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Бурков Антон Леонидович Detention of Mentally Ill Persons in the Russian
Federation
under Article 5 of the European Convention on Human Rights01.11.2004 Опубликовано: 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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