Full text of the statement
“The League of the Strong” public association analyzed the draft Civil Code of Ukraine No. 15150 from the perspective of the rights of people with disabilities.
We saw a number of serious risks in the document. They concern basic human rights: the right to make independent decisions, manage one’s property, consent to treatment, start a family, raise children, live in a community, not in an institution, and be equal before the law.
In our opinion, the draft, in its proposed wording, does not correspond to the modern approach to the rights of people with disabilities and Ukraine’s international obligations, in particular the UN Convention on the Rights of Persons with Disabilities.
The statement has already been signed by:
The draft retains an outdated system of deprivation of legal capacity
One of the biggest risks is that the draft retains a model under which a person can be limited or completely deprived of civil legal capacity due to a mental or other health disorder.
In practice, this means that a person may lose the right to independently make decisions about their life. A guardian will do this for them.
This can concern very different areas:
This approach is dangerous because it effectively puts the diagnosis above the will of the person themselves. The person is not seen as a subject of rights, but as an object of care.
This contradicts Article 12 of the UN Convention on the Rights of Persons with Disabilities, which guarantees persons with disabilities equality before the law and the right to legal personality on an equal basis with others.
The project does not have a full-fledged mechanism for supported decision-making
The modern approach is not to take away the person’s right to make decisions, but to give them the necessary support. This is called supported decision-making.
This is a situation where a person with a disability retains the right to make decisions on their own, but can receive help: to understand information, ask questions, compare options, express their will, communicate with institutions.
Important: a supporter does not make decisions for the person. He or she helps the person to implement their own decision.
The draft Civil Code does not actually have such a mechanism. Instead, the guardianship system is maintained, where a person’s decision can be completely replaced by another person’s decision.
This is one of the key violations of the rights of people with disabilities.
The draft creates risks for the right to medical consent
The draft maintains the approach in which a person recognized as incompetent does not give their own consent to medical intervention. Instead, a guardian does. This is a very serious risk.
Medical intervention concerns the body, health, privacy and dignity of a person. Therefore, consent to treatment must be free and informed.
If the decision about treatment is not made by the person themselves, but by a guardian, this can open the way to forced treatment, ignoring the person’s will and violating their physical integrity.
The UN Convention on the Rights of Persons with Disabilities requires that people with disabilities have access to health services on an equal basis with others and do not lose the right to make decisions about their own health.
The bill may restrict the right to marriage and family life
Formally, the bill does not contain a direct ban on people with disabilities from entering into marriage.
But the problem is different: if a person is recognized as incapacitated, he or she actually loses the ability to independently perform legally significant actions. This may affect both the right to marry, the right to conclude a marriage contract, and other decisions related to family life.
The draft also poses risks to parental rights. If a mother or father is declared incompetent, decisions on important issues may be made by a guardian without due consideration of the person’s own will.
This contradicts the principle that disability cannot be a reason to deprive a person of the right to a family, fatherhood or motherhood.
A simplified divorce without a court hearing with a person who has been declared incompetent may violate their property rights. In particular, there is a risk that such a person may be deprived of shares in joint property or the right to financial support, because the court will not check whether their interests are protected.
The bill restricts inheritance rights
The bill stipulates that only a person with full civil capacity can make a will. This means that people who have been declared incompetent will not be able to independently dispose of their property in the event of death.
They may be unable to:
This violates the right of people with disabilities to own property, control their financial affairs, and inherit on an equal basis with others.
The bill introduces a mechanism of testamentary guardianship over adults, which allows the testator to unilaterally designate a guardian, effectively turning a person with a disability into an object of inheritance and ignoring their own will and preferences.
The draft reinforces the risk of institutionalization
Of particular concern are the provisions that effectively normalize a person’s residence in specialized social institutions or social protection institutions.
This is an important signal for people with disabilities. Instead of moving towards deinstitutionalization, developing community-based services, and supporting independent living, the draft actually preserves the logic of the residential system.
The UN Convention on the Rights of Persons with Disabilities guarantees the right of a person to live in the community, to choose their place of residence, and not to be forced to live in an institution solely because of their disability or need for support.
The state should develop services that allow a person to live at home or in the community, rather than entrench institutions as a habitual form of life.
The draft contains vague moral criteria that can be used in a discriminatory manner
The draft uses the concept of “common sense” but does not clearly explain what it means. This creates a risk of subjective interpretation.
This is particularly dangerous for people with psychosocial, intellectual or cognitive disabilities. Their behavior can be assessed as “atypical” or as not meeting the notion of “correct” behavior.
As a result, this can be used to restrict rights, challenge a person’s decisions or increase control over them.
The law should be clear and predictable. It should not leave room for discrimination due to vague concepts.
What does this mean?
“The League of the Strong” believes that the draft Civil Code of Ukraine No. 15150, in the part that concerns the rights of people with disabilities, requires a systematic review.
The problem is not only in individual formulations. The problem is in the very logic of the document. The draft retains an outdated approach, in which a person with a disability can be deprived of the right to make decisions about his or her own life. Instead, a modern human rights approach requires something different: not to replace a person with a guardian, but to provide him or her with support for independent decision-making.
Ukraine has ratified the UN Convention on the Rights of Persons with Disabilities. Therefore, the new Civil Code should not reproduce old discriminatory models, but bring Ukrainian legislation closer to international standards and the European approach to human rights.
“The League of the Strong” calls not to adopt the draft Civil Code of Ukraine No. 15150 for the second reading without a systematic review of the provisions relating to legal capacity, guardianship, care, medical consent, family and inheritance rights of people with disabilities.
We also call for the involvement of organizations of people with disabilities and the human rights community in the finalization of the draft.
The new Civil Code should protect the dignity, freedom and legal personality of every person. It should not entrench discrimination at the level of one of the basic laws of private law of Ukraine.
We are convinced that this position is important not only for “The League of the Strong”, but also for the wider community of organizations of people with disabilities. If your organization shares concerns about these risks, please join us in signing the statement at the link: https://docs.google.com/forms/d/e/1FAIpQLSfMa8gfDVJ-RD4KSmexQ4OyAhPxSTp55-xGE84FUL1wpDC7rw/viewform