During the inspections the NPM also found that the large majority of customers in the HEPMR, the
HEPMD and the HEPD are under full or limited custodianship. Their custodians/guardians are the
director or another member of the specialized institution and in rare cases – their kin and relatives.
In all of his reports the NPM highlighted the question of how only one person is able to fully care
for the interests of a large number of people and manage their property.
It is important to note the fact that the current legislation in Bulgaria in the area of guardianship,
custodianship and interdiction of adults is normatively outdated.
Proceedings for putting under interdiction do not contain sufficient guarantees that the will of the
person is important and will be respected both during the proceedings and during the
administrative proceedings for appointment of a guardian or custodian. There is no any possibility
for periodic judicial review of the imposed measure. The individual approach is completely missing
taking into account the specific situation and capabilities of a person based on a comprehensive
and independent evaluation. The current system does not offer adequate measures to protect the
persons under interdiction from abuses by both the guardians and custodians and by third parties
and the practice shows numerous examples.
In spite of this, the opinion of the NPM is that a legislative change and adoption of a new approach
to persons under interdiction living in institutions are necessary. It is also necessary to take into
account the provisions of art. 156 of the Family Code (FC), under which the custodianship and
guardianship authority shall appoint a custodian, a deputy custodian and two advisors from among
the kin and relatives of the person under the age of fourteen or the person placed under full legal
interdiction who will best take care of his or her best interests and have given their consent in
writing. They shall make up the custody board.
Pending the application of art. 156, para 2 of the Family Code, under which the custody board may
involve also other suitable members, it should be considered only when the relatives of the person
refuse to become his custodians. In this regard the NPM made recommendations to the respective
mayors of municipalities that are the custody and guardianship authority under art. 154 of the
Family Code. Their opinion was that the NPM worries are unfounded.
In connection with the amendment in the legal regulation of the institution of putting under the
interdiction is important taking into account the recommendations of the European Court of
Human Rights in the case “Stanev v. Bulgaria”. There the court found out that „the placement of
the claimant had not been ordered “lawfully” and his detention is not justified by the letter “e” of
article 5, paragraph 1 ... Bulgarian courts not once, in any form, have participated in the placement
of the claimant and the national legislation does not provide for regular and automatic review of
the placing of people in a home for people with mental disorders.”
On the other hand, the European Court of Human Rights states that in terms of access to court the
national law makes no distinction between those placed under interdiction, and those who, as in
the case of the claimant, that are only under limited interdiction. „Furthermore, the national
legislation does not provide any opportunity for periodic automatic check of the reasons justifying
39 Annual Report of the National Preventive Mechanism |
OMBUDSMAN OF THE REPUBLIC OF BULGARIA
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