Citizens in their applications to the Constitutional Court point out that the degree of a mental disorder and the capacity of individuals to dispose independently of their pension and to make small everyday transactions in order to satisfy their reasonable needs which do not violate the rights of others are not taken into consideration while recognising individuals incapable due to a mental disorder. According to applicants, this restricts constitutional rights and legal interests of this group of citizens.

In accordance with point 1 of Article 29 of the Civil Code of the Republic of Belarus an individual who as a consequence of a mental disorder (mental disease or dementia) can not understand the meaning of his actions or direct these actions, may be declared legally incapable person by court in accordance with the procedure established by the civil procedural legislation; a guardianship shall be established over him.

The legislation which regulates the methodology of diagnostic of a mental disorder and carrying out of appropriate expert examination does not provide for a differentiated approach to reveal the degree of reduction of intellectual and volitional characteristics of a person suffering from a mental disorder depending on its severity. The legislation provides for the legal expert unambiguous conclusion on the capacity or incapacity of an individual to understand the meaning of his actions or direct these actions for mental health reasons.

In this connection, it is not excluded that persons suffering from mental disorders preserve or restore in some degree the capacity to understand the meaning of their actions or direct these actions, but their rights and freedoms are restricted more than it is necessary for protection of their rights and freedoms, ensuring other constitutional values. These persons become even more socially vulnerable.

The Constitutional Court has come to the conclusion that the existing legal mechanism which does not take into account the degree of actual reduction or restoration of the capacity of an individual to understand in some degree the meaning of his actions or direct these actions due to a mental disorder points out a constitutional legal gap in legal regulation of public relations in the field of recognition of an individual as legally incapable person.

Aiming to ensure the constitutional principle of the rule of law, constitutional guarantees of the rights and legitimate interests of individuals and aiming to fill the legal gap in the civil legislation, the Constitutional Court considered it necessary to make alterations and addenda to the Civil Code by providing the possibility to restrict legal capacity of an individual due to a mental disorder (mental disease or dementia) depending on the degree of actual reduction of the capacity to understand the meaning of one’s actions or direct these actions. It is also necessary to provide for the possibility to recognise an individual who was earlier recognised as legally incapable due to a mental disorder (mental disease or dementia) in case of restoration of his capacity to understand in some degree the meaning of his actions or direct these actions to be of limited legal capacity. It is also necessary to fix in civil legislation the consequences of the recognition of persons suffering from mental disorders to be of limited legal capacity by court.

The Council of Ministers of the Republic of Belarus is proposed to prepare a draft law on the appropriate alterations and addenda to the Civil Code and to introduce it in the established order to the House of Representatives of the National Assembly of the Republic of Belarus.