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The Constitutional Court repealed the provisions of the Mental Health Act at the Ombudsman’s request

04.09.2015 10:45
Category: work and news


The Constitutional Court of the Republic of Slovenia repealed a part of the Mental Health Act at its session on 10 June 2015. The third sentence of the second paragraph of Article 74 is repealed, namely the provision defining that on behalf of a person who has been deprived of their capacity to conclude contracts, consent for admission to a secure ward is given by a legal representative. It also repealed the third sentence of the third paragraph of Article 74 of this Act, i.e. the provision regulating that only the legal representative of the person in a secure ward may withdraw such consent at any time or request that the person be released from the ward.

In the request for a review of constitutionality lodged by the Human Rights Ombudsman of the Republic of Slovenia on 27 November 2012, it was written that the challenged provision regulating the admission of the person deprived of the capacity to conclude contracts to a secure ward of a social care institution with consent of his legal representative and the withdrawal of this consent was in contravention with paragraphs 3 and 4 of Article 5 of the European Convention on Human Rights and Articles 14, 19, 22 and 23 of the Constitution of the Republic of Slovenia, since the provision inadmissibly interferes with human rights or fundamental freedoms, as it fails to place the person deprived of the capacity to conclude contracts with judicial protection in a secure ward of a social care institution.  

The Constitutional Court decided on the manner of providing judicial control over the deprivation of liberty to persons who have been deprived of the capacity to conclude contracts until the establishment of a new regulation or until the decision comes into effect, and also decided on the proceedings of social care institutions for all existing cases of persons who have been deprived of the capacity to conclude contracts and were admitted to secure wards on the basis of the existing legal arrangement.

The Ombudsman welcomes the decision of the Constitutional Court, as thus more effective (legal) protection of persons deprived of the capacity to contract will be ensured, doubts as to the possibility of being left to the representatives’ arbitrariness will be removed, and in particular, through judicial control, the possibility of eventual abuse in this field will be reduced.




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