Forum: European Court of Human Rights
INTERIGHTS role: Third party interveners
Keywords: Disability; liberty; community living
On 19 November 2010, INTERIGHTS submitted a third party intervention to the Grand Chamber of the European Court of Human Rights in the case Stanev v Bulgaria. The case concerns the long-term placement in a social care home of a man diagnosed with schizophrenia, who had previously been partially deprived of his legal capacity. INTERIGHTS believes that this case presents the Court with an opportunity to examine critical questions regarding the lawfulness of the practice of placing people with disabilities in social care homes in the absence of adequate community based services, from the standpoint of Articles 5 and 8 of the European Convention on Human Rights. Given the widespread nature of this practice, the Court’s decision in this case has the potential to influence the lives of many tens of thousands of individuals throughout Central and Eastern Europe who are placed in long-term residential care, with little or no concern for some of their most basic rights.
The applicant in the case before the Court, Roussi Stanev, was born in 1956 and, since 1975, was diagnosed as suffering from schizophrenia. By court orders and at the request of certain members of his family, the applicant was partially deprived of his legal capacity and placed under trusteeship. In 2002, he was placed in Pastra social care home for adults with mental disorders, based on a request made by his trustee, a social worker, and where he has lived since. The applicant requested a number of times that the measure of incapacitation is lifted and he be released from his trusteeship, but without success. In his application to the Court, Mr. Stanev argues a violation of Article 3 on account of the poor living conditions at Pastra care home; of Articles 5(1), (4) and (5) on account of his placement in care homes against his will, the impossibility under Bulgarian law of having the lawfulness of those measures examined and the absence of a judicial procedure to seek compensation; of Article 6 on account of lack of access to court to request the restoration of his legal capacity; of Article 8 on account of the restrictive nature of the measures of incapacitation and institutionalisation; of Article 13 on account of the absence of effective remedies to complain of these allegations. The application has been relinquished to the Grand Chamber in June 2010.
The first part of the intervention submitted by INTERIGHTS sets out trends in mental health care law and policy, and developments on the international level – including in respect of 'the right to community living' - and their relevance to the Court’s consideration of the case before it. The defining process over the past 40 years in the field of mental health provision, at least in Western Europe, has been that of ‘deinstitutionalisation’, consisting in the replacement of large-scale residential establishments with community-based services. This development has been recently boosted through the adoption of the U.N. Disability Convention, informed by the social model of disability, and emphasizing the equality, dignity and autonomy of persons with disabilities.
The second part of the intervention examines the issue of whether placement in social care homes as practiced in Central and Eastern Europe constitutes a form of ‘deprivation of liberty’ for the purposes of Article 5(1), including by analysing the factors which may shape ‘consent’ to such measures. Placement in social care homes lacks even the most basic safeguards against arbitrariness, and it is usually grounded on the social deprivation of the person concerned, which is not a permissible justification under Article 5(1(e). Instead, it is suggested that involuntary psychiatric commitment should always be based on a therapeutic necessity, in line with comparative and international standards. Finally, safeguards against unlawful deprivation of liberty under Article 5 should be accompanied by positive duties under Article 8 to develop community-based services.
Links
Case docket page from INTERIGHTS for Stanev v Bulgaria before the
Links
INTERIGHTS' third party intervention
Admissibility decision of the Court
Counsels’ websites: Mental Disability Advocacy Center and Bulgarian Helsinki Committee
'Institutions remain dumping grounds for forgotten people' - investigation of living conditions in residential institutions for people with disabilities in Bulgaria, Romania and Serbia by Yana Buhrer Tavanier, 2009
Human Rights Comment by the Council of Europe Human Rights Commissioner, Thomas Hammarberg: 'Inhuman treatment of persons with disabilities in Institutions', 21 October 2010
INTERIGHTS contact: Constantin Cojocariu, Lawyer – Europe
