January 04, 2011
In the most recent round of judgments, squeezed in just before the festive season, are two interesting cases concerning the detention of persons with a disability: Jasinskis v. Latvia and Raffray Taddei v. France. These two cases are exemplary of many others, in which people with a disability are held in detention in appalling conditions. However, the cases get a bitter twist because the national authorities try to lay the blame on the detainees themselves. The Strasbourg Court does a good job protecting the human rights of the applicants.
The facts that constitute these cases are widely different. The first case concerns Valdis Jasinskis, who was deaf and mute since birth. One night in 2005, he went to a bar with some friends and then to a student party. Outside the party, he fell from some steps and lost consciousness. The police and an ambulance were called. The police arrived first, decided not to wait for the ambulance and – assuming Jasinskis was drunk – took him to a “sobering-up cell”. Before leaving they were told that Jasinskis was deaf and mute, but, nevertheless, they took his notepad that he used to communicate with away from him. At the police station no medical examination was carried out. Jasinskis knocked on the walls, but the police ignored him. Completely powerless, he had no way to communicate his needs. Jasinskis fell asleep and could not be woken after 7 hours. After another seven hours, the police finally called an ambulance which allegedly refused to come as they assumed Jasinskis was just suffering from drunkenness. At the insistence of his father, Jasinskis was finally brought to a hospital after spending 16 hours in detention. There, his situation was diagnosed as very serious. Jasinskis died a few hours later. The post mortem indicated that the cause of death was multiple injuries to the head and brain, including fractures to the skull and cerebral oedema.
The second case concerns a woman, Virginie Raffray Taddei, who is in prison for embezzlement, forgery and theft. She is suffering from a number of interrelated conditions, including serious asthma and chronic respiratory insufficiency, anorexia and Munchausen’s syndrome (a psychiatric disorder characterised by the need to simulate an illness). Notwithstanding several reports by medical experts that Taddei’s condition needs hospital treatment in a special environment, the French authorities did not provide her with treatment for anorexia and Munchhausen’s syndrome. According to the latest indicators, it has come to the point that the applicant, standing 1.64m tall, weighs only 30/31 kilos.
In both cases, the Court shows that it is well aware of the particular difficulties that persons with a disability face and that their needs require special accommodation. The Court is quite clear in Jasinskins:
“Persons in custody are in a vulnerable position and the authorities are under a duty to protect them. Where the authorities decide to place and maintain in detention a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to his special needs resulting from his disability.” (par. 59) Both Latvia and France have failed this test, resulting in a violation of art. 2 (right to life) and art. 3 (prohibition of inhuman or degrading treatment) respectively.
Bad will and the stereotype of the female liar
What these cases have in common is the astounding manner in which the French and Latvian authorities try to waive responsibility by claiming that all the ills that befell Jasinskis and Taddei were of their own making. In the Latvian case, the police assumed that Jasinskis was drunk and that he needed no medical attention and then justified their continued negligence with the allegation that Jasinskis “did not want to wake up” (par. 14). As if he had any choice.
Especially the case of Ms Raffray Taddei is in this respect worth of a closer look. In its submission to the Court France argues that the facts concerning the applicant’s health issues should be put in the light of Taddei’s personality: “Le Gouvernement explique que la crédibilité des allégations de maladie graves doit être appréciée au regard de l’attitude non coopérative de la requérante pour se faire soigner ou présenter les pièces médicales, et de sa personnalité. Les flous entretenus par la requérante seraient également, de l’avis du Gouvernement, à rapprocher de son passé judiciaire (condamnations qui ont en commun d’avoir procédé à des modifications intentionnelles de la réalité : abus de confiance, escroquerie, usage de faux en écriture). Une telle personnalité doit être cernée pour examiner la véracité des allégations de maladie grave, jamais avérées ni étayées par quelque document probant.” (par. 48) Her personality, her health problems and her crimes are all of one piece. Basically, the government says Taddei is not a person with serious health issues, but a liar.
Now this rings more than one bell. “La donna è mobile”, the mothers in the judgment of Solomon, Cassandra, Jezebel . . . the stereotype of the female liar is older than the French justice system itself. Combine this gender stereotype with real mental and physical health issues and the result is that women with mental and/or physical health issues run grave risks in detention, as their situation will simply not be taken serious. The Court lifts the applicant out of this situation by insisting on appropriate treatment. Well done.