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PERSPECTIVES ON THE EXERCISE OF CIVIL LEGAL CAPACITY BY THE ADULT SUBJECT TO A PROTECTIVE MEASURE IN ROMANIA
Abstract
The scientific approach aims at analyzing the legislation in Romania regarding the recognition of the exercise of civil legal capacity under the conditions of equal opportunities in favor of vulnerable adults against whom a special protection measure has been taken. As a first step, we will give arguments for the need of protecting the civil legal ability of an adult natural person with intellectual and psychosocial disabilities, even if protective measures have been implemented. In addition, the concept of legal capacity will be explained in the light of EU rules. The study will investigate how far our country has complied with international human rights requirements, as well as whether adequate state-level measures have been taken to ensure that the beneficiaries of the protection measures have the best possible protection of their fundamental rights and freedoms. At the same time, we will assess relevant national and international court practice in the context of vulnerable Romanian adults.
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References11
Law no. 287/2009 on the Civil Code published in the Official Monitor of Romania, Part I, no. 511 of 24 July 2009, amended by Law no. 71/2011 and rectified in the Official Monitor of Romania, Part I, no. 427 of 17 June 2011 and in the Official Monitor of Romania, Part I, no. 489 of 8 July 2011, as well as republished pursuant to art. 218 of Law no. 71/2011 for the implementation of Law no. 287/2009 on The Civil Code, and published in the Official Monitor of Romania, Part I, no. 409 of 10 June 2011.
See the content of art. 164 para. (1) Civil Code before being declared unconstitutional by the Constitutional Court of Romania: “The person who does not have the necessary discernment to act in his own best interest, due to alienation ormental illness, will be placed under judicial interdiction”.
Andrei, L., Botu, C.C., Beligante, V., Constantinovici, R., Filote – Iovu, I.A., Fren?iu, G.C.; Moise, A.A.; Sadic, Z.; Tec, L., Ocrotirea majorului/ Protection of the major, Ed. Solomon, Bucharest, 2023, p. 24
See the Decision of July 17, 2014 formulated by the Legal Resources Center on behalf of Valentin Campeanu against Romania (Application no. 47848/08), which can be consulted at: https://hudoc.echr.coe.int/eng ?i=001-147826. It was recommended that Romania take the appropriate necessary measures so that people with a mental disability are supported in the exercise of their rights, especially in the exercise of the right to refer the court or other authority in relation to any problem arising relating to the health or received treatment.
Law no. 221 of November 11, 2010 for the ratification of the Convention on the Rights of Persons with Disabilities, adopted in New York by the United Nations General Assembly on December 13, 2006, opened for signature on March 30, 2007 and signed by Romania on September 26, 2007, published in the Official Monitor no. 792 of November 26, 2010
Law no. 140 of 2022 regarding some protection measures for people with intellectual and psychosocial disabilities and the modification and completion of some normative acts was published in the Official Monitor of Romania no. 500 from 20 May 2022
Popescu, E. F., Controverse in materia masurilor de ocrotire a persoanelor, obiect al Legii nr. 140/2022/ Controversies in the matter of measures to protect individuals, object of Law no. 140/2022, Revista Dreptul/Law Journal, 11, available at sintact.ro, accessed on 15.10.2024
Diaconescu, A., Consideratii asupra proiectului pentru modificarea si completarea Legii nr. 287/2009 privind Codul civil, a Legii nr. 134/2010 privind Codul de procedura civila, precum si a altor acte normative in materia protectiei persoanelor cu dizabilitati/Considerations on the project for the amendment and completion of Law no. 287/2009 regarding the Civil Code, of Law no. 134/2010 on the Code of Civil Procedure, as well as other normative acts in the field of the protection of persons with disabilities, Studia Iurisprudentia no. 2, June 2021, available at sintact.ro, accessed on 15.10.2024
As an example, we reproduce from the practice of the courts, which ordered the taking of the measure of special guardianship: Decision no. 5438/2024 of 28.10.2024 pronounced by the Galati Court, RJ code de7362e8d (https://www.rejust.ro/juris/de7362e8d), Decision no. 2073/2024 of 14.10.2024 pronounced by the Timi?oara Court, code RJ 86e7999g5 (https://www.rejust.ro/juris/86e7999g5), Decision no. 1953/2024 of 30.09.2024 pronounced by the Timi?oara Court, code RJ 6285geeg3 (https://www.rejust.ro/juris/6285geeg3);
See in this sense Decision no. 8396/2024 of 14.10.2024 pronounced by the Bucharest District Court 1, RJ code 86e737g8d (https://www.rejust.ro/juris/86e737g8d) which rejected the request based on the following considerations: “In the case of the respondent, although he is dealing with addictions to alcohol and psychoactive substances, there is no clear evidence to indicate total incapacity and permanent to make decisions. His judgment remains intact, and he can still exercise his rights and freedoms”
Baias, F.A. & Boar, A. Tendinte noi in protectia adultilor vulnerabili. Reforma incapacitatii si cerinta discernamantului/New trends in the protection of vulnerable adults. Reform of incapacity and the requirement of discernment, Dreptul familiei/ Family Law, no 1, 30th June 2023, available at sintact.ro, accessed on 15.10.2024
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