February 28, 2025
By Louis Triaille
In its Clipea and Grosu v. the Republic of Moldova judgment, handed down on November 19, 2024, the European Court of Human Rights (ECtHR) clarifies States’ positive obligations to protect in-patients with mental disabilities from ill-treatment in psychiatric institutions. The judgment illustrates an increasingly strict scrutiny by the ECtHR on institutional psychiatry, on the backdrop of a ‘paradigm shift’ towards consent-based and community-based care that is currently taking place in international human rights law. Most interestingly, the judgment articulates an obligation to investigate allegations of ill-treatments by citizens with mental disabilities in a non-discriminatory manner under Articles 3 and 14 of the Convention.
The starting point of the case lies in the living conditions of two citizens with mental disabilities during their stays in a Moldavian psychiatric hospital. Over the course of their lives, the two applicants each spent around twenty short stays (between 21 and 30 days each) at this hospital, following crisis situations where they were deemed a danger to themselves or others.
The claimants put forward three main grievances relating to their stays: (1) the lack of hygiene in the facilities, (2) the impossibility of going outside for walks in the open air during their stays at the hospital and (3) the restraint exerted on one of the applicants, who claimed to have been tied to his bed for periods of six to nine hours. Other complaints include unpleasant smells, cold, lack of hot water and theft of personal belongings between residents.
In 2014, these grievances had been the subject of a complaint by the mother of one of the applicants to a Moldovan supervisory body (the ‘Council’), which gathered concurrent testimonies but was refused to visit the premise by the hospital authorities. Unsatisfied, the Council notified the ProsecutorGeneral’s Office of the possible commission of inhuman and degrading treatment in the hospital. The prosecutor opened an investigation and interviewed hospital doctors as well as the two applicants. Doubting the reliability of their version of events, the prosecutor decided to have the applicants undergo a psychiatric examination, which was entrusted to the hospital itself. The applicants refused the examination, expressing their distrust of the hospital’s doctors. Following this refusal, the public prosecutor closed the case, pointing out that the plaintiffs were ‘persons with limited legal capacity, and in these circumstances, [were] not always able to fully and correctly understand the things that happen[ed]’ (para 23).
The prosecutor’s decision was challenged by the applicants’ lawyer. In 2015, a Moldovan appeal court ruled that the investigation had been ‘superficial and incomplete’ (para 27). It was restarted. However, two successive prosecutors dismissed the complaints once again, after a visit to the hospital and the collection of new testimonies. This time, the prosecutors’ decision was upheld by the national courts. The successive decisions to close the case all relied on the argument that there was a lack of evidence for bad treatment and that the plaintiffs were probably incapable of fully understanding what had happened to them in the institution.
The applicants complained under Article 3 (prohibition of inhuman and degrading treatment), read alone and in conjunction with article 14 (prohibition of discrimination), as well as under Article 8 of the Convention (right to privacy). The Court decides to conduct its examination under Article 3. It begins by pointing out that Article 3 creates not only negative obligations on the part of the national authorities, but also positive obligations. These positive obligations have a substantive limb, consisting of adopting a regulatory framework to prevent violations and taking operational measures in the event of an imminent risk of violation. They also have a procedural limb, consisting of prosecuting the perpetrators of violations (even when these violations are committed by private actors rather than State officials). The Court stresses that these positive obligations apply to both voluntary and involuntary patients. However, they call for stricter scrutiny in the case of involuntary patients. In the present case, although the applicants had been admitted as ‘voluntary’ patients by the hospitals, the Court considers that their hospitalisation was ‘de facto involuntary’ (§66), thus calling for a strict scrutiny.
The examination of the substantive limb of these obligations consists of two parts. With regard to the living conditions in the institution, firstly, the Court considers that the unavailability of open-air walks for three to four weeks (not contested by the Moldovan government) and the inadequate sanitary conditions (corroborated by numerous international reports on Moldovan psychiatric institutions) are sufficient to conclude that there has been a violation of Article 3 of the Convention. With regard to the allegations of ill-treatment by staff and other patients, the Court asserts that it has too little material evidence to reach a conclusion, pointing out that this lack of evidence stems from the national investigation.
Turning to the procedural limb of positive obligations under Article 3, the Court first finds a violation of Article 3 read in isolation, due to the shortcomings of the investigation by successive public prosecutors. It points out that a period of one month elapsed before the start of the first investigation (which the Court considers excessive); that the first prosecutor’s decision to subject the applicants to a psychological examination in the same hospital made the doctors both judges and parties to the case; that the applicants’ lawyer was insufficiently informed of the progress of the investigation; and that the applicants were unable to participate effectively in the handling of their complaint.
The Court then examines the investigation from the angle of the prohibition of discrimination. It concludes that there has been a violation of Article 14 read in conjunction with Article 3 as the investigation had deviated from an inquiry into the materiality of the facts alleged by the applicants, towards an examination of their mental capacity. As a result, the applicants’ complaints were treated differently from the testimonies of the other persons heard, on account of their mental disability. In the Court’s view,
“It is true that such a disability may distort an alleged victim’s perception of reality and cause that person to wrongly believe that he or she was ill-treated. However, […] the fact that a person complaining of such treatment has an intellectual disability is no reason for shifting the focus of the investigation from objectively verifying the facts to determining whether the person fully understands what happens to him or her” (para 95).
The Court considers that this bias, repeated by the various Moldovan authorities involved in the case, does not constitute an ‘isolated failure’ on their part but perpetuates a ‘discriminatory practice’ in respect of the applicants as persons with a mental disability (para 97). It concludes there has been a violation of Article 14 in conjunction with Article 3.
The case of Clipea and Grosu was handed down in the context of a growing pressure from several international human rights bodies to outlaw non-consensual psychiatric procedures and promote alternatives to institutional care. These developments are often referred to as a ‘new paradigm’ in mental health law and practice, including by the Council of Europe Commissioner for Human Rights that intervened as a third-party in the judgment (see paras 56-57; see also, on the subject, Mahomed et al., 2021, Series, 2022). In recent years, those efforts have led the ECtHR to take part in an international dialogue on the compatibility of widespread psychiatric practices with international human rights law (see ibidem and Neuman, 2021).
The ECtHR’s judgment illustrates its tempered position within this international dialogue: it shows both that the Court is not prepared to declare all coercion incompatible with the Convention, and that it is willing to apply increasingly strict control over institutional psychiatric care, especially when elements of coercion are involved.
First, it is interesting that the Court takes the trouble to requalify a supposedly voluntary hospitalisation as ‘de facto involuntary’ (para 66) in order to explicitly apply a stricter standard of scrutiny thereon. When doing so, the ECtHR cites fragment of its Fernandes de Oliveira v. Portugal judgment (para 63), in which it found in 2019 that Portuguese authorities ought to have taken operational measure to prevent a voluntary patient from committing suicide. In that earlier judgment, the Court stated that positive obligations under Article 2 applied on both voluntary and involuntary hospitalisation, though subjected to a less strict standard in the former. In Clipea and Grosu, it holds the same position on positive obligations under Article 3.
In this case, theCourt considers that the higher standard of scrutiny is applicable, even though the applicants’ stay in the hospital was deemed voluntary according to national law. The approach taken by the Court here is very similar to the casuistic reasoning it uses when determining whether Article 5 of the Convention is applicable to stays in residential institutions, i.e. whether residents are deprived of their liberty (e.g. Storck v. Germany, Stanev v. Bulgaria and Stefan Stankov v. Bulgaria). Rather than using one clear-cut criterion, the Court lists various elements that converge to indicate a lack of valid consent and/or signs of coercion. In Clipea and Grosu,the Court stresses, amongst other factors, the absence of a formally given consent by the applicants; their inability to take walks in the fresh air; the physical restraint and/or injection of sedatives; the closed nature of the facility testified by the national supervisory’s inability to visit it (paras 64-65). All those factors do not radically alter States’ positive obligations under Article 3, the judgment teaches, but they do call for particularly strict review by the Court.
The Court’s strict scrutiny first materializes in a threshold of applicability of Article 3 that may seem rather low to regular observers (at least it does to dissenting judge Derenčinović, as we shall see). In the judgment, the application of Article 3 is triggered by two factors: the unhygienic conditions at the hospital and the unavailability of walks in the fresh air for periods of three to four weeks.
It is important to note that the Court calls this threshold of severity ‘relative’ (para 59) and links it explicitly with the applicants’ ‘particular vulnerability’ (para 73). Their vulnerability appears to be double: they are vulnerable ‘as persons with intellectual disabilities […] and as persons on de facto involuntary treatment’ (ibidem). As Hachez and Beernaert wrote in 2019 in their commentary on the Court’s caselaw on disabled detainees, the applicants found themselves in a situation of ‘vulnérabilité au carré’. That multiple vulnerability narrows the States’ margin of appreciation, but it also lowers the threshold of applicability of Article 3.
Alone against six, judge Derenčinović finds that this is ‘an extension of the applicability of Article 3 that might not be in line with the Court’s case-law’ (dissenting opinion, para 6). While agreeing that involuntary measures call for a stricter scrutiny under Article 3, he contests the ‘de facto involuntary’ nature of the applicants’ hospitalisation. He stresses that they did not introduce a complaint under Article 5 of the Convention and therefore, he deduced, did not consider themselves hospitalised involuntarily. Judge Derenčinović goes as far as to state that the majority’s reasoning ‘would effectively render the distinction between voluntary and involuntary treatment meaningless and create significant complications for the States’ obligations towards hospitalised persons’ (para 3). He also believes that the majority’s reasoning on positive obligations does not offer a framework that is precise enough ‘if its scope of application were extended to the material conditions of facilities such as psychiatric institutions’ (para 5).
We do not share judge Derenčinović’s reservations about the Court’s commitment to examining material conditions in psychiatric hospitals in the light of Article 3 of the Convention. On the contrary, it seems crucial to us that the Court goes further in clarifying which living conditions are acceptable in residential care institutions and what obligations States have in this respect, under each provision of the Convention.
At the same time, we do share judge Derenčinović’s disappointment, expressed at the end of his opinion, that the Court did not seize the opportunity to analyse these living conditions in light of the applicant’s right to privacy(Article 8 of the Convention, also invoked but ignored by the Court). That is the case, at least, for the unavailability of walks in the fresh air (less so for unhygienic conditions, which we think are adequately dealt with under Article 3). Before Judge Derenčinović, at least four dissenting judges regretted that the Court had overlooked Article 8 when analysing restrictions on the liberty of citizens with mental disabilities residing in care facilities (see cases Stanev and Stefan Stankov cited above, though the choice then was between Article 8 and article 5).
An examination under Article 8 could cut short the accusation of overextending the scope of Article 3. But also, and more importantly, it could offer an alternative to the binary logic Article 3 relies on (an absolute prohibition, though mitigated by a relative threshold of severity and a variable level of scrutiny). Many care practices require a delicate balance between protection and risk-avoidance on the one hand, autonomy and freedom of the cared-for on the other. A review of positive obligations under Article 8 could enable a close examination of States’ efforts to ensure that their care systems respect the autonomy and social relationships of their users, while also preventing self-harm. A proportionality test applied to those efforts seems a more intelligible conceptual framework than the uneasy distinctions used by the Court under Article 3 (and Article 5 to a lesser extent). The case of Calvi and C.G. v. Italy (2023) seems to be an embryonic – and promising – example of this alternative approach (see in particular paras 69 and 94-108). We would be glad to see the Court build on that model in the future.
Perhaps the most important part of the Court’s judgment focuses on the investigation led by the Moldovan authorities. The circumstances of the case show a paradox. On the one hand, several reports (reviewed by the Court at paras 40-45) indicate the high prevalence of ill-treatments and poor living conditions in psychiatric institutions in Moldova (as elsewhere). On the other hand, the applicants’ complaints, though consistent with the tendencies shown by these reports, were treated with skepticism by the Moldovan prosecutors. Those repeatedly turned their focus to the applicants’ mental capacity instead of focusing on researching the facts.
Though the Court refers to international reports as consolidating the applicants’ complaints regarding unhygienic living conditions, it does not go so far as to shift the burden of proof on the Government regarding allegations of ill-treatment by the hospital staff (as was suggested by the Commissioner in her third-party intervention, paras 56-57). The Court finds instead that ‘the case file does not contain sufficient material to allow a definitive conclusion in this regard, not the least because of the deficiencies in the investigation into those allegations’ (para 79). Coherently, it condemns Moldova on several grounds for the shortcomings of the investigation (see above in the ECtHR’s reasoning).
Under Article 14 combined with Article 3, the Court takes a clear stance against the tendency to regard complaints by mentally disabled people as unreliable on account of their authors’ disabilities. Its position is simple and well-argued: like all others, complaints of ill-treatment by disabled people must give rise to an inquiry into the materiality of the alleged facts, and not to an examination of the mental capacity of their authors. Interestingly, the Court cites Luca v. Moldova in support of this reasoning, in which it condemned Moldova because a woman’s allegations of domestic violence had been disqualified by prosecuting authorities on the grounds of gender stereotypes. In that matter, states the Court, what applies to gender also applies to disability.
At a time when psychiatric coercion and institutional care face mounting criticism by human rights bodies, this interesting judgment illustrates the Court’s moderate approach on the subject. The Court shows it is willing to apply an ever-stricter scrutiny on care practices, especially when these practices involve elements of coercion. This control translates in various obligations under Article 3 of the Convention, applied with a low threshold of severity and a narrow margin of appreciation. The obligation which is central in the Clipea and Grosu judgment is the duty, under Articles 3 and 14 of the Convention, to follow up complaints of ill-treatment in institutions with an effective investigation into the materiality of the alleged facts, without shifting to a (discriminatory) examination of the complainants’ mental capacity.
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