Judgment of the Constitutional Court of 27 June 2012 № 15-П on the review of constitutionality of paragraphs 1 and 2 of Article 29, paragraph 2 of Article 31 and Article 32 of the Civil Code of the Russian Federation in connection with the complaint of the citizen I.B.Delova

Legal issue: whether the contested provisions are constitutional, since they do not imply the possibility of such restriction of person's dispositive legal capacity which is necessary for the protection of his rights because of mental disturbance and would be commensurate to his degree of ability to understand the significance of his actions and manage them, and thus deprive such citizen of the right to perform legally significant actions, including the disposal of a pension in order to satisfy his everyday needs.

Ratio decidendi: the Court has deemed the contested regulation to be not in conformity with the Constitution only to the extent in which it does not envisage the possibility to differentiate civil law consequences of person's having mental disturbance, when recognising him as legally incompetent, so as to proportion them with the degree of the actual deterioration of his capacity to understand the significance of his actions or direct them in one or another area of social life, and thus permits such derogation of rights and freedoms of the citizens deemed by a court to be legally incompetent which is incommensurate to constitutionally significant goals. The Court pointed out that its earlier legal positions dictate the need for adequate guarantees which would give to the persons having mental disturbance an opportunity to exercise inalienable basic rights and freedoms of man. Legal restrictions may be justified, only if they meet the requirements of justice, are adequate, proportionate, commensurate, necessary for the defense of constitutionally significant values and at the same time do not impinge upon the very essence of the right in question and do not lead to the loss of its essential content. However, currently in the current civil law regulation of the procedure for and legal consequences of the recognition of a citizen as legally incompetent only two options are open for the court – either to recognise the person who suffers from mental disturbance to be  legally incompetent in full or to refuse such recognition. Such straightforward and simplified model of legal regulation, paying no attention to individual characteristics of a particular person and its need for protection may not be regarded as corresponding to modern standards of human rights.

The Court prescribed to the federal legislator not later than 1 January 2013 to make necessary changes in current civil law regulation for the purpose of maximum protection of rights and interests of citizens suffering from mental disturbances. Until the enactment of the new legal regulation, the contested provisions are subject to application in the current version. 

Dissenting opinion:
  • The Court has unjustifiably chosen such way of the execution of the Judgment which prolongs the law-violating effects of the contested provisions and legalises the denial of judicial defense by reference to the lack of particular rule regulating the corresponding relations.  In his view, the resolution of dispute in such cases does not require waiting for the legislator's filling the gap in legal regulation, but requires from the court only to apply law on the basis of analogia legis, a subsidiary application of rules or analogia juris.

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Subject area:
Civil Law legal incompetence