Thursday, July 29, 2021

Judicial Interdiction

Notorious insanity only lasts for the period during which the person is an inmate of a hospital, an institution for insane persons or a nursing home by reason of his mental condition.  And, the issue whether an infirmity is apparent is at times controversial.  The best means of securing adequate and sustained legal protection for insane and infirm persons is thus through judicial interdiction i.e. the withdrawal of the capacity to perform juridical acts in order to protect the interest of the interdicted person and his presumptive heirs.  


      The phases involved from application to appeal 


a) Application for interdiction 

Judicial Interdiction may be applied for “… by the insane or infirm person himself, or by his spouse, or by any of his relatives by consanguinity or affinity, or by the public prosecutor” (353/1). 


b) Examination of the application 

The court is required to see the person whose interdiction is applied for (354/2), and where his personal appearance is impossible, the court may have the condition of the insane person examined by delegating one of its members or by appointing an expert (354/3).  Before its pronouncement, the court should be convinced that interdiction is necessary (354/1).  


c) Judgment and registration of interdiction 

Where the health and interest of the insane person (351/1) or his presumptive heirs (351/2) so require, the court may pronounce interdiction.  The same reasons justify the pronouncement of interdiction with regard to infirm persons (351/3, 340). The court may define the scope of the interdiction in its judgment (371/1) and can authorize the interdicted person to do certain acts himself (371/2).  Articles 356 and 357 stipulate the requirement and procedures of registering judgments of interdiction and any judgment modifying the effects of interdiction. 


d) Retroactive effect of judicial interdiction 

The condition of insanity obviously precedes the date of application and judgment. In other words, the person who is entitled to apply for the interdiction of a certain person would not file his application to court unless he invokes the condition of insanity.  The court can thus “declare that the insanity of such person was publicly known since such date as may be fixed in the judgment” (352/1).  But the date fixed in the judgment should not precede that of the application for interdiction by more than two years (352/3).  


e) Appeal 

Article 355 enumerates the parties who may appeal against a judgment of interdiction.  The literal reading of the provision seems to exclude the right (of the person who has filed the application) to appeal against the court’s refusal to pronounce interdiction.  But the Amharic version that reads “ (i.e. - against a judgment with regard to interdiction”) is broad enough to allow appeal against the court’s refusal to pronounce interdiction.   

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