MDAC News Podcast

11 March 2010, Budapest (Hungary), St. Petersburg (Russia) and Strasbourg (France). MDAC welcomes last week’s judgment of the European Court of Human Rights which ordered the Russian government to pay 25,000 EUR compensation to a man with mental health disabilities who was unlawfully deprived of legal capacity and arbitrarily detained in a psychiatric hospital for more than six months. This is the largest amount of compensation the Court has ever awarded in a disability rights case.    The Mental Disability Advocacy Center today welcomes the 4 March 2010 European Court of Human Rights judgment which ordered the Russian government to pay 25,000 EUR damages to MDAC’s client Pavel Shtukaturov. The judgment follows a judgment on the merits issued by the same court in March 2008, which found that Russia was in violation of several provisions of the European Convention on Human Rights. The client has been represented in proceedings by MDAC’s Legal Monitor in Russia, attorney Dmitri Bartenev.   Welcoming the judgment, MDAC’s Executive Director Oliver Lewis said,  “This judgment is a milestone for global human rights because 25,000 euro is the largest amount of compensation the European Court of Human Rights has ever awarded to an applicant in a disability rights case. This sum reflects the gravity of human rights violations faced by people with disabilities the world over and the seriousness with which the mainstream human rights community now views these violations. The judgment sends a clear message to governments that it will be expensive if they fail to take legislative and policy action to effectively implement international human rights law for people with disabilities.”    In its judgment last week the Court reiterated that the amount of compensation for non‑pecuniary damage (meaning compensation for pain and suffering) is assessed with a view to providing “reparation for the anxiety, inconvenience and uncertainty caused by the violation” and that the respondent State is under a legal obligation to “restore as far as possible the situation existing before the breach.”   In awarding compensation the Court noted that the Russian judicial system had failed to remedy the past wrongs which had in fact persisted for Mr Shtukaturov over the previous four years. In doing so, the Russian system continued to infringe on some of his most fundamental rights. As the Court noted in its March 2008 judgment Mr Shtukaturov was deprived of his legal capacity to act independently in almost all areas of life. He was unlawfully detained in a psychiatric hospital for more than six months, not taking into account his subsequent periods of detention. Mr Shtukaturov’s suffering was, the Court held last week, “undoubtedly aggravated by the State's failure to respect his [fair trial] rights and the authorities’ interference with his right of individual petition [to the European Court of Human Rights]”.   The Court’s scathing comments refer to the extraordinary way in which Mr Shtukaturov’s legal capacity was eventually restored in May 2009 by a St. Petersburg district court. No steps were taken by any authority following the March 2008 judgment of the European Court of Human Rights. Nor were any steps taken by any authority following the February 2009 judgment of the Russian Constitutional Court, a case concerning Mr Shtukaturov and also initiated by MDAC. In this case the constitutional court struck down as unconstitutional provisions of the Psychiatric Care Act and the Code of Civil Procedure which had been applied in his case. Despite these judgments it was an unrelated application by the State guardianship authority in light of an perceived improvement in Mr Shtukaturov’s mental health condition which eventually led to the restoration of his legal capacity. The district court's ruling did not cast doubt upon the validity of the original decision of the court, a remarkable oversight given the damning critique of the original decision both by Europe’s human rights court and Russia’s constitutional court. Now that he is no longer under guardianship, Mr Shtukaturov is at liberty to spend his compensation as he pleases.    In its March 2008 judgment the European Court of Human rights found Russia in violation of several provisions of the European Convention Human Rights. It said that:

• Deprivation of legal capacity constitutes a "very serious" interference of a person's private life, it is applied indefinitely, and cannot be challenged by the person under guardianship (Article 8 of the Convention)
• A mental illness cannot be the sole reason to justify stripping someone of legal capacity and Russian law is disproportionate in allowing this to happen without making provision for a tailor-made response (Article 8 of the Convention) 
• The guardianship proceedings were unfair because they wholly excluded Mr Shtukaturov (Article 6 of the Convention) 
• Deprivation of legal capacity is not a ground to deprive a person of their liberty (Article 5(1) of the Convention) 
• Every person who is detained - including those who have been deprived of their legal capacity - should have the right to pursue independently a legal review to challenge their detention (Article 5(4) of the Convention) 
• The Russian Government failed to comply with an "interim measure" of the European Court ordering it to allow Mr Shtukaturov's lawyer to have access to him (Article 34 of the Convention)

For more information on this case call Oliver Lewis, MDAC Executive Director +36 1 413 2730 or Dmitri Bartenev, attorney and MDAC Legal Monitor in Russia + 7 905 222 8915. Click here to read the March 2008 judgment on merits, here to read MDAC's related information bulletin, and here to read the March 2010 judgment on just satisfaction. 

 

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5 March 2010 Moscow (Russia) and Budapest (Hungary). Yesterday the Mental Disability Advocacy Center (MDAC) and the NGO "Independent Psychiatric Association of Russia" hosted a round table event in Moscow, Russia. The purpose was to strengthen civil society's understanding of the right to legal capacity, and to strategize on how to engage the authorities in law reform.

The twenty-five participants included people with mental health disabilities, NGO representatives, lawyers, psychiatrists, human rights activists and representatives of the ombudsman's office. The participants discussed key issues related to legal capacity - or guardianship - law reform including whether and how to abolish plenary (total) guardianship, the elements of partial guardianship, alternatives to guardianship, and the need for compliance between domestic laws and international human rights law. There was a mix of views, with some participants wanting to retain plenary guardianship, which strips the adult of all decision-making authority. MDAC advanced the position that plenary guardianship is never justified and that there can always be more proportionate and human rights-compliant alternatives. The participants also discussed strategies of engaging with policy-makers and legislators.

The roundtable participants discussed the judgment of the European Court of Human Rights in Shtukaturov v. Russia (2008), the Russian Constitutional Court judgment in the same case in 2009, as well as the United Nations Human Rights Committee concluding observations in October 2009 - all initiatives which were spearheaded by MDAC and which add pressure to the Russian authorities to carry out legal capacity law reform. The Russian Federation has signed the United Nations Convention on the Rights of Persons with Disabilities, Article 12 of which guarantees the right of persons with disabilities to legal capacity. MDAC encourages the Russian Government to ratify this treaty to demonstrate to the Russian people as well as the international community that Russia is committed to take the necessary measures to ensure the rights of persons with disabilities, including those with intellectual disabilities and mental health disabilities.

The round table was organized in the framework of the project "Innovating mental disability rights law and advocacy in Russia" through grants to MDAC by the UK Government's Strategic Programme Fund and the Civil Rights Defenders, a Swedish NGO.

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24 February 2010. Budapest (Hungary) and Prague (Czech Republic). A coalition of international civil society organisations urges the Czech Constitutional Court to strike down laws which deny more than 25,000 adults with disabilities their right to vote.

Today, an international coalition of twenty-five civil society organizations including the Mental Disability Advocacy Center (MDAC) intervened in two cases before the Czech Constitutional Court by submitting an amicus curiae brief – or third party intervention – encouraging the Court to strike down laws which prohibit people deprived of legal capacity from voting. According to the Czech Ministry of the Interior, there are 25,386 adults with disabilities in the Czech Republic deprived of their legal capacity and placed under guardianship. As a result, they are prohibited from voting in local, national and European elections.

Mr Tomáš Hlaváč and Mr Jiří Soldán are Czech citizens with diagnoses of mental illness. They have been prohibited from exercising their right to vote because they have been deprived of legal capacity. Through the legal assistance of the Czech organisation the League of Human Rights, they have lodged their cases with the Czech Constitutional Court, which has the power to adjudicate upon the constitutionality of domestic laws.

The amicus curiae brief points out that the Czech Republic ratified the United Nations Convention on the Rights of Persons with Disabilities in September 2009. This Convention sets out the right to vote and stand for election for all persons with disabilities - including people with mental health disabilities and intellectual disabilities – on an equal basis with others.

The amicus curiae brief aims to assist the Constitutional Court in its proper administration of justice by:

• analysing the common myths and prejudices that votes cast by people with psycho-social (mental health) disabilities or intellectual disabilities are irrational, incompetent or manipulated;
• providing good practice examples of countries which uphold the right to vote for people with disabilities;
• setting out the international legal landscape of the right to vote, in particular the explicit provision on the right to vote for persons with disabilities in the UN Convention on the Rights of Persons with Disabilities; and
• demonstrating how laws which deny a right from a ‘group’ serve no legitimate aim, are disproportionate, and unlawful under the European Convention on Human Rights and subsequently Czech constitutional law.

Emphasising that the right to vote is the foundation of all democratic societies, Oliver Lewis, MDAC’s Executive Director, expressed, “The lingering anachronism of depriving persons with disabilities their right to vote simply on the basis of their status or on the basis of presumed higher levels of irrationality is testament more to history than to logic. The signatories of the amicus curiae brief encourage the Czech Constitutional Court to uphold the right to vote by utilising the UN Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights.”

To read the amicus curiae brief click here. To see the list of organisations and individuals who signed the amicus curiae brief click here. For more information, contact Jitka Sinecka, MDAC Policy and Advocacy Officer, telephone +361 413 2730, email mdac@mdac.info.

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11 February 2010, Budapest: The second edition of MDAC's newsletter is now available, read it here!

Our newsletters aim to keep you informed of our activities, advances, and the challenges faced in advocating for the rights of persons with disabilities in our countries and internationally. In an effort to improve and update our website, we would like to alert you to several new features. We have added accessibility options to the website to enable our readers to better access our pages or to listen to spoken version of news and stories. Just click on the MDAC podcasts box on the right side under the menu. Visitors may also give direct feedback and write a comment under each news posts. The new Archives button stocks past editions of MDAC's Newsletter as well as previously issued MDAC Information Bulletins. And check out our Executive Director's Blog!

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10 February 2010, Budapest: Council of Europe Commissioner for Human Rights raises serious concerns about the rights of children with disabilities in Bulgaria to live in the community and their right to education.

Yesterday, the Commissioner for Human Rights, Thomas Hammarberg, published a report on his visit to Bulgaria made on 3-5 November 2009. High on his agenda was the situation of institutionalised children with intellectual disabilities, including their right to inclusive education, and the need to close down institutions and ensure that care is available in family environments within the community. The Commissioner met with several Bulgarian authorities and civil society stakeholders, including the Mental Disability Advocacy Centre (MDAC), the Bulgarian Helsinki Committee (BHC), and other human rights organisations, as well as a number of parents of children with intellectual disabilities. Whilst in Sofia, he also opened MDAC & BHC’s roundtable event on inclusive education.

In his report, the Commissioner raised a number of issues that warrant urgent and detailed attention by the Bulgarian government. Of utmost concern is the continued segregation of children with disabilities who are removed from society and placed into institutions. Segregation also persists in their education; they are disproportionately denied access to mainstream schools and generally lack educational opportunities. As reported by Commissioner, of about 20,000 children with disabilities in Bulgaria, 5,573 are integrated into mainstream schools and 7,700 are in special schools, leaving “the vast majority of children in institutions […] educated within the institution itself”. There is significant evidence of the denial of education within Bulgarian institutions for children with intellectual disabilities. A major cause of concern is the fact that the programmes for education dispensed in these institutions are not overseen by the Ministry of Education and Science, but instead the Ministry of Labour and Social Policy which has the operational mandate over institutions but lacks the necessary expertise in education. In 2007-8, MDAC and BHC litigated these discrepancies in educational opportunities which resulted in Bulgaria being condemned for exercising discrimination against this group of children and for denial of their right to education (see MDAC v. Bulgaria).

The Commissioner also highlighted the failure of special schools to provide meaningful education to children with intellectual disabilities. For example, it was revealed that children in special schools are not allowed to repeat a year regardless of whether or not they have achieved the educational standards required. Further, children in special schools are prohibited from accessing schooling beyond the age of 16 years. MDAC and BHC have taken up these issues by lodging a case to the Bulgarian equality body on behalf of several mothers of children with intellectual disabilities which, in November 2010, concluded that such measures constitute discrimination.

MDAC joins the Commissioner in calling for full and swift implementation of the 2008 decision in MDAC v. Bulgaria, namely that the authorities adopt all measures necessary for ensuring that inclusive education is provided to children with disabilities so that they are schooled in the mainstream education system as far as possible. The Commissioner also calls for a timetabled plan to be adopted to eliminate segregated school practices to ensure that institutionalised children are provided with education which is available, accessible, acceptable and adaptable.

Further, MDAC commends the Commissioner’s urgent recommendations for deinstitutionalisation. Consistent with the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities, the Commissioner upholds the right of every child to be raised in and to live in the community, preferably within a family setting. This also echoes a Recommendation adopted by the Council of Europe Committee of Ministers on 3 February 2010 which calls on Member states, including Bulgaria, to no longer place children with disabilities in institutional care and to give preference to community living. MDAC and BHC continue to monitor progress of the Bulgarian authorities.

The Commissioner for Human Rights is an independent institution within the Council of Europe, mandated to promote the awareness of and respect for human rights in 47 Council of Europe member states.

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The Central European University, in cooperation with the Mental Disability Advocacy Center, is delighted to announce a summer school on MENTAL DISABILITY LAW IN PRACTICE. The two-week course will be held in Budapest, Hungary, from 19 to 30 July 2010. For more information click here.

Registration Deadline is 15 February 2010!

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3 December 2009, Budapest, Hungary. MDAC congratulates its Senior Advocacy Officer, Gabor Gombos, who was today awarded the Knight’s Cross of the Order of Merit of the Republic of Hungary in recognition of his work in the field of human rights of persons with disabilities.

A former theoretical physicist and survivor of psychiatry, Gabor has become a world-renowned advocate for the rights of persons with psycho-social (mental health) disabilities. At MDAC, Gabor takes part in international and domestic level advocacy, and has been one of the key actors in developing the United Nations Convention on the Rights of Persons with Disabilities, and ensuring its implementation in Hungary.

The award was given today on 3 December which is the international day of persons with disabilities. The theme of the day this year is making the Millennium Development Goals inclusive, highlighting the bidirectional correlation between poverty and disability, and tackling the global justice issue of poverty. Emphasizing that poverty eradication will succeed only if people with disabilities are allowed to be and enabled to be active participants of the efforts, Gabor today said

Persons with disabilities have been excluded from effective and equal participation across the globe. Legal incapacitation, deprivation of the right to vote, and segregation into custodial institutions are some of the ways how societies exclude the world’s largest minority. The United Nations Convention on the Rights of Persons with Disabilities calls for a rethinking of social contracts which have failed to include people with disabilities. A meaningful implementation of the Convention will transform communities towards truer and more inclusive democracies where people with disabilities will contribute to the well-being of societies, through their being and doing, on an equal basis with others.

Gabor concluded with a call for action: “When physical, environmental, attitudinal barriers and legal disqualifications are removed; and support, reasonable accommodation and capacity-building are provided, people with and without disabilities can join their efforts to tackle local and global challenges, to make this planet a more just place for all.”

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For more information click here.
Application deadline 22 January 2010.

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20 November 2009. On today's 20th anniversary of the adoption of the UN Convention on the Rights of the Child, the Mental Disability Advocacy Center (MDAC) urges governments not to cut back on human rights-compliant services for children with disabilities.

Some governments are using the global economic crisis as a justification to decrease their social services and education budgets. As children with disabilities are often among the most vulnerable people in every country, MDAC encourages governments to allocate the maximum available resources to them. The concept of progressively realising economic, social and cultural rights means that governments cannot backslide, but rather that there must be measurable progress year on year.

MDAC calls on governments to refocus their attention on children with disabilities, as many of them have been abandoned by their families or grow up deprived of a family environment. These children are denied an education, and, in some countries, are forced to live in institutions. For them, the rights set out in the UN Convention on the Rights of the Child remain an empty promise. Residential institutions are far away from the public eye. They are often unregulated by government and unmonitored by independent inspectorates allowing abuses to be carried out with impunity.

Maximum use of available resources

The proposition that children's rights should be protected even in countries with limited finances is supported widely. The European Committee of Social Rights has said that governments need to progressively realise the right to education for children with disabilities by adopting a reasonable timeframe, by making measurable progress, and by providing financing consistent with the maximum use of available resources. In the collective complaint decision in MDAC v. Bulgaria, the Committee said that Bulgaria's financial constraints cannot be used to justify the fact that institutionalised children with intellectual disabilities are not provided with their right to an education.

In his remarks on the 20th anniversary, Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe confirmed that "resource limitations cannot be seen as an excuse for ignoring obligations to protect child rights and for delaying the implementation of measures. The greater the difficulties, the more reason to act with a clear political will in order to address the problems in a systematic fashion. Indeed, it is particularly in times of crisis that the state has to reaffirm its commitment and to fully respect the rights of children - all children."

MDAC echoes the Commissioner's call for action, and joins him in reminding States of the UN Convention on the Rights of Persons with Disabilities which "also requires concrete steps to be taken to guarantee genuine implementation. It prescribes that governments must take legal, administrative and other measures and use 'the maximum extent of their available resources' to ensure that children can enjoy their rights."

MDAC is aware that governments, local authority officials, and staff of educational and social care services for children often complain about the lack of financial resources to ensure upholding children's rights. However, the reality is that children's cognitive, physical, and emotional development suffer from a lack of education, activities and stimulation. The prevalence of neglect and abuse to which they are at risk in institutions leaves lasting damage and robs children of their childhood altogether. International human rights law demands that governments live up to their commitments and advance the rights of all children through the allocation of sufficient funding to community-based support services and to inclusive education. Investments need to be made also into building the capacity of leaders to shift the attitudes of decision-makers at each level. Without political will, no amount of resources will ensure that children's rights are protected, respected and fulfilled.

Please donate to MDAC so that we can further protect and advance the rights of children with disabilities.

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