By Constantin Cojocariu, human rights lawyer specialised in disability and transgender rights
On 25 October 2018, the European Court of Human Rights issued its first substantive ruling under Article 12 regarding people placed under guardianship.[i] Delecolle v. France involved an elderly man who was not allowed to marry a long-time friend under the pretext that he was not able to understand the financial implications of that decision. The Court held that the right to marry and found a family under Article 12 benefited only those possessing full legal capacity. It did not engage with the justifications advanced for depriving the applicant of his capacity to marry, focusing instead on the quality of the national procedures. Worryingly, the Court endorsed reasoning that was impregnated with prejudice against and paternalism towards the elderly and the disabled. The Court has lately proven increasingly willing to consider the implications of the widely ratified Convention on Human Rights of Persons with Disabilities (CRPD) for its jurisprudence. Several judgments have broken new ground, such as Çam v. Turkey on inclusive education and Guberina v. Croatia on accessibility and reasonable accommodation. With the Delecolle judgment, the Court reverts to an uncertain trajectory in the area of disability, characterised by a palpable inability to develop, and apply consistently, a coherent set of principles on difficult subjects such as legal capacity, accessibility, independent living or detention.
Facts and judgment
In 2009, a French judge placed the applicant, aged 79 and relatively well-off, under partial guardianship (‘curatelle renforcée’ or ‘enhanced protective supervision’), at the request of his adoptive daughter. That measure, based on medical certificates stating that he had a ‘light cognitive disorder’, ‘psychological weakness’ and that he was ‘somewhat vulnerable,’ was justified by his inability to manage his property and finances.
During the same year, the applicant asked his guardian (‘curatrice’) for permission to marry a long-time friend, which she denied. He then asked a judge to override the guardian’s decision. A medical report sought during those proceedings stated that, although he had an intellectual disability and was unable of managing his property and finances, the applicant was capable of consenting to marriage. The medical report, however, referred to some of his arguments for marriage as “bordering on the absurd,’ namely his claims that his grandmothers also got married at an advanced age or that he needed help with daily tasks. A social welfare report noted that the applicant was caught in the middle of a family conflict, with both his adoptive daughter and his intended spouse harbouring an interest in his property. Nonetheless, it could not be determined that the applicant was under undue influence, but rather that he saw marriage as a means to obtaining daily assistance and avoiding solitude.
On 21 December 2009, the judge rejected the applicant’s request on the basis that he was not aware of the implications of marriage, which was against his best interests. The judge also noted that the couple had an alcohol problem. The appeal court upheld that judgment, based on similar reasoning. While not questioning the emotional connection with his intended wife, the court emphasized several questionable financial decisions taken by the applicant, such as carrying out expensive renovation works to his flat after his first wife died. The Constitutional Council and the Court of Cassation rejected subsequent appeals. The applicant died in 2016.
In his complaint with the European Court, the applicant argued his case solely on the basis of Article 12 on the right to marry. From the outset, the Court highlighted that Article 12 permitted restrictions on the right to marry based on “generally recognised public interest considerations”, such as those related to capacity. The Court also clarified that far from being deprived of his right to marry, the applicant was merely required to obtain his guardian’s permission, based on his status as a partially incapacitated person. It drew a sharp distinction between persons whose legal capacity was intact and those with limited legal capacity, whose right to marry was liable to be restricted (at para. 63). The Court decided against the applicant, reasoning that sufficient safeguards applied, that the State’s margin of appreciation was wide, and that the impugned measure was intended to protect his interests. Judge Nußberger wrote a hard-hitting dissenting opinion that focused on the applicable test under Article 12, the proportionality of the interference and the misuse of subsidiarity.
The Delecolle judgment sits on several fault lines in the Court’s jurisprudence. The first regards the standard of review applicable under Article 12; the second is the approach to disability rights in general and legal capacity in particular; the third regards the use by the Court of process-based review.
The Article 12 test, as stated by the majority, is that limitations to the right to marry should not interfere with its very essence, or that they should not otherwise be “arbitrary and disproportionate.” However, the departure point is that of a wide margin of appreciation and an understanding that certain substantive limitations, including regarding legal capacity are acceptable by default, based on “generally recognised considerations of public interest”. Judge Nußberger rightly took issue with the imbalance between the kin provisions on family life and marriage under Articles 8 and 12 respectively, caused by standards of review that differed in intensity. However, in my view, that distinction is academic, as in Delecolle, the Court simply removed persons lacking legal capacity from the scope of Article 12, without applying any meaningful substantive test. Indeed, the Court did not even consider the applicant’s right to have been interfered with in a cognizable manner.
Another striking feature of the Court’s judgment is its omission to consider or even mention the CRPD. This goes against settled jurisprudence stating that the rights included in the Convention should be interpreted in the light of the CRPD, insofar as disability was concerned (see for example N. v. Romania). Although widely ratified, the CRPD in general, and its provisions on legal capacity in particular, are somewhat aspirational and not entirely free from controversy. The CRPD should at the very least have induced the Court to more robustly question traditional assumptions on legal capacity and apply more meaningful scrutiny. The Court also played fast and loose with that strand of its own jurisprudence that requires strict scrutiny in cases involving deprivation of legal capacity. For instance, in Alajos Kiss v. Hungary, the Court criticised disability-based classifications influenced by prejudice and legislative stereotyping that prevented the individualised evaluation of individual capacities and needs. In Ivinović v. Croatia, the Court stressed “that strict scrutiny is called for where measures that have such adverse effect on an individual’s personal autonomy, as deprivation of legal capacity has, are at stake.”
The judgment was ultimately based on a review of the procedural safeguards available to the applicant, which the majority ruled to be comprehensive: his claims were examined by courts at four levels of jurisdiction that called on medical professionals and social workers to provide evidence; decisions taken were amply motivated; the Constitutional Council examined the constitutionality of the underlying legal provisions; the applicant was heard in person and he was represented by a capable lawyer. Judge Nußberger rightly pointed out that the application of the principle of subsidiarity in the present case has blinded the majority as to the gravity of violations alleged and their factual specificity. Indeed, the Delecolle case illustrates the risks of process-based review in that it provides a way out of dealing with delicate or difficult issues, while leaving oppressive structures present at the national level free from any meaningful scrutiny.
It is a shame that the Court decided not to engage with the facts of the case, which were truly egregious. Partial guardianship in the French manner, as an arrangement characterised by substitute decision-making, clearly falls foul of Article 12 of the CRPD, which provides that persons with disabilities enjoy legal capacity on an equal basis with others in all areas of life.[ii] Notably, the CRPD also includes distinct provisions on decision-making in relation to financial matters (Art. 12§5) and the equal right to marry and to found a family (Art. 23).
The applicant’s placement under guardianship also fell short of the Court’s standards in the area of legal capacity, as well as, it has to be said, basic human decency. It is not clear that the applicant had a disability of a “kind and degree” that would warrant such a substantial intrusion with his private life. Medical professionals appear to have decided that the applicant experienced light cognitive decline that was more or less in line with expectations for his age group. Furthermore, the applicant was deemed able to consent to marriage, rendering the decision to deprive him of that right unjustified on the terms of the functional approach[iii] usually deployed by the Court. National courts did not appear to have explored the availability of measures that were less intrusive and better tailored to the applicant’s perceived need for support with managing his property. The French authorities prioritised the interests of third parties over the applicant’s autonomy and self-determination, without any concern about a potential conflict of interest. The applicant’s life was subjected to unusual scrutiny and seemingly anodyne decisions on the manner of decorating his flat or his drinking habits were invoked to justify his incapacitation. The authorities inexplicably and callously dismissed as trivial or eccentric his desire to enjoy the company of another human being during old age. By the standards applied by national courts in the present case, many elderly people would be in danger of being deprived of their legal capacity, or at least, as intimated by Judge Nußberger, those with substantial bank accounts.
Lastly, the Court’s approach obscured the fact that the French adult legal protection regime has come under sustained criticism and is likely to be reformed in the near future. The UN Special Rapporteur on the rights of persons with disabilities noted, following a visit to France carried out in 2017, the high use of guardianship measures (over 750,000 people affected) that left people with disabilities at risk of abuse and institutionalisation.[iv] In 2015, the Defender of Rights (‘Défenseur des Droits’) recommended that persons with disabilities be provided with an autonomous right to marriage in accordance with the CRPD, including by receiving support with choosing a suitable marital property regime.[v] On 25 October 2018 (the day when the Delecolle judgment was published!), an interdepartmental commission tasked with reviewing the adult legal protection regime published its final report, recommending among others that adults be allowed to marry without prior authorisation, as part of a more comprehensive reform based on human rights and the respect for the wishes and preferences of the person.[vi]
[ii] For further elaboration, see CRPD Committee, General comment No. 1 (2014), Article 12: Equal recognition before the law.
[iii] A “functional” approach to assessments of legal capacity requires a person to be able to understand the nature and consequences of a particular decision in order to be deemed to have legal capacity.