For NGOs intent on taking cases to the European Court of Human Rights on behalf of vulnerable persons, L.R. v. North Macedonia makes for interesting reading. The Court clarified its jurisprudence on the standing of NGOs to submit applications on behalf of certain persons without express authorization. It also dealt with the state’s obligation to prevent and investigate claims of ill-treatment of patients in health institutions.
The applicant’s parents had suffered from a mental disability. They had abandoned him after his birth and he was placed in an orphanage. A Social Welfare Centre was appointed as his guardian. At the age of three, he was diagnosed with a mild form of mental disability and a severe form of physical disability. He was placed in a rehabilitation institute, from which he was discharged when he was eight years old.
The Social Welfare Centre which was his guardian contacted another rehabilitation institute and asked whether the applicant could be accommodated there. The institute answered that it was not designed for persons with mental disabilities but for individuals with physical disabilities.
The Social Welfare Centre decided that the applicant should be placed in the institute anyway. Some 16 months later, the Ombudsman visited the institute and found the applicant tied to his bed. In his annut report on human rights in North Macedonia, he singled this out as a human rights violation.
Following the public presentation of the Ombudsman’s report the Helsinki Committee for Human Rights in Skopje, an NGO, filed a criminal complaint against staff members of the rehabilitation institute. Staff members were questioned by a public prosecutor.. They stated that their institute, as they had informed the applicant’s guardian before, was not equipped to accommodate persons with mental disabilities. The applicant had been a hyperactive child who needed constant supervision – which they could not provide. They had feared that he would escape and endanger himself, in particular since there was a very vivid road directly in front of the institute. Therefore, they had decided to tie the applicant up with light ropes for his own safety.
The public prosecutor dismissed the case on the grounds that the suspects had acted without the mens rea required for a criminal offence, since their intention had been to protect the applicant.
The Helsinki Committee submitted an application to the European Court of Human Rights on behalf of the applicant; it had not been formally authorized by the applicant or his guardian to do so.
Standing of the NGO
The European Court of Human Rights examined the admissibility of the application. In particular, it dealt with the question whether the Helsinki Committee had been entitled to lodge the application on behalf of the applicant.
Requirement to be a victim
A person submitting an application has to be able to claim to be a victim of a violation of the European Convention on Human Rights. That means in general that the applicant has to be directly affected by the violation. He may ask others – e.g. a NGO or an attorney – to represent him. In this case, he has to authorize them to act on his behalf. This requirement was not met. The applicant , a minor with a mental disability, had not authorized the Helsinki Committee to represent him before the Court.
Exceptions established in Campeanu
The Campeanu case
In Centre for Legal Resources on behalf of Valentin Campeanu v. Romania, the Court accepted that NGOs may act on behalf of victims without express authorization in exceptional circumstances. The case concerned a man of Roma origin who was HIV-positive and suffered from a mental disability and who had been severely neglected in the institution in which he had been placed (the applicant had died before the application to the ECtHR had been filed). In view of these circumstances, the Court granted the Legal Resources Centre the right to act on the applicant’s behalf – to avoid serious gaps in the human rights protection afforded to persons who are particularly vulnerable and at the same time unable to take action on their own.
Association for the Defence of Human Rights on Romania
In the same vein, the Court held in Association for the Defence of Human Rights in Romania – Helsinki Committee on behalf of Ionel Garcea v Romania that an NGO from Romania had standing to act on behalf of a mentally disabled man who had been incarcerated. He had repeatedly hurt himself in prison, but not received adequate care. Finally, he had died after inserting a nail into his forehead. Members of the applicant NGO had visited Mr Garcea in prison and had submitted complaints to various authorities on his behalf.
Comite´ Helsinki Bulgare c. Bulgarie
In Comite´Helsinki Bulgare c. Bulgarie (Helsinki Committee Bulgaria v. Bulgaria), on the other hand, the Court decided that the NGO submitting the application had no standing. As Legal Resources Centre on behalf of Valentin Campeanu, the case concerned children who had been abandoned after birth, suffered from mental disabilities and had been placed in foster homes, where they had not received adequate care (to say the least). They had died and no criminal investigation had ensued. A TV documentary about the situation in the foster homes was aired and the Helsinki Committee of Bulgaria filed a criminal complaint. Since this complaint was ultimately dismissed, the Helsinki Committee submitted an application to the European Court of Human Rights on behalf of the two children.
The Court held that the applicant organisation did not have standing and declared the application inadmissible. It pointed out that the case resembled Campeanu in that the victims had been particularly vulnerable; it also stated that, like in Campeanu, there had been no other person to act for the children, since they had no contact to their relatives and no guardian had been appointed for them. Yet the Court distinguished the case from Campeanu in that the Helsinki Committtee Bulgaria had only learned about the fate of the two children when the documentary had been broadcast. Previous to that, it had not been in contact with them, while the Legal Resources Centre in Campeanu had become aware of the victim when they had visited the foster home in which he stayed and had immediately taken action by submitting complaints on his behalf. The Court also attached weight to the fact that on one case the Helskinki Committee Bulgaria had started acting on behalf of the children almost two years after the child had died.
Standing of the Helsinki Committee for Human Rights in Skopje
The Court examined if there were exceptional circumstances which justified granting the Helsinki Committee the right to act on behalf of L.R. One of the differences to Campeanu was that a guardian had been appointed to act in the interest of L.R. Thus, there were, in principle, persons mandated to act on his behalf. However, the Court pointed out that the Social Welfare Centre itself had been accused of neglecting its duties in the domestic proceedings. It could therefore not be expected that it would take complaints regarding the insufficient care for the applicant to the ECtHR.
Also, the Court stated that the Helsinki Committee had started acting on behalf of the applicant shortly after the Ombudsman’s report containing information on his case had been published. This was a feature distinguishing the case from Helsinki Comite v. Bulgarie.
On the basis of judgments rendered so far, it appears that the Court deems that NGOs have standing to act on behalf of applicants without express authorization if
- The applicant is in a particularly vulnerable position, e.g. because he is a minor or he suffers from a mental disability
- No other persons are available to act effectively on the applicant’s behalf
- The NGO has already acted on behalf of the applicant at the domestic level
- The NGO has started actin within short time after it learned about the case
- Whether the NGO has been recognised as entitled to act on behalf of the victim at the domestic level does not appear to be decisive. If it has, that is an argument in favour of granting the NGO locus standi; if it has not, that does not necessarily mean it does not have standing before the European Court of Human Rights
As to the merits, the Court referred to is well-established jurisprudence to the effect that states are under a positive obligation to ensure that individuals placed in foster homes or similar institutions are not subjected to ill-treatment.
The Court pointed out that the applicant had been placed in an institute despite indications that it was not equipped to accommodate him and to provide appropriate care. It stated that the applicant had been tied up repeatedly over a protracted period of time without legal basis. This was in violation of article 3 ECHR.
The Court also found that North Macedonia had violated its obligation arising from article 3 to carry out an effective investigation.