engleski

GUARDIANSHIP FOR ADULTS WITH DISABILITIES IN CROATIA: EMPEROR'S NEW CLOTHES?

Guardianship as a family-law institute has been an important, yet unsolved issue for decades now. The latest family law reform of 2014 and 2015 brought certain changes which have been explained and advocated for as the new contribution to the improvement of the legal position of adults with disabilities on one hand, as well as the legal certainty and the rule of law on the other hand. It seems that two crucial issues are: scope of the deprivation of legal capacity and the protection during the court procedure commenced in order to consider the need to deprive someone of his/her legal capacity. As regards the first issue, the Family Act proclaims that no one shall be deprived of his/her legal capacity completely, but only partially. One can only wonder how this provision can be implemented in cases of a coma for instance. A wise legislator allows the judges to be by far more than the pure executers of his intentions. However, it seems that a wise judge when deciding upon this issue would in certain cases be acting contra legem if attempting to coherently protect the person with disabilities, which cannot be acceptable. As regards the second issue, it is of utmost importance that the person is sufficiently protected during the procedure. The Family Act proclaims that a person shall be appointed a special guardian, employed at a particular state institution: Centre for Special Guardianship. Apart from the obvious personal and financial deficiencies of this Centre since its establishment, the analysis of the practice of the Municipal Civil Court in Zagreb we have conducted in October 2016 warns us that implementation of the right to be protected regarding this issue, namely the deprivation of legal capacity, is highly questionable. The possible consequences include, i.a., the breach of the right to a fair trial as guaranteed by the Croatian Constitution as well as by the European Convention on Human Rights and Fundamental Freedoms, as well as the general legal principle of equality of arms. Therefore, it is the aim of the contribution to shed additional light on the newly adopted provisions of the Family Act, with the general premise that such a judicial intervention cannot be considered either proportional or efficient.

Croatian Family Act, guardianship for adults with disabilities, special guardianship

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