December 20, 2024
by Vladislava Stoyanova
Validity Foundation on behalf of T.J. v Hungary raises some important questions about the standard of causation in the human rights law reasoning. This blog post does not aim to challenge the conclusion in the judgment that in fact appears very reasonable. This post is rather a continuation of my reflections about the role of causation in human rights law (see this article, this post on the KlimaSeniorinnen judgment and this post on the Biba case regarding safety of pupils at school).
I will first describe the facts and the complaint made by the applicant organisation. Then I will explain how the factual causation between any specific omissions and the specific harm (the death) of the specific person, did not play an important role in the reasoning, that could have hindered the finding of a breach of the substantive positive obligation under Article 2 ECHR. I will also explain how the narrow causal inquiry that characterized the domestic investigation was the basis for the Court to conclude that this inquiry was ‘inadequate’. For the sake of clarity, these explanations are not intended to be a critique of the Court’s reasoning and the Court’s conclusion. They are rather meant to prompt reflections upon the standards that shape the reasoning regarding breaches of positive obligations in human rights law.
I will not focus on the question of admissibility, i.e. why the applicant organisation had standing.
The applicant, Validity Foundation, is a Hungarian NGO. It lodged the application before the Court on behalf of T.J, who was born in 1973 was with severe intellectual disability. T.J. could not communicate verbally and had aggressive behaviour. She was placed at the age of ten in a social-care institution. She died on 25 August 2018 in hospital where she had been taken for treatment for pneumonia. Before T.J.’s death Validity Foundation had visited her in the care home, as had various State bodies (the Ministry of Human Resources and the Hungarian Commissioner for Fundamental Rights). The visits led to reports about the alarming conditions at the care home, including understaffing and physical restraint. Shortcomings were found regarding food, medication and sanitary conditions. The authorities assessed the circumstances in the home as being ones of ‘neglect and abandon’. In particular, the applicant NGO reported that it had found T.J. unresponsive and with wounds. There was also a Ministry’s inquiry that observed a deterioration in her health after 2016. As a result, she had to be fed with baby formula. It was also noted that T.J. had become restless and experienced frequent falls, resulting in injuries.
Validity Foundation lodged a criminal complaint in 2017 with the police concerning the conditions in the social-care institution, including deprivation of liberty, bodily harm, violence and professional misconduct. After Ms T.J.’s death, the NGO amended the complaint with the argument that the professional misconduct and the inadequate care conditions had contributed to her death. During the investigation, it was established that T.J. had been tied up and that physical restraint was necessary to prevent the residents of the institution from self-harm. Nevertheless, the investigation was closed in 2019 after concluding that T.J.’s cause of death was pneumonia, as indicated in the autopsy report, and that the measures of physical restraint could not be causally linked to the death. It was therefore concluded that no criminal offence had been committed.
Validity Foundation lodged a collective complaint against different public institutions and claimed that they ‘had infringed the residents’ personality rights and had not fulfilled their statutory obligation to supervise the functioning of the institution’ (para 28). ‘The Budapest High Court rendered a judgment on 27 February 2024’ (para 32). It upheld the complaint by concluding that the state institutions ‘had failed to carry out their statutory obligation to supervise and manage’ the care home. In this way, ‘they had infringed the personality rights, including the right to equal treatment and the right to dignity of the residents. They had maintained a humiliating and degrading environment, restrained the liberty of the residents in an inhuman manner, exposed the residents to indecent sanitary conditions, had not provided human living conditions, had not provided education, rehabilitation, participation in sport, cultural and social life, had not provided appropriate care and development and had not ensured the resident’ right to access to healthcare’ (para 32).
Validity Foundation invoked Article 2 ECHR in its procedural and substantive limbs. As to the first one, the argument was that the State failed to fulfil its procedural positive obligations under Article 2 since the domestic investigations did not examine whether the circumstances of T.J.’s care and the physical restraint had caused her death. This argument was therefore about the quality of the domestic criminal proceedings. As I will explain below, the quality was assessed by the Court as inadequate in light of the limited scope of the domestic proceedings. As to the substantive limb of Article 2 ECHR, the argument was that the conditions in the care home had caused her death.
Hungary disputed the facts and the related factual causal links. Hungary maintained that ‘[t]he sudden deterioration of her health and her resulting death had been due to her intellectual disability and not to the professional misconduct of the medical and social care staff’ (para 66). As to the investigation, Hungary highlighted the finding from the autopsy and the forensic medical opinion that ‘had confirmed that the death of Ms T.J. could be linked to her illness and that there had been no causal link between her death and the restraints applied to her. The medical expert had stated that no professional misconduct had occurred’ (para 70).
The Court found that Hungary breached its substantive positive obligation under Article 2 ECHR (para 96). In particular, Hungary ‘failed to account for the treatment of Ms T.J.’ and ‘failed to demonstrate that the domestic authorities had had the requisite standard of protection that would have enabled them to prevent the deterioration in health and untimely death of Ms T.J.’ (para 96).
The reasoning of the Court is shaped by one key starting assumption:
Ms T.J. was under the exclusive control of the State authorities who therefore assumed direct responsibility for her welfare and safety and were under an obligation to account for her treatment and to give appropriate explanations concerning that treatment (para 80).
This starting point has been established in previous judgments, such as Centre for Legal Resources on behalf of Valentin Câmpeanu v Romania.
It is important to highlight and to reflect upon how this starting point affects any assessment of factual causal links. More specifically, any causal links are framed in the reasoning at an abstract level. The inquiry performed by the Court in the judgment does not narrowly focus on the cause of death as demonstrated by the specific medical reports. While various omissions/failings are enumerated in the Court reasoning (e.g. shortage of medical staff, insufficient medical and therapeutic care, inappropriate living conditions, the excessive use of means of restraint), how each one of them specifically contributed precisely to the death of the specific person, is not at the centre of the inquiry. In this sense, it is not factual causation that the Court is interested in. The inquiry can be rather understood to be about legal causation, i.e. determining the scope of responsibility by determining the existence of a general positive obligation upon the State with a wide scope given the normative expectation in favour of an enhanced role of the State in this context (on the distinction between factual and legal/normative causation see e.g. Plakokefalos and Nollkaemper).
Relatedly, the reasoning in Validity Foundation on Behalf of T.J. v Hungary demonstrates the collapse of the analysis of the existence of a positive obligation and the analysis about breach of the obligation (see more generally Stoyanova). By specifying the measures in the determination that they were not undertaken, the Court simultaneously performs the two analytical operations/steps – first, the determination of the existence of an obligation to take measures and, second, the determination that the obligation was breached since the measures were not taken. In other words, the omissions are made legally relevant and assessed as a basis for responsibility for breach of the obligation, via their specification.
In Validity Foundation on Behalf of T.J. v. Hungary, the Court also drew upon the standard of ‘appropriate measures to protect’ life (para 72 and 88). It also invoked the standard of ‘adequate response’, where adequacy can be perceived as expressing the idea of a normative causal link between omitted measures and harm (para 94). A third standard was also referred to in the reasoning in Validity Foundation on Behalf of T.J. v. Hungary: the State ‘failed to demonstrate that the domestic authorities had had the requisite standard of protection that would have enabled them to prevent the deterioration in health and ultimately the death of Ms T.J.’ (para 96). By using the standards of ‘appropriate’, ‘adequate’ and ‘requisite’ that hint at the idea of causation, the Court’s reasoning formulates the obligation and determines its breach.
As opposed to the Court’s review where causation was considered in very broad terms to the point of being irrelevant since the focus was on the framing of the obligations, the national authorities focused on the narrow causal link between the death and a specific cause (i.e. restraint measures) that would have been unlawful under the domestic legislation. As the Court noted:
The police investigation was focused essentially on establishing the direct cause of Ms T.J.’s death and whether the restraint measures used on her had contributed causally to her death. The domestic authorities did not establish the facts concerning the level and quality of care in Topház, and did not examine the adequacy of Ms T.J.’s living conditions or whether there were shortcomings in her medical and therapeutic care (emphasis added) (para 102).
This narrow focus is actually quite easy to understand given that the domestic investigation was a criminal one. In this sense, given the nature of the domestic investigation, some inherent limitations follow. The reasoning of the Court and its critique of the domestic proceedings was that the latter should have had a wider scope. The domestic proceedings should have investigated the systemic failures:
The Court has not been informed that the investigations led to any effective attempt to verify whether the alleged systematic failures in the care system which had been reported by a number of actors including State bodies were the result of actions or omissions of the authorities’ representatives or any other public employee and whether they could be held accountable for such conduct (emphasis added) (para 104).
The subsequent paragraphs confirm the understanding that Article 2 ECHR imposes a procedural obligation of a very wide nature since the Court framed its task as reviewing ‘the authorities’ overall response in investigating the allegation of serious human rights violations (emphasis added)’ (para 106). This overall response had to be ‘adequate’ (para 106) to be compatible with the procedural obligation under Article 2 of the Convention. The contours of the standard of ‘adequate’ remain unclear in this way creating uncertainties as to the more precise scope of the procedural obligations under the ECHR (see Chapter 6 here).
The reasoning in Validity Foundation on behalf of T.J. v Hungary is demonstrative of how the conclusion whether positive obligations are breached is contingent on normative considerations about the role of the State in the specific context, rather than on factual causal links. This is not necessarily good or bad. It rather reveals the normative underpinnings of positive obligations.
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