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The Exclusion of People Declared Incapable from the List of Beneficiaries of the “Protected House” Service – Unconstitutional
On 7 March 2017, the Constitutional Court of Moldova delivered a judgment on an exception of unconstitutionality of certain provisions of the Framework Regulations on the set-up and operation of the Social Service “Protected House,” approved by Government Decision no. 711 of 9 August 2010.
Circumstances of the case
The case originated in an exception of unconstitutionality of the phrase “is not declared by the court of law as incapable” of para. 3.1 of the Framework Regulations on the set-up and operation of the Social Service “Protected House,” raised by lawyer Doina Ioana Străisteanu in case no. 3-244/2016 pending before the Court of Bălți City. According to this challenged provision, persons with mental disabilities who were declared incapable by the court of law cannot be beneficiaries of the Social Service “Protected House.”
The author of the exception of unconstitutionality alleged that the challenged provision, when excluding from the category of beneficiaries of this social service the persons declared incapable, does not ensure the access of the persons with mental disabilities to measures of adequate protection, which infringes upon Articles 16, 27, 28, 29, 34, 36, 37, 46, 47, 51, 53 and 54 of the Constitution.
The complaint was examined by the Constitutional Court in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEŞU,
Mr Igor DOLEA,
Mr Tudor PANȚIRU,
Mr Veaceslav ZAPOROJAN, judges.
Conclusions of the Court
Hearing the reasoning of the parties and examining the casefiles, the Court noted that Art. 51 of the Constitution provides for the right of the persons with disabilities to enjoy a special protection on behalf of the entire society, aimed at ensuring their effective participation in community life.
In its caselaw, the Court underscored the need for as much autonomy as possible to be granted to persons suffering from mental disorders in the undertaken activities and measures, in line with international acts in this field (Judgment no. 27 of 13 November 2014).
In this regard, according to the provisions of the UN Convention on the Rights of Persons with Disabilities, the States Parties to this Convention shall recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community.
The Court found that, in line with international provisions, the Law no. 60 of 30 March 2012 on social inclusion of persons with disabilities provides for persons with disabilities to benefit from primary, specialised and highly specialised social services, designed for rehabilitation and social inclusion.
The Court observed that the Government’s approval of the framework regulations on the set-up and operation of the Social Service “Protected House” aims at ensuring social and professional integration of persons with mental disabilities into the community, and provides conditions for skills to be acquired by them for an autonomous life.
At the same time, the Court found that there is no access granted to the Social Service “Protected House” for the persons who, following a mental disorder, were declared incapable by a court of law.
The Court noted that, despite the goal of the service being the integration of persons with mental disabilities into the community, persons declared incapable by a decision of a court of law were deprived of the possibility to benefit from this service.
The Court underlined the need for a distinction to be operated into having declared a person incapable, on the one hand, and the work of social services on the other hand. Whereas the former aims at protecting the person with disabilities against that person’s own acts and actions, or of third parties that may prejudice the rights and interests of persons with mental disabilities, social services aim to develop the autonomy of the person and at ensuring social inclusion of persons with disabilities.
At the same time, the Court found that according to the challenged provisions, upon granting protected houses there is a committee established, composed of specialists in the field, which examines each case individually. A decision is then made on including the person into the service only following the issued conclusions and recommendations of the committee.
In Judgment no. 33 of 17 November 2016, the Court held that there may be deprived of legal competence only persons who manifest a complete lack of mental capacity, when other less restrictive measures of protection prove to be inefficient. At the same time, the Court mentioned that depriving someone of legal capacity may not deprive the person entirely from the right to conclude minor legal acts or to exercise other activities inherent to his personality, and the legal representative shall consider the preferences of the person.
In the context of the abovementioned, the Court held that limiting the access of a person declared incapable to the Social Service “Protected House” does not resonate with the positive duty of the State to take the necessary measures in ensuring the effective participation of persons with mental disabilities to community life, which is in breach of Articles 16 and 51 of the Constitution.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court of Moldova:
1. Declared admissible the exception of unconstitutionality raised by the lawyer Doina Ioana Străisteanu in the case no. 3-244/2016, pending before the Court of Bălți City.
2. Declared unconstitutional:
- The phrase “is not declared incapable by the court of law” of the para. 3.1;
- Para. 56.2;
- The phrase “limiting the capacity or declaring incapable the beneficiary by the court of law” of para. 57
of the Framework Regulations on the set-up and operation of the Social Service “Protected House,” approved by the Government Decision no. 711 of 9 August 2010.
This Judgment of the Constitutional Court of Moldova is final, cannot be subject to appeal, enters into force upon its delivery and is published in the Official Journal of Moldova.
This press-release is also available in Romanian language.