Some thoughts on the significance of Campeanu v. Romania, before the Grand Chamber ruling on 17 July 2014

Valentin Campeanu, the applicant in the case Campeanu v. Romania, pending before the Grand Chamber of the European Court, was an intellectually disabled orphaned young man who grew up in an institution. When he turned 18 in 2003, Valentin was discharged from the home where he spent most of his childhood. The only option that the authorities envisaged was to transfer him to an adults’ institution. However, no institution was initially willing to accept him presumably because of stigma attached to his HIV positive status. The authorities eventually succeeded to secure his transfer to a social care home by fraudulently concealing his diagnosis. The transfer, which took place on 5 February 2004, was unsuccessful, as Valentin only spent a few days at the social care home, before he was taken to the Poiana Mare Psychiatric Hospital, infamous at the time for its grotesquely high patient mortality rates due to extremely substandard living conditions. Valentin was effectively abandoned in an unheated storage room without food and medical treatment, and died on 20 February 2004.  The official investigation followed the familiar pattern of all investigations in Romania into institutional abuse allegations before and since – it was very superficial and ended up with a finding of non-indictment. We filed an application with the European Court of Human Rights on Valentin’s behalf in 2009. In recognition of its importance, in 2012 jurisdiction over the case was relinquished to the Grand Chamber, which will finally deliver its judgment on 17 July 2014.

This case is only the second disability case that has been heard by the Grand Chamber of the European Court after Stanev v Bulgaria over the past twenty-odd years, in itself a marker of its significance. Like many other disability cases originating in Eastern Europe, it illustrates the multifaceted and severe failure by state institutions to protect and support people with disabilities, leading to a wide range of violations of the Convention. In this post, I will try to tease out briefly the significance of the case and of the ruling ahead of us, not an easy task considering the complexity of the issues involved.

Although it may sound tedious, a procedural issue takes centre stage in this case. However, in case of a win this may have the most far-reaching consequences going even beyond disability rights. Valentin’s mother abandoned him at birth and died in the meantime. He has no other known relatives and he had not been placed under guardianship. And here comes the snag – only close relatives/guardians have standing to file a complaint regarding the circumstances in which their loved ones died under Article 2 of the Convention on the right to life. Our complaint also included claims under other articles of the Convention, including the right to liberty and the prohibition of inhuman and degrading treatment – for rights other than the right to life, the theory is that relatives may only claim violations of rights that are transferrable, like the right to property, but not of non-transferrable rights, like the right to liberty. Since Valentin, like many other people with disabilities languishing in institutions, had no relatives, we argued that the Court should allow NGOs working in the disability field to represent him – in this case the Centre for Legal Resources (CLR).

The issue is complicated, particularly as the Court’s jurisprudence is ridden with exceptions and inconsistencies, but in essence our line of argument was that the Court could not let the Government escape its responsibilities under the Convention for such serious violations under the pretext of a mere technicality. We asked during the hearing, and the Government could not answer – how else could Campeanu’s case reach the European Court if not through an NGO? It helped that the national courts recognised that the CLR had standing to represent Campeanu and that the European Court’s sister regional human rights tribunals use comparatively more generous admissibility requirements which would have permitted them to hear this case. Understandably, the Court was uneasy about our arguments fearing that it may open the floodgates of NGO-driven public interest litigation compounding its well-known caseload problem. Without going into details, in case of a positive ruling on admissibility, the Court will likely wish to define the circumstances of NGO standing very narrowly. In any event, such a ruling would be very beneficial, as it would afford NGOs additional space before the European Court to defend vulnerable individuals, not necessarily restricted to persons with disabilities.

On the substance, contrary to public perceptions this is not necessarily a case about living conditions in institutions, of which there had been others already. Valentin spent very little time at the social care home and then at the psychiatric hospital where he died, after being discharged from the institution where he grew up. This case is a rare glimpse into state practices relative to people with disabilities in their care and under their control, whereby the authorities are allowed to operate in a grey area outside the remit of any cognisable law or procedure, without any meaningful supervision and without the fear of any consequences, giving their disablist prejudice free rein and enabling them to dispose of people’s life and death at will. In that sense, this case presents troubling similitudes with the much more publicised practices of extraordinary rendition operated by the United States during the “war on terror”. The fact that Campeanu’s name ever reached public consciousness in itself is a miracle as it was completely fortuitous. It so happened that on the day when Valentin died, a CLR monitor visited Poiana Mare Hospital, witnessed his plight and upon her return took immediate action on his behalf. It is reasonable to infer that Valentin’s death is not an exceptional occurrence, and that similar abuses are the rule in institutions across Romania.  Documenting this reality is one of the main purposes of this case.

Although a long litany of horrendous abuses which took place in Romanian institutions have been documented and came to light over the past twenty years, little has changed. Not only did authorities refuse to engage in meaningful reform, but they didn’t even acknowledge the scale of abuse or the fact that something is fundamentally wrong in the social care system in Romania. In proceedings in this case, the authorities added injury to insult by busily denying that anything untoward happened at the Poiana Mare Hospital, or that Valentin died from anything other than natural death. The Government’s agent even presented and knowingly relied on forged documents seeking to displace overwhelming evidence of mistreatment. This attitude is reminiscent of that displayed by authorities involved in Campeanu’s care and the investigation into his death, indicating how little has changed in the past ten years, and how prevalent the problems are. A positive judgment may push the Government to acknowledge past and current abuses, an indispensible step on the path to real reform. 

The second objective of the case is to tease out the contents of State obligations towards a group of people whose claims have rarely been heard by the Court: people like Valentin who live in institutions for long periods of time, without any relatives or anybody else to represent their interests, with severely impaired mental capacity, completely dependant on the state for their day to day existence and long term future. Currently, the Court has only occasionally ruled that states should take action ex officio to safeguard the rights of members of this group, for example by requiring a system of automatic and periodic review of the lawfulness of involuntary psychiatric detention under Article 5.1(e). The main question in this context is related to their access to justice, the absence of which made such abuses as exemplified in this case possible to start with – we argued for example that states should have in place independent monitoring mechanisms to prevent torture akin to those required under OPCAT. Additionally, we are looking for a general acknowledgment from the Court that the warehousing and mistreatment of people with disabilities in institutions is, in this day and age, completely unacceptable, that people with disabilities should be involved in all decision-making that concerns them, that they should receive support to take decisions etc. This may sound unreasonably hopeful, particularly considering the Court’s past record on disability. Then again, this may be just the type of case occasioning such sweeping statements with the Grand Chamber clarifying in an authoritative manner that people with disabilities too are entitled to expect substantive protection under the Convention.

Finally, I would like to formally acknowledge the contribution of many, many people who helped document, reveal, litigate, and support in many ways during the past ten years the efforts to secure accountability for the high mortality rates at the Poiana Mare Hospital during two consecutive winters in 2002-2004, and of which Campeanu v. Romania is a part. This is the sort of long term, complex engagement that tests the viability of strategic litigation as a whole, possibly paralleled in Eastern Europe only by the campaigns around the Roma education case D.H. and Others v Czech Republic and Roma pogroms centred around Moldovan and Others v. Romania. The Centre for Legal Resources, including many people who came and went, have spearheaded this process at national level, and I have taken over when we filed the case to the European Court in 2007. I remember distinctly that very few people at the time – if any – gave these cases any chance of success considering the standing problem outlined above. To have reached the Grand Chamber is already an achievement, to go further would be amazing.

Further background information about this case is available HERE, HERE (in English) and HERE (in Romanian). Constantin Cojocariu is an independent human rights expert and lawyer specialised in advising transgender and disabled applicants in proceedings before the European Court of Human Right, and who acted as the applicant's counsel in Campeanu v. Romania.