When representatives of the Sector for the Rights of Children, Youth and Social Protection from the Institution of the Protector of Human Rights and Freedoms of Montenegro (Protector) visited the “Grabovac” Nursing Home in Risan in October 2022, they were introduced to Groom. Her whole life was a struggle in which she never really had any real help. She spent most of it on the margins - living in a camper, on social assistance, alone, sick and without family support. She had serious health problems for years, and was treated at the Dobrota Special Psychiatric Hospital several times. She also told the Ombudsman that she was a victim of violence and rape.
At the initiative of the Center for Social Work (CSR) Bar, and by the decision of the Basic Court in Bar in 2020, Mirela was completely deprived of legal capacity. Her guardian became a person designated by the CSW Bar. The Basic Court and the CSW Bar assessed that Mirela was unable to independently take care of her rights and interests due to her problems. It is interesting, however, that this court made such a decision without Mirela being heard at all, nor was she examined by an expert.
Due to these shortcomings, the Higher Court in Podgorica overturned that decision in 2020 and ordered a retrial. Mirela was given a lawyer, she was heard, an expert witness actually examined her this time, but the court again decided the same thing: to completely deprive her of legal capacity. That decision became final at the end of 2021.
The Protector's opinion from 2023, in which Center for Investigative Journalism of Montenegro (CIN-CG) had insight, is that the system has seriously failed in Mirela's case, that her rights to adequate support as a person with psychosocial disabilities and in a state of social need, as well as the right to protection from violence, have been violated. He also pointed to serious shortcomings in the way the system deprives, but also (fails to) review decisions on the termination of legal capacity.
When a person is completely deprived of legal capacity, in practice this means that they no longer have the right to make decisions about their own life, but rather someone else, namely a guardian, decides about their body, property and movement. Complete deprivation of legal capacity is considered a form of civil death, according to several analyses and studies dealing with this topic. A person can also be partially deprived of legal capacity (some decisions are allowed, while others require the consent of a guardian), which is a milder measure, but still a serious restriction of autonomy.
Neither procedure is in accordance with the Convention on the Rights of the Child.
"No procedure for deprivation of legal capacity in Montenegro is in line with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), even when conducted in accordance with the Family Law and the Law on Non-Contentious Procedure, so referring to the Convention in decisions is a particularly interesting practice of some judges," the analysis "Legal Capacity in Montenegro: Analysis of the Legal Framework and Roadmap for Harmonization with the UNCRPD" by the United Nations Development Program (UNDP) from 2025 points out.
International standards, laws and conventions treat deprivation of legal capacity as a measure that can be abused for the systematic deprivation of human rights and should be resorted to only when all other protection and assistance mechanisms have been exhausted.
According to one of the most important documents in this area, the United Nations Convention on the Rights of Persons with Disabilities (CRPD), persons with disabilities have legal capacity on an equal basis with others in all aspects of life, and the state is obliged to provide them with support in decision-making, with clear safeguards against abuse and measures that respect the person's will.
The CRPD Committee has criticized both the guardianship regime and “substitute decision-making” (when someone else decides for the person) and insists on a move to supported decision-making (a model in which the person retains the right to make their own decisions, but with the help and support of others).
In practice, the deprivation of legal capacity opens the door to a series of consequences - from the inability of a person to consent to treatment, manage money, choose where to live, to difficult access to justice.
The Council of Europe has also been suggesting for years that states should review laws on legal capacity and guardianship and remove shortcomings that push PWDs into a zone where their rights are only formal. The European Court of Human Rights (ECHR) has also pointed out, through cases such as Shtukaturov v. Russia and Stanev v. Bulgaria, that complete deprivation of legal capacity can lead to serious violations of rights, especially when a person has no real participation in the proceedings, no effective control and legal remedy, or when such status practically becomes a path to isolation and institutionalization.
“The biggest systemic breakdown is due to the combination of domestic legislation that is in force, which is contrary to the Convention and the human rights-based model, case law and the actions of courts that apply such laws with rigid and outdated models of access to disability and social work centers, which, instead of ensuring a dignified life and inclusion in community life, ‘take care’ under the pretext of the best interest,” the executive director of the NGO Association of Youth with Disabilities of Montenegro (UMHCG) and activist told CIN-CG. Marina Vujacic.
According to her, "depriving legal capacity solely due to the existence of long-term impairment instead of determining the type and level of support needed in practice does not represent protection for a specific person, but rather abuse."
"No one is capable of everything and no person is completely incapable. But, when it comes to people with disabilities, the system considers us incapable and we have to prove to ourselves our entire lives how capable we are and what we are capable of, without any or limited support from that same system to express our full potential," says Vujačić.
At least 700 people under guardianship
In Montenegro, according to data CIN-CG received from social work centers, there are at least 700 people under guardianship, but the exact number remains unknown, as not all social work centers submitted data by the time this research was published.
There are currently 207 people under guardianship in Podgorica, 142 in Bijelo Polje, 14 in Mojkovac, 43 in Danilovgrad, 99 in Bar and Ulcinj, 48 in Kotor, 47 in Cetinje, and 32 people under guardianship in Herceg Novi. According to data from the Center for Social Work, which is responsible for the municipalities of Berane, Andrijevica and Petnjica, there are 41 people under guardianship in these cities, while there are 25 in Plav and Gusinje.
Mirela, as can be seen from the opinion of the Protector from 2023, believes that the decision to completely deprive her of legal capacity was unfair, that she did not adequately participate in the proceedings, and that the guardian assigned to her by the Bar Social Welfare Center is not cooperating with her.
Interestingly, although the Basic Court in Bar ruled that she was not capable of making her own decisions, the Bar Social Welfare Centre soon gave her permission to move freely outside the “Grabovac” Home for the Elderly in Risan, where she was placed. The management of that home noted that she constantly objected to the placement, that she wanted to live alone, and that she requested that her case be reconsidered. The management wrote to the Bar Social Welfare Centre several times to reconsider restoring her legal capacity, but to no avail.
The Ombudsman's opinion states that the Home offered to provide Mirela with an apartment in Bar free of charge and to provide her with support in the community, but this did not happen. Mirela left the Home on her own in March 2023.
"Special attention should be paid to the right of a person to be heard in the proceedings, to be represented by a (professional) person who is not in a conflict of interest, as well as to ensuring the so-called 'equality of arms', i.e. equality in the use of procedural means," the Ombudsman's opinion states, noting that none of this was respected in Mirela's case during the first-instance proceedings.
"The person represented was an employee of the Bar Social Welfare Center, who initiated the procedure for the deprivation of legal capacity. In this specific case, a person whose interests conflict with those of the person under guardianship could not be appointed as a guardian... The fact is that when the decision to deprive the person of legal capacity enters into legal force, the person ceases to be capable of proceeding, so that he or she cannot independently file a review or other extraordinary legal remedies," the opinion of the Protector states.
CIN-CG contacted the Bar CSR and asked about this specific case, but no response was received by the time the article was published.
"The conflict of interest in Montenegro was pointed out in 2017 by the United Nations Committee on the Rights of Persons with Disabilities, whose members, among other things, questioned the way in which the institute of deprivation of legal capacity was prescribed and the role of social work centers as guardianship bodies, as well as the role of employees in the centers. The Committee also pointed out the lack of control mechanisms, i.e. measures to prevent conflicts of interest, and special concern about the current regimes of substitute decision-making and guardianship that prevent the exercise of various rights. I will remind you that a person deprived of legal capacity becomes the object of law, not its subject," says Vujačić and reminds that the only progress has been made in the field of electoral legislation, and only in the part of active voting rights, i.e. the right to vote.
"In all other areas, persons deprived of legal capacity cannot be holders of rights or manage their lives, but against their will they may be subjected to or exposed to various human rights violations," Vujačić points out.
Courts almost routinely revoke legal capacity
Data from the 2024 Analysis of the Deprivation of Business Capacity of Persons with Disabilities of the UMHCG indicate that from January 2021 to September 2024, social work centers themselves initiated procedures for the deprivation of business capacity in 194 cases, while in only 33 cases did they initiate procedures for reviewing the decision, and in Bijelo Polje.
The UNDP analysis examined 49 court decisions out of a total of 129, which only related to deprivation of legal capacity for the period from 2022 to 2024. It is important to note that the actual number of cases of deprivation of legal capacity in that period is much higher, as the analysis included only a limited sample of court decisions and did not address decisions on the extension of parental rights (which also entail deprivation of legal capacity).
The largest number of available decisions from that period was from the Basic Court in Podgorica - 48, of which UNDP analyzed 17 judgments, and the smallest from the Basic Court in Berane - three (two were analyzed).
In only 4,1 percent of cases did the court reject the motion to deprive the person of legal capacity, while in all other cases the motion was accepted (95,9 percent).
"In all cases in which the court issued a decision on legal capacity, it was a complete deprivation of legal capacity and no partial deprivation or restoration of legal capacity," the UNDP analysis states.
In 81,6 percent of cases, the initiators of the procedure were family members, in 16,3 percent, they were social work centers, and in only 2,1 percent of cases, the courts initiated the procedure ex officio. In half of the cases in which the CSW was the initiator, the temporary representative of the person was an employee of the CSW. In 75 percent of such cases, the temporary guardian was an employee of the CSW that submitted the proposal to initiate the procedure, and in one case, it was an employee of another CSW.
"It is problematic when a person is represented by a person who is not qualified to provide legal defense in a process in which the person is deprived of basic rights, and this needs to change. In cases where the person's temporary guardian, or their representative in the proceedings, works in the same CSW as the proposer, not only the quality of the representation, but also the impartiality of such a representative is further called into question," the UNDP analysis further emphasizes.
An analysis of the case law on deprivation of legal capacity conducted by the Human Rights Action (HRA) back in 2017 pointed to various problems related to deprivation of legal capacity. At that time, as many as 52 cases were recorded in which proceedings were initiated by unauthorized proposers.
This practice has continued, as the UNDP analysis notes that courts continue to adopt proposals from unauthorized proposers, even though this should be completely eradicated.
According to a UNDP analysis, in 2024, 52,4 percent of persons deprived of legal capacity were men, while 47.6 percent were women. In a 2017 HRA analysis, 57 percent of procedures for deprivation of legal capacity concerned men and 43 percent concerned women.
"One possible reason for the more frequent deprivation of legal capacity of men could be the pronounced gender inequality in property ownership, especially real estate, in favor of men in Montenegro. In such a case, relatives could have an interest in taking over the property of their relative who they believe may threaten their property interests and the interests of their heirs," the UNDP analysis states.
The number of proceedings increased sharply after the introduction of a monthly guardianship fee
In 2015, the Parliament of Montenegro adopted amendments to the Law on Social and Child Protection, introducing the right to a monthly allowance of 193 euros for the parent or guardian of a person receiving personal disability benefits. This allowance has been changing in line with the increases and currently amounts to around 300 euros.
It was during this period, according to CIN-CG's analysis of previous court rulings available on the official website of the courts of Montenegro (which were not included in the UNDP analysis), that a sharp increase in the number of proceedings for deprivation of legal capacity was recorded.
In at least 20 judgments analyzed by CIN-CG from 2015 and 2016, proposals to deprive people of legal capacity were withdrawn after a court expert determined that the people were capable of taking care of themselves. This suggests that the proceedings were not initiated because of a genuine need to protect these people, but for other reasons.
Social worker and head of the Adult and Elderly Service at the Social Welfare Center Podgorica Suzana Milović confirms to CIN-CG that it was precisely after the adoption of these legal amendments that they were faced with a huge number of requests for deprivation of legal capacity.
"Although the financial motives are understandable, it was obvious that this could be a serious abuse of the system and the instrumentalization of a measure that, by its nature, would have to be extreme and exceptional," Milović said.
In one case from 2025, the Basic Court in Cetinje rejected as unfounded the proposal of the Cetinje Social Welfare Centre to deprive a woman of her legal capacity, which was initiated due to allegations of her impaired psychophysical condition and poor living conditions in a building she uses without a formal legal basis. After the procedure, hearing and direct psychiatric examination, the court determined that this woman, although living in modest and substandard conditions and having certain psychological problems, does not have intellectual impairments that would make her incapable of taking care of herself, her rights and interests. The court expert concluded that she is communicative, capable of reasoning and independent decision-making, and that there is no basis for either full or partial deprivation of legal capacity.
Unlike that case, in which the court clearly distinguished poverty and an unconventional lifestyle from actual incapacity to reason, Mirela's story shows how unfair the system can be. As can be seen from the opinion of the Protector, the CSW in Bar explained the reasons for initiating the procedure for deprivation of legal capacity by saying that Mirela is a long-term beneficiary of the social system, without family support, with a chronic psychiatric illness and a series of crisis episodes during which she lived in extreme misery and insecurity. Mirela, who, unlike the woman in Cetinje, was deprived of legal capacity, was visited by a guardian from the CSW in Bar only once in four years while she was staying in the "Grabovac" Nursing Home, where she had been placed since 2018.
These two cases show how decisions on deprivation of legal capacity often depend on individual assessment and an informed approach of persons working in the system, rather than on the consistent application of standards that should protect the autonomy and rights of the person.
In another case, from 2019, the Basic Court in Bar rejected a woman's request to have her father's legal capacity revoked. The court found that the man, although he is 91 years old and has certain health problems such as hearing loss, does not have a mental illness or intellectual impairment that would prevent him from taking care of his rights and interests on his own. A court expert concluded that he is mentally fit for his age, able to manage property and perform everyday tasks.
Long-standing practice of exclusion from proceedings
According to data from the UNDP analysis, in only 36,7 percent of cases did the judge see the person being deprived of legal capacity, either in the courtroom itself or in a health facility.
"A person's presence at a hearing does not guarantee that they will be heard, so in fact, in only 22,9 percent of cases was the person heard," the document states.
This is a violation of the Law on Extra-Contentious Procedure, according to which a judge may not hear a person who is being deprived of legal capacity, but only after being convinced, in the presence of an expert, that this is not possible.
"It is common practice for an expert to state that a person is unable to be questioned due to their mental state or that a questioning would upset the person. The judge usually states such an expert opinion in the decision itself, and based on it, does not question the person, nor does he or she summon them to a hearing (or fails to visit the person in a health facility)," the UNDP analysis states.
All of these problems were also observed in the HRA analysis from 2017, eight years ago, which means that this is a long-standing harmful practice.
In the majority of cases, as many as 77,5 percent, according to a UNDP analysis, experts explicitly recommend deprivation of legal capacity, although this is not their role, as it represents a medical expert entering the field of law.
"The Law on Non-Contested Procedure stipulates that an expert shall state his/her opinion on 'mental state and capacity to reason', but not on whether a person should be deprived of legal capacity. It is an established practice for expert witnesses to state their opinion on a person's rights, which constitutes an overstepping of their legal role," the analysis warns.
In none of the cases from the UNDP analysis did the court critically review the expert's findings in the part relating to the proposal for complete deprivation of legal capacity.
"From this, it can be concluded that judges retain a passive and formalistic role in the proceedings, focusing almost exclusively on procedural regularity," the analysis states.
"In some proceedings, we did not consider it necessary to deprive a person of legal capacity, but the opinions of the experts are that the person should be deprived of legal capacity, and the court decides based on their opinions," Milović told CIN-CG.
One case of deprivation of legal capacity from 2024 is particularly interesting. The expert did not see the person, so he did not perform a direct examination, nor did he conduct a psychiatric interview, but rather issued his findings and opinion solely on the basis of an insight into the medical documentation. The court also did not hear the person whose legal capacity was to be deprived, nor was she present at the hearing. Thus, a woman, who has Down syndrome, was completely deprived of legal capacity.
In developed countries, people with Down syndrome, with appropriate support and adapted conditions, work, earn money, make decisions and actively participate in the community, in the hospitality industry, administration, art, service industries and other jobs. Examples from the region show that this approach is not an unattainable ideal: in Bosnia and Herzegovina and Serbia (Tuzla and Kragujevac), there have been cafes for years where people with Down syndrome are employed.
The UNDP document describes only one case in which the judge disagreed with the expert that the person had a moderate form of intellectual disability.
"In his report, the expert stated that the documentation shows that this is a case of moderate mental retardation. There is nothing moderate about this syndrome, but rather a serious and incurable developmental disorder. Only in the case of mild mental retardation can one speak of professional capacity, but this is more of a theoretical position, and in practice these persons are almost always incompetent. Moderate and severe mental retardation are incompatible with professional capacity," the judge stated.
This understanding of legal capacity is in complete contradiction with the Convention on the Rights of Persons with Disabilities, but also with an approach that should establish as little interference as possible with a person's autonomy, privacy and integrity in the event of limitations on legal capacity.
"In Montenegro, people with disabilities are still systematically viewed as less capable, and instead of starting from their capabilities, potential, and right to support in decision-making, the dominant approach is one that equates disability with incapacity," the executive director of the Union of the Blind of Montenegro (SSCG) told CIN-CG. Goran Macanović.
According to him, such a relationship is most clearly seen in institutional practice.
"Too often, measures are resorted to that permanently limit people's autonomy, instead of developing support mechanisms that would enable them to live with dignity and independence," Macanović states.
Mirela's story shows how easy it is to get lost in the system, but also how important it is when at least one institution decides to see them as a person, not a problem. This case also points to a more dangerous picture: deprivation of legal capacity in practice often becomes a mechanism that enables abuse, violence, and systemic control over the lives of people with disabilities, including abuses in the management of their property and income, which, as the continuation of this CIN-CG research that follows has shown, have been numerous in previous decades, and which are made possible precisely by controversial solutions to deprivation of legal capacity.
Bonus video:
