152 MONITORING OF CUSTODIAL SETTINGS IN UKRAINE The now used term “disabled person” comes from the official Russian translation of the UN Convention on the Rights of Persons with Disabilities and corresponds to the English term “person with disability”. In the international usage the term “disabled” sounds discriminatory and has been replaced by such lan- guage as “persons with special needs” or “persons with limited abilities” (specifically, in Recommendation Rec (2006) 5 of the Committee of Ministers to member states on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society, for 2006-2015). 12. To amend the Civil Code of Ukraine with regard to: – establishment of rules of recognition of incapable persons as subjects of law (Article 41). Under the now effective legislation per- Convention on the Rights of Persons sons pronounced incapable by court with Disabilities and p. 1 of the Declarahave no right to sign official documents tion of the Rights of Mentally Retarded and thus may not lodge complaints Persons (of 1971). with courts. Persons of limited capacity In the judgment in Winterwerp v. The may, under Article 75 of the Civil Code Netherlands (of October 1979) ECtHR of Ukraine, apply to a court or a care and stressed that a person with mental discustody authority about termination of orders may appeal in court against, speauthority of their custodians but incacifically, a lengthy compulsory treatpable persons have no such right. This ment at a psychiatric hospital; is in contravention of Article 4 of the UN – mandatory establishment of official care and custody of incapable individuals and persons of limited capacity held at educational, health care or social security institutions, with temporary assignment, until the moment of establishment of official care and custody, of such functions to the holding institution and of the duties of the custodian or guardian – to the director of such institution (Article 66 of the Civil Code of Ukraine). At present in some neuropsychiatric Ministry of Labor and Social Policies of residences up to 80 % of residents have Ukraine) stipulate who bears any relno officially established individual cus- evant personal responsibility. As a retodians, and their care and custody are sult there is no possibility to punish any provided by the institutions, in accord- persons culpable for violation of the ance with Article 66 of the Civil Code. rights of the incapable individuals and At the same time neither the Code nor persons of limited capacity. Any obligathe Care and Custody Rules (approved tions of custodial institutions with reby Order No. 34/166/131/88, of May gard to care of their residents are also 26, 1999, of the State Committee of undefined, which entails violations of Ukraine for Matters of Family, Youth and residents’ rights and contravenes p. 5 Sport, Ministry of Education of Ukraine, of the Declaration of the Rights of MenMinistry of Health Care of Ukraine and tally Retarded Persons.