Hasan Bermek
Office of the Council of Europe
Commissioner for Human Rights
www.commissioner.coe.int
Copenhagen, 8 June 2012
Overview: Council of Europe
Commissioner for Human Rights
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Independent, impartial, non-judicial institution
established in 1999
Promotes awareness of and respect for
human rights in the 47 member states
Elected for a non-renewable term of 6 years
(Nils Muižnieks since April 2012)
Overview
Country
monitoring
Awareness Raising
NHRSs and HRDs
Thematic work
Commissioner’s recent work on
disability
 Human
Rights comment on the
right to vote
 Issue Paper on Legal Capacity
 Issue paper on Community Living
Why is legal capacity important?
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affects all significant life choices
taken for granted for every adult, but
questioned for people with disabilities
100 000s of individuals with intellectual or
psychosocial disabilities affected in Europe
Substituted decision making – false
premises
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The idea of a ‘Rational and reasonable
person’ is a myth
Everyone relies on external support to make
decisions
Everyone has a right to take risks, make
mistakes, and learn from them (or not)
Problems with substituted decision
making
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discriminatory
disrespectful and paternalistic
fosters dependency and helplessness
facilitates abuse and neglect
creates stigma
violates agreed human rights standards!
Relevant human rights standards
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Article 12 of the CRPD
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European Convention on Human Rights (and
the case-law of the Strasbourg court)
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Shtukaturov v. Russia (plenary guardianship)
Stanev v. Bulgaria (partial guardianship)
Other Council of Europe standards
Commissioner’s Recommendations
to member states (1/2)
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Review legislation on legal capacity;
Abolish full incapacitation/plenary guardianship;
Prevent automatic deprivation of rights because of a
disability;
Guarantee the right to challenge guardianship
effectively;
End ‘voluntary’ placements against the person’s will;
Commissioner’s Recommendations
to member states (2/2)
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Develop supported decision making alternatives;
Robust safeguards to ensure that support:
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respects the recipients and their preferences;
is free of conflicts of interests;
is subject to regular and fair judicial review;
Service providers must provide reasonable
accommodation;
Involve persons with intellectual and psychosocial
disabilities in the reform process.