Article 12 Equal Recognition Before the Law

154. The Republic of Serbia refers to the views set out in paragraphs 147 to 154 of the Second Periodic Report on Implementation of the International Covenant on Civil and Political Rights (CCPR/C/SRB/2).

155. Domestic legislation contains provisions and decisions concerning work capacity and taking guardianship measures which need to be reformed and adjusted to provisions and obligations under the Convention. Guardianship of persons deprived of work capacity in the Republic of Serbia is regulated by the laws which have not been significantly amended for a long period of time, and most of them were adopted in the period when persons with disabilities (mentally ill and mentally disabled adults and elderly persons) were excluded from society. In particular, changes of the rules governing the procedure of work capacity deprivation are very slow, i.e. changes in the law on extra-judicial proceedings.

156. The standpoint of legislators on adopting regulations which govern work capacity deprivation and taking guardianship measures, was that persons should be deprived of their work capacity and put under guardianship, if they are, for their mental disability or for other reasons, unable to take care of their own interests. This standpoint has been superseded in contemporary practice and theory. It is based on the view that PWDs are capable of taking care of themselves and, if there are life situations where they need support, the state shall be obliged to provide them such support, including application of guardianship measures, which must be carefully and selectively provided and which in no manner may impair rights and legal security of such persons.

157. Legal norms governing procedures for elimination of work capacity deprivation and guardianship procedure, are not unified within a single legal act, moreover, they are part of different laws and rulebooks. The main rules of the procedure are contained in provisions of the Law on Extra-Judicial Proceedings and Family Law. Somewhat vague and incomplete formulations in the laws affect the procedure in practice. According to civil society organisations, judges have too much discretion in the work capacity deprivation procedure. However, this cannot be accepted in its entirety. In these procedures, judges primarily act by default and according to findings and opinions of experts who determine whether a person can or cannot protect his/her rights and interests, depending on his/her mental health at the first place. Findings of court experts which form a basis of a court decision on work capacity deprivation are diagnostic in their nature and do not contain an assessment of remaining person's capacities to protect his/her own rights and interests with or without support. In respect to this, it has been estimated that, first of all, adoption of a special law on mental health care (by the Ministry of Health), which would also regulate assessment of the status and needs of persons with mental health problems, would contribute to the wholesome implementation of the Recommendation (99) 4 of the Committee of Ministers of the Council of Europe. The Ministry of Labour and Social Policy has in terms of this, through supervision of professional work of guardianship authorities and provision of technical assistance to experts in guardianship authorities, provided them with specific instructions for the purpose of adequate application of guardianship measures for persons who are unable to take care of their own rights and interests. Therefore, any procedure for the protection of such persons require evaluation of their abilities on the basis of which an assessment shall be made in terms of whether and to what extent it is necessary for a person to be deprived of his/her work capacity. All procedures must previously obtain an opinion of the person on the appropriateness of initiating such proceedings, and obtain an opinion about the person whom he/she wishes to be his/her guardian.

158. A major reform of the legal system in the Republic of Serbia is underway currently, and one of priorities is persons with disabilities. This has also been indicated by the adoption of a number of laws including LPDPD, Family Law, and LPREPD. These laws point to the fact that the Republic of Serbia increasingly recognises rights of persons with disabilities. However, legal norms governing guardianship and work capacity deprivation have not been modified and represent a certain barrier in respecting PWDs' rights. The Republic of Serbia has clearly committed to improve the regime of work capacity deprivation and, consequently, strongly supports any initiative and activities of associations in this field.

159. Until relevant legislative initiatives concerning amendments to the Law on Extra-Judicial Proceedings ³⁹ in particular have been implemented, MLSP is taking measures required for the implementation of the Recommendation (99) 4 of the Committee of Ministers of the Council of Europe, to the highest extent possible, in organising guardianship of adults persons deprived of work capacity.

Note #39

Official Gazette of RS No. 25/82 and 48/88

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Practice

160. According to case law analyses of civil society organisations, case law indicates that judges generally rely on the diagnosis of a mental and/or intellectual disability made or confirmed by court experts (neuropsychiatrists), without specific examples or without establishing a clear connection with person's disabilities in everyday life. In practice, the hearing is usually not conducted out of court which is envisaged by the law to ensure participation of institutionalised persons in the process.

In terms of guardianship, although there are safeguards in the law, problems have been detected in practice in terms of control of guardians in performing their duties. In this sense, it is not possible to ensure adequate protection of rights of persons placed under guardianship. Moreover, there is a serious omission in the legislation which results in apparent conflicts of interests in cases when a guardian is a person employed in the center for social work (direct guardianship), and the center retains the role of monitoring guardian's performance of obligations. The applicable Family Law (FL) determines a mechanism of control of guardianship: Supervision of a Guardian - Article 142 of FL, Complaint on Guardian's Work – Article 335 of FL, Complaint on Work of Guardianship Authority – Article 338 of FL. Certainly, it should be pointed out that the Family Law also prescribes an obligation of guardian's responsibility (Article 141) that the guardian shall be responsible for damage caused by the person placed under guardianship in the course of performing guardianship activities, unless he/she proves that damage was caused without his/her fault. Culpability of the guardian shall exist when he/she caused the damage intentionally or by gross negligence. The responsibility for the damage shall be jointly born by the guardianship authority.

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