Legal incapacitation is a legal structure of private law which enables exclusion some people from conduct of legal transactions because of their own interest. Biological prerequisites of legal incapacitation are: mental disease, oafishness or other mental disorder (drunkenness, drug addiction). Simultaneously, there has to appear a psychological prerequisite – lack of possibility to control self conduct or need of somebody’s help in conducting own interests (article 13 and 16 of Polish civil code).
Unfortunately, the public law very often enact provisions that require to have all civil rights. Meanwhile, the court deciding on legal incapacitation, completely doesn’t take into account the consequences of its decision on the ground of public law. For interested person it means lack of access to public service, loss of the capacity to be a subject of rights and duties of administrative law or disenfranchisement.
Voting constitute the essence and the foundation of democracy. Such an understanding of voting rights is also characteristic of European Court of Human Rights. The ECHR in judgments Hirst v. United Kingdom, Mathieu-Mohin and Clerfayt v. Belgium declared against the limitation of the universal character of voting rights and emphasized that they play an important role in the system of human rights protection on the ground of European Convention of Human Rights.
In Polish law the voting rights have been put on the same footing with having disposal at somebody’s own property. But by voting there is no possibility of undertaking the wrong decision by the incapacitated person that could be against their own interest. Moreover, deprivation of voting rights results in the fact that the needs of this social group will not be taken into account by the politicians.
The newest and the most detailed international legal document concerning the above issue contains Convention on the Rights of Persons with Disabilities (A/RES/61/106) which entered into force on 3 May 2009 r. (it’s a binding law inter alia in Germany and United Kingdom; Poland has not ratified it yet). On the ground of the Convention the incapacitated persons are disabled people who should be treated in the same way as every disabled person. According to the Convention depriving them of their voting rights constitutes a form of discrimination. Article 29 of the Convention emphasize that States Parties shall guarantee political rights to persons with disabilities, for example the right to vote and be elected.
Will the change come from outside?
The public discussion concerning the rights of incapacitated persons shall head in different direct than hitherto. The proposal of Polish Ombudsman from July 2009 demanding the obligation of submitting by the candidates the certificate of their mental health should be evaluated negatively. Mental diseases characterize different level of intensity, process and symptoms. Deprivation of civic rights only because of the mental disease rise a question if there is in Polish law an “napoleonic” institution of so called “civil death”. It should be considered to file the application to European Court of Human Rights alleging Polish regulation as incompatible with article 3 of Protocol 1 of the Convention. Nevertheless there should be taken some steps by the legislator.
Maciej Bernatt
Robert Rybski
