International standards on the right to liberty and security of persons with disabilities

Background note

The Office of the High Commissioner for Human Rights drafted this background note

for the sole purpose of facilitating discussions during the expert meeting on 8-9

September 2015. In no way does this document constitute the official position of the

Office of the High Commissioner for Human Rights on this issue.

A. Introduction

1. Article 14(1) of the Convention on the Rights of Persons with Disabilities (CRPD) upholds

the right to liberty and security of persons with disabilities and prohibits the deprivation of a

person’s liberty on the grounds of the existence of impairments:1 in essence, it constitutes a

non-discrimination provision. The Committee on the Rights of Persons with Disabilities

(CRPD Committee) has recommended that States parties under review should amend their

criminal, civil and administrative laws that allow for the deprivation of liberty on this basis.

The Working Group on Arbitrary Detention supports the CRPD Committee’s

recommendations.

2. By March 2015, all the domestic laws reviewed by the Office of the High Commissioner for

Human Rights (OHCHR) allowed for the deprivation of liberty owing to the existence of

impairments. OHCHR intends to conduct a broader review of national legislation. At this

stage it presumes that all laws, or nearly all, contain provisions incompatible with the CRPD,

so that the UN and other agencies are facing a considerable challenge in supporting and

encouraging States to uphold the right to liberty and security of persons with disabilities.

3. OHCHR’s Research and Right to Development Division (RRDD) has the task of giving

substantive support to the UN System and to States parties to the CRPD to help them meet

this challenge. As a starting point, RRDD will use the non-discriminatory approach to law

and policy on the deprivation of liberty of persons with disabilities that the CRPD and the

CRPD Committee have established so far. RRDD will organize an expert meeting on the

issue of deprivation of liberty in order to: (i) identify the remaining gaps in – and challenges

posed to – existing law by the non-discriminatory approach to the deprivation of liberty, in

1 The CRPD uses the term “disability” interchangeably, to mean both a social effect and an impairment. Article 14(1)(b) refers to “impairment” and not to disability as openly conceptualized in paragraph (e) of its Preamble. Here the term “disability” will be reserved for the social effect, while “impairment” will be used to refer to a bodily or psychosocial condition.

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the context of the current state of the development of the right to liberty and security of

persons with disabilities; (ii) identify possible future actions to be undertaken to arrive at a

shared understanding of this right and possible ways of dealing with the existing gaps and

challenges (research, development of protocols, law reform, etc.); and (iii) provide a platform

for exchanging views and exploring concrete strategies for introducing an absolute

prohibition of the existing discriminatory disability-specific forms of deprivation of liberty;

and for finding solutions to meet needs for support that respect a person’s dignity, autonomy,

will and preferences – solutions that represent an alternative to the existing disability-specific

forms of deprivation of liberty and that put people with disabilities on an equal basis with

others. The expert meeting will take place on 8-9 September 2015.

4. This background note for the expert meeting will elaborate on the non-discriminatory

approach to the right to liberty and security of persons with disabilities enshrined in the

CRPD as developed by the CRPD Committee so far. It will also summarize the current

international, regional and national legal standards it deems relevant and appropriate for the

purposes of the expert meeting on Article 14.

B. The right to liberty and security of persons with disabilities

5. A person’s right to liberty and security is a fundamental human right that protects everyone

from any arbitrary or unlawful deprivation of their liberty. The concept of “liberty of person”

relates to a very specific aspect of freedom: freedom from confinement of the body.2 The

notion of “security of person” denotes freedom from injury to one’s bodily or mental

integrity.3 The Human Rights Committee has underlined that liberty and security of person

are precious for their own sake, but also because their denial represents a common threat to

the exercise of other rights.4 For this reason, the right to liberty and security of person is a

crucial component of all efforts to uphold the rule of law.5

6. The right to liberty and security of person is recognized by core international human rights

instruments adopted in the context of the UN, including the Universal Declaration of Human

Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Article

3 of the UDHR states that everyone has the right to liberty and security, and Article 9 of the

ICCPR provides that no one shall be subjected to arbitrary arrest, detention or exile. The

2 CCPR/C/GC/35, para. 3.3 Ibid.4 Ibid., para. 2.5 A/HRC/22/29, paras. 17-22.

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ICCPR guarantees the right to liberty and security of person. It prohibits the arbitrary

deprivation of liberty and lays down specific safeguards for its protection.

7. The right to liberty and security of person is echoed in other international human rights

instruments. The Convention on the Rights of the Child, for instance, states in Article 37(b)

that no child shall be deprived of their liberty unlawfully or arbitrarily and that “[t]he arrest,

detention or imprisonment of a child shall be in conformity with the law...” Similarly, Article

16 of the International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families contains a series of guarantees against deprivation of liberty

for this group. In its Article 5(b), the International Convention on the Elimination of All

Forms of Racial Discrimination guarantees the right to security of person and to protection

against violence or bodily harm. Regional human rights instruments, such as the American

Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the

European Convention on Human Rights, also recognize this right.6

8. In addition, there are several non-binding international human rights instruments that provide

guidance for interpreting and implementing the rights of persons deprived of their liberty.

They include, among others, the Body of Principles for the Protection of all Persons under

any form of Detention or Imprisonment, the Standard Minimum Rules for the Treatment of

Prisoners (Mandela Rules)7 and the UN Rules for the Protection of Juveniles Deprived of

their Liberty.

9. Although the right to liberty and security of person applies to all human beings, a significant

number of persons with disabilities are still frequently deprived of their liberty owing to the

existence of impairments, and are unable to benefit from existing legal resources or

guarantees on an equal basis with others. In their administrative, civil and criminal laws,

moreover, many legal systems expressly deny this right to persons with disabilities, in

particular those with psychosocial or intellectual impairments. Mental health laws, in

particular, allow for the deprivation of liberty on a number of grounds. In all jurisdictions

examined by OHCHR, persons with disabilities are deprived of their liberty without having

violated the law, but on the basis of impairments, whether by psychiatric detention; short- or

long-term involuntary hospitalization for observation, care or treatment, or forced

institutionalization. Such practices also include additional restrictions when the person is

detained, such as non-consensual psychiatric intervention, including the forced or coerced

6 See the American Convention on Human Rights, Article 7; the African Charter on Human and Peoples' Rights, Article 6; and the European Convention on Human Rights (ECHR), Article 5.7 The UN Standard Minimum Rules for the Treatment of Prisoners have been revised, and a new version was recently adopted and named “the Mandela Rules”.

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administration of mind-altering drugs, electroconvulsive therapy (ECT), physical or

pharmacological restraints, and isolation. All these legal frameworks and practices are based

on the medical approach to disability, which has been superseded by the CRPD. The medical

approach to disability results in an imbalance of power between professionals and their

institutions on the one hand, and persons with disabilities on the other, and the CRPD is

designed to redress this imbalance.

10. Article 14 of the CRPD is thus in essence a non-discrimination provision, as clearly stated

throughout the negotiations leading up to its adoption.8 It specifies the scope of the existing

right to liberty and security for persons with disabilities, prohibiting all discrimination based

on disability in the exercise of this right. In doing so, Article 14 relates directly to the purpose

of the CRPD, which is to ensure the full and equal enjoyment of all human rights and

fundamental freedoms by all persons with disabilities, on an equal basis with others.

Furthermore, because to varying degrees persons with disabilities have been and still are

marginalized and left unprotected in nearly every part of the world, the deprivation of liberty

in this context is particularly likely to lead to violations of the rights to personal integrity, to

freedom from torture and to freedom from violence, exploitation and abuse, including but not

limited to forced and coerced psychiatric interventions that have been wrongly legitimized

despite the severe harm and suffering they cause.

11. States parties to the CRPD have an obligation to respect, protect and fulfil the right to liberty

and security of persons with disabilities. Importantly, recognizing a civil and political right,

Article 14 generates obligations of immediate effect, and none of its elements is subject to the

clause of progressive realization (Article 4.2 of the CRPD). States must respectively a) refrain

from engaging in any action or practice that interferes with or curtails the enjoyment of the

right, and from authorizing such actions or practices under their domestic laws; b) protect the

right against practices by third parties, including private actors such as health or mental health

professionals outside hospital settings, and providers of housing and/or social services; and c)

take positive action to facilitate people’s enjoyment of the right to liberty.

C. Article 14 of the CRPD

C.1. Article 14(1)

8 See, in particular, Ad Hoc Committee, Daily summary of discussion at the fifth session, Jan. 26, 2005 (Feb. 22, 2015), http://www.un.org/esa/socdev/enable/rights/ahc5sum26jan.htm. In particular Colombia, Costa Rica, Jamaica, Kenya, Mexico, New Zealand, Thailand and Yemen explicitly agreed with the antidiscrimination nature of the article.

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12. Article 14(1)(a) of the CRPD reaffirms the right to liberty and security of all persons with

disabilities on an equal basis with others. Article 14(1)(b) develops two intertwined elements

of the right to liberty. First, it specifies that persons with disabilities cannot be deprived of

their liberty unlawfully or arbitrarily. Secondly, reflecting its non-discriminatory nature, it

establishes an absolute ban on the deprivation of liberty on the basis of impairment.

C.1.1 Protecting persons with disabilities from unlawful and arbitrary detention

13. The right to personal liberty is not an absolute right, and in some cases deprivation of liberty

may be justified. Thus, Article 14(1)(b) does not prohibit the deprivation of liberty of persons

with disabilities in all cases; it is not a categorical exemption of persons with disabilities from

detention that may be applied to any other person. Rather, it represents a substantive

guarantee against unlawful and/or arbitrary detention arising from any legal procedures,

including discriminatory detention, based on the impairments themselves, as developed

below.

14. According to the Human Rights Committee, detention or arrest is unlawful when it is not in

conformity with national or international law.9 Detention or arrest is arbitrary when, despite

being sanctioned by existing law, it is imposed in a manner that is inappropriate, unjust,

disproportionate, unpredictable, discriminatory or without due process.10 The prohibitions on

unlawful and arbitrary arrests and detentions overlap: an arrest or detention may be unlawful

but not arbitrary, lawful but arbitrary, or both unlawful and arbitrary.11 Hence, national

legislation that allowed for deprivation of liberty contrary to international human rights

standards would be arbitrary. This is the case when persons with disabilities are deprived of

their liberty on the basis of impairments – deprivation that is discriminatory in nature and

contrary to CRPD’s Article 14(1)(b), as we discuss below.

C.1.2 Absolute ban on the deprivation of liberty on the basis of impairment

15. Article 14(1)(b) expressly forbids any deprivation of liberty on the basis of impairment. It

establishes unambiguously that “the existence of [impairments]12 shall in no case justify a

deprivation of liberty”13 thereby adding “impairment” to the list of forbidden grounds for

discrimination (in the context of the deprivation of liberty) in the international human rights

system. Although the wording “existence of [an impairment]” could be interpreted as 9 CCPR/C/GC/35, para. 44.10 CCPR/C/GC/35, para. 12; A/HRC/22/44, para. 38.11 CCPR/C/GC/35, para. 11.12 See Note 1.13 See ACHPR, Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (2014), Guideline 33(a)(ii).

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applying only to individuals who “have long-term physical, mental, intellectual or sensory

impairments”, as per the open definition of the group of persons with disabilities in the

CRPD’s Article 1, when read in conjunction with the whole of Article 14 and the whole of the

CRPD, in particular Article 5(2), and taking into account the conceptualization of disability, 14

it includes individuals who are perceived to have impairments.15

16. Article 14(1)(b) prohibits impairments from even being regarded as a contributing factor

when justifying the deprivation of liberty. During the negotiations leading up to the adoption

of the CRPD there were extensive discussions on the need to include in the draft text of

Article 14(1)(b) a qualifier to the prohibition of deprivation of liberty on the grounds of the

existence of impairments, such as “solely” or “exclusively”. States opposed this, arguing that

it could lead to misinterpretation16 and allow the deprivation of liberty on the basis of

disability.17 Civil society also opposed the use of qualifiers.18 At its seventh session, the Ad

Hoc Committee therefore omitted qualifiers from the text of the CRPD. In current practice,

deprivation of liberty is usually justified on the basis of the existence of impairments in

combination with other factors, such as when the person presents an alleged “danger to self or

others” or is in need of care or treatment; hence the relevance of avoiding a qualifier in the

text of Article 14.19

17. Article 14(2) does not contain a reference to a periodic review of the deprivation of liberty.

During the negotiations, the Ad Hoc Committee did consider including a provision on

periodic review in the text of the draft of Article 14(2).20 Civil society remarked that such a

provision would contradict the outright ban on the deprivation of liberty on the grounds of the

existence of impairments,21 and might lead to the interpretation that detention based on

disability was permitted but required safeguards.22 The provision was finally dropped at the

seventh meeting of the Ad Hoc Committee, when a shorter version of the paragraph was

adopted.23

14 CRPD, Preamble, para. (e).15 See CRPD Committee, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities, Note 1 and para. 6.16 Ad Hoc Committee, Third Session, Daily summary of discussions, May 26, 2004; Fifth Session, Daily summary of discussions, January 26, 2005.17 Ibid., Fifth Session, Daily summary of discussions, January 26, 2005.18 Ibid., Fifth Session, Daily summary of discussions, January 27, 2005. For instance, the World Network of Users and Survivors of Psychiatry opposed the introduction of the word “solely”, claiming that if such a reference were included then persons with psychosocial or intellectual impairments would be deprived of their liberty on the basis of danger to self or others. 19 A/HRC/10/48, para. 48.20 Originally, the provision was in Article 10(2)(c)(ii) of the draft.21 Ibid., Third Session, Daily summary of discussions, May 26, 2004.22 Ibid., Fifth Session, Daily summary of discussions, January 27, 2005.23 Ibid., Seventh Session, Daily summary of discussions, 19 January 2006.

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18. This non-discriminatory nature of Article 14 is evidence of its close interconnection with the

right to equality and non-discrimination (Article 5). Article 5(1) recognizes that all persons

are equal before and under the law, and are entitled to equal protection by the law. Article

5(2) prohibits all forms of discrimination on the basis of disability and guarantees persons

with disabilities that they are entitled to equal and effective legal protection against

discrimination on any grounds.24 Any deprivation of liberty on the basis of impairments thus

constitutes a violation of both Article 5 and Article 14(1)(b) of the CRPD. Furthermore,

although Article 14 does not prohibit the deprivation of liberty in all cases (e.g. on the

commission of a crime), the right to liberty requires a State, when exercising its powers of

arrest or detention, to do so on the same basis for all persons, and not on the basis of a

personal trait such as an actual or perceived impairment.

19. Consistently with this non-discriminatory approach, in its concluding observations the CRPD

Committee systematically proclaimed an absolute ban on the deprivation of liberty on the

basis of impairments.25 In its previous concluding observations, the Committee repeatedly

insisted that persons with disabilities cannot be deprived of their liberty on the basis of

impairments, whether actual or perceived.26 Legal provisions that allow for detaining persons

with disabilities against their will in mental health facilities or social care institutions are

therefore prohibited. Moreover, it has clarified that legislation allowing for the deprivation of

liberty on the basis of impairments contradicts Article 14, even when combined with other

factors, such as danger to self or others, or a need for care or treatment.27 It has repeatedly

urged States parties to repeal all legislation that allows for the deprivation of liberty on the

basis of impairments and to take, immediately, the necessary legislative, administrative and

judicial steps to ensure that no one is detained against their will in any medical facility or

24 In the same line, the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (1999) requires States Parties to take measures to eliminate any discrimination against persons with disabilities (Article 3(1)).25 In connection with Note 1, the phrasing referring to “impairment” was used in the concluding observations on China (CRPD/C/CHN/CO/1, para. 26), Croatia (CRPD/C/HRV/CO/1, para. 20), and more recently on Ukraine (CRPD/C/UKR/CO/1, para. 31) and Mauritius (CRPD/C/MUS/CO/1, para. 25).26 See CRPD/C/TUN/CO/1, para. 25; CRPD/C/ESP/CO/1, para. 36; CRPD/C/PER/CO/1, para. 29; CRPD/C/HUN/CO/1, para. 28; CRPD/C/CHN/CO/1, para. 26; CRPD/C/PRY/CO/1, para. 36; CRPD/C/SLV/CO/1, para. 32; CRPD/C/AUT/CO/1, para. 30; CRPD/C/AUS/CO/1, para. 32; CRPD/C/SWE/CO/1, para. 36; CRPD/C/AZE/CO/1, para. 29; CRPD/C/NZL/CO/1, para. 30; CRPD/C/MEX/CO/1, para. 30; CRPD/C/KOR/CO/1, para. 26; CRPD/C/DNK/CO/1, para. 37; CRPD/C/BEL/CO/1, para. 26; CRPD/C/NZL/CO/1, para. 30; CRPD/C/TKM/CO/1, para. 30(a); CRPD/C/HRV/CO/1, para. 20; CRPD/C/COK/CO/1, para. 28(a); CRPD/C/UKR/CO/1, para. 31; CRPD/C/QAT/CO/1, para. 28; CRPD/C/MUS/CO/1, para. 25; CRPD/C/KEN/CO/1, para. 27-28(a); CRPD/C/GAB/CO/1, para. 33; CRPD/C/BRA/CO/1, para. 29. 27 CRPD/C/SLV/CO/1, para. 32; CRPD/C/AUT/CO/1, para. 29; CRPD/C/DNK/CO/1, para. 36; CRPD/C/SWE/CO/1, para. 35; CRPD/C/BEL/CO/1, para. 27; CRPD/C/DOM/CO/1, para. 28(b); CRPD/C/TKM/CO/1, para. 30(a); CRPD/C/MUS/CO/1, para. 25; CRPD/C/KEN/CO/1, para. 27.

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specialized institution.28 The abolition of legal provisions authorizing impairment-based

detention and forced treatment applies regardless of whether they are found in mental health

legislation or elsewhere in a body of law, even if the provisions are ostensibly impairment-

neutral but in fact allow for discriminatory practices against persons with disabilities. Persons

with disabilities who are arbitrarily detained are entitled to access administrative and judicial

remedies that are respectful of due process guarantees, and which allow them to challenge

their detention and to be released, if that is what they wish.29

20. The absolute ban on the deprivation of liberty on the basis of impairments has strong links

with Article 12 of the CRPD (Equal recognition before the law). As stated by the CRPD

Committee in its General Comment No. 1, respecting the right to legal capacity of persons

with disabilities includes observing Article 14.30 Indeed, the deprivation of legal capacity may

be both a cause and an effect of the deprivation of liberty. The denial of an individual’s legal

capacity may lead to detention in an institution against their will, for example through the

consent of a third party. Similarly, the deprivation of liberty on the basis of impairments may

also lead to the deprivation or limitation of their legal capacity, where laws and practices

allow involuntary admission and detention in mental health facilities, including both short-

and long-term detention, without the free and informed consent of the individual concerned.

Such practices constitute arbitrary deprivations of liberty, and violate Articles 12 and 14. The

Committee has rejected the practice whereby a third party decides on the institutional care or

treatment of a person under guardianship,31 and has urged the provision of decision-making

support for such persons,32 including independent support for decisions relating to mental

health services.

21. Enjoyment of the right to liberty and security of person is central to the implementation of

Article 19, which deals with the right to live independently and to be fully included in the

community. Article 19, in conjunction with Article 14, prohibits forced institutionalization

and the deprivation of liberty on the basis of the existence of impairments.33 Nevertheless, in

contravention of both articles, the segregation of persons with disabilities in institutions

continues to be widely practised.34 Persons with disabilities usually face forced

institutionalization as a consequence of lack of support for living in their community. So-

28 See Note 26, supra.29 See, generally, WGAD, Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court.30 CRPD/C/GC/1, para. 40.31 CRPD/C/GC/1, para. 46.32 CRPD/C/PRY/CO/1, para. 36.33 A/HRC/28/37, para. 20.34 A/HRC/28/37, para. 20.

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called “social patients” in mental health institutions are people who are forced to live there

because they have no access to housing or non-medical support in the community, which

would enable them to live independently. To comply fully with Article 14, persons with

disabilities must have the opportunity to live independently in the community, and to make

choices; they must be given appropriate support and must have control over that support. In

addition, effective de-institutionalization strategies must be implemented. The CRPD

Committee has stressed this relationship with Article 19, and has declared its concern about

the institutionalization of persons with disabilities and the lack of support services in the

community.35 It has also recommended introducing support services (including personal

assistance services for all persons with disabilities), and effective de-institutionalization

strategies, in consultation with organizations of persons with disabilities,36 and it has called

for the allocation of greater financial resources to ensure sufficient community-based

services.37 States must raise awareness about Article 19 of the CRPD, including through the

education system.

22. The involuntary committal of persons with disabilities on health-care grounds, such as for the

purpose of providing care or treatment for a person perceived to have a mental health

condition, contravenes the absolute ban on the deprivation of liberty on the basis of

impairments (Article 14(1)(b)) and the principle of free and informed consent for health care

(Article 25). Furthermore, it generally leads to psychiatric treatment that is forced or

otherwise administered without the person’s free and informed consent, including through

incomplete information or under false pretences, and other coercive forms of intervention that

are also contrary to the right to health and the right to live free from torture (Article 15), the

right to live free from violence, exploitation and abuse (Article 16), and the right to personal

integrity (Article 17), as will be discussed in paragraphs 46 to 51. States parties must

eradicate involuntary committal, must ensure respect for the right to free and informed

consent prior to health intervention, in all cases, and must provide effective remedies and

reparation for the victims of violations.

35 See for example, CRPD/C/ESP/CO/1, para. 39; CRPD/C/CHN/CO/1, para. 31; CRPD/C/ARG/CO/1, para. 33; CRPD/C/PRY/CO/1, para. 47 and 49; CRPD/C/AUT/CO/1, paras. 36 and 38; CRPD/C/SWE/CO/1, para. 43; CRPD/C/CRI/CO/1, para. 39; CRPD/C/AZE/CO/1, paras. 28 and 32; CRPD/C/MEX/CO/1, para. 43; CRPD/C/COK/CO/1, para. 39.36 See for example, CRPD/C/ESP/CO/1, para. 40; CRPD/C/CHN/CO/1, para. 32; CRPD/C/ARG/CO/1, para. 34; CRPD/C/PRY/CO/1, paras. 48 and 50; CRPD/C/AUT/CO/1, paras. 37 and 39; CRPD/C/SWE/CO/1, para. 44; CRPD/C/CRI/CO/1, para. 40; CRPD/C/AZE/CO/1, paras. 29 and 33; CRPD/C/MEX/CO/1, para. 44; CRPD/C/COK/CO/1, para. 40.37 CRPD/C/AUT/CO/1, para 39; CRPD/C/SWE/CO/1, para. 44.

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23. The CRPD Committee has also addressed the situation of persons with disabilities deprived of

their liberty in the context of criminal law and procedures. This specific aspect will be

analysed further in section D.1 of this background note.

24. Furthermore, in September 2014 the Committee adopted a Statement on Article 14 of the

Convention reaffirming an “absolute prohibition of detention on the basis of disability”.38 In

this Statement, the Committee recalled that Article 14 does not permit any exceptions

whereby persons may be detained on the grounds of an actual or perceived impairment,

including alleged dangerousness and declarations of unfitness to stand trial.39 The Committee

has recently restated this position in its Guidelines on Article 14 of the Convention on the

Rights of Persons with Disabilities, which was adopted in September 2015.40

C.1.3 Position of other UN Treaty Bodies and Special Procedures on the deprivation of the

liberty of persons with disabilities

25. OHCHR has highlighted that the CRPD forbids any deprivation of liberty based on

impairments, including when it is grounded in a combination of psychosocial or intellectual

impairment and other elements such as dangerousness, or care and treatment,41 and it has

recalled42 that, during the negotiations on the Convention, the Ad Hoc Committee dismissed

the use of the qualifier “solely” in relation to deprivation of liberty on the basis of

impairments. In addition, OHCHR has called upon States parties to abolish legislation –

including mental health laws – allowing the institutionalization of persons with disabilities

without free and informed consent, based on the existence of impairments, and it has stated

that all legislation allowing for deprivation of liberty should be impairment-neutral43

Accordingly, any legal grounds upon which the restriction of liberty is determined must be

neutrally defined so as to apply to all persons without discrimination.

26. UN Treaty Bodies show divergent positions on this issue. Some have not fully adopted, or

even contradict, the CRPD standard developed by the CRPD Committee, leading to a

38 CRPD Committee, Statement on Article 14 of the Convention on the Rights of Persons with Disabilities, September 2014.39 Ibid.40 CRPD Committee, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities, para. 6.41 A/HRC/10/48, para. 48.42 Ibid.43 A/HRC/10/48, para. 49.

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dissonance in international human rights law, while others have recently endorsed and

supported the absolute ban on the deprivation of liberty on the basis of impairment.

27. The Human Rights Committee contradicts the absolute ban on deprivation of liberty on the

basis of impairment. In its General Comment No. 35 on the right to liberty and security of

person, it states that the existence of a disability shall not “in itself” justify a deprivation of

liberty.44 Following its precedents, it has considered that the deprivation of liberty of persons

with disabilities could be “necessary and proportionate for the purpose of protecting the

individual (…) from serious harm or preventing injury to others.”45 In such cases, the

detention must be applied only as a measure of last resort and for the shortest appropriate

period of time, and must be accompanied by adequate procedural and substantive safeguards,

including initial and periodic judicial reviews.

28. Secondly, the UN Committee Against Torture has expressed its concern about the high

number of persons with disabilities deprived of their liberty in social, medical and psychiatric

institutions without their free and informed consent – including through the use of solitary

confinement, restraints and forced medication, which may amount to inhumane and degrading

treatment – and about the absence of legal safeguards.46 The Committee has, however,

accepted the possibility of lawful involuntary committal and involuntary treatment, and has

recommended ensuring effective supervision and monitoring, appropriate legal safeguards,

proper training for medical and non-medical staff, and the use of de-institutionalization

strategies and outpatient and community-based services.47 The Committee has not adopted a

consistent position on the provision by the person concerned of their free and informed

consent to treatment and institutionalization: in the past it has upheld a person's right to give

or withhold their consent48 and it has also allowed for third parties to provide it.49 In its turn,

the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment has focused its efforts on appropriate conditions, monitoring and

periodic review, questioning only forced hospitalization or solitary confinement when not

based on medical grounds.50

44 CCPR/C/GC/35, para. 19.45 Ibid.46 See e.g. CAT/C/NLD/CO/5-6, para. 21; CAT/C/LTU/CO/3, para. 23; CAT/C/USA/CO/3-5, para. 20; 47See e.g. CAT/C/NLD/CO/5-6, para. 21; CAT/C/LTU/CO/3, para. 23; CAT/C/SWE/CO/6-7, para. 13;; CAT/C/HRV/CO/4-5, para. 17.48 CAT/C/CZE/CO/4-5, para. 21(b); CAT/C/LVA/CO/3-5, para. 23(c).49 CAT/C/KAZ/CO/3, para. 19, CAT/C/LTU/CO/3, para. 23 (note recommendation b, in connection with a and c).50 See e.g. CAT/OP/PRY/1, paras. 219-224; CAT/OP/ARG/1, paras. 94-102; CAT/OP/KGZ/1, paras. 111-120; CAT/OP/MLI/1, paras. 68-69.

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29. The Committee on the Elimination of Discrimination against Women (CEDAW Committee)

has endorsed the absolute ban on deprivation of liberty on the basis of impairments and

related standards. It has recently urged the prohibition of the disability-based detention of

women, including involuntary hospitalization and forced institutionalization, and the repeal of

related laws.51 It has also upheld the principle of free and informed consent for all medical

interventions52 and requested the implementation of Article 12 of the CRPD.53 The Committee

on Economic, Social and Cultural Rights has also adopted the CRPD approach to the non-

discriminatory deprivation of liberty and has recommended the amendment of laws allowing

for the complete removal or suspension of legal capacity.54

30. The Working Group on Arbitrary Detention (WGAD) now contests the deprivation of liberty

on the basis of impairments, moving away from its previous position.55 Principle 20 of its

Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court

(Basic Principles and Guidelines)56 underlines that deprivation of liberty “on the ground of the

existence of an impairment or perceived impairment, particularly on the basis of psychosocial

or intellectual disability or perceived psychosocial or intellectual disability” is prohibited.57

Guideline 20 calls for de-institutionalization strategies.58 Significantly, the qualifier “solely”,

included in its previous thematic report,59 was removed during the drafting process.60 There is,

in addition, a reference to a review mechanism allowing for challenges to arbitrary detention

and ensuring the possibility of appeal, without any reference to a periodic review, in line with

the CRPD.61 The WGAD highlights the role of the courts in enforcing the prohibition of

involuntary committals by providing injunctive relief and ordering the release of individuals

and an end to any forced treatment, and it calls for the establishment of a public authority to

facilitate de-institutionalization by providing access to social and economic support that is not

centred on mental health services or treatment.62

51 CEDAW/C/IND/CO/4-5, para. 37.52 CEDAW/C/MDA/CO/4-5, para. 38(d).53 Ibid.54 E/C.12/MDA/CO/2, para. 24.55 See e.g. A/HRC/27/48/Add.5, paras. 60-61; A/HRC/27/48/Add.4, paras. 116-117; A/HRC/27/48/Add. 3, paras. 129-132, 148. 56 WGAD, Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court.57 Ibid., para. 38. See also Guideline 20, para. 103.58 Ibid., para 107, in particular (e).59 WGAD, Thematic Report on international, regional and national legal frameworks treating the right to challenge the lawfulness of detention before court, A/HRC/27/47, para. 47.60 WGAD, Basic Principles and Guidelines…, supra, Note 54, para. 103.61 Ibid., para. 105.62 Ibid., para 107(e).

12

31. Other special procedures of the Human Rights Council have also addressed the issue of

deprivation of liberty of persons with disabilities. Referring explicitly to Article 14 of the

CRPD, the former Special Rapporteur on Torture, Manfred Novak, supported the absolute

ban on deprivation of liberty on the basis of impairments, including when in combination with

other factors.63 In the same vein, the former UN Special Rapporteur on the right of everyone

to the enjoyment of the highest attainable standard of physical and mental health, Anand

Grover, has recalled that the CRPD reaffirms that the existence of impairments is not a lawful

justification for any deprivation of liberty, including a denial of informed consent. 64While

calling for the abolition of legislation allowing the institutionalization of persons with

disabilities on the grounds of their disability without their free and informed consent,65 Juan

E. Méndez, the current UN Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment, does, however, as an exceptional measure, accept the

possibility of detention in “emergency cases” or “to protect the safety of the person or of

others”.66

32. At the regional level, the European Court of Human Rights has stated that the confinement of

a person of “unsound mind” must comply with the following criteria: (i) the mental disorder

must be established on the basis of objective medical expertise; (ii) the mental disorder must

be of a kind or degree warranting compulsory confinement; and (iii) the validity of continued

confinement depends upon the persistence of such disorder.67 It also established that States

had some discretion in determining what qualified as an “unsound mind”.

33. As discussed in paragraphs 15 to 24, the absolute ban on deprivation of liberty on the basis of

impairments has been systematically stated and upheld by the CRPD Committee, on the basis

of Article 14(1)(b), backed up by several crucial, related articles of the CRPD. UN treaty

bodies and special procedures do not, however, have a unified approach to this. While some –

such as the Human Rights Committee, the Committee against Torture and the current Special

Rapporteur on Torture – either have not adopted, or still contradict, the standard set by Article

14 of the CRPD, others – such as the CEDAW Committee, the CESCR Committee and,

notably, the Working Group on Arbitrary Detention – have endorsed and supported the CRPD

63 A/63/175, para. 64. 64 A/64/272, para. 72.65 A/HRC/22/53, para. 68.66 A/HRC/22/53, para. 69. Along the same lines, see Inter-American Commission on Human Rights (IACHR), Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), principle 3(3).67 ECHR, Winterwerp v. the Netherlands, para. 39, interpreting Article 5(1)(e) of the European Convention on Human Rights.

13

standard as developed by the CRPD Committee. This situation means that there is a need to

seek and secure consistency in international human rights law.

C.2 Article 14(2)

C.2.1 Procedural and substantive guarantees

34. Article 14(2) of the CRPD reaffirms that all persons with disabilities deprived of their liberty

are entitled to procedural and substantive guarantees on an equal basis with others. As the

right to liberty relates to arbitrary arrest and detention, its scope covers certain due process

guarantees, e.g. the right to be informed promptly of the reasons for arrest, the right to judicial

control of the lawfulness of detention, and the right to compensation for unlawful or arbitrary

arrest or detention.68 Persons with disabilities deprived of their liberty must therefore enjoy all

the procedural and substantive guarantees established in national and international law. In

compliance with Article 9 of the CRPD, all proceedings and related communication and

information must be accessible to persons with disabilities.

35. According to Article 14(2), this non-discriminatory provision applies when persons with

disabilities are deprived of their liberty “through any process” – a term that covers any type of

arrest or detention under criminal, civil or administrative law, including pre-trial and post-trial

detention.69 This aspect is clearly in line with the broad interpretation of Article 9 of the

ICCPR adopted by the Human Rights Committee.70 It thus includes persons with disabilities

detained under mental health legislation (where this is still done, despite being contrary to

CRPD Article 14(1)(b)), but also those detained or sentenced for having committed a crime or

under legislation providing for other forms of detention, such as immigration-related

detention.

36. Article 13 of the CRPD (Access to justice) is essential to protect the right to liberty and

security of person, complementing the guarantees laid down in Article 14. Article 13 provides

that States parties must ensure effective access to justice for persons with disabilities, on an

equal basis with others, in order to facilitate their participation in all legal proceedings,

including at investigative and other preliminary stages. This obligation includes the provision

of procedural accommodations, and is linked to the provision of supported decision-making

(Article 12), in connection with self-representation, directing one’s defence in court, and

68 ICCPR, Article 9.69 A/HRC/22/44, para. 57.70 CCPR/C/GC/35, para. 13.

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instructing a lawyer. It calls for a reform of legal procedures and, implicitly, the development

of guidelines for judges and legal professionals. In particular, communication between the

lawyer and client and respect for the will and preferences of the person should be ensured

(e.g. if communication is facilitated by a personal assistant, the person concerned should be

able to choose and have control over the personal assistant). States should also specify clearly

the duties and responsibilities of lawyers. In addition, lawyers should draw on the cooperation

and support of other professionals, such as social workers, without entailing any abdication or

limitation of their own professional responsibility. Procedural accommodations differ from

reasonable accommodations in that the former are not bound to, or limited by, an objective

reasonableness test to determine whether they are disproportionate or represent an undue

burden. Procedural accommodation should start with an interactive dialogue with the person

concerned, and should be evaluated on the basis of its outcome. Where a procedural

accommodation is denied, remedies should be provided. Several other aspects relating to

access to justice in the criminal system are discussed in the following section. The duty to

provide procedural accommodation must be explicitly included in legal instruments.71

37. Article 13 of the CRPD also requires States parties to promote appropriate training for those

working in the administration of justice, including police officers and prison staff.72

Mandatory courses on the CRPD need to be included in the curricula of law schools and other

higher education and specialized institutions for lawyers and judges. All these professionals

must be trained and made aware of their obligations in relation to access to justice and the

right to liberty and security of persons with disabilities. Article 13 overlaps with Article 14 in

this regard.

C.2.2 Conditions of detention of persons with disabilities

38. Article 14(2) also states that persons with disabilities deprived of their liberty should be

treated in accordance with the objectives and principles of the Convention, as they may suffer

mistreatment or discrimination in their conditions while in detention. Moreover, persons with

disabilities are more exposed to violence from other patients or inmates, as well as from the

staff of institutions.73 States parties to the CRPD thus have an obligation to ensure that

71 CRPD/C/KEN/CO/1, para. 26(b).72 It reflects, in its own context, the general mandate given in CRPD’s Article 4(1)(i).73 A/63/175, para. 66. An example of this is given in the Victor Rosario Congo v. Ecuador case, where the IACHR determined that Ecuador was responsible for violations of human rights in the arrest and death of a person with a psychosocial disability in a detention centre, where he died as a result of physical abuse, isolation and a lack of medical treatment. See also IACrtHR, Ximenes-Lopes v. Brazil, Judgment of July 4, 2006 (Merits, Reparations and Costs).

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treatment and conditions during arrest and detention do not discriminate directly or indirectly

against persons with disabilities and that they respect their inherent dignity.74

39. In particular, Article 14(2) specifies that this non-discrimination obligation includes the

provision of reasonable accommodation, defined in Article 2 of the CRPD75 and required by

the CRPD Committee “in order not to aggravate incarceration conditions for persons with

disabilities.”76 The authorities of prisons and other detention centres should engage in an

interactive dialogue with the person concerned in order to tailor the provision of reasonable

accommodation to their needs and, in any event, to discuss the existence of an undue or

disproportionate burden. In analysing whether or not there is a disproportionate burden,

consideration must be given to the overall budget of the State, as deprivation of liberty is an

act carried out under State authority and the State is the guarantor of the rights of the person

in detention. This criterion also applies to the case of privately run prisons and detention

centres operating under delegated State authority. This right to reasonable accommodation

must not be confused with the right to procedural and age-appropriate accommodations in all

legal proceedings (see para. 36).

40. Accessibility is a general principle and a right under the CRPD. According to CRPD’s Article

9, States parties must ensure that persons with disabilities have access, on an equal basis with

others, to the physical environment, transportation, information and communications, as well

to other facilities and services open to or provided for the public. States parties are therefore

obliged to ensure accessibility in all places of detention. As clarified by the CRPD

Committee, reasonable accommodation “can be used as a means of ensuring accessibility for

an individual [with an impairment] in a particular situation.”77

41. The CRPD Committee has expressed its concerns about the poor living conditions in places

of detention, particularly prisons, including conditions relating to hygiene and medical care,78

and overcrowding and ill-treatment.79 It has recommended ensuring that places of detention

are accessible, and provide humane living conditions.80 Regarding reasonable

74 See, accordingly, the IACHR, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), Principle 2; and the African Commission on Human and People’s Rights, Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (2014), Guideline 33(a)(iii).75 Article 2 of the CRPD defines reasonable accommodation as the “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”76 See CRPD/C/MNG/CO/1, para. 26; CRPD/C/CZE/CO/1, para. 28; and CRPD/C/UKR/CO/1, para. 31.77 CRPD/C/GC/2, para. 26.78 CRPD/C/UKR/CO/1, para. 30.79 CRPD/C/BRA/CO/1, para. 30. 80 CRPD/C/AZE/CO/1, paras. 30-31.

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accommodation, for providing it the Committee has recommended establishing a legal

framework that preserves the dignity of persons with disabilities,81 and it urges guaranteeing

the right to reasonable accommodation for those detained in prisons.82 In addition, it has also

addressed the need to “[p]romote training mechanisms for justice and prison officials in

accordance with the Convention’s legal paradigm”,83 specifying for persons with disabilities

the duty stated generally by the Human Rights Committee.84

42. In Mr. X. v. Argentina, the Committee affirmed that, under Article 14(2) of the CRPD,

persons with disabilities deprived of their liberty have the right to be treated in compliance

with the objectives and principles of the Convention, including conditions of accessibility and

reasonable accommodation.85 It recalled that States parties must take all relevant steps to

ensure that persons with disabilities detained may live independently and participate fully in

all aspects of daily life in their place of detention, including by ensuring their access, on an

equal basis with others, to the various areas and services, such as bathrooms, yards, libraries,

study areas, workshops and medical, psychological, social and legal services.86 Importantly,

the Committee stressed that the lack of accessibility or reasonable accommodation places

persons with disabilities in substandard conditions of detention that are incompatible with

Article 17 of the CRPD and may constitute a breach of Article 15(2).87

43. Article 10(1) of the ICCPR establishes that all persons deprived of their liberty shall be

treated with humanity and with respect for the inherent dignity of the human person. The

Human Rights Committee has explained that this provision applies to anyone deprived of

their liberty under the laws and authority of the State, including in prisons, hospitals,

psychiatric institutions, detention camps, correctional institutions or elsewhere,88 without

81 CRPD/C/SLV/CO/1, para. 32.82 CRPD/C/BEL/CO/1, para. 29; CRPD/C/COK/Q/1, para. 28(b); CRPD/C/CZE/CO/1, para. 28; CRPD/C/DEU/CO/1, para. 32(c); CRPD/C/MNG/CO/1, para. 26; and CRPD/C/TKM/CO/1, para. 30(b); CRPD/C/UKR/CO/1, para. 30; CRPD/C/BRA/CO/1, para. 31(b).83 CRPD/C/MEX/CO/1, para. 30(b), under Article 14. Under Article 13, the Committee has also referred to the training of officials and civil servants working in detention centres: see CRPD/C/SLV/CO/1, para. 30(c); CRPD/C/AUS/CO/1, para. 28; CRPD/C/KOR/CO/1, para. 24; CRPD/C/MNG/CO/1, para. 24; CRPD/C/DEU/CO/1, para. 28(c); CRPD/C/COK/CO/1, para. 26(c); CRPD/C/UKR/CO/1, para. 29; CRPD/C/QAT/CO/1, para. 26; CRPD/C/MUS/CO/1, para. 24; CRPD/C/KEN/CO/1, para. 26(c); CRPD/C/GAB/CO/1, para. 31; CRPD/C/BRA/CO/1, para. 27. 84 HRI/GEN/1/Rev.1 at 30, para. 10.85 See Mr. X. v. Argentina, CRPD/C/11/D/8/2012, para. 8.5.86 Ibid.87 Ibid., para. 8.6. The former Special Rapporteur on Torture, Manfred Nowak, recalled the duty to provide reasonable accommodation under Article 14(2) of the CPRD, and pointed out that lack of compliance could also increase the risk of exposure to neglect, violence, abuse, torture and ill-treatment (see A/63/175, paras. 54 and 38). See also European Court of Human Rights jurisprudence on Article 3 of the ECHR: Price v. the UK (2001); Vincent v. France (2006); Z.H. v. Hungary (2011); Arutyunyan v. Russia (2012); Zarzycki v. Poland (2013); Grimailovs v. Latvia (2013); Asalya v. Turkey (2014); Helhal v. France (2015).

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discrimination.89 It complements the ban on torture and other cruel, inhuman or degrading

treatment or punishment laid down in Article 7 of the ICCPR, and its application cannot be

dependent on the material resources available.90 The former Special Rapporteur on Torture,

Manfred Nowak, has emphasized that States must ensure that conditions in detention do not

discriminate against persons with disabilities, clarifying that if such discriminatory treatment

inflicts severe pain or suffering it may constitute torture or another form of ill-treatment. 91

The WGAD’s Basic Principles and Guidelines follow similar standards.92

44. The Standard Minimum Rules for the Treatment of Prisoners, applicable to criminal and civil

detention or imprisonment, including security measures or corrective measures,93 have

recently incorporated the provision of reasonable accommodation for persons with disabilities

who are in detention.94 Nevertheless, disability is not explicitly considered a prohibited

ground for discrimination in Rule 2(1).95 Rule 109(1)96 provides for the imprisonment of

persons with disabilities, in particular those with intellectual or psychosocial impairments, in

mental health facilities against their will. Furthermore, Rule 109(2) establishes that “[i]f

necessary, other prisoners with mental disabilities and/or health conditions can be observed

and treated in specialized facilities under the supervision of qualified health-care

professionals.” By allowing forced treatment in separate detention centres, these rules do not

comply with CRPD standards or their inclusive purpose.

45. The Special Rapporteur on Torture, Juan Méndez, has stressed that former Rules 82 and 83

(now substituted by Rules 109 and 110) should be “replaced.”97 He has also stated that

persons with disabilities deprived of their liberty are entitled to be eligible for all programmes

and services available to others, including voluntary engagement in activities and community-

based release programmes, and to be housed among the general prison population on an equal

basis with others, without discrimination.98 He stressed that the new provisions should clearly

articulate the rights enshrined in the CRPD.99 Notwithstanding this, his considerations should

88 HRI/GEN/1/Rev.1 at 33, para. 2. See also ECHR, Stanev v. Bulgaria, 2012, stating that inadequate living conditions in psychiatric institutions or care homes may amount to inhuman and degrading treatment.89 HRI/GEN/1/Rev.1 at 33, para. 4.90 HRI/GEN/1/Rev.1 at 33, para. 4.91 A/63/175, para. 53.92 WGAD, Basic Principles and Guidelines, see Note 53, Guideline 20, para. 125(a) and (c).93 Standard Minimum Rules for the Treatment of Prisoners, Preliminary observations 3 (1).94 Standard Minimum Rules for the Treatment of Prisoners (Rule 5(2)).95 Rule 2(1) provides that "[t]here shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status". 96 Former Rule 82.97 Despite the slight changes made to Rules 82 and 83 when they were converted to Rules 109 and 110, conceptually there seem to be no major changes that might alter his opinion on them.98 A/68/295, para. 72.99 A/68/295, para. 72.

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be read in relative terms as he has also supported detention in mental health facilities against

the will of the person concerned, in exceptional cases.

C.2.3 Non-consensual treatment

46. The deprivation of liberty of persons with disabilities often results in violations of the right to

enjoy the highest attainable standard of health (Article 25). This right obliges States parties to

the CRPD to provide health care for persons with disabilities on the basis of free and

informed consent,100 in all cases and circumstances. It applies to mental health professionals

in specialized and unspecialized services, including those working in prisons or other

detention facilities, or in mental health facilities or community-based services. It means that

States parties must not permit involuntary treatment or interventions for persons with

disabilities, either without their consent or with the consent of a third person, including during

arrest or detention of any kind, such as involuntary hospitalization, or by means of

compulsory outpatient treatment.101 States parties must also ensure the provision of accurate

and accessible information about service options, including non-medical services.

Furthermore, consent procedures should be aimed both at obtaining free and informed consent

from the person concerned and at preventing medical liability and malpractice lawsuits.

47. Arbitrary deprivation of liberty and non-consensual treatment also amount to violations of the

rights to live free from torture (Article 15) and from exploitation, violence and abuse (Article

16), and the right to personal integrity (Article 17). These violations also occur in cases where

consent is obtained without disclosing the risk of serious adverse effects that would have been

pertinent to the person’s decision-making.102 Arbitrary deprivation of liberty based on

impairments, as well as forced treatment and other non-consensual interventions, which may

inflict severe pain and suffering, violate the absolute prohibition of torture and cruel, inhuman

and degrading treatment.103 States parties should eradicate legislation and policies that allow

or perpetuate involuntary committal or forced treatment, and should provide effective

remedies and reparation for the victims.104

100 See Inter-American Commission on Human Rights, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008), Principle 10, establishing the principle of free and informed consent; and African Commission on Human and People’s Rights, Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (2014), Guideline 33(a)(iii).101 See supra, Note 30, para. 41.102 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), para. 50; in conjunction with CRPD/C/GC/1, paras. 37, 41.103 A/63/175, paras. 47, 65.104 See CRPD/C/CZE/CO/1, para. 33; CRPD/C/DEU/CO/1, para. 34(c); CRPD/C/KOR/CO/1, para. 32; WGAD, Basic Principles and Guidelines, Guideline 20, para. 107(f).

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48. Accordingly, the Committee has stressed systematically that persons with disabilities cannot

be subjected to treatment without their free and informed consent, including forced treatment

in mental health services,105 particularly as a way of punishing those deprived of their

liberty.106 It has therefore recommended the abolition of any practice of involuntary

internment or treatment and the adoption of measures to ensure that health-care services,

including all mental health services, are based on the free and informed consent of the person

concerned.107 It has further recommended eliminating the use of seclusion and restraints, both

physical and pharmacological.108

49. These standards have also been applied to persons with disabilities deprived of their liberty in

the context of the criminal system.109 As the Committee has focused in particular on the lack

of due criminal process and guarantees on an equal basis with others, it has not explicitly

precluded the possibility that, following due process, and where criminal responsibility has

been established, a person with disability may serve their sentence in a mental health facility

or psychiatric ward, without a specific decision on treatment.110 However, the existing criteria

which are contrary to forced and imposed treatment, the principles of autonomy and of free

and informed consent prior to health interventions, and the duty of non-discrimination on the

basis of disability, all suggest that the Committee would preclude such a possibility.

50. The Human Rights Committee has stressed that persons deprived of their liberty must enjoy

all the rights set forth in the ICCPR, subject to the restrictions that are unavoidable in a closed

environment.111 Persons deprived of their liberty accordingly cannot be subjected to any

treatment contrary to Article 7 of the ICCPR, including medical or scientific experimentation,

nor can they be subjected to any hardship or constraint other than that resulting from the

105 See CRPD/C/TUN/CO/1, para. 18; CRPD/C/ESP/CO/1, para. 30; CRPD/C/CHN/CO/1, para. 38; CRPD/C/ARG/CO/1, para. 42; CRPD/C/HUN/CO/1, para. 28; CRPD/C/PRY/CO/1, para. 30; CRPD/C/AUT/CO/1, para. 31; CRPD/C/AUS/CO/1, para. 29, 34, 48; CRPD/C/SWE/CO/1, para. 36; CRPD/C/CRI/CO/1, para. 22; CRPD/C/SLV/CO/1, para. 32; CRPD/C/MEX/CO/1, para. 30(b); CRPD/C/ECU/CO/1, para. 29; CRPD/C/BEL/CO/1, para. 29; CRPD/C/KOR/CO/1, para. 26; CRPD/C/DNK/CO/1, para. 57; CRPD/C/NZL/CO/1, para. 30; CRPD/C/DOM/CO/1, para. 27; CRPD/C/HRV/CO/1, para. 24; CRPD/C/CZE/CO/1, para. 30.106 CRPD/C/CZE/CO/1, para. 30.107 CRPD/C/ESP/CO/1, para. 36; CRPD/C/HUN/CO/1, para. 28; CRPD/C/AUT/CO/1, para. 31; CRPD/C/AUS/CO/1; para. 34; CRPD/C/SWE/CO/1, para. 36; CRPD/C/AZE/CO/1, para. 29; CRPD/C/NZL/CO/1, para. 30; CRPD/C/MEX/CO/1, para. 30; CRPD/C/KOR/CO/1, para. 26; CRPD/C/ECU/CO/1, para. 29; CRPD/C/BEL/CO/1, para. 29; para. 27; CRPD/C/NZL/CO/1, para. 30.108 See CRPD/C/AUT/CO/1, para. 33; CRPD/C/AUS/CO/1, para. 35; CRPD/C/SLV/CO/1, para. 37; CRPD/C/MEX/CO/1, para. 32; CRPD/C/DNK/CO/1, para. 38; CRPD/C/KOR/CO/1, para. 29; CRPD/C/NZL/CO/1, para. 32.109 See CRPD/C/BEL/CO/1, para. 29; CRPD/C/AUS/CO/1, para. 29; CRPD/C/MEX/CO/1, para. 30(a); CRPD/C/ECU/CO/1, para. 29(c).110 See in particular CRPD/C/DNK/CO/1, para. 34. 111 HRI/GEN/1/Rev.1 at 33, para. 3.

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deprivation of their liberty. The WGAD’s Basic Principles and Guidelines recommend that

the provision of mental health services should be based on the free and informed consent of

the person concerned.112

51. The revised Standard Minimum Rules for the Treatment of Prisoners include the standard of

respecting the “prisoners’ autonomy with regard to their own health and informed consent in

the doctor-patient relationship.”113 As this is stated in Section I, however, it applies only if it

does not conflict with the specific rules for “[p]risoners with mental disabilities and/or health

conditions.”114 Rule 109(1) provides that persons with psychosocial impairments “shall not be

detained in prisons, and arrangements shall be made to transfer them to mental health

facilities as soon as possible.” The principle of free and informed consent is not respected

here, as this rule implies forced internment (and treatment) without free and informed

consent.

C.2.4 Monitoring of detention facilities, review mechanisms and remedies (right to restitution,

satisfaction and guarantee of non-repetition)

52. The CRPD Committee has stressed the need to implement monitoring and review

mechanisms in relation to persons deprived of their liberty. The monitoring function broadly

addresses detention conditions and how detention centres are run, including prisons and any

other existing institutions and programmes that may or may not have a mandate to practise

involuntary committal or involuntary treatment. The monitoring of existing institutions seeks

to prevent human rights violations, and does not entail an acceptance of the practice of forced

institutionalization. Article 16(3) of the CRPD explicitly provides for the independent

monitoring of all facilities and programmes that serve persons with disabilities in order to

prevent all forms of violence, exploitation and abuse, and Article 33 requires States parties to

establish an independent national monitoring mechanism and to ensure civil society

participation in monitoring (paras 2 and 3). Monitoring mechanisms and personnel should be

provided with tools and support for overcoming the reluctance of institutions’ administrations

and/or professional bodies to have their work monitored, and should be given a broad

mandate which would cover the investigation of human rights violations and, in particular,

cases registered as natural deaths, illness-based deaths and suicides that might have been

caused by previous torture or cruel, inhumane or degrading treatment or medical malpractice.

112 WGAD, Basic Principles and Guidelines, see Note 53, Guideline 20, para. 106(b).113 Standard Minimum Rules for the Treatment of Prisoners, (Rule 32.(1)(b)).114 Standard Minimum Rules for the Treatment of Prisoners, Preliminary observations 3(2).

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53. More specifically, review mechanisms or procedures are aimed at challenging the rationale

for detention, providing a guarantee of the absolute prohibition on the deprivation of liberty

on the basis of impairments. General guarantees applicable to all kinds of detention, such as

habeas corpus, serve this purpose. Specific review mechanisms or procedures, such as those

usually included in mental health laws, are useful for preventing arbitrary and unlawful

detention. Protection against arbitrary detention and forced treatment should nevertheless be

enforced by the judiciary on an equal basis with others.

54. The establishment of an individual complaints mechanism serves both purposes: monitoring

and review. The separate functions of monitoring and review can be assigned to the same

body. The effectiveness of direct interaction between this body and the judiciary has been

proven. It is therefore advisable for such a monitoring body to have the capacity to file

complaints before courts. In addition, existing bodies, such us the National Preventive

Mechanisms established under the Optional Protocol to the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment, must uphold CRPD standards throughout

their work, where a State has ratified both treaties.

55. Initially, the CRPD Committee urged that the legality of the placement of persons with

disabilities in mental health institutions should be reviewed.115 Similarly, it recommended

“that until the law is amended, all cases of deprivation of liberty of persons with disabilities in

hospitals and specialized institutions be reviewed and that the review include a possibility of

appeal.”116 The CRPD Committee recognizes that States parties do not have laws in place

instituting an absolute ban on the deprivation of liberty and, by means of a review, it enables

persons with disabilities to challenge their arbitrary detention. This is a logical interpretation

that recognizes the legal right of persons with disabilities to demand their release if, under

international human rights law, their detention is arbitrary; and it is consistent with the

absolute ban on the deprivation of liberty on the basis of impairments, and with the

interpretation of a “review” as a means of challenging arbitrary detention, rather than as a

periodic review that might actually prolong the deprivation of liberty.117 In this context, upon

the person's release, States must provide economic and social supports and disability-related

services in order to facilitate their de-institutionalization.118

56. Regarding monitoring mechanisms, the Committee has recommended the creation of

independent human rights mechanisms to gather information on instances of the deprivation

115 CRPD/C/PER/CO/1, para. 31.116 CRPD/C/KOR/CO/1, para. 26 (emphasis added).117 See para. 16, supra.118 WGAD, Basic Principles and Guidelines, para 107(e).

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of liberty and to monitor the situation of persons with disabilities who have been placed in

institutions,119 prisons or other detention centres.120 In this regard, under Article 15 it refers to

the purposes of protecting them “from acts that might amount to torture and other cruel,

inhuman or degrading treatments”121 and, in psychiatric hospitals, preventing the use of

mechanical or chemical restraints on persons with psychosocial disabilities against their

will.122 The Committee has also called for the existing Ombudsman’s Office, or some other

independent body, to monitor de-institutionalization strategies and to protect persons with

disabilities from violence, abuse and ill treatment of any kind.123 Most recently, it has

recommended that there should be “an independent inquiry using a human rights-based

review of psychiatric services for persons with disabilities, their privacy, and the collection of

relevant data” – thus, that a specific monitoring task should be performed.124

57. Importantly, the Committee urges ensuring “that persons deprived of liberty have access to

independent monitoring and complaint mechanisms and that victims of torture and ill-

treatment are entitled to, and provided with, redress and adequate compensation, including

rehabilitation.”125 Accordingly, it recommended considering “compensation for the victims of

[physical and chemical restraints].”126 Furthermore, the Committee recommends ensuring that

monitoring mechanisms have sufficient resources and unimpeded access to all places of

deprivation of liberty,127 to enable them to function and work properly. In this regard, the

former Special Rapporteur on Torture, Manfred Nowak, has stressed that independent human

rights monitoring bodies (e.g. national human rights institutions, national anti-torture

preventive mechanisms, civil society) should regularly monitor institutions where persons

with disabilities may reside, such as prisons, care centres, orphanages and mental health

institutions.128

58. States must monitor private institutions such as psychiatric hospitals and psychiatric wards in

general hospitals. When States authorize private actors to exercise powers of arrest or

detention, they must regulate the latter's powers and remain responsible for their actions.129

The obligation to monitor private actors is relevant even when such facilities and programmes

119 CRPD/C/PRY/CO/1, para. 34.120 CRPD/C/SLV/CO/1, para. 32.121 CRPD/C/DOM/CO/1, para 31. 122 CRPD/C/CZE/CO/1, para. 32.123 CRPD/C/CRI/CO/1, para. 30.124 CRPD/C/DEU/CO/1, para. 30(b).125 CRPD/C/CZE/CO/1, para. 33.126 CRPD/C/DEU/CO/1, para 33(c). 127 CRPD/C/AZE/CO/1, para. 31128 A/63/175, para. 75.129 CCPR/C/GC/35, para. 8.

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are not given powers of arrest or detention, as in the case of residential institutions for older

persons.

D. The exercise of their right to liberty by persons with disabilities: particular aspects

59. Two aspects of Article 14 of the CRPD require further and deeper analysis: the impact of the

absolute ban on the deprivation of liberty both on criminal law and on the implementation of

criminal law, in the context of mental health services and in mental health institutions and

social care institutions.

D.1 Deprivation of liberty under criminal law

60. The CRPD Committee has addressed the impact of Article 14 of the CRPD in relation to

criminal law, as psychosocial and intellectual impairments frequently constitute grounds for

exclusion from criminal procedures and/or exemption from criminal responsibility, and

subsequent deprivation of liberty is based on impairments rather than criminal sanctions. Each

of these situations is analysed in the following sections, exploring the previous conclusions of

the CRPD Committee as well as the positions of other international bodies in relation to them.

D.1.1 Competence to stand trial

61. The concept of competence or fitness to stand trial for an offence is based on the assumption

that a defendant should be able to understand the nature and purpose of the legal proceedings

and to exercise their procedural rights effectively, including by instructing their defence

counsel. In many legal systems, a defendant who is found unfit to stand trial can be held in

detention pending a change in their condition that allows the court to pursue trial.

Importantly, competence to stand trial relates to a mental condition at the time of the trial, not

at the time the offence was committed. It is not a defence against or an exemption from

criminal liability, although in many legal systems the consequences may be similar.

62. The issue of competence to stand trial has been clearly developed in the Human Rights

Committee's General Comment No. 32 on Article 14 of the ICCPR.130 The right to a fair trial

implies, among other guarantees, the right to be heard in person.131 The Human Rights

Committee has divided this right into two parts: the right to defend himself or herself by 130 Human Rights Committee, General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (Aug. 23, 2007).131 Ibid., para. 37.

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instructing the legal actions of the defending lawyer, and the right to reject legal

representation and instead to conduct his or her own defence.132 The Human Rights

Committee considers that self-representation is not an absolute right and that, in the interest of

justice, this right can be restricted in relation to those who cannot “act in their own

interest.”133

63. In international criminal law, the Rome Statute of the International Criminal Court (1998)

contains no provision relating to fitness to stand trial.134 According to the International

Criminal Court’s Pre-Trial Chamber, however, the concept is rooted in the broader concept of

a fair trial provided for in the Rome Statute: “Whenever the accused is, for reasons of ill

health, unable to meaningfully exercise his or her procedural rights, the trial cannot be fair

and criminal proceedings must be adjourned until the obstacle ceases to exist.” 135 That body

has defined fitness to stand trial as the “absence of medical conditions [that] would prevent

the accused from being able to meaningfully exercise his or her fair trial rights.”136

64. The Court’s Pre-Trial Chamber considered a number of relevant capacities necessary for the

meaningful exercise of fair trial rights. It concluded that, to be competent to stand trial, a

person needed: (i) to understand in detail the nature, cause and content of the charges; (ii) to

understand the conduct of the proceedings; (iii) to instruct counsel; (iv) to understand the

consequences of the proceedings; and (v) to make a statement.137 The Court's primary focus is

not merely to determine the existence of medical conditions, but to understand whether they

affect the accused person's capacity to exercise their fair trial rights meaningfully. 138 To this

end, it may appoint experts to conduct a medical, psychiatric or psychological examination. 139

Pursuant to Rule 135 of the Rules of Procedure and Evidence for the application of the Rome

Statute, if the Trial Chamber considers that the accused is unfit to stand trial, it shall order that

the trial be adjourned. The Trial Chamber may, on its own merit or at the request of the

prosecution or the defence, review the case of the accused. In any event the case is to be

reviewed every 120 days unless there are reasons to do otherwise. There is no express

provision for the release of defendants who are not expected to regain their fitness.

132 Ibid.133 Ibid.134 Neither the ad hoc International Criminal Tribunals for Rwanda and the former Yugoslavia nor the Special Court for Sierra Leone.135 The Prosecutor v. Laurent Gbagbo. Case No. ICC-02/11-01/11, Decision on fitness to take part in the proceedings (2 Nov. 2012).136 Ibid., para. 43.137 Ibid., para. 50.138 Ibid., para. 51.139 Ibid., para. 55.

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65. On the contrary, the CRPD Committee – in several concluding observations140 and in its

Guidelines on Article 14 of the CRPD – has strongly rejected the concept of unfitness to stand

trial and its discriminatory character.141 It has even called for its removal from the criminal

justice system.142 Concerned at the indefinite detention that persons with disabilities face as a

consequence of being deemed unfit to stand trial,143 and at the lack of due process,144 the

Committee has consistently recommended that “all persons with disabilities accused of crimes

and detained without trial in prisons and institutions, are allowed to defend themselves against

criminal charges and provided with the required support and accommodation to facilitate their

effective participation”,145 together with procedural accommodations to ensure fair trial and

due process,146 all of them free of charge.147

66. In some countries, persons with disabilities considered unfit to stand trial are not punished but

sentenced to treatment.148 The Committee has stressed that treatment, applied in replacement

of arrest, “is a social control sanction and should be replaced by formal criminal sanctions for

offenders whose involvement in crime has been determined.”149 It added that the procedure

leading to a sentence of treatment is not in accordance with the safeguards that a criminal

procedure should have. Consequently, sentencing a person to treatment contradicts the

CRPD.150 Furthermore, the Committee has clarified that a person with disability should be

deprived of their liberty only when they are found guilty of a crime after following a criminal

procedure with all the safeguards and guarantees applicable to everyone.151 Confronted with

this issue, the Committee has recommended a review of criminal systems and procedures to

ensure that general safeguards and guarantees introduced to protect all persons accused of a

crime apply to persons with disabilities, highlighting the presumption of innocence and the

right to defence and to a fair trial.152

67. Importantly, Article 12 of the CRPD confirms that the concept of competence to stand trial

must not exclude persons with disabilities from regular criminal procedures. The CRPD

Committee has emphasized that the recognition of the right to legal capacity is essential for

140 The English version of the CRPD Committee’s concluding observations on Ecuador uses the expression “unfit to stand trial”, but the original Spanish version refers to non-liability (“inimputabilidad”).141 See supra, Note 40. 142 CRPD/C/KOR/CO/1, para. 27.143 CRPD/C/AUS/CO/1, para. 31, under Article 14. 144 CRPD/C/QAT/CO/1, para. 27.145 CRPD/C/AUS/CO/1, para. 30, under Article 13.146 CRPD/C/KOR/CO/1, para. 27; and CRPD/C/QAT/CO/1, para. 28.147 CRPD/C/MUS/CO/1, para. 24, under Article 13.148 CRPD/C/DNK/CO/1, para. 34.149 CRPD/C/DNK/CO/1, para. 34.150 CRPD/C/DNK/CO/1, para. 34.151 CRPD/C/NZL/CO/1, para. 33.152 CRPD/C/DNK/CO/1, para. 35; CRPD/C/NZL/CO/1, para. 34; CRPD/C/DEU/CO/1, paras. 32(a) and(b);

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exercising the right of access to justice on an equal basis with others, and that persons with

disabilities must therefore be recognized as persons before the law with equal standing in

courts and tribunals.153 The support in the exercise of legal capacity provided for in Article 12

covers the capacity to participate in judicial, administrative and other legal proceedings, and

may take various forms, such as the recognition of diverse communication methods,

procedural accommodation, professional sign language interpretation and other assistive

methods.154 Furthermore, full compliance with Article 12 forbids any impairment-based

restriction in the exercise of self-representation before courts, such as the one proposed by the

Human Rights Committee, “in the interest of justice”, on those who cannot “act in their own

interest.”155 The CRPD criteria call for the development of adequate policy guidelines to

ensure better access to justice, including self-representation and the instruction of counsel.

68. The CRPD Committee’s rejection of the concept of incompetence or unfitness to stand trial

has recently been supported by the WGAD. Guideline 20 of its Basic Principles and

Guidelines156 states that “[p]ersons with psychosocial disabilities must be given the

opportunity to promptly stand trial, with support and accommodations as may be needed,

rather than declaring such persons incompetent.”157

69. Further developments along these lines are needed. In particular, theoretical and applied

research should be oriented at gaining a better understanding of current practices, including at

the different stages of criminal investigations and procedures, and at increasing and

improving the provision of adequate procedural accommodations in order to guarantee access

to justice for persons with disabilities. States must involve the associations of criminal law

professionals and must ensure a CRPD-compliant approach in order to make certain that legal

reforms do provide for access to justice and do not discriminate against persons with

disabilities, while maintaining the safeguards that ensure due process.

D.1.2 Exclusion of criminal responsibility

70. In criminal law, there are circumstances that rule out a person's criminal responsibility. These

are commonly classified as justifications and excuses.158 Justifications operate when a

153 CRPD/C/GC/1, para. 38.154 CRPD/C/GC/1, para. 39.155 Human Rights Committee, General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (Aug. 23, 2007).156 WGAD, Basic Principles and Guidelines, see Note 56.157 Ibid. para 107(b). 158 See Cassese, Antonio, International Criminal Law (Oxford 2003), p. 219.

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defendant acts contrary to a substantive rule of law but for justified reasons, such as self-

defence or law-enforcement privileges. Excuses, in turn, operate when a defendant acts

contrary to a substantive rule of law but lacks a criminal frame of mind. Excuses thus include

age, insanity, mental disorder, duress, mistake of fact, and mistake of law. Unlike the notion

of competence to stand trial, these defences relate to the accused person’s mental state at the

time the offence was committed.

71. In most (if not all) legal systems, including international criminal law, the attribution of

criminal responsibility requires two dimensions: an objective or material element (actus reus)

and a subjective or mental element (mens rea).159 Common general notions of mens rea in the

majority of these criminal systems include: intent or dolus, recklessness or dolus eventualis,

culpable negligence and inadvertent negligence.160 In all such cases, mens rea is an important

part of criminal liability, which reaffirms the principle of personal responsibility. Most

defences operate in relation to mens rea.

72. Civil law jurisdictions operate using a tripartite system of crime.161 Following post-finalist

theories of crime, they distinguish between: i) offence definition (objective and subjective

elements), ii) wrongfulness, and iii) culpability, with all of them working in a progressive

structure. Under this system, justifications operate in relation to wrongfulness, while excuses

apply under the analysis of culpability. They are deemed not defences but, rather, intrinsic

characteristics of the crime.

D.1.2.1 Insanity defence and other liability exclusions based on impairment

73. In many countries, the insanity defence is an excuse that operates when, owing to a mental or

intellectual impairment, a defendant was unaware of what he or she was doing and, hence,

was incapable of forming a rational judgement about their conduct.162 As the defendant lacks

the requisite mens rea, they will usually receive a not-guilty verdict. However, a person found

to have been legally insane can be held in custody in medical or security facilities.

159 Ibid. pp. 159-175.160 Ibid. pp. 161-162.161 See Christopher, Russell L., “Tripartite Structures of Criminal Law in Germany and Other Civil Law Jurisdictions”, 28 Cardozo L. Rev. 2675 (2007).162 See James Simon, Rita and Heather Ahn-Redding. The Insanity Defense, The World Over (Lanham, Lexington Books, 2006).

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74. In civil law contexts, exclusions of criminal liability based on impairment similarly work

under the general notions of non-liability (“inimputabilidad”, “non-imputabilité”).163

However, as mentioned above, they do not work as a defence and, therefore, constitute

substantive grounds for excluding criminal responsibility. So, unlike with the insanity

defence, the accused does not (necessarily) have to prove the reason for their non-liability.

75. Legal criteria and tests for insanity or non-liability can vary depending on the jurisdiction.

Nevertheless, in comparative law three main standards are used for evaluating insanity: i)

biological, which is decided simply on the basis of identifying impairments or the accused

person’s mental state (status approach); ii) psychological, which focuses on the psychological

consequences of those states, such as degree of consciousness (functional approach); and iii)

mixed, which requires both elements.164 All of these standards are impairment-based.

76. In international criminal law, the Rome Statute sets out substantive grounds for excluding

criminal responsibility, including insanity. According to its Article 31(1)(a), a defendant shall

not be criminally responsible if, at the time of the criminal conduct, he or she “suffers from a

mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or

nature of his or her conduct, or capacity to control his or her conduct to conform to the

requirements of law.” So there are two basic requirements, interrelated in a mixed standard: i)

an impairment (status-based), and ii) a lack of capacity either to appreciate the unlawfulness

of the conduct or to control it (functional). Neither the Rome Statute nor its Rules of

Procedure and Evidence provide for detention for defendants found not responsible under

Article 31(1)(a).

77. The CRPD Committee has dealt with exclusions to criminal responsibility in several

concluding observations. While it has rejected such regimes outright, and has called for equal

substantive (as well as procedural) guarantees, the Committee has not focused on the

substantive issue of the determination of criminal responsibility. Rather, it has been

concerned with two interrelated elements: a) the absence of regular due process guarantees,

and b) the consequent deprivation of liberty that accompanies the exemption from criminal

responsibility of persons with psychosocial or intellectual impairments. In this regard, it has

recommended reviewing criminal procedures to ensure that persons with disabilities can

163 In this document, the English term “non-liability” is used to cover cases where wrongful conduct is not considered attributable to the person in question. The Spanish term is “inimputabilidad”, which has no exact equivalent in English, while French uses “non-imputabilité criminelle pour cause de troubles mentaux". 164 See Donna, Edgardo Alberto. “Capacidad de culpabilidad o imputabilidad” (1996), Revista jurídica de la Universidad de Palermo <http://www.palermo.edu/derecho/publicaciones/pdfs/revista_juridica/n3N1-Abril1998/031Juridica04.pdf>

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enjoy the same guarantees and conditions as those applicable to any other person involved in

criminal proceedings.165

78. The Committee has expressed its concern about persons with disabilities – especially those

with psychosocial or intellectual impairments – being declared non-liable in criminal

proceedings, as this implies an absence of the procedural safeguards and guarantees

applicable to other persons,166 and may lead to the indefinite deprivation of liberty of the

persons in question.167 The Committee has also rejected the concept of non-liability owing to

disability as a concept in the legal system,168 and it recommends both ensuring due process

and general guarantees for persons with disabilities in the context of criminal proceedings169

and refraining from declaring persons with disabilities accused of a crime to be non-liable. 170

79. In line with its positions on non-liability for civil law jurisdictions, the Committee has

recently expressed concern at the fact that persons with disabilities who are considered “of

unsound mind” and/or “insane” can be subjected to a deprivation of their liberty, and that in

criminal proceedings they are not entitled to the same guarantees as other persons.171 It has

therefore recommended repealing the relevant provisions in law and reaffirming the right of

persons with disabilities to a fair trial, in line with the CRPD. 172 This recommendation entails

rejection of any version of the insanity defence.

80. The Committee has called for persons with disabilities to be given the same substantive and

procedural guarantees as others in the context of criminal proceedings.173 This is in keeping

with the nature of Article 14 as a non-discrimination provision, and suggests that the

standards for attributing criminal liability must be the same for persons with disabilities. In

the criminal process, the subjective element of a crime is usually analysed after the legality of

the conduct has been assessed, which in itself helps prevent decisions from being made on the

basis of the existence of impairments.

81. OHCHR has stated that recognizing the legal capacity of persons with disabilities means

abolishing defences based on the denial of criminal responsibility because of the existence of 165 See e.g. CRPD/C/TKM/CO/1, para. 30(b); CRPD/C/DEU/CO/1, 32(a) and (b).166 CRPD/C/MEX/CO/1, para. 27; CRPD/C/ECU/CO/1, para. 28 (see Spanish version).167 CRPD/C/ECU/CO/1, para. 28.168 CRPD/C/ECU/CO/1, para. 29(b).169 CRPD/C/MEX/CO/1, para. 28; CRPD/C/ECU/CO/1, para. 29(b); and CRPD/C/BEL/CO/1, para. 28.170 CRPD/C/ECU/CO/1, para. 29(b) (see Spanish version). 171 CRPD/C/KEN/CO/1, para. 27.172 CRPD/C/KEN/CO/1, para. 28.173 CRPD/C/AUS/CO/1, para. 29 (the same substantive and procedural guarantees as others in the context of criminal proceedings); CRPD/C/ECU/CO/1, para. 29(b) (“general guarantees of criminal law and procedure”); CRPD/C/GAB/CO/1, para. 35.

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a mental or intellectual impairment.174 OHCHR has proposed the application of disability-

neutral doctrines to the subjective element of the crime, taking into consideration the situation

of the individual defendant.175 In all its previous concluding observations on the subject, the

CRPD Committee has instead focused on the lack of regular due process guarantees and the

consequent deprivation of liberty that accompany an exemption from criminal responsibility.

Nevertheless, despite its rejection of the concept of non-liability by reason of disability, it has

not provided guidance on or addressed how the subjective element of a crime (mens rea)

should be constructed in a criminal system respectful of Article 14, taking into account the

impact of the recognition of full legal capacity (Article 12) in matters of criminal

responsibility.176 OHCHR’s positions as set out in this paragraph may constitute starting

points for further developments. Any intervention on the subjective element of a crime should

be part of a broader criminal law reform, which, to prevent the impact of such reforms from

being disproportionately negative, would include the elimination of security measures.

D.1.2.2 Diminished responsibility

82. Some legal systems, especially in common law countries, provide for a special defence called

“diminished responsibility” or “diminished capacity” for particular offences, such as murder.

This defence can be based on an “abnormality of the mind”, which includes intellectual and

psychosocial impairments, and it entails a reduction of criminal liability or a mitigation of the

punishment. It is based on the premise that, despite recognizing the wrongful nature of their

actions, the accused person is unable to control their actions.177 The accused is therefore found

guilty, but with diminished responsibility. In some jurisdictions this partial defence can also

cover cases of “irresistible impulse”.178

83. Diminished mental capacity is not specifically mentioned in the Rome Statute, but its Rules of

Procedure and Evidence regard it as a mitigating circumstance when it comes to sentencing.179

The CRPD Committee has not so far addressed this defence in its concluding observations.

Developments regarding the subjective element of a crime, and the impact of Article 12 on

matters of criminal responsibility, might be expected to address this particular defence.

174 A/HRC/10/48, para. 47.175 A/HRC/10/48, para. 47.176 As cited in paragraph 68, General Comment No. 1 of the CRPD Committee addresses the impact of Article 12 on legal proceedings, calling for equal legal standing, meaningful participation, support and procedural accommodations, but it does not address the substantive criteria to be applied by criminal courts.177 See ICTY, Prosecutor v. Zejneil et al. (1998), IT-96-21-T, para. 1156.178 See e.g. Doyle v. Wicklow County Council [1974] IR 55; Hashfield v. State [1965] 247 Ind. 95.179 Rule 145 (2)(a)(i).

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D.1.3 Security measures

84. Persons with disabilities acquitted because of insanity or non-liability are usually subjected to

security measures, which often entail committal to mental health facilities under a regime of

impairment-based detention.180 Rather than being based on culpability, security measures are

based on a person's alleged dangerousness.181 Thus its declared purpose is specifically to

prevent the individual from causing harm again and/or committing wrongful acts in the

future.

85. As anticipated above, the CRPD Committee has addressed security measures. It has

recommended eliminating security measures that involve forced medical or psychiatric

treatment in institutions,182 and has also expressed concern about those that involve a lack of

the guarantees regularly provided in the criminal justice system183 and an indefinite

deprivation of liberty, 184 recommending that they should be abolished.185

86. Furthermore, it has recommended removing systems of security measures applicable to

persons with disabilities declared not responsible for their acts under the criminal system, 186

indicating that they are forms of “social punishment” adopted in response to a person’s

perceived “dangerousness”.187 Accordingly, the Committee recommended that each State

should “[r]emove from its criminal law the concept of dangerousness in cases where a person

with psychosocial disabilities is accused of a crime, as well as the deprivation of liberty based

on the same criterion.”188It is worth noting that the position of the CRPD Committee

contradicts the soft law Standard Minimum Rules for the Treatment of Prisoners, which

provide that persons who are found not criminally responsible should not be detained in

prison and that arrangements should be made to transfer them to mental health facilities as

soon as possible.189

180 In some countries the security measures may be applied in addition to a punishment. See Chankseliani, Maizer, “Punishment and other penal measures” (2012) 8(2) European Scientific Journal 98. See ECHR, Aerts v. Belgium (1998), paras. 45-46. The Court stressed that, in cases where a “person of unsound mind” is not criminally responsible, “there could be no conviction within the meaning of paragraph 1(a) of Article 5”, but they could be lawfully detained in a hospital, clinic or other appropriate institution under Article 5(1)(e).181 See Zaffaroni, Eugenio, Derecho Penal. Parte General (Ediar 2002), pp. 925-927.182 CRPD/C/MEX/CO/1, para. 30(a); CRPD/C/ECU/CO/1, para. 29(c).183 CRPD/C/ECU/CO/1, para. 28.184 CRPD/C/ECU/CO/1, para. 28; Brazil, paras. 30 and 31(a).185 CRPD/C/BRA/CO/1, para. 31(a).186 CRPD/C/BEL/CO/1, para. 28 (see French version). 187 CRPD/C/BEL/CO/1, para. 27 (see French version).188 CRPD/C/DOM/CO/1, para 29(b). 189 Rule 109(1).

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87. Recognizing that security measures constitute a deprivation of liberty following an exemption

of criminal liability based on impairment, the Committee has conclusively rejected them.190 It

is worth recalling that the Committee clarified that a person with a disability should be

deprived of their liberty only when they are found guilty of a crime following a criminal

procedure entailing all the safeguards and guarantees applicable to everyone. 191 The related

questions regarding the subjective element of a crime and the impact of Article 12 on criminal

responsibility remain up for discussion, bearing in mind that the CRPD Committee has

rejected the concept of "non-liability by reason of disability" as a concept admissible in the

legal system.192

D.1.4 Diversion mechanisms and restorative justice schemes

88. Some criminal justice systems provide an array of options to divert offenders from

prosecution.193 These may include education and restorative justice programmes, but also

mental health services for persons with psychosocial disabilities.194 The CRPD Committee has

referred to two types of programme that entail an assumption of criminal responsibility, and

has made a different recommendation on each. On the one hand, it has condemned diversion

programmes that require involuntary committal to mental health treatment, as here the mental

health services are not provided on the basis of the individual’s free and informed consent

pursuant to Articles 12 and 25.195 Regarding the other kind of programme – where treatment is

offered on consensual basis, and is not a precondition for the diversion from prosecution – the

Committee has recognized its value and recommended its application on an equal basis with

others, ensuring due process and, preferably, avoiding the deprivation of liberty.196

Deprivation of liberty, it advises, should be applied as last resort.197

89. According to the Committee, therefore, diversion programmes that are applicable to all are

considered lawful mechanisms for avoiding deprivation of liberty in a criminal context,

provided they do not involve involuntary internment or treatment. In any case, mental health

services based on free and informed consent, and non-medical support of all kinds, should be

offered to all persons eligible for diversion mechanisms, and not exclusively to those with

disability. Furthermore, in cases where criminal responsibility is confirmed, the Committee

190 CRPD/C/BEL/CO/1, para. 28 (see French version). See also CRPD Committee, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities, para. 20.191 CRPD/C/NZL/CO/1, para. 33.192 CRPD/C/MEX/CO/1, para. 27.193 See UNDOC, Handbook on Restorative justice programmes (UN 2006).194 Ibid.195 CRPD/C/AUS/CO/1, para. 29. See also CRPD/C/BEL/CO/1, para. 29.196 CRPD/C/NZL/CO/1, para. 34.197 Ibid.

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has stated a clear preference for non-punitive mechanisms over deprivation of liberty.198 It

therefore supports the development of CRPD-compliant restorative justice mechanisms

which, with some with fruitful innovation, could be a means of dealing with wrongful

behaviour and could help to deter crime while avoiding the harm inherent in any deprivation

of liberty.

D.2 Involuntary detention in mental health facilities or social care institutions

90. Article 14 of the CRPD prohibits involuntary detention in mental health facilities or social

care institutions, based on the existence of impairments as being discriminatory, including

when the threshold criterion of perceived impairment is applied in combination with other

grounds. The CRPD Committee has stressed that States parties must abolish legislation and

practices that allow deprivation of liberty on those grounds, and must provide community-

based services to support persons with disabilities living in that community. This section

addresses the concepts of dangerousness and emergency situations, and complements Section

C.1.2 (Absolute ban on the deprivation of liberty based on the existence of impairment).

D.2.1 Dangerousness

91. The CRPD Committee has expressed its concern about legislation that allows for persons with

disabilities to be deprived of their liberty because they are regarded as a danger to themselves

or others.199 It has said that this type of legislation is contrary to Article 14,200 and it

recommends repealing laws that allow for the deprivation of liberty based on potential

“dangerousness”.201 More broadly, it has recommended reviewing legislation in order to

ensure that no one will be detained in any facility on the grounds of actual or perceived

disability, even in combination with other factors, and that all mental health services are given

the free and informed consent of the person concerned.202

92. Similarly, the former Special Rapporteur on the right to health, Anand Grover, has stressed

that persons with disabilities often suffer from an unjustified perception that they are either

incompetent or dangerous to themselves or others.203 Addressing this matter, the former 198 Here, the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) constitute an interesting precedent, as they state that: “[T]he use of non-custodial measures should be part of the movement towards depenalization and decriminalization instead of interfering with or delaying efforts in that direction.” (See United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), G.A. res. 45/110, annex, 45 U.N. GAOR Supp. (No. 49A) at 197, U.N. Doc. A/45/49 (1990), para. 2.7.199 See CRPD/C/SLV/CO/1, para. 32 (see Spanish version); CRPD/C/AUT/CO/1, para. 29; CRPD/C/DNK/CO/1, para. 36; CRPD/C/SWE/CO/1, para. 35; CRPD/C/BEL/CO/1, para. 27.200 CRPD/C/DNK/CO/1, para. 36.201 CRPD/C/TKM/CO/1, para. 30(a).202 See note 26, supra.203 A/64/272, para. 69.

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Special Rapporteur on Disability, Shuaib Chalklen, and the former Special Rapporteur on

Torture, Manfred Novak, supported the position of the CRPD Committee.204, 205 OHCHR has

also supported this position.206 The Human Rights Committee and the current Special

Rapporteur on Torture, Juan Méndez, have a divergent approach to the issue and consider that

depriving a person with disability of their liberty on the grounds of a perceived psychosocial

impairment may be lawful if it is necessary to protect their safety or that of others.207

93. Mental health legislation in some jurisdictions allows a deprivation of liberty based on the

prediction that lack of treatment may result in a deterioration of the person's mental condition

to the point where they become a danger to themselves or others, or become unable to take

care of themselves.208 Predictability is usually established by the person's medical history and

past experiences in the mental health system, and in such cases the deprivation of their liberty

is based on the alleged risk that they may pose a danger to themselves or others. The CRPD

Committee has referred to this issue in its concluding observations, addressing concepts such

as “potentially dangerous” and urging the States parties to avoid using this criterion by

respecting the right to liberty of persons with disabilities and ensuring that they give their free

and informed consent.209

94. In its General Comment No. 1, moreover, the Committee has stated that the “outcome-based

approach” to denying legal capacity contradicts Article 12 of the CRPD, 210 thereby rejecting

predictions of future harm or risk as valid grounds for denying the legal capacity of persons

with disabilities to refuse involuntary hospitalization or institutionalization. In relation to the

issue of involuntary committal to psychiatric institutions, the Special Rapporteur on Torture,

Juan Méndez, suggests that the exception of being a danger to themselves or others applies

only in situations of “actual clear and present danger”.211

95. The CRPD Committee has referred to this issue in its concluding observations, addressing the

“need for care and treatment” and the concept of “potential dangerousness” and urging the

States parties to abolish rules that allow persons with disabilities to be deprived of their

204 Submission of Shuaib Chalklen, UN Special Rapporteur on Disability to the Human Rights Committee’s debate on its General Comment No. 35, 27 May 2014.205 A/63/175, para. 64.206 A/HRC/10/48, para. 49. 207 CCPR/C/GC/35, para. 19; A/HRC/22/53, para. 69.208 See Peay, Jill, “Decision-making in mental health law: can past experience predict future practice?” (2005) Journal of Mental Health Law 12, p. 41.209 CRPD/C/SLV/CO/1, para. 32 (see Spanish version).210 CRPD/C/GC/1, para. 15.211 Center for Human Rights & Humanitarian Law, Anti-Torture Initiative. Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (WCL, 2014). p. xviii.

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liberty on the basis of such criteria, and to ensure that the person concerned gives their free

and informed consent.212 The deprivation of liberty based on the “treatment” criterion in any

of its variations represents a simple denial of the legal capacity of the person concerned to

make a decision about mental health services or treatment, and a substitution of the opinion of

medical professionals (both in their prediction of future harm or risk, and in their assessment

of a need for care or treatment) for that person's opinion and wishes. The Committee has

repeatedly stated, in its Concluding Observations under Article 12 and in its General

Comment No. 1, that legal capacity includes the right to make decisions about medical

treatment. This right cannot be limited on the grounds of a perception that the situation

constitutes an emergency or crisis; as stated in General Comment No. 1, persons with

disabilities have legal capacity at all times, including in crisis situations, and States parties

must respect this capacity and must abolish laws and policies that allow or stipulate forced

treatment, such as those found in mental health legislation. If forced treatment is prohibited, it

follows that detention for such a purpose is impermissible and is also prohibited.

D.2.3 Emergencies or crisis situations

96. The CRPD Committee did not refer to emergency situations in its concluding observations. In

its General Comment No. 1, however, it stated that the individual autonomy and legal

capacity of persons with disabilities must be respected at all times, including in crisis

situations.213 It has also stated that under no circumstances should persons with disabilities be

denied their right to exercise their legal capacity on the basis of a third-party analysis of their

“best interest”, and that practices associated with such an analysis should be replaced by the

standard of the “best interpretation of the will and preferences” of the person. 214 The

Committee has not developed a protocol or further guidance for the application of this

approach in concrete cases. It should be stressed, however, that “best interpretation” operates

as part of the standard that requires respect for legal capacity, and “significant efforts” include

all possible accommodations and supports and an acceptance of diverse methods of

communication. Best interpretations must be made in good faith and must be subject to being

negated by a contrary expression of will and preferences by the person concerned.

97. On this issue, the former Special Rapporteur on the right to health, Anand Grover, considered

that only in a life-threatening emergency in which there was no disagreement regarding

“absence of legal capacity” could a health-care provider proceed without informed consent to

212 CRPD/C/SLV/CO/1, para. 32.213 CRPD/C/GC/1, paras. 18 and 42.214 CRPD/C/GC/1, para. 21.

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perform a life-saving procedure.215 The Special Rapporteur on Torture, Juan Méndez, has

adhered to this criterion in his report on torture and ill-treatment in health-care settings.216

98. In particular, the Committee has recommended the abolition of the forced psychiatric

hospitalization and treatment of children, who are not considered to have the same legal

capacity as adults, and it has urged that they should be provided with counselling and support

to enable them to express their views.217

215 A/64/272, para. 12.216 A/HRC/22/53, para. 66.217 CRPD/C/DNK/CO/1, para. 21.

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