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 StelianTanase, 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.