1. Committee on the Rights of Persons with Disabilities
Convention on the Rights of Persons with Disabilities
Article 12 of the Convention on the Rights of Persons with Disabilities (“CRPD”) affirms the equal recognition before the law and the legal capacity of persons with disabilities. Although the CRPD does not prohibit restrictions on legal capacity, Article 12 recognizes that persons with disabilities have legal capacity on an equal basis with others. In other words, disability alone does not justify the deprivation of legal capacity. Article 12 stipulates that:
General Comments No. 1 on Article 12: Equal Recognition Before the Law
General Comment No. 1 (pdf) specifically addresses Article 12 and recognizes that equality before the law is a basic general principle of human rights protection and indispensable for the exercise of other human rights. As emphasized in the General Comment No. 1, Article 12 should be interpreted in light of the general principles of the CRPD, as outlined in Article 3, including respect for inherent dignity, individual autonomy, independence of persons, non-discrimination, and full and effective participation and inclusion in society. The right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others. Legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights. The denial of legal capacity to persons with disabilities could lead to the deprivation of many of their fundamental rights, including the right to liberty, right to vote, and the right to give consent to medical treatment. The Committee reaffirms in the General Comment that all persons with disabilities have full legal capacity and that a person’s status as a person with a disability or the existence of an impairment (including a physical or sensory impairment) must never be grounds for denying legal capacity or any of the rights provided for in Article 12. All practices that in purpose or effect violate article 12 must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others.
Towards the end of the General Comment No. 1, the Committee sets out a number of recommendations that ensure the full implementation of Article 12. They include the abolition of substitute decision-making regimes and mechanisms, the provision of access for persons with disabilities to a broad range of support in the exercise of their legal capacity and safeguards for such support, and close consultation with persons with disabilities in the development and implementation of legislation, and policies and other decision-making processes that give effect to Article 12.
The concepts of “substituted decision-making” and “supported decision-making” are key to the discussion on legal capacity and have been subject to much discussion. The Committee has on multiple occasions called for States Parties to replace substituted decision-making with supported decision-making regimes.
The concepts of substituted decision-making and supported decision-making are distinct. Substituted decision-making includes advance directives and legal mentors where the guardian has court-authorized power to make decisions on behalf of the individual without necessarily having to demonstrate that those decisions are in the individual’s best interest or according to his or her wishes. There are two main types of guardianship: plenary and partial. Persons under plenary guardianship lose all or almost all their civil rights, and persons under partial guardianship keep some civil rights while their capacity to make decision in certain areas is transferred to a legal representative. In other words, a person with disability under guardianship will be deprived of full or partial legal capacity.
Supported decision-making, on the other hand, means that the person with a disability is the decision-maker. The essence of supported decision-making is that the choices rest with the person with disability, while others take measures and make reasonable accommodations to enable such person to make the decision. The CRPD recognizes that some persons with disabilities require assistance to exercise this capacity and provides that States Parties must provide support to such individuals and introduce safeguards against abuse of that support. Support can take the form of one person or a group of people and it may be necessary only occasionally or all the time. Nonetheless, the presumption is always in favour of the person with a disability: the individual is the decision-maker. The person supporting the person with a disability will provide assistance in the form of explaining the issues and, where necessary, interpreting the signs and preferences of the individual. Even where the individual requires total support, the supporting person should enable the individual to exercise his or her legal capacity to the greatest extent possible, according to the individual’s wishes. Supported decision-making can take many forms and Article 12 of the CRPD does not specify ways of support s. The Council of Europe paper noted that support “can take a variety of forms including support to enable someone who communicates in alternative ways to convey his/her message to third persons; support to assist someone in their contacts with the authorities; and life planning supports to assist a person in thinking about options for living and other arrangements.”
The Committee has set out a range of recommendations in its Concluding Observations for various States Parties to ensure the full implementation of Article 12. This includes concerns about substituted decision-making mechanisms that restrict the exercise of rights by persons with disabilities (i.e. the right to vote and access to justice).
With regards to China, the Committee notes in its Concluding Observation that there is a “complete absence of a system of supported decision-making measures which recognize the rights of persons with disabilities to make their own decisions and to have their autonomy, will and preferences respected.”
The excerpts to all the Concluding Observations issued by the Committee concerning Article 12 may be accessed here.
Views on Individual Communications
The following contains summaries of Individual Communications relating to legal capacity:
Bujdoso and others v Hungary (Communication No. 4/2011)
Complainant(s): Zsolt Bujdoso and five others
State Party: Hungary
Treaty-based Body: Committee on the Rights of Persons with Disabilities
Relevant Articles: Articles 29 and 12 of the Convention on the Rights for Persons with Disabilities (CRPD)
Case Synopsis: The complainants have intellectual disabilities and were placed under partial or general guardianship pursuant to judicial decisions. They subsequently argued that they were automatically and indiscriminately disenfranchised by the Hungarian Constitution (which provided that persons placed under total or partial guardianship do not have a right to vote). They also argued that the system provided no effective remedy. Hungary submitted that it has reformed the relevant law since the complaint was filed so that the Courts could make decisions on suffrage on a case-by-case basis. Hungary argued that the new law was compliant with relevant international and regional standards. The Committee on the Rights of Persons with Disabilities ( “Committee”) ruled in favour of the complainants. The Committee explained that Article 29 of the Convention on the Rights of Persons with Disabilities (“CRPD”) does not foresee any reasonable restriction and there is no exception for any group of persons with disabilities. An exclusion of the right to vote on the basis of a perceived or actual psychosocial or intellectual disability as permitted under the amended Hungarian law (albeit pursuant to an individualized assessment), constitutes discrimination under the CRPD. The Committee also reminded Hungary of its obligation under Article 12(3) of the CRPD to take the necessary measures to guarantee to persons with disabilities the actual exercise of their legal capacity.
Article 12 – Equal recognition before the law
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
2. UN Human Rights Council
The following documents issued by the Human Rights Council concern legal capacity:
Thematic Study on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities (“CRPD”)
The Thematic Study by the Office of the United Nations High Commissioner for Human Rights (“UNHCR”) on enhancing awareness and understanding of the CRPD initiated pursuant to a request by the Human Rights Council. The Thematic Study examines legal measures required for the ratification and effective implementation of the CRPD.
Part 4 of the Thematic Study focuses on: recognition before the law, legal capacity, and decision-making. Article 16(1) of the International Covenant on Civil and Political Rights (“ICCPR”) requires the recognition of legal personality of persons with disabilities. The obligations contained in Article 12 of the CRPD requires a thorough review of civil and criminal legislation. Pursuant to the CRPD, States are obligated to provide persons with disabilities with access to support required to exercise legal capacity. States also are obligated to establish safeguards against the abuse of such support. In respect of civil law, the Thematic Study highlights that interdiction and guardianship laws should be a priority area for legislative review and reform. In particular, legislation allowing for the interdiction or declaration of incapacity of persons on the basis of mental, intellectual, or sensory impairment (and the attribution of legal capacity to a guardian) conflicts with the recognition of legal capacity enshrined in Article 12(2) of the CRPD. The Thematic Study emphasizes that in addition to abolishing legislation which violates Article 12 of the CRPD, measures protecting and fulfilling the right to legal capacity (including measures that clarify the legal responsibilities and liabilities of supporting parties) must be adopted in accordance with Article 12(3), 12(4), and 12(5),. In respect of criminal law, the Thematic Study maintains that the recognition of legal capacity requires abolishing a defence based on the negation of criminal responsibility for persons with a mental or intellectual disability (often referred to as the “insanity” defence). In this regard, disability-neutral doctrines on the subjective element of the crime which takes into consideration the circumstances of the individual defendant should be applied Moreover, Article 13 of the CRPD suggests that procedural accommodations for persons with disabilities during the pretrial and trial phases of criminal proceedings may be required.
Thematic Study on Violence against Women and Girls
The Thematic Study on Violence against Women and Girls was carried out by the Office of the United Nations High Commissioner for Human Rights pursuant to a request by the Human Rights Council. The Thematic Study analyzes national legislation, policies, and programmes for the protection and prevention of violence against women and girls with disabilities. The Thematic Study maintains that the recognition of autonomy of persons with disabilities is crucial to preventing violence against women and girls. To this end, the CRPD moves away from the guardianship approach to supported decision-making. The Thematic Study also emphasizes the importance of ensuring access to recourse and remedies for acts of violence. According to Article 12 of the CRPD, States parties must recognize that persons with disabilities enjoy legal capacity on an equal basis with other persons in all aspects of life. Similarly, the Committee on the Rights of the Child notes in its General Comment No. 7 that children are rights-holders with evolving capacities and reminds States of their obligation to facilitate genuine participation of young children in processes affecting their development. However, many countries have enacted laws that limit, or deprive disabled women and girls of the right to exercise their full legal capacity.
The Thematic Study notes the importance of ‘consent to treatment’ in preventing violence against women and girls with disabilities. It recognizes that involuntary treatment and involuntary confinement are relevant concerns and that the CRPD recommends States parties to incorporate into the law the abolition of surgery and treatment without full and informed consent. The Thematic Study also notes that compulsory or forced treatment of persons with disabilities may amount to ill-treatment and torture. The relationship between the right to legal capacity or guardianship and the vulnerability of women and girls with disabilities are summarized as follows:
“Exposure to risk of violence is positively correlated to factors which disempower, disfranchise, and increase the dependence of persons with disabilities on other individuals. Many of these factors also contribute to impunity of the perpetrators and concealment of the issue, resulting in extended periods of violence. Examples of these factors include absence of mobility aids or assistive devices (and the training needed to use them), laws permitting deprivation of legal capacity (resulting in the appointment of guardians with authority to make legally binding decisions); lack of access to information and counselling services, fear of repercussions such as institutionalization and loss of care if abuse is reported. Another factor that contributes to the concealment of violence is the inability of professionals, relatives, and friends to recognize circumstances resulting from violence.”
The study points out that legislations governing violence against women often fail to recognize certain forms of disability-specific violence and recommends a dual-track approach to address violence against women and girls with disabilities.
The following Special Procedures concern legal capacity:
Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences
This Report aims to examine the manifestations, causes, and consequences of violence against women with disabilities and deepens the findings of the 2009 OHCHR Thematic Study on the Issue of Violence Against Women and Girls with Disabilities. The Report briefly examines relevant international and regional legal frameworks and provides relevant recommendations.
The Report recognizes that legal capacity and access to justice draw upon the principles of autonomy or self-determination and are incorporated in both the CRPD (i.e. Articles 12 and 13) and the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) (i.e. Article 15 addresses equality before the law). The CRPD incorporates the concepts of recognition as persons under law and legal capacity.
The Report outlines the consequences of denying women and girls legal capacity. First, it points out that people with mental health conditions and intellectual disabilities may be subject to arbitrary detention in long-stay institutions without right of appeal. It is reported that women with disabilities in institutional settings are subjected to numerous forms of violence, including the forced intake of psychotropic drugs or other forced psychiatric treatment. Furthermore, forced institutionalization itself constitutes a form of violence. Abuse is perpetuated and reinforced by the justice system which restricts the right of women with disabilities to testify in courts and/or fails to see them as credible. The Report advances that the elimination of such discriminatory practices is essential to address violence against women with disabilities.
The full text is accessible here.
3. European Court of Human Rights
Whilst the European Convention on Human Rights (“ECHR”) does not contain an express provision on the right to legal capacity, the European Court of Human Rights (“ECtHR”) has interpreted a number of articles as encompassing such right. In recent years, the ECtHR significantly developed its interpretation of articles in the ECHR in relation to legal capacity.
The doctrine of ‘margin of appreciation’ is crucial for understanding the European system. The doctrine grants States Parties the discretion to implement the ECHR as they consider appropriate, even if they may interfere with some rights and freedoms protected by the ECHR, as long as the interference can be justified as being necessary to preserve public order and/or protect the rights and freedoms in a democratic society. In other words, except for a small group of absolute rights or freedoms, where important national interests and diverse social, cultural, or moral convictions are at stake, States Parties have some room to assess whether appropriate restrictions should be placed on a protected right or freedom.
States Parties enjoy a wide margin of appreciation in determining legal capacity. The deprivation of a person’s right to legal capacity may be legitimate where such deprivation is necessary to preserve public order and/or protect the rights and freedoms of others in a democratic society. In Lashin v Russia (see below for case summary), the ECtHR maintained that a State Party’s decision to deprive an individual of legal capacity may have a number of legitimate aims, and that some form of denial or restriction of legal capacity (such as partial guardianship) may be necessary for “mentally-ill persons”. Nonetheless, the ECtHR held that there was a violation of Lashin’s right to respect for private life because of his legal status as an incapacitated person and inability to review such status. The ECtHR also found a violation of his right to liberty given his involuntary hospitalization and inability to review the lawfulness of such hospitalization. This appeared contrary with Article 12 of the CRPD, which provides that persons with disabilities have the right to enjoy legal capacity on an equal basis with others. It also contradicts General Comment No. 1, which recommends States Parties to move from a substituted decision-making regime to a supported decision-making regime. Under the CRPD, the right to equal recognition before the law and freedom from discrimination require that where legal capacity is denied, it must be on the same basis for all persons and the decision not be based on the individual’s disability. The decision in Lashin v Russia can be seen as a regression from the decision in Shtukaturov v Russia (see below for case summary), which held that mental illness cannot be the sole reason to justify depriving a person of legal capacity.
Although States Parties enjoy a wide margin of appreciation and the deprivation of legal capacity per se has not been held as a violation of the ECHR, the ECtHR recognizes that certain consequences resulting from the deprivation of legal capacity may violate the ECHR.
The Court in Stanev v Bulgaria (see below for case summary) found that long-term institutionalization can constitute a form of deprivation of liberty, and in this case, violated the right to liberty guaranteed under Article 5 of the ECHR. The conditions of the social care home were also found to constitute inhuman and degrading treatment. Although this case concerns the applicant’s liberty rather than legal capacity, it pertains to disability rights as the applicant was institutionalized upon the instructions of his guardian after being placed under partial guardianship (due to schizophrenia).
In Alajos Kiss v Hungary (see below for case summary), the applicant was placed under partial guardianship for manic depression. As there was an absolute voting ban for persons placed under guardianship under the then-existing Hungarian Constitution, the ECtHR found Hungary in violation of Article 3 of Protocol 1 of the ECHR for depriving the applicant his right to vote.
In Shtukaturov v Russia (see below for case summary), the deprivation of liberty of the person (as a result of deprivation of legal capacity) was held to be a very serious and disproportionate interference with a person’s private life in breach of Article 8 of the ECHR. The ECtHR held that a stricter scrutiny would be required in respect of very serious limitations in the sphere of private life.
None of the abovementioned cases found the deprivation of legal capacity itself as constituting a violation of the ECHR. Instead, the ECtHR found violations on the basis of consequences resulting from the deprivation of legal capacity (such as long-term institutionalization and exclusion from voting). Moreover, although the placement of a person under guardianship has not been found to be in violation of the ECHR, the ECtHR noted in Ivinovic v Croatia (see below for case summary) that deprivation of legal capacity, even if partial, should be a last resort. The ECtHR found that even if the State Party, in that case, is satisfied the person concerned “has been experiencing difficulties in paying his or her bills, deprivation, even partial, of legal capacity should be a measure of last resort, applied only where the national authorities, after carrying out a careful consideration of possible alternatives, have concluded that no other less restrictive, measure would serve the purpose or where other, less restrictive measure, have been unsuccessfully attempted”. The ECtHR also held in a number of cases that guardianship proceedings must comply with the due process and fair trial rights under Article 6(1) of the ECtHR because such proceedings involve the determination of a person’s civil rights (i.e. the right of the person to deal with his own affairs, including entering into a contract). The ECtHR found a breach of Article 6(1) in Shtukaturov v Russia, where the guardianship proceedings that ultimately deprived the Applicant of his legal capacity were held without his knowledge. It also held in Kedzior v Poland that, by virtue of the right to a fair trial, the person deprived of legal capacity must have effective access to courts to seek restoration of their legal capacity. It was similarly held in Stanev v Bulgaria (see below for case summary) that the Applicant’s inability to access a court to review the restrictions on his legal capacity amounted to a violation of his right to a fair trial under Article 6(1) of the Convention.
Ultimately, the ECtHR jurisprudence on the subject provides some protection against deprivation of legal capacity. It suggests that mental and legal capacity cannot be equated, and that guardianship proceedings must comply with the rights to fair trial guaranteed under Article 6. The ECtHR also recognized violations in cases where certain rights of a person have been infringed as a result of the deprivation of legal capacity.
However, the ECtHR has not declared a guardianship system (which leads to total or partial deprivation of legal capacity on the basis of a person’s disability) to be incompatible with the freedoms and rights guaranteed under the ECHR.
The list of key ECHR case law on this topic is as follows:
Ivinovic v Croatia (Application No. 13006/13)
Applicant: Marija Ivinovic
Member State: Croatia
Date Decided: 18 September 2014
Relevant Article(s): Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Mihailovs v. Latvia (Application No. 35939/10)
Applicant: Genadijs Mihailovs
Member State: Latvia
Date decided: 22 January 2013
Relevant Article(s): Articles 5 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Case Synopsis: Genadijs Mihailovs, a permanent resident non-citizen of the Republic of Latvia, lodged an application against the Republic of Latvia under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Mihailovs’s wife initiated proceedings to have the Applicant divested of his legal capacity in 2000. This was followed by an inpatient forensic psychiatric examination of Mihailovs whereby the experts concluded he suffered from epilepsy but not a mental illness and recommended he be declared legally incapable. The Court ruled (in the absence of Mihailovs) that he was not legally capable. Subsequently, his wife was appointed his guardian, and as such, requested he be placed in a specialized social care institution. Mihailovs was successively placed in two state social care institutions – from 30 January 2002 to 1 April 2010 in the Īle Centre in Īle parish and from 1 April 2010 to the time of the Judgment in the Īle Centre in Lielbērze. Mihailovs made two specific complaints: (i) he had been held against his will in an institution with people who were mentally ill for more than ten years and that he could not obtain release; (ii) he had been fully dependent on his wife who, as his guardian, had not represented his interests and had opposed attempts by him to defend his rights.
A detailed case summary is accessible here.
Kedzior v Poland (Application No. 45026/07)
Applicant: Stanislaw Kedzior
Member State: Poland
Date Decided: 16 October 2012
Relevant Article(s): Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Alajos Kiss v Hungary (Application No. 38832/06)
Applicant: Alajos Kiss
Member State: Hungary
Date Decided: 20 May 2010
Relevant Article(s): Article 3 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Case Synopsis: Alajos Kiss alleged that the Hungarian Constitution unjustifiably deprived him of his right to vote after he had been willingly placed under partial guardianship as a result of his manic depression. He relied on Article 3 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which gives citizens the right to regular, fair and free elections. The Hungarian Government claimed this was open to interpretation by states. The ECtHR held that whilst Article 3 is open to limited interpretation it remains the final arbiter, and in the circumstances, an indiscriminate removal of the right to vote based purely on a person’s guardianship status is disproportionate. Therefore, the Applicant’s rights had been violated.
Stanev v Bulgaria (Application No. 36760/06)
Applicant: Rusi Stanev
Member State: Bulgaria
Date Decided: 17 January 2012
Relevant Article(s): Articles 3, 5, 6, and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Case Synopsis: Rusi Stanev, a Bulgarian national, filed his application against the Republic of Bulgaria in September 2006 at the ECtHR. He alleged that the State had violated his rights under Article 5(1) (the right to liberty and security of person), Article 5(4) (the right to challenge the deprivation of liberty in court), Article 5(5) (the right to compensation for the deprivation of liberty), Article 3 (right not to be subjected to inhumane or degrading treatment), Article 6(1) (right to fair hearing) and Article 13 (the right to damages in this case for the violation of Article 3) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Stanev was found to be partially incapacitated by the courts in 2000. He was placed under the partial guardianship of the Bulgarian authorities in 2002. Despite not having met Stanev before, nor consulted his views, Stanev’s guardian, a council officer, signed a welfare-placement agreement for Stanev. Stanev was not informed of the agreement and was subsequently taken by ambulance to the Pastra social care home which was some 400 km from where he was previously living. The living environment was very poor and his stay was subjected to various restrictions. The home was dirty and rarely heated in winter. The home’s residents did not have their own items of clothing and were not given sufficient food. The beds were crammed side by side, the bathrooms were unsanitary and decrepit, and the toilets consisted of holes in the ground covered by dilapidated shelters (all of which were unhygienic and in a very poor state of repair). Stanev was allowed to leave the home only with special permission from the Director and never given his identity papers. The ECtHR ruled that the placement amounted to a deprivation of liberty and regarded the Applicant’s stay as an inhumane treatment. It further found that there were no domestic remedies available to Stanev whom hadfailed to have his legal capacity restored. The ECtHR concluded that Stanev’s rights under Art 5(1), 5(4), 5(5), 3, 6(1) and 13 had been violated.
D.D. v Lithuania (Application No. 13469/06)
Member State: Lithuania
Date Decided: 14 February 2012
Relevant Article(s): Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Case Synopsis: D.D. is a Lithuanian national with a history of mental disorders. The Lithuanian court declared D.D. legally incapacitated after summary court proceedings in which she was not given the opportunity to participate. D.D. was subsequently placed under the guardianship of her adoptive father, despite her strained relations with him, and involuntarily admitted to a psychiatric institution upon his initiative. The Lithuanian court dismissed her application for a release from involuntary institutionalization and a change of legal guardian. Accordingly, the ECtHR held that the divesting of D.D.’s legal capacity, appointment of guardianship, and involuntary institutionalization violated her rights under Article 5 (right to liberty and security) and Article 6 (right to a fair trial) of the Convention for the Protection of Human Rights and Fundamental Freedoms.
A detailed case summary is accessible here.
Shtukaturov v Russia (Application No. 44009/05)
Applicant: Pavel Vladimirovich Shtukaturov
Member State: Russia
Date Decided: 27 March 2008
Relevant Article(s): Articles 5, 6, 8, and 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Lashin v Russia (Application No. 33117/02)
Applicant: Alexander Lashin
Member State: Russia
Date Decided: 22 January 2013 (Judgment finalized on 22 April 2013)
Relevant Article(s): Articles 5, 8, 12, and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Case Synopsis: The Applicant Lashin suffers from schizophrenia. He lodged a challenge against the Russian Federation over his status as a legally incapacitated person, his involuntary confinement to a psychiatric hospital, and his inability to marry. He alleged the Government had breached Article 8 (right to respect for private life), 5 (right to liberty), Article 12 (right to marry) and Article 13 (right to effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECtHR held that Lashin’s right to respect for private life had been violated because of his maintained incapacitated person status and inability to review such status. Further, the ECtHR held that Lashin’s right to liberty had been violated given his involuntary hospitalization and inability to review the lawfulness of such detention.
A detailed case summary is accessible here.
Berkova v Slovakia (Application No. 67149/01)
Applicant: Jarmila Berkova
Member State: Slovakia
Date Decided: 24 March 2009
Relevant Article(s): Articles 6, 8, and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms
Case Synopsis: The Applicant Jarmila Berková was a Slovakian national born in 1955 and had been assigned a guardian on the basis of her mental disorder. In 1999, her request to restore her full legal capacity was refused and she was forbidden to make any further requests for three years. On 4 August 2000, she filed a complaint to the ECtHR under Article 34 of the Convention of the Protection of Human Rights and Fundamental Freedoms.
She complained: (i) her right to a hearing within a reasonable time had been violated under Article 6(1); (ii) her right to respect for her private life had been violated under Article 8 due to the restriction on her legal capacity and its restoration; and (iii) her right to effective remedy had been violated according to Article 13.
A detailed case summary is accessible here.
4. Inter-American Commission on Human Rights (“Commission”)
The Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities states that determinations of incapacity do not constitute discrimination. In particular, Article 1(2)(b) provides that “If, under a state’s internal law, a person can be declared legally incompetent, when necessary and appropriate for his or her well-being, such declaration does not constitute discrimination.” This provision is inconsistent with Article 12 of the CRPD, which requires States Parties to recognize that persons with disabilities “enjoy legal capacity on an equal basis with others, in all aspects of life.”
Nonetheless, the Commission has addressed issues related to rights of persons with disabilities on various occasions. It recognizes violations of rights by States Parties, including the failure to recognize the legal capacity of persons with disabilities, shortage of community services conducive to the integration of persons with disabilities into the community, short or long-term institutionalization without consent, lack of health, habitation, and rehabilitation services, inaccessibility of the physical environment, transportation, information, and communications, obstacles to access to justice, lack of reasonable accommodation in employment and education, and limited political participation.
The Commission has urged States Parties to adopt legislative, administrative, and other measures to ensure the effective protection of the human rights of persons with disabilities in accordance with the international standards which provide the greatest protection. This should be carried out with the participation of persons with disabilities as actors in their own lives and take into account the guiding principles of the social approach to disability (such as the autonomy and independence of persons with disabilities, non-discrimination, equality of opportunity, accessibility, and full and effective participation and inclusion in society).
A number of cases were heard by the Commission to address issues related to the rights of persons with disabilities since 2009. These cases include the hearing on the Human Rights Situation of Persons with Mental and Intellectual Disabilities in Peru (1 November 2013), the Situation of Legal Standing and Access to Justice for Persons with Disabilities in Latin America (25 March 2014), and Access to Justice for People with Disabilities in Guatemala (19 March 2015). At the hearing on the case of Peru, it was recognized that implementing international and regional conventions into domestic legislation has been problematic for many countries. The various obstacles faced by the Government in implementing changes include societal barriers: in particular, persons with disabilities cannot not obtain an identity card, enter into marriage, or enter into contracts. Moreover, parents and guardians are encouraged to restrict the capacity of persons with disabilities. The Commission recommended that the existing determinative measures on whether a person can function independently be improved and that a court be established for persons with disabilities to amend their status and independence if they can demonstrate such ability. Further, the Commission noted that the domestic system must provide concurrent safeguards and protections to persons with disabilities who may be susceptible to abuse.