Kari Käsper ja Eve Pilt

 

Data protection

The ongoing activity of the Data Protection Inspectorate (DPI) in explaining the principles of data protection, especially via publication of advisory guidelines could be considered a positive development in the field of data protection. No important amendments were made in laws regarding protection of personal data in 2010.

A case to be mentioned in connection to protection of personal data is of the electronic survey carried out in the course of the election campaign by Pro Patria and Res Publica Union (IRL) called “IRL listens to your voice!”, in the course of which personal data was gathered and processed. DPI, as a result of its supervision proceedings, found that data gathered for the purpose of direct marketing (for the purpose of forwarding future political messages) should not be used for this purpose, as the questionnaire did not leave a clear option for the respondents to opt out of their data being processed, therefore the consent of the subject of this questionnaire is invalid. Furthermore, in October of 2010 the DPI published advisory guidelines for use of personal data in election campaigns.

Disabled persons’ right to private life from the point of view of ratification of the Convention on the Rights of Persons with Disabilities

The President of Estonia signed the Convention on the Rights of Persons with Disabilities (CRPD) on September 15th, 2007. In October of 2010 the Ministry of Social Affairs concluded the draft ratifying the CRPD and its additional protocol, which included Estonia’s intention to

“[compose] a declaration for Article 12 explaining [Estonia’s] understanding that Article 12 cannot be interpreted as an obligation to remove all possibilities of restricting active legal capacity. Estonia retains the right to continue its current national practice, which allows the court to appoint a guardian for a person of restricted active legal capacity.”

Article 12(2) of the CRPD states that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

§ 204(2) of the Code of Civil Procedure, which states that the court shall initiate proceedings for appointing a guardian if it has doubts regarding the active civil procedural legal capacity of a participant in a proceeding, clearly contradicts this provision.[1]

The Estonian Patient Advocacy Association (EPAA) has raised the question of whether the fact that the court appoints a forensic psychiatric examination to verify the existence of an active civil procedural legal capacity is in accordance with the Constitution of the Republic of Estonia and the CRPD. Whereas, it is widely known that the forensic psychiatrists lack legal knowledge and therefore cannot be considered authority in the meaning of § 293(1) of Code of Criminal Procedure. EPAA has raised this question with the Ministry of Justice as well as the office of Chancellor of Justice, but has so far received replies, which stipulate that the regulation contained in § 204(2) Code of Civil Procedure is necessary and allegedly helps to protect the rights of person of restricted active legal capacity in civil court procedures.

Chancellor of Justice stated the following in his reply to the EPAA:

“[A]ctive legal capacity and civil procedural legal capacity are not necessarily connected. The person whose civil procedural legal capacity is restricted may not necessarily be incapable of independent transactions in any other areas of life.  However, the basis of restriction of civil procedural legal capacity can only be a mental health disorder. A sign of such disorder that can be a basis for restriction of civil procedural legal capacity could mainly be that the person misjudges his or her factual or legal situation and not for lack of legal knowledge, but in comparison to a person of sound mental health without legal knowledge. If the court has doubts it has the duty to verify the existence of the passive civil procedural legal capacity and active civil procedural legal capacity of the participants in a proceeding in the manner pointed out in § 204(1) of Code of Criminal Procedure. The court may include an expert in the field to verify the active civil procedural legal capacity. The expert competent to verify the existence of a mental disorder is undoubtedly a psychiatrist. However, it has to be emphasised that the basis of restricting active civil procedural legal capacity certainly cannot be the fact that the person wishes to protect his various rights and freedoms by turning to the court.”

Contrary to the assurance of the Chancellor of Justice the courts not only verify the active civil procedural legal capacity in proceedings initiated by § 204(2) of Code of Civil Procedure, but include all areas of the person’s life in the examination, including the right to vote, the right to make independent transactions, the right to decide over his own treatment and everyday life, the right to make a will, the right to marry etc.[2] Thereby the court unnecessarily intrudes in a person’s private life, including in matters that nobody has asked the court to limit the person’s active legal capacity.

Appointing a guardian could be useful for the purpose of active civil procedural legal capacity if the guardian is a person who has legal knowledge and is capable of evaluating whether the application lodged with the court by a person with allegedly restricted active legal capacity is justified and substantiated. Usually the person appointed guardian is a close relative without legal knowledge or the local government who also lacks competence to represent a person in a civil proceeding.

EU ratified the CRPD on December 23rd, 2010, which means the European Commission, The European Parliament, Council of Europe and the European Court of Justice take the obligation to follow the rights of persons with disabilities stated in the convention. The ratification of the CRPD is still in process in Estonia. The relevant draft has already been completed and sent to respective organisations along with the explanatory memorandum. It stems from the explanatory memorandum that the Ministry of Social affairs intends to make a declaration for the convention what concerns the regulation of appointment of the guardian in Estonia. The Ministry of Social Affairs has the following proposal: “Estonia retains the right to continue its current national practice, which allows the court to appoint the guardian for the person of restricted active legal capacity.” It is hard to evaluate the effect and intent of this declaration at the moment. It is possible Estonia may need to explain this practice in front of European Court of Justice, but considering the fact that each Member State has the right to make independent reservations according to the reservation of the EU, this is a limited possibility.

Recommendations

–          Ratify the CRPD without making reservations and amend the current regulation on restriction of active legal capacity and appointing the guardian so it is in accordance with the convention.

–          Substantially increase the competence of the guardians to ensure effective protection of persons with restricted active legal capacity.

 


[1] Code of Civil Procedure (RT I 2005, 26, 197 … RT I, 30.12.2010, 2) § 204 (2) states that if the court has doubts regarding the active civil procedural legal capacity of a participant in a proceeding who is a natural person, the court may demand that the person provide a doctor’s opinion to such effect, or to order an examination. If the person refuses to comply with the court’s orders or the documents submitted fail to remove the doubts of the court, the court shall initiate proceedings for appointing a guardian for the participant in the proceeding.

[2] See for example Harju County Court. Judgment in civil case no. 2-09-63050 (29.03.2010).

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