“By law, they cannot study or work and they have no right to marry. From the moment the decision is made they are trapped, as courts will only hear challenges to the status if they are submitted by a guardian. Persons with psychosocial and intellectual disabilities in Kazakhstanare stuck in a vicious circle.” The report is based on interviews with individuals with individuals who have at some point been declared “incapable”, their relatives, psychiatrists, NGO workers, lawyers and healthcare officials. It includes the case of Margarita Luchenkova, who was declared “incapable” in her absence by a court on the application of her brother in October 2014. Despite her status, she lives independently, runs a small business, manages her own financial affairs and cares for her mother who has a disability. However, by law she cannot control her own property and cannot independently approach any authority. Doctors do not need Margarita’s informed consent to treat her and she can be hospitalized at the request of her guardian. She is fighting to regain her legal capacity, but as an “incapable” person she cannot defend her rights in court or change her guardian. “I believe that depriving someone of legal capacity should not depend on what a person is diagnosed with,” Margarita said to Amnesty International.
Once a person is declared ‘incapable’, he or she literally has no legal recourse. They lose the power to make decisions about their own lifeHeather McGill, Researcher on Central Asia at Amnesty International
Legal capacity can only be restored if the person is judged to have been “cured” and if their guardian, or a prosecutor, applies to restore it. In practice, it is very rare for legal capacity to be restored and most people will remain under guardianship for life. Between 2014 and 1 April 2018, only 14 people regained their legal capacity. There are at least 16,000 who have been deprived of it in Kazakhstan. One of them is Vadim Nesterov whom Amnesty International met in February 2018. He spent his whole childhood in orphanages as he was given a diagnosis of “mental retardation.” After he turned 18, he was transferred to an adult psychiatric hostel. He was declared “incapable” without being informed shortly after. “I went to the bank with a social worker and was given some money. Then I heard them call me “incapable”. I went to the director and asked: “Why did you do that? Am I an invalid?” He said: “No it is not because ofthat. It is because you are living at the state’s expense and you are given everything you need,” Vadim recalled. Since 2017, Vadim has been living with three others in a sheltered housing project run by the NGO, The Association of Psychoanalysts, and is currently working in the training cafes run by this group. “Guardianship in Kazakhstan is a relic of a system that condemned persons with disabilities to a life in institutions hidden from the public gaze,” said Heather McGill.
I believe that depriving someone of legal capacity should not depend on what a person is diagnosed withMargarita Luchenkova, deprived "incapable" by the court in her absence
“The criteria for depriving people of legal capacity are vague and set a low threshold considering the devastating consequences of such a decision. Deprivation of legal capacity on the basis of a medical diagnosis is squarely at odds with a human rights-based approach to disability.” Amnesty International has highlighted how Kazakhstan is not living up to its obligations as a state party to the Convention on the Rights of Person with Disabilities (CRPD). Kazakhstan ratified the CRPD in 2015 and since then has not abolished the guardianship regime for persons with disabilities, a system that is contrary to the CRPD. Amnesty International calls on the Kazakh authorities to lay out a timetable for establishing an adequate system of support for persons with psychosocial and intellectual disabilities – one based on the actual capacity of the person concerned and tailored to their needs. “Kazakhstan must abolish guardianship and guarantee human rights for all. Persons with psychosocial and intellectual disabilities must be able to exercise their rights as equal members of society without losing their legal capacity,” said Heather McGill. “In the meantime, anybody declared ‘incapable’ must have the right to represent themselves in court and to apply to reverse “capability” decisions and change guardians.”
Guardianship in Kazakhstan is a relic of a system that condemned persons with disabilities to a life in institutions hidden from the public gazeHeather McGill, Researcher on Central Asia at Amnesty International