PARTLY DISSENTING OPINION OF JUDGE MOTOC

1. Article 14 of the Convention has often been considered the Cinderella of the system. Sometimes, Cinderella is compared to Hamlet: they share similar attributes but, equally, the storylines are very different. Cinderella and Hamlet are both the protagonists of their respective stories but are wronged by other characters. Cinderella loses both her parents and is at the mercy of her stepmother, while Hamlet, after losing his father, is at the mercy of his stepfather. If Article 14 has been compared with Cinderella, following this logic we can also compare it to Hamlet, with an emphasis on its famous phrase “to be or not to be”. Indeed, in the present case the Court found that there was no need to examine whether a violation has occurred.

2. The area of mental health is one in which human rights are frequently forgotten. Although relied upon by the applicants, the main case examined by the Court to date with regard to stereotyping is also overlooked. Carvalho Pinto de Sousa Morais v. Portugal (no. 17484/15, 25 July 2017) introduced for the first time in the Court’s case-law the concept of discrimination without a comparator, but stereotypes have not subsequently been used by the Court on a regular basis, making the above case look more like an exception than a rule.

3. One in four people will experience mental-health issues during their lifetime, according to current estimates. Yet nearly two-thirds of those with mental-health conditions will not seek treatment; individuals with mental ‑ health conditions – and their families – are subjected to stigma, discrimination and victimisation, and are vulnerable to violations of their rights. Individuals living in long-term institutions are particularly vulnerable to human-rights violations.

4. The Court has noted on several occasions the emphasis placed by the international community on the need for better and more coherent protection for the rights of persons with mental illness and mental disabilities. The international standards and recommendations encourage respect for equality, dignity and equal opportunities for persons with mental disabilities.

5. The relevant principles established under Article 14 of the Convention were reiterated in Molla Sali v. Greece [GC] (no. 20452/14, 19 December 2018). In that case, the Court reiterated that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical.

6. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (ibid., §§ 133 and 135).

7. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “ status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, 5 September 2017). The Court has found that a distinction made on account of an individual ’ s mental health is covered – either as a disability or a form thereof – by the term “ other status” in the text of Article 14 of the Convention (see Cînţa v. Romania , no. 3891/19, 18 February 2020, §§ 66 and 70, with further references).

8. We must first determine whether the applicant was treated differently than persons in analogous or similar situations because of a personal characteristic. We note that the applicant was divested of his legal capacity because he suffered from a mental illness (see paragraphs 14 and 62-63 of the present judgment).

9. Consequently, we consider it established that the applicant experienced such treatment mainly because of his mental health, which falls within the ambit of “other status”. In this connection it is noted that only persons suffering from mental illness can be fully divested of their legal capacity on the ground of their illness alone. For this reason such a difference in treatment will amount to direct discrimination if it is not justified.

10. In assessing the applicant’s complaint under Article 8 of the Convention, the Court has found that the domestic decisions divesting him of legal capacity pursued a legitimate aim, namely the protection of his health and of the rights of others (see paragraph 59 of the present judgment). There is no reason to find otherwise in the context of Article 14. Consequently, it remains to be established whether the difference in treatment was justified (see, mutatis mutandis , CînÅ£a , cited above, §§ 71 ‑ 72).

11. The Court accepts that when assessing a person’s ability to protect his or her own interests and exercise his or her rights, mental illness is a relevant factor to be taken into account (see, mutatis mutandis , CînÅ£a , cited above, § 68). However, the Court has already found that the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation (see paragraph 63 of the present judgment). In the present case, however, the applicant’s mental disability was found to have been the sole argument on which his full incapacitation was based (see paragraphs 64 ‑ 66 of the present judgment).

12. Consequently, the Court had no choice but to find that, by acting in compliance with Article 164 § 1 of the CC read together with section 221 of Law no. 71/2011 (see paragraphs 26-27 of the present judgment), the domestic courts considered the applicant solely in terms of his mental disorder, which they automatically equated with mental incapacity. The decision to divest him of his legal capacity and to place him under guardianship was based exclusively on his mental illness, without pertinent reasons being advanced and with no consideration for his actual abilities. It can be inferred that the prejudice the applicant thus suffered was caused by legislative stereotyping which prevented an individualised evaluation of his capacities and needs (see, mutatis mutandis , Alajos Kiss v. Hungary , no. 38832/06, § 42 in fine , 20 May 2010).

13. The legislative provisions in question are, however, at odds with other domestic requirements as well as with the respondent State’s international obligations. The Mental Health Act recognises that persons with mental disorders have the right to private life and to the free exercise of all civil rights (see paragraph 29 of the present judgment). Moreover, the UN Convention on the Rights of Persons with Disabilities, to which the respondent State is a party, recognises persons with disabilities as full subjects of rights and as rights holders, and as persons whose rights require protection on equal basis with others (see Cînţa , cited above, §§ 30 and 32). This is also the case for any person suffering from mental illness (ibid., § 75).

14. In its case-law, the Court has also recognised that very weighty reasons must be adduced to justify restrictions of the rights of the mentally disabled, because of their condition of particular vulnerability (see Alajos Kiss , cited above, § 42, and the case-law cited at paragraph 55 of the present judgment). The Court has further held that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny (see Alajos Kiss , cited above, § 44). It can be inferred that mentally ill persons represent a vulnerable group in society, whose rights require special consideration from the State authorities.

15. In these circumstances, we should consider that a prima facie case of discrimination has been established by the applicant and that the Government, to whom the burden of proof shifted, have failed to put forward any convincing reasons to rebut the presumption of discrimination against the applicant on the grounds of his mental health (see, mutatis mutandis , Cînţa , cited above, §§ 79-80).

16. There has accordingly been a violation of Article 14 of the Convention read in conjunction with Article 8.