Another
scandal has recently broken out in Romania around accusations that Clara, a
sweet 9-year-old girl with Down syndrome, was beaten up at the special school
in Bucharest she was attending. Allegations of abuse against people with
disabilities occur regularly to an increasingly indifferent reception from the
general public and the authorities. Before Clara, we received news about
children tied to beds in a hospital in Bacau. Before that, there was the
scandal about a social care home in Oradea where physical and sexual abuse of
young residents was rife. Before that, there were the sad on-going reports of
young severely disabled youth in a social care home in Bucharest permanently
tied to their beds and starved, outsiders’ access to the institution denied. Serial
allegations of abuse against children and adults with disabilities institutionalised
in separate schools, separate institutions and separate hospitals, stretch back
as far as I can remember, certainly since the fall of communism in 1989. There
is one common thread connecting all these incidents, aside from public
indifference. Nothing ever happens – nobody loses their job or goes to prison,
no institution closes down and nobody ever leaves the institution. This brings
me to the topic of this post (the first in a series hopefully) - the complete
absence of remedies in Romania for rights violations against persons with
disabilities.
Romania
stands out among European countries in terms of the number and range of disability
cases that reached the European Court of Human Rights, a relatively recent
phenomenon. We got cases on involuntary detention, on rape, on legal capacity,
on ill treatment by the police, on conditions in institutions, on
accessibility, on education, on people who died in institutions because of cold
and hunger and lack of medical treatment. Currently, Romania has the only two
disability cases pending before the Grand Chamber: Gherghina and Campeanu. The
absence of remedies is a common feature in almost all these cases, apparent at
different levels of inquiry: exhaustion of domestic remedies, procedural
obligations under article 5, the right to an effective
remedy, procedural obligations to investigate abuse, or the right to a fair
trial. One of the requests that the State received from the European Court in Campeanu was to provide examples of
successful prosecutions of abuse in institutions. Notwithstanding the
notorious fact that abuse is rife in Romanian institutions, the State was not
able to provide one example. On the other hand, we could show that no prosecutions resulted in relation
to the hundreds of people who died at the Poiana Mare Hospital during consecutive
winters at the beginning of the 2000s.
The European Court recognised
the crisis of the court system in Romania, making some remarkably sweeping
statements on the issue of domestic remedies. There is no
remedy in Romania to challenge the necessity of compulsory psychiatric
examination taken under Article 117 of the Criminal Procedure Code, the Court
said (C.B. v Romania).
In Cristian Teodorescu v Romania and B. v Romania (No.2), the Court identified
gaps in the Romanian mental health law, which restricted the access to justice
of persons seeking to complain against their involuntary commitment in
psychiatric hospital. It was not surprising, the Court concluded, that no
complaints based on this law had been introduced over a period of ten years
since it has come into force on 8 August 2002. In Parascineti, the Court noted that the Government was not able to
demonstrate that any complaints had been filed before domestic courts
regarding living conditions in a psychiatric hospital for the period 2002 to
2010. In Stelian Tanase, the Court determined that a
national court’s contempt towards a person with disabilities may render a
remedy that is effective in principle, such as a torts action on the basis of
Arts. 998 and 999 of the Civil Code, ineffective.
Elsewhere, in Filip v Romania,
the Court found a procedural breach of Article 3 on account of the “passivity”
of authorities in dealing with the applicant’s complaints related to the living
conditions during his commitment in a psychiatric hospital, as well as to the
alleged ill-treatment suffered during that time. An additional violation of
Article 5§4 was based on the prosecutors’ refusal to decide on the merits of
the complaint regarding the lawfulness of the commitment, as well as the length
of the procedures in the same case. In B
v Romania, Archip v Romania and M.B. v Romania, the Court found
violations of the procedural arm of Article 3, on account of the authorities’
failures to conduct an effective investigation into allegations of
ill-treatment against persons with mental health problems, including rape.
On more benign, but no less important
rights such as social support, accessibility and education, the situation is
equally problematic. One of our main claims in Gherghina, currently pending before the Grand Chamber, is that
legislation on accessibility duties is so vague as to render any remedies at
the national level illusory and ineffective. I am currently looking at the remedies
that a child with disabilities may use to complain in relation to a breach of their
right to quality inclusive education, in relation to another case pending
before the Court, Stoian. Considering
the sheer complexity of an ever shifting legislation, the vague and
non-committal wording of these provisions, the presence of a multiplicity of state
agencies with overlapping and conflicting duties, I strongly doubt victims of
discrimination have any remedies to exhaust in Romania before going to
Strasbourg, similarly to the cases on segregation of Roma in education against
Greece.
These cases reveal a systemic problem in
Romania whereby courts, prosecutors and other agencies systematically defer to
doctors, educators and other “professionals” to take life and death decisions
on behalf of persons with disabilities. In doing so, they share the outlook of
Romanian society more broadly, that would rather look away when a person with
disabilities is abused. However, in doing so, judges and prosecutors swim
against the tide. Sooner or later, something must change. Romania is firmly
under international spotlight this year for its treatment of persons with disabilities,
and for a good reason. As mentioned above, two leading disability cases against Romania are pending before
the Grand Chamber of the European Court. Disability is one of the issues on the
agenda for the Romania country visit of the Council of Europe Human Rights
Commissioner at the end of March. The Committee for the Prevention of Torture
will also visit Romania this year, and is likely to include psychiatric
institutions and/or social care homes on its agenda. Al Jazeera has been
filming a documentary slamming Romania’s failure to reform its institutions,
which will probably also air in March. Finally, the European Commission is
putting increased pressure on Romania to adopt its disability strategy, in
order to better spend EU funds in this area. Who knows, maybe Clara’s case is
the marker for a new beginning after all.
The next article in the series on remedy
will look at whether the European Court of Human Rights is a viable remedy for
applicants with disabilities.
No comments:
Post a Comment