A legal saga: ‘Mr. N.’s’ journey from the psychiatric hospital to community living via Bucharest and Strasbourg

29 September 2020
A legal saga: ‘Mr. N.’s’ journey from the psychiatric hospital to community living via Bucharest and Strasbourg

By Constantin Cojocariu, EHRAC Lawyer, who over the years has litigated numerous disability, LGBT, and Roma rights cases before the European Court of Human Rights and national courts in Romania. His involvement in Mr. N.’s case started in August 2014, when he visited him for the first time in Săpoca Psychiatric Hospital, after which he acted as his legal representative in all proceedings mentioned in the article.  

On 29 January 2001 police arrested ‘Mr. N.’ and committed him to a psychiatric hospital after a local newspaper in Bucharest published a short article accusing him of having molested his children. A psychiatric report subsequently found that Mr. N. lacked discernment due to schizophrenia and a court formally validated a psychiatric detention order.

Although most charges against Mr. N. were eventually dropped, he spent the next seventeen years involuntarily detained in high security psychiatric hospitals. During this time, Mr. N. went before national courts on many occasions to claim his innocence, but the default response was that he was too ill and too dangerous for release.

The European Court of Human Rights (“ECtHR”) took a different view. It found that Mr. N.’s detention had been unlawful and ordered the Romanian authorities to release him. The ECtHR also asked Romania to take general measures to remove arbitrariness from its forensic psychiatry system. The ruling triggered an unlikely sequence of events that engaged national and international actors and exposed layers upon layers of persecution and marginalisation of some of the most vulnerable people in society.

This article aims to document that journey. It draws some conclusions on the potential of strategic litigation, and of engaging international institutions, to achieve some degree of change for people with disabilities.

The first ray of light

The judgment in the case N. v. Romania was published in February 2018. It was decided that Mr. N. had been unlawfully detained since at least 2007, resulting in multiple violations of his right to liberty (Article 5 of the European Convention on Human Rights).

The ECtHR noted that the national authorities failed to adduce any evidence proving that Mr. N. was dangerous, justifying his continued detention as a forensic patient. His release was delayed by the systemic absence of suitable facilities to help patients re-settle after long periods of detention. Furthermore, the proceedings reviewing the validity of Mr. N.’s detention through the years were flawed due to the poor performance of ex officio lawyers and to widespread procedural irregularities.

Making use of its powers under Art. 46 (which relates to the binding force and execution of judgments), the ECtHR instructed the Romanian Government to immediately release Mr. N. “under conditions consonant with his needs” and to take general measures to ensure that psychiatric detention was “lawful, justified and devoid of arbitrariness”.

Litigation in Romania

Certain national-level developments further elucidate the ECtHR’s findings.

In 2015, I started to argue that Mr. N. should be released based on lack of public risk. In 2016, and then again in 2017, national courts conceded the point and ordered that Mr. N. should be released. However, those orders could not be implemented without organised support and clear procedures in place. In short, people like Mr. N. were never likely to be released, so these demands found the relevant authorities completely unprepared.

This offered the ECtHR the opportunity to emphasise the systemic underpinnings of Romania’s failure to release Mr. N. It drew on the provision of the Convention on the Rights of Persons with Disabilities (CRPD) that declared disability-based detention unlawful, and recalled the international trends in favour of deinstitutionalisation. The ECtHR noted that national courts were neither entitled to supervise nor secure Mr. N.’s release in appropriate conditions. Furthermore, there was a “lack of suitable reception facilities” to help patients like Mr. N. back into the community.

These findings are reflected in the wording of the remedial measures prescribed under Art. 46, which offered a strong platform for advocacy at the national level, as well as before the Council of Europe’s Committee of Ministers (CoM).

The long way home

The process of securing Mr. N.’s release continued to be fraught with difficulties, despite the ECtHR’s exhortations. The inertia built into the system, the stigma against people with psychosocial disabilities (particularly those alleged to have committed a crime), the lack of an institutional path to community living, and the lack of a family to return to, conspired to preserve the status quo. I was required to continue arguing our case before the CoM.

In early May 2018 the CoM received information about the lack of progress in arranging Mr. N.’s return to the community. Several weeks later, Mr. N. was finally transferred to a social care home in Bucharest, thus ending his 17-year stay in psychiatric hospitals.

Mr. N. escaped the status of a psychiatric patient and the substandard conditions at the psychiatric hospital. Nonetheless, the social care home was still a residential institution and Mr. N. continued to be de facto deprived of his liberty.

In a fresh submission, I insisted that this would only be acceptable as a staging post for Mr N.’s path back to the community and informed the CoM that Estuar Foundation, a Bucharest-based NGO, was ready to provide him with sheltered housing if the local authorities agreed to cover the requisite funding.

The CoM first examined the execution of this case in December 2018. The resolution issued on this occasion noted the progress made in returning Mr. N. to the community and called on the authorities to continue their efforts with a view to securing “community based accommodation suited to his needs,” specifying further that sheltered housing was required.

In September 2019, Mr. N. finally moved out of the institutional system to an ordinary block of flats in Bucharest where he lives with support provided by Estuar. This is one of the first publicly funded, community-based, sheltered housing schemes for people with psychosocial disabilities in Romania.

Calling for general measures 

Mr. N.’s case is only the tip of the iceberg. Hundreds of forensic patients, sometimes referred to as “social cases,” languish in psychiatric hospitals without any prospect of being freed. This is caused by the structural lack of provision for deinstitutionalisation and the absence of a network of support in the community. The ECtHR pointed out that these structural problems were “liable to give rise to further justified applications in the future,” and prescribed specific remedial action aimed at ending unlawful psychiatric detention.

Following the N. v. Romania judgment, I joined forces with the European Network for Independent Living (ENIL) and the Estuar Foundation to make a detailed submission to the CoM outlining the scope of the general measures required with respect to the detention in the forensic psychiatry system and on access to justice for people with psychosocial disabilities. At the national level, I worked with local organisations to push for a draft bill, which aimed to fundamentally overhaul the forensic psychiatry system, as well as by looking for other litigation opportunities to increase the pressure for change.

Although three years have passed since the ECtHR’s judgment, we have yet to see any substantive progress at the national level or before the CoM.

Back to square one

While these events were unfolding, a different line of litigation moved in the opposite direction, leading to a radical loss of autonomy.

This began after the ECtHR misguidedly asked the Government to indicate the name of the legal representative appointed to act for Mr. N. during proceedings in the N. v. Romania case.[1] The only type of representation available under Romanian law for persons like Mr. N. is an extreme form of plenary guardianship that had remained essentially unchanged for 150 years.

Approximately 85,000 people with psychosocial disabilities are placed under so-called ‘interdiction’ (a measure that is applied loosely and on a permanent basis in the vast majority of cases, with minimal judicial supervision) that vests the individual’s fundamental rights in an unaccountable third party (‘the guardian’) who often works for the state or for the residential institution holding that individual. Purportedly a measure of protection, ‘interdiction’ is in fact a means to control marginalised individuals and provide cover for abuse.

The domestic authorities launched proceedings to place Mr. N. under guardianship in 2014. Unsurprisingly, a district court (in 2016) and a county court (in 2018, on appeal) agreed with that request based solely on a medical expert report that deduced a lack of mental capacity based on Mr. N.’s diagnosis. This meant that just as Mr. N. was finally leaving the psychiatric hospital, he simultaneously suffered “civil death” through incapacitation.

Other developments provided some reasons for hope. In 2017, the county court agreed with our request to refer a question to the Constitutional Court regarding the constitutionality of the main provision in the Civil Code regarding the ‘interdiction’ procedure. Furthermore, in 2018, Mr. N. filed his second application with the ECtHR, in which he claimed that his incapacitation was in breach of Arts. 8 and 14 of the Convention. This was communicated in May 2019.

A new hope?

I argued that Mr. N.’s incapacitation hindered the execution process in N. v. Romania, both in terms of obstructing his return to the community and of preventing him from accessing the just satisfaction awarded by the ECtHR.

In its resolution issued in December 2018, the CoM reacted by expressing dismay that the “deficiencies in the current system of legal protection for adults left the domestic courts with no option but to place the applicant under guardianship and thus deprive him of the exercise of his civil and political rights.”

The CoM went on to emphasise that until such time as Romania adopted “legislation establishing a new system of independent and effective legal protection, tailored to the specific needs of adults with mental disabilities,” the authorities had “to take steps to ensure that the appointed guardian involved [Mr. N.] and took his preferences into account in the decisions concerning him, if consistent with his best interests,” as well as provide information about “the legal safeguards or any arrangements made or envisaged to ensure that the sum awarded as just satisfaction was used in [his] best interests.”

In parallel, I urged the Commissioner for Human Rights, during her visit to Romania in November 2018, to properly note the deficiencies of the guardianship system. This was reflected in her report, which called for the system to be abolished and replaced with supported decision-making in line with international standards.

Romania’s Constitutional Court finally organised hearings in Mr. N.’s guardianship case at the end of 2019. In fact, Mr. N. took part in one of these hearings and personally addressed the Court, presumably the first and last person under ‘interdiction’ to do so.

In July 2020, the Constitutional Court ruled that the impugned provisions in the Civil Code were unconstitutional, in one of the most significant breakthroughs for people with psychosocial disabilities in Romania. Once the full judgment is published in the Official Gazette, Romania’s parliament will have 45 days to devise a wholesale reform of the guardianship system.

Provisional conclusions

Mr. N.’s saga is ongoing, with several vital procedures continuing before the Committee of Ministers, the ECtHR, and the Romanian parliament. However, the recent Constitutional Court ruling provides a suitable juncture for some tentative conclusions.

Firstly, this case exposes the interlinked and deeply embedded structures and practices used to control people with psychosocial disabilities, ranging from widespread stigma and economic marginalisation, to institutionalisation and guardianship. In that sense, although Mr. N. managed to finally break free from the psychiatric hospital and the label of a dangerous patient, he was immediately placed under guardianship in a chain of events that had actually been triggered by the ECtHR.

Secondly, this case is a good example of courts and other institutional actors at all levels engaging in productive dialogue and cross fertilisation to expose and correct injustice. We have seen how strong language in the ECtHR’s N. v. Romania judgment formed a platform for advocacy before the CoM, which in turn provided the Constitutional Court with a reason to step out of its comfort zone.

Thirdly, although it takes time and effort, strategic litigation works and it need not be particularly costly, involving, in this case, an aggrieved individual with a burning sense of injustice and a determined pro bono lawyer.

Fourthly, despite meaningful but isolated change, structural change has proven an altogether more difficult prospect to achieve. Romania has not so far shown any interest in engaging in the sort of reform of its forensic psychiatry system required by the Committee of Ministers and it is not clear if any amount of pressure from international actors would change that.

Meanwhile, Mr. N. is trying to rebuild his life and he is enjoying every minute of it. Besides cooking and shopping, and talking to his friends and PAs, he is making plans, eyeing a business opportunity in a bakery near his flat. He would like to get a driving licence. He wants his own flat and a job as a watchman. He would like to start a new family.

And he also wants to help the friends he left behind in the psychiatric hospital.

[1] I previously addressed this practice by the ECtHR in a Strasbourg Observers blog: Silencing the Voices of People with Disabilities: Recent Developments before the European Court of Human Rights, 3 December 2014.