guardianshipanalysis of law, policyand practiceand human rightsin russiawe respect the privacy of our clients, so we have chosen models, not clients, to appear in these photographs.mdac advances human rights.i was under guardianship for twenty years. i wasn‘t allowed to use my own money, or decide where to live. i wasn‘t even allowed to work or vote. i wanted to make my own decisions.mental disability advocacy centerguardianship and human rights in russiaanalysis of law, policy and practice2007mental disability advocacy center6of this examination indicates that although the russian constitution provides for respect for the human rights of people with mental disabilities in accordance with international standards, a series of legislative weaknesses result in serious deűciencies throughout its legislative framework. őe report also provides the results of court case űle reviews, guardianship authority case űle reviews, interviews with stakeholders. mdac attempted to observe court hearings, but these requests were largely denied by the courts. őe main űndings of the report reveal that the russian law fails to protect the rights of people under guardianship, indicating that reforms are required urgently. őe report details how oěcials involved in the guardianship process – judges, lawyers, psychiatrists and guardianship oěcials – take a minimalist approach and demonstrate discriminatory views about adults who need assistance in making decision, discriminatory views which directly impact upon these adults‘ human rights. őe most important of these űndings are: russia relies on plenary (all encompassing) guardianship that serves to remove fundamental human rights. őe concept of partial guardianship does not exist in russia. partial guardianship allows for speciűc and focused provisions to be made for speciűc individuals, thus ensuring a proportionate legal response to their needs. a proportionate legal response is a requirement of international law. adults under guardianship are subject to signiűcant, arbitrary and automatic deprivations of their human rights. őese include a deprivation of their right to property, to a family life, to marry, to vote, to associate freely, to access courts, and to make a will. russian guardianship law and practice lacks rigour and quality. it is lacking in basic procedural protections, such as the obligation on the court to meaningfully notify the adult, whose legal capacity is in question, of a court hearing. where there are procedural protections, such protections can be undermined by a failure to make them eőective. őus, for example, an adult has the ‘right‘ to an attorney during guardianship proceedings, but there is no accompanying legislation making formal provision for an attorney to be provided universally or paid for by the state. guardianship contributes to social exclusion. contrary to international law4 an adult in russia may be detained for an incapacity assessment. more signiűcantly, once an adult is placed under guardianship, he or she can be placed, without the adult‘s consent, into a social care institution for the rest of his or her life. no appeals are available. further, there is no statutory obligation on guardians to promote independence or seek community-based or less restrictive living arrangements. once under guardianship the adult is prohibited from voting, working, marrying and managing his or her own űnances. indeed, in russia there are no real alternatives to guardianship (for example, unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 1december 3ulqflsoh0hglfdo([dplqdwlrqv7human rights and guardianship in russiaadvance directives and supported decision-making) for people with disabilities who need assistance in making certain decisions. additional deűciencies include the failure to regulate adequately the powers of guar-dians. őere is, for instance, no duty on guardians to take the opinions of adults under guardianship into account when making decisions about the lives of those adults. guardianship agencies of local authorities have statutory responsibility for overseeing guardianship arrangements, but their duties are not adequately deűned in legislation, a situation which permits negligent and abusive guardians to go undetected. similarly, there are no legal provisions preventing conůicts of interest, allowing for possible űnancial impropriety throughout the guardianship process. once placed under guardianship through this ůawed procedure, adults, possibly traumatized and confused, have just ten days to request termination of that guardianship. after that ten day period the right to request termination of guardianship expires. őe mental disability advocacy center urges the russian government to reform its guardianship laws, implement training for all professionals working in the guardianship system, and provide more information to adults under guardianship. őis must be done in a way that actively both involves and respects people with psycho-social (mental health) disabilities and intellectual disabilities, as well as their local and national organisations. őis report sets out a series of recommendations designed to improve law and practice of guardianship and better respect the human rights of people with disabilities in russia. recommendations overall, this report suggests that russian guardianship laws and practices fail to meet basic international standards. őe clear implication is that the lives of many thousands of people in russia could be signiűcantly improved. őis will only happen if the government commits to change the legislative landscape. with this in mind, mdac makes below a number of recommendations to the russian government, which if followed, would bring the law in line with basic international standards. őe indicators referred to are 29 basic guarantees of a human rights compliant guardianship system and are shown in brackets after speciűc recommendations. őey are given here so that the reader can refer to their more detailed analysis given in the main sections of the report. őe four principle recommendations are: 1. provide alternatives to guardianship: őe russian government should require the use of least restrictive alternatives which promote the independence of, and also protect the adult by:creating supported decision-making services. such services should be based on the following basic principles.mental disability advocacy center8őe adult retains full legal capacity whilst receiving services from a support person/network.a support person/network should not be appointed without the adult‘s consent.őere must be a relation of trust between the adult and the supporting person/network. a court should therefore not create such relationship, only recognise its existence.őe support person/network should not act on behalf of the adult. őis role is limited to merely providing the adult with support and assistance in making and communicating decisions. őere must be safeguards in place to protect the adult against abuse and exploi-tation.providing the right to create legally-binding advance directives (in which an adult speciűes his or her wishes in case of future functional incapacity) and powers of attorney (where an adult speciűes a person to take decisions in case of future functional incapacity). (indicator 26)requiring that guardianship is used only as a last resort. (indicator 26)2.maximise autonomy. ensure that adults retain the right to make decisions in all areas of life in which they have functional capacity. speciűcally: abolish the automatic deprivation of the fundamental rights of adults under guardianship toproperty.work.family life.marry.vote.associate.acess courts.make a will. (indicators 13, 5-7)require guardians to seek the least restrictive living arrangements for adults. (indicator 2ensure that legislation deűnes the scope of the guardian‘s obligations in light of the adult‘s capacity. (indicator 20)ensure that legislation speciűes that a űnding of incapacity is based on a demonstrable link between diagnosis and functional capacity. (indicator 8)establish regular reviews of guardianship. (indicator 28)3. improve procedures. provide suěcient guarantees of the right of adults to meaningful participation in the guardianship process from the beginning of the process and for as long as the adult is under guardianship. speciűcally: deűne in law suěciently clear and speciűc bases for űling an application for declaring a person incapable. (indicator 2)ensure that the adult is properly notiűed and has access to information about all proceedings related to the procedure for depriving the person of his or her legal capacity, and ensuring that the adult is present and heard at these proceedings. –––––––––––––9human rights and guardianship in russiaalso, clearly identifying when the adult‘s presence is not necessary (as an exception) at guardianship court hearings. (indicator ensure provision for the adult of free legal representation paid for by the state at court hearings, including appeals. (indicator abolish involuntary detention of people solely for the purpose of incapacity assessments. (indicator 5)ensure that the adult‘s wishes are considered and given due weight when appointing a guardian. (indicator 0)ensure that an adult has the right and opportunity to challenge the appointed guardian. (indicator 2)ensure adults are actually consulted about decisions aőecting their life (indicator 9).require guardians periodically to visit and speak with the adults for whom they are responsible. (indicator 2establish an eőective complaints mechanism for adults under guardianship, including access to judicial remedies. (indicator 25)establish a procedure for periodic review of guardians‘ actions by an objective body that would be required to take into account information received from the adult, and which would hold the guardian accountable for all decisions. (indicator 24. prevent abuse. reduce the potential for abuse of adults under guardianship. speciűcally: establish objective criteria for conducting incapacity assessments and clear grounds for a judicial determination of legal incapacity. őis must include a provision that ensures that decisions are made on the basis of current medical and psychological reports. (indicators 7 and 8)ensure that legislation speciűes the type and quality of evidence needed for a judicial űnding of deprivation of legal capacity. (indicator 9)establish criteria for selecting the guardian that clearly preclude people with conůicts of interest (such as directors of social care institutions) from serving as guardians. (indicators 0 and 11ensure that legislation mandates compulsory and meaningful reviews of guardianship, at which the adult is fully involved and adequately legally represented. (indicator 27)identify those areas where guardians have authority to act, as well as those where they have no such authority. mdac believes that implementation of these recommendations, coupled with training of professionals working in the guardianship űeld, will produce signiűcant improvement in the quality of the russian guardianship system. őe recommendations would bring legislation into line with international law and standards by strengthening the protection of the human rights and interests of the adults under guardianship. mdac looks forward to engaging and cooperating with the russian authorities and civil society as they plan and implement reform.mental disability advocacy center101.introdction1.1guardianshipőis report concerns guardianship of adults and does not deal with legal arrangements for children. mdac deűnes ‘guardianship‘ as a legal relationship established by a court process between an adult who is deemed to lack the requisite legal capacity to make personal decisions and the person appointed to make decisions on that adult‘s behalf.5 őe legal mechanism of guardianship exists in some form in almost every jurisdiction in the world and is widely accepted as a means of protecting individuals who are deemed incapable of managing their personal aőairs as a result of a mental health problem (psycho-social disability), intellectual disability, degenerative disease or profound physical or sensory disability.guardianship is usually established through court proceedings, or a combination of court and administrative processes, during which an adult is found to either partially or completely lack capacity to make decisions on their own behalf. őe outcome of such űndings could be that the person is ‘legally incapacitated‘.6 őe court (or an administrative authority) then appoints another person to act as the guardian. őe guardian‘s speciűc authority is deűned either by law or by court order. generally, the guardian has both decision-making authority over the adult and an obligation to protect the adult‘s welfare. őe eőectiveness of guardianship as an institution heavily depends on certain personal qualities of the guardian, such as his or her diligence and conscientiousness.guardianship has a profound eőect on the lives of those placed under its protective status. mdac research carried out in several countries has revealed that in many cases adults who are placed under guardianship lose their right to make even the most basic decisions as well as the right to exercise other fundamental human rights. abuse and neglect of the adult can result from a guardian failing to carry out the obligation to protect or from making decisions that are contrary to the desires and/or interests of the adult. őerefore, eőective guardianship systems must oversee the actions of guardians and have an eěcient accountability system. theenglishlanguageterminologyusedthroughoutthisreportwasarrivedataftermuchdebate.presumably,therewillbe,oralreadyaresimilardebatesinotherlanguages.tohelpthereaderunderstandtheterminologyinthesereports,briefglossaryoftermscanehirxqglqwkh*orvvdu$qqh[dwsdjh7kurxjkrxwwklvuhsruw0’$&xvhvwkhwhupµohjdofdsdflw¶dvgh¿qhglqwkh*orvvdudw$qqh[rqsdjh’liihuhqwmxulvglfwlrqvxvhgliihuhqwwhuplqrorjwrgh¿qhwkhohjdoinabilitytoactonone‘sownbehalf,suchas,forinstance,‘incapable‘or‘incompetent‘.6rphodzvsurylghiru¿qglqjrisduwldoruolplwhgohjdofdsdflw11human rights and guardianship in russiaas the global disability rights movement gains momentum, the guardianship model is coming under increased criticism for its failures in providing adequate due process protections in establishing and administering guardianship and ensuring the right of self-determination.7 in a small number of jurisdictions, such as in canada and the uk, guardianship laws have been reformed, and other means of providing protection and assistance to people with mental disabilities have emerged, notably supported decision-making.8 as a result, legislators and courts in these countries see the guardianship model as a last resort that is to be used only after all other less restrictive measures of support and protection have been exhausted.guardianship has at long last been recognised as a pressing issue internationally. in the newly adopted united nations convention on the rights of persons with disabilities (disability convention) legal capacity is speciűcally dealt with in article 2 which states: equal recognition before the lawstates parties reaěrm that persons with disabilities have the right to recognition everywhere as persons before the law. 2.states parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. states parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.states parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and eőective safeguards to prevent abuse in accordance with international human rights law. such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conůict of interest and undue inůuence, are proportional and tailored to the person‘s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. őe safeguards shall be proportional to the degree to which such measures aőect the person‘s rights and interests.5.subject to the provisions of this article, states parties shall take all appropriate and eőective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own űnancial aőairs and to have equal access to bank loans, mortgages and other forms of űnancial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. canadianassociationforcommunityliving(cacl)report.taskforceonalternativestoguardianship,august 1992,availableat:http://www.worldenable.net/rights/adhocguardianship.htm.6hhwkh*orvvdudw$qqh[rqsdjhirugh¿qlwlrqrivxssruwhgghflvlrqpdnlqjmental disability advocacy centerőese provisions directly implicate guardianship. further they add credence to mdac‘s call for an immediate paradigm shift away from the arbitrary removal of the human rights of those under guardianship, towards the adoption of national policies and laws which will make the provisions of the disability convention, and those in article 2 in particular, a reality. it is mdac‘s wish and intention that this report will inůuence both the direction and speed of this paradigm shift. 1.2 researching guardianship in many of the countries where mdac works, guardianship laws have remained relatively unchanged for decades. however, they are likely to undergo substantial reform as countries continue to bring their legislation in conformity with international human rights standards. to highlight guardianship as an area of urgent reform, mdac initiated its guardianship project to identify the strengths and weaknesses of existing legislative regimes. additionally, because legislation and reality frequently diverge, the project examines the actual practices in the űeld of guardianship. őis report presents a legislative analysis, which will be followed in 2007 by a comprehensive report that will include observations on how the guardianship system functions in practice. mdac started its guardianship research in late 200 by examining the legislative structure of guardianship systems in a number of countries. őe űrst part of the project focused on four countries: bulgaria, hungary, serbia and russia. in 2006, mdac started research in an additional four countries: croatia, the czech republic, georgia and kyrgyzstan. őe aim of the research is to examine the degree of compliance of national guardianship legislation in these countries with international human rights law, standards and best practices, in order to highlight any areas in need of reform. as with many research projects that serve as the űrst exploration of uncharted territory, this report may raise more questions than it answers. őis is particularly true as it is not a statistical survey, but, rather, a comparative legal analysis. őe results in this report refer only to the legislation. as explained above, research on practice is still ongoing, and it will provide information about how guardianship systems work.1.3 acknowledgementsresearch was carried out by lawyers from each of the target countries. őe researchers conducted all of the in-country research, wrote the űrst drafts of the country reports and participated in the editorial process. őe researchers were slavka kukova (bulgaria), aleksandra korac and petar sardeliž (croatia), zuzana benešová and david kosar (czech republic), nina dadalauri (georgia), dániel kaderják (hungary), meder dastanbekov (kyrgyzstan), anna smorgunova (russia), and vidan hadůi-vidanoviž (serbia).1human rights and guardianship in russiabeginning in february 200, mdac gathered a select group of individuals to form the guardianship advisory board. őis group has been involved in an active capacity in the conception, design and implementation of both stages of the project, its members generously contributing their time and expertise. őe guardianship advisory board consists of űve internationally recognised experts in the űeld of mental health, guardianship and human rights law:dr. robert m. gordon, director and professor, school of criminology, simon fraser university, vancouver, canada.dr. georg høyer, professor of community medicine, university of tromsø, norway.dr. krassimir kanev, chairman, bulgarian helsinki committee, soűa, bulgaria.mr. mark kelly, director, irish council for civil liberties, dublin, ireland; anddr. jill peay, professor of law, london school of economics, london, uk.mdac would like to extend its warmest gratitude to the guardianship advisory board for the individual and collective contributions they have made to this project. marit rasmussen developed and managed this project for over two years and interns priscilla adams, jill diamond, jill roche and nicholas tsang helped with background research and istván fenyvesi designed and laid out the reports. őe russia report was drafted by anna smorgunova. dmitri bartenev, yuri marchenko, jill peay and marit rasmussen provided extensive comments. istván fenyvesi, sarah green and oliver lewis produced the űnal version. 1.4 method1.4.1stage one: legislative reviewstage one of the research, which is represented by section 2 of this report, is a de jure study of the legislative texts, rather than how they are applied. őe study examines the types of protective arrangements available under national laws as well as any other relevant national legislation by:studying the legal procedures for obtaining or terminating guardianship and the rights of the parties to such procedures.examining the evidentiary standards in guardianship proceedings.documenting the rights of the person alleged to lack capacity throughout the guardianship process.assessing which rights are taken away after a űnding of incapacity has been made. mental disability advocacy centeranalysing the power and authority of guardians, their accountability and how they are monitored, as well as the processes, if any, for bringing complaints against guardians.resolving disputes between guardians and people under guardianship.1.4.2stage two: collection of data from the fieldstage two, which is presented in section of this report, focuses on a de facto9 examina-tion of guardianship practices within each target country by observing court hearings, reviewing court űles and, to the extent applicable and possible, observing guardianship agency proceedings and reviewing guardianship agency űles. őis manner of data collec-tion gives an opportunity to capture a snap-shot of guardianship practices. conducting research that includes interviews of participants, some of whom have mental health problems or intellectual disabilities, raises ethical concerns about the privacy and the capacity of interviewees to understand the purpose of the research and to give informed consent to participate in it. mdac carefully considers the ethical issues that are raised by this aspect of research and has adopted guidance to protect the participants and the data they provide. each researcher has a numerical system of maintaining information and stores the key and raw data in diőerent locations. őe guidance, reproduced at annex c at page 88 of this report, sets out standards for informing research ‘subjects‘ about the voluntary nature of participation in the research, the right to refuse participation at any time, and the conditions of conűdentiality surrounding the information which they provide.1.5 indicators for a human rights-based assessment of guardianship őroughout the project, mdac has used 29 indicators against which legislation is analysed. őese indicators come from the key document concerning guardianship and supported decision-making, namely the council of europe committee of ministers‘ recommendation no. r(99) ‘principles concerning the legal protection of inca-pable adults.‘ further indicators were derived from the recommendation‘s explanatory memorandum,11 as well as from a review of guardianship legislation in jurisdictions in europe, the united states and canada. mdac has formulated its indicators bearing in mind that, with the exception of kyrgyzstan, all countries under review have ratiűed the european convention on human rights and, as member states of the council of µ$fwxdo h[lvwlqjlqidfw kdylqjhiihfwhyhqwkrxjkqrwirupdooruohjdoouhfrjql]hg¶black‘s law dictionary :hvwwkhg6hh$qqh[dwsdjhiruwdeohvxppduridoowzhqwqlqhlqglfdwruv116hhwkhixoowh[wriwkhphprudqgxpdwkwwsv zfgfrhlqw9lhz’rfmvs”lg .1human rights and guardianship in russiaeurope, there is an expectation that they will comply with its ‘soft law‘, such as re-commendation no. r(99)mdac‘s indicators capture basic safeguards necessary for a person-centred guardianship system that respects human rights. őe intent was to keep the indicators relatively simple and concise even where the underlying issues are anything but straightforward.őe indicators are not exhaustive, but do highlight critical issues faced by adults in guardianship systems. omission of a particular point or issue from an indicator does not mean that the issue is not important or does not pose a problem in the legislative framework of the country in question. by standardising the investigation and analysis of guardianship systems, mdac aims to create a means for people to compare and contrast guardianship systems in diőerent countries. ‘soft%odfn¶vcommitmenthowever,mental disability advocacy centerardianship law and polic in rssia.1introductionrussia – the largest country in the world – is situated in northern asia, bordering the arctic ocean in the north and the north paciűc ocean in the far east. because of the vast size of russia, as well as the impracticability of conducting űeld research of this nature on a nation-wide basis, mdac has focused this study only on the st. petersburg region, a region with a population nearing 5 million people.13 it should be noted, however, that most of the legislation aőecting guardianship proceedings in st. petersburg is federal law and is applied in a similar way in other regions of russia. concerns raised throughout this report are therefore of nationwide applicability. 2 demographic and social backgroundrussia‘s population exceeds 143 million people.14 őe country is divided into six diőerent types of administrative units (states), of which currently there are 89. őese are: republics, krajs, oblasts, one autonomous oblast, the 2 federal cities of moscow and st. petersburg, and autonomous okrugs. russia‘s population, similarly to most european countries, reůects a decreasing growth rate. in st. petersburg, the death rate is .8 times higher than the birth rate. due to this negative growth rate (-0.7 percent annually) russia has a relatively small population of children below the age of 14 years or younger (14.6 percent). of that age group, 5percent are male and 8.7 percent are female. őe largest age group, constituting 7percent of the total population, falls between 5 and 6 years of age, with a gender ratio of .07 women per .00 men.lower life expectancy rates (60.55 years for men and 7.0 years for women for russia and 60.6 for men and 72. for women in st. petersburg) are reůected in a small elderly population of those over the age of 65 (14.2 percent). in this age range, there are 2.females for every male living in russia. őese űgures indicate the potentially disparate 132i¿fldozhevlwhriwkh&lw$gplqlvwudwlrqri6w3hwhuvexuj http://www.gov.spb.ru/day/people.14 ciaworldfactbook,january 10,2006.http://www.odci.gov/cia/publications/factbook/geos/rs.html.15 inrussia,statesareadministrativedivisionsonestepbelowthefederationlevelandarefurthersubdividedintodistrictscalledraions.duetorecentamendmenttothe&rqvwlwxwlrqwkh vwdwhvzlooehuhgxfhgwrlq theconstitutionoftherussianfederation,art. 5). ciaworldfactbook,january 10,2006,opcit.1human rights and guardianship in russiaimpact that guardianship may have on women over men, given that guardianships are frequently sought for the elderly as age-related diseases may render individuals less capable of self-care and decision-making. őe number of people with certiűed disabilities because of mental illness is estimated at 34,200 (an increase of 2.9% since 2002), or 656 people per 00,000. it is noted here, and with concern, that there are no national data on the numbers of people deprived of legal capacity. nationwide data on mental health and social care include: social care institutions:442 social care institutions (in russian, ‘psycho-neurological institutions‘, or ‘internats‘) with a total of ,600 beds (this is an average of 282 beds per institution).in-patient mental health services:277 psychiatric hospitals (increased by in comparison with 2002).110 in-patient departments at out-patient psychiatric clinics (increased by in comparison with 2002). ,752 beds in total (decreased by 442 or 0.9% in comparison with 2002). 672,000 psychiatric hospitalizations in 200, or .6 per 00,000 (increased by 0.% in comparison with 2002).out-patient mental health services: out-patient psychiatric clinics or ‘psycho-neurological hospitals‘.2,27 psycho-neurological out-patient units in rural areas.117 psycho-therapeutic out-patient units (decreased in comparison with 200and 2002).in st. petersburg there are seven psychiatric hospitals with 5,345 beds and 2 psycho-neurological health centres with 600 beds.20 in 200, 2,844 people were hospitalized (9.75 per ,000).national statisticsin russia no national statistics are kept on the number, status, condition of people under guardianship. őere were two opportunities for mdac to gain statistical data, from courts and from guardianship agencies. courts in st. petersburg are required to submit statistics twice a year to the judicial department of the supreme court, st. petersburg thehealthstatusofthepopulationoftherussianfederationin200statereportoftheministryofhealthcareandsocialdevelopmentoftherussianfederationandtherussianacademyofmedicalsciences,moscow.200 ibid.20 see:zzz]gudyvseuxvwdwblqirupdwlrqvwdwbgdwdsgivhwbxfub]gudyrrkusgi see:zzz]gudyvseuxvwdwblqirupdwlrqvwdwbgdwdsgighdwberoqlfqbxfusgimental disability advocacy centerbranch. mdac asked this department to provide statistics, and was invited to the department‘s statistics department, where it was revealed that courts do not submit data on legal incapacity cases separately as they fall within the ‘other special proceedigns‘ category. it was therefore impossible to get statistics from the court system. guardianship oěces of local authorities do not submit statistics on guardianship to any other agency. mdac attempted to discover statistics from each guardianship oěce in st. petersburg. őe numbers are as follows:municipal districtnumber of people under guardianshipmunicipal district 720municipal district 1118-24municipal district 2138-40municipal district 25100municipal district 4210municipal district 4110municipal district 585municipal district 7010-15admiralteyskiy okrug7akademicheskiy okrug54aptekarskiy ostrov11dachnoe100gavan40izmajlovskoe18kolpino97kronshtadtskoe58kronverkskoe10-15morskoy10moskovskaya zastava32narvskiy okrug27okkervil‘47pavlovsk221human rights and guardianship in russiapetrodvorets300poselok metallostroy12pushkin87sampsonievskoe28saperniy4shushary18sosnovaya polyana34sosnovskoye26strelna5svetlanovskoe38tyarlevo2uljanka70zvezdnoe40as the above table shows, some of the oěces could provide only estimated űgures. őe number of people under guardianship in each municipal district varies from zero to more than 00 people. őe average is 20-0 people. őere are 111 municipal districts in st. petersburg. rough estimations suggest therefore that more than ,000 people are currently under guardianship in st. petersburg.22 if we continue this rough calculation and extend it to the whole russian federation, there are an estimated 9,000 people under guardianship nation-wide. russia‘s population is 142.8 million, so the percentage of people under guardianship can be estimated at approximately 0.07%.3 russia‘s legal systemrussia is a federal republic. its constitution, adopted in 99, has supreme legal force. it is enforceable throughout russia and all laws must be consistent with its provisions.25 beyond the constitution, federal laws have the highest status in the legal system, then presidential decrees (called ‘ukaz‘), followed by governmental decrees (called ‘postanovlenie‘). another important source of legal regulation is ministerial decrees – the so-called departmental acts. 223rsxodwlrqri6w3hwhuvexujlvploolrqshrsoh )hghudo6wdwh6wdwlvwlfv6huylfhkwws zzzjnvuxiuhhbgrfebkwp federalstatestatisticsservice,dataasof2006.http://www.gks.ru/free_doc/2006/b06_kwp constitution,arts. 4 and 15 constitution,art. 15mental disability advocacy centerstates have little discretion in law making.26 for example, only federal legislation may contain regulations regarding guardianship.27 state legislation may however deűne the structure, rights and duties of guardianship agencies, but only within the limits established by the federal laws.28 acts of municipal bodies are at the lowest level of the hierarchy of laws.4 mental health law in russiaőe main act that regulates the provision of psychiatric care in russia is the law ‘on psychiatric care and guarantees of citizens‘ rights in its provision‘.29 in addition, other laws deal with mental health issues, the most important of which are ‘fundamentals of the laws of russian federation regarding protection of citizens‘ health‘, and ‘on state court-expert activity in the russian federation‘.31 őese laws deal mainly with relations between the individual and the state in terms of compulsory admission to, and treatment in, psychiatric hospitals. őe laws link with the civil procedure code on procedural issues. őe crossover between classic mental health laws and the guardianship system are found in two decrees issued by the ministry of health. one 200 decree introduced a formal standard for psychiatric examinations in the guardianship process, whilst the other contained guidelines for psychiatrists who carry out forensic psychiatric examinations in state psychiatric institutions.335 guardianship in russiaguardianship issues are governed by federal law and fall within federal jurisdiction.34 őe two main acts that regulate guardianship and establish the rights and responsibilities of guardians are the civil code and the civil procedure code. őese are referred to 26&rqvwlwxwlrqduwv27 accordingtoart.1 oftheconstitution,civillawandcivilprocedureareunderfederalmxulvglfwlrq constitution,art.29 2july 1992,latestversion22august200 22july 199latestversionfebruary2006.3131 may200latestversion 3december200 decreeoftheministryofhealthof 1august200no. 433 decreeoftheministryofhealthandsocialdevelopmentoftherussianfederationµ2qdgrswlrqriwkhlqvwuxfwlrqrqkroglqjfrxuwsvfkldwulfh[dplqdwlrqvlqwkhvwdwhpsychiatricinstitutions‘, 3may20034)hghudoodzriwkh5xvvldq)hghudwlrqµ2qwkhjhqhudosulqflsohvrirujdql]dwlrqriorfdogovernmentintherussianfederation‘,art.14para. 1part 16,october200lastestversion 1october2006.35 civilcodepart 1 (november 30, 199latestversion27july2006)andpart(26january 1996,latestversionfebruary2006). civilprocedurecode(november 142002,latestversion27december2002human rights and guardianship in russiaextensively throughout this report. őe civil code sets out the functions of guardianship authorities of local government, which carry out speciűc functions as set out in law, and which will be detailed in the main section of the report. őe civil code does not specify guardianship beyond stating that guardianship can be established over adults who are declared ‘incapable‘ by the court as a result of a mental illness. őere is only one mechanism through which a person may be placed under guardianship. őis mechanism encompasses a two-step process. őe űrst step requires a court ruling declaring the individual in question to be deprived of legal capacity. legal capacity is deűned in law as the ability of citizens through their actions to acquire and exercise their civil rights, and to fulűl their civil obligations (civil capability) that accrue upon reaching the age of 8. a person, who, as a result of a mental disorder, cannot understand the meaning of his or her actions or guide them, may be declared by the court as incapable. őe second step is an administrative procedure through which the guardian is selected and appointed.41 őe guardian is appointed by the guardianship authority of the local government. greater detail of these steps is provided below. it must be pointed out at this stage however that the legislation enumerates in more detail the űrst step. very little is said about how a guardian can be appointed, which suggests an immediate weakness of the system, a weakness to which the report will later turn. depriving a person of legal capacity is performed by a court. őe standard for the deprivation of legal capacity is not merely the presence of a mental illness, but rather that the mental illness prevents a person from understanding the meaning of his actions or guiding them.43 őe procedure for depriving a person of legal capacity is governed by laws for so-called special proceedings. special proceedings are designed to determine legally relevant facts or to decide certain speciűc matters.44 őe main stages and principles of civil procedure must be observed. one of the main diőerences of special proceedings is that there are no actual parties to the case, only interested parties. a person whose legal capacity is under question is called an ‘interested party‘ or ‘person concerned.‘ civilcode,art. 34). ibidart. 32(). ibidart.).&lylo3urfhgxuh&rghfkduwv2wkhuduwlfohvriwkh&lylo3urfhgxuh&rghwkdwfrqwdlqjhqhudosurylvlrqviruwkhflylosurfhgxuhlhfkdswhuvdqgalsoapply.41&lylo&rghfk,,,duwv dqg ibidart.29().43 ibidart.29.44 civilprocedurecode,art.262.45 ibidart.26mental disability advocacy center22őose who take part in the proceedings, including the person whose legal capacity is at issue, can ask for a private hearing, in default the hearing is open to the public unless the judge declares otherwise. őe judge can ask an expert to conduct an incapacity assessment. őe assessment must be conducted at an institution operated by the state health care system, a provision which limits the opportunity to obtain a truly independent opinion, and which suggests that in all cases a psychiatrist should carry out the assessment. őe standard form for the examination report was outlined in the 200 decree, referred to above. őis provided, for the űrst time, a template on conducting psychiatric examinations, including instructions on how to complete the template. őe report must be submitted to the court in writing, signed by the expert or experts, and must be completed no later than ten days following the incapacity assessment. őe report consists of three parts: introduction, research, and conclusions.őe introduction to the report should contain the name of the institution, the time and place of the examination, information about the person who is the subject of examination (name, date of birth, etc), and information about the expert(s) (name, education, length of service, etc.). őe introduction should contain a declaration about the truthfulness of the expert‘s opinion. indeed experts are subject to criminal sanctions for providing false expert opinion.50 all relevant additional background information, including details of previous hospital admissions, and make reference to relevant medical and case notes. őe research section of the report should contain the description of methods and relevant medical information. őis includes hereditary psychiatric disorders, previous psychiatric disorders, personal qualities and changes in personality that occurred as a result of the mental illness. it may also include a description of the adult‘s reactions to various events, including psychological traumas and other somatic illnesses and traumas, peculiarities of critical age periods, references from professional colleagues, and a description of the adult‘s somatic, neurological and mental state. őe description of the adult‘s mental state is a central part of the research section. it includes the following elements: the adult‘s state of consciousness, peculiarities of thinking, memory, mental power, emotions, will, attitude, and attention. it can include the adult‘s attitude towards previous mental disorders, psychotic disorders at the time of examination, and the adult‘s attitude to the legal case. all medical facts are documented. 46 ibidart. 10(2). ibidart. 10.µ)xqgdphqwdovsurwhfwlrqh[dpsoh3hwhuvexujfdsdflw decreeoftheministryofhealthno. 4issuedon 1august200 criminalprocedurecode,art. 307.23human rights and guardianship in russiaőe űnal, the conclusions, section should contain an evaluation of the examination results and a substantive formulation of conclusions. diagnosis of the mental disorder should be matched against international standards. experts should provide answers to all questions asked by the court or otherwise explain their inability to provide these.őe report is then submitted to the court. all interested parties can familiarise themselves with case materials, including the report. although an adult has the right to see the report, the law does not require that a copy be sent to the adult. őe consequence is that adults can see the report only if they speciűcally go to the court‘s oěce. őe law states that when a person is notiűed about the hearing, he or she is supposed to be provided with copies of procedural documents.52 őe examination report should be read out during the hearing. if the court deems the űrst examination inconclusive, additional examinations may be carried out by the same or a diőerent expert. if the court, the prosecutor or any other interested party is dissatisűed with the results of the examination, the court can order a re-examination. őis can be performed by a diőerent expert or group of experts. őere is, therefore, on the face of it a right to seek a second medical opinion. if the court deprives the adult of legal capacity, the case is sent to the guardianship authority of the local government with a direction from the court to place the adult under guardianship. in these instances the court must send the case to the adult‘s local guardianship authority within three days of the deprivation of legal capacity.556 human-rights based assessment of russia‘s legislationmdac has developed a series of 29 indicators to be used in assessing guardianship legislation. őese indicators are derived from international human rights law and standards, such as the european convention on human rights and the council of europe council of ministers recommendation no. r(99) on adults and incapacity. it should be noted here that where an issue or assertion has not been clearly established in international law or standards, national laws and practices from diőerent countries are considered. őe űrst indicator highlights principles that run throughout the legal framework, perhaps indicating general societal attitudes towards persons with mental disabilities. őe remaining indicators, like guardianship systems themselves, are divided into three major areas. őe űrst area addresses the rights of the adult prior to placement under guardianship. őe second area addresses the rights of the adult after deprivation of legal capacity as well as the corresponding responsibilities and accountability of the 51 civilprocedurecode,art. 35part 1 ibidart. 113part2.53 ibidduw54 ibidduw55 civilcode,art. 34para.2.mental disability advocacy center24guardian. őe third area explores less restrictive alternatives as well as mechanisms for review and termination of guardianship once imposed. within each box there is a concise statement of the indicator. őe conclusion regarding the apparent compliance of the law to the stated indicator is below, followed by an analysis of speciűc provisions of russian law that support the conclusions. finally, in the section termed ‘human rights standards‘ mdac provides a basis derived primarily from recommendation no. r(99) and the european convention on human rights. in a few instances, where no clear standard was espoused within these two documents, examples of acceptable legal provisions are provided. 2.6.1principles running throughout legal frameworks (indicator 1)indicator legislative purpose or preamble to the law encompasses respect for the human rights, dignity and fundamental freedom of people with mental disabilities. conclusion: őe constitution and other laws provide for the respect for the human rights and dignity of people with mental disabilities in accordance with international standards.analysis: őe constitution declares it the duty of the state to recognize, respect and protect the rights and liberties of individual citizens,56 such rights to be so recognised and protected in conformity with the commonly recognized principles and norms of international law.57 őe law entitled ‘on psychiatric care and guarantees of citizens‘ rights in its provision‘ states that psychiatric care should be carried out based upon the principles of lawfulness, humaneness, and respect for human rights.58 similarly, the federal law ‘fundamentals of the laws of russian federation regarding protection of citizens‘ health‘ states that the main principles of health protection are respect for human rights and the provision of state guarantees related to such rights.59 human rights standards: principle of recommendation no. r(99) provides that respect for the human rights and dignity of people with mental disabilities should permeate throughout the law:‘in relation to the protection of incapable adults the fundamental principle, underly-ing all the other principles, is respect for the dignity of each person as a human be- constitutionoftherussianfederation. ibidart. 17(). ibidart. 1(2). ibidart.2().25human rights and guardianship in russiaing. őe laws, procedures and practices relating to the protection of incapable adults shall be based on respect for their human rights and fundamental freedoms, taking into account any qualiűcations on those rights contained in the relevant interna-tional legal instruments.‘60 őis principle can be implemented in legislation by including a preamble or a purpose statement in the relevant statutes. such a proclamation on the recognition and importance of human rights principles and human dignity will guide the judiciary to consider these principles when drafting a decision. őe world health organization (who) also recommends this approach, in order to help ‘courts and others to interpret legislative provisions whenever there is any ambiguity in the substantive provisions of the statute.‘ őe who cites the polish mental health protection act preamble as embodying this principle. őis example states, ‘[a]cknowledging that mental health is a fundamental human value and acknowledging that the protection of the rights of people with mental disorders is an obligation of the state, this act proclaims […]‘62 a preamble such as this establishes the overriding values that should be applied to implementation of the law that follows. 2.6.2procedural rights during guardianship proceedings (indicators 2-7)őis group of indicators addresses the procedural rights of adults in guardianship proceedings. while national legislation may well provide for additional rights and protections, these indicators represent the minimal necessary standards for due process and fair proceedings. under european human rights law, ‘special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.‘ indicator 2őe legislation clearly identiűes who may make an application for appointment of a guardian and the foundation needed to support it. conclusion: legislation deűnes who may make an application for appointment of a guar-dian, but it fails to deűne a suěciently clear and speciűc basis for founding applications.60 recommendationr(99)principle 1:ruog+hdowk2ujdql]dwlrq:+25hvrxufh%rrnrq0hqwdo+hdowk+xpdq5ljkwvdqg/hjlvodwlrq 6wrs([foxvlrq’duhwr&duh :ruog+hdowk2ujdql]dwlrq*hqhyd6zlw]huodqgs 620hqwdo+hdowk3urwhfwlrq$fw0 3rodqgdvflwhglq:+2:+25hvrxufh%rrnrq0hqwdo+hdowk+xpdq5ljkwvdqg/hjlvodwlrq 6wrs([foxvlrq’duhwr&duh :ruog+hdowk2ujdql]dwlrq*hqhyd6zlw]huodqgs europeancourtofhumanrightsinthecaseofwinterwerp v. the netherlandsapplication1rmxgjphqw2fwrehu $ (+55sdudmental disability advocacy center26analysis: őe law provides that a procedure establishing a deprivation of legal capacity can be initiated through a formal application for guardianship. it further deűnes those who may initiate the proceedings. őese include:family members of the adult (spouse, children who have reached the age of 8, parents, and other relatives who live with the adult). close relatives (parents, children, siblings) regardless of the fact if they are residing together with the adult.guardianship authorities of local government.psychiatric hospitals or social care (psycho-neurological) institutions.őe application should contain a description of evidence indicating the presence of a mental illness severe enough to prevent a person from understanding the meaning of his actions or guiding them.65 an applicant should also provide documents supporting the application but the law does not specify what kind of documents is required. human rights standards: legislation should deűne the scope of individuals who may űle an application for the appointment of a guardian. so should it specify the nature of evidence necessary to demonstrate the need for such an application. with respect to the űrst factor, recommendation no. r(99) speciűes that:‘őe list of those entitled to institute proceedings for the taking of measures for the protection of incapable adults should be suěciently wide to ensure that measures of protection can be considered in all cases where they are necessary. it may, in particular, be necessary to provide for proceedings to be initiated by a public oěcial or body, or by the court or other competent authority on its own motion.‘66őe recommendation calls for ‘fair and eěcient procedures for the taking of measures for the protection of incapable adults‘.67 fairness in this context includes the provision of a law that clearly speciűes who can submit applications. őe second factor, or speciűcity requirement – that a guardianship application must have some merit on the face of it – is necessary in order to protect the adult against malicious accusations of incapacity. in the case of h.f. v. slovakia, the european court of human rights examined the procedure leading to the deprivation of an individual‘s legal capacity. őis procedure was based on an application by the individual‘s ex-husband and substantiated by a psychiatric report that at the time of the hearing was more than &lylo3urfhgxuh&rghduw ibidduw66 principle 11).67 recommendationno.r(99)principle 5).27human rights and guardianship in russiaone year old. őe court found a violation of article 6() because, among other procedural defects, the slovakian court failed to secure suěcient evidence in light of principle 2 of recommendation no. (99), which requires an ‘up-to-date report from at least one suitably qualiűed expert.‘68 when legislation prescribes the type of evidence to be submitted with an application, a procedure such as that suőered by the applicant in h.f. v. slovakia can be avoided. indicator an adult has a right to actual notice, and to be present and heard at all proceedings related to the application for deprivation of his or her legal capacity and appointment of a guardian. conclusion: russian legislation provides for the right to receive notice and to be present at court hearings. however, this right can be waived if the adult‘s health prevents attendance.69 analysis: a person who is subject to legal incapacity proceedings and further placement under guardianship has the right to be both notiűed that a procedure has been instituted,70 and to attend the hearing, unless his or her health prevents the adult from doing so. őis exception, however, seriously undermines the individual‘s right to be present at the hearing because the law fails to provide clear grounds for the judge to decide not to summon the adult to the hearing. őus, the law allows for an excessively broad judicial margin of appreciation of what the health status means when the case may be heard without the adult. all interested parties (the applicant, the adult, the guardianship authority, etc.) must be notiűed and summoned, subject as noted above to the adult‘s health, to appear in court.72 őe summons contains information about the court, including its name and address, the time and place of the hearing, in what capacity a person is supposed to h.f. v. slovakia$ssolfdwlrq1r mxgjphqw1ryhpehu3ohdvhqrwhwkdwwkhmxgjphqwlvdydlodeohrqolq)uhqfk)rudq(qjolvk6xppduvhh3uhvv5hohdvh(xurshdq&rxuwri+xpdq5ljkwv5hjlvwudu1ryhpehu$ydlodeohdw http://www.echr.coe.int/echr/en/header/press/press+service/introduction/.69&lylo3urfhgxuh&rghduw70 civilprocedurecode,art. 113 ibidduw72 delivery,mental disability advocacy center28appear in court, and the case number. őe summons is delivered in advance, so that all participants may have enough time to prepare for the hearing, but the exact timing of the summons is not speciűed. őe application may also contain information regarding the adult‘s ability to attend the court hearing. medical case records, hospital references, previous psychiatric examination reports, and testimonials can serve as evidence of mental illness. when an application is űled with the court, the judge checks whether necessary evidence is included. if the application contains all necessary evidence, the judge issues an order to carry out an examination. in this order, the judge puts several questions to the expert, and others, as to whether the adult is capable of attending the court hearing. őerefore, the questions of presence and the medical grounds for declaring an adult incapable are decided by an expert in the course of the same examination. furthermore, the expert must present the grounds for his or her assessment. if the adult cannot attend, for example, if the person is detained in a psychiatric institution, then the case will be heard in the adult‘s absence.75 human rights standards: őe right to be present and heard during court proceedings is directly linked to the right to receive notice of the proceedings, as the right to be present and heard cannot be exercised without meaningful and actual notice. principle 11 of recommendation no. r(99) makes it clear that the adult must be informed of the proceedings, and that this must be done ‘in a language, or by other means, which he or she understands.‘76 őe explanatory memorandum to recommendation no. r(99)reiterates the necessity of this procedural safeguard, citing the requirements of article 6 of the european convention on human rights.77 őe language used in the principle recognizes that for an adult, notice as prescribed by general civil procedure law may not convey the meaning or ramiűcations of the proceedings. őerefore, actual notice must be given. a possible solution to otherwise vague laws is to incorporate a provision such as that in the american uniform guardianship and protective proceedings act. őis simply adds a provision requiring that ‘notice under this act must be in plain language‘.7873 ibidart. 114para. 1 ibidart. 113para. 3&rpphqwduwrwkh&lylo3urfhgxuh&rgh duwlfoh(ge=kxmnry903xfklqvnv.k.,treushnikovm.k.moscow,200763ulqflsoh dovrsurylghvdqh[fhswlrqwrwkhqrwlfhzkhqvxfkµzrxogehpdqlihvwowithoutmeaningtothepersonconcernedorwouldpresentseveredangertothehealthofthepersonconcerned‘.itisthepositionofmdacthatnoticeofsuchhearingshouldalwaysbeprovidedasthereisnodisadvantagetoprovidingnoticeinallsituationsand,inadditiontothis,itseemsunlikelythatawarenessofsuchproceedingswouldputanadult‘shealthin‘severedanger‘.77&rxqflori(xursh&rpplwwhhri0lqlvwhuv([sodqdwru hprudqgxpwr5hfrpphqgdwlrqr(999)4 onprinciplesconcerningthelegalprotectionofincapableadults.adoptedfebruary 1999,para. 52. seetheuniformguardianshipandprotectiveproceedingsact997)para. 113(c).thisismodellegislationdraftedbythenationalconferenceofcommissionsonuniformstatelaws.,wkdvehhqhqgruvhgewkh$phulfdq%du$vvrfldwlrq7khsxusrvhriwklvxqlirupdfwzdvwrhqvxuhgxhsurfhvvsurwhfwlrqirulqfdsdflwdwhgshuvrqvdqgwrvxemhfwjxdugldqvwrfrxuw29human rights and guardianship in russiawith respect to the second element, namely to be heard, recommendation no. r(99)simply provides that ‘the person concerned should have the right to be heard in person in any proceedings which could aőect his or her legal capacity.‘79 article 6 of the european convention of human rights provides for fair trial rights in cases, including those where a person‘s civil rights and obligations are in question. őe european court of human rights has held that guardianship falls within the category of civil rights and therefore such proceedings must comply with the requirements of article 6.80 indicator an adult has a right to free and eőective legal representation throughout guardianship proceedings. conclusion: őere is no right to free legal aid for adults subject to guardianship pro-ceedings. analysis: őe adult has the right to have an attorney represent him during the proceedings. however, there is no entrenched legislative right to free legal representation. free legal representation is only available to russian citizens with low incomes and in only speciűc cases, of which only one form, world war ii veterans, applies to incapacity proceedings.82 other individuals with low incomes are not provided with legal representation in incapacity hearings.in some states, for instance, in st. petersburg, free legal aid is provided by the state through special programmes to all individuals with low income in any cases except commercial matters. however, the adult must request this service from the relevant law űrm before the hearing. őe court is not required to seek free legal aid in incapacity proceedings for the adults, or even to notify the adult of the existence of the special programme.mxulvglfwlrqwkurxjkrxwwkh8qlwhg6wdwhv frqvhtxhqwolwvgxhsurfhvvsurylvlrqvpddovrvhuyhdvprgholqrwkhumxulvglfwlrqv$ydlodeohdw www.nccusl.orgvisited 1 may2007.79 principle 13 seewinterwerp v. the netherlands$ssolfdwlrq1rmxgjphqw2fwrehu $ (+55lqzklfkwkh&rxuwvdlgwkdwµ>w@khfdsdflwwrghdoshuvrqdoozlwkrqh¶vsurshuwlqyroyhvwkhh[huflvhrisulydwhuljkwvdqgkhqfhdiihfwvµflylouljkwvdqgreoljdwlrqv¶zlwklqwkhphdqlqjri$uwlfohsdud>@’lyhvwlqj0u:lqwhuzhusrithatcapacityamountedto‘determinationofsuchrightsandobligations‘.thisprinciplezdvpruhuhfhqwouhdi¿uphglqmatter v. slovakia$ssolfdwlrq1r mxgjphqw5 july 1999,para. 51&lylo3urfhgxuh&rghduw ‘onadvocates‘activityandadvocacyinrussianfederation‘,federallawof 31 may2002qr)=duw6hhdovr&lylo3urfhgxuh&rghduw$juhhphqwri-xqh1rµ2q3urylglqj)uhh/hjdo$lgri$oo7shvwr$oo9hwhudqvri:ruog:du,,9lfwlpvriwkh6lhjhri/hqlqjudg3ryhuw6wulfnhq&lwl]hqvdqg7khlu)dplo hpehuv/lylqjlq6w3hwhuvexuj¶6hhdgglwlrqdolqirupdwlrqintherussianlanguageat:http://www.apspb.ru/bespl_pom.php.mental disability advocacy centerhuman rights standards: recommendation no. r(2000 highlights that ‘persons with mental disorder should be entitled to exercise all their civil and political rights.‘ it is a well-established principle of the international law, explicitly stated in article 14)(d) of the international covenant on civil and political rights (iccpr), that where liberty is in question, a person must have the right to free legal assistance and representation. it is clear, as pointed out by the european court of human rights, that procedures determining legal capacity directly implicate an individual‘s rights and obligations.85as the requirements of article 14) of the iccpr are considered basic guarantees of a fair hearing,86 free and eőective representation should be interpreted as a requirement during all capacity proceedings. extension of this right to guardianship procedures is also supported by recommendation no. r(99), which provides that ‘there should be adequate procedural safeguards to protect the human rights of the adult concerned and to prevent possible abuses.‘87 enforcing this requirement by providing eőective legal representation is especially crucial when the person is alleged to lack capacity to represent him or herself.88 deprivation of legal capacity may result in a lifelong placement under guardianship and a loss of the right to exercise fundamental rights (such as the right to choose residence, to manage űnances, to marry, to vote, and so on). őe un general assembly recognized the importance of this obligation in the 99 mental illness principles, which state: [t]he person whose capacity is at issue shall be entitled to be represented by a counsel. if the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have suěcient means to pay for it.89 indicator 5 an adult may not be detained in order to be subjected to an evaluation of his or her legal capacity. conclusion: legislation allows for the detention of adults in psychiatric hospitals in order to carry out an incapacity assessment. analysis: russian law provides the opportunity for the adult to consent to an incapacity assessment. őe law requires that either the adult or their representative should give their recommendationno.r(200concerningtheprotectionofthehumanrightsanddignityofpersonswithmentaldisorder,adopted22september200article 4 matter v. slovakia$ssolfdwlrq1r mxgjphqw-xo sdud seeunhumanrightscommittee,generalcomment 13para. 5 principle7.6hhmegyeri v. germany unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyondecember 17, 199principle 1(6).3human rights and guardianship in russiaconsent to the examination in writing.90 őe consent should contain reasons for holding the examination, the conditions of the examination (out-patient or in-patient), and the time it will take to perform the examination. however, the law also allows psychiatrists to detain adults purely to carry out an incapacity assessment. őis decision, which must be made by a judge, may be made only if the prosecutor and a psychiatrist are present at the court hearing. őe law does not specify the procedure for such a hearing, or whether it must be held in the presence of the adult. őe court can order an adult‘s detention in an institution for an incapacity assessment solely on the basis of one expert conclusion that the assessment cannot be held on an out-patient basis. curiously, the civil procedure code contains provisions about compulsory incapacity assessments for people who refuse to be examined in general, and not those who refuse to be detained in a hospital for examination. once the court has decided to detain the adult for an incapacity assessment, it must notify the person‘s family members, relatives or other individuals named by the adult within 2hours. if these people are unavailable, the court must notify the local police force. an adult may be detained in an institution for up to 0 days for an incapacity evaluation. őis term may be extended by a court in the jurisdiction where the examination is taking place based solely on a request of the expert or experts carrying out the incapacity assessment. őe court is obliged to decide on this extension request and inform the experts within three days following the request. őese cases must be heard with the participation of the adult‘s representative and the adult him or herself unless prevented so by reason of his or her health.92 if the judge refuses to extend the term, the adult must be discharged. if the extension is granted, the director of the hospital informs the adult of the judge‘s decision. in exceptional cases, the timeframe of an examination can be extended for a second time, although the maximum term of institutionalization for an incapacity assessment is 90 days. if these terms are not observed, the adult, his representative or advocate, and/or the director of the institution can űle a complaint with the district court. adults detained in hospitals for an incapacity assessment are subject to general mental health laws as noted above.9590µ2qvwdwhfrxuwh[shuwdfwlylwlqwkh5xvvldq)hghudwlrq¶duw op.cit.92 civilprocedurecode,art. 3and(2).7khvvwhpdoorzviruwkhlqyroyhphqwriwzrgliihuhqwmxgjhv wkh¿uvwehlqjwkhrqhzkrrughuhgdqh[dplqdwlrqzklohwkhvhfrqgmxgjhriwkhfrxuwlqwkhmxulvglfwlrqzkhuhwkhh[dplqdwlrqlvwdnlqjsodfhµ$erxwvwdwhfrxuwh[shuwdfwlylwlqwkh5xvvldq)hghudwlrq¶duw’hfuhhriwkh0lqlvwuri+hdowkriwkh5xvvldq)hghudwlrqqrlvvxhgrq$xjxvwduwµ$erxwvwdwhfrxuwh[shuwdfwlylwlqwkh5xvvldq)hghudwlrq¶duwmental disability advocacy center32human rights standards: őe un mental illness principles state that ‘no person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.‘96 őe european court of human rights has examined the issue of detention in relation to forced psychiatric examinations under article 5 of the convention and the right to liberty. in nowicka v. poland, the court held that detaining an individual in order to fulűll an obligation under the law, such as a court-ordered psychiatric examination, is on its face a permissible action. however, the court held that detaining an individual prior to such an examination and continued detention after the obligation ceases to exist fails to balance the state‘s interest in the examination and the individual‘s right to liberty, and thus constitutes a violation of article 5.97 in other cases, the court additionally held that forced psychiatric examinations violate article 6 (right to fair trial)98 and article 8 (right to respect for private and family life, home and correspondence)99 of the european convention on human rights. consequently, the mere possibility that a person may lack legal capacity, either partially or entirely, is not a suěcient basis, by itself, to involuntarily detain a person. indicator 6an adult has the right and opportunity to present his/her own evidence (including witnesses), and to challenge the opposing evidence (witnesses). conclusion: russian legislation allows an adult to present evidence and call witnesses, as well as to examine and challenge the evidence presented by others. however, the law fails to provide that the adult be informed about this right in incapacity proceedings, especially as there is no free legal representation (see indicator , above), as well as to take into account the adult‘s lack of functional capacity which limits their ability to understand complex procedural issues. analysis: adults subject to incapacity proceedings and imposition of guardianship have the right to present evidence and witnesses,00 as well as to examine and challenge the evidence against them. as there are no restrictions stating otherwise, it is assumed that the adult can also present evidence or witnesses in the pre-trial stage.96 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 1december 1993ulqflsoh0hglfdo([dplqdwlrqv97 nowicka v. poland$ssolfdwlrq1r mxgjphqwri’hfhpehusdudv seebock v. germany99 seeworwa v. polandkroglqjwkdwpxowlsohh[dplqdwlrqvlqvkruwshulrgriwlphlqfrqqhfwlrqzlwkvlplodufulplqdofdvhvfrqvwlwxwhgdqxqmxvwl¿hglqwhuihuhqfhzlwkwkhdssolfdqw¶vsulydwholih$ssolfdwlrq1r mxgjphqw1ryhpehu00 civilprocedurecode,art. 57. ibidduwv dqg33human rights and guardianship in russiaa person who is the subject of an examination, similarly to any other individual, enjoys all procedural rights, including the following rights regarding its process:to submit questions that should be decided during the examination, provided that the adult is aware of the incapacity application lodged against him or her.to request that the judge hold a re-examination, a complex examination (more than one űeld of science, for example psychiatry and psychology), or a commission examination (involving more than one expert).02human rights standards: recommendation no. r(99) states that ‘[t]here should be fair and eěcient procedures for the taking of measures for the protection of incapable adults‘.őis principle echoes article 6() of the european convention on human rights, which guarantees a fair hearing in all determinations of civil rights and obligations. őe ability for the parties in the case to challenge evidence with counter evidence and the right to present evidence, including calling witnesses, are all included within the right to a fair trial. őis safeguard is also stated in article 14) of the international covenant on civil and political rights, which lists the minimum guarantees of a fair hearing.05 in the case of proceedings on legal incapacity and guardianship, the ability of the adult to challenge evidence is especially important, because only when evidence is tested do weaknesses or hidden motivations come to light. for instance, through cross examination the court may be able to hear about family conůicts and the application being motivated by the possibility of having control of the adult‘s űnances. furthermore, at this stage, the adult may also be able to point out procedural irregularities, such as medical reports that are out of date or incomplete, as well as evidence demonstrating the adult‘s functional abilities.indicator 7no adult is deprived of legal capacity without being the subject of a capacity evaluation, conducted by a qualiűed professional and based upon recent, objective information, including an in-person evaluation. conclusion: law provides that legal capacity may be deprived only after an incapacity assessment by a psychiatrist. however, the law is silent on the standard of the assessment.analysis: őe incapacity evaluation must be carried out by a certiűed state expert. őere is no requirement for an expert to have a special training on capacity assessment, and 02 ibidart.79. principle7(). forapplicationofarticle6(toguardianshipproceedings,seewinterwerp v. the netherlands$ssolfdwlrq1rmxgjphqw2fwrehu internationalcovenantoncivilandpoliticalrights,article 14)(e).seealsohumanrightscommittee,generalcomment 13para. 5 regardingarticle 14subsection 3 asgh¿qlqjplqlpxpjxdudqwhhvmental disability advocacy center34the law does not specify how recent the assessment should be. further requirements of incapacity assessments are fully detailed under indicator 5 and are not repeated here.human rights standards: a űnding of legal incapacity removes an individual‘s right to make decisions about all areas of his or her personal and public life. it, therefore, interferes with rights to privacy protected by international law.06 such interference must be in accordance with the law and necessary in a democratic society. legislation should therefore contain provisions to ensure that a decision to deprive an adult of legal capacity is based upon current and reliable information. recommendation no. r(99) calls for a thorough in-person meeting between the adult and a ‘suitably qualiűed expert.‘ őere must also be an up-to-date report to attest to the person‘s condition and notes that the resulting report should be recorded in writing.07 in h.f. v. slovakia, the european court of human rights cited recommendation no. r(99) in connection with the obligation to consult recent medical reports in determining legal capacity. in h.f., the court found that relying on an outdated psychiatric report did not amount to suěcient procedural safeguards to protect the applicant whose capacity was at issue. őe court additionally stated that a request for a second psychiatric report would have been in the interests of the adult.082.6.3quality of evidence provided to the court in incapacity cases (indicators 8-12)indicator 8a űnding of incapacity requires a demonstrable link between the underlying diagnosis and the alleged inability to make independent decisions.conclusion: őe law requires that a űnding of the deprivation of legal capacity be based on a causal relationship between mental disorder and the adult‘s inability to understand the meaning of his actions or take purposeful decisions.analysis: russian law requires that a psychiatric examination has to take place.09 őe civil code states that a person who, due to a mental illness cannot understand his actions or guide them, can be deprived of legal capacity. 11human rights standards: őis indicator űnds express support in the un mental illness principles, which states at principle (5) that ‘no person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.‘ őere 066hh$uwlfohriwkh(xurshdq&rqyhqwlrqrq+xpdq5ljkwvdqg$uwlfohriwkhinternationalcovenantoncivilandpoliticalrights.07 principle 12. h.f. v. slovakiaop.cit.09&lylo3urfhgxuh&rghduw11 civilcode,art.29.35human rights and guardianship in russiamust therefore be a demonstrable link between a diagnosis and limitation or deprivation of legal capacity. őis indicator also invokes several of the r(99) principles. principle 6 on proportionality states that limitation or deprivation of legal capacity must be proportional to the degree of an adult‘s capacity and tailored to his or her circumstances and needs. őis reůects an understanding that mental disabilities may ůuctuate. people need diőerent levels of pro-tection based on the nature, seriousness and ůuctuation of the disability, which may vary throughout a person‘s life. principles 7 and 2 provide that an adequate investigation and assessment of an adult‘s particular needs is an issue of fundamental fairness. furthermore, article 8 of the european convention on human rights mandates that any interference with a person‘s private life should be proportionate to the aims pursued. compliance with international human rights standards suggests that legal capacity should be restricted only to the extent necessary to carry out the purpose of the guardianship. indicator 9a űnding of incapacity is based upon suěcient evidence and serves the interests of the adult. conclusion: although the law requires ‘enough‘ evidence to deprive or restrict an adult‘s legal capacity, it fails to specify the type or quality of evidence needed. analysis: as an initial safeguard, the court, as part of the process of preparation for the court hearing, determines whether there is enough evidence of an individual‘s mental disorder presented in the application to order a comprehensive psychiatric examination.111 őis includes evidence that the adult is being treated at a psychiatric institution, has experienced trauma that could cause mental illness, or has been subject to a court ruling űnding the person committed a criminal oőence but lacked the requisite mental element, and as a consequence was sent to a psychiatric hospital for involuntary detention and treatment. however, the law does not specify the standard of proof required to deprive an adult of legal capacity. őerefore, the judge has broad discretion to decide whether there is enough evidence proving the state of mental disability of the concerned person and, consequently, whether or not an incapacity assessment should be held. if the court űnds insuěcient evidence, the application is dismissed or the applicant is requested to provide more evidence. human rights standards: őis indicator looks at two elements of the incapacity determination and subsequent guardianship – the evidentiary basis submitted to the domestic court and the impact of the ruling upon the adult‘s interests. 111&lylo3urfhgxuh&rghduwvdqgmental disability advocacy center36evidence must meet qualitative standards. recommendation no. r(99) requires that judges should see the adult personally and that an up-to-date report from a qualiűed expert must be submitted.11 őe phrase ‘qualiűed expert‘ is not deűned, but should be understood as referring to a psychiatrist or psychologist, possibly with specialized training in capacity assessment, rather than a general medical practitioner. as referred to above, the european court of human rights has already emphasized the necessity of a qualiűed expert report to determine capacity.113 in its h.f. v. slovakia ruling, the court held that statements made by the adult‘s former spouse and lay witnesses in combination with a psychiatric evaluation that was one and a half years old were not suěcient evidence for a űnding of incapacity. őe decision, therefore, not only reiterates that an expert report is necessary for states to meet their obligation under the convention, and that lay (non-professional) witnesses are not a satisfactory substitute. őe court further observed that reports must be recent in order to reůect the functional capacity of the individual at the time of the hearing. secondly, as suggested by recommendation no. r(99), ‘[i]n establishing or implement-ing a measure of protection of an incapable adult the interests and welfare of that person should be the paramount consideration‘.114 to achieve this, the individual‘s circumstances must be taken into account and the protection oőered by guardianship should be weighed against any possible negative consequences. as stated in principle 5 of recommendation no. r(99), restriction should not be imposed ‘unless the measure is necessary, taking into account the individual circumstances and needs of an adult.‘ for example, as em-ployment is an important source of social interaction and self-esteem, guardianship may not be in the adult‘s best interests if, as a result of it, the right to work is restricted. such aspects should be thoroughly examined during proceedings in order to meet the necessity, subsidiarity, and proportionality requirements prescribed in principles 5 and 6. indicator selection of a guardian is based on objective criteria and the wishes and feelings of the adult are considered. conclusion: őe appointment of a guardian is based on objective criteria, and the legislation speciűes that the wishes of the person to be placed under guardianship should be considered. however, law is silent on the weight to be attached to the adult‘s preference. analysis: őere are a number of objective standards for the appointment of a guardian. a guardian must be fully capable, must be an adult (8 years or above), and must be a russian citizen.11 a guardian may be appointed only if the potential guardian agrees. őe 11 principle 12.113 h.f. v. slovakia$ssolfdwlrq1r mxgjphqwri1ryhpehu1143ulqflsoh 115 civilcode,art. 35(2).37human rights and guardianship in russiaguardianship authority must take into account moral and other qualities, and whether the candidate has an acceptable relationship with the adult. őere are no requirements or restrictions concerning criminal conviction, maximum age, absence of conůicts of interest or level of education, although all these matters can be considered by the guardianship agency when selecting a guardian. őe law speciűcally states that, if possible, the wishes of the person under guardianship should be considered when selecting the guardian,11 but is silent on how these wishes should be taken into account. human rights standards: recommendation no. r(99) provides that the primary con-cern in assessing the suitability of a guardian should be the ability of that person to ‘safe-guard and promote the adult‘s interests and welfare‘.11 it also suggests that states take steps to ensure that qualiűed guardians are available, such as creating training associations.11 őis indicator assesses whether legislation prescribes requirements for speciűc qualities or attributes necessary for an individual to be appointed as a guardian. for example, finnish legislation states that the suitability of a prospective guardian should be determined based on skill, experience and the nature and extent of the duties required.11according to recommendation no. r(99), ‘the wishes of the adult as to the choice of any person to represent or assist him or her should be taken into account and, as far as possible, given due respect‘.20 őe explanatory memorandum to the recommendation warns that whilst the invaluable and irreplaceable role of relatives must be recognised and valued, the law must be aware that acute conůicts of interest may exist in some families and recognise the dangers these conůicts may present. finally, principle 9 of recommendation no. r(99) provides that respect for the past and present wishes and feelings of the adult should be ascertained and given due respect. őis principle applies to all stages of establishing and implementing guardianship, but it is particularly important in choosing the guardian. indicator 11őe guardian should not have a conůict of interest with the adult, or the appearance of such a conůict. conclusion: őe law provides only weak safeguards to protect against conůict of interest situations arising. 11 ibidart. 35).113ulqflsoh principle 17.11*xdugldqvkls6huylfhv$fw )lqodqg &kdswhu6hfwlrq8qri¿fldowudqvodwlrqprovidedbyfinlex,serviceofthefinnishgovernment.availableat:http://www.¿qoh[¿hqodnlnddqqrnvhw hq sgiodvwdffhvvhgrq0d20 recommendationno.r(99)principle9(2).([sodqdwru hprudqgxpwr5hfrpphqgdwlrq1r5 sdudmental disability advocacy center38analysis: őe most notable feature of guardianship in this respect, is that the directors of the institutions within which adults are detained are appointed the guardian of that adult. őe potential actual conůict is very real as is the appearance of such conůict. however certain protections within guardianship generally are provided. guardians, for instance, perform their duties free of charge.22 a guardian is not allowed to enter into a legally binding contract with the person under guardianship. őis contributes to limiting the risk of adults under guardianship giving property as a gift or for free use to the guardian. he or she is not allowed to represent the person under guardianship in transactions or in court proceedings that involve the guardian‘s own spouse or close relatives, such as children, parents and siblings. human rights standards: conůicts between an appointed representative and the adult are not directly addressed by recommendation no. r(99). best practices from other countries include france, where legislation directly provides that an ‘additional supervisory guardian‘ is appointed who, among other duties, is designated to represent the adult when his or her interests are in conůict with the guardian‘s interests. őe standards of practice adopted by the national guardianship association, an american membership organisation of guardians and legal professionals, address the issue of conůicts of interest between a guardian and an adult in standard 6, which states that:‘őe guardian shall avoid even the appearance of a conůict of interest or impropriety when dealing with the needs of the ward. impropriety or conůict of interest arises where the guardian has some personal or agency interest that can be perceived as self-serving or adverse to the position or best interest of the ward.‘25 őis document goes on to state: ‘a guardian who is not a family guardian shall not directly provide housing, medical, legal or other direct services to a ward‘.26 őe guardian has a duty to challenge inappropriate, inadequate or poor quality services from service provid-ers on behalf of the adult. clearly, an impossible situation arises when the guardian is also the service provider: the guardian has a conůict of interest.22 criminalcode,art. 36().thelawdoesnotprovideforanycompensationtotheguardiansofadultsdeprivedoflegalcapacity,hencetheyperformtheirdutiesfreeofcharge.compensationisonlypaidtofosterparentsuntiltheirchildrenreachfullage. civilcode,art. 37().)uhqfk7lwoh7lwohavailablewww.legifrance.gouv.fr,1dwlrqdo26 ibidstandard 16.39human rights and guardianship in russiaindicator an adult has the right to appeal a űnding of incapacity and/or the appointment of a guardian. conclusion: an adult has the right to appeal a űnding of incapacity, but must do so within ten days of the court‘s decision produced in writing, irrespective of whether that adult has actually received the decision. no free legal assistance or representation is provided in these proceedings. analysis: őe court ruling must be given to the adult if he or she is present at the hearing, or, alternatively, must be sent by regular mail within űve days of the hearing if the adult was not present at the court hearing.27 őe adult has the right to appeal the court‘s űnding of incapacity, but may only do this within ten days from the date of the court‘s decision. if this deadline is missed, the adult must apply for an extension providing valid reasons for not űling a timely appeal.28 it is then within the court‘s discretion whether or not to allow the appeal. in accordance with federal law ‘on the order of reviewing citizens‘ appeals‘, people have the right to űle a complaint with any of the state or municipal agencies that are competent in making a decision about the complaint.29 őe law does not contain any limitations of this right for adults under guardianship. őe law does not provide adults under guardianship a right to appeal the appointment of a guardian. in fact the adult has no access to judicial remedies to lodge any form of legal complaint about such an appointment. once deprived of legal capacity, that person loses the procedural capacity to űle a complaint about any decision made by any authority without the guardian‘s permission. őe adult is not recognised as having any legal standing. human rights standards: őe right to appeal a decision of incapacity is an important aspect of procedural fairness and human rights safeguards, both of which are required by principle 7 of recommendation no. r(99). őe recommendation relies on the united nations declaration on the rights of mentally retarded persons, which states that when a person‘s rights are restricted, the procedure used for such restrictions must provide ‘proper legal safeguards against every form of abuse‘ and must be subject to ‘the right of appeal to higher authorities‘.13 a subsequent united nations resolution, the un mental illness principles, reaěrms the un‘s position and requires states to guarantee the right to appeal a decision to a higher court by the adult whose capacity 27 civilprocedurecode,art. 336. ibidduw29)hghudo/dz1r ri0dduwvdqg13 undeclarationoftherightsofmentallyretardedpersons,proclaimedbygeneral$vvhpeouhvroxwlrq ;;9,ri’hfhpehu mental disability advocacy centeris at issue, by their personal representative or other individuals.131 legislation providing for others to appeal a decision on the adult‘s behalf can be crucial, because the adult may not have the capacity to know that there have been procedural or other violations or how to go about challenging the decision.2.6.4rights of the adult after guardianship is established (indicators 13-17)international human rights law requires domestic legislation to ensure that an individual placed under plenary or partial guardianship retains rights to make decisions in as many areas as possible, as well as the opportunity to exercise those rights. indicators 13address these residual rights, including the right to vote, the right to work, the right to property, the right to marry, the right to found a family, the right to respect of his or her family life, and the right to associate. indicator 13by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise political rights. conclusion: people deprived of legal capacity are automatically deprived from exercising all political rights.analysis: basic political and civil rights are automatically denied to an adult who has been deprived of legal capacity:őey are banned from voting in any election.13őey are prohibited from running for any elective public oěce133 or standing for any non-elective public oěce.134őey are denied the right to access courts, even in issues aőecting their human rights.13 human rights standards: őe right to political participation and universal suőrage has been recognised internationally in article 25 of the covenant on civil and political 131 unresolution 46/11ontheprotectionofpersonswithmentalillnessandtheimprovementofmentalhealthcare,adoptedbythegeneralassemblyon 1december99principle 1(6). constitution, 3133 ibid1342q6wdwh&lylo6huylfhlqwkh5xvvldq)hghudwlrqihghudoodzqr )=ri-xoduw135 civilprocedurecode,art. 135)().4human rights and guardianship in russiarights. in addition to this, article of protocol to the european convention on human rights provides that states ‘undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.‘ regarding public participation and participation in the democratic process of people with mental disabilities, the council of europe has stated that ‘[s]ociety needs to reůect the diversity of its citizens and beneűt from their varied experience and knowledge. it is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities‘.13 speciűcally addressing individuals with mental disabilities, the right to autonomy and self-determination is elaborated in principle of recommendation no. r(99), which denotes that legislative frameworks need to incorporate guardianship laws that recognise the existence of various degrees of capacity as well as the dynamic nature of capacity over time. recommendation no. r(99) emphasises that a measure of protection such as guardianship ‘should not automatically deprive an adult of the right to vote, or to […] make other decisions of a personal character at any time when his or her capacity permits him or her to do so‘.13 speciűcally addressing individuals with mental disabilities, the right to autonomy and self-determination is elaborated in principle of recommendation no. r(99). őis speciűes that legislative frameworks need to incorporate guardianship laws that recognise that diőerent degrees of functional capacity exist as well as the dynamic nature of functional capacity over time. recommendation no. r(99) emphasises that a measure of protection such as guardianship ‘should not automatically deprive the person concerned of the right to vote, or to … make other decisions of a personal character at any time when his or her capacity permits him or her to do so‘.13 indicator 14by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to work. conclusion: őe right to work for people deprived of legal capacity is not regulated clearly in russian law.analysis: article 7 of the constitution states that everyone has a right to use his abilities to work, choose a profession and specialization. őere are no limitations to this right in 13 actionplantopromotetherightsandfullparticipationofpeoplewithdisabilitiesinvrflhw lpsurylqjwkhtxdolwriolihrishrsohzlwkglvdelolwlhvlq(xurshrecommendationno.(2006)5 ofthecommitteeofministersofthecouncilofeurope,para. 313 recommendationno.r(99)principle 3(2). recommendationno.r(99)principle 3(2).mental disability advocacy center42the constitution. nor are there are any provisions in the labour code that limit the adult‘s right to work. 13 however, in order to enter into an employment contract, a person must have so-called work ‘capacity‘, a term not expressly deűned in law. in the context of this report referring to work ‘capacity‘ has the potential to cause confusion. consequently, and for this reason only, the word ‘authority‘ is used in its place. a person should have functional ability and legal authority to perform the work that is outlined and deűned in the employment contract.14 functional ability is the availability of physical, intellectual, and volitional qualities that constitute the person‘s general and particular proűciencies for work. evidence of the lack of such authority can be the person‘s disability and/or youth. legal authority comprises such elements as age, education, in some cases citizenship, and absence of any medical circumstances that could prevent the person from fulűlling his duties. őe labour code speciűes only one aspect of labour related capacity authority which is that the minimum age for employment is 6. őerefore the position of people under guardianship and the right to work remains unclear. human rights standards: article 8 (right to privacy) of the european convention on human rights includes the right to work. őe european court of human rights has said that ‘it is, after all, in the course of their working lives that the majority of people have a signiűcant, if not the greatest, opportunity of developing relationships with the outside world.‘ őe european social charter (revised) also contains provisions protecting the right to work. recommendation no. r(99) provides that where a measure of protection is necessary, it should be proportional to the degree of capacity of the adult and tailored to the individual circumstances and needs of the person. őerefore, while some restriction may be necessary in certain situations, a blanket prohibition from employment of all people under guardianship may exclude individuals from participating in certain realms of life and activities despite their capacity to do so.indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to property.conclusion: adults under guardianship are automatically deprived of making decisions relating to their property.analysis: an adult placed under guardianship is not deprived of his right to property – he or she has the right to own, use, and dispose of property. but the law speciűes that all transactions, including those related to property, must be carried out by the guardian.141 an adult‘s űnances are also controlled by the guardian. őe guardianship authority of 13’hfhpehu1r )=odvwdphqghgrq-xqh14&rpphqwduwrwkh/deru&rghriwkh5xvvldq)hghudwlrq (g%$.xuhqqrm60dyulq(.krkory$ffhvvhgwkurxjkwkhohjdogdwdedvhµ&rqvxowdqw3oxv¶141 civilcode,art.29(2)43human rights and guardianship in russiathe local government should authorise expenditure of the űnances or property belonging to the person under guardianship except that which is of an every day nature.14 any transactions made by a person under guardianship without the guardian‘s consent are considered null and void.143 human rights standards: őe right to property includes the ability of individuals to manage űnances, complete transactions and enter legally binding contracts. a guardianship system that automatically exclude individuals from managing any aspect of their űnances undermines the adult‘s autonomy and dignity. such a system does not reůect the reality, which is that functional capacity often ůuctuates, and therefore decisions should be tailor-made. őe right to use and manage one‘s own property is protected in article of protocol no. to the european convention on human rights, which reads, in relevant part:‘every natural or legal person is entitled to the peaceful enjoyment of his pos-sessions. no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.‘ recommendation no. r(99) follows this sentiment by recommending that ‘[w]henever possible the adult should be enabled to enter into legally eőective transactions of an everyday nature‘.144 őe council of europe returned to this theme in its 2006 ‘action plan to promote the rights and full participation of people with disabilities in society‘, which listed concrete measures to be taken by member states. őese measures included action ‘to ensure the equal right of persons with disabilities to own and inherit property, providing legal protection to manage their assets on an equal basis to others‘.14indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to marry, to found a family, and to respect of family life. conclusion: russian law removes from people deprived of legal capacity the right to marry, to found a family and to enjoy respect for family life. analysis: őe law treats adults under guardianship as minors in denying them their family rights. people deprived of legal capacity are prohibited from marrying14 and an 14 ibidart. 37().143 ibidart. 1144 recommendationno.r(99)principle 3).145 councilofeurope,actionplantopromotetherightsandfullparticipationofpeoplewithglvdelolwlhvlqvrflhw lpsurylqjwkhtxdolwriolihrishrsohzlwkglvdelolwlhvlq(xursh5hfrpphqgdwlrq sdud ylll14 familycode,art. 14mental disability advocacy center44adult deprived of legal capacity is prohibited from űling for divorce unless the guardian agrees and acts for the adult.14 if a parent is deprived of legal capacity, his or her children will be considered not to be in the care of ‘parents‘, assuming there is no other parent with full legal capacity.14 őe consequence is the automatic removal of children from the family14 and the denial of parenthood. human rights standards: article 8 of the european convention on human rights guarantees the right to respect for private and family life, home and correspondence. őis imposes on states a negative obligation not to interfere with, as well as a positive obligation to respect a person‘s private and family life. őere are similar convention obligations to respect a person‘s right to marry and found a family under article 2, which reads, ‘[m]en and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right.‘ őe un has also addressed this issue. rule 9 of the un standard rules on the equalization of opportunities for persons with disabilities contains strong language on the rights of people with disabilities to family life and personal integrity, aěrming that ‘states should promote the full participation of persons with disabilities in family life. őey should promote their right to personal integrity and ensure that laws do not discriminate against persons with disabilities with respect to sexual relationships, marriage and parenthood‘,50 and that ‘[p]ersons with disabilities must not be denied the opportunity to experience their sexuality, have sexual relationships and experience parenthood‘.indicator by being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to associate.conclusion: placement under guardianship deprives people of the opportunity to exercise their right to associate in certain areas of their life.analysis: őe constitution guarantees the right to associate, including association in the trade unions.52 in order to exercise this right, one should be able freely to join associations, participate in its activities, etc. however, some laws that further regulate the right to associate speciűcally state that a person under guardianship cannot be a 14 ibidart. 16(2). ibidart. 114 ibidart. 11581*hqhudo$vvhpeo816wdqgdug5xohvrqwkh(txdol]dwlrqri2ssruwxqlwlhviru3huvrqvzlwk’lvdelolwlhv$5(6 gdwhg0dufk 5xoh 151 ibidrule9(2).15 constitution,art. 30.45human rights and guardianship in russiamember of an association. according to article 2, paragraph 2 of the federal law ‘on political parties‘, a person who is deprived of legal capacity cannot be a member of a political party. other laws, such as, federal law ‘on non-commercial organisations‘, or federal law ‘on associations‘,55 are silent on whether people deprived of legal capacity can join such organisations. human rights standards: őe right to associate can be especially important for people with disabilities, as membership in advocacy and peer support groups can foster skills development, empowerment and autonomy. advocacy associations in particular may give individuals a collective political voice to lobby for legislative protection. a prohibition from associating with others to pursue a common aim engages article 11 of the european convention on human rights, which states: ‘everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.‘ any restrictions on these rights must be clearly stated in law and necessary in a democratic society for one of the listed grounds in article 11(2), such as for the protection of health or morals or for the protection of the rights and freedoms of others. őe european court of human rights has conűrmed that ‘an inherent part of the right set forth in article 11‘ is the right to form associations.56 it is diěcult even to imagine a scenario in which restricting the rights of people under guardianship to associate would be ‘necessary in a democratic society.‘ a blanket ban on doing so almost certainly violates binding international human rights law. 2.6.5obligations of the guardian after guardianship is established (indicators 18-25)in order to ensure that an adult under guardianship is treated with dignity and respect, and has the opportunity to maximize independence and self-determination, the state needs to establish workable systems to review the responsibilities, supervision and accountability of guardians. indicators 8-25 address these responsibilities of guardians.indicator a person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity. conclusion: only plenary (all encompassing) guardianship exists in russia for people with psycho-social (mental health) disabilities and intellectual disabilities. law does not provide a mechanism for people to retain legal capacity in areas where they have functional capacity.153 federallawno.5 of 11 july200154 federallawno.of 1january 1996.155)hghudo/dz1rri 0d 15 sidiropoulos v. greece$ssolfdwlrq1r mxgjphqw-xo (+55mental disability advocacy center46analysis: adults deprived of legal capacity lose the legal right to acquire civil rights and duties and exercise them. russian guardianship is all-encompassing. it is total and no aspect of it is tailored to reůect the actual functional capacity of an adult. accordingly, there is no requirement or possibility to limit capacity and apply guardianship only to those areas in which a person does not have functional capacity.human rights standards: as noted, international human rights law demands a least-restrictive approach to guardianship. őis approach which maximises self-determination and autonomy, basic principles of human rights which permeate recommendation no. r(99). for example, the document recommends that ‘[t]he range of measures of protection should include those which are limited to one speciűc act without requiring the appointment of a representative or a representative with continuing powers‘.57 principle recommends that legislation should allow for a maximum preservation of capacity:őe legislative framework should, so far as possible, recognise that diőerent degrees of incapacity may exist and that incapacity may vary from time to time. accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. however, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.in particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health űeld, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.consideration should be given to legal arrangements whereby, even when representation in a particular area is necessary, the adult may be permitted, with the representative‘s consent, to undertake speciűc acts or acts in a speciűc area.whenever possible the adult should be enabled to enter into legally eőective trans-actions of an everyday nature.a best practice example could be from france, where legislation successfully incorporates this principle. when establishing guardianship in france, the judge may list transactions that an adult may undertake independently of the guardian. a medical expert must be consulted when the judge assesses those tasks for which the adult will retain decision-making.58 another approach – encouraging the adult‘s participation – is found in the uniform guardianship act of the us, which provides guidance on how to incorporate this principle into legislation. in the section entitled ‘guardian‘s duties,‘ the model legislation suggests: 15 recommendationno.r(99)principle2().)uhqfk&lylo&rghrsflwduw8qri¿fldowudqvodwlrqsurylghge/hjliudqfhserviceofthefrenchgovernment.availableat:www.legifrance.gouv.fr(lastaccessed 1 may2007).47human rights and guardianship in russia‘a guardian shall exercise authority only as necessitated by the ward‘s limitations and, to the extent possible, shall encourage the ward to participate in decisions, act on the ward‘s own behalf, and develop or regain the capacity to manage the ward‘s personal aőairs. a guardian, in making decisions, shall consider the expressed desires and personal values of the ward to the extent known to the guardian.59 in this paradigm, the guardian is responsible for ensuring the adult‘s participation and opportunity to act whenever possible.‘indicator an adult subject to guardianship must be consulted about major decisions, and have his/her wishes adhered to whenever possible.conclusion: őere is no requirement in russian law for guardians to consult the adult under guardianship before making any decisions.analysis: őere is no notion of surrogate decision-making under russian law. it follows therefore that the guardian is under no legal obligation to consult the adult about their wishes with respect to any decisions. nor is the guardian obliged to follow such wishes if the adult is given an opportunity to express them. őese decisions include major medical decisions. human rights standards: it is important for legislation to expressly give the adult a role in decision-making as it provides both a benchmark to evaluate the guardian‘s performance and a judicially enforceable standard. a good practice example would be finland, whose legislation incorporates this principle by requiring that guardians ask an adult‘s opinion in connection with decisions within the scope of the guardian‘s duties.60 recommendation no. r(99) speciűes that when taking a decision, ‘the past and present wishes and feelings of the adult should be ascertained so far as possible, and should be taken into account and given due respect‘. őis principle suggests that ‘a person representing or assisting an incapable adult should give him or her adequate information, whenever this is possible and appropriate, in particular concerning any major decision aőecting him or her, so that he or she may express a view‘.62 principle 2 of the recommendation goes further, recommending that when trying to űnd the best solution to an individual‘s circumstances, 15 seeuniformguardianshipandprotectiveproceedingsact997),art. 3para. 313(a).60 seethefinnishguardianshipservicesact, 442/99,section 43entitled‘hearingthe:dug¶zklfkuhdgvµ%hiruhwkhjxdugldqpdnhvghflvlrqlqpdwwhuidoolqjzlwklqklvkhuwdvnkhvkhvkdoolqtxluhwkhrslqlrqriwkhzdugliwkhpdwwhulvwrehghhphglpsruwdqwfromtheward‘spointofviewandifthehearingcanbearrangedwithoutconsiderablelqfrqyhqlhqfh¶8qri¿fldowudqvodwlrqsurylghge),1/(;vhuylfhriwkh)lqqlvk*ryhuqphqw$ydlodeohdw kwws zzz¿qoh[¿hqodnlnddqqrnvhw hq sgiylvlwhgrq0d7klvsurylvlrqlvqrwflwhgdvµehvwsudfwlfh¶h[dpsohehfdxvhthefinnishlegislationunfortunatelycontainsbroadlistofderogations. principle9().62 principle9().mental disability advocacy center48‘[c]onsideration should be given to the inclusion of measures under which the appointed person acts jointly with the adult concerned, and of measures involving the appointment of more than one representative‘. indicator 20őe scope of authority and obligations of the guardian are clearly deűned and limited to those areas in which the adult subject to guardianship needs assistance.conclusion: russian legislation speciűes the scope and authority of the guardian, but because it relies on plenary (all encompassing) guardianship, the authority of guardians can go beyond the areas where the adult needs assistance.analysis: law does not provide an exhaustive list of the obligations of the guardian. it outlines the authority of the guardian in the following circumstances: the authority to make medical decisions, to consent to psychiatric examination of the person under guardianship, and to place adults into psychiatric and social care institutions. since the loss of legal capacity is total, it is generally accepted that the guardian should make all decisions on behalf of the adult. őere is, therefore, a link with life-long institutionalisation, as is discussed in indicator 2, below. human rights standards: domestic legislation should provide clear direction to the authority determining capacity to deűne the scope of the individual guardian‘s obligations in light of the particular adult‘s capacity. recommendation no. r(99) encourages countries to take a ůexible approach, noting that ‘[t]he measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be suěcient, in scope or ůexibility, to enable a suitable legal response to be made to diőerent degrees of incapacity and various situations‘.65 őe recommendation further advises that: ‘őe legislative framework should, so far as possible, recognise that diőerent degrees of incapacity may exist and that incapacity may vary from time to time. accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. however, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.‘66a best practice example of this approach is the finnish guardianship act, which speci-űes that ‘the task of the guardian may be restricted to cover only a given transaction, principle2(6). seeart. 3of‘fundamentalsofthelawsofrussianfederationabouttheprotectionofflwl]hq¶vkhdowk¶duwv dqgriwkh/dzriwkh5xvvldq)hghudwlrqµ2qsvfkldwulffduhdqgjxdudqwhhvriflwl]hqv¶uljkwvlqlwvsurylvlrq¶ principle2().66 principle 3).49human rights and guardianship in russiamatter, or property‘.67 even within a particular matter, the finnish legislation safe-guards the interests of the adult by prohibiting guardians from a number of speciűed activities including conveying or purchasing property,68 consent to marriage or adop-tion, or make or revoke a will, absent speciűc permission of the court.indicator 2a guardian is obliged to promote the interest, welfare and independence of the adult under guardianship by seeking the least restrictive alternatives in living arrangements, endeavouring to allow the adult to live in the community.conclusion: guardians need not promote independence or seek community-based or less restrictive living arrangements. analysis: russian law does not require the guardian to promote the independence of the person under guardianship. őe law does not go beyond specifying that guardians must support the people who are under their guardianship (ensure adequate food and housing), provide care and medical care, and ‘protect their rights and interests‘.70 human rights standards: őis indicator tests the often-intimate connection between guardianship and institutionalisation. őe right to live in the community, and therefore to have a life free from social exclusion and discrimination, is of utmost importance in every country and is recognised in international law. őe united nations convention on the rights of persons with disabilities, which is set to be adopted by the un general assembly as this report went to print, sets out this right in draft article 9:article 19 – living independently and being included in the community states parties to this convention recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take eőective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support 677kh)lqqlvk*xdugldqvkls6huylfhv$fw sdud ibidpara. 3469 ibid 442/99,para.29.70 civilcode,art. 36().mental disability advocacy centerliving and inclusion in the community, and to prevent isolation or segregation from the community.community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.őe 99 un mental illness principles provide that ‘[e]very person with a mental ill-ness shall have the right to live and work, to the extent possible, in the community‘.72 each person has ‘the right to be treated and cared for, as far as possible, in the com-munity in which he or she lives‘. in addition to this, the 2006 council of europe disability action plan sets out a european-wide policy framework on disability for the next decade, calling on countries ‘to ensure community-based quality service provi-sion and alternative housing models, which enable a move from institution-based care to community living‘. although living arrangements are not expressly addressed in recommendation no. r(99), the principle of proportionality dictates that, in all deci-sions, a course should be adopted that least restricts the adult‘s rights and freedom while providing adequate protection.75 indicator 22őe guardian must manage the assets of the adult in a manner that beneűts the adult under guardianship. conclusion: őe law ensures, but not to the fullest possible extent, that the guardian manages the assets of the adult under guardianship for the beneűt of that person. analysis: all income of the adult under guardianship, including income from any estate, should be spent by the guardian only in the interest of that adult.76 őe guardianship authority of the local government must give its consent for:transfer of the adult‘s property, including leases, use of the property without getting any payment for it, and mortgages. reportoftheadhoccommitteeoncomprehensiveandintegralinternationalconventionontheprotectionandpromotionoftherightsanddignityofpersonswithdisabiliwlhv(ljkwkvhvvlrq1hz
