Resolving a problem that everyone sees is easy. Resolving a problem that no one sees is much harder, writes Sidita Fortuzi, lawyer at the Albanian Disability Rights Fund.
When we deal with the issues of legal capacity and capacity to act for persons with disabilities in Albania, and probably in many other countries, we are reminded of an expression: Resolving a problem that everyone sees is not difficult but resolving a problem that no one sees is a big difficulty.
In the absence of solid research on the issue, this post seeks to shed light on what is happening in legal capacity law in Albania.
In Albania it seems that no one can see the problem with depriving persons with disabilities of their right to act and of their equality before law. No judge, prosecutor or social services worker that we have met sees this. Not even family members, often because they are the ones who apply to the courts to deprive the person with the disability of their legal capacity.
Here are a few points about what is faced in the Albanian courts in reality:
Judges do not refer to the CRPD when comes to decisions regarding the capacity to act or when depriving a person of their legal capacity, even though the CRPD has been ratified by the Albanian government.
The applicants who require the deprivation of legal capacity to act in all cases are close family members, parents or brothers/sisters. With the submission of the request to the court the applicant must also deposit documents that support his claim. These requests must be made in accordance with the legal provisions laid down in Article 382 of the Civil Procedure Code. The documents as you may see below mostly refer to the medical condition of the person with the disability.
- Decisions of the Medical Commission for Work Assessment
- Clinical hospital files
- Other medical card of health center
- Proof of the applicant’s criminal record
- Confirmation of some other doctors for the capacity of the person who will be appointed as caregiver;
- Proof of income of the applicant
Applications for deprivations of legal capacity are reviewed by a panel consisting of three judges. Due to the large number of documents required (as listed above), this process can take up to 2 and a half years. This not because they are assessing the person properly but because of amount of documents required and also because the doctors from the “specialised” medical legal institution are missing a lot of court hearings.
During the hearing, Albanian legislation requires the presence of the Prosecution Office however, in practice we often see that it is the Social Service of the Municipality that are present, even though there isn’t any provision in law for them to be. In some cases the judges also require the presence of other family members as third parties, independent of those who have submitted the request for legal capacity deprivation.
During the hearing the court will hear from the following people and in this order:
- Witnesses called by the applicant (family member) who requested the deprivation of legal capacity
- The doctor who has treated the person who is about to be deprived of their legal capacity
- A group of forensic experts from a medical legal state institution (mostly 2 doctors) to submit their expert evidence
- Appointment of a psychologist to present a psychological report
- The person who is being deprived of the legal capacity
- Social Services of the Municipality present an evaluation report to the guardian and his family
(NOTE: the person who is being deprived of the legal capacity to act is at the end of the queue!!!)
There is no information at the stage on the kind of questions the judges have asked of the persons who is to be deprived of their legal capacity.
Another finding is that even though in Albania you can be deprived partially of your legal capacity, in practice the requests are mostly for full deprivation. Currently only one case, which is still ongoing, has requested partial deprivation of legal capacity.
This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of PERSON (Partnership to Ensure Reforms of Supports in Other Nations) and can under no circumstances be regarded as reflecting the position of the European Union.