CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 novembre 2024

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page-break-after:avoid } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } SECOND SECTION CASE OF E.T. v. THE REPUBLIC OF MOLDOVA (Application no. 25373/16)   JUDGMENT   Art 6 § 1 (civil) • Inability of applicant, declared totally incapacitated owing to her mental illness, to directly seek restoration of her legal capacity under the domestic law at the material time • Disproportionate hindrance impairing the very essence of her right of access to a court • Rigid rule of total incapacitation, with no intermediary solutions in respect of varying degrees of incapacitation, resulting in total limitation of access to a court Art 14 (+ Art 8) • Discrimination • Private life • Discriminatory treatment of applicant based on her intellectual disability • Substitute decision-making regime deprived applicant, for an indefinite period of time, of all legal capacity and thus of any participation in decision-making processes regarding every aspect of her life • Absence of periodic review of applicant’s capacity to comprehend • Total incapacitation not imposable on any other category of persons • Disproportionate means of protecting rights and interests of persons affected by intellectual disabilities   Prepared by the Registry. Does not bind the Court.   STRASBOURG 12 November 2024   FINAL   12/02/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of E.T. v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Diana Sârcu,   Gediminas Sagatys , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   25373/16) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms E.T. (“the applicant”), on 29 April 2016; the decision to give notice of the application to the Moldovan Government (“the Government”); the decision not to disclose the applicant’s name; the parties’ observations; Having deliberated in private on 15 October 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the inability of the applicant, who had been declared totally incapacitated owing to her mental illness, to bring a court action aimed at restoring her legal capacity and the alleged discrimination against her on the basis of her intellectual disability. The applicant complained of a violation of Articles 6, 8 and 14 of the Convention. THE FACTS 2.     The applicant was born in 1961 and lives in Cocieri. She was represented by Mr D. Sliusarenco, a lawyer practising in Chișinău. 3.     The Government were represented by their Agent, Mr D. Obadă. 4.     The facts of the case may be summarised as follows. 5.     In the late 1990s the applicant was diagnosed with chronic paranoid schizophrenia. In 2000 her husband A.T. divorced her; she assumed the guardianship of their two children. 6.     On an unspecified date the applicant’s former husband A.T. brought a court action to have the applicant declared totally incapacitated owing to her mental illness and alleged that she behaved aggressively towards their children. 7 .     On 22 November 2002 the Botanica District Court examined the case in the applicant’s absence and declared her totally incapacitated. It examined medical certificates, including those issued by a psychiatric hospital in which the applicant had been undergoing treatment at the time of the examination of the case, and heard A.T., a social worker, and M.M., the couple’s godmother ( nașă ) at the wedding between the applicant and A.T. in 1986. In the interests of the applicant and her children, the court ordered the Botanica district guardianship authority (“the guardianship authority”) to appoint a guardian in respect of the applicant. The applicant never received a copy of that decision. 8.     On 17 December 2010 the guardianship authority appointed M.M. as guardian in respect of the applicant. On an unknown date M.M. asked the Cocieri psychiatric residential hospital (subsequently called the Cocieri Centre for the Temporary Placement of Persons with Disabilities – “the Cocieri centre”) to admit the applicant for treatment for an indefinite period of time. According to the applicant, she had had an uneasy relationship with M.M., who had neglected her guardianship duties. 9 .     On an unspecified date in 2015 a representative of the Independent Service for the Defence of the Rights of Patients in Psychiatric Institutions (see paragraph 18 below) visited the hospital and discussed with the applicant, offering her assistance. She was then able to contact a non-governmental organisation, Promo-Lex, and its lawyer, Mr Sliusarenco. She signed a power of attorney authorising him to represent her. 10.     On 16 July 2015 the applicant’s lawyer brought a court action aimed at re-establishing his client’s legal capacity. He argued that her state of health had improved and that she was able to take care of herself and she owned an apartment where she could live. He noted the strained relationship between the applicant and her guardian, who had “a hostile attitude”. This had prevented the applicant from defending her rights and enjoying various guarantees. He relied on, inter alia , Article 12 of the Convention on the Rights of Persons with Disabilities (“the CRPD”, see paragraph 22 below). He also referred to the applicant’s right to live in the community, which was being breached by her being kept against her will in the hospital. The applicant had been placed in the hospital for an indefinite period of time, which constituted de facto detention and was thus contrary to Article 5 of the Convention. She had on many occasions expressed her wish to leave. She had also been separated from her children and deprived of her right to live in her apartment or to decide on important aspects of her private life. 11 .     On 22 July 2015 a judge from the Botanica Court in Chișinău left the action without examination. The court found that it had been brought by a lawyer who had not been authorised to initiate and continue such proceedings. A power of attorney, signed by a person who had been declared incapacitated, did not provide proper authorisation. 12 .     The applicant’s lawyer appealed, essentially repeating his arguments. He relied inter alia on Articles 16 and 20 of the Constitution (see paragraph 14 below). On 30 October 2015 the Chișinău Court of Appeal rejected the appeal. It found that the lawyer had not been properly authorised to bring a court action, since his power of attorney had been signed by an incapacitated person, and that the first-instance court’s decision was not amenable to appeal. 13 .     In a letter dated 20 March 2023 the director of the Cocieri centre informed the Ministry of Justice that it had examined the applicant’s file and found that she continued to need treatment for paranoid schizophrenia. During the period when she had brought her court action in 2015, she had undergone treatment at the Psychiatric Clinical Hospital between 20 February and 1   April 2015 and between 29   September and 3 November 2015. She could have asked for an evaluation of her psychological state by the psychiatric service in Chișinău. Alternatively, following her treatment at the Psychiatric Clinical Hospital, an evaluation of her mental state could have been made. The absence of such an evaluation meant that it had been presumed that she did not need to be evaluated. The result of such an evaluation would have constituted a basis for declaring her legally capable. The psychiatrist who had worked with her considered that she could not understand what her representative had written in the court action and in the subsequent application to the Court. When asked directly and presented with the file from the domestic court action and the application to the Court, the applicant declared to the administration that she had met that lawyer in 2015 but she denied lodging any complaints. She recognised her signature on the application before the Court but could not recall in what circumstances it had been done. The psychiatrist concluded that she could not have lodged any complaints in view of her continuing psychiatric treatment. Her signature on the application form could have possibly been obtained as a consequence of a misunderstanding or a lack of understanding of what she was signing. It was added that in 2018 a person had called the Chișinău airport and warned about a technical issue with the President’s plane, following which an investigation had revealed that the applicant had been responsible. RELEVANT materials Relevant domestic law 14.     The relevant provisions of the Moldovan Constitution read as follows: Article 16 Equality “(1)     The respect and protection of the individual shall constitute the foremost duty of the State. (2)     All citizens of the Republic of Moldova are equal before the law and public authorities, regardless of the race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property or social origin.” Article 20 Free access to justice “(1)     Any individual is entitled to effective satisfaction from the part of competent courts of law against actions infringing upon his/her legitimate rights, freedoms and interests. (2)     No law may restrict the access to justice” 15 .     The relevant parts of the Civil Code, as in force at the material time, provided as follows: Article 24 Declaring a person’s incapacity “(1)     A person who, as a result of a mental disorder (mental illness or mental deficiency), is unable to be aware of or direct his or her actions may be declared by the court to be incapacitated. Such a person shall be placed under guardianship. (2)     Legal acts on behalf of the natural person declared incapacitated shall be carried out by the guardian. (3)     If the grounds for declaring the person incapacitated have disappeared, the court shall declare him or her as being capable. On the basis of the court decision, the guardianship of the person shall be annulled.” ... Article 222 Nullity of a legal act initiated by a person who does not have legal capacity “(1)     A legal act initiated by a person who does not have legal capacity shall be considered null and void. ... ” 16 .     The relevant parts of the Code of Civil Procedure, as in force at the material time, provided as follows: Article 12 1 Raising the exception of constitutionality [1] “(1)     In case of uncertainty as to the constitutionality of laws, Parliament decisions, decrees of the President of the Republic of Moldova, decisions and ordinances of the Government which must be applied in deciding a case, the court, on its own motion or at the request of a party to the proceedings, shall submit the exception of non-constitutionality to the Constitutional Court. (2)     When raising the exception of non-constitutionality and addressing the Constitutional Court, the court does not have the power to assess the well-founded character of the request or the compliance of the norm with the Constitution and shall limit itself to verifying the observance of the following conditions: a)     the object of the request is part of the category of acts provided for under Article   135 (1)(a) of the Constitution; b)     the exception is raised by one of the parties or their representative or by the court on its own motion; c)     the contested provision must be applied in deciding the case; d)     there is no previously adopted decision of the Constitutional Court concerning the contested legal provision. ...” Article 170 Leaving a court action without examination “(1)     The judge shall leave the court action without examination if: ... (c)     the application was lodged by an incapacitated person; ... (e)     the application is not signed or is signed by a person not entitled to sign it or is signed without indicating the position of the signatory; ... (4)     Leaving a court action without examination does not exclude the possibility of the same applicant bringing a repeated action concerning the same matter, against the same defendant, in respect of the same subject matter and on the same grounds ... ... Article 267 Taking the court action off the docket The court shall take the court action off the docket if: ... (b)     it was brought by an incapacitated person; ... Article 308 The annulment of the limitation of legal capacity and the declaration of legal capacity ... (2)     In the case referred to in Article 24 § 3 of the Civil Code, the court, at the request of the guardian, the person’s family members, the psychiatric institution, the guardianship and curatorship authority or the public prosecutor, on the basis of the official psychiatric expert report, shall initiate court proceedings seeking a decision declaring the capacity of the recovered person. On the basis of that decision, the instituted guardianship of the person shall be revoked.” 17 .     The relevant parts of Law no. 121 on Ensuring Equality of 25   May 2012 provides as follows: Article 130 The manner of lodging a complaint with the Council for Equality and for the Prevention and Elimination of Discrimination “(1)     The Council shall establish the existence or absence of discrimination of its own motion or at the request of the interested parties ... (2)     A complaint of discrimination shall be lodged with the Council. The complaint shall include a description of the violation of the person’s right, the time that the violation occurred, the circumstances of the case, any evidence in support of the complaint and the name and the address of the person who is lodging the complaint. ... Article 18 The right to protection of a victim of discrimination (1)     Any person who considers himself or herself a victim of discrimination shall be entitled to bring an action in court and to request: (a)     a finding of a violation of his or her rights; (b)     the prohibition of the further violation of his or her rights; (c)     the reinstatement of the situation as it existed prior to the violation of his or her rights; (d)     the reparation of pecuniary and non-pecuniary damage caused, as well as costs and expenses. ... ” 18 .     By its order no. 1185 of 29 October 2014 the Ministry of Health adopted the Regulation concerning the organisation and functioning of the independent service for the defence of the rights of patients in psychiatric institutions. The Regulation provided for the creation of a position of advocate for patients who were being treated in psychiatric institutions (“the patients’ advocate”) and of an independent mechanism for supervising the observance of human rights by such institutions by way of obtaining and examining complaints from patients. The patients’ advocate was to, inter alia , carry out systematic planned and unplanned visits to psychiatric institutions, examine complaints, inform the relevant institutions of any irregularities therein, make proposals, verify documents, inform competent authorities including law-enforcement bodies of serious breaches of fundamental rights if the institution did not eliminate them, and report to the Ministry of Health and the Centre for Human Rights. 19 .     In its judgment no. 33 of 17 November 2016 on the constitutional review of certain provisions of the Civil Code and of the Code of Civil Procedure (rights and freedoms of persons with mental disabilities), the Constitutional Court found the provisions of Article 24 of the Civil Code constitutional in so far as they were interpreted to the effect that the declaration that a person had an incapacity to act concerned only persons who lacked any discernment and in respect of whom the application of other less restrictive protective measures proved to be ineffective. At the same time, the Constitutional Court declared the provisions of Article 170 § 1 (c) and Article   267 (b) of the Code of Civil Procedure, which related to the impossibility of an incapable person bringing a court action, unconstitutional. It also found that domestic law did not provide for partial limitation of a person’s capacity or the institution of temporary measures to protect persons with mental disorders, other than for those who were addicted to drugs or alcohol. The court further found that domestic law provided for the declaring of all procedural acts of an incapacitated person null and void, without allowing the court any possibility of deciding on the validity of such acts in the specific circumstances of the case. Although the law was amended in 2016 to allow persons deprived of their capacity to appeal against such decision, their legal actions continued to be declared null and void. While instituting guardianship over a person in and of itself was not unconstitutional, it had to be reserved only for cases involving the total incapacitation of the person. 20 .     Following the Constitutional Court’s decision of 17   November   2016, several amendments were made to the legislation on 13   April 2017 and 8   November 2018. The determination of incapacitation was replaced with a series of guarantees reflecting the type and degree of the person’s disability and offering a variety of solutions which are aimed at protecting the interests and taking into account the wishes of persons who are fully or partly unable to understand the effects of their actions or to express their will (Articles 65-145 of the Civil Code). In particular, the amended law now provides for two types of contractual and three types of judicial measures of protection, detailed rules for the eligibility of persons in the role of guarantors and assistants and for avoiding conflicts of interests, rules on the involvement of the family, and rules for administering the person’s property and for challenging in court the decisions taken, including providing for the involvement of the person concerned in the decision-making process. The law expressly states that the protection measures are to be instituted while ensuring the observance of human rights and personal dignity and are to be taken so as to maximise as far as possible the person’s autonomy while giving priority to his or her wishes and feelings. 21.     In its decision no. 2 of 9 February 2016 the Constitutional Court clarified that in case of uncertainty as to the constitutionality of laws, Parliament decisions, decrees of the President of the Republic of Moldova, decisions and ordinances of the Government which must be applied in deciding a case, the court is obligated to submit the exception of non-constitutionality to the Constitutional Court, after verifying compliance with four formal criteria: a)     the object of the request is part of the category of acts provided for under Article 135 (1)(a) of the Constitution; b)     the exception is raised by one of the parties or their representative or by the court on its own motion; c)     the contested provision must be applied in deciding the case; d)     there is no previously adopted decision of the Constitutional Court concerning the contested legal provision. In doing this formal assessment, the ordinary court does not have the power to assess the well-founded character of the request or the compliance of the norm with the Constitution. The Constitutional Court’s decision was subsequently codified in essentially the same language in the Code of Civil Procedure (see paragraph 16 above) and the Code of Criminal Procedure. Relevant international material 22 .     The relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities, adopted on 12 December 2006 at the sixty-first session of the General Assembly (resolution A/RES/61/106), and ratified by the Republic of Moldova on 9 July 2010, read as follows: Article 5 – Equality and non-discrimination “1.     States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2.     States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3.     In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4.     Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the [CRPD]. ... Article 12 – Equal recognition before the law 1.     States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2.     States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3.     States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4.     States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5.     Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. Article 13 – Access to justice 1.     States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2.     In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. ... Article 19 – Living independently and being included in the community States Parties to [the CRPD] recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.” 23 .     The relevant parts of General Comment No. 1 (2014) to the Convention on the Rights of Persons with Disabilities, adopted by the Committee on the Rights of Persons with Disabilities at its eleventh session between 31 March and 11 April 2014 (CRPD/C/GC/1) read as follows: “... 15.     In most of the State party reports that the Committee has examined so far, the concepts of mental and legal capacity have been conflated so that where a person is considered to have impaired decision-making skills, often because of a cognitive or psychosocial disability, his or her legal capacity to make a particular decision is consequently removed. This is decided simply on the basis of the diagnosis of an impairment (status approach), or where a person makes a decision that is considered to have negative consequences (outcome approach), or where a person’s decision-making skills are considered to be deficient (functional approach). The functional approach attempts to assess mental capacity and deny legal capacity accordingly. It is often based on whether a person can understand the nature and consequences of a decision and/or whether he or she can use or weigh the relevant information. This approach is flawed for two key reasons: (a) it is discriminatorily applied to people with disabilities; and (b) it presumes to be able to accurately assess the inner-workings of the human mind and, when the person does not pass the assessment, it then denies him or her a core human right — the right to equal recognition before the law. In all of those approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity. ... 26.     In its concluding observations on States [P]arties’ initial reports, in relation to [A]rticle 12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that States [P]arties must ‘review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences’. 27.     Substitute decision-making regimes can take many different forms, including plenary guardianship, judicial interdiction and partial guardianship. However, these regimes have certain common characteristics: they can be defined as systems where (i) legal capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective ‘best interests’ of the person concerned, as opposed to being based on the person’s own will and preferences. 28.     States parties’ obligation to replace substitute decision-making regimes by supported decision-making requires both the abolition of substitute decision-making regimes and the development of supported decision-making alternatives. The development of supported decision-making systems in parallel with the maintenance of substitute decision-making regimes is not sufficient to comply with [A]rticle 12 of the [CRPD]. ... 32.     To achieve equal recognition before the law, legal capacity must not be denied discriminatorily. Article 5 of the [CRPD] guarantees equality for all persons under and before the law and the right to equal protection of the law. It expressly prohibits all discrimination on the basis of disability. Discrimination on the basis of disability is defined in [A]rticle 2 of the [CRPD] as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms’. Denial of legal capacity having the purpose or effect of interfering with the right of persons with disabilities to equal recognition before the law is a violation of Articles 5 and 12 of the [CRPD]. States have the ability to restrict the legal capacity of a person based on certain circumstances, such as bankruptcy or criminal conviction. However, the right to equal recognition before the law and freedom from discrimination requires that when the State denies legal capacity, it must be on the same basis for all persons. Denial of legal capacity must not be based on a personal trait such as gender, race, or disability, or have the purpose or effect of treating the person differently. ... 44.     To fully realize the rights provided for in [A]rticle 12, it is imperative that persons with disabilities have opportunities to develop and express their will and preferences, in order to exercise their legal capacity on an equal basis with others. This means that persons with disabilities must have the opportunity to live independently in the community and to make choices and to have control over their everyday lives, on an equal basis with others, as provided for in [A]rticle 19. 45.     Interpreting [A]rticle 12, paragraph 3, in the light of the right to live in the community ([Article] 19) means that support in the exercise of legal capacity should be provided through a community-based approach. States [P]arties must recognize that communities are assets and partners in the process of learning what types of support are needed in the exercise of legal capacity, including raising awareness about different support options. States [P]arties must recognize the social networks and naturally occurring community support (including friends, family and schools) of persons with disabilities as key to supported decision-making. This is consistent with the [CRPD]’s emphasis on the full inclusion and participation of persons with disabilities in the community. 46.     The segregation of persons with disabilities in institutions continues to be a pervasive and insidious problem that violates a number of the rights guaranteed under the [CRPD]. The problem is exacerbated by the widespread denial of legal capacity to persons with disabilities, which allows others to consent to their placement in institutional settings. The directors of institutions are also commonly vested with the legal capacity of the persons residing therein. This places all power and control over the person in the hands of the institution. In order to comply with the [CRPD] and respect the human rights of persons with disabilities, deinstitutionalization must be achieved and legal capacity must be restored to all persons with disabilities, who must be able to choose where and with whom to live ([Article] 19). A person’s choice of where and with whom to live should not affect his or her right to access support in the exercise of his or her legal capacity. ...” 24.     The relevant parts of General Comment No. 6 (2018) to the Convention on the Rights of Persons with Disabilities, On Equality and Non-Discrimination, adopted by the Committee on the Rights of Persons with Disabilities on 26 April 2018 (CRPD/C/GC/6) read as follows: “8.     Individual or medical models of disability prevent the application of the equality principle to persons with disabilities. Under the medical model of disability, persons with disabilities are not recognized as rights holders but are instead ‘reduced’ to their impairments. Under these models, discriminatory or differential treatment against and the exclusion of persons with disabilities is seen as the norm and is legitimized by a medically driven incapacity approach to disability. ... 9.     The human rights model of disability recognizes that disability is a social construct and impairments must not be taken as a legitimate ground for the denial or restriction of human rights. It acknowledges that disability is one of several layers of identity. Hence, disability laws and policies must take the diversity of persons with disabilities into account. It also recognizes that human rights are interdependent, interrelated and indivisible. ... 23.     Reasonable accommodation is an intrinsic part of the immediately applicable duty of non-discrimination in the context of disability. 24. ... (a) As an ex ante duty, accessibility must be built into systems and processes without regard to the need of a particular person with a disability... ; (b) As an ex nunc duty, reasonable accommodation must be provided from the moment that a person with a disability requires access to non-accessible situations or environments, or wants to exercise his or her rights. ... It is important to note that the duty to provide reasonable accommodation is not limited to situations in which the person with a disability has asked for an accommodation or in which it could be proved that the alleged duty bearer was actually aware that the person in question had a disability. It should also apply in situations where a potential duty bearer should have realized that the person in question had a disability that might require accommodations to address barriers to exercising rights. ...” 25.     The relevant part of the Report of the Special Rapporteur on the rights of persons with disabilities on her mission to the Republic of Moldova from 10 to 17 September 2015 (document A/HRC/31/62/Add.2) reads as follows: “... D.     Legal capacity 41.     In the Republic of Moldova, approximately 4,000 persons with disabilities are deprived of their legal capacity. According to Article 24 (1) of the Civil Code, adults with disabilities may be declared incapable of exercising legal capacity on the basis of a ‘mental disorder (mental illness or intellectual impairment)’. Persons with disabilities who have been incapacitated are automatically deprived of all other fundamental human rights. Persons declared incapacitated are placed under guardianship, whereby a designated legal guardian is entitled to make all decisions on their behalf. The Code of Civil Procedure does not provide persons with disabilities a legal procedure to appeal or to review the incapacitation measure, and does not recognize the legal standing of persons under guardianship. 42.     The Special Rapporteur is aware of efforts to reform the system of guardianship and legal capacity initially led by an interministerial working group, which in 2014 adopted a draft proposal for reform abolishing plenary guardianship and introducing provisions for supported decision-making. If adopted as proposed by the working group, it would put the State on track with regard to reforms based on [A]rticle   12 of the Convention on the Rights of Persons with Disabilities. The proposal has not, however, been forwarded for a decision by the Government, given that as an alternative proposal is being drafted under the auspices of the Ministry of Justice. The Special Rapporteur has been invited by the Ministry to support the process of legal harmonization and will be glad to support this process to the extent of her resources. 43. The Special Rapporteur notes with satisfaction that the Supreme Court of Justice of the Republic of Moldova ruled in November 2015 that persons with intellectual and psychosocial disabilities have the right to seek recourse to patronaj , [2] provided for in [A]rticle 48 of the Civil Code, as a measure of support in exercising their legal capacity. She encourages the State to further strengthen the institution of patronaj and to promote the use of these arrangements as an alternative way to support the exercise of legal capacity by persons with disabilities. ...” 26.     The relevant parts of the United Nations Partnership on the Rights of Persons with Disabilities report “The Human Rights of Persons with Mental or Intellectual Impairments in the Republic of Moldova: An Assessment of Key Aspects of the Domestic Law and Policy Framework in Light of the UN   Convention on the Rights of Persons with Disabilities”, Chișinău, 2015 read as follows (some references in the text were omitted): “... Guardianship When the deprivation of legal capacity has been decided, the judge will inform the local guardianship authority about the decision, asking them to identify and appoint a guardian to the incapacitated person. The guardian shall be appointed through an administrative procedure no later than 30 days from the moment of the adoption of the incapacitation decision. The law provides a list of people who cannot be appointed as guardians, and the guardianship authority has the final say on appointing the guardian. People about to be placed under guardianship can be consulted about the selection, but their preferences are not necessarily taken into account. ... Although the law requires the guardian to live with the person under their guardianship, in practice many people under guardianship are right-away placed in residential institutions. In such cases, the institution will often act as a de facto guardian, although the appointed guardian retains their position – often without maintaining any contact with the person under guardianship. ... Moldovan law requires that the guardianship authority must supervise the activities of guardians, ... but there is no guidance about how this should be done. Guardians must submit annual reports about any financial and property decisions they have made, ... and reporting on other decisions only happens at the discretion of the guardian. Where any irregularities are identified, the guardianship authority may request that these are rectified or may order suspension of the measures in question. ... Supported decision-making Current Moldovan legislation does not provide for or recognise any forms of supported decision-making, ... and is solely based on substitution. ... The only available alternative to plenary guardianship are the patronaj arrangements. ... Patronaj is usually applied to people who cannot exercise or protect their rights or fulfil certain obligations due to a health condition ... allowing them to maintain their legal capacity and receive necessary support from the people they trust. ... Guardianship as a form of disability-based discrimination Deprivation of legal capacity, is discrimination because it denies the exercise of a fundamental right recognized in international human rights law, as defined in CRPD Article 2 regarding ‘discrimination on the basis of disability’ and contradicts the universal principles of personal autonomy and human dignity. Although people under guardianship often reside in the community, ... guardianship isolates the person and limits their possibilities to interact with others. Guardianship is a form of institutional segregation severely restricting a person’s ability to manage one’s personal and financial affairs, as well as to enter into agreements that are substantial for inclusion, such as employment contracts, loans, rent, among others. Discrimination arises from the fact that in order to be able to receive necessary support, individuals with mental and intellectual impairments are forced to relinquish participation in community life they could enjoy if provided reasonable accommodation, while persons without impairments can receive the supports and services they need without similar sacrifices. ... CRPD Article 12 paragraph 3 envisages supported decision-making to be an antidiscrimination measure aiming to, on one side, ensure the best guarantee of the best decision possible (not to protect the decision of the person, who should be considered autonomous) and for the provision of juridical certainty to the actions. ... Choice of where and with whom to live From the moment a person has been deprived of their legal capacity and placed under guardianship, the person’s domicile or main tenement is that of their guardian. Article   40 of the 2002 Civil Code obliges guardians to live together with the person under their guardianship. Guardians can avoid this obligation by placing the person concerned into an institution, a decision which cannot be challenged by the person concerned. The only condition required for placement in an institution is to have a qualified psychiatrist provide an opinion that the person concerned has a ‘mental disorder’ which does not allow them to live outside of a ‘specialized institution’. One of the purposes of the right to equal recognition before the law is to ensure the respect of the persons’ autonomy, will and preferences. ... This right is violated when the person cannot choose where and with whom they live. Moreover, the practice of placing people in institutions without their consent or with the substitute consent of a guardian results in an arbitrary deprivation of liberty, violating both the right to equa