Citing Article 8, ECHR Grants Psychiatric Patient Right to Attend a Family Funeral

By: Michelle Leal

Journal of Global Rights and Organizations, Associate Articles Editor 

PĀDURENI-GRAJURI, Romania – On October 8, 2019, the European Court of Human Rights (“ECHR”) held that the Romanian Government unfairly restricted a citizen from attending her mother’s funeral, thus violating Article 8 of the European Convention on Human Rights.

Luminiţa Zamfira Solcan is a Romanian national currently living in a psychiatric facility in Pădureni-Grajduri. In 2005, Solcan committed a murder in France.

During the criminal investigation, medical experts diagnosed Solcan with paranoid schizophrenia. Further, the experts opined that Solcan’s acts were due to her paranoid delusions. The Mâcon County Court discontinued the criminal investigation against Solcan, opining that she committed the offense in a state of diminished responsibility. The court ordered Solcan’s placement in a psychiatric facility in France for an unspecified time.

In 2011, Solcan requested to be transferred to a facility in Romania to be closer to her mother. In 2012, Solcan was transferred to a psychiatric facility in Pădureni-Grajduri. About a year later, Solcan’s mother died.

The day after her mother’s death, Solcan lodged a request with the Iaşi District Court for leave to attend her mother’s funeral. However, a month later, the court refused to grant Solcan’s leave. The court determined that under Article 39 of the Mental Health Act, the safety of others justified Solcan’s continuous detention.

Solcan filed an appeal, arguing that the laws allowing the temporary interruption of a custodial sentence for family reasons should also apply to detentions in psychiatric facilities. The court dismissed Solcan’s appeal, determining that the laws regarding the temporary interruption of imprisonment on family grounds did not apply to Solcan’s circumstances.

Before the ECHR, Solcan alleged that the authorities violated Article 8, the Right to Respect for Private and Family Life, by not allowing her leave of her involuntary psychiatric hospitalization to attend her mother’s funeral. The Court noted that any interference with an individual’s right to respect for her private and family life constituted an Article 8 breach unless the interference was necessary or in accordance with the law.

The Court first determined that the refusal to grant Solcan leave to attend her mother’s funeral was an interference under Article 8. Secondly, the Court found that the interference was an Article 8 breach because it was not necessary. The Court referenced relevant case law, which concluded that the State can only refuse an individual the right to attend a parent’s funeral for compelling reasons and if there is no alternative. The Court stated that neither the first-instance court or the Iaşi County Court accurately assessed Solcan’s situation. Moreover, the Court noted that due to the seriousness of the situation, the domestic courts should have explored alternative ways for Solcan to attend the funeral. The Court stated that the domestic courts failed to consider alternatives like escorted or compassionate leave.  Considering the seriousness regarding Solcan’s request and the domestic courts’ failure to consider alternatives, the Court found that the denial of leave was not necessary.

Ultimately, the Court determined that there had been a violation of Article 8 of the Convention and awarded Solcan six thousand euros for non-pecuniary damages.

For further information, please see:

ECHR Case Law – Failure to Allow a Psychiatric Detainee to Attend her Mother’s Funeral Violates her Right to Family Life – 20 Oct. 2019

European Court of Human Rights – Case of Solcan v. Romania – 8 Oct. 2019

European Court of Human Rights- Guide on Article 8 of the European Convention on Human Rights – 31 Aug. 2019


Author: Natalie Maier