This article, written by the human rights lawyer Constantin Cojocariu, explains the significance of the recent ruling in N. v. Romania for the process of deinstitutionalisation in Romania.
The European Court of Human Rights’ recent ruling in the case N. v. Romania (decided on 28 November) has important implications in the areas of mental health detention and community living. The applicant was a man diagnosed with schizophrenia who complained about the legality of his detention in various psychiatric hospitals since 2001, on account of unsubstantiated sexual assault allegations that had never been reviewed in court. On 28 November 2017, the Court ruled that his detention lacked a legal basis or justification at least since 2007 (the Court declined to examine the period before 2007, including the initial decision to detain the applicant, for reasons of admissibility). In addition, the Court held that the judicial proceedings for the review of the applicant’s continued detention since 2007 had not afforded sufficient safeguards against arbitrariness. Consequently, the Court found several breaches of Article 5 (right to liberty) of the European Convention on Human Rights and awarded the applicant 38,050 Euro in damages and costs. This is a brief analysis of the main points of interest in the judgment.
The Court criticized the authorities’ failure to undergo a “rigorous” assessment of the applicant’s needs or secure his release in conditions that matched those needs despite a judicial order ending his compulsory hospitalization issued at the beginning of 2017. The Court remarked that this case was symptomatic of a systemic problem in Romania in that there was a lack of social services to assist people transitioning from institutional living. Despite the authorities’ formal adherence to international norms advocating for community living, there was a failure to provide the applicant with suitable services upon his release. In view of these circumstances, the Court took the unusual step of demanding that the applicant be released “without delay […] in conditions meeting his needs.” These findings and the wording of the remedial measure create a crucial new opening in the Court’s jurisprudence in this area, suggesting that Article 5 may be construed to imply a positive obligation incumbent in State Parties to provide the community services needed to facilitate the release of individuals from unjustified mental health detention.
The Court also noted the superficial manner in which national courts reviewed the necessity of the applicant’s ongoing detention between 2007 and 2017. In particular, they failed to establish the main criterion in domestic law for detention of this type, namely that the person in question represented a danger to society. National courts impermissibly inferred the existence of danger from allegations of sexual assault that had never been proven in court and from the applicant’s diagnosis in itself. In that respect, the Court recalled under Article 14 of the CRPD, “the existence of a disability could not in itself justify a deprivation of liberty.” The successive sets of proceedings on review were flawed for a number of additional reasons. Notably, the Court criticized the ineffectual performance of the ex officio lawyers appointed to represent the applicant through the years, who had either argued in favor of his continued detention or had left the matter to the discretion of the courts, and never got in touch with him before the hearings took place.
The Court warned that these deficiencies were likely to give rise to other well-founded applications in the future. It therefore indicated additional general measures to the Romanian State: to ensure that the detention of individuals in psychiatric hospitals was lawful, justified and not arbitrary; and to ensure that any individuals detained in such institutions are entitled to take proceedings affording adequate safeguards with a view to securing a speedy court decision on the lawfulness of their detention. The Court uses its power to indicate individual or general remedial measures under Article 46 of the Convention on an exceptional basis, in cases that highlight systemic or structural problems with the potential to generate significant numbers of similar complaints in the future.
The judgment is infused with references to the CRPD and the work of the CRPD Committee. The Court cited with approval Article 14 of the CRPD (“liberty and security of the person”), the CRPD Committee’s statement of interpretation on Article 14, as well as the its Marlon James Noble v. Australia decision, with facts that are strikingly similar to those in N. v. Romania, as well as Article 19 (“living independently and being included in the community”). Thus, the N. v. Romania ruling is another step in the process of reconciling the two human rights instruments, including with respect to such divisive issues as mental health detention. Also notable is the Court’s willingness to highlight the systemic underpinnings of the violations found and indicate individual and general remedial measures to the Romanian State. The Court had previously made similar use of its remedial powers in another disability case originating from Romania, Centre for Legal Resources on behalf of Valentin Campeanu, decided in 2014, urging the Romanian authorities to “envisage the necessary general measures to ensure that mentally disabled persons […] are afforded independent representation, enabling them to have Convention complaints relating to their health and treatment examined before a court or other independent body.” These two judgments, in addition to other jurisprudence, constitute a strong platform that advocates may use to push for badly needed reform in the areas of access to justice and deinstitutionalisation in Romania.
The Court’s judgment (in French) is available here.
The press release (in English) is available here.
The applicants in N. v. Romania, as well as in Valentin Campeanu v. Romania, were represented by Constantin Cojocariu, a lawyer licensed to practice in Romania and based in London.