States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment...while in the care of legal guardians or any other person who has the care of the child.
- The Convention on the Rights of the Child. Art. 19 (1)
Starting from their abandonment, Russian children in orphanages are deprived of basic human rights at every stage of their life—from the most fundamental right to survival and development, to their rights to humane treatment, health, education, and full enjoyment of civil rights. These rights are interlocking, and their violation has a compounding effect, consigning these children to truncated lives in a permanent underclass. This chapter address the legal basis of these rights, in the major international human rights instruments to which Russia is a party, in non-binding international standards pertaining to medical ethics, disability, mental illness and the treatment of juveniles in detention, and in Russian law.
Abandonment and Disability as a Basis for Invidious Discrimination
There is little doubt that the more than half-million children registered as orphans in the Russian Federation suffer acute social discrimination and endemic denial of their civil, political, economic, social and cultural rights, particularly in comparison with children who live with their families. The simple fact of abandonment or orphanage propels children into an institutional system that prejudices their physical, emotional and mental development; it denies them appropriate health care, education, and puts them at serious risk of physical and mental abuse inflicted or tolerated by state employees in the name of discipline. Most significantly, the fact of abandonment and orphanage stigmatizes them for life, a stigma that is memorialized in official identity documents and from which they cannot escape as they seek employment and a normal life in the community. The stigma of abandonment is reinforced and compounded by the popular assumption that such children must have inherited mental deficiencies and deviant personalities to have caused their parents to abandon them, an assumption particularly likely if they come from poorer or troubled families. Often they are quickly classified as retarded by medical personnel, adding a second burden of discriminatory status as "disabled." Even those considered “normal” graduate intosociety under a heavy burden of educational and social retardation in comparison to their peers, and suffer the stigma of their childhood origin for life.
Children who have genuine physical or mental disabilities, or who are improperly classified as such, suffer discrimination so intense that they are denied the opportunity to develop to the best of their abilities, and indeed, they are often subjected to such extreme neglect, prejudice or abuse that their very lives may be endangered.
International law specifically prohibits invidious discrimination that denies rights to certain classes of people because of inherent social characteristics. Major international human rights instruments to which Russia is a party, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child, all prohibit discriminatory denial or abridgment of rights on the basis of race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, birth, “or other status.”48 Discrimination against a child because of circumstances such as orphanage or abandonment, depending on the facts, could fall into the category of discrimination on the basis of social origin or even birth. In any event, such circumstances are embraced by the term “other status,” which is intended to be construed broadly as applying to qualities of human identity similar to those of race, sex, language, religion, opinion, national or social origin, property, disability or birth. The international bodies that interpret the covenants on civil and political rights and on economic, social and cultural rights have both laid particular emphasis on protection of the rights of abandoned or institutionalized children, highlighting their understanding that this circumstance should never be considered a permissible basis for discrimination. The Human Rights Committee, for example, has specifically required states to report on “the special measures of protection adopted to protect children who are abandoned or deprived of their family environment” with the understanding that economic, social and cultural measures must be taken to ensure that all children develop in such a way as to be able to enjoy their civil and political rights.49 The Committee on Economic, Social and Cultural Rights and the Committee on the Rights of theChild have likewise highlighted the state’s duty to ensure a minimal level of economic, social and cultural rights to all children, including those who are disabled or institutionalized.50
Disability, a quality frequently assumed to be the reason behind parental abandonment in Russia, has been consistently interpreted as an impermissible grounds of discrimination on the basis of “other status.” The Committee on Economic, Social and Cultural Rights, a United Nations body which interprets and evaluates state performance under the International Covenant on Economic, Social and Cultural Rights, has concluded that the prohibition of discrimination “clearly applies to discrimination on the grounds of disability.” The Human Rights Committee, the body which monitors state parties compliance with respect to the International Covenant on Civil and Political Rights, has enjoined states to provide information specifically on measures of protection for children “who are abandoned or deprived of their family environment.” The Convention on the Rights of the Child, of more recent origin than the previous two covenants and the most widely ratified human rights treaty in the world, specifically lists “disability” as a prohibited grounds of discrimination.51 For the above reasons, Human Rights Watch considers that denial or abridgment of fundamental human rights to children who have been abandoned or orphaned, and who may or may not suffer a mentalor physical disability, is a violation of the most basic tenets of international human rights law.
The Decision to Institutionalize The Child
The right to a family52
The starting point for the cycle of abuse these children face is their abandonment by their parents and entry into the closed world of institutional life. The major human rights instruments—The Universal Declaration of Human Rights, and the “international bill of rights” comprising the two covenants on civil and political rights, and economic, social and cultural rights—all recognize the family as “the natural and fundamental group unit of society” which is “entitled to protection by society and the State.”53 The Convention on the Rights of the Child specifically provides that the child has from birth “the right to know and be cared for by his or her parents,” the right to “preserve family relations as recognized by law without unlawful interference.”54 The Committee on Economic, Social and Cultural Rights has interpreted the injunction that states render assistance and protection to the family as the fundamental social unit as requiring that states do everything possible to enable disabled persons to live with their families.55 Two non-binding instruments approved by the U.N. General Assembly, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons, respectively provide that institutionalization of such persons is acceptable only where “necessary” or “indispensable” and otherwise recognizetheir right to live with their family or foster parents, who in turn are due assistance and support from the state.56
Yet instead of providing support, the norm is for state medical personnel to urge parents to abandon children showing any evidence of disability, even when the disabling condition is relatively manageable or susceptible to therapeutic treatment, such as hare lip (cleft palate) or minor cerebral palsy. Indeed, the rationale generally given by medical personnel to the parents is that parents who undertake to raise a disabled child at home risk becoming social pariahs.
Arbitrary deprivation of liberty
Although institutions may, as a last resort, substitute for the family in the case of orphaned or abandoned children, institutionalization inevitably entails an extra degree of restriction of the child’s right to liberty. International instruments recognize that institutionalization is a “least favored” option, below keeping the child with the family or placing the child in a foster family or similar environment or encouraging domestic or international adoption.57 In all Russian institutions for abandoned children, boys and girls are generally removed from the greatercommunity and normal social contact; in institutions for the care of moderately to severely disabled children, the restriction of liberty can be extreme, with children locked into rooms, tethered to furniture, or confined to bed until their transition to even more draconian institutions upon adulthood.
The right not to be arbitrarily deprived of liberty is fundamental, recognized in the Universal Declaration of Human Rights,58 the Convention on the Rights of the Child59 and the International Covenant on Civil and Political Rights.60 The right to liberty is derogable under the last treaty only in times of a public emergency declared by the state which threatens the life of the nation;61 limited financial or technical resources do not alone constitute the conditions for such an emergency.62 Detention is “arbitrary” even when sanctioned by existing law where it is imposed in a manner that is unjustified, disproportional, capricious, or without due process. Given that institutionalization may be the only means to protect the health and welfare of some children, at least during a transitional period to more humane community-based alternatives, what sort of controls are required under international law to ensure that decisions to confine the child are reasonable, proportional, and subject to periodic and independent evaluation?
With regard to the child who has been placed in institutions for the purpose of care or treatment of physical or mental health, the Convention on the Rights of the Child requires that he or she has the right to “a periodic review of the treatment provided...and all other circumstances relevant to his or her placement.” It further provides, “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any suchaction.”63 For this right to be meaningful, the child must have recourse to adults who can act independently and in the child’s interests to initiate review or challenge of a decision of confinement to any particular institution.64
The importance of an independent advocate for the child’s interest is vividly illustrated by the fact that it is generally only those institutionalized children retaining contact with their families or acquiring a friendly advocate within the system that can challenge either a diagnosis as mentally impaired or their placement within the institutional track. The directors of orphanages, while potentially advocates for improperly confined children, cannot be presumed to act independently and in the child’s best interests, given that they receive additional state subsidies for children with disabilities and thus have a direct conflict of interest with the child. Nor is there any evidence that Russian children with disabilities are able to challenge the initial decision to institutionalize them with the help of available medical or social service officials, who appear often to pressure parents into abandonment rather than seek support to enable parents to keep disabled children.
The child’s right to development
The Convention on the Rights of the Child recognizes “the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” in Article 27(1). While primary responsibility for supporting the child rests with parents, “[s]tates parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing” (emphasis added).65 The right of mentally and physically disabled persons to develop to the full extent of theirpotential is likewise well-established in international standards.66 The development of human potential in a physical, mental, spiritual and social sense embraces a wide spectrum of rights, some of which will be briefly discussed below.
The right to life
The child’s right to life and survival, recognized by all major human rights instruments,67 is basic to any notion of development. In the context of civil and political rights, it often implicates the right to be free of cruel and inhuman treatment or other forms of life-threatening persecution, and in the context of economic, social and cultural rights, it often implicates the right to health and to basics such as adequate shelter, nourishment and clothing.
The right to health
The right to “the enjoyment of the highest attainable standard” of health is recognized by both the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child.68 Both instruments provide that economic, social and cultural rights shall be realized progressively, to the maximum extent of the state’s available resources.69 However, there must be no discrimination in the allocation of health care, so that the inferior treatment of abandoned or disabled children is a clear violation of their rights. Moreover, thebodies that monitor implementation of these treaties have time and again drawn attention to the particular care due to vulnerable groups, such as children generally, and abandoned, disabled or institutionalized children in particular.70 It follows that where the state deprives individuals of liberty and assumes a custodial function, its responsibility to provide the means for basic rights such as food, clothing, medical care and physical security is at its highest.
Abandoned children in Russia’s institutions frequently receive minimal or no health care, and scant attention to their basic needs, virtually ensuring they will achieve a debased standard of physical and mental development and health. Onthe rare occasions that they are sent to hospitals for treatment, they are relegated to a lower standard of care and attention for lack of a parental or institutional advocate. Misdiagnosis of mental and physical handicaps ensures that many children will suffer debased mental and physical health. In the most severe situations, children who are bedridden are not encouraged to develop motor skills but confined to "lying down rooms," in some cases left to die.71 Moreover, these deficiencies in care and treatment are largely remediable without any extraordinary allocation of resources; training and dedication to rehabilitation and nurture for institutional staff, medical personnel and parents would alone cause an immense and immediate improvement in the situation.
The administration of drugs or commitment of children to psychiatric institutions for non-medical purposes such as restraint, discipline or punishment is a particular abuse of medical ethnics and international law that persists in Russian institutions for disabled or abandoned children.72
The right to education
The right to education is another universally-recognized right considered fundamental to the development of human personality, and the exercising of civil and political rights.73 The provisions of the Convention on the Rights of the Child are particularly detailed, requiring that the right be achieved on the basis of equal opportunity, that primary education be made compulsory and free to all, and that secondary and higher education, as well as vocational education, be encouraged.74 Of particular relevance to Russia’s institutionalized children is the Convention’s statement that education shall be directed to “[t]he development of the child’spersonality, talents and mental and physical abilities to their fullest potential” and [t]he preparation of the child for responsible life in a free society”.75
Children in standard Ministry of Education orphanages told Human Rights Watch that their schooling consisted of regular public school courses in mathematics, history, geography, Russian literature and so forth.76 But further interviews with child welfare advocates indicate that even within the public system, orphans are less likely to receive remedial assistance or private tutoring, and therefore leave school with a sub-standard education.77
Although children who are classified as only slightly retarded (debily) may receive vocational training in adolescence, such training inadequately prepares them for employment in adult life because of their reduced course of study, even when they are capable of achieving more. Indeed, this group rarely can earn high school diplomas since they generally receive only five or six years of compulsory education. Another of the concerns most often voiced during our interviews with a cross-section of Russian orphans and their caretakers was that a rigidly sequestered institutional life failed to prepare them to adapt to normal roles in society, let alone support themselves.
Even the little that these children receive is more than those who are officially labeled—accurately or inaccurately—as seriously handicapped or mentally retarded at age four. These children are deemed "ineducable," and warehoused for life in psychoneurological internaty where little or no physical or mental rehabilitation, or effort at basic socialization is attempted despite the clear requirement that these children be given education to maximize their potential.
And prior to this early triage, few infants and toddlers in Russia’s baby houses receive the adult attention, stimulation and preparation in basic social skills that lay the critical foundation for all further cognitive development and capacity for education, making “retardation” in some form all but inevitable.78
Cruel, inhuman or degrading treatment and torture
The prohibition against cruel, inhumane or degrading treatment or torture is a peremptory norm of international law, codified in numerous treaties and not subject to derogation even in times of emergency.79 The distinction between torture and other cruel, inhuman or degrading treatment or punishment is one of degree and purpose: torture is recognized as an “extreme and deliberate” form of such treatment,80 and is intentionally inflicted on a person by officials at their instigation or with their acquiescence for reasons such as punishment or “discrimination of any kind.”81 No malevolent intent is required to show perpetration of cruel, inhuman or degrading treatment; it is not a justification that such actions were taken for administrative convenience or lack of appropriate resources.
Children in Russia’s institutions for children are subjected to cruel, inhuman or degrading treatment, which in its extreme forms may be described as torture inflicted because of the pariah status that abandonment or disability carry. This sort of abuse can occur in the context of “discipline” in orphanages, or routine administrative practices such as keeping children in isolation, physical restraints, or locked in cold, windowless rooms.
The Convention on the Rights of the Child specifically commands states to take measures to protect children “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any otherperson who has the care of the child.”82 Children who become the victims of “any form of neglect, exploitation or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment” are entitled under the Convention on the Rights of the Child to “appropriate measures to promote physical and psychological recovery and social reintegration”.83 This recovery is expected to take place “in an environment which fosters the health, self-respect and dignity of the child.”84 Far from being institutions for the care, protection and treatment of abandoned children, Russian orphanages and internaty are often the locus of further abuse and neglect. The following sections describe a sampling of the treatment we have found violative of international law.
Physical Abuse
Many of the “normal” administrative practices found in institutions for mildly or severely disabled children amount to cruel, inhuman or degrading treatment. Tying children in sacks, tethering them to furniture, confining them needlessly to beds, warehousing them in barren and windowless rooms, denying them available food, keeping them in unsanitary accommodations or in inadequate clothing, denying them appropriate medical treatment—all these practices constitute cruel, inhuman and degrading treatment. Negligent practices that facilitate sexual and physical abuse of children either by other children or by staff also violate the state’s duty to protect children in its care from cruel, inhuman or degrading treatment. Commingling of older children with younger, or boys with girls without proper supervision is common in Russian institutions, and sometimes facilitates such abuse.
We received numerous credible accounts of beatings being used as punishment for institutionalized children. In extreme cases, these incidents clearly amount to torture. It is noteworthy that even international standards on juveniles detained in the justice system forbid corporal punishment, placement indark cells, closed or solitary confinement, or any other type of punishment that may compromise the physical or mental health of the child.85
With regard to discipline, the Convention on the Rights of the Child provides that states parties shall “take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.”86 That obligation is broader than the requirement that discipline not be “cruel, inhuman or degrading”; discipline must also comport with the Convention’s aim to ensure the full development by each child of his or her individual potential and respect for the human rights of others.87 Yet the abuse of discipline is frequently extreme, involving elaborate orchestrations of humiliation by institutional personnel in ways that enlist other children to participate as abusers.
A signature feature of the violence used against Russian orphans, especially in the homes for "normal" children run by the Education Ministry, is the orchestration of corporal punishment by the director through the agency of older children. Human Rights Watch is deeply alarmed by the patterns of cruelty and malicious violence that orphans described during interviews in Moscow, St. Petersburg and Novgorod region—patterns mirroring the findings of lengthy investigations into the deadly hazing and gang-rule in the Russian military and prisons.88
Psychological Abuse
Cruel, inhumane or degrading treatment may consist of verbal as well as physical abuse, or exposure to contempt and ridicule. In this sense, it is closely tied to violations of the individual’s right to privacy, honor and reputation, a rightwhich pertains to children as well as adults.89 We encountered numerous instances where institutional staff openly discussed with us, in front of the child concerned, details of parental abandonment or disability in humiliating terms; even though personnel may have meant no harm, this was undoubtably cruel, or degrading for the child concerned. Even more obvious forms of humiliation and violations of privacy were reported by children in institutions under the Ministry of Education, including staff and directors stripping children naked, publicly mocking them, or ridiculing them as homosexuals.90
Grievance procedures
Human Rights Watch finds that few children bring formal complaints of physical and psychological violence by institution staff and older children, in part because they are uninformed of their rights and because they have no access to independent sources of legal advice. Given that the perpetrator is often the director or a staff member, the children also have little faith that the system would deliver justice. Those who do file complaints fear the real risk of retribution from the staff either directly, or indirectly through the favored children. Finally, some of the children we interviewed echoed a disturbing version of the famous rationalizations used by relatives of Stalin's victims: if the orphanage staff punished or beat them, there must have been a reason for it.91 Yet the right to make complaints of ill-treatment and have them addressed is a premise of human rights law, deriving from the state’s obligation to “ensure” rights.92 Directors of institutions in theory shouldbe able to act in the interests of children with regard to such complaints, yet even if they are not implicated in the abuse, they may have a conflict of interest because of their relatively autonomous role in hiring and directing all institutional personnel. This points again to the need for children to have access to an independent advocate, separate from institutional personnel, who can intervene where necessary to protect the child’s safety and pursue cases of abuse at all levels of the relevant administrative department and justice system.
Specific standards applicable to children with mental or physical disabilities
Children with mental or physical disabilities are doubly vulnerable, and thus recognized in international law as entitled to an especially heightened degree of protection. Some of the standards applicable to this group that are particularly relevant to the abuses discussed in this report are treaty obligations of Russia; others are non-binding standards approved by the U.N. General Assembly, which are nevertheless authoritative in state’s duties with regard to the internationally recognized rights of the mentally or physically disabled discussed above.
The Convention on the Rights of the Child has explicit provisions on children with mental or physical disabilities at Article 23. It provides that states parties recognize such children “should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.” Moreover, states are obliged to “ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance” and such assistance “shall be provided free of charge, whenever possible”. Assistance “shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.” The institutional care that Russia offers children with disabilities is not merely inadequate, but is also not a cost-effective method of delivering services and support to children who could often be better served by remaining in a family setting.93
The Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons, discussed above, contain importantstandards, including the principle that such persons have the right to, wherever possible, live with their families or in foster families and participate in community life;94 the right to medical treatment, education and rehabilitation to enable them to develop to the maximum their potential and capability;95 and the right to legal safeguards against abuse, due process and the assistance of a guardian or legal representative.96
Another important standard adopted by the U.N. General Assembly in 1990 is the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (hereinafter Mental Illness Principles).97 Diagnosis of the abandoned or disabled child as imbetsil and idiot is tantamount to a determination of mental illness. These Principles, explicitly founded on the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, set out detailed standards of protection, care, treatment and medication especially relevant to children in psychoneurological internaty.
Central to this instrument is the patient’s right to be treated “in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient’s health and the need to protect the physical safety of others.”98 The mentally ill individual has the right to be treated and cared for, as far as possible, within his or her own community, and if treatment is in a mental health facility, that facility should be located near the patient’s home or family,and the patient has the right to return to the community as soon as possible.99 “Medication...shall never be administered as a punishment or for the convenience of others.”100
The Mental Illness Principles address the prejudicial effects of status as abandoned or disabled on the cycle of diagnosis and further discrimination. Under Principle 4(2), "A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status." With regard to Russia’s practice of keeping children institutionalized without further meaningful evaluation after the critical triage at age four, Principle 4(4) states “A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.”
This instrument is also very explicit on the limits of use of physical restraints and involuntary seclusion. Neither may be used except “when it is the only means available to prevent immediate or imminent harm to the patient or others” and restraint and seclusion “shall not be prolonged beyond the period which is strictly necessary for this purpose.” A personal representative of the patient must be notified of any incidents of restraint or seclusion; such incidents shall be recorded in the patient’s medical record; and patients subject to such measures shall be kept “under humane conditions and be under the care and close and regular supervision of qualified members of the staff”.101 The Mental Illness Principles are especially strong on the right of redress for abuses. Every patient and former patient has a right to make complaints, and states are obliged to provide mechanisms for monitoring compliance with the Principles, submission, investigation and resolution of complaints, and institution of disciplinary or judicial proceedings for professional misconduct or violation of a patient’s rights.102
One of the most recent standards adopted by the U.N. General Assembly is the Standard Rules on the Equalization of Opportunities for Persons with Disabilities(Equalization Rules).103 These Rules are unique for the particular emphasis they lay on involving the families of persons with physical and mental disabilities in virtually every aspect of public policy, education and treatment, and in recognizing the importance of organizations of persons with disabilities in these functions and in advocacy. Rule 1 emphasizes “awareness-raising” in the sense of public education and education specifically directed at children and teachers to dispel prejudices that impair children with disabilities in enjoying their rights, to inform on the programs and services available to them, to emphasize their equal rights, and to educate the public and professionals on the potential of persons with disabilities. The Rules also provide for equal medical care for infants and children with disabilities in relation to other members of society (Rule 2.3); equal educational opportunities (Rule 6); and the state’s duty to enable them to live with their families (Rule 9.1).
Finally, international standards of medical ethics pertaining to the detained are also pertinent to the situation of institutionalized children. The Principles of Medical Ethics relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter Principles of Medical Ethics) speak to several of the particular abuses suffered by children in Russia’s orphanages. Principle 2 enjoins health personnel from engaging “actively or passively, in acts with constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment”; and principle 5 bars the use of restraints or drugs if not based on purely medical criteria and not necessary for the health and safety or protection of the person in detention.
Russian Law
Russian law forbids the kind of discrimination that abandoned children face. Its generous entitlements—at least on paper—to children, to children in institutions, and to children with disabilities is at variance with the sordid conditions and neglect in which they often live.
The Constitution of the Russian Federation is the primary document that enshrines the ban on discrimination, which is repeated in relevant laws on education, health care, and the rights of people with disabilities. It also upholds the right of all citizens to such social and economic benefits. Article 19 states unequivocally:
(1) Everyone shall be equal before the law.
(2) The state shall guarantee the rights and freedoms of the individual and citizen without regard to gender, race, nationality, language, origins, property or official position, place of residence, religious orientation, convictions, membership in public associations and other circumstances. Any restrictions on the rights of citizens on social, racial, national, linguistic or religious grounds shall be forbidden.
Article 39 of the constitution guarantees the right to social security “in case of disease, disability, loss of a breadwinner [kormilets], for the rearing of children and other circumstances established by law”; Article 40 upholds the right to housing and mandates that the underprivileged receive housing free of charge; Article 41 upholds the right to health care free of charge in state and municipal establishments; and article 43 upholds the right to primary and secondary education that is accessible and free of charge.
Article 38 places the family “under the protection of the state.”104 The family code in Article 54 declares the right of the child to be reared in a family “to the degree that this is possible.”105 Article 123 of the family code sets out three forms of caring for abandoned or orphaned children—adoption, wardship (pod opyeku, or popechitel’stvo), or foster care (priyemnaya semya); or, in the absence of these opportunities, care in an institution. The family code does not declare affirmatively that a family environment is the preferred solution for placing and rearing abandoned children. Numerous laws and regulations, however, attempt to support rearing abandoned children or children with disabilities in the family by offering a variety of financial benefits in the form of monthly support payments, extra days off from work, and the like for families caring for children with disabilities and for foster families.
As stated above, Russian law regards education and health care as fundamental human rights, and basic laws on health care and education shouldserve to protect children with and without disabilities in orphanages from discrimination and poor care in both areas. The Fundamentals of Legislation of the Russian Federation on Health Protection (the Health Protection law)106 declares unequivocally that health protection is an inalienable right, and forbids discrimination on any grounds in the sphere of health care (Article 17).107 It specifically bans discrimination based on a person’s “illness,” and provides for non-specified sanctions for such discrimination. Article 20 of the Health Protection law requires medical care to be free of charge in state and municipal health systems. The law supports single-parent families and families with children with disabilities by opening the door to special entitlements.108
The law also specifies the rights of particular groups, including minors, servicemen, “invalids,”109 the elderly and the like. The section on the rights of minors (Article 24) enumerates various rights, such as “dispensary observation and treatment” . . . medico-social aid . . . sanitary-hygienic education . . . instruction and labor in conditions meeting their physiological needs . . .” It also establishes that parents or guardians may apply to the state to institutionalize minors with “physical or mental handicaps” at the expense of the state. The section on the rights of invalids generally enumerates the services and medicines to which they must have access free of charge. Of special relevance is Article 27(4), which allocates four extra working days per month to “one of the working parents or person acting in loco parentis for taking care of disabled children and invalids from childhood before they reach eighteen years of age.”
The Federal Law on Education110 guarantees “accessible and free” primary and secondary education (Article 5.3). Secondary professional education and higher education are also free, but admission is on a competitive basis. While orphans and “handicapped individuals” can compete, the law makes no provision for supplemental assistance such individuals may need to compete fairly. The law mandates that the government is to provide financial assistance to children for the education of children in impoverished families and those handicapped since birth (Article 40.7).111
Guarantees to education for people with mental disabilities are weaker than those set out in the U.N. Convention on the Rights of the Child (Article 23) and in the United Nations Declaration on the Rights of Mentally Retarded Persons. Article 5.6 of the education law promises that the state will “create a situation in which they will receive an education based on special pedagogical methods, which will correct their developmental problems and advance their social adaptation.” For this purpose, Article 50 .9 envisages “special educational establishments and classes.” The Declaration on the Rights of Mentally Retarded Persons emphasizes the rights of people with disabilities to development “to the maximum of their potential and capability,” and to “fullest possible social integration.”
Children (with and without disabilities) in orphanages should also benefit from Russian laws that protect them as target groups as children, abandoned children, and people with disabilities. In July, the Russian Duma sought to strengthen the protection of children’s rights by adopting the Law on Basic Guarantees of the Rights of the Child.112 Article 4 of this law declares that the aim of state policy on children is to realize their constitutional rights, by, inter alia, not permitting discrimination, and by assisting in the “physical, intellectual, mental, spiritual and moral development of the child.” Article 8 of this law mandates “minimal social standards of indicators for a child’s quality of life,” which relate to social services responsible for guaranteeing accessible free primary and high school education, free medical services, professional orientation, and the like. Notably, Article 8.3 grants children in “establishments” such as health care establishments and educational establishments113 the right to a periodic review of services—by agencies authorized by the local government—provided to them in these establishments.
The Law on Additional Guarantees for the Social Protection of Child-Orphans and Children without Parental Guardians brings together in one piece of legislation provisions for budget allocations for orphans and abandoned children and a restatement of their rights to education, medical services, housing and judicial protection that were previously enunciated in many different laws. Examples of these include the right to free professional education, to circumvent entrance examinations for professional schools where admissions are on a competitive basis,an annual cash grant to purchase educational materials, and an additional student stipend not lower than 50 percent of the monthly minimum salary.
In its preamble, the Law on Social Protection for Invalids in the Russian Federation114 defines “social protection as “guaranteeing invalids the same rights and opportunities for realizing civil, economic political, and other rights and freedoms envisaged in the . . . [C]onstitution, and also with universally recognized principles of international law. . .” as other citizens. It further defines social protection as “a system of economic, social, and legal measures by which the state guarantees invalids the conditions for overcoming or compensating for limitations on their abilities and which are directed towards creating opportunities for them to participate in society equally with other citizens.” Article 19 of the same law obliges the state to provide invalids free general education and professional training. Much of the law discusses the particular benefits and entitlements that accrue to invalids and the families or guardians who care for them.
Russian law criminalizes the “failure to fulfill obligations in child rearing”, if this is combined with cruel treatment. Under Article 156 of the Russian criminal code,115 this may apply to parents, teachers, or staff of “educational, medical, or other establishment responsible for the care of a minor.” Offenders are punished by a fine from fifteen to one hundred minimum monthly salaries or up to two years of imprisonment.
APPENDIX D. FLOW CHART: LIFE OF AN ORPHAN IN THE RUSSIAN FEDERATION 1998
48 See Convention on the Rights of the Child (hereinafter CRC) Article 2(1); International Covenant on Civil and Political Rights (hereinafter ICCPR) Article 2(1); International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR) Article 2(2).
49 See Human Rights Committee, General Comment 17 on Article 24 of the International Covenant on Civil and Political Rights (Thirty-fifth session, 1985).
50 See e.g. CESCR observations on the third periodic report of Ukraine1995, paragraph 21, that “the fulfilment of the right to education involves an obligation for the government to provide free primary education for all, including children with disabilities and children assigned to homes or institutions;” CRC observations on Peru’s initial report, 1993, paragraph 10, expressing concern “that stringent budgetary measures .... have adversely affected the rights of the child in Peru. Vulnerable groups of children, including ... orphans, disabled children, children living in poverty and children living in institutions are particularly disadvantaged in their access to adequate health and educational facilities and are the primary victims of various forms of exploitation.... ... [T]he long-term considerations embodied in the structural adjustment policies have not adequately taken into account the specific needs of the children....”
U.N. Convention on the Rights of the Child. GA res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989). Entered into force September 2, 1990. Ratified by the USSR June 13, 1990. Entered into force in Russia, legal successor to the USSR, September 15, 1990.
52 ICESCR, (Articles 12, 13, 6, respectively). Article 2 (2) further stipulates that these rights “will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national of social origin, property, birth or other status” (emphasis added).
53 Universal Declaration of Human Rights (hereinafter UDHR) Article 16(3); ICCPR Article 23(1), ICESCR Article 10(1).
55 General comment 5, para. 30.
56 Declaration on the Rights of Mentally Retarded Persons, G.A. resolution 2856 (XXVI) of December 20, 1971, paragraph 4 provides:
Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lives should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life.
Declaration on the Rights of Disabled Persons, G.A. Resolution 3477 (XXX) of December 9, 1975, paragraph 9, similarly provides:
Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. (....) If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age.
The meanings of terms such as “necessary” and “indispensable” evolve with advancements in medical and social science. The trend since these declarations were adopted has been to recognize fewer and fewer situations where separation from the community and institutionalization is considered “necessary” or “indispensable” for the welfare of the mentally or physically disabled.
57 See, e.g., CRC Article 20, providing that a child who is temporarily or permanently deprived of a family environment is entitled to alternative care, including “foster placement, kalafah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children” (emphasis added); see also, supra, footnotes 6-9.
62 U.N. Economic and Social Council, Commission on Human Rights; study of the Implications for Human Rights of Recent Developments Concerning Situations Known as States of Siege or Emergency, U.N. Doc. E/CN.4/Sub.2/1982/15.
64 N.B. The Declaration on the Rights of Disabled Persons provides that such persons “shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property” (paragraph 11) while the Declaration on the Rights of the Mentally Retarded provides a right for such persons “to a qualified guardian when this is required to protect his personal well-being and interests” (paragraph 5).
65 Article 27(3) emphasis added.
66 The Declaration on the Rights of Mentally Retarded Persons, paragraph 2, provides:
The mentally retarded person has a right to proper medical care and physical therapy and to such education, training, rehabilitation and guidance as will enable him to develop his ability and maximum potential.
The Declaration on the Rights of Disabled Persons, paragraph 6, provides:
Disabled persons have the right to medical, psychological and functional treatment, including prosthetic and orthetic appliances, to medical and social rehabilitation, education, vocational training and rehabilitation, aid, counseling, placement services and other services which will enable them to develop their capabilities and skills to the maximum and will hasten the processes of their social integration or reintegration.
67 See, e.g. ICCPR Article 6(1), CRC Article 6, ICESCR Article 12 (discussing in context of right to health, reduction in infant mortality, and healthy development of child).
68 ICESCR Article 12(1) (specifying “physical and mental health”), CRC Article 24(1) (specifying “health”).
69 CRC Article 4, ICESCR Article 2(1). N.b. “available resources” includes foreign aid in all its forms.
70 CESCR concluding comments on Nicaragua’s initial report, 1994: “14. The Committee wishes to bring to the attention of the State party the need to ensure that structural adjustment programmes are so formulated and implemented as to provide adequate safety nets for the vulnerable sectors of society in order to avoid a deterioration of the enjoyment of the economic, social and cultural rights for which the Covenant provides protection.”
CRC concluding observations on Peru’s initial report, 1993: “19. The Committee urges the Government of Peru to take all the necessary steps to minimize the negative impact of the structural adjustment policies on the situation of children. The authorities should ... undertake all appropriate measures to the maximum extent of their available resources to ensure that sufficient resources are allocated to children. In that regard, particular attention should be paid to the protection of children living in areas affected by internal violence, displaced children, disabled children, children living in poverty and children living in institutions....”
CRC concluding observations on the Russian Federation’s initial report, 1993: “9. The Committee is concerned that society is not sufficiently sensitive to the needs and situation of children from particularly vulnerable and disadvantaged groups, such as the disabled, in the light of article 2 of the Convention.
11. ... [T]he Committee is concerned about the practice of the institutionalization in boarding schools of children who are deprived of a family environment, particularly in cases of abandonment or where children are orphaned.”
In this regard it is notable that U.N. standards for children institutionalized in a state’s juvenile justice system are entitled to very specific rights relating to health care. The U.N. Rules for the Protection of Juveniles Deprived of their Liberty (hereinafter Rules for the Protection of Juveniles) specify that "[e]very juvenile shall receive adequate medical care, both preventive and remedial, including dental, ophthalmological and mental health care, as well as pharmaceutical products and special diets as medically indicated" (Rule 49) and that “[e]very juvenile who is ill, who complains of illness or who demonstrates symptoms of physical or mental difficulties, should be examined promptly by a medical doctor” (Rule 51). U.N. Rules for the Protection of Juveniles Deprived of their Liberty (U.N. Rules) GA Res 45/113. annex, 45 U.N. GAOR Supp. (No.49A at 205), U.N. Doc. A/45/49 (1990).
71 Human Rights Watch interview, Sarah Philips, February 23, 1998; interview, Natasha Fairweather, journalist, February 20, 1998.
72 See below, discussion of the Principles for the Protection of Persons with Medical Handicaps, Principle 10 (Medication).
73 See UDHR Article 26, ICESCR Article 13, Human Rights Committee, General Comment 17 on Article 24, paragraph 3 (“In the cultural field, every possible measures should be taken to...provide [children] with a level of education that will enable them to enjoy the rights recognized in the Covenant, particularly the right to freedom of opinion and expression.”).
76 Human Rights Watch interview, Moscow, February 20, 1998.
77 Human Rights Watch interview, juvenile rights lawyer, October 14, 1998.
78 Studies in the United States and Western Europe have shown that such mental, physical and emotional retardation is a common consequence of keeping very young children of all capabilities in large-scale institutions where they are unlikely to receive the type of intensive, one-on-one personal attention that they would normally get in a family setting See Deborah A. Frank, M.D., Perri Klass, M.D., Felton Earls, M.D. and LeonEisenberg, M.D. “Infants and Young Children in Orphanages: One View from Pediatrics and Child Psychiatry,” in Pediatrics, Vol. 97 No. 4 (April 4, 1996). With regard to cognitive development, these authors conclude “unless children are placed with families before 4 years of age, they remain at a cognitive disadvantage compared with biologic or foster home-reared children of the same social class.” Id. at 572.
79 See UDHR Article 5; ICCPR Articles 7 and 4(2) (on non-derogability); CRC Article 37(a); and generally the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [hereinafter “Convention against Torture”].
80 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly resolution 3452 (XXX) of December 9, 1975, Article 1(2).
81 Convention against Torture, Article 1(1).
85 See, e.g. U.N. Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) GA Res. 40/33, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985), Rule 17.3; U.N. Rules for the Protection of Juveniles Deprived of their Liberty (Rules for the Protection of Juveniles) Rules 63-64.
88 Kathleen Hunt, “Mothers and Sons,” The Los Angeles Times Sunday Magazine, April 12, 1992; Kathleen Hunt, feature report on deadly hazing, National Public Radio’s “All Things Considered,” April 19, 1992; Sergei A. Kovalev, Human Rights Ombudsman of the Russian Federation, report on violence in the Russian military, 1994, 1995.
89 See UDHR Article 12, ICCPR Article 17 and CRC Article 16.
90 Human Rights Watch interviews, orphans in St. Petersburg, February 27, 1998.
91 Human Rights Watch interview, adolescent orphan, St. Petersburg, February 27, 1998.
92 See, e.g. UDHR Article 8 (”Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or law”); ICCPR Article 2(1) (“Each State Party...undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...); CRC Article 2 (“States Parties shall respect and ensure the rights set forth in the present Convention to each child...); CRC Article 12(2) (“...the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child...”); CRC Article 19(states shall take all appropriate measures to protect the child “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation” and suchprotective measures shall include “reporting, referral, investigation...and, as appropriate, for judicial involvement.”)
93 Human Rights Watch interview, Dr. Anatoly Severny, February 12, 1998.
94 Declaration on the Rights of Mentally Retarded Persons, paragraph 4; Declaration on the Rights of Disabled Persons, paragraph 9.
95 Declaration on the Rights of Mentally Retarded Persons, paragraph 2; Declaration on the Rights of Disabled Persons, paragraph 6.
96 Declaration on the Rights of Mentally Retarded Persons, paragraphs 5, 6 and 7; Declaration on the Rights of Disabled Persons, paragraphs 4, 10 and 11.
97 Principles for the protection of persons with mental illness and the improvement of mental health care, GA Res. 46/119 December 17, 1991 [hereinafter “Mental Illness Principles”]. For an extensive discussion of the origin and scope of these Principles, see Eric Rosenthal and Leonard S. Rubenstein, International Human Rights Advocacy under the “Principles for the Protection of Persons with Mental Illness,” International Journal of Law and Psychiatry, vol. 16, pp. 257-300 (1993).
98 Mental Illness Principles, Principle 9(1).
99 Mental Illness Principles, Principle 7.
102 Ibid., Principles 21 and 22.
103 Adopted by the General Assembly 85th plenary meeting, December 20, 1993 A/RES/48/96.
104 Article 38 reads in full: “Motherhood and childhood, and the family shall be under the protection of the state. Care for children and their upbringing shall be equally the right and the obligation of parents. Able-bodied children who have reached the age of eighteen shall care for parents who are not able-bodied.”
105 It also states that the child has the right to live with his or her parents if this does not contradict the interests of the child. The Family Code of the Russian Federation entered into force on March 1, 1996.
106 Its full title is Fundamentals of Legislation of the Russian Federation on Health Protection No. 5487, adopted July 22, 1993 with Additions and Amendments of December 24, 1993 and March 2, 1998.
Citizens of the Russian Federation shall enjoy the inalienable right to health protection. This right shall be guaranteed by environmental protection, the creation of favorable conditions for everyday life, rest, education and instruction of individuals, the production and sale of good-quality foodstuffs , and also by the provision of medico-social aid accessible to the population [emphasis added].
The state shall provide its citizens with health protection, regardless of sex, race, nationality, language, social background, official status, place of residence, religion, beliefs, membership of public associations or other circumstances [emphasis added].
The state shall guarantee to its citizens protection against any form of discrimination based on disease. Persons guilty of violating this provision shall bear responsibility as stipulated by law.
108 Article 20 (4) reads: “Families with children (with preference for incomplete families rearing disabled children and children without the care of parents ) shall have the right to health protection privileges established by Russian Federation legislation, the Republics within the Federation. . . .” Commentary to Article 20 refers to a Ministry of Labor and Russian Insurance Supervision explanation clarifying how such parents may obtain four additional paid days off per month to care for children with disabilities.
109 The term “invalid” in Russian parlance can signify a range of things, from a person with a serious high-blood pressure condition, to a person with a serious physical disability, such as blindness, or mental disability. There are three levels of “invalid” status, to which accrue numerous and various entitlements, from discounts on electricity bills to monthly pensions from the state.
110 Adopted in 1996. Available in Vsye Nachinaetsya so Shkoly [Everything Begins with the School] (Moscow: Biblioteka “Rossiyskoi Gazety” 1998 ), pp. 6-51.
111 Government regulations and normative acts provide for assistance to families in the education of children with disabilities. For example, a July 1996 resolution mandates the government to cover the cost of educating at home a child with disabilities, should such costs “surpass the norm.” This applies to children who “for reasons of the state of their health, either temporarily or permanently cannot attend general education establishments . ...” It is unclear to which empirical circumstances this applies. Resolution of the Government of the Russian Federation No. 861 on Confirming Ways for Rearing and Educating Children with Disabilities at Home and in Nonstate Educational Establishments. Adopted July 18, 1996.
112 Adopted July 3, 1998. Published in Rossiyskaya gazeta (Moscow), August 5, 1998.
113 Article 8.3 does not enumerate per se children’s homes, internaty, or psycho-neurological internaty, however these would be assumed under 8.3's general reference to “and other establishments.”
115 Criminal Code of the Russian Federation, adopted May 24, 1996, entered into force January 1, 1997.