In Nencheva v. Bulgaria, European Court Finds State Responsible for Deaths in Institution for Children with Disabilities

The European Court of Human Rights
Credit: ECtHR

The European Court of Human Rights recently issued its judgment in Nencheva and Others v. Bulgaria, a case involving a State-run facility for children with disabilities, holding that Bulgarian authorities knew or should have known that the lives of children in the facility were at grave risk and failed to take action to protect them. See ECtHR, Nencheva and Others v. Bulgaria, no. 48609/06, Judgment of 18 June 2013 (French only). [ECtHR Press Release]

During the winter of 1996-97, Bulgaria faced a serious economic crisis, rendering the Dzhurkovo care home for the mentally and physically disabled unable to provide adequate food, heat, and medical care for the children living there.  Despite the manager’s description of the problems and requests to government officials for assistance, the government failed to provide any help.  As a result, fifteen children housed in the facility died that winter.

The European Court held that when government officials, who had notice that a problem existed, did not take necessary measures within the scope of their powers to provide assistance to the facility, the State was in violation of Article 2 of the European Convention on Human Rights, which protects the right to life.  The tribunal found that the conditions at the facility were not due to any sudden force majeure event to which the State would have been unable to respond, but rather was part of a national crisis of which high level government officials had been informed.  Not only did the government fail to take action to protect the children’s lives, the European Court also found that they subsequently failed to provide an adequate remedy and properly investigate the incident.  Although the victims’ family members had access to a civil remedy (which the court found satisfied Article 13 (effective remedy), the European Court found this irrelevant given Article 2′s requirement that the State initiate its own investigation.  The government’s criminal investigation was only initiated two years after the deaths, the authorities were inactive for several years, and the criminal proceedings lasted eight years, thereby failing to meet the Article 2 standard.

Among other claims, the applicants also contended that Bulgaria had violated Article 3 (inhuman or degrading treatment) due to the conditions in the home and Article 6 (fair trial) with regard to the applicants’ ability to participate in the criminal proceedings, but the European Court found these claims time barred by the ‘six-month rule.’  ECtHR, Nencheva and Others v. Bulgaria, no. 48609/06, Judgment of 18 June 2013, para. 154.  The six-month rule is a condition of admissibility requiring that applicants file a petition with the European Court within six months of receiving notice of the final determination by a domestic tribunal that exhausts the domestic remedies available to the applicant.  See European Convention on Human Rights, art. 35(1).

Related Jurisprudence

A similar case, Valentin Campeanu v. Romania, is currently pending before the Grand Chamber of the European Court of Human Rights.  Valentin Campeanu was an HIV-positive child of Roma descent with severe mental disabilities.  He was held in a number of State-run facilities for many years, where observers noticed his medical condition steadily degrading.  Ultimately, he died in a hospital where he had been held in deplorable conditions and where staff failed to provide adequate medical care.  The applicants claim that Romania is responsible for violations of Articles 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 8 (right to respect for private and family life), 13 (right to an effective remedy), and 14 (prohibition of discrimination) of the European Convention.  The Grand Chamber will hold a hearing in the case on September 4, 2013. [ECHR]  For more information on the case, see INTERIGHTS’ press release.

In 2002, at the request of the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights issued an advisory opinion clarifying the limits of State discretion in dealing with children vis-a-vis minor’s rights to due process and judicial protection.  I/A Court H.R., Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/2002, 28 August 2002.  In its analysis, the court explains that not only must State institutions intervene to protect the best interests of a child, they must also have all the “necessary elements to safeguard the best interests of the child,” including, “qualified institutions, with appropriate staff, adequate facilities, suitable means and proven experience.”  Id. at para. 78.  The court also cites Article 3 of the Convention on the Rights of the Child (CRC), requiring state facilities responsible for children to “conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

Furthermore, the Inter-American Court held that Article 4 of the American Convention on Human Rights, which guarantees the right to life, not only prohibits deprivation of life, but also requires a State to take affirmative steps to ensure a child may “develop under decent conditions.”  Id. at para. 80.  This right extends to children with disabilities, as stated in Article 23(1) of the CRC (“a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community.”)

The United Nations Committee on the Rights of the Child, the treaty body responsible for monitoring State implementation of the Convention on the Rights of the Child, issued a General Comment on the rights of children with disabilities in 2006.  Among other topics addressed, the Committee highlighted its concern regarding the institutionalization of disabled children, stating:

The Committee has often expressed its concern at the high number of children with disabilities placed in institutions and that institutionalization is the preferred placement option in many countries. The quality of care provided, whether educational, medical or rehabilitative, is often much inferior to the standards necessary for the care of children with disabilities either because of lack of identified standards or lack of implementation and monitoring of these standards. Institutions are also a particular setting where children with disabilities are more vulnerable to mental, physical, sexual and other forms of abuse as well as neglect and negligent treatment (see paragraphs 42-44 above). The Committee therefore urges States parties to use the placement in institution only as a measure of last resort, when it is absolutely necessary and in the best interests of the child. It recommends that the States parties prevent the use of placement in institution merely with the goal of limiting the child’s liberty or freedom of movement. In addition, attention should be paid to transforming existing institutions, with a focus on small residential care facilities organized around the rights and needs of the child, to developing national standards for care in institutions, and to establishing rigorous screening and monitoring procedures to ensure effective implementation of these standards.

CRC, General Comment No. 6, The rights of children with disabilities, UN Doc. CRC/C/GC/9, 27 Feb. 2007, para. 47.

And, the Council of Europe (COE) Commissioner for Human Rights in 2012 issued a report, The human rights situation of children in institutions and of Roma and other minorities in Bulgaria (CommDH (2012)12 of 24 January 2012), which he sent to Bulgarian authorities.  The Commissioner drew particular attention to the conditions and deaths in institutions for disabled children, writing:

In his 2010 report the Commissioner also welcomed the measures taken in Bulgaria towards improving the living conditions of children in institutions through deinstitutionalisation. However, he is deeply concerned at reports indicating that the situation of children living in some institutions remains seriously substandard. In 2010, an NGO active in the field of children’s rights together with the Prosecutor’s office conducted field research into conditions in institutions for children with mental disabilities, including an investigation into the deaths of 238 children over the previous ten years. The detailed findings of this research were submitted to the UN Committee against Torture in October 2011.

This letter is cited in the European Court’s Nencheva decision. See Nencheva and Others v. Bulgaria, no. 48609/06, Judgment of 18 June 2013, para. 80.  The UN Committee against Torture’s most recent Concluding Observations on the State report submitted by Bulgaria highlight the statistics from the report mentioned by the COE Commissioner, and the Committee recommended that Bulgaria review its legislation and policies, evaluate the institutionalization and treatment of persons with disabilities on an individual basis, effectively regulate the guardianship system, closely monitor placement of persons with mental illness, sufficiently staff facilities and locate them in urban areas where other services are accessible, adequately investigate and sanction those responsible for the deaths of institutionalized children with mental disabilities, enhance accountability and prevent impunity in institutional settings, and ensure independent oversight and monitoring. CAT, Concluding Observations on BulgariaUN Doc. CAT/C/BGR/CO/4-5, 14 Dec. 2011, para. 19.

For more information on children’s human rights, see IJRC’s resource guide on Children’s Rights, and the European Court’s factsheet on Protection of Minors.