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English Language Page Part 4, Article 15 of the RF Constitution reads: “the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation shall be a component part of its legal system.” This norm recognizes the priority of the international treaties of Russia whenever they stipulate other rules than those stipulated under the laws of Russia. Thus, it determines the character of interaction of the two legal systems, i.e. the international-law system and the legal system of Russia. In fact, that implies that the activities of any body of state authority in Russia, its decisions and procedural norms may not contravene the provisions of the international treaties. Furthermore, the said constitutional norm is worded in such a way that it “provides a possibility for the norms of the international law to have a direct effect and be applied by the authorities, including the courts.” For relevant details of application of the norms of the international law by the courts of Russia one may refer to October 10, 2003 Decision #5 of the RF Supreme Court Plenary Meeting “On the Application by General Jurisdiction Courts of the Commonly Recognized Principles and Norms of the International Law and the International Treaties of the Russian Federation.” The said article of the Constitution makes references to the international treaties and commonly recognized principles and norms of the international law. An international treaty of the Russian Federation is an agreement concluded between Russia and foreign states or international organizations in writing that is regulated under the international law, regardless of whether such agreement is contained in a single document or in several documents interrelated between themselves and also of whatever its specific title may be. (Article 2 of Federal Law “On the International Treaties of the Russian Federation” of July 15, 1995). Among the international treaties of Russia are also treaties under which Russia has continued to implement the USSR international rights and obligations as a state-heir to the Union of Soviet Socialist Republicans (Article 1 of the said Law). In the adjudication by the courts of Russia of civil, criminal or administrative cases, a direct effect shall be exercised by such international treaty of the Russian Federation that has come into force and become binding upon Russia whose provisions do not require the adoption of internal governmental acts to make their implementation possible and may generate rights and duties for the subjects of the domestic law (Parts 1, 3 of Article 5 of Federal Law “On the International Treaties of the Russian Federation”). An international treaty is one of the formal sources of the international law, i.e. “those are the legal procedures and methods of setting general application norms that are legally binding upon those whom they are meant for.” The provisions of international treaties are indisputably binding and shall be diligently complied with in relations between the parties thereto. As to the notion of the commonly recognized principles and norms of the international law, in the theory of the international law they usually imply “the norms and principles that have been recognized by the overwhelming majority of states.” 8 They may have a form of a treaty or an international custom and are assigned to the category of norms of the common international law. Above-mentioned October 10, 2003 Decision #5 of the RF Supreme Court Plenary Meeting defines the commonly recognized principles of the international law as “the fundamental mandatory norms of the international law that are approved and recognized by the international community of states as a whole the deviation from which is impermissible” and the commonly recognized norm of the international law as “ the rule of conduct that is approved and recognized as legally binding by the international community of states as a whole” (Part 1). So, in the international law there are multilateral universal treaties such, for instance, as the United Nations Charter, the 1969 Vienna Convention “On the Law of International Treaties,” the 1966 international covenants on human rights, those are the treaties that contain the commonly recognized principles and norms of the international law, although they may not be called as such in the treaties. Among those principles and norms is, for instance, the principle of universal respect for human rights and the principle of bona fide fulfillment of internationally binding commitments. Apart from the commonly recognized principles and norms of the international treaties, the international law also contains other directions that may be found, specifically, in decisions (directives, resolutions, etc.) and recommendations of international agencies and organizations. The decisions of international judicial bodies also constitute a component part of the international law. Those, however, are not included as part of the Russia’s legal system under Part 4 of Article 15 of the RF Constitution according to which only international-law principles and norms of a legally binding character may constitute a part of the country’s legislation. Therefore, the international-law acts not specified under Part 4 of Article 15 of the RF Constitution differ in their legal force from the commonly recognized principles and norms of the international law and international treaties. Thus, the decisions of international agencies and organizations are binding upon their members but in fact, they may make “a suggestion to take a certain position or actions or to refrain therefrom.”11 Recommendations, in the strict sense of the word, are devoid of a legal force but “may be very stringent politically and represent an indisputable means of exerting political pressure.”12 It is noteworthy that recommendations usually reflect an opinion of the majority of members of international organization and in the case of recommendations it may be necessary to work out common principles that may subsequently be transformed into an international custom or even a treaty-based norm. As concerns the interaction between the international and domestic law, it should be remarked that “ the norms of the international law impose obligations on a state as a whole, rather than on its individual bodies or officials.” Nevertheless, the state bears responsibility for their actions involved in realization of the norms of the international law and “may not refer to the provisions of its own domestic law or gaps in that law in response to the accusation that it has violated its commitments under the international law.” Similarly, in the context of internationally binding commitments, there is a general obligation of the state to bring its domestic laws in line with those commitments. The international remedies of protection of human rights are of special importance within the international public law. The decisions of international judicial bodies are binding upon the states that recognize their respective jurisdiction and act as parties in a dispute. The binding character of a judgment is limited by a specific case (Article 59 of the Statutes of the International Court of Justice).15 Moreover, in rendering a judgment in a specific case, any international judicial body offers its interpretation of the existing international law and bearing that in mind, its judgments represent acts of judicial interpretation. Traditionally, that branch of law has regulated relations predominantly between the states while individuals have possessed only a limited legal personality. It became possible to speak of an individual as a subject of the international law with the emergence and development of the international-law norms and institutions regulating the provision and protection of human rights.16 The June 26, 1945 UN Charter, in the preamble of which the UNO member-states re-affirm their “faith in the basic human rights and dignity of the human being,” stipulates such a function of the UNO as dissemination of “universal respect for and observance of human rights and fundamental freedoms17 for all, regardless of racial, gender, language, or religious differences.” (Article 55). That served as a basis for the creation of a whole range of international-law instruments regulating protection of human rights and, first and foremost, of the December 10, 1948 Universal Declaration of Human Rights, the December 19, 1966 International Covenant On Civil and Political Rights and the International Covenant On Economic, Social and Cultural Rights. The Universal Declaration was not conceived as a legally binding instrument but was looked upon as only “the first step towards the preparation of a Covenant that would have a form of an international treaty.”19 The two Covenants and the Optional Protocol to the International Covenant On Civil and Political Rights20 adopted at the same time therewith may be viewed as “a detailed codification of human rights.”21 They account for the traditional civil and political rights (such as the equality of men and women in the exercise of those rights, non-discrimination on the basis of race, color, sex, language, religion, political and other convictions, national or social origin, property status, birth or any other circumstance; the right to life; the right to freedom and personal inviolability, etc.) and also for the right to work, to fair and favorable conditions of work, to social security and an adequate standard of living for oneself and one’s family, to the enjoyment of the highest attainable standard of physical and mental health, to education, etc. Note that with respect to civil, political and socio-economic rights, the Covenants are using different wording. Whereas in case of the latter, each participating state undertakes “to take steps… to the maximum of its available resources, with a view to achieving progressively the full realization of … the rights recognized in the present Covenant” (Article 2), in case of the civil and political rights, the states undertake “to respect and ensure” those rights by all appropriate means available within their respective territories and under their respective jurisdiction (Article 2). The International Covenant on Civil and Political Rights provides for the setting up of the Committee on Human Rights to be vested with supervisory powers (Article 28). The States Parties to the Covenant undertake to submit to the UN General Secretary reports on measures taken to implement the rights recognized in the Covenant which reports shall further be forwarded to the Committee for consideration. In that connection, the Committee has the right to make its comments to the states while the states, in their turn, are entitled to submit its considerations back to the Committee regarding those comments (Article 40). Besides, the states, by making unilateral statements, may invest the Committee with specific powers to settle disputes associated with the implementation of the Covenant (Article 41).22 Under the Optional Protocol to the Covenant citizens have the right to send communications to the Committee claiming that their rights set forth under the Covenant have been violated by a state. The examination of such communications may culminate in giving a relevant notice to the state which shall, within six months there from, present to the Committee its written explanations or remarks of clarification (Article 4 of the Optional Protocol). The above international instruments contain general fundamental rights to be enjoyed by all citizens, without exception. Meanwhile, a number of the instruments adopted by the United Nations Organization are specialized in meaning and are concerned, inter alia, with persons suffering from mental conditions. Those are the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment,23 the 1989 Convention On the Rights of the Child,24 the 1971 Declaration Of the Rights of Mentally Retarded Individuals,25 the 1975 Declaration Of the Rights of Disabled Persons26 and the December 17, 1991 Principles of Protection of Persons Suffering From Mental Diseases and Improvement of Health Care In the Field of Psychiatry.27 At present, the UN Principles contain a most comprehensive list of requirements regarding the assurance of rights of persons suffering from mental conditions. The document became an outcome of the work started in 1978 by the UN Commission on Human Rights and the Sub-Commission On Prevention of Discrimination and Protection of Minorities. It resulted in the formulation of twenty-five principles concerning individuals with abnormal mental conditions, representing a most vulnerable group of population from the viewpoint of provision of human rights. It is the comprehensive nature of their content that makes the UN Principles an exceptionally important document, notwithstanding its recommendatory character. In the absence of a special convention or other international treaty on the rights of persons with mental conditions, the UN Principles may provide guidelines in the interpretation of general legal norms applicable to the said group of persons as concerns both the content of domestic laws on mental health (or on psychiatric care) and also their practical application. The UN Principles are applicable irrespective of whether persons are or are not commissioned to psychiatric institutions, have already been diagnosed or their diagnosis is in the stage of determination (Principle 4 contains the requirements in respect of the latter case). All those persons shall be protected against discrimination, which implies “any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights” (Part 4 of Principle 1). Special measures designed exclusively to protect or promote the rights of persons with mental conditions as well as “any distinction, exclusion or preference undertaken in accordance with the provisons of these Principles and necessary to protect the human rights of a person with a mental disease or other individuals” shall not be treated as discrimination. The UN Principles contain an extensive list of rights that must be guaranteed to persons with mental conditions. All the rights may, for the sake of convenience, be divided into three groups. The first group includes the so-called civil or constitutional rights that are exercised by all the citizens of a respective state, regardless of the state of their mental health. The second group of rights is set aside specially for the above-mentioned category of citizens, considering that individuals with mental conditions, precisely by reason of such conditions, are not infrequently suffering from maltreatment and derogation from their rights both in social life and in psychiatric therapy. Finally, the third group is made up of rights vested in patients of psychiatric institutions. It seems to be essential to set aside that group of rights as those institutions are most often closed-type establishments with a restrictive regime and, therefore, they call for special attention as far as protection of human rights is concerned. The suggested classification of the rights of persons suffering from mental conditions is also reflected in the UN Principles. Thus, Part 5 of Principle One stipulates that every person suffering from a mental condition “shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights” and in the international covenants on human rights and other relevant documents such, for instance, as the Principles of Medical Ethics devoted to the role of medical personnel, especially doctors, in the protection of prisoners or detainees against torture and other cruel, inhuman or degrading treatment or punishment which Principles were adopted by the UN General Assembly in March 9, 1983.28 They set forth in detail the rights that shall be vested in persons suffering from mental conditions as a vulnerable category of citizens. Among those rights are the rights to the best available psychiatric care as part of the system of medical and social assistance (Part 1 of Principle 1), to humane and respectful treatment (Part 2 of Principle 1), to the protection against economic, sexual and other forms of exploitation, physical and other abuses (Part 3 of Principle 1). That group also includes the right to live and work, as far as possible, in the community (Principle 3), the right to the aid of a lawyer and personal representative (Principle 18), the right to file complaints in accordance with the procedure established under the domestic legislation (Principle 21) and some others. And, finally, the UN Principles formulate standards that must be complied with at all times when persons suffering from mental conditions come into contact with medical officers. The determination of mental abnormality shall be carried out in compliance with the commonly recognized international medical standards and the diagnosis may not be based on any circumstances other than the state of mental health of an individual at the time of making such a diagnosis (Principle 4). The medical examination shall not be conducted in contravention of the procedure prescribed under the domestic legislation (Principle 5). The patients who have been found to be suffering from mental abnormalities shall have the right to receive medical and social assistance as far as possible at the place of their residence (Principle 7) and according to the same standards as are applicable to other patients (Principle 8), in the least restraining conditions and by employing the least restraining types of medical treatment (Principle 9). Principle 11 regulates in detail a consent to medical treatment, including instances of psychiatric care being provided involuntarily while Principle 13 specifies the requirements concerning provision of rights of patients and conditions of their residence at psychiatric institutions. The procedure of hospitalization and substantive and procedural grounds for application of involuntary hospitalization are set forth under Principles 15 and 16. Each instance of involuntary hospitalization shall be examined by an overseeing authority — a judicial or other independent and impartial body set up and operating in accordance with the domestic legislation that is vested with the right to periodically re-examine cases of involuntary patients “at reasonable intervals” (Principle 17). In that connection, the patients are entitled to certain procedural guarantees so that the examination of cases by the overseeing authority be truly comprehensive and its decisions — fully justified. (Principle 18). Apart from the directions regarding the provision of rights of persons suffering from mental conditions, the UN Principles are also important for the organization of domestic services offering psychiatric care. In the first place, a number of principles point out that each person with a mental condition, shall have the right, as far as it is possible, to reside and work in society while psychiatric care shall be provided to him/her at the place of his/her residence (Principles 3 and 7) which implies the organization of proper medical and social assistance in the country. Second, it is emphasized that psychiatric care is a part of the national system of medical and social assistance and as such shall be subject to the same standards as are applicable in other areas of medicine and that psychiatric institutions “shall have access to the same level of resources as any other health establishment” (Principles 1, 8 and 14). Thus, it is recommended that the states allocate their financial and material resources in such a way that the psychiatry be funded equally with other types of specialized medical care. Finally, the treatment aimed at preserving and developing the patient’s personal autonomy (Principle 9 (Part 4)) and his soonest possible return to normal life in society after treatment at a mental institution (Part 2 of Principle 7) constitutes a basis for a new ideology of modern psychiatry that has abandoned the traditional paternalism typical of that branch of medicine. In connection with adoption of the UN Principles, the World Health Organization (WHO) has prepared several instruments that would facilitate the understanding and implementation of the provisions of the Principles. First, those are the Instruction “On Assisting the Realization of Human Rights by Persons Suffering From Mental Conditions”29 and Federal Law “On Psychiatric Care: Ten Basic Principles.”30 The Instructions were drafted with a view of making a substantive assessment of the terms of each of the principles formulated by the United Nations and, therefore, it refers to the issue of “basic guarantees of quality, setting thereby a basic standard with the help of which politicians and officers involved in psychiatry may assess programs of mental health at the local, regional and national level.”31 The aim of the second document was to describe the basic legal principles “in the field of mental health with the minimal possible inclusion of factors of individual culture or legal traditions.”32 Thus, those WHO instruments may be used as reference material in assessing a degree of protection of the rights of persons suffering from mental conditions and also a condition of the psychiatric service in a specific country. Furthermore, in 2001 the World Health Organization released a special document regarding the role of international instruments in the sphere of human rights, specifically dealing with the protection of rights of persons suffering from mental conditions, which may be a valuable source of information for the domestic legislation. Apart from the international community as a whole, the protection of rights and liberties of the human being, including of individuals with mental abnormalities, is carried out within the framework of regional international organizations. The Council of Europe adopted, within its confines, two separate documents, similar to the UN International Human Rights Covenants. The November 4, 1950 Convention on the Protection of Human Rights and Fundamental Freedoms34 is devoted to civil and political rights, while the October 18, 1961 European Social Charter regulates economic and social rights. The European Convention on Human Rights provides for advanced mechanisms of protection of rights. Unlike the UN instruments, it does not require that participating states present regular reports but grants to private individuals the right to make complaints. The European Court of Human Rights operating on the basis of the Convention renders specific legally justified judgments, creating thereby a case law — in its judgments the Court is bound by its earlier decisions. It should be mentioned that the European Court is not acting as “some court of the fourth instance” vis-à-vis domestic judicial bodies. The court has no right to overturn a judgment rendered by a domestic court, nor issue an order to a domestic lawmaker. The Court offers its “interpretation of the challenged provisions of the domestic legislation and gives its assessment of the law enforcement practice exclusively from the viewpoint of its consistency with the requirements of the Convention.”36 Thus, as compared with other international bodies operating in the sphere of protection of human rights, it is the European Convention that “has served as a basis for the formation of the most extensive and detailed collection of judgements”37 in the sphere of human rights which, undoubtedly, affect the judgments passed by the domestic judicial bodies of the States Parties to the Convention and also the legislative policy in those countries. In the event the European Court finds a violation of any provisions of the Convention, it requires that the state stop the violation and liquidate as far as possible the consequences of such a violation and also take measures to prevent similar violations of the Convention from occurring in future. The ratification of the European Convention and recognition of the right of private individuals to lodge individual complaints and also of the mandatory jurisdiction of the European Court of Human Rights constitutes a necessary condition for a state to become a member of the Council of Europe. Having adopted the March 30, 1998 Federal Law “On Ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms and Protocols Thereto,”39 Russia has thereby assumed an obligation to comply with the requirements of the European Convention. The right of Russian citizens to turn to the European Court with individual complaints is also guaranteed under Part 3 of Article 46 of the Constitution of the Russian Federation, which declares, in part, that: In conformity with the international treaties of the Russian Federation, everyone has the right to turn to interstate organs concerned with the protection of human rights and liberties when all the means of legal protection available within the state have been exhausted. Note that the right to file individual complaints is one of the most effective mechanisms of protection of human rights. Apart from citizens of the member-states of the Council of Europe, the Convention is a basis for the legal status of personality — the human being and citizen — within the framework of the European Union. The European Convention (in its current version of Protocol #11) is made up of three sections which gives a consistent account of human rights and liberties recognized by the Convention, regulates the activities of the European Court of Human Rights and also other issues associated with its implementation. The Convention is supplemented with as many as eleven protocols, which amend the procedure of activity of its monitoring bodies, in part, of the European Court and expand a list of human rights guaranteed by the Convention. List of rights guaranteed by the Convention practically coincides with the rights recognized by the United Nations with their definitions being more accurate and elaborate as compared with those found in the Universal Declaration of Human Rights and international covenants.41 The European Convention makes no distinction according to the legal capacity of citizens filing complaints. Thus, Article 25 is applicable to minors, persons incapable due to their mental condition and also to persons who are serving their sentence in prison. The practice of the European Court shows that in respect of persons suffering from mental conditions, the following articles of the Convention are most often violated: Article 3 (Right to Freedom from Torture), Article 5 (Right to Liberty and Security of Person), Article 6 (Right to a Fair Trial) and Article 8 (Right to Respect for One’s Private and Family Life). Article 3 of the Convention declares that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment,” and protects the human dignity and personal inviolability of the human being. Depending on the cruelty of treatment, the European Court recognizes three basic notions: torture (inhuman treatment with the aim to obtain information or confession or inflict punishment); inhuman treatment or punishment (treatment that deliberately entails serious moral or physical sufferings and that may not be justified in the given situation); degrading treatment or punishment (treatment that rudely humiliates a person in front of other persons and forces him/her to act against his/her own will or conscience). In practice, the Court exercises a certain degree of caution in acknowledging violations under Article 3 of the Convention, “being careful, by virtue of seriousness of its character, not to apply it inappropriately.”43 Thus, in the case of Herczegfalvy vs. Austria (1992) in which the complainant — a patient of a mental institution — complained that he had been fed and medicated forcibly, kept in isolation for a long time and handcuffed to a special bed, the Court failed to find violations under Article 3 of the Convention. The Court decided that the evidence it had was insufficient to disprove the assertion of the government to the effect that the maltreatment had been caused by a medical necessity existing at that time. At the same time, the Court pointed out that the state of disability and helplessness of the inmates of psychiatric institutions calls for enhanced attention to be given to issues of compliance with the provisions of the Convention. In that connection, the Court expressed its concern over the length of time over which the use had been made of handcuffs and special bed. Likewise, the Court failed to find violation of Article 3 of the Convention in the case of Aerts vs. Belgium (1998) in which the complainant — a person imprisoned and commissioned to a Lantin prison psychiatric department — complained of non-availability of the necessary psychiatric care which had brought about the worsening of his mental health and therefore, allegedly represented inhuman or degrading treatment. Having agreed that the general living conditions of prisoners at the prison psychiatric department were not satisfactory and that the prisoners had been denied an effective medical treatment, the Court, however, found no evidence in that case of actual worsening of the mental health of the complainant and indicated that the conditions of his stay at the psychiatric department did not seem to have affected his mental health to an extent that it may be qualified as falling under Article 3.” It should be mentioned that, apart from Article 3, some aspects of the right to personal (physical and mental) inviolability are also regulated under other documents of the Council of Europe, specifically, under the September 26, 1987 European Convention on Prevention of Torture and Inhuman or Degrading Treatment or Punishment,46 and under the April 4, 1997 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine. Article 5 of the European Convention on Protection of Human Rights and Fundamental Freedoms regulates the right to liberty and security of person. That is no absolute right and it may be restricted in instances enumerated under the said Article, Item (e) of which allows “lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants.” A classic case examined by the Court under the said Article is the case of Winterwerp versus the Netherlands (1979).48 To begin with, the judgment passed in that case formulated general criteria as to what should be implied by the word “mentally ill” and also minimal requirements to the substantive and procedural grounds for involuntary hospitalization. The judgment of the Court pointed out that: This is a term whose implication is constantly changing with the progress of research in the field of psychiatry; the methods of treatment are becoming more flexible, society is changing its attitudes towards mental diseases, with the society becoming more aware of the problems of mentally ill persons. In any case, it is obvious that Item 1 (f) of Article 5 may not be taken as a permission for keeping a person in custody only because his/ her views or behavior fails to correspond to the norms prevailing in the given society. Furthermore, the judgment emphasized that “legality” in respect of detention, “implies, first and foremost, compliance with the domestic law and also… with the purpose of restrictions allowed under Article 5, Item One (f)” and it “covers both procedural and substantive law norms.” In the view of the Human Rights Commission which is shared by the Court “no one may be deprived of liberty as “a person suffering from a mental condition” in the absence of a medical evidence indicating that his/her mental state justifies a compulsory institutionalization.”50 Proceeding from that judgment, the European Court in the case of Varbanov vs. Bulgaria (2000) acknowledged violation of Article 5 of the European Convention, inasmuch as in the case of involuntary hospitalization of the complainant, no sufficient evidence was available to the effect that he was suffering from a mental condition; so, the hospitalization (detention) was legally groundless under the domestic legislation and the Bulgaria’s law on health care in force at that time contained no sufficient guarantees against arbitrary application of hospitalization (in part, required no medical evidence as a preliminary condition therefor).51 The refusal of the Dutch authorities to initiate criminal proceedings against a citizen who had raped a mentally-ill sixteen-year-old girl on the basis that the complaint should have been filed by the victim herself who in the given case was unable to do so by reason of her mental condition, was qualified by the European Court as a violation of Article 8 of the European Convention. The Court pointed out: Although the purpose of Article 8 is predominantly to protect an individual against an arbitrary interference of the state authorities, it (the Article) not only obligates the state to refrain from such interference: this negatively worded obligation may be supplemented with positively worded obligations, inalienable from the genuine respect for private or family life… Those obligations may comprise the adoption of measures with the aim to ensure respect for personal life even in the sphere of relations of individuals between themselves. At the same time, the Court failed to acknowledge violation of Article 8 of the Convention in the case of Nielsem vs. Denmark in which a thirteen-year-old teenager protested against his commitment to a mental department of a hospital at his mother’s request.53 According to the Court, the child’s age was such (he was twelve at the time of hospitalization) that the decision was to be taken by his parents, even though against his will, proceeding from the presumption that the parents were acting in the child’s interests. At the level of the European Court of Human Rights no documents were adopted that would be similar to the UN Principles, therefore, the activity of the European Court seems to be exceptionally important in determining a legal status of persons suffering from mental conditions, in the member-states of the Council of Europe. At present, the European region is the venue of operation of Recommendations of the Committee of Ministers #R(83)2 regarding legal protection of persons suffering from mental conditions who are kept as involuntary patients54 and of Recommendations 1235 on Psychiatry and Human Rights (1994).55 The former of the said recommendations are specifically concerned with mental patients committed involuntarily, except for those persons who are undergoing compulsory treatment by a court decision in connection with the commission of socially dangerous wrongdoings (Articles 97-104 of the RF Criminal Code). The latter document is also devoted predominantly to the problems arising in case of application of involuntary psychiatric measures, also emphasizing that “it is time for the member-states of the Council of Europe to adopt legal measures to guarantee respect for the human rights of mental patients” (Item 6 of Recommendations 1235(1994)). In that connection, the Parliamentary Assembly of the Council of Europe is urging the Council of Ministers to adopt fresh recommendations in that field (Item 7 of the said Recommendations). On the basis of Recommendations 1235 (1994) the Committee on Biological Ethics of the Council of Europe is preparing fresh recommendations pertaining to protection of human rights and dignity of persons suffering from mental conditions, especially of those kept at psychiatric institutions as involuntary patients.56 The document is to be approved by the Committee of Ministers and is expected to be used in the drafting and revision of legislation in the field of psychiatric care and also the practice of its application within the member-states of the Council of Europe. Assessing Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens In Therapy” of July 2, 1992,57 from the viewpoint of international standards in the sphere of human rights as applicable to persons with mental conditions, it is worth noting that, as concerns practically all its provisions, it is in compliance with those standards. The Law envisages state guarantees regarding the provision of psychiatric care and social protection of individuals with mental conditions, gives a list of their rights, including during their stay in resident therapy58 (Article 5 and 37), formulates rather stringent grounds for application of involuntary psychiatric measures (Articles 23, 27 and 29), establishes a judicial procedure of taking decisions on involuntary hospitalization and a judicial procedure for its extension (Articles 33-36), etc. It should be mentioned that the provisions of the Law have affected the content of the norms of the 1996 RF Criminal Code which, for the first time in the domestic legislation, has established judicial control over the time periods during which involuntary measures of a medical character are applied (Article 102). Furthermore, the 2002 latest RF Civil Procedure Code has come to include Chapter 35 containing procedural rules regarding involuntary psychiatric certification and involuntary hospitalization (Articles 302-306). The compliance of the 1992 Federal Law “On Psychiatric Care” with the international standards in the sphere of human rights is accounted for by the fact that a careful study was made as it was drafted of the UN Principles already adopted by that time whose provisions found their way in the Law. In practice, however, the Law is not always or not fully complied with which leads to infringements of the rights of persons suffering from mental conditions.59 Therefore, both experts and public alike should focus their attention on improvement of the law enforcement practice, including the judicial one, by making use, among other things, of possibilities offered by the international law. |
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