This guest post was written by Constantin Cojocariu, human rights lawyer
Recently, I got involved in a case pending before the European Court of Human Rights – N. v. Romania – on behalf of a man diagnosed with schizophrenia, who claimed that his detention for 14 years in high security psychiatric hospitals has been unlawful. I was surprised to notice that although he claimed breaches of Articles 5§1 and 6, the case had only been communicated under Article 8, and that the Court effectively requested the Romanian Government to place him under guardianship so that he may be represented in proceedings before it. Far from being exceptional, this case is part of a broader trend in disability cases, whereby the Court increasingly focuses on issues of process instead of offering substantive guidance, with the result that entrenched abuse and discrimination remain unchallenged. In this post, I examine critically several cases against Romania, mostly decided already, but also pending, including N. v. Romania, that in my view depart from well-established case law and which establish differential standards of scrutiny for persons with disabilities.
Fundamentally reframing the applicants’ claims
B. v. Romania (No. 2) involved a woman diagnosed with a “severe mental disorder” who was committed involuntarily to a psychiatric hospital on several occasions and whose children had been placed into state care. Although the applicant specifically claimed a breach of Article 5§1, the Court decided that it was more appropriate to examine her spells in detention from the perspective of Article 8. It then found a procedural violation of that Article in that the applicant lacked a legal representative at the time of her hospitalization in contradiction with national provisions on the “legal protection” of people with mental health problems. The same reasoning applied to the placement of the applicant’s children in state care, leading to a separate violation of Article 8. In another case, Gheorghe Predescu v. Romania, the applicant, a prisoner with mental health problems, complained of ill treatment. The Court disregarded his claim, which it apparently took as a symptom of mental illness. Instead, it found a violation of Article 3 apparently on account of the authorities’ failure to provide the applicant with “effective” psychiatric treatment, which he had not in fact asked for. Since B. v. Romania (No. 2) was decided in 2013, the Court notified the Romanian Government of at least two additional psychiatric detention cases that suggest intent to apply a similar approach – N. v Romania and Ivașcu v. Romania. Both cases were communicated under Article 8, as opposed to Article 5 and pinpointed as problematic the failure to appoint a representative in breach of national law, relying explicitly on B. (No. 2).
The approach in B. v. Romania (No. 2) is at variance with the Court’s jurisprudence on psychiatric detention more broadly. In particular, any deprivation of liberty has to be justified by reference to the closed list of grounds provided for under Article 5§1, including “unsoundness of mind”, interpreted narrowly. The Court’s approach dilutes impermissibly the guarantees against unlawful deprivation of liberty, considering also that Article 8 contains a much broader range of public interest restrictions justifying interference with the right in question. On a different level of inquiry, the B. (no. 2) jurisprudence moves further away from the CRPD, which questions the validity of psychiatric detention as envisaged under Article 5§1(e) per se.
Endorsing problematic national practices
The basis for the Court’s holding in B (No. 2) is deeply problematic, seeing that in effect the Court suggested that Article 8 required the applicant’s placement under plenary guardianship. It is telling in that respect that the Romanian Government is looking to initiate proceedings with a view to applying a measure of protection to the benefit of the applicant in B. v. Romania (No. 2) as part of its obligations to implement that judgment. As discussed above, this can only mean the applicant’s placement under plenary guardianship, a paradoxical outcome after proceedings in which she nominally prevailed.
The Court effectively imported into its jurisprudence national provisions on legal capacity, apparently without regard to the fact that they are in breach of its own jurisprudence and of the CRPD. Examining in detail the opaque and fluid provisions of Romanian law on the “legal protection” of persons with mental disabilities goes beyond the scope of this article. It suffices to state at this stage that people perceived as lacking mental capacity because of mental illness are only eligible for legal protection in the form of plenary guardianship, whether “tutorship” (“tutela”, a more permanent arrangement) or “special curatorship” (“curatela speciala”, an interim measure). The Court declared guardianship systems of the type practiced in Romania to be in breach of the Convention because they are inflexible (see for example Shtukaturov v. Russia, §93) and/or because they often facilitate abuse (see for example Stanev v. Bulgaria). Plenary guardianship is also in direct breach of Article 12 of the CRPD, which privileges measures that support individuals take decisions on their own to the detriment of those that displace legal capacity and grant decision-making powers to third parties.
In the already mentioned Gheorghe Predescu v. Romania the Court criticised the authorities for the fact that the applicant was discharged every time he was hospitalized, “because he refused to acknowledge his illness or to be treated.” In addition, the authorities’ conclusion that “he could look after himself” appeared to be unwarranted without an “expert evaluation” of his state of health. It is very hard to read the Court’s terse and somewhat confusing reasoning in any way other than that it effectively mandates involuntary psychiatric treatment, despite the fact that it had not been invested with such a request and while lacking the necessary medical expertise. This outcome is in direct contradiction with the Court’s jurisprudence on consent to medical treatment (see for example Plesó v. Hungary, §67), and of the provisions of the CRPD on equal legal capacity and freedom from non-consensual medical treatment.
The difficult issue of the representation of applicants with disabilities in proceedings before the Court
The B. v. Romania (No. 2) jurisprudence has unfortunate ramifications at a different level. The Court operates a mandatory representation rule once a case is communicated to the State Party, which raises significant issues in disability cases where applicants may not be able to secure the assistance of a lawyer without assistance from the state. The Court’s approach to this problem has been inconsistent, raising doubts regarding the access of people with mental health problems to its proceedings.
In some cases against Romania, the Court pleaded with the national bar associations to provide applicants with legal representation. As the bar associations often remained unresponsive and the applicants were unable to defend themselves, cases raising arguable claims of serious human rights violations were struck out and never considered on the merits (see for example Dragusin v Romania, App. no. 36815/02, struck out on 11 October 2011 and Tatu v. Romania, App. no. 1282/05, struck out on 13 March 2012). In most cases mentioned in this article, the Court proceeded to an examination on the merits, even if the applicants were not represented. The Court was thus deprived of the benefits of adversarial proceedings on delicate points of law and fact, which in turn may have led to misconceived approaches and outcomes as discussed in this post.
Alternatively, the Court occasionally used the procedural tools at its disposal to force the State to provide the applicant with representation. In X. v. Croatia, a child custody case, the Court instructed the state under Rule 39 to appoint a lawyer to represent an applicant with intellectual disabilities. On the other hand, in N. v Romania, the Court took the alarming step of asking the authorities to place the applicant under guardianship, under Rule 54§2 of its Rules, seeing that the applicant lacked litigation capacity, he has been detained in a psychiatric hospital, and relying on B v Romania (No. 2). The Romanian authorities duly complied and initiated proceedings for placement under plenary guardianship (“punere sub interdictie”), which are currently pending at the national level and are very likely to be successful.
The developments described in this post are very worrying. The Court declines to adjudicate very serious claims of human rights violations, including the right to liberty, the right to fair trial or the right to family life. In doing so, it creates jurisprudence that erodes the fundamental guarantees against unlawful deprivation of liberty. By focusing instead on the allegedly protective institution of guardianship, the Court essentially repatriates these cases to the national level, where the violations claimed happened in the first place. Once a guardian is appointed as a result of proceedings before the Court, they are entitled to perpetuate the very abuse that the applicants claimed. By being placed under guardianship, or made subject to involuntary medical treatment, people with disabilities are victimised for the simple fact of exercising their right to individual petition.
Furthermore, by declining to hear claims that are at the very least arguable, and focusing on the absence of a guardian, the Court implicitly reinforces widespread stereotypes regarding the lack of credibility of persons with mental disabilities. These judgments communicate that the only way in which such a person may validly formulate claims is through a representative, duly appointed in accordance with national law. The Court applies a double standard depending on whether applicants with mental disabilities are represented or not. Whereas in the latter cases, the Court has usually found substantive violations, in the former the applicants can hope at most in a procedural violation of Article 8 and the spectre of placement under plenary guardianship, amounting to “civil death.”
Finally, the Court breathes new life into out-dated institutions that disability advocates set out to dismantle: guardianship, full deprivation of capacity, coerced treatment, and even institutionalisation. It is not enough – as before – that states have a wide margin of appreciation in this area. This line of jurisprudence effectively suggests that states have a positive obligation to place people with disabilities under guardianship, ostensibly in order to protect them. To the extent that this relatively discreet, but consistent and coherent, line of jurisprudence signals a new paradigm in the Court’s case-law, it would move it further away from the position expounded in the CRPD, widely recognised to be the latest and most authoritative articulation of human rights as applied to people with disabilities.
 Human rights lawyer litigating disability and transgender rights before the European Court of Human Rights, including more recently two disability cases before the Grand Chamber Gherghina v. Romania and Centre for Legal Resources on behalf of Campeanu v. Romania.
 The judgment of the Court in the case K.P. and Others v. the United Kingdom, concerning the nature of the Official Solicitor’s involvement in a child custody case on behalf of a woman with intellectual disabilities was met with similar criticism – see Lucy Series, Legal Capacity and Participation in Litigation: Recent Developments in the European Court of Human Rights in Lisa Waddington, Gerard Quinn, Eillionoir Flynn (eds.), European Yearbook of Disability Law, Vol. 5 (forthcoming), pp. 103-128.