Helsinki Citizens' Assembly-Vanadzor

Input for the report of the Independent Expert on the enjoyment of all human rights by older persons on legal capacity and informed consent of older persons to the 57th session of the Human Rights Council

March 4, 2024

Activities | Reports|Information Papers|Brochures | Joint | Publications

Key questions and types of input/comments sought
Legal, policy, and institutional frameworks

 

 

The practice of recognizing a person as legally incapacitated persists in the Republic of Armenia. Having psychosocial disabilities is grounds for recognizing a person as legally incapacitated (defined under Question 2). Thus, an older person with psychosocial disabilities can also be recognized as legally incapacitated in a procedure prescribed by the legislation of the Republic of Armenia.

 

Moreover, as the Republic of Armenia Government states, the number of older persons with
psychosocial disabilities is increasing, but there is a lack of specialized services․ In addition, dementia, which is common among older persons in Armenia, is underdiagnosed and people are underiformed about it due to stigma and lack of education.

 

Armenia is considered an aging country: as of 2022, the number of persons aged 65 and above made up 15.8% of the total population. Thus, older persons are a vulnerable group in terms of having persons with psychosocial disabilities and being recognized legally incapacitated on that ground.
This is also evidenced by results of studies of judicial cases. In particular, 21,5% of those recognized legally incapacitated in 2018-2020 were persons aged above 61.

 

1. Is there national legislation or a policy framework that addresses issues of decisionmaking autonomy, legal capacity and informed consent for older persons?


a. If so, what is the scope of these provisions?
b. To what extent were older persons meaningfully engaged in developing and refining these frameworks?

 

In 2020, the action “to ensure participation of persons with mental, including intellectual disabilities, in all decision-making processes related to themselves” was included in the Action Plan of 2020-2022 National Strategy for Human Rights Protection. In 2021, Helsinki Citizens’ Assembly-Vanadzor, jointly with Open Society Foundations-Armenia and Protection of Rights without Borders NGO, submitted a recommendation to the RA Ministry of Justice, which was fully accepted and formulated in clause 47.1. In particular, under the RA Government’s decree N 1030-L, the above-mentioned action was reformulated the following way, “to assure the right of persons with psychosocial disabilities to make decisions on matters concerning themselves”. Implementation of that action was supposed to entail adoption of legislation on supported decision-making and introduction of a supported decision-making mechanism. However, not only was the action not implemented, it was further not included in the new, i.e., 2022-2024 Action Plan.

 

2. Does national legislation allow for the deprivation of legal capacity, guardianship (or other forms of substitute decision-making) and/or involuntary treatment or placement e.g. in health and care settings on the basis of age alone or in combination with other grounds?


a. Under which circumstances/what type of assessment or criteria are used?
Article 31 of the RA Civil Code establishes that a citizen who, as a result of mental disorder, cannot realize the meaning of their actions or control them, can be recognized by the Court as legally incapacitated as prescribed by the Civil Procedure Code of the Republic of Armenia. Guardianship shall be established over them.

 

Adopted in 2020, the RA Law “On psychiatric aid and service” also enshrines a provision on involuntary hospitalization and treatment.4 The Law establishes that when providing psychiatric aid and service, the opinion of the relevant person recognized legally as incapacitated must be recorded.5 At the same time, the Law does not establish effective guarantees for a person recognized legally incapacitated to express their informed opinion,
and exclude possible abuse.

 

Consent for treatment is often of formalistic nature. For instance, a person is “obliged” to give consent, as it is the precondition for being released from a psychiatric institution sooner, notes about consent are not properly recorded in the medical history, courts do not justify and substantiate decisions. In case of persons recognized as legally incapacitated, there is a high likelihood of a guardian’s personal interest, when a person’s involuntary hospitalization
and treatment is not linked to their health condition. We can state that persons recognized as legally incapacitated are in a more vulnerable situation in terms of being subjected to involuntary treatment factually or as prescribed by law.

 

It is also problematic that for placement in a care institution there is a requirement to be recognized as legally incapacitated. In particular, Article 30 of the RA Law on Social Support specifies that in case a person (their legal representative) rejects social support, they shall be placed in an institution of social protection of population, if they do not receive the necessary care and 1. are unable to independently meet their basic needs due to loss of self-service skills and/or skills of active movement or 2. have been recognized as legally incapacitated as prescribed by law.

 

Based on the conclusion of the territorial authority, the guardianship and trusteeship body makes a decision regarding placement of a person in an institution of social protection of population without their or their legal representative’s consent. In such conditions, a person recognized as legally incapacitated can be placed, for a long or indefinite term, in a 24/7 care institution without further review of placement terms.

 

3. Are there national laws that establish a right to supported decision-making for older persons and measures to ensure effective access to supported decision-making services?
a. Do other legal safeguards for the full exercise of legal capacity in old age exist in your country?

 

In 2021, with the support of Open Society Foundations-Armenia, a group of experts carried out a study analyzing restriction of the right of persons with psychosocial disabilities to legal capacity, as well as legislative and practical issues of mechanisms of protection and control of rights and interests of persons recognized legally incapacitated, and reasons for recognizing persons as legally incapacitated. Based on the study, recommendations were submitted to competent policy-developing authorities regarding protection of the right to legal capacity for persons with psychosocial disabilities and assuring their right to make decisions concerning themselves.

 

Based on the study and submitted recommendations, in 2022 the RA Ministry of Labor and Social Affairs developed a draft RA decree “On approving the action plan for reviewing legal regulations of the practice of deprivation of legal capacity and introducing a supported decision-making mechanism”, which was, however, withdrawn from circulation shortly.

 

Data and impact


4. What (formal and informal) challenges do older persons face in the exercise of their legal capacity and in which contexts?
5. What are the human rights impacts faced by older persons as a result of being deprived of legal capacity?

 

Having been recognized as legally incapacitated, a person is deprived of the opportunity to exercise the following rights in Armenia:

 

  • the right to liberty and security: a person recognized as legally incapacitated can be placed, without their consent, in a psychiatric and/or 24/7 care institution;
  • the right to personal and family life: according to the RA Family Code, marriage conclusion is prohibited between persons, at least one of whom is recognized legally incapacitated by court , while a concluded marriage can be terminated based on an application by the guardian of the spouse recognized incapacitated;
  • the right to property: according to the RA Civil Code, a person recognized as incapacitated is deprived of their property rights and the opportunity to participate in civil-legal transactions;
  • labor rights: according to Article 17 of the RA Labor Code, in the sense of the Code, an employee is the capable citizen having attained the age defined by the Code who performs certain work for the benefit of the employer based on certain profession, qualification or in a certain position according to an employment contract. In these conditions, without a proper assessment, a person recognized as legally incapacitated is also deprived of the opportunity to obtain means for their own living, which leads to economic dependence on others. This also generates a risk that legally incapacitated persons might be involved in illegal and also enforced labor;
  • participation in political and public life: the RA Constitution envisages a restriction for persons declared as having no active legal capacity on their right to elect and be elected. A similar provision is also enshrined in the RA Family Code;
  • the right to judicial protection: having been recognized as legally incapacitated, a
    person is deprived of the right to access to court without an intermediary. A legally
    incapacitated person can only apply to Court to claim restoration of their legal
    capacity.

 

6. Are there national surveys or other information about experiences of older persons deprived or at risk of being deprived of their legal capacity? If available, please provide figures and data.

 


No separate statistics is held with regard to persons recognized as legally incapacitated in Armenia, and there is even no data regarding the number of persons recognized as legally incapacitated. Researchers need to observe judicial cases to collect data, which has been available only since 2008.

 

Intersectionality
7. How do other factors (i.e., gender, sex, race, ethnicity, language, Indigenous identity, disability, sexual orientation, gender identity, religion, social status, place of origin and immigration status) impact the enjoyment of older persons’ right to legal capacity?

 


8. How do these factors influence the human rights impacts faced by older persons as a result of being deprived of legal capacity?

 

Access to justice
9. What channels exist for older persons to seek redress for the denial of their right to exercise their legal capacity or informed consent?

 

There are very limited and inaccessible opportunities for redress. A person with no active legal capacity does not have access to court without an intermediary. In rare cases, if a person is informed, they apply to human rights organizations which can represent their interests in court free of charge. However, those cases can last years. For instance, in one case, after exhausting all domestic instances, in 2014, an application was lodged with the European Court of Human Rights regarding recognition of that person as legally incapacitated and the entailing violation of a number of their rights. In 2019, the Court recorded that there has been a violation of Article 6 § 1 of the Convention as regards the applicant’s right of access to a court as regards both the termination of the divorce and eviction proceedings and the applicant’s inability to seek restoration of legal capacity and a violation of Article 8 of the Convention as regards the deprivation of the applicant’s legal capacity.14 Thus, the process of restoration of violated rights and redress lasted more than 5 years, moreover, the concerned person died before the judgment was issued.

 

Access to information and awareness

 


10. Do older persons have access to information provided in an accessible way regarding options to manifest their choice, to support them and to prevent abuse in their decision-making process?

 


Decisions regarding older persons and information regarding their rights are not properly delivered to target groups. Public servants, service providers and other specialists dealing with older persons do not have sufficient communications skills, which also deprives older persons of the opportunity to be informed about their rights.

 

Access to support measures and services

 


11. Please provide examples of good practices for providing support and preventing abuse to the exercise of legal capacity and informed consent among older persons, including support services, legally binding advance directives to express their will and preferences and legal counsel, among others.
12. Please provide information on the availability and limitations of such measures (e.g. available only on specific settings, accessibility, affordability, etc)

 

According to part 2 of Article 251 of the Civil Procedure Code of the Republic of Armenia, the person being recognized legally incapacitated or the person applying to court to claim restoration of legal capacity is entitled to use the public defender’s services in case of not having an advocate. Nonetheless, study of judicial cases evidences that judicial representation of persons subject to being recognized incapacitated is mainly of formalistic nature. The public defender objected to lodged applications in only 8% of examined judicial cases.

 


Since 2018, public groups of observers have been functioning in Armenia and monitoring psychiatric and care institutions. These groups are composed of civil society representatives. Members of the groups regularly visit closed institutions (homes for older persons, care institutions, orphanages), meet persons receiving care/treatment there, view documents upon their consent, organize rapid visits in case of urgent information, and, in addition to awareness raising, if necessary, support persons in institutions to exercise and/or restore their rights.

 

 

This information was prepared by Helsinki Citizens’ Assembly-Vanadzor, Democracy Development Foundation and “Protection of Rights without Borders” NGO. The information was compiled based on results of the Organization’s activity, including studies and monitoring. The research “Securing of the right to legal capacity of persons with psychosocial disabilities” is also among sources of this information. The research was carried out by a group of experts with the support of Open Society Foundations-Armenia (Helsinki Citizens’ Assembly-Vanadzor and “Protection of Rights without Borders” NGO representatives were also involved in the group of experts).
views: 236

Leave a Reply

Your email address will not be published. Required fields are marked *

Feedback

Select the relevant connection

  • Font size
    A A A
  • Font
    arial verdana tahoma
  • Thickness
    regular light bold
  • Spacing
    1px 2px 3px
  • Color scheme
    Black on a white background White on a black background
  • Background color
  • Text color