Lashin v. Russia

Lashin, a Russian citizen, was diagnosed with schizophrenia, given a 2^nd degree disability status, and hospitalised multiple times. A hospital examination concluded that Lashin was incapable of understanding the meaning of his actions and unable to control them. Following an application by the public prosecutor, the District Court of Omsk declared Lashin legally incapacitated at a hearing held in his absence in 2000.

His father, appointed as his guardian, made several attempts to restore Lashin’s legal capacity and requested that a new psychiatric examination be conducted by a non-State professional association of psychiatrists. These attempts were not successful, and in 2002, the District Court, again in the absence of Lashin, refused to commission the new examination stating that only State-run institutions were allowed by law to conduct such examinations; it then concluded that the examination of 2000 was still valid and his status should be maintained.

In December 2002, on the basis of a hospitalisation order, Lashin was placed in hospital, and a new examination was conducted. The examination concluded that Lashin should stay in the hospital, although the examination was based primarily on his medical history and numerous complaints raised against the hospital. His father was soon after stripped of his role as guardian. Attempts from Lashin and his father to challenge the confinement and a request for a new examination were rejected.  The hospital became Lashin’s new guardian. The hospital revoked its request for authorization of Lashin’s confinement, and the District Court concluded that Lashin’s confinement at the hospital should be considered “voluntary” on the basis of the hospital’s consent.

Following various attempts by Lashin’s father and daughter to challenge the decision and the confinement, Lashin was released from the hospital in December 2003 after the appointment of his daughter as his new guardian.

Lashin brought a complaint before the European Court of Human Rights against the Russian Federation for various violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), in particular (1) Article 8 (right to respect private and family life) with respect to his inability to have his legal incapacity reviewed; (2) Article 5 (right to liberty and security of person) in relation to his confinement in a psychiatric hospital in 2002-2003; (3) Article 12 (right to marry) due to his inability to register his marriage; and (4) Article 13 (effective remedy for violation of rights and freedom) as he did not have effective remedies in connection with his complaints under Articles 8 and 12 of the Convention.

The Court found that there was a breach of Article 8 (right to respect private and family life) of the Convention since the confirmation of the incapacity status of Lashin in February 2002 by the District Court was based on the earlier report of 2000, no new assessment of his mental condition was conducted, and the decision of the Court was taken in Lashin’s absence. Furthermore the Court found that it was doubtful that his mental condition required a full incapacitation.

The Court also held that Russia had breached Article 8 because, after Lashin’s confinement to in December 2002 and until his daughter assumed the role of guardian in October 2003, Lashin was unable to assert his rights.

The Court found that Lashin’s Article 5 rights (right to liberty and security of person) were violated during his confinement to the psychiatric hospital. The Court stated that, to be lawful, Lashin’s confinement needed to comply with two major requirements. First, the confinement must be “lawful,” meaning that it should comply with the substantive and procedural law of the country, and the confinement must be necessary according to the circumstances of the case. Second, the confinement must be consistent with the purposes of Article 5, namely, to protect individuals from arbitrariness. For this to occur, an individual may not be deprived of liberty unless he is reliably shown to be of unsound mind, the mental disorder must be of a kind or degree warranting compulsory confinement, and the validity of the continued confinement must depend on the persistence of such a disorder. The Court found that Lashin’s detention when he first was placed at the hospital in December 2000 was not authorised in accordance with Russian procedural law because Russia failed to comply with the time limits prescribed in law for medical examination and the issuance of a court order.

The Court also stated that the fact that a confinement is consented to by the guardian of a mentally ill person does not render it “voluntary.” From the moment his confinement was deemed voluntary, Lashin was unable to access a judicial process, further violating his Article 5 rights. Moreover, the fact that the appointed guardian was the same hospital which initially requested the hospitalisation order put the impartiality of the guardian in doubt.

The Court found that it was not necessary to examine the Article 12 (right to marry) or Article 13 (effective remedy for violation of rights and freedom) claims because either claim was due to the same factors analysed to conclude the violation of Article 8.

“In Russia at the time the law neither provided for an automatic review nor for a direct access to the court for an incapacitated person, so the latter was fully dependant on his guardian in this respect . . . Where, as in the present case, the guardian opposed the review of the status of his ward, the latter had no effective legal remedy to challenge the status. Having regard to what was at stake for the applicant, the Court concludes that his inability for a considerable period of time to assert his rights under Article 8 was incompatible with the requirements of that provision of the Convention. Consequently, there was a violation of Article 8 of the Convention.” Para. 97 (citations omitted).

“The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must comply with two major requirements. First of all, it must be ‘lawful’ in domestic terms, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Secondly, the Court’s case-law under Article 5 requires that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness.” Para. 109

“As to the second of the above conditions, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement (i.e. where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, or where he needs control and supervision to prevent him, for example, causing harm to himself or other persons ; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.” Para. 110 (citations omitted).