Summary

The general public attitude towards persons suffering from permanent mental disturbances is that these persons should be protected against themselves by limiting their active legal capacity. At the same time, due regard should be given to their personal and political rights. The general principle is to limit a person’s active legal capacity as little as possible and to involve the person in the limitation process to the maximum extent.

The limitation of active legal capacity is accompanied by extensive legal consequences. A person with limited active legal capacity cannot marry or get married or execute transactions without the consent of his or her legal representative (guardian). A court may declare such a person to be without active legal capacity also in respect of the right to vote. A person with limited active legal capacity lacks the capacity to exercise procedural rights in a court and to assume procedural obligations in civil, administrative and criminal cases alike. The significant limitation of such rights should be possible only if due regard is given to all the person’s rights.

The author explores whether the applicable Estonian legislation contains any mechanisms ensuring that persons with mental disturbances have the rights and freedoms guaranteed to them by the Constitution and international instruments equally with other members of the society.