4(B)(iii). Privacy, family and home

A person in an institution is restricted from doing things that many of us take for granted, such as going to the shops, making a cup of coffee, finding a job or taking a walk in the park. In rights terms too, institutionalisation is linked to other rights violations, such as the right to privacy, the right to physical and mental integrity, the right to liberty and freedom of movement, the right to freedom from exploitation, violence and abuse, and sexual and reproductive rights. Many of these rights are set out in both the CRPD and the ECHR. These, or similar rights such as the right to dignity, may be set out in the country’s constitution. 

Being forced to live in an institution can constitute a significant interference with a person’s private and family life. Institutional life is usually driven by strict house rules and a rigid daily routine, which might include taking medication on a daily basis against their will and/or other coercive and intrusive medical treatments. The closed nature of the institution and the restrictions on leaving can deter the client from forming any relationships with others outside the institution. Staff of institutions sometimes censor post.^[17]

Any legal provision which supports the right to autonomy can be used to challenge such restrictions. Article 22 of the CRPD sets out a duty on governments to enable persons with disabilities “to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life” and, to achieve that, governments must boost their “habilitation and rehabilitation services and programmes, particularly in the areas of health, employment, education and social services”.

Article 8 of the ECHR establishes the right to respect for private and family life, home and correspondence. There is much case law on these issues, but not in the context of disability institutionalisation, where the ECtHR has preferred to find violations of other rights such as the right not to be subjected to degrading treatment or the right to liberty. In Stanev, despite finding a string of violations, the ECtHR did not find a violation of Article 8, however two dissenting judgments regretted that the Court chose not to investigate the Article 8 claims. The Bulgarian judge identified legal capacity as “the primary issue” in the case. She noted that the government offered no justification for ignoring Mr Stanev’s preferences and that “instead of due assistance from his officially appointed guardian, the pursuit of his best interests was made completely dependent on the good will or neglect shown by the guardian”.^[18] Again, the link between institutionalisation and legal capacity was made.

The lack of Article 8 jurisprudence is a gap in the Court’s jurisprudence related to the institutionalisation of people with disabilities,^[19] and represents a clear target for strategic litigation.