MDAC’s recent legal capacity advocacy activities in Lithuania, Bulgaria and in Hungary

The Mental Disability Advocacy Center has been actively involved in legal capacity law reform related advocacy activities in the Central and Eastern European Region in the last three weeks.

This information bulletin focuses on developments in three key countries:

The Mental Disability Advocacy Center undertook an advocacy mission in Vilnius, Lithuania last week and co-organised a conference and an expert meeting on the need for legal capacity law reform in the premises of the Ministry of Justice.

Both events were the results, inter alia, of

 - MDAC’s advocacy letters to the Lithuanian Prime Minister and Minister of Justice;

 - the UN Human Rights Committee’s concluding observations which was inspired by the written comments submitted by MDAC and our Lithuanian partners, the Global Initiative on Psychiatry and Lithuanian Forum for the Disabled.

www.alfa.lt According to Lithuania’s legislation an adult person either has full legal capacity or has no legal capacity at all. In other words, adults with disabilities either can make decisions on their own or are placed under plenary guardianship of another person who acts as substitute decision-maker. According to statistics, there are around 5,900 people under guardianship in Lithuania.

On the first day, the conference was opened by the Minister of Justice, Remigijus Šimašius.

Participants came from the Ministry of Justice, Ministry of Social Security and Labour, relevant Parliament committees and disability and human rights organisations. They were informed of the right to legal capacity under the UN Convention on the Rights of Persons with Disabilities and the legal capacity law reform process in Russia, Latvia and the Czech Republic.

The main message of the morning session was that Lithuania must ebolish plenary guardianship and has to introduce alternatives to guardianship.

Participants welcomed Ms. D.D., who won her case against Lithuania before the the European Court of Human Rights this year.

Lithuanian speakers represented the Global Initiative on Psychiatry, Human Rights Monitoring Institute, Viltis-Lithuanian Organisation for People with Intellectual Disability and the Academia.

On the second day, MDAC and Lithuanian NGO representatives took part in a roundtable discussion with the deputy minister of justice and his colleagues from the ministry. Here, MDAC and Lithuanian NGOs discussed the requirements of article 12 of the CRPD and how supported decision-making can work in practice in Lithuania.

There will be general elections in Lithuania in two weeks, but MDAC and its partner organisations will continue working on law reform.

Bulgaria

Following the judgment of the European Court of Human Rights in the case of Stanev v. Bulgaria and ratification of the the UN Convention on the Rights of Persons with Disabilities, the Bulgarian Ministry of Justice established a working group to prepare a concept note for new legal capacity legislation.

The working group finalised the concept note at the end of August and publicly presented it last week. MDAC submitted written comments on this detailed document and welcomed in particular the proposals that:

1.    plenary guardianship will no longer exist in the new legislation

2.    there will be no automatic loss of rights if somebody is placed under trusteeship, which shall always be the last resort option, and

3.    supported decision-making will be enshrined in law.

MDAC highlighted in its submission that while these aspects are based on international human rights standards, attention should also be paid, inter alia, to other relevant and CRPD based principles:

1.    The law should recognise equal legal capacity.

2.    In order to protect people’s legal capacity and to ensure that independent legal decision-making is available for as many people as possible, the new law should recognise that persons with disabilities are not discriminated against by denying reasonable accommodation.

3.    The concept note states that the new law should recognise that persons with disabilities may require support in exercising their legal capacity. The new law should go further and specify that it is the state’s obligation (as set out in Article 12(3) of the CRPD) to provide such support.

4.    The law should establish safeguards against exploitation, violence and abuse.

5.    The law should specify the meaning of “last resort”.

6.    According to the concept note, personal rights such as the right to marry, right to leave testament etc. cannot be limited at all. However, MDAC underlined that the right to legal capacity is a cross cutting right, which has impact on legal measures outside of the civil code. MDAC suggested that, in accordance with international human rights law, all persons with disabilities shall be provided with the right to vote and stand for election, the right to freedom of assembly and to freedom of association, even if the person concerned is placed under trusteeship.

7.    The law needs to establish structures for those situations when representative decision-making, which is different to the current guardianship system in many ways, may be needed.

MDAC will continue to follow the law reform process and will monitor developments.

Hungary

Last week, the UN Committee on the Rights of Persons with Disabilities reviewed Hungary, which was the second country in the world to ratify the CRPD.

MDAC together with Hungarian DPOs and human rights NGOs sent a shadow report to the CRPD Committee in 2010, an updated report for the adoption of the list of issues, and additional information about Hungary‘s compliance with the CRPD with respect to the List of Issues and Replies from the Government of Hungary to the List of issues in 2012. In each submission, the right to legal capacity was a key topic of reflection.

Two weeks ago, a delegation of Hungarian human rights organisations, including MDAC, met CRPD Committee members and informed them about the Bill on the new Civil Code. According to this code, full restriction of legal capacity, which is equal to plenary guardianship, remains an option beside partial guardianship and supported decision-making lacking conformity with article 12 of the Convention.

Right after the concluding observation was made public, MDAC turned to the Human Rights Committee of the Hungarian Parliament highlighting that legal capacity provisions of the Bill on the new Civil Code is clearly in breach of article 12 of the CRPD. Thus, the Bill does not follow the Article Q para 2 of the Fundamental Law of Hungary (Constitution) according to which „Hungary shall ensure harmony between international law and Hungarian law in order to fulfil its obligations under international law.“ MDAC offered its availablity to the Parliamentary Committee for further consultation with regard to amending legal capacity provisions. MDAC continues advocating for derogating guardianship in Hungary.

MDAC’s work on legal capacity law reform has been funded by a grant from Zennström Philanthropies. For more information on either of these topics, please contact mdac@mdac.org

MDAC needs further support to fight social exclusion in Lithuania, Bulgaria, Hungary and elsewhere. Your donation is crucial. With your help, MDAC will provide the best impact for people with disabilities, where your money is needed the most and where your investment will work the hardest. The change which you can help create is long-lasting and will ultimately prevent many more people being subject to abuses in the future. Please help us today by clicking here.