Reflections on: "freedom is possible"

23 December 2008. MDAC's client wins guardianship case in Bulgarian Supreme Court and declares "freedom is possible". MDAC is featured in New York Times article on guardianship. It's a busy end to a busy year.

I'd like to end 2008 with a story of persistence and hope. Georgi Cenov is a Bulgarian man who has suffered years of neglect, discrimination and denial of his legal capacity at the hands of the Bulgarian State, and who has won a legal battle for his rights to be recognised. Both MDAC and our partner organisation the Bulgarian Helsinki Committee have had the privilege of representing Georgi for the past three years in intensive litigation which culminated this month in a landmark judgment by the Bulgarian Supreme Court. In the meantime we've been working with a colleague at the New York Times, which today features a hard-hitting article about guardianship in Bulgaria, which I encourage you to read.

Thirty years ago when he was three days old, Georgi Cenov was placed by his parents in an institution for children with mental disabilities. The reason? He had a congenital heart disease. Likely as a result of years of institutionalisation and not having access to appropriate medical treatment, Georgi developed some intellectual disabilities and years later in 2001 a court deprived him of his legal capacity and placed him under guardianship on the basis that he had epilepsy and mild "mental retardation".

Since being deprived of his legal capacity Georgi has been a non-person in the eyes of the law. He has been legally prohibited from deciding where and with whom to live, how to spend his own money, to work, to join clubs and association and to marry and found a family: rights which many Bulgarians take for granted, and rights which are enshrined in international human rights law binding on Bulgaria. He has even been banned from voting in local, national and European elections, further removing him from mainstream society and from the interest of politicians.

In 2005, Georgi lived at the "Home for People with Mental Retardation" in Podgumer, some 20 km north of the capital Sofia. He escaped from the institution in January 2007. I visited this institution this October. It's is in the middle of nowhere and we had to ask directions twice because it's not on the map. When we found it, we had to get through the locked gate. It was cold inside the buildings, even in the bedrooms. The men were thin and complained of hunger. Many have been there since childhood, and most will stay there until they die. The smell of human waste and unwashed people hung in the air. There is nothing for the residents to do. I was told by staff that the only form of rehabilitation is a monthly visit by a priest who lectures the residents on how to live their lives.

In 2005 the institution's director was Georgi Cenov's legal guardian, as he still is for all of the current residents. After Georgi submitted several written complaints, the guardian contacted attorney Aneta Genova of the Bulgarian Helsinki Committee who visited the institution and agreed to file a court application to lift Georgi Cenov's guardianship. With the consent of Georgi's guardian, the Bulgarian Helsinki Committee and the Mental Disability Advocacy Center were able to take legal steps to attempt to achieve what Georgi wanted: to be free from guardianship, to regain his legal capacity on an equal basis with others, and to make his own decisions.

The court of first instance rejected the claim. Georgi appealed. In May 2007 the appeal court found that Georgi had a mild intellectual disability and mental illness "in the broad sense, which partially impedes his abilities to manage his own affairs" and ordered that his total guardianship be replaced by partial guardianship. This was not good enough for Georgi. He instructed his lawyers to appeal, and a case was filed in July 2007 before the Bulgarian Supreme Court of Cassation which is the court of last instance.

The many years Georgi Cenov spent in institutions as well as the chronic neglect by State authorities to provide him with adequate social and medical care required intensive legal and social work. In 2007 the Bulgarian Helsinki Committee helped Georgi to enrol in a social rehabilitation programme of a non-governmental organisation "Philantrophy" in Pazardjik, a town 80km south east of Sofia. Specialists worked with Georgi every day, and learned how a person who has been institutionalised for many years found ways of expressing himself. Georgi gradually learned new skills, discovered new opportunities, and learned about life outside an institution. As a result, Georgi successfully completed a professional course as a cook, and landed a job in a restaurant. He started to save money to provide for his life outside an institution. Since March 2008 Georgi has lived in temporary accommodation with a flatmate.

This month the Supreme Court of Bulgaria ruled in Georgi's favour, restoring his full legal capacity. The court established that a diagnosis of a mental difficulty or illness is not in itself a legitimate justification for the deprivation of legal capacity. My Bulgarian colleagues tell me it's the first ever case on guardianship which the Bulgarian Supreme Court has dealt with. The court established the important and obvious point that epilepsy cannot be a reason to deprive someone of legal capacity. It went on to establish that disability does not mean inability. The court said:  

"It is necessary with regard to the concrete behaviour of that person to establish whether he can manage his own affairs. The Court after considering all written evidence [...]considers that he can manage his own affairs. Cenov wants to work, has been successful in finding a job and had had different kinds of jobs in the past. He is proactive in dealing with his problems and searches for a way to solve them. Indeed the "light mental retardation" has an effect on the claimant's behaviour by forming naïve and optimistic perceptions on how to solve his problems. However, this does not constitute a sufficient reason to accept that Cenov is incapable of managing his own affairs and to restrict his capacity to act."

It follows, said the Supreme Court, that there are no legal grounds for Georgi Cenov to be under partial guardianship. This case is an important milestone in European domestic jurisprudence. The judgment confirms what numerous international legal documents say, namely that the removal of legal capacity is an exceptional and invasive measure which impacts profoundly upon an individual's legal ability, private life and personal integrity. The ruling warns against sloppy assumptions based on the stigma of a diagnosis.

Last week Georgi Cenov told a room packed with representatives of local government, NGOs and the media:

"I want to say to everybody, that we, people from institutions, must keep the belief that freedom is possible. I often lacked hope, and thought that my life would finish because of lack of means. But every time I bring back to life with this belief. I met people who helped me and help me to keep this belief. I want that everybody know this. The normal, the free life is very very valued. Remember this."

Georgi Cenov was in many ways lucky. The director of his social care institution, as Georgi's guardian, took the unusual step of agreeing with Georgi and consenting to litigation to regain Georgi's legal capacity. Without such agreement it would have been impossible for Georgi himself to go to court and pursue his legal capacity himself, because courts consider people under guardianship to be incapable, and lacking "legal standing" to bring cases, even when such cases so obviously concern human rights. MDAC challenges this legal nonsense at every opportunity by calling for comprehensive reform of guardianship systems, and encouraging governments to shift to the paradigm envisioned in the UN Convention on the Rights of Persons with Disabilities. The new paradigm has as a starting a presumption of capacity, and if someone needs assistance in exercising their legal capacity, the State should ensure that appropriate support is provided. This way people with disabilities have the opportunity to act as independent and interdependent persons on an equal basis with others.

MDAC will use the Supreme Court ruling to advocate for reforms to guardianship laws in Bulgaria and other countries. We will also use the case to highlight the urgent need for governments to ratify and effectively implement the UN Convention on the Rights of Persons with Disabilities. You can help MDAC achieve this impact by sending us a holiday gift . Unlike some of the shopping you may do on the internet, MDAC won't send your aunt a box of chocolates or your nephew some woolly socks. Instead, you will be helping us to achieve Georgi Cenov's vision which I'm sure you share, that freedom is possible.

On behalf of all of us at MDAC I take this opportunity to thank you for your support throughout this year, and wish you and your loved ones all the best over the holiday season.

Oliver Lewis
Executive Director