DENIAL OF LEGAL CAPACITY FOR PERSONS WITH MENTAL DISORDERS IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

Legal capacity has a key role in the exercise of majority of human rights. Legal incapacitation of adults should be applied only in exceptional cases of severe mental incapacity verified by objective medical expertise, subject to regular medical-judicial revision. The UN Committee on Rights of Persons with disabilities went even further and recommended to States Parties to abolish in law and practice the deprivation of legal capacity on the basis of impairment, and introduce supported decision-making schemes. Absolute deprivation of legal capacity for persons with mental disabilities without proper safeguards and medical examination could lead to a breach of their fundamental human rights and dignity. The main research focuses on the legal analysis of the case law of the European Court of Human Rights and the most relevant international legal instruments on the (non)denial of legal capacity for persons with mental disorders. Two legal questions are particularly relevant – the first whether the (frequent) use of absolute deprivational of legal capacity has a legal basis in international legal instruments. Second one is analysis of the European Court case law on the safeguards necessary to align legal incapacitation of persons with mental disorders from the perspective of protective tool aimed to achieve benefits to the provisions of Convention on Rights of Persons with Disabilities and the ECHR.