Written comments submitted by the Bulgarian Helsinki Committee

IN THE EUROPEAN COURT OF HUMAN RIGHTS 

THIRD SECTION

                                                    (APPLICATION NO. 47848/08)

CENTER FOR LEGAL RESOURCES

ON BEHALF OF VALENTIN CAMPEANU

APPLICANT

AGAINST

ROMANIA

RESPONDENT

WRITTEN COMMENTS

SUBMITTED BY THE

BULGARIAN HELSINKI COMMITTEE

I.       INTRODUCTION

1. These written comments by the Bulgarian Helsinki Committee (BHC) are submitted pursuant to leave granted by the President of the Third Section on 12 September 2011 in accordance with Rule 44 § 3 of the Rules of Court. They draw on the experience of BHC in monitoring different types of mental health institutions over the past 15 years in a number of countries of Eastern and Central Europe. BHC has acquired considerable knowledge on human rights violations perpetrated in the context of institutional care of persons with mental disabilities and on the response of governments in the region to abuses.

[…]

IV. ACCESS TO CRIMINAL JUCTICE FOR INSTITUTIONALIZED CHILDREN AND ADULTS WITH DISABILITIES IN THE REGION

15. The essential fact is that institutionalized people with disabilities (mental or physical) across the region lack basic access to criminal justice, or any justice. In terms of such access, they are as denied by the authorities, as their needs of humane treatment, therapy, psychosocial care, and human integration are in the institutions. Those persons’ neglect by the region’s criminal justice systems is as prevalent as their criminal neglect and abuse by the institutions themselves. In effect, the region’s criminal justice authorities disregard those people as objects of criminal law protection, denying them, thereby, recognition as persons before the (criminal) law.

16. Devoid of family/ community support and protection, as well as, often, of legal capacity under domestic law, institutionalized crime victims with mental (and physical) disabilities are dependent on ex officio protection by police and prosecutors, or on the good faith of their guardians. Police and prosecutors are largely unaware or indifferent to abuse against people in institutions, and guardians generally lack the necessary good faith, being, as a rule, in marked conflict of interests – an institution’s director would be a victim’s guardian, as well as the one person with overall responsibility for any victimization occurring within the institution. As a result, crime against institutionalized persons with mental disabilities goes unprevented, unpunished, and unredressed. Cases almost never reach court.

17. The remedy to this pervasive disenfranchisement is to allow human rights organizations (NGOs) to pursue justice for institutionalized persons with mental disabilities in their (the NGOs’) own right, even where a victim is deceased, or lacks formal capacity under domestic law to validly authorize representation. We, therefore, argue that this Court should in principle recognize NGOs’ standing to file applications before it for the sake of deceased individuals in circumstances comparable to those of Mr. Campeanu’s case, as well as for the sake of living individuals lacking legal capacity or concerned relatives.

18. BHC is experienced in striving to compel the domestic authorities to yield that denied criminal justice access to institutionalized victims with mental disabilities. We have the following emblematic story to tell this Court – it is emblematic for the region, as well as for Bulgaria as one jurisdiction within it:

19. In December 2007, BHC officially asked the Prosecutor’s Office of Bulgaria (POB) to inspect all institutions for children with mental and physical disabilities in the country in order to uncover any potential crimes against those children/ youth. We argued that there was sufficient ‘data’ within the meaning of domestic criminal law for prosecutors to do so. In particular, we invoked “Bulgaria’s abandoned children”, a documentary released around that time by the British Broadcasting Corporation showing shockingly neglected children in the Mogilino institution (later closed down by the authorities). We requested that prosecutors consider children’s deaths and bodily injuries in the institutions in the light of their potential criminal neglect or abuse. POB ordered the competent local prosecutors to carry out those inspections as requested.

20. By October 2008, all inspections were done. With no exception, the prosecutors refused to open formal criminal investigations in any of the facts they uncovered. Yet, they found a significant body of criminally relevant facts, including 75 children’s deaths in 8 years (2000-2008) and an indeterminate number of bodily harm cases (including at least two medium and one grievous), as well as a number of potentially criminal deficits of care. No prosecutorial decree considered the potential causality between the deficits of care found, and the deaths and injuries. Ignoring it altogether, the prosecutors held that there was no data of a crime. Yet, the prosecutors’ findings revealed an exorbitant average death rate of 3,04% for institutionalized children/ youth with disabilities, exceeding 10% in certain institutions (compared to a general death rate of 0,03% for Bulgarian children between 4 and 18 years).[1]

21. In particular, the Sofia City Prosecutor’s Office (SCPO) refused to investigate the death of 3 children within a year (2007), even though it held that the deceased children were in an exceptionally poor state of health due to inadequate care.[2] SCPO found that one of the deceased children had suffered medium bodily harm (a broken thigh) caused by „very low levels of calcium“ due to „the child not having received […] compensatory doses of calcium with food, or appropriate medication.“ SCPO also found a deficit of rehabilitation therapists.

The Varna Regional Prosecutor’s Office (VRPO) also found 3 children’s deaths in a year (2007).[3] VRPO blankly held that they „resulted from [unspecified] innate or acquired illnesses“, without considering whether those illnesses were lethal by nature, or why the children fell ill with them in the first place. The Dobrich Regional Prosecutor’s Office (DRPO) found 10 children’s deaths in 2 years (2006-2007).[4] Perversely normalizing this shocking fact, DRPO held that "in that home, it is established that death cases are a frequent phenomenon". The Каrnobat District Prosecutor’s Office (KDPO) found 8 deaths in 8 years (2000-2008).[5] КDPO held without any reasons that those deaths resulted from the children’s illnesses and had no link to their quality of life. The Veliko Tarnovo Regional Prosecutor’s Office (VTRPO) found 3 deaths in a year (2005) – two from pneumonia and one from acute cardio-pulmonary insufficiency.[6] VTRPO failed to consider why pneumonia should lead to death, or what caused it in the first place. Neither did it consider what caused lethal cardio-pulmonary failure. The Nessebar District Prosecutor’s Office (NDPO) also held there was no data of a crime, while establishing 3 deaths in 3 years (2004 – 2007).[7] One death resulted from cardiovascular insufficiency; NDPO ignored what caused that. The other two deaths NDPO attributed to the children’s illnesses without specifying what those illnesses were. On the other hand, NDPO found there was no physiotherapist in the institution. The Blagoevgrad Regional Prosecutor’s Office (BRPO) found 20 deaths in 5 years (2003- 2007).[8] According to the death certificates, all resulted from acute respiratory and cardiovascular insufficiency. BRPO left it at that. On the other hand, BRPO found the sealing of windows and doors was bad, windows lacked handles and were held closed by reamers only, and bedrooms and bathrooms were insufficient resulting in overcrowding and inadequate sanitation.

22. The Rousse Regional Prosecutor’s Office (RRPO) found no crimes either even though it inspected none other but the internationally notorious Mogilino institution, where it found 8 deaths in 3 years (2006 - 2008), all resulting from acute cardiovascular insufficiency.[9] RRPO also found that in 2006 - 2007 there was no kinesiotherapist, and rehabilitation was a rare occurrence; 10 staff positions were left vacant; the quality of care was poor, lacking any individual approach; social isolation afflicted the children. The Stara Zagora Regional Prosecutor’s Office (SZRPO) found 15 deaths in 8 years (1999-2007) but failed to even blankly state any reason for them.[10] The Mezdra District Prosecutor’s Office (MDPO) refused to investigate a death (in 2006) from acute cardiovascular insufficiency, without attempting any consideration of the reasons for it.[11] The Montana Regional Prosecutor’s Office (MRPO) found 3 deaths in 4 years (2004 – 2008).[12] MRPO established no specific reason for any of the deaths, other than the children’s general ‘pathology’. On the other hand, MRPO found there was no physiotherapist in the institution, no rehabilitation, and no access to a psychiatrist. The Kotel District Prosecutor’s Office (KlDPO), for its part, found that police were notified of each death in the relevant institution, and for deaths in the hospital, the cause of death was established and a death certificate was issued.[13] Accordingly, for deaths in the institution no cause of death was established and no death certificate was issued. KlDPO ignored this chilling fact. It also failed to even specify how many deaths there were altogether, let alone attempt to find the reasons for them. On the other hand, KlDPO found that there was no physician in the institution, the closest hospital being at a distance of 60 km. KlDPO held that 2 staff on duty at night were extremely insufficient to take care of 53 children with serious disabilities. The Botevgrad District Prosecutor’s Office (BDPO) refused to investigate a death from sepsis in hospital in 2007.[14] Yet, it recommended that a separate facility be created for patients with infectious diseases, and that a pediatrician be secured 24 hours a day, implying deficits of care found. The Kyustendil Regional Prosecutor’s Office (KyRPO) found a youth had suffered grievous bodily harm in 2005 (a broken thigh resulting in a permanent disability).[15] KyRPO held that the case was an accident without considering whether enough care was taken to prevent it, or its severe consequences. KyRPO also found other cases of bodily harm, without specifying their number, or character, let alone analysing their reasons. On the other hand, KyRPO found that, inter alia, there was no physician, or rehabilitation therapist in the institution, that youths were aggressive and auto-aggressive, that no regular medical examinations were carried out, that the living conditions were inadequate. The Razgrad Regional Prosecutor’s Office (RzRPO) found two cases of bodily harm (a youth severely scald burned in the institution (in 2007), and a child returned to it from hospital with a broken and swelled leg (in 2008)).[16] RzRPO failed to discuss what the medical consequences were in terms of degree of bodily harm in either case, or what made those serious traumas possible. Yet, it found that there was a single medical staff member on duty at any time in the institution to take care of 40 children and youth, and there had been no kinesiotherapist since 2006, while one was constantly needed. RzRPO found that both institution and hospital staff members were disciplined for the two accidents yet ignored that fact’s implications for their potential criminal liability.

23. Based on those prosecutorial refusals, in 2008, BHC filed an actio popularis civil lawsuit against POB claiming that the institution discriminated against institutionalized children with disabilities by denying them criminal protection through its refusal to investigate their deaths and bodily injuries. BHC argued that if the prosecutors had found a similar number of deaths, or bodily harm cases affecting children without disabilities living in the community, they never would have failed to investigate. In 2010, after the first hearing in the case, when the legal action had received considerable publicity, the Prosecutor General, Mr. Boris Velchev, sought BHC’s cooperation to rectify POB’s failures. POB and BHC proceeded to jointly conduct a fresh round of inspections in all the institutions. Based on those inspections, in September 2010, BHC produced detailed reports of criminally relevant facts for 15 of the institutions inspected (available in Bulgarian at http://forsakenchildren.bghelsinki.org/?page_id=25). Our reports amounted to a total of 263 pages, linking each specific fact to its proof in terms of medical or official documentation, or other sources, in a total of 1730 footnotes. Our findings are summarized above in section II, paras 7 and 8. BHC’s campaign for criminal investigations based on those findings received intense publicity, throughout Bulgaria, as well as in Europe and beyond.[17] In a joint BHC-POB press conference on 20 September 2010, Prosecutor General Velchev unequivocally backed BHC’s reports as legitimate results of the joint inspections. In October 2010, POB publicly undertook to have each one of 238 deaths investigated individually, and to have each institution investigated inclusively for all the instances of abuse of living children/ youth. The POB leadership officially promised BHC lawyers access to all investigations in order to enable us to monitor their progress and results, and to appeal against unfounded prosecutorial decisions.[18]

24. To date, 30 September 2011, a year later, there is not a single indictment brought into court. Based on the documents provided by prosecutors to BHC, 180 investigations were instituted (146 into death cases, and 34 into living individuals’ cases). Fifty-seven of those were terminated (at various levels, some not by final decision) (44 concerning death cases and 13 concerning the living). 123 investigations are now pending (102 concerning death cases and 21 concerning the living). 3 investigations are suspended (living individuals’ cases). Six prosecutors refused to open investigations (at various levels, one by final decision). Six prosecutors decided to have further inspections rather than open an investigation. BHC has filed 68 appeals against prosecutorial decrees. BHC has appealed against approx. 93% of all prosecutorial decisions, a fact implying their overall inadequacy. The general trend is of closure of all proceedings without real effective investigation, and of no case reaching court.

25. According to official POB information as of 1 June 2011, the numbers differ.[19] POB claims to have instituted a total of 248 investigations (178 death cases and 70 living cases), of which 223 are pending and 25 are terminated (4 by final decision), as well as 28 additional inspections (instead of investigations).[20] Not a single case was brought to court.

26. To recapitulate, we respectfully submit before the Court that the story we tell makes two basic points:

1)    Institutionalized persons with disabilities are altogether devoid of criminal protection unless an NGO acts for their sake in its own right using legal remedies, as well as public advocacy means.

2)    Even where an NGO successfully consolidates public pressure and leadership level institutional will to deliver criminal justice to institutionalized persons with disabilities, practical results remain insufficient, with no court protection within reach.

27. It should be noted, furthermore, that BHC is, in all probability, the most powerful Bulgarian human rights group, especially in the mental disability field. What we achieved, no other domestic NGO could have achieved. And yet we achieved nothing in terms of real criminal justice for a generation of dead and abused children.

28. We respectfully submit that unless this Court grants NGOs standing to pursue in their own right applications before it for the sake of dead victims, like Mr. Campeanu, or of living victims lacking formal capacity to authorize representation or concerned relatives to act on their behalf, institutionalized persons with disabilities, especially mental disabilities, will be victimized at Convention level by the same denial of justice they suffer at national level. And the domestic situations in the region will never change because national criminal justice authorities will not get the benefit of your Court’s message that they need to change. That message will only be delivered if your Court allows us NGOs to seek justice before it for lost people like Valentin Campeanu.

Yours sincerely,

Margarita Ilieva,                     

Deputy-Chairwoman           

and Legal Director