On November 7, 2017, the European Court of Human Rights (ECtHR) decided  “N v. Romania” and declared that the State had violated the right to personal liberty of N, a man diagnosed with paranoid affective psychosis, who was detained in several psychiatric institutions for over fifteen years after being accused of incest, “sexual corruption” of his daughters, and rape of his wife.

Although N was never found criminally guilty and did not face a trial, his record of a psychiatric diagnosis and related alleged dangerousness allowed a criminal court to issue a “compulsory confinement” measure against him. This measure resulted in his physical imprisonment in a psychiatric hospital and required him to undergo medical treatment. Over the course of a decade all attempts to challenge that decision were dismissed by local courts on the basis of his psychiatric diagnosis, alleged dangerousness, and “lack of social and family support” until he was released on February 21, 2017 under less restrictive but still “compulsory” treatment measures.

The case against N started in 2001 following an article in the Romanian national press and a television program. The Public Prosecutor opened a criminal procedure to investigate N, but ultimately decided to close the case after hearing from N’s wife and daughters. The Prosecutor considered, with regard to the charges for incest, that there was not enough evidence. With respect to the charges for rape, he contended that the accused’s wife did not fill out the required criminal complaint. Finally, regarding the charges for “sexual corruption,” the decision to close the investigation was based on the accused’s “lack of discernment” regardless of the existence of sufficient evidence to prosecute. Instead of advancing the investigation and trial, the Prosecutor requested that the court impose a “compulsory confinement” measure (Art. 114 Criminal Code of Romania) based on the fact that N “suffer[ed] from chronic paranoid schizophrenia” and was unclear as to the acts he committed.

N challenged the order of detention several times throughout almost ten years, but his petitions were systematically rejected on the basis of medical forensic reports and the dangerousness charge groundlessly associated with both his diagnosis and his criminal record. In his petition to the ECtHR, he requested the tribunal to order the State to “ensure, at all cost . . . his transition from life in an institution to life in the community, by providing him with the necessary support in exercising his legal capacity, seeking proper housing and obtaining psychological assistance.” The Court instead ordered the State to comply with the local decision issued on February 21, which did not contain any provision to follow-up after his release or ensure he had the necessary support to reintegrate into the community.

When analyzing the arbitrariness, the ECtHR found that the local courts failed to assess the dangerousness of N according to local legislation or ECtHR jurisprudence, as they had “referred purely and simply to the findings of the forensic medical report.” Also, it highlighted that local courts did not examine whether alternative measures could have been applied in this case to promote N’s inclusion in the community. On these grounds, the ECtHR concluded that the detention had no legal basis since 2007 and, therefore, violated the right to security and liberty, including the right not to be unlawfully detained enshrined in Article 5.1 of the European Convention on Human Rights. Furthermore, it pointed out that although local courts eventually authorized N’s release, that measure was not achieved due to the lack of assessment of the needs of N or the lack of appropriate “reception facilities” in the community.  Finally, the Court recommended the State to consider the adoption of general measures to ensure that the detention of individuals in psychiatric institutions is lawful and that they are granted “access to a judicial appeal accompanied by appropriate safeguards.”

While this decision might be considered appropriate to the extent that it criticized the actions and procedures of local authorities, ordered the release of N, and recommended that the State adopt general measures of access to justice, the ECtHR missed the opportunity to advance the rights of persons with psychosocial disabilities within criminal law systems according to international human rights law and standards. More specifically, it reinforced an interpretation of the right to liberty that has already been considered discriminatory against persons with disabilities.

The Convention on the Rights of Persons with Disabilities (CRPD) affirms the principle of equality (Art. 2) and states that persons with disabilities have the right to be recognized “as persons before the law” and “enjoy legal capacity on an equal basis with others in all aspects of life” (Arts. 12.1 and 12.2). It further states that the existence of a disability “shall in no case justify a deprivation of liberty” (Art. 14.1). In addition, the CRPD Committee has specifically rejected the link between diagnosis and dangerousness as a ground for involuntary treatment or detention. It affirmed that “the involuntary detention . . . based on risk or dangerousness . . . or other reasons tied to impairment or health diagnosis” amounts to arbitrary deprivation of liberty.

Accordingly, when it comes to criminal responsibility, the Committee has stated that persons with disabilities have the same right to stand trial, to face a fair trial, and to eventually be found criminally responsible or absolved by a court or jury of their peers, just as every other citizen. Throughout that process and after it, persons with disabilities should be provided with “support and accommodations as may be needed.” If pre-trial detention is necessary, the decision to impose it should be guided by the universal principles of innocence and non-discrimination, and it should be subjected to judicial review with all the guarantees of due process of law conceded to every person. The United Nations Working Group on Arbitrary Detention stated, in line with the CRPD Committee, that persons with disabilities who are deprived of their liberty should be offered “the same substantive and procedural guarantees available to others.” In compliance with this, States should ensure that persons with disabilities have “the opportunity to stand trial promptly, with support and accommodations as may be needed, rather than declaring [them] incompetent.” The reason underlying these standards is that the imposition of a compulsory measure is a punishment without trial, based on a discriminatory distinction on the basis of a disability. The same position is maintained by the World Network of Users and Survivors of Psychiatry (WNSUP), stating that “[t]hose of us who commit crimes should be dealt with under the criminal justice system, with appropriate supports to allow us to stand trial.”

On the other hand, a number of United Nations bodies accept, though under restricted circumstances, the involuntary detention of persons with disabilities. The United Nations Human Rights Committee accepts the involuntary detention of persons with disabilities as a “last resort” and for the “shortest appropriate period of time,” with the “purpose of protecting the individual in question from serious harm or preventing injury to others.” With regards to pre-trial detention, this Committee has considered that it should be used only where it is “lawful, reasonable, and necessary,” clarifying that necessary means to “prevent flight, interference with evidence or the recurrence of crime,” or when the person constitutes a “clear and serious threat to society.” The Human Rights Committee has also highlighted that the seriousness of the crime cannot justify prolonged pre-trial detention. However, it is not clear to what extent the dangerousness (which in practice is usually associated with some diagnosis, as in the case under analysis) would justify prolonged pre-trial detention or involuntary detention for the purpose of “protection.” In addition, the Sub-Committee for the Prevention of Torture considers that when a person detained by a state “suffers serious mental disorders . . . the placement in a psychiatric facility may be necessary to protect the detainee from discrimination, abuse and health risks . . . provided that . . . the placement is subject[ed] to constant judicial review.” These standards conflict with those of other human rights bodies mentioned above, because instead of recognizing persons with disabilities’ right to stand trial and ensuring them the right to a fair trial with all the guarantees that every person should have in a criminal procedure, they authorize involuntary detention.

In Romania, like in many states around the globe, criminal laws and procedures contain security measures as an alternative to prison for those persons with psychosocial or intellectual disabilities who are accused— but not convicted—of the commission of a crime. This has raised the concern of the CRPD Committee in its Concluding Observations to several countries. Security measures rely on the idea that because of their condition, persons with disabilities are unable to stand trial. Security measures usually consist of detaining persons in mental health institutions and forcing them to undergo psychiatric treatment (usually for many years). The existence of security measures has been the object of strong criticisms in terms of due process concerns because of their punitive characteristics and the fact that they are applied against people who have not yet been criminally convicted. Those critics led to the development of procedural guarantees and safeguards to control the imposition of security measures and prevent abuse or arbitrariness. However, this is not enough. Since the approval of the CRPD and according to the standards issued by the CRPD Committee, these measures should no longer exist because they violate the principles of equality and non-discrimination and the right to liberty in person for individuals with disabilities. In fact, the CRPD Committee has recently recommended “eliminate[ing] the security measures that involve forced medical and psychiatric treatment in institutions.” Along the same line, the Office of the High Commissioner for Human Rights (OHCHR) has recommended the promotion of critical theoretical research in the area of criminal law to “address the issue of criminal responsibility of persons with disabilities and the subjective element of crime,” by exploring the use of “impairment neutral” criteria.

According to the analysis above, if the ECtHR would have followed the CRPD standards—as they affirmed to have done—the outcome should have been different. However, adjudicating in compliance with the CRPD might have demanded a deeper revision of the wording of ECHR and ECtHR jurisprudence. This is because both EHCR and ECtHR jurisprudence contain provisions and standards that might be considered outdated in the light of current international law standards. For example, Article 5.1(e) of the ECHR, approved almost seventy years ago, established that those who are of “unsound mind, alcoholics or drug addicts” can be detained in different circumstances than those who are not, regardless of what they might or might not have done. Also, the jurisprudence of the ECtHR established a test according to which a detention is lawful when the “alienation” is “conclusively established,” and the “disorder [is] of a character and a scope that legitimize[s] internment.” In light of the norms and standards analyzed above, it can be argued that Article 5.1(a-f) is discriminatory on its face because it treats those affected by infectious diseases, minors, and migrants differently. Besides, the ECtHR’s diagnosis-centered interpretation of this article undermines the universal principle of non-discrimination and the right to liberty in person as recognized in the CRPD.

Recognizing and protecting the rights of persons with disabilities requires a revision of local and regional human rights laws and standards that harmonizes them with the CRPD and the CRPD Committee decisions. In this harmonization task, it would be beneficial to take into account the ECtHR’s consolidated jurisprudence that considers the European Convention to be a “living instrument” allowing for varied interpretations. A decision consistent with the CRPD standards would have allowed the ECtHR to notice that local legislation and practices did not guarantee the right of N to be treated as an equal, since he was denied the right to stand trial and defend himself—with appropriate support—from the criminal charges. Notwithstanding these inconsistencies, a positive outcome of the decision is its general recommendation to the State to ensure “access to judicial appeal with judicial safeguards.” Hopefully, this recommendation may trigger the review and reform of local legislation in Romania with the aim of guaranteeing the right of liberty of persons with disabilities and their right to stand trial on an equal basis with others, with the accommodations and safeguards that the circumstances may demand.

The author, Mariela Galeazzi, is a fellow of the Disability and Human Rights Fellowship Program (Center of Human Rights and Humanitarian Law) sponsored by the Open Society Foundations (OSF). The opinions expressed herein are the author’s own and do not necessarily express the views of OSF.