial income in a sum amounting approximately to CZK 2,000 was not affected thereby.
Furthermore, they stated that they did not consider it appropriate for the complainant to participate in
the court proceedings since she was not able to properly understand the sense thereof; and in
addition, her health condition could deteriorate. Upon questioning the certified expert, which was
carried out only with the participation of the guardian, the court decided that the complainant was fully
deprived of her legal capacity and decided that this decision would not be delivered to her; reasoning
that according to the experts‟ conclusion, she would not be able to fully understand the meaning of the
court proceedings and her health condition could be endangered. The decision on to the appointment
of the guardian then followed. The court failed to find any of her relatives` and therefore the City
District of Prague 5 was finally appointed as her guardian. The complainant filed an appeal against
this decision and objected that she had been appointed a guardian which was the institution that had
initiated her deprivation of legal capacity. The appellate court accepted this objection; and therefore
overturned the decision. In the subsequent proceedings, the City District of Prague 13 was appointed
as guardian. In March 2001, the complainant filed an appeal also against this decision; and at the
same time, she requested her legal capacity to be restored. Her appeal has been rejected in this
matter.

However, the court did not materially deal with her motion for restoring legal capacity. Therefore, in
November, she sent a reminder to the court which was not, however, included in the file. On 13 June
2002, the complainant personally appeared in the court and put her submission of November 2001 on
file; and she insisted on executing a protocol on repeatedly initiating the commencement of the
proceedings on restoring her legal capacity. Only upon this motion, the court began to deal with the
case on the merits and appointed for her a guardian ad litem. From the documents which the court
gathered within these proceedings and which are part of the file, it is apparent that the complainant
was still indebted due to not paying rent. For example, in July 2002, the Social Support Division of the
City District of Prague 5 decided upon the appointment of a special recipient of the state social support
(housing allowance). Upon hearing to which also the complainant was summoned but did not appear
there, the court re-appointed a certified expert to assess her legal capacity. The expert concluded that
her condition had not changed since the earlier assessment when her mental health had been
examined, and that it was not realistic to consider the restoration of her legal capacity even in partial
extent. As for a potential ability of the complainant to participate in the hearing, he stated that she was
able to understand the meaning and contents of the hearing to the basic extent. After the hearing with
the participation of the complainant took place, the court dismissed her motion for restoring her legal
capacity. She filed an appeal against this decision; with respect to which the Metropolitan Court in
Prague decided in the manner that it had upheld the judgment of the court of the first instance.

The proceedings, in which the judgments contested under this constitutional complaint were rendered,
were initiated by the motion for restoring legal capacity, filed by the complainant on 15 December
2005; and at the same time, she announced to the court that she had chosen Mgr. David Zahumensky
to represent her in these proceedings and submitted his power of attorney. He then completed the
motion by a detailed analysis of the complainant‟s situation in relation to the preceding proceedings.
He criticized the approach of the institutions to her situation when, instead of providing her with social
aid, they deprived her of legal capacity despite the fact that, in his opinion, the reasons thereof were
not present. Also the public guardian, Mrs. V. D., reacted to the motion; stating that the motion was
justified since, in her opinion, the complainant was able to assess her situation and seek necessary
help if needed. Upon the hearing ordered, in which the complainant‟s representative participated, an
expert was appointed to the case to assess her legal capacity. The expert concluded that the
complainant‟s health condition had not changed and therefore, there was no need to change the
present decision on legal capacity. In his report, he also stated that she was able to manage the
means available to her; however, when deciding on more complicated problems was in question, for
example the allocation of the payments of debt for rent, she was not able to think objectively and there
was a danger that she would act against her own interests. The complainant‟s representative
responded to this expert‟s opinion and finally proposed that the proceedings be completed by the
psychological expert‟s opinion adding that he had already made such a proposal in the hearing of the
court which took place on 12 January 2006. It is important to add that the protocol on the hearing
includes only general information on the appointment of the guardian without his expert credentials
being defined. However, the complainant‟s representative proposed the execution of this evidence
already in his amendment to the motion which was sent to the court prior to the mentioned court
hearing. In the subsequent proceedings, the court then heard the expert and also the complainant and
completed the evidence by the reports that it requested. In the end, it dismissed the complainant‟s
motion and at the same time, it decided that she would not be entitled to file a motion for restoring her
legal capacity for a period of one year after the judgment had come into force. The complainant filed
an appeal against this judgment, upon which the court decided to uphold the judgment of the court of
the first instance. As for the course of the proceedings before lower courts, it is necessary to add that
both in the protocols on the hearings and in the reasoning of their decisions, the courts failed to
substantiate the reasons which led them to the decision not to execute the proposed evidence of the
psychological expert‟s opinion.

The Constitutional Court further requested the parties to the proceedings to provide their opinions on
the matter. The District Court of Prague 5 fully referred to the reasoning of its decision and did not
state anything new. The Metropolitan Court in Prague also referred to the reasoning of its decision. It
added that it was not aware of the fact that it had violated the complainant‟s fundamental rights with
respect to its procedure and the decision and proposed that her complaint not be granted. Both courts
agreed to refrain from the oral hearing.

III.

At first, the Constitutional Court examined the complaint from a formal perspective. The complaint was
filed by the complainant who was deprived of her legal capacity and relates to the decision under
which her motion for restoring the legal capacity was dismissed. A motion for restoring the legal
capacity may also be filed by the person who was deprived of the legal capacity. In such a case, it is
necessary to permit that the person affected by the decision on such issue be entitled to lodge the
constitutional complaint contesting the decision without any guardian‟s consent being needed for such
act. The complainant is duly represented by an attorney-at-law; the constitutional complaint was
lodged prior to the expiration of the statutory period and has all the formal elements required by the
law. The Constitutional Court therefore states that it was lodged in a duly and timely manner.

IV.

Submitting to the rule of law that the Czech Republic declares in Article 1 of its Constitution, there
applies that both the acts of public authorities (normative and individual) as well as any particular
application procedures of public authorities must not violate the individuals´ fundamental rights.
Otherwise, it constitutes the exercise of public authority that is contrary to the constitutional order
[Article 2 para 2 of the Charter of Fundamental Rights and Freedoms (“Charter”) and Article 2 para 3
of the Constitution of the Czech Republic. Only if the extent of such intervention reaches the
constitutional level, there are established reasons for the intervention by the Constitutional Court,
which is, according to its established case-law, a body charged with the protection of constitutional
rule and not a body of the “ordinary” rule of law (Article 83 of the Constitution of the Czech Republic).
In its review activity, it thoroughly follows the principle that it is not competent to review the application
of the “ordinary” law. However, it may act so if it has at the same time found that any fundamental right
or freedom has been violated since the fundamental rights and freedoms define not only the scope of
the regulatory contents of the legal rules applied but also the scope of their interpretation and
application in compliance with the Constitution.

With regard to the foregoing, the Constitutional Court has concluded that the constitutional complaint
is justified.
The subject of the constitutional complaint is the complainant‟s dissent to the procedure of the lower
courts which repeatedly dismissed her motion for restoring her legal capacity in a situation when she
believes that the reasons for depriving her thereof were not established even at the very beginning of
deciding upon this issue.

The core of the constitutional order of the Czech Republic is that an individual and his rights be
protected by the constitutional order of the Czech Republic. Any individual is a fundament of the state.
The state and all its bodies are constitutionally bound to protect and preserve the rights of any
individual. The interpretation of our constitutionality is not limited to the protection of individuals„
fundamental rights (e.g. right to life, right to protection of legal personality) but, in compliance with the
post-war change in understanding the fundamental rights as promulgated, for example, in the UN
Charter or in the Universal Declaration of Human Rights, it has become a fundamental basis of the
interpretation of all fundamental rights, human dignity that, inter alia, excludes that a person be treated
as a thing. The capacity to possess rights is a part of the quality of persons, a part of their humanity
and as the preamble of the Charter provides, it is a natural right of persons.

The capacity to possess rights and duties is not only an issue of the mutual relations between citizens
in private relations but with respect to the interpretation of the constitutional order, it is understood in a
broader sense and encompasses also the relations between the state and an individual. Such relation
is, for example, the position of a party to the so called non-contentious proceedings which may be
commenced without a motion. These proceedings are in character such proceedings in which the
public interests outweigh the interests of the individual. The Constitutional Court is of the opinion that
in these vertical relationships all fundamental rights are asserted as the directly applicable rights which
are directly binding upon public authorities. Therefore, a person cannot be treated as a thing. Any
application procedure or any individual or regulatory act of public authorities must not include anything
that would violate the fundamental rights of persons.

As already mentioned by the Constitutional Court in the past: “The Constitution of the Czech Republic
accepts and respects the principle of legality as a part of the general conception of the rule of law;
however, it does not connect the positive right only with formal legality, but subordinates the
interpretation and application of the legal rules to the material sense with respect to the contents
thereof.” (Compare e.g. the judgment of 4 July 2000, file No. Pl. ÚS 7/2000 in the Collection of
Judgments and Rulings, vol. 19, p. 45 or 216/2000 Coll.). In relation to the issue of the deprivation of
legal capacity, these conclusions are therefore of a much greater importance since through legal
capacity (capacity to act) and procedural capacity the constitutional guarantees of the legal personality
of an individual are brought into existence (Article 5 of the Charter). The rights and claims lacking an
instrument for the protection of the preservation thereof would be only empty proclamations.

The deprivation of legal capacity is always a serious intervention in any citizen‟s personal integrity. It
affects the capacity to possess rights, as guaranteed in Article 5 of the Charter, and the right to private
and family life guaranteed in Article 10 para 2 of the Charter; and affects, at the same time, the right to
vote and be elected. Therefore, in the application of the statutory provisions under which the legal
capacity of a citizen may be deprived or eventually limited, the courts must ensure that in the
application thereof they preserve the meaning and essence of the fundamental rights and freedoms as
arises from Article 4 para 4 of the Charter.

Pursuant to Section 10 para 1 of the Civil Code, if a person is not at all able to perform any legal acts
due to a mental disorder which is not only temporary, the court will deprive him of legal capacity. From
a mere wording of the provision, it arises that the conditions of such serious intervention to the rights
of any citizen exists only if he is not at all able to perform any legal acts. Therefore, the complainant
rightly claims that even in the original proceedings commenced in 1998, the conditions for the plenary
deprivation of legal capacity were not present as the court did not have any sufficient basis for such
conclusion in the available evidence. The conclusions of the expert‟s opinion from the then
proceedings, on which the court exclusively relied when rendering the decision, did not imply that the
complainant lacked capacity to perform any legal acts. The opinion focused only on the assessment of
the capacity to perform legal acts with respect to the property and financial issues, and did not deal
with any other legal acts; also with respect to the property and financial issue, it conceded certain
limited ability of the complainant to act independently. The conclusion of the court on the plenary
incapacity of the complainant with respect to any and all legal acts was, therefore, in an extreme
conflict with the evidence produced.
The effect thereof is also reflected in the decisions which are the subject of the constitutional
complaint. Even in these proceedings, the courts rely solely on the conclusions of the new expert‟s
opinion which, in fact, focuses only on the complainant‟s ability to dispose of her property; but it does
not deal with the complainant‟s capacity, for example, to exercise her voting right although she was
deprived of the possibility to perform such legal act under the decision of the court. This expert‟s
opinion refers to the fact that the complainant‟s mental health has not changed significantly since the
first decision was rendered. Even in this opinion, the expert conceded the complainant‟s partial ability
to dispose of her property. Moreover, the courts did not at all deal with the other evidence, in
particular, with the statement of the complainant‟s guardian who stated that the motion was justified,
since in her opinion the complainant was able to assess her situation and seek necessary help if
needed. If already the first decision of the court was extremely contrary to the executed evidence, it is
so much more the case in the proceedings where the decisions contested by the constitutional
complaint had been rendered. In this respect, it is also necessary to mention that the courts did not at
all deal with the complainant‟s proposal to execute the evidence of the psychological expert‟s opinion,
which caused a severe procedural error in the proceedings as well.

Attention should also be paid to the statement of the court under which the complainant was deprived
of the possibility to have recourse to a court by filing a repeated motion for restoring her legal capacity
for a period of one year. This measure of the court lacks respect to the complainant‟s personality and
implies the attempt at making things easier “for the good of the court itself”. This aim cannot be
considered legitimate in the context of this case because since 1998, when the first proceedings
relating to the deprivation of her legal capacity commenced, the complainant has had recourse to the
court only two times and always in the manner that would in no way imply a sign of vexation.

The Constitutional Court concludes that the procedures of the lower courts in this case violated Article
36 of the Charter, which guarantees the right to fair trial, by making conclusions that were not
supported by the evidence produced (are in conflict therewith) and did not execute the evidence
proposed without dealing with the reasons that led them to the decision not to execute it. The
decisions of the lower courts intervened in the rights protected by the Constitution, in particular in the
capacity to possess rights (Article 5 of the Charter), the right to the protection against intervention in
private and family life (Article 10 para 2 of the Charter), and the right to vote and stand as a candidate
in elections (Article 21 para 3 of the Charter). The procedure of the courts in the present case bears
the features typical for judicial proceedings in these cases. It is characterized by a formal, schematic
view of examined cases, without any attempt of an individual approach to each individual case and by
an absolutely uncritical acceptance of the conclusions of the expert‟s opinions; in which the answers to
courts‟ inquiries exceed the limits of expert assessments and which directly intervene in the judicial
decision-making by providing direct instructions as to how the court should decide the case. The court
decision cannot then be attributable to the decision of an independent court but that of a certified
expert.

Attention should also be paid to the statistical data on legal capacity that reflect the present decision-
making practice and that the complainant supported by the letter of the Ministry of the Interior of 2
August 2007. From the data mentioned in this letter specifying the number of persons being deprived
of or limited in legal capacity, it follows that on 30 July 2007, there were registered 3.893 persons
being partially deprived of their legal capacity and 23.283 persons being deprived of their capacity.

The Constitutional Court therefore granted the constitutional complaint in this part and overturned the
decisions contained in the judgments pursuant to Section 82 para 3 letter a) of the Law No. 182/1993
of the Coll., Law on the Constitutional Court as Subsequently Amended (“Constitutional Court Law”).

With respect to the complainant‟s motion that Section 10 para 1 of the Civil Code and Section 186
para 3 of the Civil Procedure Code be annulled, the Constitutional Court dismissed the motion in
accordance with Section 43 para 2 letter b) of the Constitutional Court Law since a mere existence of
these provisions is not unconstitutional and therefore, this part of the motion is unjustified.




Notice: No appeal against the decision of the Constitutional Court is permitted.
In Brno, on 13 December 2007

Dagmar Lastovecká
Presiding Judge

				
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