Friday, 24 July 2020

Constitutional Court strikes down oppressive guardianship provisions from Romanian Civil Code.

On 16 July 2020, the Romanian Constitutional Court struck down as unconstitutional the provision in the Civil Code regarding plenary guardianship (or ‘judicial interdiction’ in a literal translation), putting an end to a legal institution that had survived virtually unchanged since 1864. The official press release issued on this occasion states that ‘judicial interdiction’ is not accompanied by sufficient guarantees ensuring the respect of fundamental human rights and freedoms. Furthermore, ‘interdiction’ does not distinguish between different degrees of incapacity or take into account the plurality of individual interests, is not applied for a determined period and is not subject to regular review. The Court held that any measure of protection must be proportionate to the degree of capacity, adapted to the life of the person, apply for the shortest time possible, be revised periodically and take into account the will and preferences of persons with disabilities. Notably, the Court mentioned that its decision was guided by Article 12 of the CRPD. 

This judgment is the latest stage of a legal saga that extended over the past six years, involving Mr. N., a man with psycho-social disabilities and psychiatric hospitals survivor, and his representative, London-based Romanian lawyer Constantin Cojocariu, acting on a voluntary basis. The campaign includes, besides the Constitutional Court judgment, a breakthrough European Court of Human Rights judgment in the case N. v. Romania (2017), requiring the State to plot a path back to the community for hundreds of forensic patients who languish in Romanian psychiatric hospitals without any hope of release. Another case involving Mr. N., N. A. v. Romania, challenging his placement under guardianship, is pending before the European Court of Human Rights, has been communicated twice (here and here) and has been designated a leading case. In parallel, involvement in the execution procedure before the Committee of Ministers in relation to the N. v. Romania judgment has resulted in Mr. N. being transferred to supported housing in Bucharest after 18 years of institutionalisation, one of the first publicly funded schemes of this type in Romania, implemented on this occasion by Estuar Foundation. 

The Constitutional Court judgment is a rare clarion call in a country where people with disabilities face layers upon layers of deprivation, while advocacy on their behalf is often not rights-based and serves instead to entrench these phenomena. The judgment opens the way for a potentially wide-ranging and long-awaited reform of the country’s guardianship legislation. The Parliament has 45 days to legislate for an alternative solution once the full judgment is published in the Official Gazette. At the same time, the uncertain political situation in Romania, with two rounds of elections scheduled to take place by the end of the year, the continued fallout from the pandemics, poor administrative capacity and the relative absence of strong rights-based civil society and DPOs in particular may conspire to scupper this effort. 

The Constitutional Court judgment has been profiled by the Committee of Ministers on its front page here. Constantin Cojocariu has previously written about different aspects of this campaign for the European Implementation Network and Strasbourg Observers. A short case comment on N. v. Romania is available here.

The photo shows Mr. N. and his lawyer attending a hearing at the Constitutional Court at the end of 2019. Mr. N. is presumably the first and last person under ‘interdiction’ to address the Constitutional Court. 

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