June 16, 2023
by Ioana Iliescu, Law and Advocacy Officer at the European Implementation Network, a Strasbourg-based NGO working exclusively to advocate for the full and effective implementation of ECtHR judgments.
Judgments of the European Court of Human Rights (“the Court”) concerning psychiatry in Romania have proven particularly challenging to implement. These cases concern, inter alia, issues ranging from shortcomings in the social and medical care afforded to persons with mental disabilities, the need for an independent and effective system of legal protection for vulnerable adults, and safeguards regarding placements in mental health institutions (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania); overcrowding and poor material conditions in psychiatric hospitals (Parascineti v. Romania); and unlawful involuntary psychiatric placements (Cristian Teodorescu v. Romania). This blog argues that the development of effective long-term solutions to the systemic problems in the field of psychiatry in Romania requires a human rights-based approach to disability which aligns with the UN Convention on the Rights of Persons with Disabilities (UN CRPD) standards, and which requires the creation of alternative community-based mental health and social services for persons with disabilities.
There is a serious humanitarian problem regarding the respect and protection of the rights of persons with mental disabilities living in institutional settings in Romania, who are often deprived of personal liberty within institutions, forced to live in poor conditions, and have little to no access to justice. The Court found that Romania had violated the Convention in thirteen leading judgments concerning psychiatry and the rights of persons with mental disabilities, by far the most of all Council of Europe convicted states on this thematic. The implementation of these judgments requires political will, national capacity, a high amount of financial and human resources, as well as overcoming stigma and achieving a paradigm shift at societal level.
Between the 5th and 7th of June 2023, the Committee of Ministers of the Council of Europe (“Committee of Ministers”), the body tasked with supervising ECtHR implementation, examined the implementation of these judgments by Romania. It took a very strong response in relation to Romania’s prolonged non-implementation and lack of political will to address them, deciding to intensify the frequency of its supervision. The fact that the Committee of Ministers is taking a strong interest in these cases is highly welcome, especially at a time when the Parliamentary Assembly of the Council of Europe and the Council of Europe Development Bank have also been active in addressing underlying causes of coercive practices in mental health settings in general.
A serious, invisible humanitarian issue: persons with disabilities in Romanian mental health institutions
Persons with mental disabilities (intellectual and psychosocial) living in institutional settings in Romania do not have sufficient access to justice to lodge numerous (or even few) applications before the Court, although the human rights violations they face are systematic, wide-ranging, and affect approx. 30 000 people. They are subjected to ill-treatment, medical neglect, and abuse; they live in overcrowded, poor material conditions of detention. They are placed in institutions by their legal guardians or the state, with whom they are often in a conflict of interest or have never met. When they are voluntarily committed in institutions, it is mainly due to a lack of alternative options in the community. Even if people with mental disabilities want to leave mental health institutions, they are pressured and manipulated to remain. People with mental disabilities are unable or afraid to complain, as they are fully dependent on the staff and management of the institutions where they are placed. Nils Muiznieks, former Council of Europe Commissioner for Human Rights, in his 2014 address to the PACE Committee on Equality and Non-Discrimination, explained that: “Many who could otherwise function in the community without a great deal of support have become unable or afraid to leave these institutions, because they have known nothing else” and this pattern “cultivates a feeling of helplessness; (…) erodes one’s confidence in one’s ability to make choices; (…) deprive(s) people of life experiences and skills needed to build up autonomy and identity”. In this address, he also explicitly criticized Romania’s disability rights record and investments into building and refurbishing such institutions.
Committee of Ministers’ concerns about the implementation of these ECtHR judgments
To implement ECtHR judgments concerning systemic or structural human rights violations, governments must take general measures to ensure the non-repetition of similar violations: these measures can range from legislative reforms, public policies, changing domestic judicial and administrative practice, capacity building measures, ensuring adequate budgeting, and making practical arrangements. The Committee of Ministers, the body tasked with supervising the implementation of ECtHR judgments, examines the judgments periodically, delivering decisions which set out recommendations to the national authorities and express concerns when reviewing progress.
On one hand, its function is to ensure that problems identified in the judgments are addressed by national authorities in a Convention-compliant manner. It is not legally bound to uphold standards of other human rights instruments which grant higher protection than the ECHR (such as the UN CRPD). On the other hand, the supervision process is not limited to the Court’s explicit indications, because the Committee of Ministers needs sufficient flexibility to supervise measures which are “feasible, timely, adequate and sufficient” (Ilgar Mammadov v. Azerbaijan [GC], 2019, § 184), and to take into consideration new factors. This means that, if the measures taken by the authorities prove to be insufficient, or ineffective, further solutions may be explored and recommended.
The June 2023 decisions of the Committee of Ministers appropriately reflect (and respond to) the gravity of these long-standing structural and systemic problems in Romania. In their examination of the Parascineti, Cristian Teodorescu group, N., and R.D. and I.M.D. v. Romania cases, the Committee “expressed their outmost concern at the high risk of further violations” and “strongly deplored the lack of any indication that the authorities, in particular government departments with key roles and responsibilities, are now engaged in devising a strategic, comprehensive, and co-ordinated response”. The Romanian authorities were exhorted at a high political level to demonstrate firm commitment to solve these issues. Interestingly, Council of Europe member states were invited to raise these issues in their contacts with Romanian authorities – a recommendation which has not been made often in other cases.
Moreover, the Committee of Ministers observed that the legislative measures initiated by Romania, which partially address the need for a legal framework for the protection of vulnerable adults, are not yet adequately and effectively applied. These measures remain only on paper, as they are unimplementable in practice due to budgetary and capacity constraints. The Committee of Ministers requested national authorities to address the concerns raised by civil society regarding the challenges in implementing this new law, and to increase efforts to further enact representation solutions for vulnerable persons who do not have relatives able or willing to take over support or representation duties under the new system.
The Committee also highlighted the need to ensure human rights compliance and accountability for the treatment of institutionalized people with disabilities, “pending the completion of the on-going process of transition to community-based, independent living” – a tacit acknowledgment to the relevance of Article 19 of the UN CRPD, which guarantees the right of persons with disabilities to live independently and within the community.
These decisions apply high pressure on the Romanian authorities to act and provide valuable guidance for the next steps in the implementation process, indicating which challenges should be addressed in ensuring the effectiveness of reforms. The indirect reference to deinstitutionalisation as a measure which improves the treatment of people with mental disabilities currently living in institutions is a positive development. As regards living conditions in psychiatric hospitals and unlawful psychiatric placements, the Committee refrained, at this stage in the implementation process, from addressing specific measures, and centred its’ approach on the lack of political will and coordination at national level. However, after the Romanian authorities will provide “a clear and precise roadmap with a tight timetable for the completion and for the adoption at the highest level of government of a comprehensive action plan”, the Committee will be able to assess progress again and whether additional measures are required. Now, it is time for the Romanian authorities to act.
The UN CRPD standards as the way to effective long-term solutions
In view of future efforts to effectively implement these judgments, and future examinations of progress by the Committee, it is important to determine the adequate standards for the implementation measures to follow. This section argues that only the standards of the UN CRPD can provide an adequate and effective response to the problems in these judgments.
This is because the UN CRPD standards prescribe the development of community-based mental health and social services; they also oppose the creation of new institutions for persons with disabilities. This approach moves away from the medical approach – which keeps people with mental disabilities in closed environments where they are at higher risk of human rights violations, and which denies them the right to live independently and be included in the community (Article 19 of the UN CRPD). Without shifting from this medical and coercive model of disability to the human rights model of disability, the problems identified in these ECtHR judgments will not diminish.
While the latest decisions of the Committee of Ministers have not addressed at this stage the need for community-based mental health and social services, the ongoing examination of these cases will provide ample opportunity for assessing the necessity and relevance of such services later. This will be assessed based on the progress achieved and effectiveness of other measures to be taken.
The creation of alternative community-based mental health and social care services, (including living alternatives) is essential in addressing the overcrowding and living conditions of detention in psychiatric hospitals (Parascineti v. Romania), in overcoming the deficiencies in the care of persons with mental disabilities in institutions, in ensuring the efficiency of the reform on representation for persons with mental disabilities and preventing medical and social neglect (Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania) and in putting an end to the practice of unlawful involuntary placements (Cristian Teodorescu v. Romania).
All these issues are interconnected: the lack of services; the unlawful psychiatric placements, the overcrowding and poor living conditions, and the shortcomings in social and medical care. Both the Romanian Ombudsman and the CPT have already argued that overcrowding in Romanian mental health institutions is linked to the lack of alternative, community-based services. The absence of these services leads to the overuse of placements in psychiatric hospitals, which causes the psychiatric system to become overburdened. This is a major underlying factor causing pressure on the psychiatric and social care system. There is a close connection between the two systems: a high number of psychiatric patients are persons with intellectual disabilities who are transferred from social care homes due to challenging behaviours (and unwillingness or inability or staff to deal with them), as well as ‘social cases’ – persons who do not need psychiatric treatment but cannot be released due to lack of family or services. When such services and alternatives are unavailable, placement in psychiatric hospitals and social care homes becomes the only option.
Furthermore, the deprivation of liberty of persons with mental disabilities is unlawful if it is not warranted (Stanev v. Bulgaria [GC], 2012, § 145). Therefore, when it is caused by a lack of community services and alternatives, compulsory psychiatric confinement cannot be considered ‘warranted’. The overabundance of unwarranted placement measures, causes, in turn, overcrowding and insufficient staffing in psychiatric hospitals. This also diminishes the quality of medical and social care received by patients, and the capacity of psychiatric hospitals to abide by the legal provisions and respect legal safeguards concerning placements and periodic, timely reviews.
For example, in previous 2019 notes concerning the examination of Cristian Teodorescu v. Romania and Parascineti v. Romania, the Secretariat of the Committee of Ministers identified several problematic practices regarding placements in psychiatric hospitals. These practices include the de facto involuntary detention of voluntary patients, without the necessary legal safeguards; maintaining under involuntary placements patients who do not require psychiatric treatment but do not have families or suitable accommodation in social care facilities; subjecting persons with intellectual disabilities to involuntary placements in forensic psychiatric confinement (as a security measure), despite the fact there is no case for recovery from intellectual disabilities. Such practices could be prevented or avoided if effective community-based alternatives existed.
Alternative services are also essential to ensure the effectiveness of the new legal framework suited to the specific needs of people with mental disabilities (which pertains to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania judgment). The implementation of this law is key in ensuring the efficiency of the legal framework meant to provide a tailor-made response for the independent representation of persons with mental disabilities. This is, in part, because the judiciary gives weight to the living situation and independent life skills of persons with mental disabilities when assessing requests to vacate guardianship and determine protection measures. This means that persons with disabilities would need access to independent living options and other social services for this law to be successfully applicable.
Without these alternatives provided by the UN CRPD standards, only coercive and liberty-depriving practices will be available for persons with mental disabilities.
Furthermore, the difference between the UN CRPD standards and the Convention standards has led to previous decisions of the Committee of Ministers (in other similar cases concerning psychiatry, in Bulgaria) prescribing or encouraging measures which are Convention-complaint, but not CRPD compliant. In these instances, the Committee of Ministers encouraged the creation of “medical residential centers” and the direction of a faulty “deinstitutionalization” strategy. In doing so, it not only endorsed a lower standard of protection (which it may do), but it legitimized inappropriate measures which go against Article 19 of the UN CRPD because they perpetuate institutionalisation. This approach is not as such contrary to the ECHR as understood today, but it is both unnecessary and harmful. These two examples are relevant in the Romanian context for two reasons. First, the risk of ignoring UN CRPD standards in the implementation of the Romanian judgments may lead to similar outcomes, which should be avoided, because it would not enable effective and adequate solutions to the implementation of these judgments. Second, these examples pertain to the Committee of Ministers’ evolving position as to the UN CRPD standards in the ECtHR implementation process. This evolving position can be seen in the June 2023 decisions concerning Romania, where the Committee referred to the “on-going process of transition to community-based, independent living” when addressing issues surrounding the poor treatment of people with disabilities in institutions. In addition, in one of the Bulgarian cases mentioned above, in March 2023, the Committee did question the effectiveness of building new family type-homes in remote locations, where qualified staff and services are hard to come by, and noted the importance of availability of social services when establishing new facilities in communities. These developments in the jurisprudence of the Committee of Ministers, which take into consideration UN CRPD standards, are welcome.
When it comes to the implementation ECtHR judgments concerning psychiatry and mental health in Romania, the measures (recommended and taken) should follow a human rights-based approach to disability, based on the understanding of the circularity of human rights violations which defines the lives of persons with mental disabilities living mental health institutions, and the real causes behind these systemic issues.
This can only be achieved by ensuring that the reforms are in line with UN CRPD standards. This approach can be fulfilled through the development of community-based mental health and social services. It is also important to ensure that any new measures which hinder the process of fulfilling the right to live independently and within the community of persons with mental disabilities are avoided.
Without alternative and community-based services, people with mental disabilities will remain trapped in unescapable patterns of human rights violations.
An earlier version of this text appeared on the website of the European Implementation Network (EIN): https://www.einnetwork.org/blog-five/2023/5/4/trapped-between-the-echr-and-the-un-crpd-prolonging-an-invisible-human-rights-crisis.