Recognition of a citizen as legally incompetent

                        The procedure for the consideration and resolution by the courts of cases on the recognition of a citizen as legally incompetent is regulated by Chapter 35 of the CPC (Articles 323-327) with the application of Article 26 of the Civil Code.

The ability of a citizen to acquire and exercise civil rights by his actions, to create and fulfill civil duties for himself (civil legal capacity) arises in full upon reaching the age of majority, that is, upon reaching the age of eighteen (paragraph 1 of Article 17 of the Civil Code).

Human and civil rights and freedoms may be restricted only by laws and only to the extent necessary to protect the constitutional order, public order, human rights and freedoms, public health and morals (paragraph 1 of Article 39 of the Constitution of the Republic of Kazakhstan).

No one may be restricted in their legal capacity or legal capacity except in cases and in accordance with the procedure provided for by legislative acts (paragraph 1 of Article 18 of the Civil Code).

A citizen may be declared legally incompetent only by a court decision only if there are grounds provided for by the Civil Code and the CPC.

A citizen who, due to mental illness or dementia, cannot understand the meaning of his actions or direct them, may be declared legally incompetent by a court, and therefore custody is established over him (paragraph 1 of Article 26 of the Civil Code).

In accordance with Part 2 of Article 323 of the CPC, the court has the right to recognize as incompetent a citizen who, not only due to mental illness or dementia, but also due to another mental disorder or a painful state of mind, cannot understand the meaning of his actions or direct them.

The UN General Assembly Declaration of December 20, 1971 "On the Rights of Mentally Retarded Persons" proclaimed the need for the state to protect the rights of mentally retarded persons from exploitation, abuse and humiliating treatment.

A case on declaring a citizen legally incompetent may be initiated in court at the request of his family members, close relatives, regardless of their joint residence with him, a prosecutor, a guardianship or guardianship authority, or a psychiatric (neuropsychiatric) medical institution (Part 2 of Article 323 of the CPC). Other persons do not have the right to file an application in this category of cases.

A case on declaring a citizen legally incompetent is initiated in order to protect both the interests of the incapacitated person himself by establishing (appointing) custody, as well as members of his family and close relatives (Part 4 of art. 323 of the CPC). An application for declaring a citizen legally incompetent is filed with the court at the place of residence of the citizen, and if the person is placed in a psychiatric (neuropsychiatric) medical institution, then at the location of the medical institution (Part 5 of art. 323 of the CPC).

An application for recognition of a citizen as legally incompetent must comply with the requirements for a statement of claim (Articles 148, 149 of the CPC) and the requirements for an application for recognition of a citizen as legally incompetent (Articles 324 of the CPC). The content of the application for recognition of a citizen as legally incompetent has its own characteristics.

The application must set out the circumstances indicating that the citizen has a mental illness or mental disorder, dementia or other mental illness, as a result of which the person cannot understand the actual nature and significance of his actions or direct them (Part 2 of art. 324 of the CPC). The applicant is exempt from paying court costs.

The court, having established that the person who submitted the application acted in bad faith in order to deliberately unreasonably deprive the citizen of his legal capacity, collects from him all court costs related to the consideration of the case (part 2 of art. 326 of the CPC).

Cases of this category are considered in the order of special proceedings within up to one month from the date of completion of the preparation of the case for trial.

The preparation of the case for trial is carried out within ten working days from the date of acceptance of the application to the court. An extension of this period is not allowed.

After the case is initiated, the judge appoints an official representative, a lawyer, to represent and protect the interests of the citizen in the case.

An official representative - a lawyer has the authority of a legal representative. According to the law, the legal assistance of such a lawyer is provided free of charge at the expense of budgetary funds (Part 1 of art. 325 of the CPC).

If there is sufficient data on a mental illness or mental disorder, dementia or other mental illness of a citizen, the court appoints a forensic psychiatric examination to determine his mental state.

If a citizen clearly refuses to undergo an expert examination, the court, in a court session with the participation of a psychiatrist, may issue a ruling on the compulsory referral of a citizen for a forensic psychiatric examination (Part 2 of Article 325 of the CPC).

The court considers the case of declaring a citizen legally incompetent with the mandatory participation of a representative of the guardianship or guardianship authority and a prosecutor.

A citizen whose recognition as legally incompetent is being considered is summoned to a court hearing, if possible due to his state of health (Part 1 of art. 326 of the CPC).

During the proceedings on the recognition of a citizen as legally incompetent, the court is obliged to examine not only the expert opinion, but also other evidence collected in the case.: extracts from the medical history of medical institutions in which he was on a special account; certificates of health and other acts, statements indicating a mental illness of a citizen (in particular, documents drawn up by police officers), from which it is clear that the citizen has serious deviations from the usual norms of behavior, his actions are not characteristic of a mentally healthy person.

The court's decision is regulated by art. 327 of the CPC. The court decides to reject the application if it finds that there are no grounds for declaring the citizen legally incompetent. A court decision by which a citizen is declared legally incompetent is the basis for the appointment of an incompetent guardian by the guardianship or guardianship authority.

The guardianship or guardianship authority is obliged to inform the court within ten days about the appointment of a guardian to an incapacitated citizen. Recognizing a citizen as legally incompetent means depriving him of the ability to independently acquire rights.

On behalf of a citizen who has been declared legally incompetent, transactions are made by his guardian (Clause 2, Article 26 of the Civil Code). The observance of legality in the consideration of cases on the recognition of a citizen as legally incompetent is an important guarantee of judicial protection of civil rights.

Therefore, in cases of this category, it is necessary to comprehensively, fully and objectively clarify the existence of the circumstances that served as the basis for making such claims, and ensure that they are considered in strict accordance with the provisions of Chapter 35 of the CPC.

The legislation does not provide for the court to consider cases on the appointment of a forensic psychiatric examination.

In accordance with Part 4 of Article 323 of the CPC, a case on declaring a citizen legally incompetent is initiated in order to protect the interests of the incapacitated. According to Part 2 of Article 48 of the CPC, the court does not accept the applicant's refusal from the application if this refusal contradicts the law or violates someone's rights, freedoms and legitimate interests.

55 of the CPC, a person who has submitted an application in defense of other people's interests, including in defense of the interests of an incapacitated citizen, has no right to refuse the application. It follows from the requirements of these legal norms that in cases of the generalized category, the applicant's refusal of the application cannot be accepted and the proceedings cannot be terminated on the basis of the applicant's refusal of the application.

It seems to be the correct practice of those courts in which rulings are issued on the preparation of a case for trial without clarifying the rights of the parties to resolve a dispute by an amicable settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation or an agreement on the settlement of a dispute through a participatory procedure, or to apply for dispute resolution to arbitration.

The parties to the claim proceedings are entitled to these rights. The case of recognizing a citizen as having limited legal capacity is considered in a special proceeding, in which, moreover, there is only the applicant and there is no other party with whom a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or an agreement on applying for dispute resolution in arbitration.

According to Part 1 of Article 325 of the CPC, an official representative - lawyer is appointed by a judge's ruling when preparing a case on declaring a citizen legally incompetent.

Article 82, Part 2 of Article 325 of the CPC provides for the appointment of a judicial examination by the court. By virtue of Part 9 of Article 82 of the CPC, the ruling on the appointment of an expert examination is not subject to appeal and protest. Articles 272, 273 of the CPC establish the court's right to suspend proceedings on the case. According to Art. 275 of the CPC, a court ruling on the suspension of proceedings in cases provided for by this Code may be appealed or appealed to the court of appeal. Therefore, it seems correct for the court to issue a separate ruling on the appointment of a forensic examination, stating that it is not subject to appeal and appeal, and a separate ruling on the suspension of proceedings in the case, stating that it is subject to appeal and appeal.

168, 274 of the CPC, if an expert examination is appointed by the court, the proceedings on the case are suspended until the expert opinion is submitted to the court. Article 303 of the CPC prohibits the extension of the time limit for preparing special proceedings for trial. Therefore, when appointing an expert examination, the ruling should indicate the suspension of proceedings in the case, and not the extension of the period of pre-trial preparation, and the period of suspension in accordance with the law is until the expert opinion is submitted to the court.

In accordance with paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/2003 No. 5 "On judicial decision", the date of the judicial act is the day of its announcement. Therefore, the date of the ruling on the resumption of proceedings in the case, suspended until the expert opinion is submitted to the court, cannot be earlier than the date of receipt by the court of the expert opinion. Accordingly, the date of the ruling on the appointment of the said case to trial may not be earlier than the dates of receipt by the court of the expert opinion and the resumption of proceedings in the case.

Judicial proceedings should be conducted with the participation of a prosecutor, an official representative - a lawyer representing the interests of the person against whom proceedings have been initiated to declare him legally incompetent, interested persons, as well as the citizen himself, if possible due to his state of health.

At the same time, there have been cases of court proceedings without the participation of a representative of the body performing the functions of guardianship or guardianship, whereas in this category of cases the participation of this representative is mandatory (Part 1 of art. 326 of the CPC).

Decisions do not always indicate the degree of kinship between the applicant and the person against whom the case for recognition of incapacity has been initiated, evidence confirming the existence of family ties between these persons or their residence in the same family.

On the cancellation/amendment of judicial acts on appeals/protests

             The reasons for the cancellation of judicial acts were the failure to reach the age of majority and legal capacity of a person recognized by the court as legally incompetent at the time of the court's decision, in connection with which the applicant is the legal representative of his minor daughter and therefore ensures the protection of her interests; the existence of a court decision recognizing the same citizen as previously incompetent; consideration of the case without the participation of a lawyer and himself a citizen who has been declared legally incompetent; consideration of the case without the participation of a representative of the body performing the functions of guardianship or guardianship, as well as interested persons; the need to appoint a second commission forensic psychiatric examination; the presence of contradictions that were not eliminated by the court of first instance; unreadability of evidence and unreality of familiarization with them; making a decision by the court of first instance based on copies of documents that do not have evidentiary value force; acceptance of the applicant's statement of refusal from the application.

             Thus, by the resolution of the judicial board for Civil cases of the Astana City Court dated 21.01.2016 in case No. 2a-5963-2015, the decision of the Saryarkinsky District Court of Astana dated 01.10.2015 on the recognition of B.I. as incompetent was canceled. At the request of B.E.V., the case was sent for a new hearing to the court of first instance.

The case was considered without the participation of a lawyer and B.I. herself, as well as a representative of the body performing the functions of guardianship or trusteeship, and an interested person, B.I.'s son, who entered into the process and asked to postpone the court session and provided an objection to the application.

The court of first instance did not eliminate the contradictions of the arguments of the persons involved in the case. It became necessary to appoint a second commission forensic psychiatric examination due to the fact that the examination carried out by appointment of the court of first instance raised doubts about its objectivity, since it was carried out on the basis of only the documents provided by the applicant, without taking into account the arguments of the person concerned, which are subject to thorough verification.

Doubts of a close relative, B.I.'s son, about the objectivity of the study, which indicated that his mother lived with him permanently and had not previously been treated for mental illness, were not excluded.

It is also not established when the examined woman was placed in a psychiatric clinic and when the experts made conclusions about her mental state, while the mother was constantly at home. In addition, as follows from the case file, the reason for B.I.'s recognition as legally incompetent was a dispute between her children over the re-registration of her real estate.

At the same time, B.I., who was present at the court session of the collegium, did not show obvious signs of a mental personality disorder, as a result of which she would not be able to adequately assess her actions.

Special knowledge is needed to clarify these circumstances. However, this case was returned by the experts with the message that it was impossible to give a conclusion to the forensic psychiatric examination due to the refusal of the sub-expert B.I. from the examination.

Thus, there are contradictions in the case that have not been eliminated by the court of first instance. The applicant B.E.V. provided evidence that is not readable at all and which is not realistic to review.

The Court of first instance also, in violation of the rules of procedural law, did not verify copies of the attached documents with their originals. The case was considered by the court of first instance on the basis of copies of documents that do not have evidentiary force.

 

By the decision of the judicial Board for Civil cases of the Almaty City Court of 29.03.2016, the decision of the Medeu District Court of Almaty of 27.01.2016 on the recognition of B.'s incapacity for work was canceled. According to V.'s application, the case was sent for a new hearing to the court of first instance.

The court of first instance considered the case without the participation of a representative of the body performing guardianship or trusteeship functions.

The representatives of this body were not properly notified of the date (January 27 of this year) of the hearing of the case in court, as confirmed by O.I. Chervonenko's representative, who participated in the court of appeal.

The receipt is not proof of proper notification of the participant in the process, since it has not been signed by anyone, and there is no postal register for mailing.

The question of the possibility or impossibility of citizen B.'s participation in the court hearing was not considered. The lawyer appointed by the court ruling on January 27, 2016, also did not participate in the trial.

The legislation does not provide for the court to consider cases on the appointment of a forensic psychiatric examination.

The ruling on the preparation of a case for trial should not contain an explanation of the rights to resolve a dispute by an amicable settlement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or to seek dispute resolution through arbitration.

When preparing a case for trial, the judge issues a ruling on the appointment of an official representative, a lawyer, to represent and protect the interests of a citizen in the process of the initiated case.

The legislation does not provide for the appointment of a judicial examination, suspension and resumption of proceedings by a judge's ruling.

To be pronounced by a court (not a judge!) a separate ruling on the appointment of a forensic examination stating that it is not subject to appeal and protest, and a separate ruling on the suspension of proceedings in the case, stating that it is subject to appeal and protest.

When appointing an expert examination, it is necessary to indicate the suspension of proceedings in the case, rather than the extension of the period of pre-trial preparation, and the period of suspension in accordance with the law is until the expert opinion is submitted to the court.

It is not allowed to perform any procedural actions during the suspension of the proceedings, including making corrections to the judicial act, assigning the case to trial, etc., without first resuming the proceedings.

Cases of this category are considered within a period of up to one month from the date of completion of the preparation of the case for trial.

The preparation of the case for trial may not exceed ten working days from the date of acceptance of the application to the court. The date of the judicial act is the day of its announcement.

The date of the ruling on the resumption of proceedings in a case suspended until the expert opinion is submitted to the court may not be earlier than the date of receipt by the court of the expert opinion, and the date of the ruling on the appointment of the said case to trial may not be earlier than the dates of receipt by the court of the expert opinion and resumption of proceedings in the case.

In cases of this category, the applicant's refusal of the application cannot be accepted and the proceedings cannot be terminated on the basis of the applicant's refusal of the application.

The case of declaring a citizen legally incompetent is considered with the mandatory participation of a representative of the body performing the functions of guardianship or guardianship.

The decision must contain information about the degree of kinship between the applicant and the person deemed legally incompetent, or about their belonging to the same family, as well as evidence confirming this information.

It is necessary to comply with the requirements for the design and presentation of judicial acts, established by paragraph 9 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 11.07.2003 No. 5 "On judicial decision", Articles 226, 269 of the CPC, as well as Methodological Recommendations.

Regulatory legal framework.

Consideration of cases of the generalized category is regulated:

The Constitution of the Republic of Kazakhstan,

GPC,

GK,

The Code of the Republic of Kazakhstan "On the Health of the people and the Healthcare system",

The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family",

By the Law of the Republic of Kazakhstan dated February 10, 2017 No. 44-VI "On Forensic expertise",

Resolution of the Government of the Republic of Kazakhstan dated March 30, 2012 No. 382 "On Approval of the Rules for the Exercise of State functions of guardianship and trusteeship",

By the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 No. 21 "On the preparation of civil cases for trial",

By the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance",

10. By the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On the judicial decision",

11. Methodological recommendations on the execution of judicial acts of the courts of the Republic of Kazakhstan, approved by the order of the Chairman of the Supreme Court of the Republic of Kazakhstan dated April 1, 2010 (Methodological recommendations).

 

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