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
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.
1
1
posed to – existing law by the non-discriminatory approach to the deprivation of liberty, in
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
2
CCPR/C/GC/35, para. 3.
Ibid.
4
Ibid., para. 2.
5
A/HRC/22/29, paras. 17-22.
3
2
ICCPR provides that no one shall be subjected to arbitrary arrest, detention or exile. The
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
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”.
3
institutionalization. Such practices also include additional restrictions when the person is
detained, such as non-consensual psychiatric intervention, including the forced or coerced
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.
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.
4
C. Article 14 of the CRPD
C.1. Article 14(1)
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
9
CCPR/C/GC/35, para. 44.
CCPR/C/GC/35, para. 12; A/HRC/22/44, para. 38.
11
CCPR/C/GC/35, para. 11.
10
5
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
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 misinterpretation 16 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
12
See Note 1.
See ACHPR, Guidelines on Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa (2014),
Guideline 33(a)(ii).
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.
13
6
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
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
20
Originally, the provision was in Article 10(2)(c)(ii) of the draft.
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.
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;
21
7
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
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 impairmentneutral 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 shortand 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
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.
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.
8
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. Socalled “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
32
CRPD/C/PRY/CO/1, para. 36.
A/HRC/28/37, para. 20.
34
A/HRC/28/37, para. 20.
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.
33
9
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.
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
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.
10
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-neutral 43
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
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
42
Ibid.
A/HRC/10/48, para. 49.
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;
43
11
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
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
interventions 52 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
47
See 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.
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.
12
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
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. 64 While 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
57
Ibid., para. 38. See also Guideline 20, para. 103.
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).
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).
58
13
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
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
67
ECHR, Winterwerp v. the Netherlands, para. 39, interpreting Article 5(1)(e) of the European Convention on
Human Rights.
68
ICCPR, Article 9.
14
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
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
69
A/HRC/22/44, para. 57.
CCPR/C/GC/35, para. 13.
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).
70
15
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
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).
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).
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.
16
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
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
77
CRPD/C/GC/2, para. 26.
CRPD/C/UKR/CO/1, para. 30.
79
CRPD/C/BRA/CO/1, para. 30.
80
CRPD/C/AZE/CO/1, paras. 30-31.
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.
78
17
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
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
86
Ibid.
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).
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".
87
18
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 communitybased 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
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
96
Former Rule 82.
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.
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).
97
19
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
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
101
See supra, Note 30, para. 41.
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).
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;
102
20
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
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
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.
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).
21
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.
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
22
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
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
115
CRPD/C/PER/CO/1, para. 31.
CRPD/C/KOR/CO/1, para. 26 (emphasis added).
117
See para. 16, supra.
118
WGAD, Basic Principles and Guidelines, para 107(e).
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.
116
23
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 illtreatment 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
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.
124
CRPD/C/DEU/CO/1, para. 30(b).
CRPD/C/CZE/CO/1, para. 33.
126
CRPD/C/DEU/CO/1, para 33(c).
127
CRPD/C/AZE/CO/1, para. 31
128
A/63/175, para. 75.
129
CCPR/C/GC/35, para. 8.
125
24
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
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
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.
132
Ibid.
133
Ibid.
25
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.
65. On the contrary, the CRPD Committee – in several concluding observations 140 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
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.
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.
26
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
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
143
CRPD/C/AUS/CO/1, para. 31, under Article 14.
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);
153
CRPD/C/GC/1, para. 38.
144
27
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
Guidelines 156 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
defendant acts contrary to a substantive rule of law but for justified reasons, such as selfdefence 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
154
CRPD/C/GC/1, para. 39.
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.
155
28
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.
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
159
Ibid. pp. 159-175.
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).
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".
160
29
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
enjoy the same guarantees and conditions as those applicable to any other person involved in
criminal proceedings.165
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/n3N1Abril1998/031Juridica04.pdf>
165
See e.g. CRPD/C/TKM/CO/1, para. 30(b); CRPD/C/DEU/CO/1, 32(a) and (b).
164
30
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
a mental or intellectual impairment.174 OHCHR has proposed the application of disability-
166
CRPD/C/MEX/CO/1, para. 27; CRPD/C/ECU/CO/1, para. 28 (see Spanish version).
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.
174
A/HRC/10/48, para. 47.
167
31
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.
175
A/HRC/10/48, para. 47.
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).
176
32
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 system 183 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.” 188 It 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).
33
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
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.
34
disability. Furthermore, in cases where criminal responsibility is confirmed, the Committee
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 communitybased 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
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.
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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
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
203
A/64/272, para. 69.
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.
204
36
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
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
212
CRPD/C/SLV/CO/1, para. 32.
CRPD/C/GC/1, paras. 18 and 42.
214
CRPD/C/GC/1, para. 21.
213
37
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 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.
A/HRC/22/53, para. 66.
217
CRPD/C/DNK/CO/1, para. 21.
216
38