Last week the European Court of Human Rights published its decision in the case of Lashin v Russia. This judgment is one of a series of recent decisions from the Court which address issues of denial of legal capacity and loss of liberty through detention which was consented to by a guardian (see for example Stanev v Bulgaria, DD v Lithuania, Sykora v Czech Republic). However, while cases such as Stanev and Sykora have somewhat progressed the Court’s approach to denial of legal capacity (in particular by finding that such a denial can constitute a breach of Article 8 in Sykora), arguably, Lashin regresses the Court’s position by finding that depriving someone of her legal capacity and maintaining that status may pursue a number of legitimate aims, and that some form of limitation of legal capacity, such as partial guardianship, may be necessary for ‘mentally ill persons.’ This judgment brings to the fore the inherent tension between the ECHR and the UN Convention on the Rights of Persons with Disabilities – already commented on by Phil Fennell and Peter Bartlett, among others.
In brief, the facts of Lashin are as follows (see also MDAC’s description of the case here). The applicant was diagnosed with schizophrenia in 1987, and throughout much of his adult life filed numerous complaints and lawsuits, particularly against the mental health professionals who treated him in Omsk Regional Psychiatric Hospital. In 2000, he was stripped of his legal capacity by a court without his knowledge or involvement, based on an assessment of his mental capacity by doctors at the hospital where he was detained. Initially, his father was appointed as his guardian. Together with the applicant’s daughter, his father also sought to have the applicant’s legal capacity restored. These attempts were unsuccessful. In 2002, the applicant’s father was removed as his guardian and the hospital was appointed as guardian instead. The applicant and his fiancée sought to have their marriage registered by the municipality, but received no reply. The applicant underwent several periods of detention at Omsk Regional Psychiatric Hospital for periods between 2000 and 2003 – and when review of this detention was sought, the courts would not intervene on the basis that a guardian had consented to this detention so it was considered ‘voluntary.’
In positive terms, the Court reiterated in its judgment that confinement in a psychiatric hospital does not necessarily become “voluntary” in Convention terms because consent of the guardian was obtained (following the precedents set by Stanev and Sykora). Although the Court did not specifically address the issue of whether the applicant’s fundamental rights, such as the right to marry, should be respected, even where the person is under plenary guardianship, it does emphasise that “the inability to marry was one of many legal consequences of his incapacity status” due to the “deficiencies in the domestic decision-making process and the rigidity of the Russian law on incapacity, in particular the inability of persons under guardianship to seek restoration of their legal capacity.” This statement may leave it open to the Court in future judgments to make a finding about the connection between denial of other fundamental rights (such as the right to marry, or vote) which follow from the denial of legal capacity.
Unfortunately, the Court also found that the State’s decision to deprive an individual of legal capacity may pursue a number of legitimate aims, and that some form of denial or restriction of legal capacity, such as partial guardianship, may be necessary for ‘mentally ill persons.’ By contrast, Article 12 of the CRPD states that persons with disabilities have the right to enjoy legal capacity on an equal basis with others and Article 14 says that ‘the existence of a disability shall in no case justify a deprivation of liberty’. This is clearly in conflict with Article 5.1.e ECHR, which allows for the lawful detention of persons of ‘unsound mind’
However, while the Court has found ways to interpret Article 5 in a more progressive manner – which does not accept that detention based on the consent of a guardian constitutes ‘lawful detention’ for the purpose of the ECHR, it has not gone so far as to state that deprivation of legal capacity per se, and the deprivation of other fundamental rights which follow this, constitute a violation of Article 8. This is particularly disappointing to me since there were hints at a more progressive approach in Stanev and Sykora. A return to the notion that legal capacity deprivation can pursue a legitimate aim “such as to protect the interests of the person affected by the measure” is particularly regressive, especially since the margin of appreciation afforded to States in respect of Article 9 should be only that which “is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” It remains to be seen how the jurisprudence of the Court will develop, and possibly overcome, this obstacle; however, the continued advocacy of organizations such as the MDAC and Interights, as well as the National Human Rights Institutions of the relevant member states, should support the development of a more positive trajectory in the Court’s jurisprudence.