Closing the loophole in the convention for people with disabilities

The access to justice is problematic for people with intellectual and mental health disabilities who die in state institutions. Presently the European Court of Human Rights (ECHR) only recognises the legal standing of the victim’s next of kin to bring cases under Article 2 of the European Convention on Human Rights concerning the right to life. Relatives of institutionalised people with intellectual and mental health disabilities, who have died, however, are often either missing or unwilling to file a complaint.

This means, first, that crime against institutionalised persons with intellectual and mental health disabilities goes unprevented, unpunished, and unredressed, and second, that the national criminal justice authorities will continue not paying heed to the Court’s message for reform unless the Court allows NGOs to seek justice before it for lost lives like that of Valentin Campeanu.

The Bulgarian Helsinki Committee, together with INTERIGHTS and the Romanian Centre for Legal Resources is advocating for new ways through which the European Court of Human Rights (ECHR) can help redress such crimes committed and prevent future deaths and abuse.

Often the needs of institutionalised people with disabilities, including humane treatment, therapy, psychosocial care, and re-integration are not met. Furthermore, in many East European states such people - victims of abuse or maltreatment - lack basic access to criminal justice, or any justice. In effect, the region’s criminal justice authorities disregard those people as objects of criminal law protection, denying them, thereby, recognition as persons before the national (criminal) law.

Presently ECHR only recognises the legal standing of the victim’s next of kin to bring cases under Article 2 of the European Convention on Human Rights concerning the right to life. This makes the admissibility of complaints under Article 2 conditional upon the existence of the next of kin and denies legal standing to non-governmental organisations. Under the current rules, in the absence of next of kin it is more or less impossible to bring a case before the Court concerning a violation of the right to life. This requirement is not too onerous since victims generally have a network of relatives who are willing and eager to pursue justice on their behalf. However, this is often not the case for people who have lived and died in social care institutions.

Devoid of family, community support and protection, not to mention they often lack legal capacity under domestic law; victims of institutionalised crime with intellectual and mental health disabilities are dependent on ex officio protection by police and prosecutors, or on the good faith of their guardians. Police and prosecutors are largely unaware or are indifferent to abuse against people in institutions, and guardians generally lack the necessary good faith, being, as a rule, in marked conflict of interest – an institution’s director would be a victim’s guardian, as well as the one person with overall responsibility for any victimisation occurring within the institution. As a result, crime against institutionalised persons with mental disabilities goes unprevented, unpunished, and unredressed. Cases almost never reach court.

This question is particularly pressing in the light of the deaths which occurred at the Poiana Mare Psychiatric Hospital in Romania in February 2004 (Malacu and others v. Romania and Campeanu v. Romania1). Mr. Cåmpeanu was a Roma man with HIV and a severe intellectual disability. He was also an orphan. When he turned 18 he was transferred from a youth facility to an adult facility for persons with intellectual and mental health problems. The new facility was not informed of his HIV, so he never received his medication. He died alone in a cold room. Because Cåmpeanu has no next of kin, there is no one to sue on his behalf. That is why the Romanian organisation Centre for Legal Resources and INTERIGHTS lodged a case on his behalf.

The Bulgarian Helsinki Committee intervened as a third party and submitted amicus curiae written comments before the Court. The Chamber to which the case was assigned has relinquished jurisdiction in favour of the Grand Chamber - a clear sign that the Court is aware of the importance of the question that it raises. The organizations are now waiting to hear the crucial Grand Chamber's decision on the admissibility of the application.

The Bulgarian Helsinki Committee brought three similar cases before ECHR. These concern the deaths at the St. Mina Home for Intellectually Disabled Children and Youth in October 2006 and October 2007 (Bulgarian Helsinki Committee (A.Y.) vs. Bulgaria2 and Bulgarian Helsinki Committee (N.K.) vs. Bulgaria3) as well as at the Petrovo Home for Intellectually Disabled Children and Youth in September 2006 (Bulgarian Helsinki Committee (B.S.) vs. Bulgaria). The Bulgarian Helsinki Committee will bring at least one more case concerning the death of a mentally disabled institutionalised girl in Bulgaria. The ruling on the Campeanu v. Romania case will either open or close the path to justice for these cases.

The remedy to this pervasive disenfranchisement is to allow human rights organizations (NGOs) to pursue justice for institutionalised persons with intellectual and mental health disabilities in their (the NGOs’) own right, even where a victim is deceased. We, therefore, argue that ECHR should in principle recognise NGOs’ standing to file applications before it for the sake of deceased individuals in circumstances comparable to those of Mr. Campeanu’s case, as well as for the sake of living individuals lacking legal capacity or concerned relatives.

Unless the ECHR grants NGOs standing to pursue in their own right applications before it for the sake of dead victims, like Mr. Campeanu, lacking concerned relatives to act on their behalf, institutionalised persons with disabilities, especially intellectual and mental health disabilities, will be victimised at Convention level by the same denial of justice they suffer at national level.

For the moment, we do not expect that the static domestic situation in the region will change because national criminal justice authorities will not heed the Court’s message for reform. That message will only be delivered if the Court allows NGOs to seek justice before it for lost lives like that of Valentin Campeanu.

Please watch New Media Advocacy Project (N-Map)’s video “Opening the courtroom doors for people with disabilities”.

N-Map produced this video to support the case of Valentin Cåmpeanu, a young man who died in such a facility for people with intellectual and mental health problems in Romania. The video was shot with the help of the Bulgarian Helsinki Committee, which assisted the producers with background information on this legal issue in Bulgaria and organized meetings and interviews with top officials, including the former Prosecutor General of Bulgaria (2006 - 2012) and currently Judge at the Constitutional Court of Bulgaria, Boris Velchev.

Help us raise awareness on the importance for public interest groups to be allowed to file applications with the ECHR on behalf of people with disabilities who suffer or die due to mistreatment by institutions. We would highly appreciate it if you shared this letter and the video with your audience or published your own piece on this issue.