MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-25

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-25 Centre for Legal Resources on behalf of Valentin Câmpeanu and N. (No. 2) v. Romania (Applications Nos. 47848/08 and 38048/18) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)635, DH-DD(2024)573, DH-DD(2024)429, DH-DD(2023)1378, DH-DD(2023)1168, CM/Del/Dec(2023)1468/H46-22

 

Application	Case	Judgment of	Final on	Indicator for the classification
47848/08	CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CÂMPEANU	17/07/2014	Grand Chamber	Complex problem
38048/18	N. (No. 2)	16/11/2021	16/02/2022	Complex problem

Cases description

These cases concern deficiencies in the legal protection system for adults with intellectual disabilities or with mental health conditions (substantive violation of Article 2 in Centre for Legal Resources on behalf of Valentin Câmpeanu; violations of Article 8 in N. (No. 2)).

In the first judgment, the European Court found that the solutions provided for by the law concerning vulnerable adults with no relative able or willing to take over representation duties do not guarantee that those appointed as representatives will act independently and effectively on behalf of the protected persons. In the second judgment, it found that the only form of protection then available (guardianship) entailed legal incapacitation and made the protected persons dependent on their legal guardians, to whom the courts transferred the exercise of the former’s rights. The domestic law thus did not allow for a proportionate, tailor-made response to the person’s circumstances, whose actual needs and wishes could not be factored into the decision-making process, including when it came to replacing a legal guardian.

The case of Centre for Legal Resources on behalf of Valentin Câmpeanu further concerns other serious shortcomings in the social and medical care afforded to a young man of Roma[1] origin, orphaned, HIV-positive and with “severe intellectual disability” before his death at the neuropsychiatric hospital of Poiana Mare in 2004 (substantive violation of Article 2); the ineffectiveness of the investigation and the court proceedings into his death (procedural violation of Article 2); and the lack of a domestic legal framework suited to the specific needs of people with disabilities and allowing for the examination of allegations concerning violations of their Convention rights by an independent authority (violation of Article 13 taken together with Article 2).

Status of execution

The Committee of Ministers’ last examination of these cases took place in June 2023 (1468^th meeting (DH)).

In response to the Committee’s decision, the authorities provided information on 29 September 2023, 10 November 2023, 12 April 2024, 17 May 2024 and 4 June 2024 (DH-DD(2023)1168, DH-DD(2023)1378, DH-DD(2024)429, DH-DD(2024)573 and DH-DD(2024)635).

Individual measures:

In Centre for Legal Resources on behalf of Valentin Câmpeanu, the Committee concluded with regret that no further measure was possible with respect to the situation of the late Mr Câmpeanu.

In N. (No. 2), the violations stemmed from the applicant’s legal incapacitation, placement under guardianship and subsequent change of legal guardian, under a legal framework which did not meet the requirements of Article 8. As the authorities had reformed this framework in 2022,[2] the Committee requested them to indicate whether the applicant had brought court proceedings to have his guardianship lifted or replaced with one of the new forms of protection introduced by the new legislation.

The authorities informed the Committee in November 2023 that the applicant had passed away
(DH-DD(2023)1378).

General measures:

At its previous examinations of the cases, the Committee has concluded that in order to guarantee non-repetition of the violations, the authorities had to:

      i.        bring the legal protection system for vulnerable adults into line with the Convention requirements set out in the judgments and ensure that the new system is adequately and effectively applied. Specifically, the Committee is now supervising (i) the implementation of the reform enacted in 2022 which abolished guardianship and introduced a new, gradual system of support and legal protection, in particular the on-going judicial re-assessment of the situation of those previously placed under guardianship; and (ii) the adoption of further reforms to ensure that when vulnerable adults have no relative able or willing to take over support or representation duties under the new system, an independent legal or physical person can be designated to assist them or to act on their behalf.[3]

     ii.        strengthen the safeguards against arbitrariness in the decision-making related to placements, the continuing presence of people with disabilities in residential social care facilities, and transfers between such facilities or elsewhere, pending the completion of the on-going de-institutionalisation process in the social care system.

    iii.        guarantee an effective criminal-law response to acts and omissions concerning vulnerable persons who are placed in residential social care facilities or psychiatric hospitals, which could fall within the scope of Article 2 or 3. Specifically, the Committee is supervising (i) the adoption of measures to ensure that deaths in residential social care facilities are notified to the investigative authorities so that these can have the cause of death independently determined, through a medico-legal autopsy; and (ii) the impact of the measures the General Prosecutor’s Office has adopted so far to improve the effectiveness of relevant criminal investigations.

    iv.        ensure accessible and effective legal remedies allowing people who are placed in such institutions to bring complaints related to their health and treatment before the courts or other independent bodies.

The Notes on the Agenda prepared for the Committee’s June 2023 examination include details about the measures adopted by the authorities until then, the Committee’s assessments and the remaining questions it has identified in relation to each of the aspects outlined above (CM/Notes/1468/H46-22).

In September 2023, the authorities announced that they had decided to address the remaining questions in the framework of a broader action plan for the execution of these and other judgments concerning violations of rights of people with mental health conditions and/or with intellectual disabilities to be implemented over the period 2024-2029 (DH-DD(2023)1168).[4]

The preparation of the action plan was entrusted to a working group established by the Prime Minister’s Chancellery and placed under the co-ordination of a state councillor in this office.

The NGO Centre for Legal Resources has been closely involved in this work, along many other stakeholders, including national human rights institutions. Further details can be found in the Notes prepared for the case of Parascineti and the groups of Cristian Teodorescu and N., which are also examined at the present meeting (CM/Notes/1501/H46-26).

The working group finalised the action plan and submitted it to the government for adoption in April 2024.

In their May 2024 submission, the authorities announced that the Romanian Government had adopted the action plan on 16 May 2024, and that they would submit it in full to the Committee in the shortest possible time (DH-DD(2024)573).

The authorities specified that the action plan sets out a broad range of measures aimed, among other things, at accelerating the on-going de-institutionalisation process in the social care system, introducing the necessary legislative reforms, including as regards the legal protection system for vulnerable adults, strengthening the training and awareness-raising of relevant professionals.   

The authorities submitted the action plan to the Committee on 4 June 2024 (DH-DD(2024)635).

Communication from the Council of Europe Commissioner for Human Rights (Rule 9 (4))

In a communication of 6 March 2024, the Commissioner positively noted the authorities’ initiative to set up the working group tasked with preparing the action plan for the execution of these judgments and to involve a broad range of actors, including national human rights institutions and civil society, in this work.

The Commissioner underlined the longstanding nature of the dysfunctions revealed by these judgments and called for additional legislative, practical, and capacity-building measures and for adequate financial provisions to back these. She recommended in particular introducing judicial review in respect of decisions on involuntary placements and transfers of people with disabilities between institutions; guaranteeing their effective access to justice, including through procedural adaptations; establishing clear and accessible complaints mechanisms; and ensuring close monitoring of human rights compliance in institutions by the relevant national bodies and also by relevant civil society organisations (see for details DH-DD(2024)301).

Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

The CPT carried out an ad hoc visit to Romania from 19 to 30 September 2022, which focused on the treatment of patients in psychiatric establishments and of people placed in residential social care facilities.

In the report on this visit published on 5 October 2023 (CPT/Inf (2023) 28), the CPT recommended in particular reforms in order to strengthen the safeguards attending placements and stays in residential social care facilities and to ensure that the cause of death of a resident is always independently determined, as required by the relevant Council of Europe standards.

Analysis of the Secretariat

Individual measures:

In N. (No. 2), as the applicant has passed away, no further individual measure is possible. The Committee can therefore close its supervision of this question.

General measures:

It is noted at the outset that these cases concern various facets of the broader question of effective access to justice for people with intellectual disabilities and/or with mental health conditions who are placed in institutionalised, closed environments. They have therefore clear rule of law implications.

While the Committee has noted progress in some areas, in particular the new system of support and legal protection for vulnerable adults established in 2022, and the measures taken by the General Prosecutor’s Office in the earlier stages of the execution process to improve the effectiveness of criminal investigations, it has also found that further wide-ranging measures are still required to fully implement the judgments.

It is encouraging that in response to the Committee’s calls for further measures, the Romanian authorities have prepared and submitted a new action plan for the execution of these and of other relevant judgments of the European Court and that this action plan has been endorsed by the government, which creates the requisite conditions for the effective and timely implementation of the remedial action it sets out.

The authorities’ approach to involve a broad range of stakeholders, including national human rights institutions and the applicant NGO Centre for Legal Resources, in the preparation of the action plan is also to be positively noted as an example of inclusive and co-operative approach to the execution process.

Pending a detailed assessment of the measures the action plan sets out, the authorities could be called on to keep the Committee regularly informed of the progress made in its implementation.

The Department for the Execution of Judgments, which had consultations with the authorities in Bucharest in January 2024 on the strategic approaches and the main lines of action of the plan then under preparation, remains at their disposal to provide further technical assistance and co‑operation in support of their execution action.

The Committee could consider resuming its examination of these cases at one of its Human Rights meetings in the first half of 2025, in the light of an in-depth analysis of the action plan and of the status of its implementation, to be prepared by the Secretariat.

Financing assured: YES