Stanev v. Bulgaria: The Grand Chamber’s Cautionary Approach to Expanding Protection of the Rights of Persons with Psycho-social Disabilities
This post is written by Lycette Nelson, Litigation Director, Mental Disability Advocacy Center*
The Grand Chamber’s recent judgment in Stanev v. Bulgaria has enormous significance for the rights of thousands of persons with psycho-social disabilities and intellectual disabilities throughout Europe. In finding violations of Articles 3, 5§1, 5§4, 5§5, 6§1, and 13, the Grand Chamber opened the possibility for persons in social care institutions to challenge both their deprivation of liberty and the inhuman and degrading conditions in institutions, and reaffirmed its jurisprudence regarding the right of persons whose legal capacity has been restricted to have access to a court to challenge their loss of rights. However, the Court’s narrowing of its holdings and failure to examine the applicant’s claim under Article 8 limit the scope of the judgment. The D.D. v. Lithuania judgment, coming immediately upon the heels of Stanev, brings the limitations of Stanev into focus. Read together, the two cases raise questions about the Court’s willingness to broaden its approach to protection of the rights of persons with psycho-social and intellectual disabilities and to go beyond acknowledging the Convention on the Rights of Persons with Disabilities (CRPD) as the international standard for the rights of persons with disabilities to engage substantively with the paradigm shift the CRPD embodies.
Mr. Stanev was placed under partial guardianship in 2000. His first guardian, a municipal employee who never met the applicant, applied for social assistance for him and in 2002 had him placed in the Pastra Home, social care institution in a remote mountain village far from his home. On a monitoring visit to the Pastra Home in 2003, the Committee for the Prevention of Torture (CPT) found that the sanitary conditions, lack of heating and inadequate food in the Pastra Home amounted to inhuman and degrading treatment; although the CPT called for the immediate closure of the Pastra Home, repairs were only made in 2009. Mr. Stanev attempted several times to initiate a review of the restriction on his legal capacity, but was barred from bringing a proceeding without the consent of his guardian (who, once he was at the institution, was replaced by the director of the institution) and so never had the restrictions on his legal capacity reviewed by a court. D.D. was similarly placed under guardianship and placed by her guardian in a social care institution (whose director subsequently became her guardian).
Unlike the procedures for admission to psychiatric hospitals contained in mental health or health care acts, admission to social care institutions in Central and Eastern Europe is often very informal and not subject to any procedures or safeguards (for a detailed analysis of this difference, see Interights’ third-party intervention in the Stanev case at http://www.interights.org/document/131/index.html. ). If a guardian places the person for whom he is the guardian in such an institution and signs a contract with the social care institution, this is considered “voluntary” regardless of whether the person consents to the placement. In Shtukaturov v. Russia the Court held that placement of a person in a psychiatric hospital by a guardian with no possibility to challenge the deprivation of liberty violated Articles 5§ 1 and 5§4. Stanev was the first opportunity for the Court to review the applicability of Article 5 to the situation of a person placed by a guardian in a social care institution.
The Grand Chamber is very careful throughout the Stanev judgment to limit its holdings to the specific facts of the case. Its analysis of the applicant’s claim under Article 5 § 1 begins with the observation that “it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a ‘deprivation of liberty’ within the meaning of Article 5 § 1.” (Stanev, para. 121) While every case requires examination of the individual facts to determine whether there has been a violation, the Grand Chamber’s explicit limitation seems to deny the systemic nature of involuntary placement of persons with psycho-social and intellectual disabilities in institutions and of the inter-relationship between guardianship and institutionalisation, even though the facts before it clearly arose from systemic practices. The Court concludes that in the particular circumstances of the case, which include the involvement of government authorities in the placement, the restrictive rules regarding absences from the institution, the duration of the placement and the applicant’s lack of consent to the measure, that there was a deprivation of liberty within the meaning of Article 5 § 1. On facts that were somewhat different than Stanev, the Court in D.D. also found that Article 5 § 1 was applicable.
Having found that Article 5 was applicable in both cases, however, the Grand Chamber found a violation of Article 5 § 1(e) while the D.D. court did not. In examining the applicant’s claim under its jurisprudence on compulsory confinement of persons “of unsound mind” and applying the criteria it developed in Winterwerp v. Netherlands, the Grand Chamber opened an avenue of argument that was unnecessary given that it had already found that the placement was unlawful even under Bulgarian law and introduced criteria for placement in a social care institution that justify such placement based on medical and social need. Applying the Winterwerp criteria in Stanev, the Grand Chamber found that it had not been reliably shown that the applicant had a mental disorder of a kind or degree warranting compulsory confinement because there was no recent medical expertise to support the need for deprivation of liberty and no medical expertise was required under domestic law for the initial placement or the continued detention. The D.D. court on the other hand, found that D.D.’s deprivation of liberty was lawful under the circumstances because it was supported by a medical report that showed the applicant suffered from a chronic mental illness and a social worker’s report that said she could not live on her own. The Court concluded that because her father could not “manage” her, there was no alternative but placement in an institution. The Court did not examine at all whether Lithuania provided alternative forms of residence and care that did not restrict the liberty of persons with psycho-social disabilities or whether it was obliged to provide such alternatives in order not to violate the rights of persons with disabilities. Rather, the Court seemed to accept without question that if institutional care is all that is available, there is no need to consider whether the person could, or has the right to, live in a more independent, community setting with appropriate supports.
Even as applied to admission to a psychiatric hospital for acute care, the Winterwerp criteria are not consistent with the CRPD. Under Article 14, the existence of a disability shall in no case justify deprivation of liberty (emphasis added). Further, Article 14 of the CRPD requires that States parties ensure that persons with disabilities enjoy liberty and security of the person on an equal basis with others. Given the establishment of a mental disorder as a criterion for deprivation of liberty is inconsistent with current international standards (which the Court has recognized as such), it is troubling that the Grand Chamber would consider the issue of long-term institutionalisation under the same criteria it uses for deprivation of liberty of a person of unsound mind for psychiatric treatment and extend those criteria to cover a completely different situation.
In addition to failing to take Article 14 of the CRPD into consideration in it analysis, the Grand Chamber also failed to acknowledge the right to live in the community under Article 19 of the CRPD as a separate right to be considered in its analysis of institutional placement. Under Article 19,
“States Parties to the convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
- Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement.”
Article 19(b) requires States Parties to provide the supports necessary for persons with disabilities to enjoy this right. While the provision of supports may be subject to progressive realization, the right to have choices equal to others is not.
The Grand Chamber had the opportunity to examine the interface of the right to live in the community under the CRPD with its Article 8 jurisprudence. Mr. Stanev had asked the Court to find violations of Article 8 related both to his placement under guardianship and to his institutionalization. Instead, the majority of the Court held that, given its findings of violations of Articles 3 and 5, there was no need to examine the issues under Article 8 separately. By doing so, it left numerous issues related to the infringement of rights of persons with disabilities resulting from institutionalization unaddressed. Four judges in two separate dissenting opinions expressed their strong disagreement with this.
Stanev advances the protection of the rights of person with psycho-social disabilities and intellectual disabilities by establishing that placement in a social care institution constitutes deprivation of liberty and requires judicial review. It also puts States on notice that allowing conditions that constitute inhuman and degrading conditions to exist and continue in institutions for persons with psycho-social and intellectual disabilities violates Article 3. However, in refusing to examine the issues of institutionalisation head-on and to consider the right to live in the community within its Article 8 jurisprudence, the Grand Chamber avoided the larger question of States’ obligations to ensure that persons with psycho-social disabilities and intellectual disabilities have choices equal to others in all aspects of their lives.
*Contributor bio: Lycette Nelson has been the Litigation Director of the Mental Disability Advocacy Center since July 2010. Lycette Nelson is an attorney admitted to practice in New York State who has represented persons with psycho-social disabilities in institutional settings since 2003. The Mental Disability Advocacy Center represented the applicant in Stanev v. Bulgaria.