Sofia, February 6th 2012
The placement of adults with disabilities in social care institutions in Bulgaria is, for the most part, illegal. This was announced by the Bulgarian Helsinki Committee (BHC) at a press conference in Sofia attended by Labor and Social Policies Deputy Minister Valentina Simeonova and Velina Todorova, Deputy Minister of Justice.
"The recent judgment by the European Court of Human Rights in the case of Stanev v. Bulgaria has practically rendered institutional placements and the whole system supporting social care homes for people with disabilities in stark contrast to the European Convention on Human Rights and, therefore, illegal,” explained Krassimir Kanev, Chair of BHC. "A complete reform of the system placing individuals under guardianship and in institutions for mental health or intellectual disabilities is required, as well as a realistic plan for closing down these dehumanizing institutions,” he added.
On January 17th, 2012 the Grand Chamber of the European Court of Human Rights in Strasbourg published its judgment in the case of Stanev v. Bulgaria. This is the only verdict by the Grand Chamber of the ECHR against Bulgaria since 2005. This case was held with two public hearings in 2009 and 2011 for the first time in the history of the Court. It concerns the restriction of the legal capacity of a person with a mental health disability and his placement in an institution for people with mental disabilities. The defendant complained about a violation of Article 3 (inhuman and degrading treatment), Article 5 (violation of right to personal freedom and security), Article 6 (right to a fair hearing), Article 8 (right to a private life) and Article 13 (lack of effective legislative defense measures) of the European Convention on Human Rights. The case was lodged by the Bulgarian Helsinki Committee and the Mental Disability Advocacy Center (MDAC) in Budapest. Aneta Genova, senior lawyer at BHC, served as Mr. Stanev’s case lawyer.
The defendant, Russi Stanev from Ruse, who suffers from schizophrenia, was placed under the partial guardianship of a council officer (i.e. with partially restricted freedom) in 2001. In 2002 he was placed in the Pastra social care home for people with mental health disability, south-western Bulgaria, without his consent. Following his placement, the director of the home became his guardian. The home is located in a remote mountain village and Mr. Stanev was not allowed to leave at his will.
In 2003 and 2004 delegations of the Council of Europe’s Committee for the Prevention of Torture and Degrading Treatment or Punishment (CPT) visited the home in Pastra and declared the conditions in the institution to be inhuman and degrading. The CPT noted that the buildings were dilapidated, there was no running water and the toilets were decrepit and in an execrable state in the yard. The available heating was inadequate, as was the residents’ diet, which contained no milk or eggs and rarely fruit and vegetables. No therapeutic activities were provided and no adequate treatment.
Mr Stanev tried to have his legal capacity restored in November 2004 by pleading to the prosecution and the mayor of the Rila Municipality. His efforts were unsuccessful.
"The judgment of the Grand Chamber of the ECHR has found violations in all Articles brought up by the defendant, except Article 8. The Court ruled that the placement of adults with mental health disabilities under guardianship in social care homes in Bulgaria is a form of restricting freedom and ought to include the guarantees provided by Article 5 of the European Convention on Human Rights. The lack of consent on behalf of Mr. Stanev regarding his placement at the Pastra home makes his restriction from freedom unlawful,” comments his lawyer Aneta Genova. “Moreover, the Court considers him to present no danger to himself or others, and detaining him solely due to his mental disability is unjustified. The defendant had no access to legal mechanisms to dispute the lawfulness of his detention at the home,” she added.
The ECHR has found the living conditions in the Pastra institution to be degrading for the whole period of his stay there, regardless of the fact that the Bulgarian authorities had no intention of placing him under such treatment. Hence, the Court declares a violation of Article 3 of the Convention.
The ECHR deems it unacceptable that the defendant had no possibility to restore his legal capacity. The Court notes that the Bulgarian legislation does not allow for the periodical review of the status of people under legal guardianship. In the case of Mr. Stanev, his placement under guardianship, regardless of its kind, was practically indefinite. According to the Court, it is also unacceptable that people under guardianship do not have direct access to the courts, a legal procedural right that is not foreseen at all by the Bulgarian legislation. Hence, the Court declares a violation of Article 6 of the Convention and Mr. Stanev’s right to access to a court.
DEMAND FOR COMPLETE LEGISLATIVE SHIFT
The Court’s judgment in the case of Stanev v. Bulgaria calls for a change in two legislative spheres:
• Reforming the content falling under guardianship and the legal capacity restriction procedure
The Bulgarian legislation regulating what constitutes guardianship is among the most retrograde in all of Europe. It reduces the legal capacity of persons under full guardianship to that of an infant or a minor, for those under partial guardianship. The persons under full guardianship are virtually pushed outside of society, while those under partial guardianship can only act in accordance with their guardians, regardless of possible conflicts of interest. In both cases they have a restricted legal capacity, no matter what the appraisal of their capabilities may be and their varying skills at handling life situations. They are not allowed to demand a change in their guardianship status, while the legislation does not allow for a periodical review of their state. In most cases, falling under guardianship is forever. The legislation does not hinder the appointment of guardians, who may potentially or actually be in a conflict of interest with the ward; it is unacceptable such positions to be held by workers at the institution where the ward is placed.
The guardianship system must be fully and urgently changed. Bulgaria needs a modern law to regulate assisted decision-making of persons with restricted legal capacity based on the individual appraisal of their capabilities. It should follow the contemporary forms of such assisted decision-making and introduce additional options for assisting the persons’ choices. The individual access of persons with restricted legal capacity to the juridical system should not be restricted; just the opposite, the government ought to introduce effective measures to guarantee this access, taking into consideration the individual’s specific condition. Alongside these legislative changes, it would be appropriate to adopt a special law regulating the placement under guardianship and assisted decision-making.
• Reforming the placement of people with mental health and intellectual disabilities in institutions
As a consequence of the case judgment, the Bulgarian legislation must foresee that placing individuals in institutions for mental health and intellectual disabilities, initiated without their valid and continuous consent, constitutes restriction of freedom.
The requirements for guaranteeing lawfulness and relevance according to the European Convention on Human Rights in such cases are particularly strict and make the maintaining of the current system of institutions for mental health and intellectual disabilities incongruent with them. The system has to change. The authorities should launch a deinstitutionalizing program for the care provided for adults with mental health disabilities in the chronic phase of their illness and to address its transformation in the community. Such a reform is also closely related to the reform of legal capacity restriction, because the placement of individuals in alternative forms of care should also occur with their valid and informed consent.
”The Ministry of Justice is completely aware of the fundamentality of the ECHR’s decision,” said the Deputy Minister of Justice Velina Todorova, who was present at the press conference. “As a whole, I agree with all the proposals and ideas for legislation change. Some of them sound quite revolutionary, but I think that we are ready to accept them. These issues are really important and I believe the time has come to also change the legislation in this sphere,” she also commented.
CAMPAIGN FOR CLOSING DOWN HOMES
In addition to urgently insisting on reforming the guardianship system, the Bulgarian Helsinki Committee has launched a campaign about closing down the homes for adults with disabilities.
Several practices remain routinely exercised at the institutions for adults with mental health and intellectual disabilities in Bulgaria – chronic dilapidation, miserable living conditions, restrictive private and family life, the usage of high doses of medication to control behavior. During visits at such homes BHC has consistently discovered proof of violations of human rights, inhuman and degrading treatment and a horrifying lack of care. The reform in this sphere remains sporadic, slow and forgetful of the most vulnerable.
The latest data shows that there are 4000 adults and 1200 children living in social care homes for individuals with mental health and intellectual disabilities. However, while there is a national strategy for deinstitutionalizing care for children, there is no such vision for adults.
"We insist upon the adoption of a strategy for closing down these homes, these warehouses for people, one with clear deadlines and ample financial support. We demand that deinstitutionalization of social homes for adults become a priority and that a sufficient amount of alternative services in the community be developed, so that people can be taken out of these dehumanizing places,” announced Yana Buhrer Tavanier, Head of BHC’s Campaigns and Communications. She explained that citizens may also get involved in the campaign by signing the petition on their website - http://www.bghelsinki.org/bg/dejstvaj/.
The Deputy Minister of Labor and Social Policy Valentina Simeonova, who was also present at the press conference, also expressed her approval of BHC’s proposals. She stated that the Ministry of Labor and Social Policy is starting work on a project for a strategy for deinstitutionalization of homes for adults. “The strategy will span over a long-term period of 10 years at least, we are starting to examine and develop it alongside out partners from non-governmental organizations. Our idea is to apply the same approach used for the deinstitutionalization of children’s homes. We are talking about integrated measures, which will be financed by different structural funds during the next program period.”
At the end of January, BHC lodged a case against Bulgaria in Strasbourg for the lack of social services in the community. The defendant is a woman with a mental health disability, who has been living in a specialized institution for years. She is suing Bulgaria before the ECHR for the inaction of authorities to create social services in the community, so that she is not forced to live in an institution where her life is far from wholesome.
For additional information: Yana Buerer Tavanier, 0882823260, 029434876, email@example.com