Capacity - Legislative 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 survey was developed within the framework of the monitoring of the implementation of the UN Convention on the Rights of Persons with Disabilities and was aimed at assessing the effectiveness of the legal reform of capacity following the Constitutional Court's decision.
519 summarizing decisions were studied within the survey. 341 out of the decisions concern the recognition of a person as a support recipient and 178 are judgments delivered on various grounds.
The main findings of the report say 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 and the United Nations Convention on the Rights of Persons with Disabilities. In addition, the legislative reform could not be carried out within the time determined by the Constitutional Court and the 6-month term for its full-scale realization was delayed by 2 months.
The common courts' decisions on the recognition of a person as a support recipient are cut-and-dried and unsubstantiated after the reform; the blanket nature of the appointment of support, full deprivation of the 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 that are in the person's interests; courts should necessarily observe procedural terms and focus more attention on the problem of substantiation of decisions on the recognition of persons as support recipients.
The recommendations also say that it is necessary to make relevant amendments to the legislation, which will grant a right to the support recipient to appeal against certain decisions in the court; the legislation should define the list of rights/its aspects, restriction of which is inadmissible.
According to the amendments, the person's right to request revision of his/her status from the court must be made obvious, etc.