On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Zadrahimi, judges, with the participation of Mr. Marcel Lupu, Registrar, considering the appeal filed on 28 December 2016 and recorded at the same time, examining the appeal mentioned in open court, having regard to the acts and proceedings of the dossier, acting on 7 March 2017 in the Chamber Council following the judgment, a decision: 1. The origin of the case lies the plea of unconstitutionality of the phrase "is not declared by the Court as incapable" of section 3 subpct. 1) of the framework regulation on the organisation and functioning of social service "sheltered", approved by Government decision No. 711 of 9 august 2010, raised by Doina Ioana Straisteanu lawyer in file No. 3-244/2016 on the role of the Balti Court.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 28 December 2016 by judge Abdu Daniels within the Balti Court of Justice under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
3. the author of the main exception claimed essentially that the provisions of section 3 subpct. 1) of the framework regulation on the organisation and functioning of social service "sheltered", which excluded from the category of beneficiaries of the service people who have been declared incapable by the Court are contrary to articles 16, 27, 28, 29, 34, 36, 37, 46, 47, 51, 53 and 54 of the Constitution.
4. By decision of the Constitutional Court of 19 January 2017 referral has been declared admissible, without prejudeca Fund case.
5. In the process of examination referral, the Constitutional Court requested the opinion of the Parliament, President and Government.
6. In the plenary session of the Court of constitutionality, the exception was supported by the designer, Doina Ioana Straisteanu author referral.
7. The Government was represented by the Vaishya, head of The political Directorate of social protection of people with disabilities within the Ministry of labour, social protection and family.
A. the main dispute Circumstances 8. By the decision of the Court of 1 September 2011 Dondușeni, 2003 has been declared incapable at the request of the Prosecutor of the district Dondușeni.
9. During the meeting of the Court with respect to the Declaration of unfitness, the lawyer appointed to defend the interests of A.C. acceptance demand of a Prosecutor concerning deprivation exercise capacity.
10. After the Declaration of unfitness, A.C. has been institutionalized in the psycho-neurological hospital of Bălți.
11. After termination of grant medical services by the psycho-neurological hospital of Bălți, a. C was placed in the mental health community center, mun. Bălţi. He was subsequently selected another form of protection through temporary placement in social service "sheltered".
12. As a result of a reassessment of Balti municipal Council, noted that this year may not be able to benefit further from the social services ' sheltered ', because it does not meet the eligibility criteria laid down in the framework regulation on the organisation and functioning of social service "sheltered", i.e. is declared incapable by a court decision and has no domicile in mun. Bălţi.
13. On 15 July 2016, through lawyer Doina Ioana Straisteanu, A.C. Balti municipal Council has made a prior request, which called for the cancellation of the phrase "citizen of the municipality of Balti" in point 5 letter. a) of regulation on the organisation and operation of social service "sheltered", approved by decision of the Balti municipal Council No. 19/48 of 21 December 2015.
14. On 19 September 2016, a. C has made a contentious administrative proceedings against the Balti municipal Council, for the Commission intervening accessory social service "Dwelling", concerning the obligation to challenge an administrative act and to access social services unconditionally "Dwelling".
15. On 14 November 2016, during the meeting, Doina Ioana Straisteanu lawyer has filed a request for the lifting of non-constitutionality exception to the phrase "is not declared by the Court as incapable" of section 3 subpct. (1) of the framework regulation on the organisation and functioning of social service "sheltered", approved by Government decision No. 711 of 9 august 2010.
16. by the conclusion of 16 November 2016, the Court ordered the erection of the main exception and referral to the Constitutional Court for settlement.
B. relevant Legislation 17. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 16Egalitatea "(1) respect and protect the human person constitutes a duty of the State.
(2) all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "
Article 51Protecţia of disabled persons "(1) the disabled persons shall enjoy special protection from the whole society. The State shall ensure that normal conditions for medical treatment and rehabilitation, education, training and social integration (2) no one may be subjected to any medical treatment, except in cases provided for by law. "
18. The relevant provisions of the civil code of the Republic of Moldova nr. 1107-XV of 6 June 2002 (Official Gazette, 2002, no. 82-86, 661) are as follows: Article 24Declararea failure of the individual "(1) a person who due to a mental disorder (mental illness or mental disabilities) may not be aware of or may be directing his actions declared by the Court as incapable. Over her guardianship shall be established.
(2) the legal acts in the name of physical person declared incapable are concluded by the guardian.
(3) if the grounds in which the individual has been declared incapable are gone, the Court declared as able. On the basis of judgement, Trusteeship of the person shall be cancelled.
Article 40Obligaţiile of the guardian and trustee of the Guardian and trustee are required: a) to live with the one released under the tutorship and guardianship authorities to notify the change of domicile. The trustee and the person under guardianship who has attained the age of 14 years can dwell only with the agreement of guardianship;
b) take care of the maintenance of the person placed under guardianship or Trusteeship;
c) to defend the rights and interests of the person placed under guardianship or trusteeship.
[…]”
Article 46Îndepărtarea and release the guardians and curators from fulfilment of their [...]
(4) in the case of placing the person under tutorship or guardianship in a public institution of social assistance, education, educational, medical treatment or in another similar institution, guardianship authority shall issue to the guardian or curator of the fulfilment of their obligations if it does not conflict with the interests of the person placed under guardianship or trusteeship.
[…]”
19. The relevant provisions of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003 (reprinted in the Official Gazette No. 2013, 130-134, art. 415) are as follows: Article 308Anularea limitations on the exercise capacity and capacity declaration ' [...]
(2) in the case referred to in article 1. 24 para. (3) of the civil code, the Court, at the request of the person declared incapable, guardian, family members of the person, of the psychiatric institution (psihoneurologie), the organ of guardianship and Trusteeship and the basis of the report of the forensic psychiatric expertise, starts a process and issue a ruling declaring capable person însănătoşită. In light of this, the guardianship imposed upon hotărâi of the person shall be cancelled. "
20. The relevant provisions of law No. 60 of 30 March 2012 on social inclusion of persons with disabilities (Official Gazette, no. 155-159, art. 508) are as follows: Article 8Egalitatea and nondiscriminarea persons with disabilities ' (1) persons with disabilities have the right to be recognised, wherever they are, as individuals with equal rights before the law.
(2) persons with disabilities shall enjoy legal capacity equally with others in all aspects of life, and where appropriate, and protection measures and legal assistance in the exercise of legal capacity under the laws in force.
(3) persons with disabilities have the inalienable right to respect for human dignity regardless of disability or other health condition, regardless of race, nationality, ethnic origin, language, religion, sex, sexual orientation, views, political affiliation, wealth, social origin or any other reason.
(4) persons with disabilities enjoy all civil rights, political, social, economic and cultural, and fundamental freedoms sanctioned by the Constitution of the Republic of Moldova, through the UN Convention on the rights of persons with disabilities (ratified by the law No. 166 of 9 July 2010), this law and other normative acts.
(5) persons with disabilities, in addition to equal rights with other people, they have equal obligations and responsibilities under the legislation of the Republic of Moldova.
6) discrimination against persons with disabilities in any distinction, exclusion, restriction or preference, marginalization, and the refusal to create favorable conditions and reasonable adjustment, leading to failure or aggravation of recognition, or of carrying out civil, political rights, economic, social or cultural, is prohibited and is punishable under the laws in force.
(7) the State, through the structures of the Central and local public authorities and institutions specializing in the defence of human rights (Ombudsman), ensures the right of persons with disabilities to enjoy legal capacity equally with others in all aspects of life and guarantee their equal and effective legal protection against discrimination on any grounds.
(8) in order to ensure equality and elimination of discrimination of persons with disabilities, the State promotes the adaptation measures.
(9) specific Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination.
(10) the Minors with disabilities shall enjoy fully all the rights and fundamental human freedoms under conditions of equality with other children.
(11) In all actions concerning children with disabilities will be taken into consideration with priority to the interests of the child.
(12) the State shall undertake measures to ensure that all categories of disabled persons, including women and girls with disabilities are not subjected to multiple discrimination and shall enjoy all the rights and fundamental human freedoms.
(13) the State guarantees the exclusion of any form of discrimination on grounds of disability. "
Article 52Serviciile "(1) for the purpose of rehabilitation and social inclusion, people with disabilities benefit from social services, specialized and highly specialized, in accordance with the legislation in force.
(2) the type of social services intended to benefit the person with the disability is determined by the recommendations contained in the individual program of rehabilitation and social inclusion thereof and based on initial assessment and/or complex of the person/family, carried out by the social worker employed by the territorial social structure to work within City Hall and by the multidisciplinary team , and adapted to the needs of the person concerned.
(3) The social services addressed to persons with disabilities, service providers will ensure the involvement of staff and volunteers, based on the individual needs of people with disabilities.
(4) the evidence of persons with disability beneficiaries of social services is carried out by local public administration authorities, social welfare structures and service providers.
(5) the procedure for the granting of social services is determined by special regulations. "
21. The relevant provisions of law No. 123 of 18 June 2010 in respect of social services (Official Gazette, 2010, no. 155-158, art. 541) are as follows: Article 1Noţiuni "[...]
social services-overview of measures and activities undertaken to meet the social needs of the individual/family to overcome difficult situations, prevention of marginalization and social exclusion;
[…]”
Article 4Dreptul to social services "the right to social services is determined on an individual basis on the basis of the assessment of the needs of the person/family of those services."
The original article 16Evaluarea "[...]
(2) the unit of social assistance, initial assessment, entitled: a) to reject the request, citing the decision by which the person was refused to grant social services;
[…] "22. The relevant provisions of the framework regulation on the organisation and functioning of social service" sheltered ", approved by Government decision No. 711 of 9 august 2010 (Official Gazette, 2010, no. 148-153, 810), are the following: "3. For the purposes of this regulation the notions used signifies: 1) beneficiary of the service-person with mental disabilities, as a result of a mental disorder (mental illness or mental disabilities), aware of their actions and conduct, is not declared by the Court as incapable, has reached the age of 18 years , does not have housing or require improvement of living conditions and that, with support on a regular basis can lead independent living in the community;
[…]
5. the purpose of the service is to create conditions for the development of skills necessary for a lifetime, for social and professional integration in the community of persons with mental disabilities.
6. The objectives of the service are: 1) the prevention of institutionalizing adults with mental disabilities;
2) conditions for guaranteeing the minimum living standards of physical and mental integrity;
3) ensuring care and support services in the community;
4) self-help skills development;
5) facilitating access to guidance services and vocational training.
[…]
8. the Commission is composed of the specialist in the field of social welfare in the territorial structure of social assistance under the District Council, the local government authority of level one in the Service is provided, community social Assistant, family doctor, psychiatrist.
[…]
15. community social Assistant prepares evaluation report of social services, the applicant with the conclusions and recommendations of specialists concerning the placement of the person in the doctor's Office, including the psychiatrist, attesting that the person with mental disabilities are aware of their actions and conduct.
[…]
56. The termination of placement in housing or the Service is effected in accordance with the Commission decision, in accordance with the following criteria: [...] 2) beneficiary is declared incapable by the Court;
[…]
57. The suspension of the program takes place on the basis of the Commission decision, at the request of the Manager of the event or person, specifying the time-limits for suspension. The Commission shall decide to suspend the program in case of early departure the principal for an extended period, limiting the capacity or incapacity of a declaration by the Court or other circumstances that preclude temporary placement in service. "
23. The relevant provisions of the UN Convention on the rights of persons with disabilities (adopted at New York on 13 December 2006 and ratified by the Republic of Moldova Law No. 166 of 9 July 2010) are as follows: "Article 5Egalitatea and non-discrimination 1. States parties recognize that all persons are equal before the law and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States parties shall prohibit all types of discrimination on grounds of disability, and guarantee to all persons with disabilities equal and effective legal protection against discrimination of any kind.
3. In order to promote equality and eliminate discrimination, States parties shall take all appropriate measures to ensure a reasonable adaptation.
4. specific Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under this Convention. "
Article 12Recunoaştere equal before the law "1. States parties reaffirm that persons with disabilities have the right to the recognition, wherever they are, their legal capacity.
2. States parties shall recognize that persons with disabilities enjoy legal assistance on equal terms with others, in all areas of life.
3. States parties shall take all appropriate measures to ensure accessibility for persons with disabilities to the support they may need in the performance of their legal capacity.
4. States parties shall ensure that all measures relating to the exercise of legal capacity provide for appropriate and effective protection to prevent abuse in accordance with international law on human rights. Such a protection will ensure that measures relating to the exercise of legal capacity respecting the will and preferences of the person, will not pose a conflict of interest and did not have an improper influence, are proportional and tailored to the person's situation, apply for the shortest time possible and are subject to periodic revision by a competent authority, independent and impartial tribunal or by a legal body. Protective measures shall be proportionate to the degree to which such measures affect the person's rights and interests.
5. In accordance with the provisions of this article, States parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to manage your own income and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their belongings. "
Article 19Viaţă and integration into the community, "States parties to this Convention recognize the equal right of all persons with disabilities to live in the community with equal opportunities with others, and shall take effective and appropriate measures to ensure that persons with disabilities fully enjoy this right and full integration into the community and participate in its life , including by ensuring that:
a) persons with disabilities have the opportunity to choose their place of residence, where and with whom to live on equal terms with others and are not obliged to live in a particular living environment; b) persons with disabilities have access to a range of in-home services, residential and other community support services, including personal assistance necessary to life and integration in the community, and to prevent isolation or segregation from the community;
(c) community services and facilities) for the population in general are equally available to the disabled and respond to their needs. "
LAW 24. Of the referral, the Court observes that it is aimed at essentially excluded from the category of beneficiaries of social service "sheltered" of persons with mental disabilities who have been declared incapable by the Court.
25. Thus, the appeal relates to a set of elements and principles with constitutional value related to the principle of equality and the protection of persons with disabilities.
A. ADMISSIBILITY Of 26. By its decision of 19 January 2017, the Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). of 27 of the Constitution). In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of Government decisions, in particular the framework regulation on the organisation and functioning of social service "sheltered", approved by Government decision No. 711 of 9 august 2010 is the responsibility of the Constitutional Court.
(2) the exception is raised by one of the parties or its representative, or is lifted by the Court ex officio. Being raised by Doina Ioana Straisteanu lawyer in file No. 3-244/2016 on the role of the Court of Justice concerning the referral of Bălți, the plea of unconstitutionality is made by the subject in charge with this law, pursuant to article 137 para. (1) letter a) and g) of the Constitution, as established by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
(3) the provisions of the contested to be applied to the settlement of the case. The Court observes that the object of the exception of unconstitutionality is the phrase ' is not declared by the Court as incapable "of section 3 subpct. 1) of the framework regulation on the organisation and functioning of social service "sheltered", approved by Government decision No. 711 of 9 august 2010, to be applied to the settlement of the case.
30. the Court note that prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
31. At the same time, the court examining the appeal noted that item 56 sbpct. 2) of the regulation shall determine the termination of the placement in the social services in the event of a declaration of incapacity of the person and item 57 lays down, inter alia, that the grounds for the suspension of limitation of legal capacity of the program and the Declaration of the person as incapable. Taking into account the fact that these provisions are in a causal link with the contested rules, pursuant to article 6 of the code of constitutional jurisdiction, the Court shall retain for examination paragraphs 56 sbpct. 2) and 57 of the framework regulation on the organisation and functioning of social service "sheltered".
(4) there is a previous judgment of the Court has as its object the contested provisions 32. The Court points out that the contested provisions, in the current editorial board, have not been the object of notification constitutionality control.
33. Therefore, the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
34. the Court finds that the author has claimed that the exception provisions challenged are contrary to articles 16, 27, 28, 29, 34, 36, 37, 46, 47, 51, 53 and 54 of the Constitution.
35. In this context, the Court note that, although the author has invoked articles mentioned, the main issue addressed in referral consists in ensuring equality and the protection of persons with mental disabilities.
36. Thus, with regard to the invocation of articles 27 (right to freedom of movement), 28 (intimate, family life and private), 29 (inviolability of domicile), 34 (right to information), 36 (right to protection of health), 37 (right to a healthy environment), 46 (right to private property and its protection) and 47 (right to social security and assistance), of the Constitution, the Court finds the lack of a causal link between constitutional norms and the provisions set forth in the challenged.
37. Therefore, in order to elucidate its compliance with the provisions of the contested constitutional provisions, the Court will operate with the provisions of articles 16 and 51 of the Constitution, taking into account the reasoning set out in its previous jurisprudence and principles guaranteed by the relevant international instruments.
B. the alleged violation CAUSE the FUND to articles 16 and 51 of the Constitution 38. In the author's opinion, the provisions of the main exception subject to constitutionality is in breach of article 16 of the Constitution, according to which: (1) respect and protect the human person constitutes a duty of the State.
(2) all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "
39. At the same time, the author considers that the contested provisions are contrary to article 51 of the Constitution, which lays down: "(1) the disabled persons shall enjoy special protection from the whole society. The State shall ensure that normal conditions for medical treatment and rehabilitation, education, training and social integration.
(2) no one may be subjected to any medical treatment, except in cases provided for by law. "
1. the author of the non-constitutionality exception Arguments
40. The motivation of non-constitutionality exception, the author argues that the contested provisions, which do not allow persons declared incapable to benefit social service "sheltered" to ensure accessibility for persons with disabilities to appropriate measures of protection.
41. According to the author, by virtue of the exceptions to the obligations arising from the UN Convention on the rights of persons with disabilities, the State must ensure an independent life in society and the social inclusion of persons with disabilities.
2. Arguments 42 authorities. In his written opinion, Parliament noted that the social "Housing" is designed for people with disabilities who do not have adequate housing or require improvement of living standards and the resulting independent life in the community.
43. Thus, the Parliament considers that the Government has not challenged this notion pursued the aim of undermining the right of persons unable to tie.
44. At the same time, the Parliament considers that the challenged rule could affect the rights of persons with mental disabilities. Or, the UN Convention on the rights of persons with disabilities and the law on the social inclusion of persons with disabilities do not make a distinction between people with disabilities with full capacity of exercise, and people with disabilities have been declared incapacitated.
45. According to the President of the Republic of Moldova, the social "Housing" is a specialized service, which aims to create appropriate conditions for the development of the skills required of an autonomous life, being designed for people with mental disabilities who realize and guide their actions. Persons declared incapable not have discernment cannot lead an independent life in the community and do not possess the capacity to accumulate skills for integration into social and professional life.
46. Thus, in view of the purpose of the service, the President considers that because of their health status persons declared incapable can not be placed in these dwellings with special status.
47. According to a report by the Government mentioned that the social protection of persons with dizabiltăți shall take the form of benefits and social services, which are meant to ensure social inclusion. In this context, the Government decision No. 711 of 9 august 2010 approving the framework regulation on the organisation and functioning of social service "sheltered".
48. At the same time, the Government claimed that to this social service have access only people with mental disabilities who are not declared incapacitated and can lead a life in the community. Or, in the opinion of Government, becomes impossible, was placed in service for persons incapable, on which it established guardianship since, under article. 40 para. (1) of the civil code, the tutor is forced to live with the one released under the guardianship and to take care of it.
3. Assessment of the Court 3.1. General principles 49. The Court finds that art. 51 of the Constitution enshrines the right of persons with disabilities to enjoy special protection, in the sense that the State should ensure that a policy of equal opportunities, prevention and treatment of dizabilității with a view to the effective participation of people with disabilities in community life. Therefore, this constitutional norm concerns the obligation of the State to ensure equal opportunities for persons with disabilities in relation to the rest of the community, without prohibiting that, for special circumstances, be imposed on specific means of protection for all categories of persons with disabilities.
50. In its jurisprudence, the Court stressed the need to increase as far as possible the autonomy of persons suffering from mental disorders in the activities carried out and measures taken, according to the standards enshrined in the relevant international acts (HCC No.27 November 13, 2014).
51. Under art. 12 paragraph 4 of UN Convention on rights of persons with disabilities (hereinafter referred to as CRPD), States parties shall ensure that all measures relating to the exercise of legal capacity provide for appropriate and effective protection to prevent abuse in accordance with international law on human rights. Such a protection will ensure that measures relating to the exercise of legal capacity respecting the will and preferences of the person, will not pose a conflict of interest and did not have an improper influence, are proportional and tailored to the person's situation, apply for the shortest time possible and are subject to periodic revision by a competent authority, independent and impartial tribunal or by a legal body.
52. In its jurisprudence, the Court noted that, although individuals may be declared incapable by a court act, exercise capacity deprivation may not result in achievement of human dignity, which is the subject of an absolute protection from the State. However, in terms of guaranteeing the dignity of all persons, the possibility of a stand-alone activities in society by providing opportunities to develop and protect their own rights and freedoms will be default insured persons incapable (HCC No. 33 November 17, 2016).
53. the Court pointed out that human dignity can be seen from two perspectives: firstly-as a value intrinsic and inalienable, and secondly-as a "right of personality", which includes psychological life of each values human beings, thereby causing its position in society, and to impose respect for each person. In this "right of personality" derives the existence of minimum guarantees for every person to have the ability to operate freely within society and to develop their personality in the social and cultural environment (HCC No. 33 November 17, 2016).
54. Also according to international laws, respect for the dignity of the human being, for individual autonomy, including the right to make their own choices, and independence of the person, is a fundamental principle.
55. In this regard, in accordance with the provisions of art. 19 CRPD, States parties to the Convention must recognize the equal right of all persons with disabilities to live in the community, given equal opportunity with others, and to take effective action and adequate in order to fully enjoy this right, to be integrated into the community and participate in its life.
56. In order to ensure social inclusion, art. 19 lit. b) of CRPD establishes that persons with disabilities have access to a range of in-home services, residential and other community support services, including personal assistance necessary to life and integration in the community, and to prevent isolation or segregation from the community.
57. In accordance with the provisions of international law. 60 of 30 March 2012 with regard to social inclusion of persons with disabilities mentions that people with disabilities benefit from social services, specialized and highly specialized in rehabilitation and social inclusion.
3.2. Applying the principles in this question 58. Note that Court, with a view to social and professional integration in the community of persons with mental disabilities, creating the necessary conditions for the development of life skills, the Government approved the framework regulation on the organisation and functioning of social service "sheltered".
59. the Court notes that, in accordance with the provisions of the framework regulation on the organisation and functioning of social service "sheltered", this service can benefit people with mental disabilities who are aware of their actions and conduct which have not been declared incapable by the Court.
60. the Court notes that the objectives of this service are: prevention of institutionalizing adults with mental disabilities; ensuring minimum living conditions in order to guarantee the physical and mental integrity; ensure care and support services in the community; self-service skills; facilitating access to guidance services and vocational training.
61. At the same time, the court notice that, while the objectives of the service are integration into the community of persons with mental disabilities, persons declared incapable by court decision were deprived of the opportunity to avail of this service.
62. In this context, the Court stresses the need for the institution's inability, the lodgement of the gap on the one hand, and social services, on the other hand. While the former aims at the protection of individuals with disabilities against the acts and actions of third parties or that may prejudice the rights and interests of the person with mental disabilities, social services are designed to develop the autonomy of the person and the social inclusion of persons with disabilities.
63. Moreover, in the present case the Court finds that the applicant, although declared incapable by court decision, initially benefited from this service.
64. At the same time, the court notice that, under the provisions of section 8 of the regulation, to the grant of housing is protected a Commission formed by the specialist in the field of social welfare in the territorial structure of social assistance under the District Council, the local government authority, representative of the first level in the Service is provided, community social Assistant, family doctor, psychiatrist.
65. in addition, section 15 of the Regulation lays down that the community social assistant prepares the report on the evaluation of an applicant's social services, with the conclusions and recommendations of specialists concerning the placement of the person in the doctor's Office, including the psychiatrist, attesting that the person with mental disabilities are aware of their actions and conduct.
66. The Court finds that respectively, each case is assessed individually by the Commission set up in this respect. 67. Note that Court, according to legal provisions, the person declared incapable by the Court be established guardianship.
68. In addition, in its judgement No. 33 of 17 November 2016, the Court noted that the institution of guardianship is not itself unconstitutional, but in order to be consistent, the Constitution is to be interpreted in the sense in which the Declaration of incapacity for exercise at the persons to whom it is missing entirely discernment, in respect of which the application of other protective measures less restrictive proves to be ineffective.
69. Moreover, in its judgment, the Court pointed out that such a measure should be taken as a last resort, after exhausting other measures less restrictive, actually found by the courts of law in the examination of the application for a declaration of incapacity and the subsequent assessment of the need to maintain a State of incapacity, and only to the extent that does not deprive the person entirely right to conclude legal acts minor or exercise other activities inherent in his personality.
70. At the same time, the Court noted that the institution of guardianship and the legal representative must take into account the person's preferences.
71. In addition, the court notice that, according to art. 46 para. (4) of the civil code, the guardianship authority shall issue to the guardian from fulfilment of obligations in the case of placing the person placed under guardianship in a public institution of social assistance, education, educational, medical treatment or other similar institution. In these circumstances, the Court cannot accept the contention of the Government according to which the provisions of art. 40 para. (1) of the civil code, which establish the obligation of the guardian to reside together with the one released under the guardianship and to take care of it, make it impossible for the placing in service of the persons upon whom incapacitated is established guardianship. However, investment in social services "Dwelling" is a form of social assistance.
72. the Court noted that the right of persons with mental disabilities to social services has a decisive importance in order to ensure social inclusion and prevent segregation of such persons.
73. In this respect, the Court finds that the placement of persons with mental disabilities in the social services ' Housing protected "cannot be made conditional on the existence of a full exercise capacity. Therefore, social services must be accessible to all persons with disabilities.
74. the Court reiterates that, under art. 16 of the Constitution, all citizens of the Republic of Moldova are equal before the law and the public authorities. In addition, the Court noted that the provisions of the CRPD will lay down the obligation of States to ensure the equal right of all persons with disabilities to live in the community with equal opportunities with others, and shall take effective and appropriate measures with a view to their social inclusion.
75. In this context, the Court notes that the contested rule, which excludes from the category of beneficiaries of the social service persons declared incapable, establish a differentiated treatment between persons with disabilities declared incapacitated and disabled people with the full exercise capacity, without having to follow a legitimate purpose and without the existence of an objective and reasonable justification.
76. From the above, the Court retains that limit access of a person declared incapable to social service "sheltered" does not correspond to the positive obligation of the State to take the necessary measures in order to ensure the effective participation of persons with mental disabilities in community life, which is contrary to articles 16 and 51 of the Constitution.
For these reasons, pursuant to paragraph 1 of article 140. (2) of the Constitution and article 26 of the law on the Constitutional Court, articles 6, 62 61, lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. it recognizes the exception of unconstitutionality, raised by Doina Ioana Straisteanu lawyer in file No. 3-244/2016 on the role of the Balti Court.
2. It is hereby declared unconstitutional: the phrase "is not declared by the Court as incapable" in subparagraph (1), section 3);
56-point b(3) 2);
-the phrase "capacity limitation or for a declaration of failure by the Court" in section 57 of the framework regulation on the organisation and functioning of social service "sheltered", approved by Government decision No. 711 of 9 august 2010.
3. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.
The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase
