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The right to legal capacity: guardianship at the ECHR

The right to legal capacity: guardianship at the ECHR. Jan Fiala Disability Rights Center (DRC) Budapest, Hungary. The right to legal capacity: guardianship at the ECHR. 1. Human rights implications of guardianship 2. What is happening in practice

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The right to legal capacity: guardianship at the ECHR

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  1. The right to legal capacity:guardianship at the ECHR Jan Fiala Disability Rights Center (DRC) Budapest, Hungary

  2. The right to legal capacity: guardianship at the ECHR • 1. Human rights implications of guardianship • 2. What is happening in practice • 3. How does current ECHR standards help us to reach the level of the CRPD?

  3. Human rights implications 1 – procedural problems • People not heard by courts • No meaningful legal representation • Decisions not delivered • Restrictions on the access to court • Open prejudice by judges • Experts assessment – determines the outcome

  4. Human rights implications 2 – abuses • People institutionalised through guardianship • Subjected to (in)voluntary treatment through guardianship • Property taken over by adverse parties • No control over the guardian’s actions • Overuse of guardianship and plenary guardianship in particular

  5. Human rights implications 3 – implications for other rights • Right to vote • Right to family life (adoption of own child) • Right to assembly • Access to courts • Right to property • Freedom from torture (ECT)

  6. Human rights implications 4 – The right to legal capacity • If all the previous problems were corrected, would guardianship be acceptable? • When is guardianship a legitimate intervention?

  7. What is happening? • No legal standard of capacity (CEE) • No psychiatric methodology for the assessment of capacity • Determining factors: luck, social situation, diagnosis-based prejudice

  8. What is the aim of guardianship? • It is seen as an automatic, natural thing to impose without much thought given to the reasons • It is a means of intervention in social crises situations • The reasons are often unrelated to the person’s abilities (death of carers, requirements of service providers)

  9. Current ECHR standards • Prohibition of plenary guardianship – Shtukaturov v. Russia, Alajos Kiss v. Hungary, X v. Croatia • Sometimes the aims get questioned – Salontaji-Drobnjak v. Serbia

  10. Where can we move? • Disability neutral alternatives – Adult Protection Laws • Less restrictive alternatives: lasting powers of attorney, advance directives, supported decision-making

  11. Where can we move? • Positive obligations – to provide personal support services to deal with daily matters of an independent life • Services necessary to deal with “legal” matters (applying for job and social benefits, dealing with public administration) • Specific services to assess less restrictive alternatives

  12. How do we do that? • Litigation: cases before the ECHR • Law reform: good examples from Central Europe and elsewhere

  13. Starting point • Imagine a World without restrictions on legal capacity • How would it look like? • What kind of problems would we run into? • Let’s look for solutions to those problems

  14. The right to legal capacity:guardianship and the ECHRThank you for your attention! • Jan Fiala • jfiala@freemail.hu • Disability Rights Center (DRC) Budapest, Hungary

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