5(A)(iii). Find alternative legal avenues

Some jurisdictions allow NGOs or other interested parties to initiate cases directly in higher courts, for example, where a case engages the public interest, or if it involves a violation of the human rights of specific or even unidentified individuals. In Romania, for example, the Code of Civil Procedure allows anyone to initiate litigation if their “legitimate interests” are harmed. This includes the interests of NGOs in safeguarding human rights and ensuring effective remedies. Prohibiting standing to third parties in the case of serious violations of human rights encourages impunity and lack of accountability on the part of perpetrators. This can be a powerful legal argument where the facts of a case are strong.

It may also be possible to challenge a particular statute, regulation, act or omission as unconstitutional without an actual power of attorney from a specific client. Public interest litigation, class actions or constitutional challenges can provide effective methods of challenging the system of institutionalisation in its totality or specific aspects of the system, without the necessity of having to rely on one particular client or fact pattern. In some countries, these processes may be more speedily resolved than filing a standard legal claim on behalf of an individual client.

Whatever the domestic law says, lawyers should always ask the client to sign a power of attorney which sets out instructions to the lawyer, and this should cover the eventuality of submitting an application to the European Court of Human Rights. That Court accepts cases filed on behalf of people under guardianship,^[54] irrespective of whether domestic law prohibits people under guardianship from instructing a lawyer.^[55] The Court does not apply the criteria that an applicant must be a “direct victim” in “a rigid, mechanical and inflexible way”.^[56] It has stated in connection to legal standing that:

Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.^[57]

The Court has recognised the standing of individuals other than the direct victim taking into account the “victims’ vulnerability on account of their age, sex or disability, which rendered them unable to lodge a complaint on the matter with the Court, due regard also being paid to the connections between the person lodging the application and the victim”.^[58] In the 2014 judgment in Câmpeanu v Romania,^[59] the Court further expanded its jurisprudence regarding standing, albeit in a limited manner. In that case, the Court allowed an NGO to bring a case regarding violations of the right to life of a young person with disabilities who died in a psychiatric hospital during a period when he had no guardian appointed but was nonetheless stripped of his legal capacity.

As noted above in section 4(B)(vi)., it is possible to initiate a case directly at the European Court under Article 6(1) of the ECHR if there is no avenue to challenge the placement under guardianship at the national level.^[60] Lack of access to courts in this regard represents a continuing violation which can therefore be submitted at any time. Further, an ECHR power of attorney may carry more weight with domestic courts even if the client is denied legal capacity under national law.

Finally, lawyers should consider which alternative judicial or quasi-judicial tribunals are available where a case can be initiated but the rules of standing are less stringent, such as an Ombudsman’s office, a national human rights commission or equality body. This includes international tribunals such as the UN Treaty Bodies or the European Committee of Social Rights.^[61]