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Detention of Mentally Ill Persons in the Russian Federation under Article 5 of the European Convention on Human Rights

01.11.2004

: A. Umland (ed.) The Implementation of the European Convention on Human Rights in Russia: Philosophical, Legal, and Empirical Studies (= Soviet and Post-Soviet Politics & Society, Vol. 1), 2004. C. 121-143

http://www.ibidem-verlag.de/r1l.html

1. Introduction In this paper I shall discuss some issues, arising in the European Court of Human Rights (the Court) case-law under Articles 5(1)e and 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention or ECHR), with regard to the detention of mentally ill persons in the Russian Federation. I am going to cover possible problems of Russian compliance with these articles, both in law and practice. Therefore, I will consider what the requirements are and, in the light of that, whether Russian law and practice are in compliance with the terms of the Convention. This paper does not deal with issues which would lay outside the scope of Article 5 of the Convention, such as the right to a fair trial, conditions of detention or treatment, the right to a family life, etc. The Court is consistent in its case-law that Article 5(1)e is not in principle concerned with suitable treatment or conditions. All issues other than detention issues fall outside of the scope of Article 5 and should be dealt with separately. If one came to the conclusion, when considering the legality of the deprivation of liberty, that people in Russia have been unlawfully detained, it would be logical to examine the subsidiary issue whether those people have an enforceable right to compensation as Article 5(5) of the Convention specifies. However, due to the spatial constraints of this paper it is not possible to discuss here the case-law on Article 5(5), nor the Russian legislation and practice on this issue in sufficient depth.

 

The author is grateful for the assistance and helpful comments of Professor Françoise Hampson, and Professor Kevin Boyle. The author is grateful to Neal Messer who assisted in editing the final version of the text.

For the purpose of citation, the full title is "Burkov, Detention of Mentally Ill Persons in the Russian Federation under Article 5 of the ECHR, A. Umland (ed.) The Implementation of the European Convention on Human Rights in Russia: Philosophical, Legal, and Empirical Studies (= Soviet and Post-Soviet Politics & Society, Vol. 1), 2004. C. 121-143"

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