April 25, 2022
By Naomi Blomme
In the case of N. v. Romania No. 2 the European Court of Human Rights (ECtHR or the Court) found Romania to be in breach of its obligations under the Convention in respect of N. for the second time. Both cases relate to the treatment of mentally disabled persons. The first case concerned the lawfulness of the placement of N. (applicant) in psychiatric hospitals for more than fifteen years. The Court found a violation of Articles 5, §1, (e) and 4 of the Convention (N. v. Romania). Almost three years later, on the 16th of November 2021, the ECtHR rendered a second judgement. This time Romania was condemned for a violation of Article 8 of the Convention concerning the proceedings on the deprivation of legal capacity (N. v. Romania No. 2). Both cases were brought before the Court by the same applicant.
N. was born in 1959 and lives in Bucharest. In 2001 the police of Bucharest initiated criminal proceedings against him. He was charged with incest and sexual corruption of his two under-age daughters. The applicant was questioned by a prosecutor, who ordered the applicant’s provisional detention in a psychiatric hospital with a view to conducting a medical examination to assess his capacity for discernment.
After a preliminary investigation, and in line with the forensic medical report, the prosecution ordered the closing of the criminal proceedings and requested the District Court to uphold the medical detention order, which it did by a decision of 22 April 2002. The applicant did not attend the hearing, nor was he represented by a lawyer in court. After a complaint by N. to the ECtHR, the Court ruled that there had been a violation of Article 5 of the Convention.
Following this first complaint of N to the ECtHR the psychiatric hospital lodged an action with the District Court seeking to divest the applicant of his legal capacity and to appoint a legal guardian for him.
Initially a guardian ad litem (a guardian appointed by the Court to watch after the interests of a party that is suspected of being legally incompetent in one specific case) was appointed by the Court to represent the applicant’s interests in, on the one hand the proceeding concerning legal guardianship and, on the other hand in the procedure before the ECtHR. Two years later the District Court effectively divested the applicant of his legal capacity, after he had been examined by a psychiatric commission of the County Forensic Medical Service, which confirmed the diagnosis of paranoid schizophrenia. The psychiatric commission declared the applicant psychologically incapable of managing himself and of taking decisions in an informed and predictable manner concerning his civil obligations and rights. Due to the lack of family members an employee of the Social Welfare Department, located in the area of the psychiatric hospital, was designated as his legal guardian.
The applicant appealed against the decision of the District Court, arguing that the decision was taken with disregard for his procedural rights. Relying on the Romanian Civil Code, the articles of the Romanian Constitution concerning equality, the right to private and family life and protection of people with disabilities, and on Article 8 and 14 of the Convention he advocated that the Court should have taken into account the precarious situation of people with mental disabilities in the respondent State, who were marginalised, segregated and subjected to institutionalised abuse. He also argued the unconstitutionality of the provision concerning legal guardianship in the Romanian Civil Code. This objection was referred to the Constitutional Court. Nevertheless the County Court decided not to await the outcome of the constitutional proceedings and continued its examination of the appeal. The County Court upheld the decision of the District Court, noting that the legislation did not allow for a more nuanced response in the case of people with mental problems.
Following the first judgement of the ECtHR, were the Court held the psychiatric detention unlawful, N. was transferred from the psychiatric hospital to a closed care home in Bucharest. The Bucharest social welfare authority lodged an application with the District Court seeking to replace the current legal guardian, who was living too far away from the applicant’s new residence. Both the former and the new guardian gave their consent. The District Court allowed the change of legal guardian. The applicant was not a party to the proceedings.
The complaint of the applicant was twofold. On the one hand N. contested against the measures concerning his legal incapacitation, and on the other hand, he objected to the manner in which the change of legal guardian had taken place.
It has already been established in the Court’s case law that the deprivation of legal capacity constitutes a serious interference with the right to respect for a person’s private life, protected under Article 8 of the Convention. This interference can be allowed under the Convention, provided that the conditions in Article 8.2 are fulfilled.
The Court notes that the incapacitation proceedings had a legal basis and that there was no doubt that the measure was taken in the applicant’s interests. In examining whether the measure of full legal incapacitation was necessary and whether the law providing such incapacitation as a general measure was compatible with the Convention requirements, the Court indicates three issues.
Firstly the Court notes that the legislative framework did not leave the judges or the forensic experts any room for an individualised assessment of the applicant’s situation. The Romanian Civil Code distinguishes between full capacity and full incapacity, but does not provide for a tailor-made response. Secondly it is pointed out that the Romanian Constitutional Court has ruled that the applicable legislative provisions do not provide sufficient safeguards as they do not take into account the fact that there may be different degrees of incapacitation. Lastly the Court draws attention to the final decision of the Romanian Constitutional Court in which it declared the legal provisions in question to be unconstitutional and in violation of Romania’s international obligations with respect to the protection of the rights of people with disabilities. In this respect the ECtHR agrees with the findings of the Romanian Constitutional Court, which is consistent with the case-law of the ECtHR.
Due to the absence of the possibility of a tailor-made response in the legal provisions at the time when the decision concerning legal incapacity was taken, the applicant’s rights under Article 8 of the Convention were restricted by law more than was strictly necessary. In other words, the principle of proportionality was not fulfilled. Accordingly the Court finds a violation of Article 8 of the Convention.
The fact that the applicant had no say in the proceedings leading to the appointment of a new guardian also interferes with the applicant’s right to respect for his private life. In the examination of this part of the complaint the central question before the Court again is whether the measure was necessary and in proportion to the legitimate aim pursued.
Article 8 of the Convention does not explicitly contain procedural requirements. However, the decision-making process involved in measures of interference must be fair and ensure due respect for the interests safeguarded by Article 8. The Court is not convinced that the said procedure was accompanied by safeguards that were in proportion with the gravity of the interference and the seriousness of the interests at stake. The decision-making process was not conducted in a manner that would ensure that the applicant’s current health was properly assessed and taken into account. In that regard, there has also been a violation of Article 8 of the Convention.
The Court unanimously agreed that there had been a violation of Article 8 of the Convention in respect of the legal incapacitation of the applicant and in respect of the change of the applicant’s legal guardian. By five votes to two the Court decided that it was not necessary to examine the merits of the complaint under Article 6 (Right to a fair trial) and Article 14 (Prohibition of discrimination) in conjunction with Article 8. In this respect, the partly dissenting opinion of judge Motoc will be discussed in the commentary.
The judgement in N. v. Romania is noteworthy for several reasons. Firstly the Court reaffirms the concept of a tailor-made response concerning legal capacity of people with disabilities (Shtukaturov v. Russia and A.N. v. Lithuania) and thus confirms a right to legal capacity of persons with disabilities in certain circumstances. Thus, the question arises whether every disabled person has a right to legal capacity. In other words: does the requirement of a tailor-made response also entail the right to legal capacity of all persons with disabilities? From a practical approach the answer should be no. A case by case approach will always be necessary, and for certain types of disabilities it will remain impossible to grant any form of legal capacity. However, it is certain that there are different types of situations. Case-law of the ECtHR recognises the obligation to involve mentally disabled people in decisions, without necessarily granting them legal capacity. Not involving the disabled person does not seems to be in accordance with the ECtHR case-law
Secondly the ECtHR seems to implicitly implement the standards of Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), without referring to it. In a previous blogpost the question of fair referencing arose, more specifically the question whether ‘it is fair to reference fragments of CRPD standards to give more legitimacy to an argument, while read as a whole these instruments contain different principles?’. In the case of Toplak and Mrak v. Slovenia the Court picked out certain paragraphs from the CRPD but did actually not apply the CRPD standards (Article 2 and 29 CRPD) as a whole.
In my view, the Court did the opposite in N. v. Romania. Without explicitly referring to Article 12 (Equal recognition before the law), the Court applied the standards of that Article to the present case through Article 8 ECHR. Paragraphs 1-3 (the right to be recognized as persons before the law, the right to enjoy legal capacity and the obligation for member states to take appropriate measures in supporting the exercise of legal capacity) of Article 12 are applied by, on the one hand referring to the necessity of a tailor-made response and, on the other hand through the examination of the first two conditions for justified interference with the right to respect for a person’s private life. Paragraph 4 (appropriate and effective safeguards to prevent abuse) is implemented by the examination of the necessity and proportionality condition. Despite the fact that the Court seems to integrate the standards of Article 12 CRPD in this judgment, it has to be noted that Article 12 CRPD is more far-reaching than the ECtHR approach, which only requires a tailor-made response, while Article 12 CRPD stipulates that member states should respect the rights, will and preferences of the person.
When Judge Motoc states that in ‘the present case the Court found that there was no need to examine whether a violation had occurred’, she compares Article 14 of the Convention with the story of Hamlet and its famous phrase ‘to be or not to be’. Article 14 of the Convention entails the prohibition of discrimination. As already mentioned the Court decided not to examine the alleged violation of Article 14, this decision being the reason for the partly dissenting opinion of Jugde Motoc who was in favour of examining the complaint on this ground.
The figure of direct discrimination is compared to that of stereotyping, indirect discrimination is not discussed because this figure does not require a comparator but a disproportional prejudicial effect. Direct discrimination requires three elements: (1) unfavourable treatment, (2) a comparator, (3) and a protected ground. In disability law, the second requirement is often identified as problematic because it is not always clear who is the appropriate comparator to compare with, the so called comparability test (A. BRODERICK and D. FERRI, International and European Disability Law and Policy, 2019, 336).
In Carvalho Pinto De Sousa Morais v. Portugal the Court replaced the requirement of a comparator that should face an analogous or relevantly similar situation by the figure of stereotyping. The Court concluded that the test of comparability was not suited to cases of stereotyping. Methodologically important is that the ECtHR is not using a comparator as in other discrimination cases because it is almost impossible to decide on the appropriate comparator group. The main difference with the comparability test used in cases of direct and indirect discrimination is that it is, in case of stereotypes, enough to prove that the stereotypes are harmful to the group to which the applicant belongs and that the rule or practice applied by the State is based on such stereotypes. As the South African Constitutional Court said: ‘discrimination must be understood in the context of the experience of those on whom it impacts’ (National Coalition for Gay and Lesbian Equality and Others v. Minister of Home Affairs and Others). As stated by Judge Motoc, stereotypes have not subsequently been used by the Court on a regular basis, making Carvalho v. Portugal look more like an exception than a rule. This is regrettable.
Despite the potential this concept has for the improvement of the protection of certain vulnerable groups of people with disabilities who are subject to stigma, discrimination and victimisation, Judge Motoc does not examine the prohibition of discrimination based on stereotypes but applies the classic comparability test.
Judge Motoc concluded that the applicant was treated differently from persons in analogous or similar situations only because of his mental illness. Secondly, only persons suffering from a mental illness can be fully divested of their legal capacity on the ground of their illness alone, thus the comparable group were people without a mental disability. Such a difference in treatment will amount to discrimination if it does not pursue a legitimate aim. When a case of discrimination prima facie arises, a rebuttable presumption of discrimination occurs and the burden of proof shifts to the government. It is then up to the Government to prove sufficient reasons to rebut the presumption, which was not done in casu.
Despite the fact that the present case deals with disability rights in its most pure form, the Court’s main reasoning is based on Article 8 of the Convention and not Article 14, which deals with one of the greatest problems of peoples with disabilities, namely discrimination. At the same time it has to be noted that the ECtHR in the present case has taken into account the standards of Article 12 of CRPD, although without explicitly mentioning it.
It seems that the ECtHR is struggling to determine the applicable test for these types of cases, namely the comparability test (present judgment) or the use of stereotypes (Carvalho Pinto De Sousa Morais v. Portugal). It remains to be seen whether the Court in the future will adopt more the concept of discrimination without a comparator (Article 14) or if it will remain applying Article 8 of the Convention. In the former situation, the applicant may be able to rely on the rebuttable presumption of discrimination. Not using Article 14 of the Convention is in my opinion regrettable. Irrespective of the applied test (comparability or stereotypes) Article 14 gives a much more stronger signal to society and member states because this Article has been designed to combat discrimination.