Human Rights Action (HRA) presented the report on deprivation of legal capacity in Montenegro by the author Kosana Beker in the presence of Ombudsman, Mr. Šućko Baković, H.E. Ambassador Aivo Orav, Head of EU Delegation in Montenegro, Mr. Goran Kuševija, deputy minister for labour and social care and Mr. Smail Ismailović, judge of the Basic Court in Podgorica.
Persons deprived of legal capacity are brought into a state of “civil death”, they are deprived of many human rights and find themselves in the position of an object of protection, rather than a person that can make decisions with appropriate support. The Convention on the Rights of Persons with Disabilities (CRPD) calls for the change of awareness about legal capacity of persons with disabilities, the society has to adjust to them and ensure that they enjoy human rights like everyone else, was concluded at the presentation.
Regulations ordering proceedings of deprivation and limitation of legal capacity are incompatible with CRPD, which in Article 12 stipulates that legal capacity cannot be taken away or restricted only on the basis of disability. Also, the case-law analysis has shown that the standard on the right to a fair trial under the European Convention on Human Rights has not been respected in such proceedings.
From a total of 331 analyzed decisions, legal capacity was completely removed in as much as 284 cases (85.8%), the decision on partial deprivation of legal capacity was made in only seven cases (2.1%), and only in one case the legal capacity was returned (0.3%). In 39 processes the proposal for deprivation of legal capacity was withdrawn or rejected (11.8%).
Regarding participation of the person in the process, it is worrying that in over 60% of cases the person was not heard in the proceeding or there is no data about the person being heard. The fact that in 96% of cases there were no objections to the proposal for deprivation of legal capacity indicates potential problems related to legal representation of persons whose laval capacity is at stake. One of the conclusions of the meeting is to provide that in every case of deprivation or limitation of legal capacity a person should be represented by a lawyer and provided with free legal assistance, as has been already provided in the procedure of compulsory hospitalisation.
Several laws and regulations need to be harmonised with CRPD as soon as possible, but in the meantime all relevant international standards should be directly applied, in accordance with Article 9 of the Constitution of Montenegro.
The report was presented within the project “Beyond exclusion – effective rights for mental health patients” implemented by the Human Rights Action (HRA), Center for Women and Peace Education ANIMA and Mental Disability Advocacy Center (MDAC) and supported by the European Union and Kotor Municipality.