Legal Capacity – Reform without Implementation

On October 17, 2016, the Public Defender presented a survey report on the legislative reform of capacity to the judicial authorities and NGOs.

The research was conducted by Vakhushti Menabde, the Monitoring Group Member of the implementation of the UN Convention on the Rights of Persons with Disabilities and Associate Professor at Ilia State University.

The research on the Legal Capacity Reform was developed within the framework of the activities of the monitoring mechanism of the implementation of UN Convention on the Rights of Persons with Disabilities, one of the most important mandates granted to the Public Defender’s Office and was aiming at assessment of the effectiveness of legal capacity reform following the Constitutional Court's decision.

519 summarizing Common Courts decisions were studied within the survey, 341 out of which concern the recognition of a person as a support recipient and 178 are decisions delivered on the different grounds.

The main findings of the report says that the further reality of the legislative reform largely takes into account the individual needs of persons with psycho-social needs and, except for a few cases, is in line with the requirements of the Constitutional Court Decision and the United Nations Convention on the Rights of Persons with Disabilities. However, the legislative reform could not be carried out within the terms determined by the Constitutional Court and the 6-month period for its full-scale enforcement was delayed by 2 months.

The common courts' decisions on the recognition of a person as a support recipient are template and unsubstantiated; the blanket nature of the appointment of support, full deprivation of the legal capacity and plenary guardianship remain systemic problems. In addition, part of the common courts does not observe procedural terms.

The recommendations developed by the Public Defender note that court decisions should be based on persons’ individual needs; support should be appointed only for realization of the rights and/or its aspects in the support recipient’s interests; courts has to necessarily observe procedural terms and focus on the problem of substantiation of decisions on the recognition of persons as support recipients.

The recommendations also refer to the necessity of making relevant amendments to the legislation, which will grant a right to the support recipient to appeal against certain decisions on the appointment of the support in the court; the legislation must define the list of rights/its aspects, restriction of which is inadmissible by the supporter.

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