The case of mistreated and neglected child with disabilities in public institute
Analysis of Elena Mujovska Trpevska on the judgement "L.R. vs. Republic of North Macedonia" by the ECtHR, number 38067/15.
Introduction
In 2013, the National Preventive Mechanism informed
the Ombudsman of Republic of North Macedonia that during their regular visits
in the Public Institute for Protection and Rehabilitation “Banja Bansko” they
have witnessed a child with multiple disabilities being tied to its bed with
the explanation that it was for its own good.[i] Namely, the eight years old child was deaf-mute with serious physical and
mental impairments, exposed to social risk. Apart
from being tied to a bed, no one communicated with the child and it did not
receive the proper care since the employees in the institute had no knowledge
of the sign language.[ii]
The public became aware of this case back in 2014, when the Ombudsman
disclosed all data on a press-conference for promotion of 2013 Report, after
which the child was visited by representatives of the Helsinki Committee for
Human Rights of RNM (Helsinki Committee), who immediately initiated procedure
to the Public Prosecutor’s Office.
In 2015, Helsinki Committee, on behalf of the child, submitted an
application to the European Court of Human Rights (ECHR) – "L.R.
v. RNM" for cruel and degrading treatment by the employees in the
Public Institute for Protection and Rehabilitation “Banja Bansko”, which was
the first application submitted on behalf of a child with serious disabilities,
who was not able to give its consent to be represented. Five
years later, the minor L.R. wins the case with the passed judgment which
established violation of Article 3 of the European Convention on Human Rights (ECHR).
Background of the case
The applicant L.R. is a minor, born on 21 November
2004, by parents with intellectual disabilities, who gave up on their child
after the birth. When L.R. was just three months old, its grandmother
as the only blood relative gave up the custody of the child to the Social
Affairs Centre (SAC). Afterwards, L.R. stayed in several public institutes
for social care. The child’s first impediments in the physical
development and speech were notices when it turned 2 years and in November
2008, once the medical team established more serious mental impediments, the
most serious form of physical impediments (cerebral palsy) and speech
impediments, L.R. was sent to the State Rehabilitation Institute. The
Institute of open type for rehabilitation of hearing, speech and voice, on
several occasions reacts and implies that it has no competence to act and
provide treatment to the child.
In June 2012, the child was released from the Institute with the
explanation that the stay and treatment is such institute is unjustified and
with no success. On 21 June 2012, the Social Affairs Centre gets an
approval from the Ministry of Health and on 29 June 2012 it sends the child in
the Public Institute for Protection and Rehabilitation “Banja Bansko” (PIPRBB). In
the following period, PIPRBB once again sent written remarks[iii] to the social Affairs Centre, implying that the stay of L.R. in PIPRBB was not
suitable, since the primary function and activity of the institute is to treat
persons with physical and not mental impediments, and the institute does not
have sufficient number of staff[iv], and no qualified persons who would be able to provide constant care and
treatment to the minor L.R., and that the employees were not able to
communicate with the child and what is even more concerning “[L.R.] <0} started
to harm itself and used every occasion to escape from the institute…“ (par.10), with the plea
the minor to be placed in a proper institute.
In November 2013, NPM visits PIPRBB and finds “[L.R.] tied with one leg to the bed post out of safety
reasons […]“(par.11). Upon receiving
the medical expertise in March 2014 confirming the aforementioned, SAC places
L.R. in the Rehabilitation Institute where the minor stays until the passing of
ECHR judgment.
Relevant national and international legal regulation
Pursuant to Article 142 of the Criminal Code of RNM
(CC)[v],
any type of torture and other cruel, inhuman or degrading treatment and
punishment by an employee, thus causing severe bodily or mental suffering to
the tortured person, is strictly forbidden. The
penalty foreseen for such violation of the legal provision is term of
imprisonment from three to eight years, and in case when such act caused severe
bodily injury or other serious consequences to the injured party, the person
committing such action will be punished with term of imprisonment of at least
four years. Article 143 of the CC foresees term of imprisonment
from one to five years for the person who harasses, intimidates or insults or
otherwise degrades the person’s dignity and person. The Law on Criminal
Procedure (LCP)[vi] foresees the rights of the injured party (Article 57), and when a circumstance
under which minors who are entirely deprived from intellectual capability
exists, the proposal for criminal prosecution is filed by their legal
representative (Article 59 paragraph 1). At the same time, LCP regulates that
in such cases the legal representative is authorized to give all statements and
take all actions on behalf of the injured party (Article 66, paragraph 1), as
well as that the injured party and its legal representative can exercise their
rights in the procedure via proxy (Article 67).
With regards to the international regulation relevant for this case, we can
primarily separate UN Principles for protection of persons with mental illness
and improvement of the health protection of these persons[vii];
Convention on the Rights of Persons with Disabilities[viii] and UN Report of the Special Rapporteur on Torture[ix]. With
regards to the international regulation which is not part of UN system, we
separate CE Convention on Human
Rights and Biomedicine[x] and 2004 Recommendation of the Committee of
Ministers[xi].
Finally, what is most important for this case in the remark specified in
2014 Report of the Committee for Prevention of Torture (CPT) wherein it is
specified that “[employees] in state
centres for social affairs do not visit patients on regular basis and do not
provide the necessary treatments […] should take serious steps for changing
such practices…“[xii].
Facts of the
case
Taking into
consideration the aforementioned circumstances, in July 2014, the Helsinki
Committee filed criminal charge against the Director of PIPR and the employees
for committed criminal acts referred to in Article 142 and Article 143 of the
CC. Apart from the
established violations of national and international regulation i.e. the fact
that the minor L.R. was placed in improper institute without the needed medical
assistance and care and the fact that the competent persons from the Institute
in the course of their daily practices exposed the child to cruel, degrading
and inhuman treatment, the Public Prosecutor's Office on 24 November 2014
pursuant to Article 288 of the LCP reached a decision for dropping the criminal
charge with the explanation that “[there
is no] suspicion that the director and the employees committed any criminal act
with their actions […] (paragraph 20).” In December 2014, Helsinki
Committee tried and failed to appeal such decision when the Senior Public
Prosecutor’s Office confirmed the first instance decision of the PPO and again,
in June 2015 when the Public Prosecutor's Office of RNM confirmed the decision
of the prosecutions from lower instances.
Court decision
Helsinki Committee lodged
an appeal to the ECHR without the necessary written consent from the minor L.R.
due to his intellectual disability (see
case Post v. the Netherlands, no. 21727/08 (dec.), 20 January 2009). The Court accepted the
appeal (contrary to the decision reached in the case Centre for Legal Resources on behalf of Valentin
Câmpeanu v. Romania ([GC], no. 47848/08, §§ 104-111, ECHR 2014) with the explanation that his
legal representative (SAC) is
accused before the national competent authorities and before ECHR for
negligence and inhuman treatment. The
Court supports such decision with the fact that RNM has not appointed any other
legal representative after the disclosure of the case and the filed appeals to
the competent public prosecutions. In
addition, the Helsinki Committee realized several successive visits once the
case became known to the public, and informed the affected state institutes and
filed criminal charges without any postponement (see the similar case: Centre
for Legal Resources on behalf of Valentin Câmpeanu, § 111, and Association
for the Defence of Human Rights in Romania, Helsinki Committee on behalf of
Ionel Garcea v. Romania, no. 2959/11, §
43, 24 March 2015; see
contrary in the case: Comité Helsinki Bulgare
c. Bulgarie,nos. 35653/12 and 66172/12, § 56-57, 28 June 2016). In such manner, ECHR de facto appoints the Helsinki Committee
to be legal representative of L.R. emphasizing the specificity of the
respective case and rejecting the circumstance for lack of locus standi (see op.cit.Valentin Câmpeanu v.
Romania).
With regards to not
exercising all legal remedies in the state (and the non-submission of appeal
for indemnification in civil procedure, see more in: Khlaifia and
Others v. Italy ([GC], no. 16483/12, § 52, 15 December 2016) and the compliance with
the regards to the six-month rule[xiii],
the Court reached a decision that Article 35 paragraph 3(a) of ECHR was not
violated and deems that the appeal was justified.
On 23 January 2020, the
Court reached unanimous decision that Article 3 of ECHR prohibiting
inhuman and degrading treatment was violated and that the minor L.R.
was improperly placed in PIPR, without the appropriate assistance or care, and
that L.R. was exposed to inhuman and degrading treatment. Furthermore, with six votes
in favour and one against[xiv],
the Court reached decision that Article 3 of ECHR with regards to the
investigation was violated i.e. that the competent authorities did not
conduct the proper investigation for the case. At the same time, the court
unanimously decides that there is no need to re-examine the appeal with regards
to Article 13 of ECHR. In addition, the
Court obligates Republic of North Macedonia to pay EUR 18,000 to the minor L.R.
for immaterial damage and EUR 1,650 for expenses.
Conclusion and
meaning of the judgment
The case of L.R.
displays the real image of the functioning of the state institutions, their
incapacity to deal with such specific cases, constantly transferring the
responsibility from one to another institution, the entire (non)functioning system
in general and the bad image displayed by the competent authorities in the
country. What is even more
important is that “L.R. v. RNM” is
the first case before ECHR where an application was accepted for protection of
the rights of intellectually disabled minor person, who was not able to provide
consent to be legally represented before the Court. According to the Helsinki Committee, the
minor L.R. once the judgement was passed was placed in a group home where his
rehabilitation and the entire health condition is carefully monitored.[xv] Apart
from providing assistance in solving the L.R. case, the Ombudsman stated that
in the past period he provided his assistance in other three cases of improper
action with children with disabilities, by indicating the competent
institutions to prepare new categorization and place them in the proper
institutes. [xvi]
[i]Source: http://ombudsman.mk/MK/novosti_i_nastani/241620/sluchajot_so_maloletnikot_vrzuvan_za_krevet_koj_go_obelodeni_narodniot_pravobraotel_dobi_sudska___.aspx, last viewed on 15.2.2020.
[ii]“The
Office for protection of the rights of children and persons with disabilities
initiated a procedure upon its own initiative and addressed the Ministry of
Labour and Social Policy with request for proper care and treatment of such
persons according to their disability“, source:
http://ombudsman.mk/upload/Godisni%20izvestai/GI-2013.pdf, last viewed on 15.2.2020.
[iii] PIPRBB right before the
accommodation and during the stay of the minor there (1 year and 9 months) sends remarks
for improper accommodation of the minor L.R. to the competent Ministry and to
the competent Inspectorate.
[iv] In the Ombudsman’s report for
2013, among other things, it was specified that 46 persons were employed in the
current year in the respective Institute, of whom only 1 person performing
managing capacity, see Report on
following and application of the principle for proper and equitable
representation for 2013, p.52.
[v] Criminal Code (“Official
Gazette of Republic of Macedonia” no. 37/1996, 80/1999, 4/2002, 43/2003,
19/2004, 81/2005, 60/2006, 73/2006, 7/2008, 139/2008, 114/2009, 51/2011,
135/2011, 185/2011, 142/2012, 166/2012, 55/2013, 82/2013, 14/2014, 27/2014,
28/2014, 41/2014, 115/2014, 132/2014, 160/2014, 199/2014, 196/2015, 226/2015,
97/2017 and 248/2018). Decisions of the constitutional Court of Republic of
Macedonia: U. no. 220/2000 dated 30 May 2001, published in “Official Gazette of
Republic of Macedonia” no. 48/2001; U. no. 210/2001 dated 6 February 2002, published in “Official
Gazette of Republic of Macedonia” no. 16/2002; U. no. 206/2003 dated 9 June
2004, published in “Official Gazette of Republic of Macedonia” no. 40/2004; U. no.
228/2005 dated 5 April 2006, published in “Official Gazette of Republic of
Macedonia” no. 50/2006 and U. no. 169/2016 dated 16 November 2017, published in
“Official Gazette of Republic of Macedonia” no. 170/2017.
[vi]Law on Criminal Procedure (“Official
Gazette of Republic of Macedonia” no. 150/2010, 100/2012, 142/2016 and
198/2018). Decision of the Constitutional Court of Republic of Macedonia U. no.
2/2016 dated 28 September 2016, published in “Official Gazette of Republic of
Macedonia” no. 193/2016.
[vii]Principle 1 for Fundamental
Rights and Freedoms, Principle 9 for Treatment, Principle 11 for Consent for Treatment and
Principle 12 for
Advice for the Patient’s Rights, available on the following link:
https://www.who.int/mental_health/policy/en/UN_Resolution_on_protection_of_persons_with_mental_illness.pdf, last viewed on 20.2.2020.
[viii]Article 15 referring to Freedom from
Torture or Cruel, Inhuman or Degrading Action or Punishment, available to the following link: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html, last viewed on 20.2.2020.
[ix]In the given case, relevant is
the Report of the Special Rapporteur on Torture, Mr. Juan E. Mendez, available on the
following link: https://www.ohchr.org/documents/hrbodies/hrcouncil/regularsession/session22/a.hrc.22.53_english.pdf, last viewed on 20.2.2020.
[x]Article 6 for protection of the rights of
persons not capable to give their consent and Article 7 for protection of persons with
mental disabilities, available
to the following link: https://rm.coe.int/168007cf98, last viewed on 20.2.2020.
[xi]Article 27 for Isolation and Prohibition
from chapter V, , available
to the following link:
https://www.coe.int/t/dg3/healthbioethic/Activities/08_Psychiatry_and_human_rights_en/Rec(2004)10%20EM%20E.pdf, last viewed on 20.2.2020.
[xii]See more to the following link: https://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-carries-out-targeted-visit-to-the-former-yugoslav-republic-of-macedonia-, last viewed on 20.2.2020.
[xiii]Submission of application to
ECHR after the expiry of six months, which in the respective case was clear
that it would be unsuccessful.
[xiv]Pursuant to Article 45 paragraph 2 of ECHR and Rule 74 paragraph 2 of the Court Rules, the separate opinion of the
judge Wojtyczek is presented in the annex to the judgment, p.33, , available to the following link: https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Macedonia%22],%22sort%22:[%22kpdate%20Descending%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-200433%22]}, last viewed on 20.2.2020.
[xv]See more to the following link: https://mhc.org.mk/news/presuda-na-evropskiot-sud-za-chovekovi-prava-po-aplikacija-na-helsinshkiot-komitet-prekrsheni-pravata-na-osumgodishno-dete-so-poprechenost-koe-beshe-vrzuvano-zaradi-negova-bezbednost/,л, last viewed on 20.2.2020.
[xvi]Source:http://ombudsman.mk/MK/novosti_i_nastani/241620/sluchajot_so_maloletnikot_vrzuvan_za_krevet_koj_go_obelodeni_narodniot_pravobraotel_dobi_sudska___.aspx, last viewed on 20.2.2020. 20.2.2020.