5 September 2013

The Romanian government killed a young man with disabilities. Will it get away with it on a technicality?

What a week. I am writing this in Krakow, Poland, where I’ve been doing some training on disability law for the Academy of European Law. The 1.5-day course was for judges from 21 European countries and my task was to tell them about the invisibility of people with disabilities, and how judges can play an instrumental role in making sure that human rights are respected. Krakow is close to the Auschwitz concentration camp, where my great-grandfather and several other members of my family were murdered.


"NGOs can sometimes provide the support [people with disabilities] need to have their voices heard, to seek justice, and to have their Convention rights respected.” - Nils Muižnieks, Commissioner for Human Rights of the Council of Europe  (picture by romea.cz)


To prevent discrimination, detention, torture and killings from ever occurring again, jurists wrote the European Convention on Human Rights, which entered into force in September 1953, 60 years ago this week. I am fairly confident that the drafters of the Convention did not have in their minds that their text would, two generations later, be used in a case about a young man with intellectual disabilities who died at the hands of the state in a cold room of an eastern European psychiatric asylum.

But the beauty of the Convention is that it is a living instrument which is used by creative NGOs and lawyers to breathe life into areas unexplored by the European Court of Human Rights. Yesterday the Grand Chamber of this court held a hearing in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania. (You can watch the webcast here. For a summary of the facts of the case, see Interights’ summary here).

Who was Valentin Câmpeanu?

Valentin Câmpeanu was born in 1985 and abandoned by his mother at birth. His father is unknown. He was soon diagnosed as having both HIV and intellectual disabilities. Valentin lived in an institution for disabled children during his entire childhood, and when he reached the age of 18 the authorities wanted to move him out. On 5 February 2004 a social care institution received him, but his medical record and his antiretroviral medication for HIV were not taken with him. During the next week his health deteriorated rapidly, and he was transferred to the (now infamous) Poiana Mare hospital.

On 20 February my old friend and colleague Georgiana Pascu from the Centre for Legal Resources (CLR) visited the institution as part of regular human rights monitoring. She met with Valentin. He was in a room which staff described to her as a ‘storage room’ which had no heating (remember, this is February in Romania, where temperatures average minus 5˚C and can plunge as low as minus 25˚C). He was almost naked and very thin. He could not walk to the toilet unaided. Staff did not help him because they feared touching him would infect them with HIV.

That evening Valentin Câmpeanu died.

Valentin was just one person to die in the infamous Poiana Mare hospital. Having a capacity of 500 beds, the hospital reported 68 deaths in 2002, 87 deaths in 2003, and 28 deaths in the first few months of 2004, including Valentin.

Georgiana saw Valentin at a psychiatric institution which he had been admitted to the week before, only hours before he died. At that point he was malnourished and, not surprisingly, he was distressed. Remarkably, he had been transferred to a psychiatric hospital instead of the nearest intensive care unit where he should have been sent. On 20 February 2004 Georgiana found him alone in an unheated room which contained a bed without bedding. He wore only a pajama top. The CLR found that he had received no help to eat, or to use the toilet.

Following Valentin's death so soon after their monitoring visit, CLR lodged a criminal complaint with the prosecutor alleging negligent homicide. The prosecutor decided not to prosecute. A county court upheld the prosecutor’s decision in April 2008 on the grounds that there was no causal link between the way in which Valentin was treated and his death. The correct procedures had been followed, said the authorities, and that was that.

In October 2008 the CLR brought a case to the European Court of Human Rights (ECtHR) on Valentin’s behalf, as he had no next of kin who would ordinarily bring the case. The case alleges that his rights under Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) have been violated. The NGO Interights is representing CLR. Several NGOs submitted third party interventions including MDAC. Importantly, the Council of Europe Commissioner for Human Rights also intervened. For more information on the right to life and freedom from ill-treatment of people with disabilities and people with HIV, see MDAC’s third party intervention in this case.


Access to the European Court

The Centre for Legal Resources (CLR) is a Bucharest-based human rights NGO, with whom MDAC works on a variety of projects. For several years CLR has been carrying out monitoring of psychiatric hospitals across the country, because the government has shamefully failed to designate a national independent mechanism to carry out preventive monitoring.

The case raises several issues about how the state treated Valentin: how they kept him detained, denied him an education, institutionalised him in grotesque conditions, failed to provide him with food and water, failed to provide him antiretroviral medication, failed to ensure that he received healthcare, failed to prevent and remedy discrimination on the basis of his HIV status, intentionally caused him severe physical and mental pain and suffering and so on. The European Court needs to grapple with these and make findings of fact with regard to the state’s culpability in torturing Valentin Câmpeanu while he was alive, and its liability in causing his death.

Grand Chamber of the European Court of Human Rights (hmtennapel.weblog.leidenuniv.nl)

Why is access to the European Court problematic in this case?

The case turns on the Court’s interpretation of Article 34 of the European Convention on Human Rights. This is headed “individual applications” and states the following:

“The Court may receive applications from any person, non- governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

Article 34 means that a living human being can apply to the Court if it thinks that a Convention right has been violated. It says that an NGO can also do this, but the same rules apply: the NGO can only apply if the NGO itself claims to be a victim. This arises in cases where, for example, a State has impeded on an NGO’s freedom of association or assembly.

In cases where the relevant person is dead (like this case), it has been the Court’s long-standing practice to allow applications to be brought by the next of kin on behalf of the deceased person. This is a legal conundrum which I, with Peter Bartlett and Oliver Thorold highlighted in our book on mental disability and the ECHR in 2007. It’s amazing to see this now being addressed.

In this case, Valentin Câmpeanu had no next of kin. So CLR took the initiative to bring the case to the European Court of Human Rights on his behalf. This is the contentious point, and the case rests on whether the Court finds the case admissible. So let’s look at what happened in the courtroom.


Arguments before the Court

You can view the webcast of the hearing here. The government went first, then the applicant, then the Commissioner for Human Rights who intervened in the case.

Government: The government’s lawyers argued that CLR has no standing to bring the case because they did not have Valentin’s instructions and had barely met him and cannot be thought of as his representative. The government noted – completely missing the point – that CLR did not have Valentin’s written instructions to represent him (of course they didn't: they found him half naked, starving and denied him medical treatment in an unheated storage room in the last hours of his life). The government’s representatives used several impressive Latin phrases to argue quite unconvincingly that the Court should find the case inadmissible under Article 34 of the Convention. They added for good measure that Romania has taken all sorts of wonderful steps to promote and protect the rights of people with disabilities in recent years: it sounds great!  

Applicant: [Before I summarise what was argued, please permit me to get slushy. The main representative of CLR in the case is Constantin Cojocariu, a Romanian lawyer who works at Interights. Constantin was an LLM student at the Central European University in 2003, and attended my very first course on “mental disability law and advocacy” which I’ve been teaching ever since. Constantin and I have done several seminar/conference gigs together over the years but you cannot imagine the tide of pride which overcame me as I watched my former student address the Grand Chamber of the European Court of Human Rights.]

CLR argued that the Court should extend an indirect victimhood status to organisations in situations where the original victim has died and where the victim had no relatives or other formal sources of representation. The lack of relatives or guardians greatly increased the risk of abuse and the feeling of impunity by staff dealing with Valentin. During his life, there was no way for Valentin to complain about his mistreatment, and there was no one to complain on his behalf. There was (and is) no independent inspectorate for psychiatric institutions or social care institutions [in flagrant breach, I might add, of Romania’s obligations under Article 16(3) of the UN Convention on the Rights of Persons with Disabilities, and in breach of the Optional Protocol to the UN Convention against Torture].

No-one has been held to account for Valentin’s death or the untimely deaths of others who died during those murderous winters. CLR made the point that the Romanian domestic courts have heard cases where CLR has been the applicant on behalf of Valentin. And, crucially, CLR challenged the government to come up with any suggestion as to who could represent Valentin so that claims of ECHR violations could be ventilated before the Strasbourg court. This point was echoed subsequently in a question by one of the judges, a question which the government spectacularly failed to answer.

Commissioner: Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe also spoke at the hearing. It was his first address to the Court, indicating the importance he places on the outcome of the case, starting out by informing the court that “the rights of persons with disabilities have been central” since he first started work in April 2012. He highlighted the issue paper on the right to live in the community which his office produced (and which MDAC was involved in writing). He cited the UN Convention on the Rights of Persons with Disabilities (CRPD), and said that “implementation has been slow and remains inadequate in all Member States.” Rights violations, “are often not brought to court,” and access to justice for people with intellectual disabilities remains “highly problematic”. He noted the need to reform legal capacity laws to be CRPD compliant, and to introduce supported decision-making models.

The Commissioner absolutely nailed the main argument by saying this:

“A strict application of standing requirements to persons with disabilities, and in particular intellectual disabilities, would have the unfortunate effect of depriving a particularly vulnerable group of any reasonable prospect of seeking and obtaining redress for violations of their human rights set forth in the Convention. It would also run counter to the Convention’s objective of preventing the occurrence or recurrence of human rights violations by the States Parties.”

In support of the applicant’s arguments that the CLR should be considered as having legal standing to bring this case, he made an important point about NGO actions more broadly.

“At European level, the Court’s own case-law on questions relating to the human rights of persons with disabilities, has evolved considerably in recent years thanks precisely to the intervention of NGOs. Many of these cases only reach Strasbourg thanks to the legal support and advocacy provided by NGOs when the applicants had no-one else to turn to. Many of them have been stripped of their legal capacity by domestic courts in ways that violated the Convention, and essentially had no access to justice in their home country. NGOs can sometimes provide the support these persons need to have their voices heard, to seek justice, and to have their Convention rights respected.”


What next?

We have to wait until the Court comes out with its judgment. This could take up to a year, in my experience. Don’t forget that 17 judges have to decide on this incredibly important point. Justice requires that they find the case admissible. If they do then two things flow.

First, they will carefully need to carve out the criteria they are using to allow CLR to bring this case. They will be speaking to NGOs in the future who may be interested in bringing cases on behalf of a range of people: perhaps disappeared people, perhaps prisoners with no relatives and so on.

Second, if they find the case admissible they will have to deal with the merits. The facts are so stark that I am confident that the Court will find a violation of Article 2 (the right to life) of the ECHR. As for an Article 3 (torture and ill-treatment) claim, they will have to assess the level of Valentin’s suffering in the months and days leading up to his death. The Court should pay attention to the expanding notion of the torture framework as it applies to people with disabilities, as expounded by Juan Mendez the UN Special Rapporteur on Torture. And it should read carefully the submissions under Article 14, the right to non-discrimination. Valentin Câmpeanu was treated differently from other people who were born in the same place and at the same time as him was that he had a disability. Now is a good time, and this is a good case, for the Court to begin to lay out their jurisprudence on disability-based discrimination.