Kai kurie Lietuvos teisės aktuose įtvirtinto neveiksnumo instituto probleminiai aspektai
Some Problematic Aspects of Legal Regulation of the Institution of Incapacitation in Lithuania

Summary/Abstract: In recent years many European countries revised their national institutions of incapacitation in the light of the United Nations Convention on the Rights of Persons with Disabilities, which was adopted in 2006 December 13. Although in Lithuania this Convention entered into force in 2010 September 17, the real situation of incapacitated persons so far has not changed, though the State has taken some steps to improve the situation of these persons. Given the fact that some of the problematic aspects of the national institution of incapacitation does not meet even the basic human rights standards, it is necessary to reform this institution into institution of protection of human rights and interests, rather than an institution of oppression. Among the key aspects of this reform are to be the establishment of the category of limited capacity for adults with mental disabilities and granting the right to apply to court for review of the status of legal capacity as well as other procedural guaranties in the procedures relating the status of incapacity. The analysis of the jurisprudence of the European Court of Human Rights and the doctrine of the Constitutional Court of the Republic of Lithuania, also the regulatory review of the international human rights instruments shows that the absence of the category of limited capacity for adults with mental disabilities disproportionately restricts the right to an inviolability to the private life, which is enshrined in the Article 22 of the Constitution of the Republic of Lithuania, Article 8 of the European Convention on Human Rights, as well in the Article 17 of the International Covenant on Civil and Political Rights. Undoubtedly, such legal regulation also violates the Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. The legal regulation of the category of limited capacity in other European countries shows that there are less restrictive means for the protection of the rights of the persons with mental disabilities. Considering the strict doctrine of the Constitutional Court on the absoluteness of the right to apply to the court, it has to be recognised that the absence of the right to apply to a court for review of the status of legal capacity for an incapacitated person violates the right to apply to the court guaranteed under Article 30 of the Constitution. The case law of European Court of Human Rights on this question shows that such legal regulation violates Article 6(1) of the European Convention on Human Rights. This provision of Civil procedure code also violates the only universally recognized as an absolute right – human dignity and disproportionately restricts the right to freedom and personal inviolability. Undoubtedly, this provision also violates Article 12(4) of the United Nations Convention on the Rights of Persons with Disabilities. Denial of other procedural guaranties in the procedures relating the status of incapacity is inconsistent with the requirements of the Article 6 of the European Convention on Human Rights, this is proved by the decision of the European Court of Human Rights in the case D.D. v. Lithuania. Although there were some initiatives to change the criticized legal regulation and it shows ambitions of the State to improve the legal status of incapacitated persons, but these draft laws were returned for promoters to improve, because they did not correspond to the requirements of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities. That‘s why it is necessary to improve these draft laws as soon as possible by taking into account successfully running reforms of institution of incapacitation in other European countries.

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