Love denied: European Court tells Russia to allow people under guardianship to marry

In a judgment issued yesterday, the European Court of Human Rights found that Russia violated the right of a man who was prohibited from marrying the woman he loved. MDAC represented the applicant in the Lashin v. Russia case, which is the first to address the right to marry by persons with psycho-social disabilities. For the first time the Court recognized that a blanket ban on the right to marry for persons under guardianship is incompatible with the European Convention. The Court’s judgment is available here.

Alexander Lashin has a mental illness and was needlessly placed under guardianship in 2000. In 2002 he and his fiancée wanted to marry, but because Mr Lashin was under guardianship and under Russian law a person deprived of legal capacity automatically loses his right to marry, he was not allowed to do so. For three years he tried to challenge the decision which took away his rights and prohibited him from marrying the woman he loved. Instead of taking his requests seriously, the Russian authorities labelled him as having a “litigious personality.” In 2002 his father was removed as his guardian, and the psychiatric hospital was appointed instead. Mr Lashin was sent to a psychiatric hospital because the doctors considered his attempts to assert his rights as a serious mental illness. He spent a year there. He was not allowed to apply to a court to argue his freedom, because the law treated him as a “voluntary patient”: his guardian – the hospital – had consented to his hospitalisation on his behalf. Thanks to the legislative changes passed by Russian State Duma in 2011 this is now unlawful.  

According to the Ministry of Health nearly 300,000 people in Russia are under plenary guardianship. They are all denied the right to marry, the right to vote, the right to decide where and with whom to live. Mr Lashin filed an application with the European Court of Human Rights in 2002 and was represented by attorney Dmitri Bartenev, who works as Senior Legal Monitor for MDAC.

The European Court of Human Rights found that having the hospital against whose actions he complained as the only possible expert in evaluation of the state of his mental health was unacceptable. Therefore, there has been a violation of his right to private and family life from Article 8 of the European Convention on Human Rights. The Court also found that Mr Lashin's inability to seek to be recognised as a person before the law, due to the opposition of this same hospital, additionally violated this same right.

The Court also found that keeping Mr, Lashin in a psychiatric hospital for an entire year, only because he had been complaining against the hospital staff and the way they had treated him, violated his right to liberty and security of person (Article 5(1) of the European Convention on Human Rights - ECHR). The Court also found that State’s failure to ensure Mr Lashin had an opportunity to challenge his detention in hospital was a violation of Article 5(4) of the ECHR. MDAC had argued a violation of Article 12 of the ECHR which guarantees the right to marry and found a family. The Court failed to address this argument separately, but emphasised the far-reaching consequences of the plenary guardianship system, in which “the inability to marry was one of many legal consequences of his incapacity status” due to the “deficiencies in the domestic decision-making process and the rigidity of the Russian law on incapacity, in particular the inability of persons under guardianship to seek restoration of their legal capacity."

The Court awarded Mr Lashin 25,000 Euros of non-pecuniary damages as compensation for the violations he had suffered.

This sends a clear message to the Russian authorities that the existing ban on marriage for persons deprived of legal capacity is incompatible both with the European Convention and the UN Convention on the Rights of Persons with Disabilities. Recent legislative changes following the Russian Constitutional Court criticism of the plenary guardianship system in Russia have not yet remedied this situation as people under guardianship are still banned from getting married.

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