Welcome to ERA – Academy of European Law

Can you hear me now? Ok so thank you chair and good morning to everybody.
So I am going to talk about the rights to legal capacity and this is really not an easy task for me to talk about this topic only in 45 minutes. I will try to stay on time.

My presentation will be based mainly on the my experiences with people with intellectual and psychosocial disabilities and it will be also based on my work at MDAC where as the chair manager I am leading the legal capacity law reform project. I also have some friends, friends who have intellectual and psychosocial disabilities, some of them that have been placed under guardianship. And I really learnt a lot from them their regarding the right to the legal capacity and Article 12. And I would just like to name one of them – Gabal Gumbush who is currently a member of the UN CRPD Committee and his notes on legal capacity has had a great influence on my understand on the rights of legal capacity.

So in my presentation, wait how can I go back. It’s okay. I am going to talk about the theory and then the practise and then the future. The theory is very important because if there is going to be advocacy work or litigation, it is very important to know about the meaning of legal capacity and the construction of legal capacity. The present situation is also very important and that’s why I am going to about guardianship systems and cases which were decided by the European Court of Human Rights. I am also going to talk about the future on how to move from guardianship systems to the support paradigm.

So first the theory, and the first the construction of legal capacity which consists of two integral components – the first one is the capacity to have the rights and the other one is the capacity to act. We can say that the capacity of have rights is a kind of static element of legal capacity as the cap to act is a more dynamic one. The capacity to have rights is the capacity to be a holder of rights and obligations while the capacity to act means the capacity to exercise these rights and to enter into legal relationships. To enter into job contracts or as it was mentioned yesterday or to make legal statements.

Capacity to have rights, to me, is that each person is unique and special and each person has a personality which refers only to them. I also can say that each has a identity and in a legal sense everybody, as I mentioned in the slide before, has capacity to be a potential holder of rights and obligations but it doesn’t mean that each person can exercise these rights and be subject to these obligations themselves. So I think that human being are not passive buddies but also active individuals, active citizens who want to act and who want to create and who want to make decisions for themselves. So I can say that human beings are active person who had agency.

Now I talk about capacity to act. It is acknowledgement when people can conduct their affairs themselves. This is our legal term for it. But people with intellectual disabilities and psychosocial disabilities are often denied the capacity to act component of legal capacity and placed under even partial or full plenary guardianship. My question here is that legal capacity, can we say that legal capacity is a fact or is it better to say that it is a fiction, a kind of legal fiction. Just think that when we reach the age of 18 we become adults. At age of 18, at midnight, with a magic stick like, with a magic stick we become persons with full legal capacity. We can decide on our own but a few minutes before midnight, we just have partial capacity and we cannot decide on our own because we need the approval of out parents. And even a few years before we do not have legal capacity to act at all, we do not have the capacity to act at all. So for me it is ridiculous that I can get all my abilities and capabilities from one minute to another so we must take this as legal fiction so we must take it into consideration when we are thinking about legal capacity.

And now lets see the first paragraph of Article 12. It says state parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. As I mentioned before, this is about identity. It is about capacity to have rights. It is about personhood. It is not about capacity to act. It is the kind of repetition of Article 16 of the ICCP on civil and political rights which says everyone has the right to recognition everywhere before the law. This it the same sentence in the ICCP about to have rights. So this more than demonstrates the view of acknowledgement that capacity to have rights cannot be subject to limitations. So what about capacity to act. So lets see Article 12 of the act state parties shall recognise that persons with disabilities enjoy legal capacity on a equal basis with others in all aspects of life. And here I have to say that now Article 12 paragraph 2 is the agency element of capacity to act. And why can I say that because yesterday Neil mentioned that CAPD doesn’t officially create new rights and it was said that the CAPD articulates rights for persons with disabilities and I think that is what Article 12 is about. To provide legal capacity to recognise capacity for all persons with disability without distinction on the basis of disabilities. And what I have to mention here, it is a consensus that legal capacity means also capacity to act or just here means to just have rights. The is the big question here. When we were with the omissions with MADC policy makers and decision makers, they tend to say that it means capacity to have rights but if it says cap to have rights then it is just repetition of Article 1 which is about capacity to have rights. So I would ask that this is about capacity to act but is it so then that this is about the so called universal legal capacity which is the core message of Article 12 for me but this is the starting point. Legal capacity for everybody without any distinction on the basis of disability.

And now if we want to get clearer picture on the meaning of legal capacity we can study a bit the Vienna Convention and law of treaties because it is very important to where we interpret the CAPD and I do not want to go into detail because I do not have time for that. Yesterday we studied the objective and purposes of the convention and for me it is just unimaginable that taking into account the message of the objective and purpose of the convention, legal capacity cannot be translated by capacity to have rights only. But capacity to have rights and capacity to act. Article 31(3) (b) of VCRT talks about any subsequent practises. As for me the VCRT will come out with a general comment on Article 12. There was call for comments on Article 12 and the VCRT committee working on a general comment on Article 12. And for me it will be an authoritative interpretation of Article 12 and it should be considered. And also travaux preparatoires should be considered.

And here I have to mention the OHCHR document which was produced after the fifth session of the committee and it basically says that the two concepts like recognition of persons before the law and legal cap to act are distinct. Legal capacity is about capacity to have rights and capacity to act. The CROM Committee came out with their concluding observation with regards to Spain last year and says that Article 12 commit consent that no measures have been undertaken to replace a substitute decision-making by supported decision making in the exercise of legal capacity. The committee goes on to recommend that the state parties review the laws allocating to guardianship and trusteeship and take action to develop laws and policies and replace, replace is an important word here, regimes of substitutive decisions making by supported decision making, which respects the person’s autonomy, will and preferences. It further recommends that training be provided on the issue for all relevant public officials and other stakeholders. So here we can finds the CAPOF comments and opinion on Article 12 we can say it cannot be based on substituted decision making and I’m going to talk about the supported one. But before that I’m going to talk about practise.

To conclude the theory Art 12 talks about legal capacity which means capacity to have rights and capacity to act. It means people with disabilities have universal legal capacity and it means legal capacity cannot be restricted or denied on the basis of disabilities. This is the message off Article 12 paragraph 1 and 2.

When people are let into guardianship, they fully or partially lose their capacity to act. In most cases guardians become substitute decision makers as I mentioned and work on the behalf of the adult and make best interest decisions. The right to legal capacity is a standard right, a right in itself. Also it has a crosscutting nature. In the presentation on the right to access to justice we heard that Article 12, the right to legal capacity, has a great impact on other rights. I just heard some of them just on the slide such as right to access of justice, right to decide where to live, right to marry and found a family, right to decide on medical treatment, right to work, right to vote and stand for election. So if my legal capacity is denied, it has a great impact on all of these rights as well because they are denied as well.

So now the European Convention of Human Rights. I can say that is does not mention the right to legal capacity explicitly. However, the European Court of Human Rights considers this right as an important part of the right to respect for private life under Article 8 of the European Convention of Human Rights. But now we can come up with a question because now we heard about the Staniff case yesterday and we said that the Court did not find violation with regard to Article 8. So it has a very important and sad message for us I think.

So I am going to talk about some cases just to have a picture about the practise in Europe and also the link between legal capacity and other rights. So the application in Shtukaturov v Russia was diagnosed with schizophrenia and placed under plenary guardianship because in Russia partial guardianship is not available for people with intellectual and psychosocial disabilities. He was also placed in a psychiatric hospital. It was not his decision. It was his guardian’s decision. So the European Court said that since the applicant was completely excluded for the judicial proceedings and access to justice, the Court said it cannot be regarded as fair in terms of Article 6 and the Court said it was a violation of Article 6. Mr. Shtukaturov’s hospitalisation violated the right to liberty guaranteed in Article 5 as it was based on his guardian’s decision. Here I have to mention that Mr. Shtukaturov brought his case to the Russian Constitutional Court as well after Strasbourg and the Constitutional Court said that it was unconstitutional, that the guardian could give his consent to those medical treatment. So this was unconstitutional according to the Russian Constitutional Court. Full incapacitation as such was a disproportionate measure and, therefore, violated the applicant’s right to respect for his private life under Article 8. Here we can see the link between the right to legal capacity and other rights. The Court noted that the interference with the applicant’s private life had been very serious. His deprivation of legal capacity had been applied indefinitely, and could not be challenged otherwise than through his guardian who opposed any such attempts. And then the question, how to deal with the approach according to which the Court said the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. As for me, if we are going to find reasons for full incapacitation, we are not in line with the CPRD. So the European Court of Human Rights, for me, has to reconsider it’s jurisprudence on Article 8 and the Court should take into consideration the message of the CRPD.

And another case; Kruskovic, sorry about my pronunciation, v Croatia. So the applicant in the case of Kruskovic v Croatia, had personality disorders following long term drug abuse. And he was deprived of legal capacity and he made a statement at the birth registry that he was the father of a baby girl, born a few years after his incapacitation. So he made a statement at the birth registry that he was the father of this baby girl and did with the mother’s consent. Then he was recognised as the child’s father but when the registry was informed that the applicant no longer has legal capacity, they initiated to annul the registration. And domestic Courts ordered to amend the child’s birth certificate because the applicant, Mr. Kruskovic, didn’t have the right to recognise a child before the law. So he was denied his legal capacity and that was why he couldn’t recognise his child before the law. According to the Court, the Strasbourg Court held it was impossible for the applicant to have his paternity recognised under domestic law as he had lost legal capacity. The Court could not consider that this situation was in the best interest of either the father or the child. That was the government’s request that the Court should consider that this was the best interest of not only the child but the father as well. So the question here, how to deal with the approach, and I quote here the Court, the Court accepts that restrictions on the rights of persons divested of legal capacity, even where they occur in the sphere of their private and family life, are not in principle in contradiction wit the requirements of Article 8 of the Convention. As for me this is again not in line with the CRPD. And to me, this is the kind of basis for a standard judgment where, as I mentioned before, they found Article 8 was not violated.

Another case and another right, Kiss v Hungary. The applicant was diagnosed with maniac depression and placed under partial guardianship and at that time Hungary had a constitution, we have a basic law, and according to the constitution, those persons who were placed under guardianship, either full or partial, they didn’t have the right to vote, even active or passive part of the right to vote. So that was the kind of automatic loss of the right to vote and the Court found that Article 3 of Protocol number 1 was to the ECHR was violated regarding free elections, the right to vote, since the applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship and also full guardianship. He may therefore claim to be the victim of the measure. And then the question, how to deal with the approach according to which, and I quote the quote, an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote. So here the Court said that without an individualised judicial evaluation, so that was the basis for the Venice Commission, which is an advisory body for the Council of Europe on constitutional matters to come up with a draft interpretive declaration with the right to vote which said that a Court in an individual decision may consider that the lack of the proper judgment of a disabled person may prevent him or her from exercising his or her right to vote or stand for election. So civil society managed to convince the Venice Commission that it was not a good to come out with this type of interpretive declaration and the OHCHR issued a systematic study on the political parties participation with disabilities this year which says that people with disabilities cannot be denied or restricted the right to vote on the basis of disability, which is repetition of the CRPD but it says even an individualised procedure, in a Court procedure, people cannot be deprived of the right to vote. And the OHCHR asked the UN Human Rights Committee which is the treaty body of ICCPR to revise it’s general comment number 25 which was adopted in 1996, 12 years ago to revise it’s general comment and to say that the right to vote cannot be restricted or denied on the basis of a disability at all.

So now another case from Serbia. So again sorry for my pronunciation but Salontaji-Drobjnak v Serbia. In this case, local authorities instigated deprivation of the applicants legal capacity considering the fact that, this is the quotation, that the applicant was involved in many legal cases and that the number of these cases were sharply on the increase. The applicant was deprived of legal capacity and was not given opportunity to take part in the hearing because this lacked any purpose said the domestic Court. The European Court of Human Rights said that limitations on the applicants legal capacity as means to stop vexatious litigation was disproportionate and violated Article 8 of the Convention. And also the domestic Courts had failed to examine the applicant’s requests to restore the full restoration of his legal capacity during four years, and domestic legislation does not seem to provide for a periodical judicial reassessment of the applicant’s condition and violated Article 6(1) of the Convention.

And some recent judgments, Stanev v Bulgaria and DD v Lithuania. I do not want to go into details because we already discussed these cases superficially yesterday. I just want to mention that Stanev v Bulgaria, there was no violation found in relation to Article 8, as I have already mentioned. There was a violation found in Article 5(1) the right to liberty and I would just like to read out a document, a few lines of the document. This is a … curia, a third party intervention to the European Courts of Human Rights in the case of … v Latvia. It was prepared by the European Disability Forum, European Network of Ex-users and Survivors of Psychiatry, International Disability Alliance and the World Network of Users and Survivors of Psychiatry. And it says in Stanev v Bulgaria when the Court found that partioner was placed in a social care home subsequent to a finding of legal incapacitation, the Court only pronounced up on the impact of the decision on the right to liberty alone and it did not consider how the loss of liberty was connected with the finding of incapacity. In that extent, the Court, in Stanev v Bulgaria, took a step back from the line of Article 8 of jurisprudence.

So as for me this is very important, and also the submission in the case. The DD v Lithuania was almost the same situation, person placed under guardianship, then placed in a social institution and it was mentioned yesterday that while in Stanev v Bulgaria there was a violation found in Article 5 while in DD v Lithuania. There was no violation of Article 5 found. It is a bit strange for me. And here I would just like to mention that because all these cases about involuntary placement in social care homes or social care institutions, I just want to quote Article 14(b). It says the existence of disability shall in no case justify a deprivation of liberty. And in Stanev v Bulgaria, it was said that there was a deprivation of liberty. But in DD v Lithuania, it doesn’t say that it was a deprivation of liberty, but according to the CIPD it was.

And now, where to move about the future. And here I’m going to talk a little bit about the paradigm Shift which was introduced in the CRPD. The paradigm shift of Article 12 of the CRPD is based on a clear obligation on states to removes, sorry not to remove legal capacity but instead to provide access by persons with disabilities to the support they may require in exercising their legal capacity. In other words, we can say that states are obliged. This is a based on pursuant on the members of the CRPD committee said regarding to Spain on Article 12. It said that they should replace regime of substitute decision making by support decision making. The message of paradigm shift is the same.

And now Article 12(3) of the CRPD. It says again state parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. I want to put an accent on the word may. So support may be imposed n people with disabilities. This is an option. If a person with disabilities needs support, then this support should be provided but if he or she doesn’t need any type of support to make his or her decision, support shouldn’t be imposed on people. And also, CRPD doesn’t use the word supported decision making. It talks about support, about support. And support can be informal and formal. So society needs to provide, as for me, informal decision making frameworks and also more formal decision making measures which can include personal assistance, personal budget systems and access to a range of in-home residential and other community based support services.

And a little bit about the theory of support decision making of the paradigm shift. As I mentioned, everyone has the right to make their own decisions. This is autonomous decision making. And states are obliged to provide adequate support to people with disabilities if they need it in order to enable them to exercise their legal capacity and this is supported decision making. But can I say, do I have the right to support on the basis of the CRPD? As for me, I have the right to legal capacity and the state has an obligation not to just respect my legal capacity but also have a duty to provide support if I need it. So I have the right to legal capacity and the state has obligation to respect my legal capacity and to provide me with support if I need it. As for me, autonomous decision making and supported decision making are not contradictory, they can be used in interaction. As for me, interdependence between people is an acknowledged way how decisions get made. We all make decisions with the help of others.

So lets see a chart about the principles of guardianship and supported decision making just to a little bit understand the paradigm shift from supported decision making. Guardianship is based on medical model which according to which the so-called person with the intellectual and psychosocial disabilities, and the problem can be solved by placing them under guardianship. That’s the medical model. I have a disability , please put me under guardianship and the problem’s solved. Support decision making says, no the problem is not with the person but with the society, the environment. So how to solve the problem not to place him under guardianship but to provide the person with adequate support. Guardianship is about legal capacities denied and restricted but in support decision making, in a support decision making system, the legal capacity is still intact. Guardianship is based on substituted decision-making and as I said before, support decision making is a kind of interdependent decision-making. It can be based on interdependent decision-making. Guardianship is about imposed power and as I mentioned before, support cannot be imposed on persons with disabilities and this is about empowerment. Support persons should empower people with disabilities. Guardianship is about paternalistic subordination while relationships in a supported decision making system is based on trust. Guardians are appointed by a court or other authority while in support decision making, there is a free-agreement between the person who will be supported by the person and the supporter on a voluntary basis. In a guardianship model there is at least one of two guardians but in a support decision making a circle and network can be established. Professional guardians are paid as supporters are usually unpaid. I know support systems where supporters are paid but usually they are unpaid. And finally I can conclude that guardianship systems are rigid and support decision making systems are flexible.

So about practise, I do not have time to go into details. I just listed some support measures. If you have time just do a google search and find out more about the PO system – The Swedish Personal Ombudsman System, Circles Network, Planned Lifetime Advocacy Network, Vela Microboard Association or International Peer System.

Safeguards. It was mentioned that safeguards are very important when we are talking about the rights to legal capacity. And the thing is that I am running out of time I think so I just want to mention the goal of safeguards. The goal is to protect people with disabilities but not to overprotect them. It is a very important thing. And when setting up safeguards for the system of supported decision making, Article 12(4) should be considered and also the right to access to justice which is a very important tool if we are talking about safeguards and this unmentioned before Article 16 freedom from exploitation, violence and abuse is very important Article when we are talking about safeguards. So please read these articles to get more information on this.

And now I would like to mention some benchmarks for law reform because I said that after the practise I would like to talk about the future a bit so now benchmarks for law reform. Legal recognition of universal legal capacity. I mentioned that the right to full legal capacity including capacity to have rights and capacity to act by all persons without discrimination on the basis of disability. (Thank you Neil, thank you) So how to achieve this goal? First, no more plenary guardianship. Second, no more automatic loss of rights and the third, shift partial guardianship to supported decision-making. Why do I say this last one? I think the change wont happen overnight so that’s why it can be acceptable for me to have partial guardianship at least for some time but it is very important to even shift from partial guardianship to support decision making. And also introduction of supported decision making and other alternatives to guardianship with effective safeguards. And perhaps advanced directives can be mentioned here where I mentioned some support measures in the previous slides . So those support measures can be introduced in national law systems.

So legal capacity law reform – how is it in Europe? How is it in Hungary? Just a few sentences – In 2009, Hungarian Parliament adopted the new civil code in which there was no plenary guardianship, only partial. And there was support decision making and advanced directives. So these measures were included. We had an act on the civil code and we had to separate the act on the entering of civil code. And the Constitutional Court observed the act on the entering of the act of the civil code. They said there was not enough time for stakeholders in Hungary to learn about the new provisions of the civil code. So that’s why the Constitutional Court found the act on the entering into force of the civil code unconstitutional. So the Constitutional Court didn’t have any problem with the new measures regarding legal capacity. They had problems with the time frame. So now Hungary is drafting the new new civil code and we plenary guardianship now planned in the draft. Quite sad I think.

Czech Republic – Last week the Czech government signed the new civil code in the Czech Republic and there is no plenary guardianship in the civil code and there are alternatives to plenary guardianship like supported decision making, advanced directives.

Latvia – In 2010, the Latvian Constitutional Court found that the guardianship system in Latvia was unconstitutional. The Latvian system was quite similar to the Russian one, there was on plenary guardianship available to the intellectual and psychosocial people and no partial. The Constitutional Court said that that was unconstitutional and also that people placed under guardianship can challenge the decision. So that’s why Latvia should draft new measures on legal capacity. Now they have the draft. That was the first reading in Latvia and the second reading is coming and for the moment there is no plenary guardianship in the draft and they are considering to put a supported decision making and advanced directives in the civil code.

I am sorry, I don’t want to abuse your time so I wont talk about Slovakia, Lithuania and all other parts of the world but I am going to talk about some challenges that we are implementing in Article 12. There are four core challenges – economical7financial, attitudinal, legal and political. With MDAC I had the chance to go to different countries and work with NGOs and DPOs at national level ones. And on the implementation of Article 12 of course. So we went to Russia, for example, Latvia, Lithuania, Hungary, Czech Republic, Moldova, Croatia and we are planning on going to Malta in March. And we learnt these challenges with I am going to talk about in these countries.

So challenges at national level. So the first one, lack of self-advocacy movement and organisations of people with psychosocial disabilities. We found there are some organisations for people with intellectual disabilities, but not with psychosocial disabilities and we think capacity building is a very important tool to overcome this barrier. Lack of involvement of people with disabilities in policy and decision making. This is information that, here you were talking about that that participation of the CRPD and you mentioned Article 4(3). This as well, people with disabilities shall or state parties shall closely consult with and actively involve people with disabilities, including children with disabilities, through their representative organisations then they are implementing the CRPD. So people with disabilities should be involved in all stages of the implementation of Article 12.

So to move on, laws prevent people with disabilities to exercise their rights to legal capacity. I told about this when I talked about it in practise, about guardianship system and cases from the European Court of Human Rights so laws prevent people with disabilities to exercise their rights to legal capacity. How to overcome this barrier? I think we should do a kind of screening exercise at national level of course, identifying legal capacity laws with the view of guardianship law reform. And which is very important, sorry this is not Article4, this is Article 1(b). I am going to read out (b). So state parties undertake to take all appropriate measures, including legislation, to modify or abolish existing law, regulations, customs and practises that constitute discrimination against persons with disabilities. So as for me, this can one of the bases for legal capacity law reform.

And to continue with some challenges. Lack of support networks. I think international corporation is very important regarding this because we do not even have enough knowledge on support decision making on support networks and also to identify existing communities and encourage them, like civil society or various organisations or societies and to encourage them to become support networks for people with disabilities. Also another challenge is the lack of financial resources to develop effective and accessible community based services. This is a real challenge, I think. So yeah, it has a cost implication as well but if we say that we can do a kind of mapping out existing sources and at the same time do a kind of need assessment at all level – national, regional and local level and to match all these needs and resources cost almost nothing. And this is very important because sometimes those who have resources do not know what are the needs of disabilities and those who have the needs, they do not know where they can find the resources. So that’s why it will be very important, I think. Lack of knowledge, for example what is the difference between guardian and support person. So I think capacity building should be provided to overcome this barrier and lack of information on best practises. I think international organisations can be a tool. Negative attitudes, stigma and abuse regarding people with intellectual and psychosocial disabilities and this barrier can be overcome by awareness raising, capacity building and engaging the media.

I don’t want to talk about the EU level but I have a very short video, just one and a half minutes. And I would like to watch this. I’m sorry for the others, this is in Croatian and I only have English subtitles. So sorry for this. Here we go. I do not know whether we have voice or sound, no?

(Video)

Okay, I do not know how to go back, but I think this is very important to.. nothing about.. to nothing about us, so that’s why it was important to me to have an advocate even if he was not with us in person but to have a self advocate with us through the YouTube. And is told on the rights to legal capacity and the right to vote. And finally, I would to that policy makers and decision makers pose the question, ask the question whether shall we give back or grant full legal capacity to persons with intellectual or psychosocial disabilities? Well this is not the right question. They do not have to give back full legal capacity. They do not have to grant full legal capacity to persons with disabilities because CRPD says that they should recognise it. So this is a very important message to not just recognise legal capacity but to but to provide them with adequate support if they need it. So thank you for you attention.