Influence of the ECHR case-law on the Russian legislation: rights of mentally-disabled persons


Shtukaturov case  and Rights of Mentally-Disabled Persons under Russian legislation

Since its accession in 1998 to the ECHR, Russia has had a high number of applications, and significant case-law has been developed.  But its impact on the Russian legislation is limited due to several factors such as  rigid approach  taken by the Russian Constitutional court which declared the national legal primacy in 2015, etc.

Nevertheless, some positive developments in the legislation have taken place. Thus,  9 judgments concerning violations relating to legal incapacitation and psychiatric hospitalisation,  among them the  Shtukaturov case (delivered the 27th of March 2008), have led to legislative reforms in the Civil Code, Code of Civil Procedure and the Psychiatric Care Act.  Hence, the Action report on execution of the judgments dated the 18th November 2020  reveals that  the Code of Civil Procedure and Psychiatric Care Act were  amended  by the Act 66-ФЗ of the 6th of April 2011.

Amendments and Modifications to the Legislation

First, the Code of Civil Procedure provided, in its Chapter 35, that a legally incapacitated person  enjoyed the same procedural rights as any other person, including the right to appeal against the incapacitation decision.  The Chapter was repealed with the adoption of the Code of Administrative Procedure in 2015, its Chapter 30 currently lay down procedural conditions for the  involuntary hospitalisation.

Second, the Psychiatric Care Act introduced  a presumption, that psychiatric hospitalisation is involuntary and requires a court authorisation. The position of a guardian is not in itself sufficient for hospitalisation.

Finally, the major legislative reform took place in 2015, when the Civil Code was amended. Therefore, for those adults who are no longer able to care for their personal interests or their property  due to their mental illness,  curatory is available.  Their capacity of discernment  deemed to be similar to that of minors between  14 and 18 years old. So art. 30 (2) of the Civil Code turns on the presumption that such persons are able to make certain decisions.  The special combined procedure is needed – first his/her legal capacity is partially restricted, then the local protection body appoints him/her a curator.

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