Incapacity, inhuman or degrading treatment, and the right of mentally ill persons to access the courts

Stanev v Bulgaria [2012] ECHR 46 (17 January 2012)

Summary

The Grand Chamber of the European Court of Human Rights held that a man who had been declared partially incapacitated and placed in a dilapidated psychiatric home had suffered a number of violations of his human rights. The Grand Chamber emphasised that detention other than in accordance with domestic law is a violation of the right to liberty. Moreover, an aggregate of factors such as inadequate living conditions and lengthy detention can amount to inhuman or degrading treatment. Finally, incapacitated persons must have access to the courts for judicial review of both their living conditions and their legal status.

Facts

On 20 November 2000, a Bulgarian court held that Mr Rusi Kosev Stanev was partially incapacitated due to mental illness. The court found that Mr Stanev suffered from schizophrenia and that he could not manage his own affairs.

On 23 May 2002, a council officer was appointed as Mr Stanev’s guardian. The council officer arranged for Mr Stanev to be placed in a home for adults with mental disorders. Mr Stanev was not told why he was being placed in the home or for how long.

The home housed 73 people. It was in an isolated area and the applicant was not allowed to leave without permission.

In 2003, the home was visited by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee found that the home was in a state of serious disrepair. The buildings were inadequately heated and did not have running water. The toilets were unhygienic holes in the ground. Fruit and vegetables were rarely available, milk and eggs were non-existent, and virtually no activities were offered. The Committee requested that the home be closed and replaced as a matter of urgency.

In 2004, Mr Stanev attempted to have his legal capacity restored. Through his lawyer, he asked a prosecutor and a local mayor to file a court case on his behalf, but they refused. Mr Stanev sought judicial review of the mayor’s decision. He was unsuccessful because his guardian, the director of the home, had not consented to the action.

In 2006, an independent psychiatrist found that the diagnosis of schizophrenia was inaccurate and that Mr Stanev’s behaviour was more likely the result of alcohol abuse. The psychiatrist also found that Mr Stanev’s mental health had improved and that he was capable of living in the community.

On 8 September 2006, Mr Stanev filed a complaint with the European Court of Human Rights.

Decision

Mr Stanev’s lawyers argued that his placement in the home was a deprivation of his liberty contrary to article 5(1) of the European Convention on Human Rights. Further, they argued that his lack of access to a court, his inability to apply for compensation, and the degrading conditions in the home were all violations of his Convention rights.

The Grand Chamber noted that the distinction between deprivation of liberty and a restriction on liberty is one of degree, not type. Further, a person may be deprived of liberty even if he or she is not held in physical confinement.

The Grand Chamber held that Mr Stanev had been deprived of liberty. This was because the authorities had placed him in the home without his consent, he had been there for almost a decade, the home controlled his identity papers and his finances, and he needed the director’s permission to leave.

Article 5(1) provides that a deprivation of liberty may be justified only if it is ‘in accordance with a procedure prescribed by law’. The Grand Chamber found that Bulgarian law did not allow guardians of partially incapacitated persons to take legal steps without their consent. Thus, the deprivation of Mr Stanev’s liberty was not in accordance with Bulgarian law. It was therefore an unlawful deprivation of liberty under article 5(1).

The Grand Chamber also found that the deprivation of liberty was not justified on the basis of Mr Stanev’s mental health. This was because more than two years elapsed between the psychiatric report that led to him being declared partially incapacitated and his placement in the home. The Grand Chamber held that this was an excessive period that indicated that he had not truly been placed in the home on the basis of the report. Further, the report related solely to his legal capacity, not to whether he should be removed from the community.

Next the Grand Chamber held that Bulgaria had violated article 5(4) of the Convention because Mr Stanev did not have access to judicial review of his detention. Mr Stanev could not bring legal proceedings on his own, thus, he could not compel the mayor to seek a review of his case or to replace the director of the home as his guardian. The Grand Chamber also noted that Bulgarian law did not provide for any compensation for Mr Stanev’s wrongful detention, constituting a violation of article 5(5). Moreover, Mr Stanev’s inability to have his legal status judicially reviewed was held a separate violation of article 6(1).

The Grand Chamber then considered whether Mr Stanev had suffered inhuman or degrading treatment contrary to article 3. The Grand Chamber stated that each case turns on its facts, but that the extent of the degradation, its duration, the objective pursued by the authorities, and the effects on the individual must all be considered. The Bulgarian authorities had not deliberately inflicted degrading treatment on Mr Stanev. Nevertheless, the Grand Chamber held that the unsatisfactory conditions in which he lived, the long duration of his placement, and the failure of the authorities to act on the Committee’s findings amounted to a violation of article 3.

Relevance to the Victorian Charter

The rights to liberty, freedom from inhuman or degrading treatment, access to the courts, and equal protection of the law are found in sections 8, 10 and 21 of the Victorian Charter of Human Rights and Responsibilities. These sections correspond broadly to the Convention articles discussed in Stanev v Bulgaria, but they are not identical.

For example, section 21(2) of the Charter provides that a person must not be subjected to ‘arbitrary detention’. Article 5(1) of the Convention does not impose a blanket prohibition on ‘arbitrariness’, but instead contains a limited list of circumstances in which the deprivation of liberty may be justified. Nevertheless, the Grand Chamber has stated that the purpose of article 5(1) is to prevent arbitrary detention. Moreover, both section 21(3) and article 5(1) provide that nobody can be detained otherwise than in accordance with a procedure prescribed by law.

The Victorian courts considered cases of persons receiving involuntary treatment for mental illness in Kracke v Mental Health Review Board [2009] VCAT 646 and PJB v Melbourne Health [2011] VSC 327. In Kracke, Bell J held that certain compulsory treatment orders limited Mr Kracke’s right to liberty, but that the limit was justified under section 7(2) of the Charter. Section 7(2) provides that a human right may be subject ‘to such reasonable limits as can be demonstrably justified in a free and democratic society’. The Convention does not contain an analogous provision. PJB involved somewhat different issues relating to financial autonomy, but did involve claims of interference with the rights to freedom of movement and privacy and the home.

Despite the differences between the Charter and the Convention, Stanev v Bulgaria may provide the Victorian courts with useful guidance in future cases. Its clarification of the dividing line between the right to liberty and the right to freedom of movement may prove particularly useful, as could its analysis of when suffering and humiliation become ‘inhuman or degrading’ treatment.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/46.html

Glyn Ayres is a Summer Clerk with the Mallesons Stephen Jaques Human Rights Law Group