Validity Foundation - Mental Disability Advocacy Centre

Romanian Constitutional Court says plenary guardianship is unconstitutional

By Erzsébet Oláh 30th July 2020

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This month, the Constitutional Court of Romania declared that Article 164(1) of the Civil Code addressing ‘judicial interdiction’ for adults with disabilities is unconstitutional. Judicial interdiction is a legal term that is also known as ‘full guardianship’ or ‘plenary guardianship’ under which adults with disabilities are denied the right to make decisions about their own lives and a substitute decision-maker is appointed to make choices on their behalf.

Article 164(1) of the Civil Code of Romania states that “a person who does not have the necessary mental capacity to take care of personal affairs, because of mental alienation and mental debilitation, will be put under judicial interdiction.” This provision stipulates that legal incapacity and the automatic deprivation of decision-making rights stem from a person’s diagnosis, disability category, or lack of mental capacity. The Constitutional Court found that judicial interdiction is unconstitutional since it contravenes Romania’s obligation under Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD). Article 12 addresses the right of persons with disabilities to equal recognition before the law and requires States Parties to the CRPD to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.”

Romania was under an obligation to immediately abolish Article 164(1) of the Civil Code upon ratification of the CRPD. According to a press release of the Constitutional Court, the system of judicial interdiction violates the fundamental rights and liberties of people placed under this highly restrictive regime. Additionally, the Court found that the judicial interdiction violates fundamental rights because it fails to differentiate different degrees of incapacity, take into account the diversity of individual interests, it has no pre-established time period, and it is not subject to regular review. The Court emphasised that “lack of capacity can take a variety of forms” and proportionality is missing from the current legal capacity legislation.

The applicant in this Constitutional Court case was represented by Constantin Cojocariu, a well-known Romanian lawyer. Validity Foundation considers this decision of the Constitutional Court as progressive; however, this decision still allows for more sophisticated guardianship regimes based on substituted decision-making, regular judicial review, and limited time in contravention of the CRPD. The CRPD Committee made it clear in its General comment No. 1 (2014) on  Article 12: “States parties’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with article 12 of the Convention” (para 28).

In 2017, Validity submitted an Amicus Curiae in this Constitutional Court case and stressed that, in light of the CRPD, governments must develop legislation that recognises the right to equal legal capacity for persons with disabilities by changing the approach from substituted decision-making to schemes of supported decision-making. Similarly, the Bucharest-based human rights organisation, the Centre for Legal Resources lodged an Amicus Curiae in support of the applicant and pointed out that legal guardianship does not comply with the requirements of the CRPD to which Romania is a party since 2010.

In  monitoring implementation of the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania before the European Court of Human Rights (ECtHR), the Committee of Ministers of the Council of Europe has already held that “the current forms of protection available – guardianship – entails incapacitation and thus deprives the protected persons of the exercise of civil and political rights.” Standards of the ECtHR and the CRPD are not in line with each other: while the ECtHR allows for protection of persons with disabilities through partial type of guardianship measures, the CRPD calls for abolition of all types of substituted decision-making regimes including partial guardianship. Legal capacity legislations must be based on an equal presumption of legal capacity for everyone and provide support and adequate accommodations for the exercise of legal capacity.

The ruling of the Constitutional Court comes at a time of great concern related to the human rights of persons with disabilities in the country. Romania’s Ombudsperson has drawn attention to recent cases of rights violations affecting people with disabilities. A lack of preventive measures and adequate care for people with disabilities amid the COVID-19 pandemic made visible irregularities in cases such as the situation in the Sasca Mică Psychiatric Rehabilitation and Recovery Center of Suceava, where 240 from the total of 300 beneficiaries residing in the center were found to be COVID-19 positive. The Ombudsperson released new information in relation to an allegation according to which clinical trials had been carried out on ‘psychiatric patients’ admitted to the Vulcan Section of the Psychiatric and Neurologic Hospital in Brașov. The Ombudsperson found that documentation on the consent from people held at this unit did not exist. The Centre for Legal Resources had previously raised awareness in a 2010 report related to clinical trials on persons with disabilities in relation to this very hospital where medical consent was given by the guardian of a person with disabilities under guardianship.