New Year 2010 and Human Rights of Incapable in Russia |
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2009 nearly passed and New Year celebration is coming! But I as a human rights fighter think about main data in the business of protection of rights of most socially non protected groups of people in Russian Federation. One of such groups is group of patients of mental institutions. One of main “events” of 2009 year for a group of patients of mental institutions was Constitutional Court decision in cases of M. Iashina, P. Shtuckaturos and Ju. Gudckova.
On January, 30th, 2009 the Constitutional court of Russian Federation in an opened session considered a case for checking of constitutionality of some clauses in the Civil code of procedure and part 4 of clause 28 of the Russian Federation Lawn « About the psychiatric aid and guarantees of civil rights when it’s rendering».
Description about this decision of Constitutional court of Russia.
The challenged clauses in the Civil code of procedure interfered with the citizen which was declared incapable, independently, irrespective of the decision of the guardian, to address in court for protection his rights and freedom and for restoration of capacity. These clauses also supposed an opportunity of consideration a case about declaring a person incapable without his attendance and participation. Part 4 of clause 28 in the Russian Federation Lawn « About the psychiatric aid and guarantees of civil rights when it’s rendering» adjusted the order of the judicial control in the coerced hospitalization of incapable citizens in a psychiatric hospital.
As occasion for that court case was the complaints by Mr. Pavel Shtukaturov, Mrs. Maria Yashina and Mrs. Yuliya Gudkova.
Yuliya Gudkova
The same time, one more person, abused with the same violations, Mrs. Gudkova, was documented by Citizens Commission on Human Rights (CCHR) St-Pete (www.cchr.spb.ru), and on her case the similar complaint was submitted. She was declared incapable because of request of her mother. Mrs. Gudkova says that was done to take her property, especially an apartment. Mrs. Gudkova was not invited to the court hearing and not informed about the court decision. She occasionally found she is incapable.
CCHR found an attorney who could protect Mrs. Gudkova’s rights in the Constitutional court. That was CCHR St Pete member, Mr. Victor Grozovsky.
Pavel Shtukaturov
Mr. Shtukaturov’s case already had been considered and won in the European court on human rights in 2007, but constitutionality of the law itself (the law about psychiatry aid) also was challenged in the Consitutional court.
Mr. Shtukaturov was involuntary hospitalized to the psych hospital, but before that he, following the initiative of his mother was declared incapable. Then, his mother became his guardian.
CCHR St Pete organized coordination between the attorneys of Pavel Shtukaturov and Yuliya Gudkova, when it was found the Consitutional court decided to join 3 cases in 1 hearing. And the court has considered them on January, 30th.
The court hearing was started by Mr. Valery Zorkin, chairman of the Constitutional court , and he presented participants of process:
Lawyers of applicants: Mr. Bartenev, Mr. Ershov, Mr. Grozovsky;
The representative of the State Duma of Federal assembly of the Russian Federation (the lower parliament chamber) in Constitutional court, Mr. N.Haritonov;
The representative of Federal Council of Federal assembly of the Russian Federation (the upper parliament chamber) in Constitutional court, the Russian Federation, A.Aleksandrov;
The representative of the Russia Federation President in Constitutional court, Mr. M. Krotov;
The representative of the State Office of Public Prosecutor of the Russian Federation in Constitutional court, Mr. T. Vasilev;
Representative f Ministry of Health of the Russian Federation, the psychiatrist, Mr. Kazakovtsev.
Besides Mr. Zorkin, there were 17 judges in the court.
The representative of Russian Ombudsman did not come to the hearing, but sent a description of his viewpoint about the case in written.
The representative of RF Government did not come to the hearing, too.
The judge Mr. Strekozov did a report about 3 cases considered on the hearing. He started to explain Mr. Shtukaturov’s case, then Yashina’s and Gudkova’s cases. 3 cases were joined in one because, he said, the circumstances of their cases and their requests are the similar.
He mentioned, that Mr. Shtukaturov’s case was considered in the HR EU court, and the judges there were impressed that he lost his capacity within 10 minutes of court hearing in the district court in St Pete.
Nobody of these 3 applicants were in the Constitutional court hearing: Mrs. Gudkova could not come because she could not come inside the court building without her passport, but her passport was kept by her guardian. That fact demonstrated the level of human rights violations regarding those people who lost their capacity and when their guardians are the people who are not interested in their survival.
The first attorney speaking was Mr. D. Bartenev. He stressed that Mr. Shtukaturov was against involuntary hospitalization, but his guardian, his mother, stated he need to be hospitalized, and he was put to the psych hospital and received a treatment. And when Mr. Shtukaturov demanded to go to court and announce he does not want to receive treatment, he was refused in that, because he is incapable and because, according the law, incapable person has no rights to be in the court. Mr. Bartenev referred to the Constitution and to the EU court decisions, and also the EU Council documents. He also requested to arrange several levels of incapability in the laws, because it can give rights to incapable people to appeal to the court. Especially that is important for people who live in psych asylums and whose guardians are the psychs of that asylums, and they violate the patients’ rights
Mr. Bartenev said, that was incorrect that incapable person cannot challenge in the court the decision about his incapability, which violates his rights, and cannot refuse to take any medical treatment if he does not want to receive that.
After that, Yuliya Gudkova’s attorney Mr. Grozovsky spoke. He analyzed the constitutional rules and documents, and told about the consequences of taking capability from person. He was referring on the Constitution and previous decisions of Constitutional court.
On the break the representative of the Federal Council of Federal assembly of the Russian Federation did an interview for media. He said, there are a lot of human rights violations in psychiatry, but the legislation should not be changed. Mr. Bartenev, the attorney, said to media that EU court have been appointed any compensation to Mr. Shtukaturov, because he is incapable and cannot receive his money by himself.
At a press-conference done 27-th Feb 2008 Chairman of CC of RF, Mr. V.D. Zor'ckin told that Decision of ECHR about Mr. P. Shtuckaturov's case didn't have obligatory power for CCHR of RF Decision. He also stressed that CC of RF found that application to CC of RF of incapable people about a question of finding them incapable was motivated...
CC of RF stressed in its' Decision that any discrimination of people with mental disabilities is impossible. More considering gravity of consequence of finding of a person incapable (in this case incapable person becomes absolutely dependent from tutor) it is necessary to protect specifically interests of such person!
CC of RF pointed such important moments in exposition of its' attitude: Citizens question about whom is under consideration in a court are a side with all rights during court hearing and have rights to protect their rights what is impossible without their personal presence during court hearing. If they are deprived of protect their position in the court it is violation of principles of fairness of justice, competence and equality of partiessides during courtlegal proceedings.
Role of a court in consideration of such kind of cases can't be just a formal acknowledgement of conclusions of psyches. Judge must do hisher decision based on hisher inner belief about mental condition of a citizen, and if judge will have hesitation that medical conclusion is correct and decide to organize second psychiatric medical examination.
CC of RF acknowledged that involuntary or forced hospitalization into psych hospital is unconditional limitation of freedom of a person but such limitation is possible just by court decision due Russian Constitution. It is impossible to use involuntary hospitalization into psychiatric hospitals just because of requests of tutor, especially, if situation of conflict between tutor and incapable person exists. Right for appeal to a court should stand in opposition to any danger to lose freedom. Otherwise dignity of a person is restricted, freedom is limited disproportionately and inviolability of person, right for protection in a court are limited disproportionately.
CC of RF pointed separately in its' decision that cases of Mrs. Ju.K. Gudckova, Mr. P.V. Shtuckaturov and Mrs. M.A. Jashina should be reviewed (retrial on these cases should be done in courts of ordinary jurisdiction). Decision of CC of RF was announcedproclaimed by Chairman of CC of RF, famous Russian lawyer, Mr. Valeriy Dmitrievich Zor'kin.
Court not just found non constitutional finding of a person incapable in his absence but also CC of RF also decided that incapable can't be hospitalized into psych hospital without court decision just because fo a will of a tutor. This means that tens of thousands of people in psychiatric asylums, orphanages, hoses of old people etc. now can't be hospitalized into psychiatric hospitals just because they are disobedientunruly...
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