The golden eggs are Bureš v The Czech Republic and Kedzior v Poland and whilst I would love to provide intelligent insightful analyses of these cases right now I’m both too pleased and too overwhelmed by teaching to do so. In two weeks a colleague takes over my EU lectures and I can come back to this. Consider this a placeholder. In the meantime anyone interested in standards of treatment for people with psychosocial disabilities, or the doublebinds created by placing someone under guardianship and leaving them no effective mechanism to challenge that guardianship should read these judgments.
Kedzior concerns the case of Stanislaw Kedzior who was placed under the guardianship of his brother in 2000 and then moved to a social care home without his consent where he was only allowed out on leave with permission of his official guardian (his brother). The court held that this amounted to a violation of his substantive right to liberty under Art 5(1) ECHR and that the absence of an effective judicial procedure to enable him to challenge his detention in the home amounted to a breach of his procedural rights to have the lawfulness of his detention reviewed by a court under Art 5(4) ECHR. They also found that the fact that the Polish guardianship laws left Mr Kedzior unable to apply to a court for a restoration of his legal capacity. The Polish Government did not contest this point, largely because their own Constitutional Court had already found that the domestic arrangements were unconstitutional and new arrangements have now been introduced in Poland. Nevertheless, despite this ‘positive development’ Mr Kedzior had already suffered a lengthy violation of his right to a fair hearing under Art 6 during the period between 2000 and 2009 when he was unable to challenge his lost legal capacity.
Two things stand out about the judgment. The first is Mr Kedzior’s enormous tenacity. It is worth doing the timeline to make the point:
28/08/2001 Lubaczów District Court declares Mr Kedzior partially incapacitated and appoints his brother as offical guardian.
27/12/2001 Krosno Regional Court varies this order in light of a psychiatric assessment and declares Mr Kedzior wholly incapacitated.
08/02/2002 Lubaczów District Court place Mr Kedzior in the social care home (although technically this was a voluntary admission not requiring court approval).
12/04/2002 Lubaczów District Court President informs Mr Kedzior that his placement in the home had been in accordance with the law.
27/12/2004 Lubaczów District Court again informs Mr Kedzior that his guardian was authorised to place him in the home.
09/02/2006 Przemsyl Regional Court reject Mr Kedzior’s request to have his legal capacity restored on the basis that since he lacked capacity he did not have the authority to make the request.
23/02/2006 Lubaczów District Court President explains to Mr Kedzior again that since he lacks capacity he was not a party to decisions regarding where he lived.
17/03/2006 Prezemsyl Regional Court President writes to Mr Kedzior to tell him there are no grounds on which to restore his legal capacity.
05/06/2006 Lubaczów District Court writes to Mr Kedzior telling him only his guardian could get him released from his care home.
21/09/2006 Przemsyl Regional Court reject another application for restoration of legal capacity.
15/02/2007 Lubaczów District Court writes to Mr Kedzior telling him only his guardian could get him released from his care home.
17/01/2007 Lubaczów District Court writes to Mr Kedzior explaining that the court can of its own motion vary the incapacitation order.
08/02/2007 Przemsyl Regional Court rejects a request to vary the incapacitation order as inadmissable in law.
01/03/2007 Przemsyl Regional Court in a letter responding to Mr Kedzior explain that if they are to vary the incapacitation order of their own motion they would need new medical evidence (Mr Kedzior had not been re-assessed since 2001).
11/05/2007 Przemsyl Regional Court rejects a request to restore legal capacity on the basis that Mr Kedzior does not have standing.
13/07/2007 Jaroslaw District Prosecutor informs Mr Kedzior that complaints he made against Dr F the clinician who examined in 2001 were manifestly ill-founded.
07/08/2007 Przemsyl Regional Court rejects a request to restore legal capacity on the basis that Mr Kedzior does not have standing.
17/09/2007 Prezemsyl Regional Court rejects an appeal by Mr Kedzior against their decision of 07/08/2007.
After that the ECHR judgment gives up summarising and just says ‘On several occasions in 2008 the applicant attempted to institute proceedings to have his incapacitation quashed.’
I wonder if the Polish courts just thought they were dealing with a vexatious litigant? The doublebinds Mr Kedzior was placed in are transparently obvious when observed at a distance, but it is a reminder that we may not see them when they are in front of our noses.
The second obvious defect in the judgment is the ECtHR deems the alleged violation of Mr Kedzior’s right to respect for his private and family life under Art 8 inadmissable and therefore ignores this entirely. They do so on the basis that he has already won under Arts 5 and 6 so they do not need to consider Art 8 separately, which was the approach they adopted in Stanev v Bulgaria earlier this year. Unfortunately this does not make sense. It was just about excusable (if annoying) in Stanev because Mr Stanev had won his claim on the grounds that the conditions in the care home in Pastra where he was detained were degrading and breached Art 3 ECJR and they did not also need to consider whether the same conditions violated Art 8 too. In other words – if your toilet facilities are so awful they are degrading, we probably do not need to ponder whether they violate your right to a private life too! I think this was wrong but it had some coherence. To be fair para.252 of the judgment in Stanev does not state this explicitly but it was how I gave the Court some credit at the time.
Mr Kedzior was arguing two different things though. His interests under Arts 5 and 6 are entirely distinct from his interests under Art 8 (whatever they might have been). To omit this from the judgment entirely without explaining why these arguments were inadmissable on the basis that he had already won elsewhere is wholly unconvincing.
Still a fascinating judgment to add to the pile with D.D. v Lithuania and Stanev – so I will come back to this.
But much much more exciting to me is the decision in Bureš v The Czech Republic. This case concerns Lukas Bureš a musician who was suffering from an anxiety disorder and accidentally overdosed on his medication causing him to act slightly bizarrely. He left his home in a state of undress, and was picked up by the police and taken to hospital where he was assessed and advised to spend the night in a sobering up centre, usually used by people suffering the after effects of too much alcohol. At the sobering up centre the atmosphere changed, Mr Bureš was subject to either several periods of restraint, or one extended period of restraint (the facts are disputed), he experienced verbal abuse and alleges that two male nurses sat on his chest to restrain him at one point. This was despite the fact that he arrived there displaying calm behaviour and showing no signs of antagonistic or aggressive behaviour.
The Court finds that the use of restraints in the sobering up centre, the failure to explore alternatives to strapping, the degree of physical and mental distress these practices caused to Mr Bureš and the lack of frequent checks amounted to a breach of Mr Bureš substantive right to freedom from inhuman and degrading treating under Art 3. In addition they held that the failure of the Czech authorities to adequately investigate his complaints about his treatment amounted to a breach of Mr Bureš procedural rights under Art 3.
I still need to think deeply about the implications of this judgment for decisions concerning forcible and restrained treatment of people with psychosocial disabilities. The most interesting section of the judgment to me is the Court’s restatement in paragraphs 83-87 of the general principles to be taken into account when considering if restraint in the treatment of person with a psychosocial disability reaches the minimum level of severity necessary to constitute a violation of Art 3.
One final thing: The Mental Disability Advocacy Center represented Lukas Bureš domestically and at the ECHR, and they were third party interveners in the case of Kedzior v Poland. Whilst I despise being called a human rights lawyer or in anyway giving any indication that I think law could be used for worthwhile progressive purposes the people at MDAC do care about making legal advocacy count and these judgments are a good example of how much difference they can make. They need funding at the moment, you can donate here.