It will be easier for the frauds to take flats away from the mentally ill

The Russian Government intends to endow the citizens with mental disorders with the right to independently enter into deals and to perform other juridically valid actions – the court will fix the list of allowed actions. Such are the amendments, which are planned to be made to Article 29 of the Civil Code. The changes are prepared for the second reading of the set of the President’s amendments to the CCRF (“Izvestia” has the text of the Government-suggested amendments) in November.

According to the Government’s intention, not only the guardian of the citizen, who is ruled incapable for the reason of a mental disorder, but also the mentally ill himself, will be able to complete transactions and be liable for them with his own property. The court will define the extent of the person’s liberty in the decision to rule the person incapable. The ill person himself cannot request the court to perform such partial rehabilitation – family members, guardians and tutelage authorities have such right.

As a source in the state Institute of Legislation and Jurisprudence (ILJ, made the first draft of the Presidential amendments to the CCRF) told “Izvestia”, the amendment on the rights of the mentally ill was developed by the Ministry of Justice after the Constitutional Court’s decision on the case of Irina Delova.

Irina Delova, disabled since her childhood, lived in a psycho-neurological home for disabled in Saint-Petersburg. In 2010, she was ruled incapable and could not dispose of her pension any more. When the court adopted such ruling, it acted on the basis of the current Civil Code, according to which a citizen may only be ruled completely incapable – despite the experts’ opinions, who concluded that I.Delova was completely able to take decisions on the level of everyday deals.

I.Delova’s advocate Dmitry Bartenev explained to the Constitutional Court, where I.Delova had filed a complaint on infringement her rights: “While my client’s intellect has been steadily deteriorating, she has disposed of her pension for her entire life, she was able to buy foodstuff, clothes, give gifts to her close ones”.

Earlier this summer, the Constitutional Court has considered I.Delova’s complaint, who claimed that such situation was infringing on her rights, and decided that amendments to the law were required and should be made before January 1st of 2013 – “for the purpose of the most complete protection of rights and interests of the persons suffering from mental disorders”.

Members of the Constitutional Court are convinced that the rights of the mentally ill should be differentiated according to their actual ability to understand the meaning of certain actions.

However, not everything is that easy and humane. According to the specialists inquired by “Izvestia”, should the amendments elaborated by the Ministry of Justice be adopted, this may be detrimental to the mentally ill citizens themselves.

Advocate Tatiana Starikova, Head of Private Clients Practice of the Law Firm "YUST", gave the following commentary on the matter.

The provisions of Article 29 of the CCRF, which govern the issues of ruling a citizen incapable and the consequences of this, are among the most “stable” of the changed and expanded (sometimes frequently) provisions of the Civil Code.

According to the expert, the very fact that the lawmakers have given their attention to the issues, which became topical for many people years ago, who have faced numerous problems of practical application of said Article, is a step towards reforming not only the so-called “business provisions” of the Civil Code, but also those provisions, which directly affect the rights and interests of the citizens not only in the sphere of business activity they perform.

Still, the advocate goes on, the amendments to part of Article 29 of the CCRF in their present form are only an attempt to follow the instruction by the Constitutional Court of Russia, which was formulated in the recent Resolution No. 15-П dated 27.06.2012:

“Since the existing civil law system does not enable to differentiate the civil law consequences of the citizen having a mental disorder, when it is decided if the citizen is capable or not, so that such consequences would be adequate to the actual degree of weakening of the ability to understand the meaning of his actions or to control them… the federal lawmaker should, as it is required by the Constitution of the Russian Federation and taking into account this Resolution, before January 1st of 2013, make the necessary amendments to the existing civil law regulation for the purposes of the most complete protection of rights and interests of the persons suffering from mental disorders”.

Unfortunately, when the lawmaker was executing the instruction of the Constitutional Court of Russia, it did not thoroughly study the problems of practical application of Article 29. Also, it did not take into account that a citizen may lose the possibility to understand the meaning of his actions and control them (juridical criterion) not only as a consequence of a mental disorder (medical criterion), but also as a result of a coma, paralysis, other physical states, which prevent the person from perceiving and expressing his will. According to the texts of medical scientists, said physical states are not similar to the states classified as mental disorders. This means that a living paralyzed person, who has suffered grave injuries, remains de jure capable and may fully be considered a subject of civil law relations, be brought to criminal and administrative liability etc. There are enough examples of the consequences of such ambiguity, when relatives of a wealthy person, who is de facto incapable, are unable to even pay for his treatment as they have no access to his funds. Or when the so-called “black realtors”, who receive from the district polyclinic information on lonely “capable” pensioners, “assist” them in completing transactions of alienation of the flats owned by them.

T.Starikova is of the opinion that the suggested edition of part 2 of Article 29 of the CCRF does nothing but expand the limits of the “court’s discretion” towards completion of deals by the persons affected by various mental disorders, and does not resolve the problems of civil law, which governs the matters of capability of the citizens. The amendments leave the “points of tenderness”, which are already ripe, beyond the scope of the reform.

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