Last year, the Moldovan Institute for Human Rights (IDOM), through the attorneys of its Litigation and Advocacy Program, in partnership with Keystone Moldova, started a number of cases on the re-obtaining of property of persons with mental disabilities who had been defrauded during institutionalization and deprivation of their legal capacity.
According to the IDOM lawyer Valerian Mămăligă: “Until recently, a person with mental disabilities could be declared incapacitated under a court judgment and deprived of legal capacity. And so, the person would be deprived of their fundamental rights while their decisions would be made by their guardian. The persons under guardianship would often be placed in residential institutions while the guardian remained in charge of their property, including of its alienation. At present, with the amending of the Civil Code and of the Civil Procedure Code, more and more persons who had been declared incapacitated are now being reinstated in their rights by having their legal capacity acknowledged. Theoretically, they could return to the community but most of them do not have a place to live because other people live now in their houses, or they had been sold.”
One of such cases is the one of Ion (name is changed – author’s note) who lived with his family until he was 14, with his two sisters. After his parents died, he was placed in the Orhei Boarding House for Children with Mental Disabilities. Unfortunately, of the property he was supposed to inherit, there is only the land plot there now on which the family’s house was once located, while the other land plots had been fraudulently sold.
Keystone specialists intervened in this case and requested the assistance of an IDOM’s lawyer to obtain Ion’s inheritance share. Since the beneficiary had not accepted his succession in due term because the authorities of the Children’s Boarding House had not undertaken the necessary actions of information about the deadline for accepting the succession after mother’s death, the property right was assigned to his sister.
In order to redeem Ion’s inheritance rights, IDOM lawyer filed a complaint in court in Ion’s interests and requested prolongation of the term for accepting the succession after mother’s death, and namely one half of the testamentary property.
In another case, Sergiu (real name was changed – author’s note) was born with a congenital infection and is mentally retarded. He lived with his mother until he was 39 and then was placed in the Cocieri Boarding House. He has been there for 19 years. Five years ago, his mother sold the apartment, being unaware that her son had a share in it. The lawyers found that Sergiu’s mother in fact wanted to sell her apartment in exchange for life provision but she had been deceived by the buyer and in fact signed a sale and purchase contract. Sergiu had also lost his share in his Chișinău apartment because he had been misled and forced to sign a power of attorney with the notary by which he had granted his mother the right to dispose of his assets.
Later, when Sergiu’s mother understood that she had been deceived, together with her son filed a complaint in court for recognizing the nullity of the sale and purchase contract. The court ruled to reject their complaint as groundless, and thus they lost ownership of the only house they had.
IDOM lawyers intervened to provide legal assistance to Sergiu at the phase when the court judgement under which Sergiu and his mother had lost their ownership of their only house was appealed with Chișinău Court of Appeal. The latter ruled to accept the appeal, dismiss the first instance court judgement and recognize as void the apartment sale and purchase contract.
The dispute is now pending before the Supreme Court of Justice.
Regaining of one’s property right was also the goal in the case of Andrei (name is changed – author’s note) who has also been deprived of his legal capacity. His close relatives had refused to take care of him and so, the guardianship on him and his brother was assigned to a non-related person who at that time was holding the position of chief of the Department for the Protection of Child Rights. The guardian did not live together with his dependents, having placed him in the Boarding House of Bălți. After Andrei’s brother died, the guardian sold his brother’s share in the apartment to a relative without Andrei’s knowledge.
Keystone Moldova requested IDOM lawyers to provide legal assistance to Andrei, especially with verifying the legality of the guardian’s administration of his and his brother’s property and of the sale of one share of the joint property held by the latter.
According to IDOM lawyer Olesea Doronceanu – “Having reviewed the beneficiaries’ files, we found that their placement in a boarding house raised very many questions, while the administration of their property, and especially the sale of one share of their joint property is not clear and apparently abusive and contrary to the law.
We filed a criminal complaint in the beneficiary’s interests with the National Anticorruption Center (NAC) and requested it to start an investigation in order to establish the correctness, proportionality and legality of the guardian’s and guardianship body’s duties in regard to their dependents.
At IDOM’s request, NAC started a criminal case under art.328 of the Moldovan Criminal Code “Exceeding one’s power or exceeding one’s work duties”. The beneficiary was then found injured party and heard in the case.
The case is pending.