Investigating Claims of Ill-Treatment by Persons with Disabilities

Earlier this month, the European Court of Human Rights rendered judgment in P.H. v. Slovakia, finding the state responsible for failing to conduct an effective investigation into police conduct threatening the applicant’s right to life under Article 2 of the European Convention on Human Rights (ECHR). The applicant, a 16-year old girl of Roma ethnic origin believe to have intellectual disability, was arrested at a shopping mall for a theft she confessed to committing. While in policy custody she fell out of the police station’s second-floor window. She acquired a traumatic brain injury and fractured four ribs, among other bodily injuries. She was comatose for a month after her fall, and due to her injuries, she had no memory of the events leading up to her fall.

After regaining consciousness, the applicant requested an effective investigation into possible ill-treatment that might have led to her fall. Although her Slovakian authorities did conduct an investigation, numerous flaws prevented Slovakia from fulfilling its obligations under Article 2 of the ECHR. Specifically, the Court found that “the investigation and its conclusions relied purely on the statements and records produced by the implicated officers.” Further, investigators failed to seek evidence from other prospective witnesses other than the officers themselves, to confront one of the police officers about inconsistencies in his different versions of events, and to consider whether the police officer’s conduct towards the applicant may have constituted a criminal offence. The Court concluded that the investigators’ handling of the applicant’s complaints “creates the impression of seeking to give it administrative closure rather than genuinely attempting to establish the facts and draw consequences.”

HPOD, together with the Centre for Disability Law and Policy at the National University of Ireland-Galway, intervened in the case as third parties. HPOD and CDLP argued that the UN Convention on the Rights of Persons with Disabilities (CRPD) amplified the obligations enshrined in the ECHR. This included Slovakia’s positive obligations to protect the rights of persons with disabilities, to investigate effectively all complaints of ill-treatment of such persons, to involve them effectively in such investigations by providing them with appropriate procedural accommodations, and not to discriminate on the basis of disability.

However, the Court dismissed the applicant’s important disability-related claims that the state had violated her rights to freedom from ill-treatment and to non-discrimination under ECHR Articles 3 and 14, respectively. For example, the Court observed, “that despite having legal representation, at no point domestically does the applicant appear to have claimed or complained of the lack of any procedural accommodations in view of her level of mental capacity” in the investigation. Also, the Court found “no appearance that discrimination on the basis of [the applicant’s Roma] origin or mental disability played any role in the ensuing investigation being ineffective.”

The Court’s findings regarding the absence of indicia of disability-based discrimination appear incongruous with its finding that “the applicant’s own submissions had been treated as being of less value” by investigators. Despite recognizing that investigators had given unfavorable, differential treatment to testimony from a Roma girl with disability, the Court was disinclined to analyze why her version of events was devalued. The Court appears to have ignored that discriminatory attitudes, be they based on gender, ethnic origin, or disability, can often explain unfavorable, differential treatment of members of marginalized groups. Moreover, the Court appears to have done so despite HPOD and CDLP’s intervention, as well as separate interventions by the European Roma Rights Centre and the Validity Foundation urging the Court to recognize disparate treatment. Indeed, the Court has held Slovakian authorities responsible for subjecting Roma community members to discriminatory and ill-treatment on numerous occasions,¹ and the Court has repeatedly recognized how persons with disabilities may face ill-treatment in detention or police custody.² By focusing narrowly on the question of whether investigators’ efforts were insufficient, instead of inquiring why, the Court may have missed the forest for the trees.

Part of the Court's avoidance of full-throated applications of the CRPD to disability rights violations may be attributable to how cases are framed. As discussed by disability cause lawyers, at HPOD and the Center for the Legal Profession's co-organized spring 2022 event, "Global Disability Cause Lawyers," strategic litigators should carefully consider how they present disability rights claims in court so as to generate precedents that advance CRPD precedents and the broader disability rights movements' aims. As HPOD's Hezzy Smith and Michael Ashley Stein wrote in their essay for the thematic issue of The Practice on "Global Disability Cause Lawyering," "disability cause lawyers should consider carefully whether and how their current legal and political contexts affect the likelihood of generating CRPD-consistent legal precedents." Drawing on his experience successfully generating seminal precedents at the European Court,^3,4,5 HPOD affiliate Janos Fiala-Butora, of the CDLP, expanded on these considerations in his essay for the same issue, describing how cause lawyers have to balance competing interests, such as accounting for the wishes of their individual clients while also "pursu[ing] the interests of the disability rights movement, or at least the narrower constituency within the larger movement they are supporting."

[D]isability cause lawyers should consider carefully whether and how their current legal and political contexts affect the likelihood of generating CRPD-consistent legal precedents.

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