Russia: Progress in reforming legal capacity system

16 April 2010, Budapest (Hungary), Moscow (Russian Federation). The Mental Disability Advocacy Center has completed a mission to the Russian Federation where it led discussions on ongoing reform efforts in the fields of legal capacity and guardianship in light of Russia’s forthcoming ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

On 13 April, MDAC participated at a hearing on the right to legal capacity, held at the State Duma, the lower chamber of the Russian Parliament. Article 12 of the CRPD requires States Parties to recognize that all persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and to ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.

Law reform in Russia is additionally prompted by MDAC’s strategic litigation and international advocacy which has resulted in the March 2008 judgment of the European Court of Human Rights in Shtukaturov v. Russia, the Constitutional Court decision in February 2009 in the same case, and the concluding observations of the United Nations Human Rights Committee in October 2009.

The three-hour hearing at the State Duma was organized by its inter-fraction union on disability affairs in cooperation with the Regional Public Organization "Perpektiva" and MDAC. The meeting was hosted by the State Duma Committee on International Affairs and chaired by Member of Parliament Valeriy Seleznev, a joint-chairperson of the inter-fraction union. The twenty-five participants included leading civil society representatives from cross-disability and intellectual disability civil society organizations, the Russian Psychiatric Association and the Independent Psychiatric Association of Russia, as well as representatives of the Ministry of Health Care and Social Development. The hearing consisted of a series of presentations, including by representatives of MDAC, followed by a brief discussion. Participants at the Duma meeting agreed that some elements of legislative reform could be introduced in the near future, while others must be widely discussed with strong input from civil society, including persons with disabilities and their representative organizations. These efforts must be coordinated among all relevant agencies in all branches and at all levels of government.

On 14 April, in cooperation with the Russian disability NGO "Perspektiva", MDAC organized a four-hour informal roundtable discussion at the premises of the European Union delegation in Moscow. Among participants were civil society representatives including persons with disabilities, psychiatric leaders, representatives of the Office of the Ombudsman and journalists. The aim of the meeting was to explore the elements of a new system of supported decision-making, reflecting upon the experiences in other countries such as Canada, Estonia, Germany, Hungary and Sweden. Participants generated ideas on how a new model could be adopted, implemented and monitored in Russia.

Participants outlined concerns about the extent to which the current guardianship system – which is based on a protection model – actually facilitates human rights violations, a point emphasized in MDAC’s 2008 report “Guardianship and Human Rights in Russia”. MDAC’s contribution to the 14 April event was to encourage participants to consider a different paradigm to a guardianship system where decisions are taken by third parties who have no obligation to seek the opinion of the person under guardianship. An alternative system supported by MDAC is one in which depriving a person of their legal capacity would not be possible. The alternative system would, via an enabling legal framework, provide a circle of support to a person who needs assistance in making or communicating decisions. Participants discussed whether there was benefit in retaining partial guardianship where areas of substituted decision-making would be specified, where restriction of legal capacity would be time-bound, and where there would be effective safeguards to prevent abuse. Participants also discussed the need for awareness-raising among various sectors of society, the need for capacity-building among members of the judiciary, and the importance to carry out multi-disciplinary assessments of individual needs, rather than legal capacity decisions taken solely on the basis of one psychiatric assessment.

Both events were successful in highlighting legal capacity as an issue meriting law reform, and in consolidating co-operation with Russian colleagues in the legislature, government, civil society and the professional psychiatric community. The open interactions among participants, as well as the optimism shared by many, are foundational building blocks of legal reform which will contribute to ensuring that all Russians with disabilities – whether physical, sensory, mental health or intellectual – enjoy equality and inclusion in society on an equal basis with others.

Through their discussions with key stakeholders, MDAC representatives learned that the President of the Russian Federation has stated that Russia will ratify the CRPD, possibly by the end of 2010. Signature and ratification of the Convention’s Optional Protocol, which allows individuals to take cases to a treaty monitoring body, unfortunately does not appear likely at this stage.

MDAC’s activities in the Russian Federation have been made possible through a grant by the Strategic Programme Fund of the United Kingdom Foreign and Commonwealth Office, and the organization Civil Rights Defenders (Sweden).

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