Procedural aspects of declaring an individual incapacitated

Abstract

This study is devoted to the analysis of the institution of recognizing a natural person as incapacitated in Ukraine, covering its procedural features, standards of proving mental state and assessment of the effectiveness of the implementation of the decisions of the European Court of Human Rights. The goal is also to identify systemic problems and develop ways to eliminate them.

The procedure for recognizing a person as incapacitated is considered as a separate proceeding of a social and protective nature, which is autonomous from the disputed legal relations. It is aimed at establishing the legal status of a person, and not at resolving an intersubjective dispute. Such a jurisdictional regime differs significantly from the general rules: the Supreme Court established that in such cases the court of first instance takes on an active (investigative) function in collecting evidence, in particular by ordering a mandatory forensic psychiatric examination, departing from the classical principle of adversarial proceedings.

Key procedural guarantees of individual rights that are a direct consequence of the implementation of the ECHR requirements (in particular, the decision in the case of "Natalia Mykhailenko v. Ukraine") include the mandatory participation of a lawyer (provided through the system of free legal aid) and limiting the term of validity of the decision on incapacity to two years. The specified implementation also ensured the right of the incapacitated person himself to apply to the court with an application for restoration of legal capacity.

Analysis of the law enforcement practice revealed critical systemic problems. These include the financial barrier in paying for forensic psychiatric examinations, which contradicts the state guarantee of free treatment and limits access to justice. There is uncertainty about the circle of applicants due to the inexhaustible list of "family members" in civil procedural legislation, which causes procedural delays. The status of persons declared legally incompetent before 2017 (indefinite-term decisions) also remains unresolved, requiring a legislative obligation to review them to eliminate the structural violation of Convention rights.

Further reform of the institution should be aimed at removing financial and procedural barriers, ensuring proper review of “historical” decisions, and individualizing the duration of decisions depending on the diagnosis. Such measures will ensure full harmonization of national legislation with European human rights standards.