Institutionalisation and Deprivation of Legal Capacity: This is how Hungary is Violating the Rights of Persons with Disabilities

NGOs have long been sounding the alarm that Hungary is seeing a rise of persons with disabilities being deprived of their human right to equal recognition before the law, and are continuously subjected to guardianship and institutionalisation. It is known that laws and practices linked to disability have a substantial negative impact on the lives of persons with disabilities in Hungary. Guardianship often restricts an individual’s freedom of choice in all manners and aspects of life, including their right to vote, to choose where and with whom to live perhaps most crucially their right to self-determination. It becomes almost inevitable that persons with disabilities in Hungary become isolated from society. These types of laws also often discriminate against persons with intellectual or psychosocial disabilities, which further exacerbates their societal segregation and isolation.

On the 16^th of April, the UN Committee on the Rights of Persons with Disabilities found that Hungary violated international law for placing persons with disabilities in institutions. The Committee highlighted “grave violations” resulting from the systems of guardianship and institutionalisation in Hungary (see p. 15, para. 107 of Committee report).

Hungary’s dangerous regression away from democracy and the rule of law can and will undermine the respect of international human rights obligations, and it will most certainly put persons with disabilities at higher risk of discrimination and segregation.

The seeds of discrimination: The Hungarian Civil Code and Constitution

As it stands, the Hungarian Civil Code allows for the partial to full restriction of the capacity of persons with disabilities, placing them under the decision-making power of a guardian in all areas of life. A pure medical assessment of the person’s “mental capacity” is carried out by court-appointed psychiatrists to decide whether a person with disabilities will be placed under guardianship.

Official statistics show a steady increase of the number of persons with disabilities placed under guardianship from 54,656 in 2008 to 55,056 in 2017. This increase is particularly worrying given the fact that guardianship procedures commonly lead to the disenfranchisement of persons with disabilities, as foreseen by the Constitution. The data confirms that out of 55,056 people under restricted guardianship in 2017, 49,565 were disenfranchised (see p. 2, para. 13 of Committee report).

Another crucial legal aspect investigated by the UN Committee is the right of persons with disabilities to live independently and to be included in the community. With Hungary’s prevalent medical approach to disability, persons with intellectual or psychosocial disabilities face barriers to exercise their freedom of choice, autonomy and self-determination. The Hungarian Social Act sets out that persons with disabilities may be admitted to a care institution, following an assessment of their medical records and a so-called “complex needs assessment”. As a result, disability emerges as one of the main grounds of institutionalisation – isolating them from their communities and preventing them from exercising choices concerning their lives and bodies, and control their use of time and space (see p. 8, para. 57 of Committee report).

What are Hungary’s international obligations to promote disability rights?

The UN Committee made clear that Hungary breached fundamental provisions of the Convention on the Rights of Persons with Disabilities (CRPD).

Firstly, Hungary violated article 12 of the CPRD which requires States to reaffirm the right of persons with disabilities to equal recognition before the law (see p. 13, para. 99 of Committee report). The Civil Code primarily authorises the partial or full restriction of persons with disabilities capacity to act, on the basis of their individual impairment – violating the human rights model of disability enshrined in the CRPD. The system of “supported decision-making” established in the law still reflects an obsolete substituted decision-making, which lacks to support persons with disabilities in the exercise of their legal capacity as required by the Article 12 of the CRPD.

The Committee also found a violation of Article 19 of the Convention which sets out that the States should ensure the right of persons with disabilities to live independently in their community and to exercise their right to make choices, in particular with whom, and where they live, on an equal basis with others (see p. 13, para. 100 of Committee report). A large number of persons with disabilities remain under guardianship and are placed in large or small-scale institutions, as decided by their substitute decision-makers. The Committee observed that institutions fail to provide individualised support for persons with disabilities and human development for independent living (see p. 8, para. 59 of Committee report). Inhuman conditions exist in institutions, where persons with disabilities are segregated and discriminated because of their impairment. It is worth noting that the Committee pointed out that European Structural and Investment Funds are used to build, renovate and expand these large and small-scale institutions, instead of being dedicated to foster independent living and develop accessible and community-based services (see p. 17, para. 112 of Committee report).

The Committee concluded that Hungary violated the obligation of non-discrimination under the CRPD because the placement under guardianship and the restriction of capacity to act represent direct discrimination targeting persons with intellectual or psychosocial disabilities (see p. 14, para. 103 of Committee report).

Moving forward: how to protect independent living and a human rights approach to disability?

In order to fully understand and improve the situation of persons with disabilities in Hungary it is crucial to consider the political path Hungary has taken in recent years. As the nation continues to systemically breach the rule of law, and dismiss democratic procedures, Hungarians are all at risk of being stripped of their basic human rights. Persons with disabilities are at even more risk.

Hungary ratified the CRPD on 20 July 2007 and is bound by its provisions. The Convention is the main international legal instrument to protect the rights of persons with disabilities. It embraces a human rights model in which disability is a “social construct and impairments must not be taken as a legitimate ground for the denial or restriction of human rights”. It focuses on the inherent dignity of the human being and the inclusion of persons with disabilities in all decisions affecting their life. The CRPD seeks to promote a paradigm shift in the understanding of disability by focusing on those final results caused by the impairment in a given social context. Contrarily, Hungarian laws and policies are still anchored to a traditional social welfare or medical model of disability – depicting vulnerable groups of people as objects of pity and charity, unable to make decisions for themselves.

Under Article 12 of the CRPD, Hungary has the obligation to recognise that all individuals are entitled to equal recognition before the law and have the right to exercise legal capacity, and to receive support to exercise that capacity. Article 4 of the Convention demands “the adoption of all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention, including the necessary legislation to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”.

As underlined by the UN Committee, the State should “fully respect the right of persons with disabilities to choose where and with whom to live, and to access individualized support for living independently, including the choice to refuse any particular living arrangement” and “restore the capacity to act of all persons institutionalized” (see p. 18, para. 114 of Committee report).

In addition, European Structural and Investment Funds should be used in line with the Convention, and cannot be invested to facilitate or maintain the segregation of persons with disabilities. The UN Committee’s findings show that the mechanism proposed by the Commission to strengthen the link between EU funds and the rule of law – the so called rule of law conditionality – would be crucial to avoid deficiencies as regards the rule of law in Hungary. Protective measures, including the suspension or limited access to EU funding when Member States systematically violate fundamental rights, could ensure the proper implementation of the Union budget in compliance with the human rights of persons with disabilities.

The conclusion reached by the UN Committee that Hungary breached fundamental provisions of the CRPD is in no way surprising. The importance lies in what will follow. As Hungarians continue to be stripped of their human rights, what is arguably even more scandalous is that Hungary without any repercussions. The EU certainly has the legal and financial means to safeguard rule of law and human rights in Hungary and cannot wait any longer to implement them.