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INTERIGHTS Bulletin Volume 16 Number 1 2010
International Law Reports EQUALITY, DISCRIMINATION (DISABILITY), FAIR HEARING Violation of Article 6(1) – right to fair hearing, Article 8 – right to respect for private and family life, Articles 5(1) and 5(4) – right to liberty and security and Article 34 – right of individual hearing – of the ECHR Shtukaturov v Russia Judgment of the ECtHR, 27 March 2008 S, a Russian national, suffered from a mental disorder and on several occasions was placed in a hospital in St. Petersburg for in-patient psychiatric treatment. S’s mother lodged an application with the Vasileostrovskiy District Court of St. Petersburg, seeking to deprive S of legal capacity. Based on a report prepared by the hospital, the Court declared S legally incapable on 28 December 2004, and appointed his mother as his legal guardian. Shortly thereafter, S was admitted to the hospital on his mother’s request. S claimed he was hospitalised against his will. There is no evidence S received formal notification of the incapacitation proceedings or any invitation to the court hearing. On 2 November 2005, S contacted a lawyer with the Mental Disability Advocacy Centre. The hospital staff denied S’s requests to meet with his lawyer, on the basis that S did not have legal capacity and that his lawyer did not have guardianship. Between 1 December 2005 and 16 January 2006, S’s lawyer lodged applications requesting discharge from the hospital with the guardianship authority, district prosecutor, public heath authority and the hospital, which were ignored or denied on the same basis. On 6 March 2006, the ECtHR indicated to the Russian Government by an interim measure that it should arrange for a meeting between S and his lawyer at the hospital. The chief doctor at the hospital refused to permit such a meeting, claiming that the ECtHR’s interim decision was non-binding on the Russian domestic courts. On 30 March 2006, the former Representative of the Russian Federation at the ECtHR wrote a letter to the President of the Vasileostrovskiy District Court, informing him of the interim measures applied by the ECtHR. On 6 April 2006, the District Court held that the lawyer should be able to meet with S. The hospital and S’s mother appealed this decision with
the St. Petersburg City Court, which held that the District Court had no competence to examine the request lodged by the Representative of the Russian Federation and that the lawyer had no authority to act on behalf of S. On the same day, S was discharged from hospital and met with his lawyer; however, according to the lawyer he was readmitted in 2007 at the request of his mother.
The Court held that: (1) the incapacitation proceedings before the District Court were unfair in violation of Article 6 of the ECHR because S was unaware of the proceedings and was unable to participate; (2) the interference with S’s private life was very serious and disproportionate to any of the legitimate aims listed in Article 8(2) of the ECHR which the Government could pursue; (3) S’s involuntary hospitalisation was unlawful under Article 5 of the ECHR because it was not ‘reliably shown’ that S’s mental condition required confinement, the incapacitation proceedings were flawed, and the courts failed to assess the necessity for incarceration; (4) the domestic courts failed to comply with Article 34 of the ECHR by hindering S’s access to his lawyer and by not complying with the ECtHR’s interim measure; and (5) it was reserving judgment on the issue of financial restitution of S under Article 41 of the ECHR until the State has the opportunity to submit any observations it may have or any agreement it may reach with S.