Within our firm's pro bono practice, we have been assisting the Helsinki Foundation for Human Rights, a Polish-based human rights non-governmental organisation (NGO), and its client in a case involving the issue of implementing the United Nations Convention on the Rights of Persons with (Capabilities) Disabilities (UN-CRPD) in the Polish legal order. The nexus of the case was whether the state, upon ratification of UN-CRPD, was still authorised to apply domestic laws on incapacitation (Pol. ubezwlasnowolnienie) that deprive affected individuals of their right to engage in legal acts.
UN-CRPD was adopted in 2006 and, at present, it has been signed or ratified by 175 countries. It is a forward-looking act of international law that sets out new standards for protection of persons with disabilities. In particular, UN-CRPD contains certain provisions on the scope of legal capacity that each person should enjoy.
In our reading of UN-CRPD, it forbids treatment of persons with disabilities that effectively deprives them of any aspect of their legal capacity. Meanwhile, despite its ratification, Polish law maintains an incapacitation regime that has been in force since the 1960s. Polish law states that a person who, due to mental illness, mental retardation or mental disturbances of any other kind (particularly alcoholism or drug addiction) is incapable of controlling their own behaviour, may be completely incapacitated. This means that all acts in law executed by such a person are null and void. The court appoints a guardian to competently act on such a person's behalf. Furthermore, Polish law provides little flexibility toward measures that can be applied in the alternative to full or partial incapacitation for example, providing assistance to a person with disability, enabling him/her to make informed decisions or measures introducing a requirement that the guardian making decisions should be required to take account of the person's preferences or desires.
This regulation is clearly in breach of Articles 5 and 12 of the UN-CRPD. Poland has taken a number of steps to justify this fact. When signing the UN-CRPD, Poland stipulated that it understands Article 12 UN-CRPD to allow for deprivation of persons with disabilities of their ability to execute acts in law. A translation of Article 12 in the Polish version of UN-CRPD provides confirmation of this, suggesting that, although Article 12 forbids deprivation of persons with disabilities of the right to be a party to legal obligations, it does not forbid such persons the right to enter into obligations. In our view, the actions of Polish authorities are ineffective and Poland is bound by Article 12 UN-CRPD within the original meaning envisaged when UN-CRPD was drafted. This can be found in the General Comment to UN-CRPD.
While working on our case, we requested 36 corresponding Lex Mundi members from other European countries to provide us with information on the situation in their jurisdictions. As in many cases, as the scope of our enquiry involved more than one half-hour of work, some of our colleagues were unable to provide us a reply within the Lex Mundi Free Advice Policy. Nevertheless, we received much help.
According to the information we obtained, the situation varies somewhat. Some countries have legislation compliant with the UN-CRPD already at the time of ratification Finland, for example. Other countries, while ratifying the UN-CRPD, overhauled their law on incapacitation, such as the Netherlands however, we understand that some concerns regarding the incompatibility of Dutch law with Article 12 UN-CRPD remain. Moreover, some countries, including Latvia, ratified the UN-CRPD without introducing any amendments to the law on incapacitation that was in breach of UN-CRPD, albeit local law was successfully challenged before the courts. Finally, there are countries in which ratification of the UN-CRPD did not lead to any significant changes in law, although they are required.
In our opinion, proper implementation of the UN-CRPD in legal orders of all counties merits attention. The rights of persons with disabilities, as addressed in UN-CRPD, are being breached. This situation can be changed by an orchestrated effort of law firms and NGOs from different jurisdictions to share experiences and support each other.
 General Comment No 1 (2014), Article 12: Equal recognition before the Law, CRPD/C/GC/1 adopted during the 11th session of the Committee on 31.03-11.04.2014, Available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G 1403120.pdf?OpenElement, point 14.