The Ombudsperson, Mihail Cotorobai, calls on the Constitutional Court to conduct constitutional review of the legal provisions that prohibit the individuals declared incapable from exercising their right of free access to justice.
The Ombudspersonhas filed a referral to the Constitutional Court. The subject of the referral are the provisions of the Civil Procedure Code, which establish aprohibition for the individuals declared incapable from exercising their right of free access to justice.
Access to justice, equality before the law and protection of everyone against discrimination represent fundamental norms of the international legislation on human rights matters.
Free access to justice must be ensured regardless of the individual’s status and this is translated into the possibility of filing any claims and complaintsto the competent courts of law. It is during the case trial that the legitimacy or illegitimacy of the claims addressed to court would be established.
Contrary to the legal and constitutional regulations, free access to justice by incapable individuals exists only in theory.
Currently, because of the rules that we have challenged in the referral, incapable persons have no procedural civil rights and obligations, and the procedural acts filled in by persons deprived of theirlegal standing are considered void. Adults declared incapable are not able to defend their rights, freedoms and legitimate interests independently before the court. The judge refuses to accept a complaint if the plaintiff and/or the defendant have no use capacity to pursue the proceedings. The judge returns the complaint if filed by an incapable person. The court dismisses the case if the complaint was filed by a person declared incapable.
Consequently, the persons with mental disabilities, declared by a court judgement as having no legal standing, are limited in addressing personally to the court, and the government has not managed to provide them with a proper mechanism for those who want to go to court to claim certain rights.
The Ombudsperson urges the Constitutional Court to carry out constitutional review of the following provisions of the Civil Procedure Code: art.57 par. (2) the phrase “Procedural acts filled in by a person deprived of the use capacity to pursue the proceedings are void”; art. 58 – the phrase “or by adults with limited exercise capacity”; art. 58 par. (21) – the phrase “or adults declared incapable”; art. 58 par. (6) – the phrase “as well as those of adults declared incapableunder the law”; art. 169 par. (1) let. e) – the plaintiff and/or the defendant lack the use capacity, except the cases stipulated in art. 59 par. (2); art. 170 par. (1) let.c) – ”the complaint was filed by an incapable person”; art. 267 let. b) – ”the complaint was filed by an incapable person”; art. 306 par. (2) – the phrase “The issue of summoning of the individualshall be settled depending on the health condition of the individual”.
The right to equality is acknowledged as the right of all humans to be equal in terms of dignity, to be treated with respect and consideration, and to participate in conditions of equality with the others, in any aspect of the economic, social, political, cultural or civic life. The right to equality is applied in all activity areas regulated by law; it is inherent to all humans and may be stated by any person or group of persons who have a common interest in stating this right.
In the context of the commitments made by Republic of Moldova and taking into account the status of absolute right enshrined by the Supreme Law to the right to free access to justice, there is no and there may be no objective and reasonable justification for the limitation thereof. The limitation of such right renders inefficient the government’s efforts to ensuring the rights of the persons with disabilities for purpose of social inclusion thereof, ensuring their participation in all areas of life, without discrimination, alongside other members of the society, based on the observance of the fundamental human rights and freedoms.
The Ombudsperson considers that the limitation of free access to justice for individuals declared incapable through a court judgement, represents an interferenceby lawmakers in the content of this right, which affects the very substance of this right, and this goes against articles 20, 16 and 54 of the Constitution and is incompatible with the covenants and treaties on fundamental human rights to which Moldova is a party.
The Ombudsman underscores that, by the ratification of the human rights treaties and covenants, Moldova committed to observe, promote, and ensure the right to equality in an effective way, and to offer legal protection against discrimination to all citizens living on its territory. The universal acknowledgment and protection of human rights mandates that such rights be equally applied for all individuals. This means that fundamental rights and freedoms shall be acknowledged in respect to all people, without any difference on any grounds, in other words, without discrimination.
Moldova has to make the necessary steps to ensure full effectiveness of the equality right in all government matters. All adequate constitutional, legal, administrative, and other measures need to be taken to enable the enforcement of the right to equality. All proper actions, including legislative actions, should be taken to amend or repeal the existing laws, regulations, and to change the habits and practices that are in conflict or incompatible with the right to equality. Moldova has to promote equality in all relevant policies and programs, and revise the entire legislation to bring it in line with the quality right.