UN: Russia must reform legal capacity laws
2 November 2009. Budapest, Hungary; Geneva, Switzerland; and Moscow, Russia. The UN Human Rights Committee (HRC) has called on Russia to reform its guardianship laws and to ensure human rights for people with disabilities. Its Concluding Observations on Russia are the HRC's most comprehensive analysis to date, of how the right to legal capacity is a concern under the International Covenant on Civil and Political Rights (ICCPR).
Following submission by MDAC of a shadow report to the HRC and representations during its session in October in Geneva, the HRC last Friday published its Concluding Observations on the sixth periodic report of the Russian Federation assessing compliance with the ICCPR. An array of human rights areas were dealt with, and in paragraph 19 the HRC dealt with legal capacity. It expressed concern about the lack of adequate safeguards , the disproportionate nature of restrictions on human rights caused by deprivation of legal capacity, and the significant number of persons who are subjected to this measure in Russia.
The HRC placed particular emphasis on the fact that people deprived of legal capacity in Russia do not have legal remedies to challenge violations of their rights, including ill-treatment or abuse by guardians or staff of mental health and social care institutions. The practice of depriving a person of legal capacity on the basis of the mere existence of a psychiatric diagnosis was criticised. In short, the Committee's recommendations cover most major deficiencies of Russia's law and policies related to legal capacity and guardianship, namely:
• any measures restricting a person's legal capacity on account of a disability should be necessary, proportionate and based on the person's individual circumstances;
• such measures should be attended by effective procedural safeguards which include prompt access to an effective judicial review of guardianship;
• persons deprived of their legal capacity should retain access to effective legal remedies against violations of their rights;
• persons with disabilities should be provided with less restrictive alternatives to detention in mental health institutions and forced mental health treatment;
• there should be independent inspections of mental health institutions to prevent ill-treatment.
The implementation of the HRC's recommendations will require Russia to amend its legislation in order to introduce alternatives to plenary guardianship, alter the substantive criteria for guardianship, and introduce rigorous procedures to minimize mental health detention of persons deprived of their legal capacity. Procedural legislation will also have to be amended to allow people deprived of their legal capacity to be able to directly apply to court to challenge the actions of their guardians as well as to have their legal capacity restored.
The HRC's recommendations echo the analysis provided in MDAC's shadow report. MDAC chose to focus on legal capacity because of the unprecedented levels of arbitrary restriction of their human rights which people deprived of legal capacity face, on top of the stigma and discrimination faced by persons with intellectual disabilities and persons with mental health disabilities.
MDAC applauds the HRC for including these issues in its Concluding Observations, thereby both encouraging other treaty bodies to take up disability rights issues, and adding to the momentum for the Russian government to carry out the necessary law reforms. Momentum is mounting. The HRC's recommendations come five months after the Russian Ombudsman pledged his support for legal capacity law reform; eight months after the Russian Constitutional Court quashed three provisions of guardianship law, and nineteen months since the European Court of Human Rights ruled in the Shtukaturov case that several of the Applicant's rights had been violated due to faulty guardianship laws.
The importance of legal capacity in the context of international human rights law is evidenced by Article 12 of the UN Convention on the Rights of Persons with Disabilities, a treaty which Russia has signed but not yet ratified. This provision says that all persons with disabilities should enjoy legal capacity on an equal basis with others in all aspects of life, and that supports should be provided to people who need them. Article 12 of the disability-specific treaty augments the right to equal recognition as a person before the law as guaranteed by Article 16 of the International Covenant on Civil and Political Rights. MDAC hopes that the HRC will continue to scrutinize legal capacity of persons with disabilities in reviewing the periodic reports of other ICCPR State Parties, many of which have similar laws and policies to Russia's.
MDAC's work in Russia is supported by a grant from the Civil Rights Defenders (formerly Swedish Helsinki Committee) and by a grant from the UK Government's Strategic Programme Fund.