In a disappointing decision issued last week, the Russian Constitutional Court rejected the right of a woman in a social care institution to visit her father. The two had brought the case complaining that the social care institution where the daughter resides unconstitutionally prevented her from leaving the institution to visit her father at his home. The case reached the Constitutional Court after the Russian courts had refused to acknowledge that denying leave to visit his home violates their rights to family life and is a form of discrimination on the basis of disability.
Yulia is a 29-year old woman with a psycho-social disability who was placed under guardianship in 2011. Five years later, in August 2016, her guardian placed her in a social care institution for people with mental disabilities in Kirovsk, Leningrad Oblast. Her guardianship passed to the director of the institution. In October 2016, Yulia asked for ‘home leave’ to stay with her father for a short break. The institution, however, rejected her request. They argued that she is not allowed to leave the institution, even temporarily, because she lacks legal capacity.
Yulia and her father decided to challenge the institution’s decision before the courts. With support from Validity Lawyer, Dmitri Bartenev, they relied on her right to decide where she wants to live and argued that her institutionalisation and placement under guardianship cannot justify this restriction of their right to family life and her freedom to leave the institution. The first instance court rejected her claim, finding that it is in Yulia’s best interests to stay in the social care institution because of her mental disability. It held that Russian law does not allow home leave from such institutions. The court also rejected her father’s claim. It reasoned that his family rights were not interfered with because he could still visit her in the institution. Yulia was denied the chance to appeal: the court would not consider her arguments because they were not signed by the institution (her guardian) and denied her the right to independent legal representation by Mr. Bartenev. Her father’s appeals were rejected.
The decision of the institution followed a judgment of the Russian Supreme Court in 2013. The Supreme Court had overruled a local government act that would have allowed residents of social care institutions who are under guardianship to obtain “temporary transfers” to stay with their family members. The Supreme Court reasoned that such a “temporary transfer” would make it impossible for institutions to fulfil their duties as guardians.
On 18 September 2018, the Constitutional Court compounded the failure to uphold their rights and missed the opportunity to reverse the Supreme Court’s findings. The court was of the opinion that the current legislative framework aims to protect the rights and freedoms of people deprived of their legal capacity. It nevertheless noted that there is currently a draft law pending before the Parliament concerning the distribution of guardianship duties between social care institutions and private individuals. The court concluded that, taking into account the proposed reforms which aim to improve the regulatory framework for the guardianship system, the provisions contested by Yulia and her father cannot be considered to violate their rights.
The Russian courts failed to make any consideration of the clear standards in the UN Convention on the Rights of Persons with Disabilities (UN CRPD) whereby decisions affecting people with disabilities must be made based on their will and preferences, and not the out-dated and discredited “best interests” test. The Convention was ratified by Russia in 2012. Moreover, the Constitutional Court’s decision ignores Yulia’s right to choose where and with whom to live and her right to liberty, among others, under the Convention. Even under the more restrictive rules of the European Convention on Human Rights (to which Russia is also a party), the court’s decision is at odds with Yulia’s and her father’s rights to family life. The Constitutional Court’s decision demonstrates a fundamental failure to understand that people with disabilities are entitled to spend time with their families in the same way as everyone else.
Yulia’s father says that the decision denies justice for him and his daughter. Every week when he travels to see his daughter at the social care institution, she cries and asks him when she will be allowed to go out. Since the case began two years ago, he has been encouraging her to wait. Now hope is gone, and he fears she will be destined to remain behind the fence of the institution.
Commenting on the case, Mr Bartenev said: “The decision of the Constitutional Court, which is basically devoid of any legal analysis of Yulia’s and her father’s arguments, affects over 100,000 persons in social care institutions in Russia who are stripped of their legal capacity. Unfortunately, this decision legitimises the existing unlawful and discriminatory isolation of such persons. I have been contacted by many people who have experienced similar restrictions on their family rights and who have been waiting for the judgment of the Constitutional Court. The position of the Constitutional Court runs contrary to its earlier findings which criticised the guardianship regime for inherent violations of human rights. I am sure the Court will reconsider it in the nearest future in light of Russia’s adherence to the UN CRPD. I also call on the UN Special Rapporteur on the Rights of Persons with Disabilities to study the situation and urge Russian authorities to put an end to isolation of persons with disabilities.”
Yulia and her father have turned to the European Court of Human Rights, hoping that the Strasbourg court will finally deliver justice in their case. They ask the European Court to find that the Russian law denying them a right to spend time together in their own home is an arbitrary and unlawful interference with their family life and seek compensation from the Government for the damage it has caused them.
Read the application (in Russian) here.