Stanev v Bulgaria
Forum: European Court of Human Rights
INTERIGHTS role: Third party interveners
Keywords: Disability; liberty; community living
European Court finds that long-term placement in social care home is a deprivation of liberty requiring special safeguards, but refuses to give proper recognition to right of persons with disabilities to live in the community
On 17 January 2012, the Grand Chamber of the European Court of Human Rights published its judgment in the case of Stanev v Bulgaria. This moment constitutes the positive culmination of a six-year legal struggle by Mr. Stanev, who had been diagnosed with schizophrenia, and his representatives to challenge his legal incapacitation and his long-term placement in a social care home. The Court crucially confirmed that Mr Stanev’s long-term institutionalization constituted a form of deprivation of liberty violating the right to liberty, and that he must be granted direct access to courts to have the measure of his legal incapacitation reviewed (Article 5 ECHR). INTERIGHTS submitted written comments to the Court in the case.
There is no mistaking the significance of the Stanev judgment, which will benefit tens of thousands of persons with disabilities, committed for indefinite periods in decrepit and isolated social care homes throughout the CEE. The authorities will now have to ensure that the process of commitment to, and continued placement in these institutions is in line with Convention safeguards related to the deprivation of liberty, and that the individuals subject to institutionalization and interference with their legal capacity have direct access to courts to challenge these measures. At the same time, the implications of the judgment are somewhat restricted by the fact that the Court was not willing to recognize the systemic nature of the problems exemplified by the case across Europe, the nature of the harm of long-term institutionalization, and synchronize the substantive contents of the Convention with well-established standards and best practices concerning the right of persons with disabilities to live in the community. During a news conference on 6 February Bulgaria's deputy social affairs minister stated that a strategy for closing homes for adults was currently being worked on.
This case concerned Mr. Stanev’s placement in 2002 in the Pastra Social Care Home located in a remote mountainous area, and his subsequent 9-year stay there. The placement was taken at the initiative of Mr’s Stanev’s guardian, a social care worker, who, at the time, failed to consult him or see him in person, and without any court involvement. In addition to arguing that his compulsory institutionalization was in breach of his right to liberty, Mr. Stanev complained that that he was denied the right to live in the community, that living conditions at the Pastra Home were inhuman and degrading, and that he lacked direct access to courts to challenge his detention and his legal incapacitation.
The Court analyzed in great detail the circumstances of Mr Stanev’s placement and noted that throughout the duration of his stay at Pastra, he was under constant supervision, that he was not free to leave the home without explicit permission, and that his consent was not sought, in breach of domestic rules. His placement, the Court ruled, constituted a deprivation of liberty which did not comply with the criteria set out by the Court for the lawful detention of “persons of unsound mind”. The Court also agreed with Mr. Stanev’s claims regarding living conditions at the Pastra Home, his inability to challenge independently his detention and his legal incapacitation, but declined however to examine his claims related to the right to respect for private and home life including his right to live in the community. However, a minority of judges (including the national judge) dissented from the majority, arguing that Mr. Stanev’s right to choose where and with whom to live raised distinct issues under the Convention and should have been considered by the Court.
INTERIGHTS’ intervention set out trends in mental health care law and policy, and developments at the international level, including in respect of 'the right to community living', pointing out the gradual abandonment of institutions in favor of community-based facilities, in many European states. It examined the features of the practice of placing persons with disabilities in social care homes prevalent in the CEE which, we argued, constituted a ‘deprivation of liberty’. This included a detailed analysis of the factors which may shape ‘consent’ to such measures, and the validity of institutionalizing disabled persons mainly for reasons related to their social status (including for example homelessness, substance abuse, poverty, absence of support networks in the community). Finally, our intervention suggested ways in which the right to community living may be incorporated in the substantive scope of the Convention.
Related news articles
Bulgaria pledges to close social care homes for people with disabilities in ten years – EU Business (6 February 2012)
Background case information
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.
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.
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