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

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Presentation on theme: "The right to legal capacity: guardianship at the ECHR Jan Fiala Disability Rights Center (DRC) Budapest, Hungary."— Presentation transcript:

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 1. Human rights implications of guardianship 2. What is happening in practice 2. What is happening in practice 3. How does current ECHR standards help us to reach the level of the CRPD? 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 People not heard by courts No meaningful legal representation No meaningful legal representation Decisions not delivered Decisions not delivered Restrictions on the access to court Restrictions on the access to court Open prejudice by judges Open prejudice by judges Experts assessment – determines the outcome Experts assessment – determines the outcome

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

5 Human rights implications 3 – implications for other rights Right to vote Right to vote Right to family life (adoption of own child) Right to family life (adoption of own child) Right to assembly Right to assembly Access to courts Access to courts Right to property Right to property Freedom from torture (ECT) 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? If all the previous problems were corrected, would guardianship be acceptable? When is guardianship a legitimate intervention? When is guardianship a legitimate intervention?

7 What is happening? No legal standard of capacity (CEE) No legal standard of capacity (CEE) No psychiatric methodology for the assessment of capacity No psychiatric methodology for the assessment of capacity Determining factors: luck, social situation, diagnosis-based prejudice 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 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 It is a means of intervention in social crises situations The reasons are often unrelated to the persons abilities (death of carers, requirements of service providers) The reasons are often unrelated to the persons 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 Prohibition of plenary guardianship – Shtukaturov v. Russia, Alajos Kiss v. Hungary, X v. Croatia Sometimes the aims get questioned – Salontaji-Drobnjak v. Serbia Sometimes the aims get questioned – Salontaji-Drobnjak v. Serbia

10 Where can we move? Disability neutral alternatives – Adult Protection Laws Disability neutral alternatives – Adult Protection Laws Less restrictive alternatives: lasting powers of attorney, advance directives, supported decision-making 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 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) Services necessary to deal with legal matters (applying for job and social benefits, dealing with public administration) Specific services to assess less restrictive alternatives Specific services to assess less restrictive alternatives

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

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

14 The right to legal capacity: guardianship and the ECHR Thank you for your attention! Jan Fiala Jan Fiala Disability Rights Center (DRC) Disability Rights Center (DRC) Budapest, Hungary


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