People with Disability: Judicial

Response
By: Ms. Tulasa Neupane
Stanev v. Bulgaria, 2012
• Rusi Kosev Stanev was diagnosed with schizophrenia in 1975 and declared unfit to
work in 1990. In 2000, following a request from his stepmother and half-sister, a
court declared him partially legally incapacitated without notifying him. Since his
relatives declined guardianship, a municipal council officer was appointed his
guardian. Without informing Stanev, the guardian requested that he be placed in a
social care home for 'people with mental disorders'.
• Consequently, in 2002, Stanev was taken to an isolated home about 400 kilometers
from his hometown and 80 per cent of his pension was transferred there as payment.
• In 2004 and 2005, through his lawyer, Stanev expressed the desire to leave the home
permanently and asked the prosecutor and the mayor to bring actions to restore his
legal capacity. They both refused, In 2006, at his lawyer’s request, Stanev was
examined by independent psychiatrist and psychologist who found that his
schizophrenia diagnosis was inaccurate, his residence in the home was damaging his
mental health, and he should be reintegrated into society.
Stanev v. Bulgaria, 2012
• In 2012, the Court found that Stanev’s indefinite and involuntary placement
by State authorities in a home amounted to deprivation of liberty
• Additionally, due to the absence of a recent psychiatric assessment justifying
the detention, it did not comply with requirements for “lawful detention . . . of
persons of unsound mind.”
• The Court ordered Bulgaria to pay Stanev 15,000 euros in non-pecuniary
damage. It further determined that the State should consult Stanev to
ascertain whether he wished to stay in the home and, if not, to reconsider his
situation. The Court also recommended that, as a general matter, the State
take measures to ensure effective access to court for individuals under partial
guardianship seeking restoration of their legal capacity.
Centre for Legal Resources on behalf of Valentin
Câmpeanu v. Romania, 2014
• On 17th July, 2014, the European Court of Human Rights (ECHR) held the
Romanian government accountable for violating the human rights of Valentin
Câmpeanu, a youth with severe mental disabilities and HIV positive, who died in
2004.
• Abandoned at birth, he lived in public institutions all his life. When he turned
eighteen, he was shifted to a social care home for adults, and afterwards, to a
mental hospital. Here, left in isolation, and in the cold, without necessary health
care and treatment, and deprived also of food and proper clothing, he died within
seven days.
• The ECHR held that State had failed to meet Mr. Câmpeanu’s most basic medical
needs resulting in his death. In particular, Mr. Câmpeanu had been placed in
medical institutions not equipped to provide adequate care for his health
conditions, and the authorities had neglected to ensure the implementation of his
HIV treatment course with antiretroviral medication.
Centre for Legal Resources on behalf of Valentin
Câmpeanu v. Romania, 2014
• Moreover, the authorities, aware of the lack of resources and appalling
conditions at the psychiatric hospital where he had been placed, had
unreasonably put his life in danger. Thus the State had clearly breached his
right to life
• the Court recommended Romania to take the necessary general measures to
ensure that persons with mental disabilities in a comparable situation were
provided with independent representation enabling them to have complaints
relating to their health and treatment examined before court or other
independent body.
Mental Disability Advocacy Centre (MDAC) v.
Bulgaria, 2008
• The Mental Disability Advocacy Center brought a complaint before the European
Committee of Social Rights (which judges compliance of State parties with the European
Social Charter) alleging that children living in homes for mentally disabled children
(HMDCs) in Bulgaria received little to no education.
• The Committee determined that Article 17§2 had been violated because children with
intellectual disabilities residing in HMDCs did not have an effective right to education.
The Committee further ruled that there had been a violation of Article 17§2 read in
conjunction with Article E (nondiscrimination) since children with mental disabilities
were discriminated against as a result of the low number of such children receiving any
type of education when compared to other children.
• The Committee also held that Bulgaria’s legislation and action plans related to children
with intellectual disabilities were insufficient, particularly due to ineffective
implementation.
• Following MDAC, Bulgaria passed Regulation No 1/2009 for the Education of Children
and Pupils with Special Education Needs and/or Chronic Diseases.
Liliane Gröninger v. Germany, 2014
• Liliane Gröninger presented the communication before the Committee on the
Rights of Persons with Disabilities on behalf of herself, her husband and her
son, Erhard Gröninger, a person with disabilities. She argues Germany
violated Article 3 (General principles), Article 4 (General obligations), Article 8
(Awareness –raising) and Article 27 (Work and employment) of the Convention
on the Rights of Persons with Disabilities (The Convention), through legislation
that failed to promote Mr. Gröninger participation in the labor market
• She argues that an integration subsidy included in Germany’s social legislation
is discriminatory. This subsidy can only be claimed by employers after they
make a job offer, and the process excludes participation of the person with
disability. In addition, the outcome and duration of the process are uncertain,
and the subsidy does not cover persons whose full working capacity can’t be
restored within 36 months
Liliane Gröninger v. Germany, 2014
• The Committee determined that Germany’s policies were not consistent with
general principles of Article 3 of the Convention since it viewed disability as
something transitional that can be “cured”. It established that the requirements
of the integration subsidy creates a deterrent for employment and since general
and predetermined benefits exist for employment of recent graduates without
disabilities, it puts persons with disability in further disadvantage and creates
indirect discrimination.
• The Committee recommended that the State reviewed Mrs Gröninger case,
“applying all measures available under domestic legislation in order to
effectively promote employment opportunities in the light of the Convention on
the Rights of Persons with Disabilities.” The Committee also recommended
Germany to revise its legislation in view of the Convention and to take the
necessary steps to prevent future similar violations, ensuring the inclusion of
The Case of Keenan v. the United Kingdom, 2001
• Mark Keenan received intermittent psychiatric treatment since the age of 21.
At 28, Keenan was admitted to prison, initially to the prison health center.
Several attempts were made to transfer him to the general population, but his
mental health worsened each time.
• Following a transfer attempt, he assaulted two guards and his sentence was
increased by twenty-eight days. The next day Keenan hung himself. His
mother alleged violations of the European Convention on Human Rights
• Under article 2 the Court stated that States’ positive obligations may include
preventing self-harm. The Court found that because Keenan’s record
contained no formal diagnosis of schizophrenia, authorities could not have
known he was an immediate suicide risk. Therefore, their response to the
known risk was reasonable and the claim under article 2 was dismissed.
The Case of Keenan v. the United Kingdom, 2001
• With regard to article 3, States are obligated to protect prisoners’ mental
health and inadequate mental-health treatment may be found to be a
violation. In assessing adequacy of treatment the Court considers mentally ill
persons’ vulnerability, and does not require them to articulate specific ill
effects. In Keenan’s case, inadequate record keeping, monitoring, and
psychiatric input showed significant defects in treatment.
• Susan Keenan was awarded £10,000 in damages; £7,000 for Keenan’s
suffering, to be held by his estate and £3,000 for his mother’s suffering. She
was awarded £21,000 for legal expenses.
LMR v. Argentina, 2011
• Born on 4 May 1987, LMR is a young woman living with her mother, VDA in
Argentina. She has a mental impairment and has a mental age between 8 and
10 years old.. During a hospital visit she was found to be pregnant.
• Under section 82.6 of the Argentinean Criminal Code abortion is legal where
the pregnancy is the result of the rape of a mentally impaired woman. LMR
filed a police complaint and scheduled an abortion. Her abortion was
prevented by an injunction against the hospital.
• LMR appealed unsuccessfully to the Civil Court. The Supreme Court of
Buenos Aires ruled the abortion could take place. However, under pressure
from anti-abortion groups the hospital refused to perform the abortion. They
claimed her pregnancy was too far advanced.
• LMR eventually obtained an illegal abortion.
LMR v. Argentina, 2011
• The United Nations Human Rights Committee found that court hearings
caused LMR’s abortion to be delayed to the point that she required an illegal
abortion.
• This violated Article 2 in relation to Articles 3 (right to equality and non-
discrimination), Article 7 (right to be free from torture or cruel inhuman or
degrading treatment) and Article 17 (right to privacy).
• LMR’s right to privacy was violated by the courts’ unlawful interference into a
decision that should have included only LMR, her guardian, VDA and her
doctor. Failing to protect LMR’s right to an abortion under Argentinean law,
and the resulting suffering violated her Article 7 rights.
• Article 7 protects individuals from mental as well as physical suffering. The
violation was particularly serious given her status as a person with a
disability.
Glor v. Switzerland, 2009
• Glor, was declared unfit for mandatory military service or the alternative civil
service offered to conscientious objector due to diabetes. He was ordered to
pay a tax for exemption from military service, as he fell below the 40%
disabled threshold for exemption from the tax. The tax was for a non-
negligible amount assessed over several years. Glor claimed a violation of his
rights under Article 14 in conjunction with Article 7 of the European
Convention on Human Rights for discrimination on the basis of a disability
• According to the court, Glor’s ECHR rights had been violated. For
discrimination under Article 14 to violate the ECHR, discrimination must fall
within the ambit, or reach of a right protected by another Article. They held
that notion of private life in Article 7 included protection of an individual’s
physical integrity. A state tax assessed based on inability to serve in the
military because of a medical condition falls within the reach of Article 7.
Glor v. Switzerland, 2009
• The Court found no reasonable justification for distinguishing between those
unfit for military service and exempt from the tax, and those unfit for service,
but liable for the tax. It was not in the community’s best interests to make
Glor pay a tax based on a circumstance he could not control. The Court also
questioned why he could not be given a less physically demanding assignment
in the military, or be permitted to perform civil service.
• Glor had not asked for damages. He received €3,650 for legal costs.
Purohit and Moore v. The Gambia, 2003
• The applicants alleged, amongst other things, that the legislative regime in
The Gambia for mental health patients violated the right to enjoy the best
attainable state of physical and mental health (Article 16) and the right of the
disabled to special measures of protection in keeping with their physical and
moral needs (Article 18(4)). Both rights are guaranteed in the African
Charter on Human and Peoples' Rights.
• Holding that The Gambia fell short of satisfying the requirements of Articles
16 and 18(4) of the African Charter, the Commission stated that the
enjoyment of the right to health is crucial to the realisation of other
fundamental rights and freedoms and includes the right of all to health
facilities, as well as access to goods and services, without discrimination of
any kind.
Purohit and Moore v. The Gambia, 2003
• The Commission iterated that mental health patients should be accorded
special treatment to enable them to attain and sustain their optimum level of
independence and performance. This would be consistent with Article 18(4)
and the standards outlined in the UN Principles for the Protection of Persons
with Mental Illness and Improvement of Mental Health Care.
• Amongst other things, the Commission urged the Government to repeal and
replace the impugned legislative regime and provide adequate medical and
material care for persons suffering from mental health problems in the
territory of The Gambia.
International Association Autism Europe v.
France, 2003
• Autism‑Europe alleged that implementation by France of statutory
instruments relating to provision of education to persons with disabilities was
extremely poor. The overwhelming majority (80‑90 percent) of young adults
and children with autism had no access to adequate educational services.
• It was also argued that insufficient provision had been made for
mainstreaming of education, early intervention, and teacher training and that
the funding formula for special education took insufficient account of the
number of children in need. The Government of France acknowledged the
above failings but pointed to new funding allocations and programmes
• The Committee ruled that the Government's overall lack of progress in this
area constituted a violation of the Charter, namely the right of persons with
disabilities to education, the right of children and young persons to
education, and the right of all persons to non‑discrimination.
International Association Autism Europe v.
France, 2003
• When the realisation of a Charter right was “exceptionally complex and
particularly expensive”, a government was permitted some flexibility but
realisation of social rights must occur within a “reasonable time, with
measurable progress and to an extent consistent with the maximum available
resources”.
• Noting that there had been twenty years of national debate on the subject,
and that the Disabled Persons Act had been passed in 1975, the Committee
found that there was an unacceptable and chronic shortage of places. It also
chided the Government for its restrictive definition of autism. The Committee
was not, however, prepared to censure France's method of funding special
education through the State health insurance system, noting that this was a
matter for State discretion.
Tartu Vangla v Estonia, 2021
• the Court of Justice of the European Union adopted a decision in favour of
an employee with disabilities who had been dismissed by his employer
based on his disability in Estonia. The case concerned a hard of hearing
prison officer who was dismissed based on Estonian regulations that
prohibited the employment of persons ‘whose hearing acuity does not meet
minimum sound perception thresholds’.
• the Court recognised that such absolute regulation, that did not provide for
the possibility to check whether the employees could perform their duties,
and without considering reasonable accommodation, amounted to a
disability-based discrimination contrary to EU law, and in particular
contrary to Directive 2000/78 on equal treatment in employment.
Strøbye v. Denmark and Rosenlind v. Denmark,
2021
• Two persons with disabilities were seeking to recover their right to vote in
national elections.
• In a judgment of the 2nd of February, the court ruled against the right
to vote of persons under guardianship who are also deprived of their
legal capacity, instead favoring a legal scheme that discriminates against and
excludes persons with disabilities as a reasonable restriction to the right to
vote under Article 3 of Protocol No. 1 to the European Convention on
Human Rights.
• This decision excludes persons with disabilities from the democratic
process, reducing them to second-class citizens and perpetuating
stereotypes about them.