A recent study by the Seimas Ombudsmen revealed that after the ongoing review of the incapacity of individuals, there are still more than 1,600 incapacitated individuals in the country, whose rights have so far been unduly restricted. These particularly puzzling findings and other loopholes in the legal review procedure were presented by the Seimas Ombudsmen’s Office in a report in which the Seimas Ombudsman commented on a particularly inefficient implementation of the incapacity review procedure.
Augustinas Normantas, head of the Seimas Ombudsmen’s Office, points out that while visiting incapacitated persons in places of deprivation of liberty, doubts arose over quality of implementation of the law, which stipulates that court judgments issued until 1 January 2016 regarding the declaration of persons to be incapacitated must be reviewed within two years. After noticing that the rights of the majority of persons in places of deprivation of liberty are still unreasonably restricted, the Seimas Ombudsman decided to find out what were the reasons for the inefficient implementation of the incapacity review procedure.
“The limitation of a person’s rights must be lawful and limited to a legally reasonable period of time. It also should be emphasised that the person’s right to apply to the court regarding a review of his/her incapacity is one of his/her most important rights. The decision to declare a person incapacitated may result in restriction to realize all of his/her other rights and freedoms; therefore, such deprivation of legal capacity of a person is considered to be a particularly serious restriction of his/her rights and a person can be declared incapacitated only in very special cases,” observes the Seimas Ombudsman Augustinas Normantas.
The Seimas Ombudsman is disappointed that the investigation revealed that, in fact, only less than half of cases of incapacitated persons were reviewed within the set two-year deadline. The report also notes that caregivers of incapacitated persons were not adequately informed about the ongoing process and objectives of the incapacity review and that municipalities were not prepared to provide the information and assistance they needed at the time. Moreover, the municipalities themselves did not initiate the legal action procedure in the absence of the guardians’ duty to apply to the court for review of incapacity. The investigation also revealed that data on incapacitated persons is still processed differently in different municipalities, and the municipalities themselves explained that they had difficulties in obtaining data from the Center of Registers on incapacitated persons throughout the review period. The difficult access to data and the unclear procedure for review of incapacity, which remained for a year, were often cited as one of the main reasons for impeding the proper and timely implementation of the envisaged procedure.
“There is no uniform practise in the country for collecting, pooling and systematizing data on incapacitated individuals, and some municipalities do not collect such data at all. For example, one municipality has stated that, according to the data provided by the Register, there are only six persons declared incapacitated in the municipality until 2016. However, according to the municipality’s own data, there may be as many as thirty-six or more of such persons,” regrets the Seimas Ombudsman.
The Seimas Ombudsman also noted that the State, which delegated additional functions to municipalities during the period of incapacity review, did not foresee or allocate required additional funds, which had a particularly negative impact on the quality of the ongoing review procedure. The investigation also revealed that state-appointed attorneys often did not even visit incapacitated persons, did not meet with them, and the persons had to wait up to a year and a half for designated forensic psychiatrists.
Deeply disappointed with the investigated incapacity review procedure, the Seimas Ombudsman drew the attention of the Government and the Ministry of Social Security and Labor to the urgent need for a qualitative review of all court decisions declaring incapacitated persons up to now. Summarizing the investigation, the Seimas Ombudsman not only noticed that during the procedure, the effective protection of the rights and freedoms of incapacitated persons was not ensured, but at the same time it resulted in excessive restrictions on their rights and freedoms.
The Seimas Ombudsmen protect a person‘s right to good public administration securing human rights and freedoms, and supervise fulfilment by state authorities of their duty to properly serve the people. The Seimas Ombudsmen also conduct national prevention of torture in places of deprivation of liberty in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Seimas Ombudsmen’s Office is a national human rights institution accredited by the United Nations.