Russia: Constitutional Court forges the way out of discrimination for people with mental disabilities

St. Petersburg (Russia), Budapest (Hungary) and London (UK) 3 March 2009. On 27 February 2009, the Constitutional Court of the Russian Federation decided its first case concerning regulations and procedures for assessing legal capacity, one of the key issues affecting people with mental disabilities and their participation on an equal basis with others in exercising basic human rights. In ruling on the case brought by the Mental Disability Advocacy Center (MDAC) and filed by Russian attorney Dmitri Bartenev, the Court reiterated that discrimination of persons with mental disabilities is impermissible under the Russian Constitution. Echoing a finding by the European Court of Human Rights that guardianship is a “very serious” interference with the right to privacy, the Constitutional Court stated that the interests of a person under guardianship must be especially protected due to the significant loss of fundamental rights and freedoms of people under guardianship.

In Russia, and many other countries, inadequate guardianship laws are abused to strip a person of their right to decide where and with whom to live, and how to manage their own money. They are frequently denied the right to work, exacerbating the link between disability and poverty. They are stripped of their right to vote, entrenching the political invisibility of persons with disabilities in Russia. They are denied the right to family life, to marry, and to associate – meaning that people under guardianship cannot organize to fight for their rights. In essence, they are plunged into ‘civil death’, becoming non-human in the eyes of the law.

The Mental Disability Advocacy Centre and The Equal Rights Trust (ERT) welcome the Constitutional Court judgment as a first and important step to reform Russia’s outdated system of guardianship and bring it into line with Russia’s international legal obligations. Russia must ensure that a person with disabilities, like any other disadvantaged individual, is effectively protected from discrimination.  

In the case, in which MDAC represented Pavel Shtukaturov, one of the applicants, the Constitutional Court struck down the following legal provisions as they did not comply with the Russian Constitution.

1. The Code of Civil Procedure provisions which allow courts to decide on a person’s legal capacity on the strength of one psychiatrist’s report and to deny the participation of the person whose legal capacity is in question. The Constitutional Court ruled that the right to defend one’s rights is impossible without the actual participation of the person in the case. Depriving a person of this possibility violates the principles of fair trial as well as the adversarial nature and equality of parties in court proceedings.

2. The Code of Civil Procedure provisions which allow courts to deny an appeal against a guardianship order even for people who knew nothing about the initial court proceedings. The Constitutional Court ruled that a person deprived of legal capacity must have the right to appeal the court decision. Anything less would mean a restriction on the right to a fair trial.

3. The 1992 Law on Psychiatric Assistance provisions which allow a person deprived of legal capacity to be involuntary detained in a psychiatric hospital solely with the ‘consent’ of their guardian (even where it’s obvious that the detainee has not consented), with the effect that there is no court review of the lawfulness of detention. The Constitutional Court acknowledged that psychiatric detention is unquestionably a deprivation of liberty which, according to the Russian Constitution, is lawful only following a judicial decision. To detain someone solely because a guardian has so requested, especially when there is a conflict between the legally incapable person and their guardian, is impermissible. Everyone who is detained must have the right to judicial review. Otherwise, human dignity is violated and the right to personal freedom and physical integrity as well as access to justice are disproportionally restricted.

Welcoming the judgment, MDAC Executive Director Oliver Lewis stated, “The Russian Constitutional Court and the European Court of Human Rights have both issued damning critiques of Russia’s guardianship arrangements which routinely strip people with mental disabilities in Russia of all their fundamental rights. Having researched guardianship arrangements, brought a series of cases framing guardianship as a human rights issue, MDAC now offers technical assistance to the Government to ensure that a new law enhances autonomy and respects rights.”  

Thanks to robust criticism by domestic and international courts, the case for root and branch legislative reform of guardianship is now irresistible. To this end, MDAC is working on guardianship reform during a two-year project which began in January and is co-funded by the Swedish Helsinki Committee. MDAC will work with civil society organisations to advocate at Russian governmental and parliamentary level for a more tailor-made approach for people who need assistance in decision-making. The project aims to help the government meet its obligations under Article 12 (legal capacity) of the UN Convention on the Rights of Persons with Disabilities, an international human rights treaty which Russia has signed.  

Background

MDAC filed the case of Pavel Shtukaturov with the Constitutional Court on 10 October 2006. The full written judgment is not available yet, and MDAC will upload it to its website in Russian and English when it becomes available. See the Court’s press release here (in Russian only). In March 2008 the European Court of Human Rights ruled in the same case, finding several violations of the European Court of Human Rights. In dealing with the Shtukaturov case, the Constitutional Court joined two other claimants (Maria Yashinina and Yulia Gudkova) with similar cases. These claimants were not represented by MDAC although Dmitri Bartenev provided the latter client with legal advice in the proceedings. The Shtukaturov case was the only one out of the three to argue the psychiatric detention point.

ERT and MDAC further recommend that the Russian Government consider strengthening  the right to equality and protection from discrimination on prohibited grounds, including disability, by implementing the Declaration of Principles on Equality. The Declaration was published by ERT in October 2008 and originally endorsed by 128 prominent human rights and equality law experts and several organisations, including MDAC. It is currently open to further signatures at: www.equalrightstrust.org. ERT offers to the Government assistance in developing a comprehensive anti-discrimination legislation ensuring the right to equality for all people in the Russian Federation.