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Capacity: formalism, absence of individual approach and deprivation of civil rights.


Today the world community understands that disability is not just a problem of a person’s health but a discrimination issue of access to human rights. Today this access can be more difficult because of disability. By the way, one of the key messages that should be promoted in Belarusian law should be the message of importance of achieving independence and integration into society by every concrete person.

- First of all we are talking about the independent way of life which gives a person a possibility to make independent choice in any case and in any state of health. It is the possibility to realize you own choice and human rights – comments the coordinator of the Office for the rights of persons with disabilities Sergey Drozdovsky. For many people with disabilities the main barriers are legal, especially when it comes to depriving a person of capacity.

Capacity in general determines whether they may make binding amendments to their rights, duties and obligations such as getting married or merging, entering into contracts, making gifts, or writing a valid will. According to the national legislation a person obtains it in full volume at the age of 18. But in cases of psychic disorders, in cases when a person cannot understand the consequences of his actions he can be found incapacitated by the court.

In our country the state of a person deprived of capacity can be compared to a state of a dependent child who can’t exercise his rights without the participation of parents. If not worse. For example, a person who was deprived of capacity can’t get married or adopt a child, enter even smallest contracts, file appeals, to be a legal representative of his own interests etc. – this list can be very long. Another example: incapacitated person can’t file an appeal against incapacitation and can’t start a procedure of capacity reinstatement. It can be done only by his family or close relatives, prosecutor, guardianship and trusteeship authorities and psychiatric organizations. But it may not happen even if the state of health has improved.

As the specialist explains, the process of capacity deprivation has been launched when the society understood that people are different in understanding the consequences of their actions.

The Office for the rights of persons with disabilities has been talking about the impossibility to live a full life after incapacitation for a couple of years. The recognition of the problem gradually comes to the state level.

- For example, in 2010 the minister of labour and social protection during the one of press-tours mentioned the issue and said that the problem of incapacity was not a problem of a person but of the whole society. Five years later we can see some changes in the issue.

For example, in 2013 the Constitutional Court considered a citizen’s case on incapacitation and in its decision paid attention to some flaws in the Belarusian legislation and ruled to make some changes.

- Imperfection of the legislation is the barrier for a person deprived of capacity to exercise his rights - comments Sergey. – Keeping soviet tradition the national legislation has two “categorical” notions: “full incapacity” and “full deprivation of capacity”. But today in Belarusian law there is a rather modern notion of disability corresponding with the notion given by the Convention on the rights of persons with disabilities. Nevertheless, when it concerns capacity, today Belarusian law uses rather archaic notions.

Today courts are considering cases on capacity deprivation, but this procedure in our country is rather formal.

- A procedure of capacity deprivation is not the one when two parties equally participate in it. Decision is made based on the psychiatric conclusion and very fast, - says Sergey Drozdovsky. There is also no open statistical data on the amount of people in our country deprived of capacity… We can only guess. Psychoneurological illnesses including psychiatric illnesses, which in the majority of cases lead to incapacitation take higher positions among different disability reasons and these are thousands of people.

Another Belarusian problem is the existence in the country of psychoneurological institutions specializing in different kinds of illnesses of people living there. There are 47 psychoneurological institutions in Belarus. In the majority of them live people who were deprived of capacity. Deprivation of capacity means that a person has to have a guardian. In families this function is fulfilled by relatives but in institutions the responsibility is held by the administration which means by the director of the institution. And it turns out that in our country there are people who are guardians for 200 or 300 or more people at the same time. We remember that a guardian is the person who can initiate reinstatement of capacity process. But will a director use an individual approach in every case attentively observing a person under his guardianship?

Another problem is that we still have in the country medical approach to disability issues including capacity. But there are a lot of types and forms of psychiatric disabilities, limitations and peculiarities. It is impossible today to find two similar cases of disorders. – But Belarusian law pays no attention to this diversity of types of severity of disability because of mental disorders and it doesn’t influence the process of deprivation or reinstatement of capacity. Very often deprivation happens automatically without serious consideration of this decision and understanding the fact that reinstatement will not be possible in some cases in our reality.

According to the specialist relatives who decide to make this step following their today’s needs do not understand the meaning of their actions. Later they understand how difficult it is to reinstate capacity. To do it they need assistance of psychiatrists, lawyers, legal consultants who work in the free legal office of the Office for the rights of persons with disabilities.

- We raise the issue at Accessibility Week 2015 because we understand that this is a systemic issue but not an issue of 2-3 people. This is a problem of our society we face every day and very often we solve it at the expense of a person who carries the burden of disability because of mental disorders. We very often do not think of consequences and are trying to exclude him out of our society. Today it is very important for us to start discussion in order to solve the issue at the level of experts and officials who are able to find a solution, - summed up Sergey Drozdovsky.