Denial of legal capacity in Russia to people with mental disabilities
Valery Seleznev, a member of the all-party association of Duma (Parliament) deputies (MPs) on the affairs of people with disabilities, has held discussions on the rights of citizens who lack legal capacity with experts in the field. He takes the view that in the course of preparing for ratification of the UN Convention on the Rights of Persons with Disabilities it is not only Russians with physical disabilities that must be taken into account but also those with mental disorders. The latter are frequently deprived of their legal capacity, which means that the opportunity to exercise their rights is taken out of their hands.
Attorney Dimitry Bartenev of the Russian Mental Disability Advocacy Centre pointed out that at present people with disabilities who are deprived of their legal capacity are ‘in practice invisible’ so far as the government is concerned though not all of them suffer from a mental disorder, like, for example the orphan suffering from infantile mental paralysis whose fate has been written about by ASI on a number of occasions. He said that the generally held stereotype of people without legal capacity is that they understand nothing and need nothing; they are totally and forever deprived of the freedom to act by law. This runs counter to contemporary approaches to the social welfare of people with disabilities, including the disabilities that follow psycho-emotional illnesses. The international law model encourages such people to take the maximum number of decisions independently, with appropriate help being made available for the purpose. In particular, article 12 of the convention provides for ‘equal legal protection’ for all people with disabilities wherever they are, and recognises that they ‘enjoy legal capacity on an equal footing with others as regards all aspects of life’. This imposes a moral duty on Russia to alter the status quo.
Furthermore, in Mr Bartenev’s opinion there are legal obligations arising from the recognition by the European Court (of Human Rights) that depriving Pavel Shtukaturov, a Russian, of his legal capacity was unlawful; from publication of the comments of the UN Committee on Human Rights on the sixth periodic report by the Russian Federation on observance of the international pact on the rights of citizen’s and political rights; and from a series of decisions by the Constitutional Court of the Russian Federation. He thinks that reform of the basis of the domestic legislation should not be put off.
The first priority, in the opinion of a range of experts is to introduce the concept of degrees of incapacity, aligned to depriving someone of their legal capacity only in so far as it is necessary to do so in order to avoid harm either to them or to those around them. A leading psychiatrist on the staff of the ministry of health has proposed that the lawyers should define these degrees, following which she is ready to formulate the criteria applicable. One of her colleagues has added that work on drafting amendments to the law should be carried out with care and with the involvement of the medical profession, people with disabilities and their relatives.
Mr Seleznev thinks that the introduction of degrees of incapacity could be the first step on the way to reform. The outcome of a three hour meeting in the Duma has been the creation of a working party under the auspices of the all-party association whose job it will be to draft Bills designed to amend the present approach in Russia to defining incapacity. A similar group was set up in March under the auspices of the human rights ombudsman on the assumption that it would be easier to organise the basic work in that way. How exactly the work is to be carried out the experts had not decided at the time of the meeting.