I.C. v. The Republic of Moldova

Introduction

In I.C. v. the Republic of Moldova, the European Court of Human Rights (ECtHR) established that the state policy of ‘deinstitutionalisation’ of mentally handicapped people from state care institutions contradicts the European Convention on Human Rights (ECHR). The cited case concerned a woman with intellectual disabilities. Upon being ‘deinstitutionalised’ from an asylum, she suffered from sexual and other abuse in her ‘family’ of placement. The applicant’s experience is characterised by the intertwining of gender and disability that rendered her so vulnerable to abuse. As such, it represents a clear-cut example of intersectional discrimination.

This experience is not unique. Since deinstitutionalisation is a state-wide policy, there are many other mentally disabled women who are (potential) victims of such abuses. In addition to its importance for the development of an intersectional approach, the I.C. verdict may guide legal practitioners towards a consolidated litigation strategy for intersectional discrimination. In this post, I indicate positive aspects and limitations of an intersectional approach, as applied in I.C., for the lawyers representing alleged victims of such discrimination. The arguments below are based on a series of interviews conducted with such professionals, who were selected due to their involvement in the most recent cases against the Republic of Moldova, in which intersectionality featured. In all cases, applicants were women with mental disabilities.

Positive Aspects

Opening the Door for Strategic Litigation

Firstly, an explicit recognition of intersectionality by the ECtHR would make it easier to bring successful cases on behalf of the most vulnerable members of society. In this context, strategic litigation refers to the deliberate use of individual applications to promote broader legal and social change beyond the interests of the immediate claimants, often by setting precedents or exposing structural injustices. According to scholars, the international legal order has recently started offering more possibilities for such types of lawsuits due to the normative pressure for change. The Strasbourg Court, having provided a ‘locus’ for mobilising various marginalised groups, does not depart from this pattern. Considering the emancipatory character of strategic litigation, it often aims at combating the disenfranchisement of people who are incapable of effectively representing themselves in the courtroom.

The ECtHR has on numerous occasions stated that persons with mental disabilities and women represent two vulnerable categories of people. The I.C. judgment leaves no doubt that when these two grounds of discrimination intertwine, the vulnerability of the victims increases. Moreover, in recent cases, such as G.M. and Others, V.I., and I.C., all against Moldova, the Court paid particular attention to the role of stigmatisation of these vulnerable groups in shaping broader institutional problems. Given the extent of marginalisation and suffering that these large-scale institutional faults cause to the most vulnerable layers of society, it is much more difficult, if at all possible, for the victims of intersectional discrimination to fight for justice. Considering the circumstances of the V.I. and I.C. cases, they can be treated as instances of strategic litigation. Due to each applicant’s limited intellectual capacity, which implies difficulties preparing and pleading a case before a judge, the main initiative was taken by the NGOs (or individual lawyers working for the NGOs) representing them. The desired impact of these instances of litigation was to change discriminatory policies.

Intersectionality can be seen as a methodological tool elucidating how multiple grounds of discrimination interplay in an applicant’s particular situation. As such, it can be employed to disclose an underlying societal problem that leads to human rights abuses. Dumitru Sliusarenco, who represented the applicant in E.T. v. the Republic of Moldova, a case concerning the unlawful deprivation of the legal capacity of a woman with an intellectual disability that resulted in a violation of Article 14, suggested that intersectionality is one step in the multi-layered process of ‘uncovering the underlying social problems, like gender abuse and discrimination, social prejudice, and behaviour pattern’ through litigation. A further question arises: how can intersectionality be used in the context of strategic litigation?

A Common Strategy to Follow

The second implication is that a recognition of intersectionality would consolidate the lawyers’ attempts to strategically litigate intersectional discrimination. Dumitru Sliusarenco pointed out that a lawyer’s discretion to choose a litigation strategy is significantly reduced in Article 14 cases because ‘as a litigation lawyer, one has a limited number of tools […] to go after discrimination’. Once the Court acknowledges intersectionality as a tool for analysing such instances of discrimination claims and adopts it openly, legal representatives of the most unprotected groups of the population will have more room for manoeuvre in constructing their arguments.

For instance, in G.M. and Others, where the applicants with different degrees of mental disabilities were subjected to involuntary termination of pregnancy and sterilisation, their counsel only invoked Article 8 (right to a private life). It is important to mention that two of the three applicants got pregnant after being raped by a doctor working in their asylum. Indeed, one of the arguments underpinning the third-party submission of Validity, an NGO known for representing mentally handicapped persons, in G.M. was that forced sterilisation of women like the applicants is a form of intersectional discrimination based on gender and disability. However, given that the applicants’ lawyer did not construct the case around Article 14, discrimination matters did not feature in the Court’s analysis. What can be the reasons for this passivity on behalf of the applicants’ counsels?

The first and most straightforward explanation is that the applicants’ representatives may not have been aware of intersectionality as a concept. This is especially relevant for the Court’s earlier jurisprudence. In the 2011 case Moldovan and Others v. Romania, some of the applicants were women with mental disabilities who alleged a violation of Article 14 only on the basis of their ethnic origin. However, considering that the case revolved around degrading conditions in which a community of Roma people had to live, an arguable intersectional claim could have been made because the discrimination complained of was exacerbated by gender- and disability-based prejudices similar to those condemned by the Court in I.C. As this application was submitted in 2004, years before UN treaty bodies uniformly popularised intersectionality, it can be assumed that the lack of an intersectional discrimination claim there comes from a lack of relevant knowledge. Hopefully, this explanation will become outdated soon, as more and more academic and policy efforts, both at national and supra-national levels in Europe, are committed to promoting the idea of intersectionality.

There might be another reason: the fact that the Court does not explicitly recognise intersectionality might disincentivise applicants from insisting on intersectional discrimination. In other words, even when the applicants are familiar with the empowering character of intersectionality, they might deliberately choose not to argue along these lines because they see no prospects of success. Instead, they may focus their argumentation on those claims that can fall under the ECtHR’s well-established jurisprudence. Simona Florescu, Validity’s Litigation Director, agreed with this potential explanation, mentioning that the Court’s hesitation might plant a seed of doubt in lawyers’ minds when they are structuring their client’s intersectionality complaints.

The answers of Dumitru Sliusarenco suggested that his decision to argue along the lines of the traditional single-axis approach was tactical, as his main goal was to win the case. Given the lack of a clear methodology of its application by the Court, Sliusarenco decided to concentrate his efforts on the most effective representation of his client.

In a similar vein, Simona Florescu, drawing on her earlier experience, indicated that in Validity Foundations on behalf of T.J. v. Hungary, another case involving a woman with a mental disorder, her litigation team decided ‘not to pursue intersectional arguments’ after they had been ‘not very successful’ before. She further admitted that even after having won the intersectionality-oriented I.C. case, her organisation is still ‘sometimes worried that bringing intersectionality to the forefront may backfire in Strasbourg’. When the judges are, to borrow Dagmar Schiek’s words, ‘insensitive to intersectional inequalities’, it is difficult to blame the lawyers for not using this strategy; after all, there is not much point in continuing to knock on a door that has never opened before.

Limitations

In this section, I discuss several limitations which might slow down the use of intersectionality as a tool for disclosing intersectional discrimination abuses in the context of strategic litigation before the ECtHR.

Is Intersectionality Too Normative?

Firstly, the inherent normativity of this approach might be an obstacle to its recognition in the Court’s jurisprudence. As intersectionality was born out of critical scholarship that aimed at highlighting the struggles of disadvantaged categories of people, one cannot divorce it from its functional goal of elucidating how things should be organised to account for the needs of those who are discriminated against on various grounds. Considering that many Strasbourg judges can be described as traditionalists, they are accustomed to a formalistic approach that only addresses one conventional basis for discrimination. Inertia seems to be among the reasons why the Court has avoided the term ‘intersectionality’ in its ratio decidendi even in cases like I.C., where it got closer to an intersectional analysis than ever.

However, an intersectional approach can be interpreted as promoting an enhanced emphasis on human dignity, a normative concept around which the jurisprudence of the ECtHR and other human rights bodies is built. The example of women with mental disabilities, such as I.C., offers an entry point for dignity-related considerations. The fact that their human dignity is particularly affected due to the prevalent societal prejudices and stigmatisation justifies the necessity for the Court to apply intersectionality to identify, condemn, and redress these real-life problems.

Does Intersectionality Require New Doctrinal Methodologies?

Assuming that the Court indeed has to approach such cases in an intersectional fashion, the second limitation is of a methodological nature: how can it be done? Traditional Article 14 analysis relies on strictly defined categories to establish comparators and causation, while intersectionality demands an examination of overlapping identities and cumulative suffering that do not readily lend themselves to quantification. As many scholars have noted, the conventional evidence standards of the ECtHR’s jurisprudence are under-equipped to capture the nuanced interplay among various discriminatory factors. Furthermore, recent empirical research suggests that traditional legal evidentiary frameworks may prescribe inadequate standards, as there is ‘a fundamental disconnect between the legal framework, which focuses on separate and distinct ‘grounds’ of discrimination, and how people actually experience discrimination in practice, which is multiple and overlapping’. Additionally, the difficulties of litigating intersectional discrimination before the ECtHR are underpinned by the interviewees’ comments that adducing ‘strong evidence’ was the most challenging part of constructing their Article 14 complaints.

In practice, this means that the judges will need to develop new methodologies to assess the complex instances of intersectional discrimination. Given that the suffering caused by this phenomenon is difficult to quantify, such methodologies may require large amounts of data, sociological research, and interdisciplinary analysis. In a related context, the experts working for the UN Committee on the Elimination of Racial Discrimination have reiterated that a successful incorporation of intersectionality would depend on the availability of reliable statistics, which would preferably demonstrate a correlation between various grounds of discrimination. While it sounds challenging and requires significant cooperation from states, in reality, a new methodological approach can offer more room for third-party interventions. This, in turn, would render research and policy output of specialised organisations more practically applicable, thus valuable for complying with the burden of proof requirements imposed on the applicants. In this light, as mentioned by Simona Florescu, the submissions of the third-party interveners in I.C. might have ‘further convinced the Court to apply an intersectional lens to the analysis’. I.C. is a case in point, as the Court accepted, based on the reports of international expert bodies, that the environment in the Republic of Moldova was hostile to people like the applicant.

Does Intersectionality Require a Departure from Established Case Law?

Finally, the third challenging aspect of incorporating an intersectional approach pertains to legal certainty. While the Court is not bound by any of its previous judgments, it has stated that only a ‘compelling reason’ can make it depart from any of its precedents. A drastic transition from a formalistic, one-axis approach to an intersectional paradigm would risk undermining the doctrinal clarity that has long characterised the Court’s jurisprudence.

For instance, in several cases, the Court’s reliance on well-established comparators provided a level of predictability for further jurisprudential references, even if at the expense of examining the claim broadly. Integrating intersectionality, which implies a context-dependent case-by-case analysis, may erode the consistency of judicial reasoning. Consequently, doing so runs a short-term risk of making it more challenging for litigants to anticipate outcomes when the ECtHR has to navigate the complex interrelations of multiple discrimination grounds rather than applying established norms.

Nevertheless, the Strasbourg Court’s case law includes examples of judgments where the judges decided to sacrifice legal certainty in favour of rendering their jurisprudential doctrine adequate for addressing contemporary challenges. After all, the Convention is a ‘living instrument’ and it would only take one authoritative precedent to align the Court’s jurisprudential approach with intersectionality’s normative goals.

Taking into account the practice of (quasi-)judicial international institutions and the Council of Europe’s own bodies, there exists a ‘compelling reason’ for the ECtHR to finally depart from its Article 14 and Article 1 Protocol 12 precedents: to avoid perpetuating systemic human rights flaws in domestic frameworks and to redress the most vulnerable categories of people. Following, by analogy, the way in which this notion is interpreted in international law, this reasoning means that the Strasbourg Court should change its approach.

Conclusion

The I.C. verdict suggests that an important development in the ECHR system is underway. Here, I pointed out a number of positive developments and limitations concerning the incorporation of an intersectional approach in the Court’s jurisprudence from the perspective of litigating lawyers. Using what appears to resemble an intersectional approach, the ECtHR ruled that a state-wide policy affecting women with mental disabilities ran contrary to the Convention. While thousands of such women can benefit from this ruling, the precise extent to which this can materialise will depend on the Republic of Moldova’s willingness to fully implement the ruling. For now, one thing is certain: intersectionality is slowly gaining ground in international human rights law, empowering marginalised people to fight against disenfranchisement.

The author published a longer case note on I.C. v. the Republic of Moldova and intersectionality, which you can read here.