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[The text published below is a summary prepared for the annual report.]


Fair Proceedings Concerning Legal Incapacitation


By Decision No. Up-1178/18, dated 12 December 2019, the Constitutional Court decided on a constitutional complaint lodged against a final court order by which the complainant was partially deprived of his legal capacity due to querulous paranoia, namely as regards his participation in judicial proceedings and administrative procedures before judicial authorities of the Republic of Slovenia (i.e. including all courts, state prosecutors’ offices, and state attorneys’ offices). In the constitutional complaint, the complainant claimed that a number of procedural safeguards were violated in the non-litigious proceedings concerning his partial incapacitation. He namely claimed that: (1) he was not appropriately represented in the proceedings; (2) the court failed to consider his remarks concerning the written expert opinion of the Commission for Expert Opinions of the Faculty of Medicine of the University of Ljubljana and did not enable him to directly examine the court-appointed experts; and (3) that by disregarding his procedural actions, the court did not treat him as a participant in the proceedings but as an object thereof.


All of the outlined claims are important from the perspective of the right to the equal protection of rights determined by Article 22 of the Constitution. This human right namely guarantees parties to judicial proceedings, inter alia, the right to be heard with regard to all procedural materials in the case file that could affect the decision of the court (i.e. the right to adversarial proceedings); in connection therewith, it requires that parties be ensured reasonable possibilities to present their positions, including evidence, before the court, subject to conditions that do not place one party in a substantively less favourable position in comparison to the opposing party (i.e. the right of parties to judicial proceedings to equality of arms). The Constitutional Court has already adopted the position that the requirements of adversarial proceedings and of equality of arms must be respected in all judicial proceedings, including non-litigious proceedings for the (involuntary) detention of persons with mental disorders in a psychiatric hospital and in procedures for the admission of such persons to a secure ward of a social care facility. In the assessment of the Constitutional Court, from the perspective of persons with mental disorders who may also suffer from difficulties in connection with the exercise of their (free) will, only proceedings that enable their utmost comprehensive and complete participation in the proceedings and thus also the same degree of exercise of their human rights and fundamental freedoms can be considered fair. The same requirements also apply to the Constitutional Court’s review of non-litigious legal incapacitation proceedings.


In its Decision, the Constitutional Court stressed that persons against whom legal incapacitation proceedings have been initiated, even if there exists a strong indication that they are suffering from a serious mental disorder, must be ensured the fundamental procedural safeguards determined by Article 22 of the Constitution, namely at least those that constitute the very essence of the right to a fair trial. These undoubtedly include the possibility of the affected persons to effectively participate in the legal incapacitation proceedings. In practice, such will only be guaranteed if the state ensures them the right to an independent representative who will act in their interest. Precisely this procedural safeguard was violated in the complainant’s case because at the last hearing, which was decisive for the decision in the case (the hearing was namely scheduled after the court received the written expert opinion that was the basis for its decision), the court did not follow the request of the complainant’s guardian ad litem (i.e. a social work centre) to delay deciding in the case until a new attorney for the complainant had been appointed in a procedure for granting free legal aid. In the opinion of the Constitutional Court, the court should have delayed its decision-making in the case at issue, as the guardian ad litem alerted the court to the fact that the complainant had ceased to cooperate with it and in light of the fact that the guardian ad litem remained passive as regards protection of the complainant’s rights (i.e. it neither commented on the expert opinion nor requested an oral examination of the court-appointed experts, although the expert opinion was decisive to the decision in the case). The court further violated the complainant’s right to effectively participate in the proceedings as, in spite of the mentioned circumstances of the case, it did not allow the complainant to be represented by a representative of his own choosing at the last hearing and failed to provide constitutionally acceptable reasons for such. The Constitutional Court established a violation of the right to the equal protection of rights determined by Article 22 of the Constitution also due to the fact that the courts failed to consider the complainant’s concrete remarks concerning the expert opinion or his request to orally examine the court-appointed experts, although such entailed the decisive piece of evidence in the case.

The Constitutional Court further established a violation of the right to the inviolability of an individual’s mental integrity determined by Article 35 of the Constitution. In the assessment of the Constitutional Court, every instance of legal incapacitation, even if only partial, entails a severe interference with this human right. Therefore, it must be reserved only for exceptional cases, and any judicial decision regarding such must be based on reliable and convincing evidence. In the assessment of the Constitutional Court, without having verified the positions in the written expert opinion by means of an oral examination of the court-appointed experts, the court could not duly consider the existence of the conditions for the complainant’s partial incapacitation, especially since the court-appointed experts prepared the opinion without having personally examined the complainant. Consequently, the Constitutional Court abrogated the challenged judgments and remanded the case for new adjudication.


Dokument v PDF obliki:
Vrsta zadeve:
constitutional complaint
Vrsta akta:
individual act
A. B., C.
Datum vloge:
Datum odločitve:
Vrsta odločitve:
Vrsta rešitve:
annulment or annulment ab initio