Articolul 8 din Convenție. Viață privată. Încălcare. Lipsa unor măsuri adaptate situației persoanei în procedurile care au avut ca efect lipsirea acesteia de capacitatea juridică
Article 8 of the Convention. Private life. Violation. Lack of measures adapted to the person's situation in proceedings which had the effect of depriving him of his legal capacity

Summary/Abstract: The lack of a legal a person capacity is, indisputably, an important interference with the right to respect for privacy protected by art. 8 of the Convention. This interference constitutes a violation of art. 8, except for the situations in which it complied with the law, pursued a legitimate purpose or purposes provided by art. 8 § 2 and was necessary in a democratic society, in the sense that it was proportionate to the aims pursued. When the restriction of fundamental rights is applied to a person belonging to a vulnerable group in society, a group that has suffered significant discrimination in the past, such as people with mental disabilities, the margin of appreciation of states is considerably narrower and there must be very strong reasons to justify the restrictions in question. The reason for this approach, which per se calls into question certain classifications, is that these groups have historically been subject to prejudice, with lasting consequences, leading to their social exclusion. Such prejudice could involve legislative stereotypes that prohibit an individualized assessment of the capabilities and needs of the people in question. In the present case, the Court found that the provisions of national law did not allow the courts to order an individual measure, adapted to the applicant's situation. The Romanian Civil Code distinguishes between total capacity and total incapacity and does not provide for the possibility of taking a measure adapted to the person's situation, options and preferences. In addition, the person without legal capacity was excluded from the proceedings to replace his guardian, the court decision to replace the guardian did not take into account the applicant's current state of health, his opinions and interests, so that in this procedure there were no proportional guarantees with the seriousness of the interference and the interests at stake. Taking note of the fact that by decision no. 601/2020 of the Constitutional Court, art. 164 of the Romanian Civil Code which allowed the adoption of decisions such as those challenged in question was declared unconstitutional, pursuant to art. 46 of the Convention, the Court established that the Romanian State must adopt general measures in order to bring national legislation and practice into line with international standards, including the Court's judgment in this case.

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