Analysis of UN Human Rights Committee concluding observations on Bulgaria, 25 July 2011

Mental Disability Advocacy Center

Analysis of UN Human Rights Committee concluding observations on Bulgaria, 25 July 2011

Violence in institutions

In their joint parallel report to the Committee, MDAC and the Bulgarian Helsinki Committee (BHC) called the Committee’s attention to the investigations that BHC carried out in 2010 which documented 238 deaths of children in institutions as well as numerous cases of physical and sexual abuse. Despite ample evidence of neglect and abuse, prosecutions are not going forward and no one has been held accountable.  

The Committee recommended that Bulgaria carries out law reform to criminalise torture. Regarding violence against persons with disabilities in medical settings, the Committee recommended (paragraph 10) that the Bulgarian government:

• implements a zero-tolerance policy on violent and discriminatory practices against children and adults with disabilities in medical settings;
• carries out effective investigations of all allegations of torture and ill-treatment, and prosecutes alleged perpetrators; and
• rolls out psycho-social rehabilitation programmes for people in institutions.

Torture and ill-treatment

In institutions, the risk of torture and other forms of inhuman and degrading treatment and punishment is greatly increased. It has been well documented that people in psychiatric and social care institutions are often subject to violence, exploitation and abuse, poor living conditions, severe and prolonged forms of mechanical, chemical, and physical restraints and seclusion, arbitrary disciplinary measures, forced medical and psychiatric interventions, as well as the denial of reasonable accommodations. Involuntary confinement in psychiatric and social care institutions can also in itself constitute torture, a point highlighted in MDAC and BHC’s joint parallel report.

Freedom from torture or cruel, inhuman or degrading treatment or punishment is an absolute right under Article 7 of the ICCPR. MDAC welcomes the Committee’s recommendations highlighting the importance of independent inspections to places of detention, such as psychiatric and social care institutions. These recommendations reach beyond the traditional scope of the Committee’s recommendations, and therefore signal that the Committee assigns a crucial role to independent and regular monitoring.

The Committee’s approach is of particular significance in light of Bulgaria’s ratification of the Optional Protocol to the Convention against Torture (OPCAT) on 1 June 2011. As a State Party to the OPCAT, Bulgaria will need to designate one or several National Preventive Mechanisms to ensure regular and independent inspection of detention facilities, including psychiatric and social care institutions, where persons with disabilities are detained.

Commenting on people deprived of legal capacity who are also deprived of their liberty, the Committee recommended (in paragraph 17) that the Bulgarian government put in place laws which:

• establish the necessity and proportionality of any measure on an individual basis
• ensure that effective procedural safeguards are provided, ensuring that everyone deprived of legal capacity has prompt access to an effective judicial review of the decisions;
• guarantee that persons with mental disabilities or their legal representatives can exercise the right to an effective remedy for violations of their rights and
• consider providing less restrictive alternatives to forcible confinement and treatment of persons with mental disabilities;
• take appropriate measures to prevent all forms of ill-treatment in psychiatric institutions, including through the establishment of inspection systems. MDAC notes that this recommendation would be in line with Bulgaria’s recent ratification of the Optional Protocol to the UN Convention against Torture. 

Children in institutions

In their report, MDAC and BHC provided data showing that the number of children in institutions is higher than reported by the government, and that there are many children with disabilities in institutions other than those designated as institutions for children with disabilities (currently between 2,500 to 3,000 children with disabilities live in institutions). While noting the adoption of a plan to close children’s institutions by 2025, the Committee expressed its concern at the number of children who will remain in the institutions for the next 15 years, the plan’s lack of concrete measures to set up a community-based system of care and the lack of a monitoring system for implementation of the plan. Specifically, the Committee recommended that the Bulgarian government:

• urgently take action to close all children’s institutions;
• establish practical alternatives to institutionalisation with sufficient funds to create and maintain a sustainable system of human rights-compliant care; and
• establish a monitoring procedure to assess the implementation and results of the plan of action to close all children’s institutions and create new alternatives for child care.

MDAC and BHC called for the closure of all institutions for children as a matter of urgent priority in their parallel report. The government’s timescale of fifteen years is far too long given how damaging institutions are for children and how many fundamental rights of children are violated when they do not live in families and communities. We urge the international community as well as Bulgarian civil society to use the Committee’s recommendations to demand that the Bulgarian government move forward with plans to close institutions for children at a rapid pace.

Right to legal capacity

For many years MDAC and BHC have litigated and advocated for the reform of Bulgaria’s guardianship system, which restricts the capacity of persons with psycho-social disabilities and intellectual disabilities to act on their own behalf – or with support – and to make decisions about the most fundamental aspects of their lives.  One of the most problematic features of the current law is that people under guardianship are prohibited from having direct access to courts to challenge the restrictions on their legal capacity and there is no automatic review of such restrictions. Thus, a person may be deprived of their legal capacity for their entire life, stripped of the power to challenge the restriction.

Persons with psycho-social disabilities and intellectual disabilities are placed in institutions and denied their right to live in the community by guardians who do not take their desires and needs into account.  The lack of alternatives for housing and services in the community maintains an outdated system of institutional care that violates a myriad of human rights.  Moreover, children with even very minor disabilities are abandoned in institutions due to lack of support for families and lack of access to and awareness of rehabilitative services.

The Human Rights Committee’s observations support this analysis; it expressed particular concern (in paragraph 17) that people deprived of their legal capacity who are in institutions, “have no recourse to means to challenge violations of their rights”, and that there are serious conflicts of interest in the guardianship system, which “often includes the involvement of officials of the same institution as the confined individual.” The Committee also noted that there is “no independent inspection mechanism of mental health institutions”, an astonishing fact given the history of abuse and neglect documented by domestic and international non-governmental organisations over several years in Bulgaria.