Ending the detention of “socially maladjusted” persons

1The right to liberty is one of the most fundamental human rights. It is guaranteed in Article 5 of the European Convention on Human Rights (ETS No. 5, “the Convention”). However, the Convention includes a limitation to the right to liberty specifically on the basis of mental impairment, drug or alcohol use, or not having a fixed abode. With the formulation in Article 5 (1) (e), reportedly stemming from the eugenics movement, “persons of unsound mind, alcoholics or drug addicts or vagrants” can be lawfully detained. These persons have been referred to as “socially maladjusted” by the European Court of Human Rights, an approach that is considered discriminatory and stigmatising in the human rights community.

2The Convention is the only international human rights treaty that excludes these groups from the full enjoyment of the right to liberty. This is problematic as detaining such vulnerable persons effectively puts them at higher risk of systematic rights violations, on the sole ground that they might hypothetically pose a danger to others or that their own interest may necessitate their detention. The initial draft of the Convention did not contain a reference to “socially maladjusted” persons – indeed, the Parliamentary Assembly, in 1949, had recommended a text closer to the Universal Declaration of Human Rights.

3In the last 70 years, there has been a worldwide paradigm shift to a human rights-based approach, as exemplified by the United Nations Convention on the Rights of Persons with Disabilities, ratified by all member States of the Council of Europe except Liechtenstein. The United Nations interpretation of the rights of persons with disabilities and the interpretation given by the Committee on the Rights of Persons with Disabilities do not allow for the deprivation of liberty based on an actual or perceived disability. The interpretation provided by the United Nations is, however, very seldom applied in the context of the European Court of Human Rights, since the formulation of Article 5 (1) (e) does not oblige it to.

4The idea of social control – whether of persons with psychosocial disabilities, of persons who use drugs or alcohol, or of persons without a fixed abode – is not compatible with our 21st century understanding of human rights. The Assembly underlines the urgent need for the Council of Europe, as the leading regional human rights organisation, to fully integrate the worldwide paradigm shift to a modern human rights-based approach in its work. The time has come to move away from the discriminatory concept of excluding certain groups from human rights protection. The Assembly thus recommends that the Committee of Ministers:

4.1consider drawing up an additional protocol to the European Convention on Human Rights, which removes “persons of unsound mind, alcoholics or drug addicts or vagrants” from the current formulation of Article 5 (1) (e) of the Convention, and thus guarantees the right to liberty to these persons;

4.2support member States in taking the necessary steps for the full enjoyment of the right to liberty by the groups referred to in Article 5 (1) (e) of the Convention, in co-operation with the European Union, the United Nations and its agencies (in particular, the World Health Organization), non-governmental organisations and organisations of persons with lived experience, inter alia:

4.2.1in removing discriminatory limitations on the full enjoyment of the right to liberty of the groups referred to from their constitutions, their legislation and their policies;

4.2.2in developing adequately funded, human rights-compliant strategies for deinstitutionalisation with clear time frames and benchmarks with a view to a genuine transition to independent living for persons with disabilities, mental health problems, and for persons who use drugs or alcohol;

4.2.3in running public awareness-raising campaigns, in order to overcome stereotypes and prejudice surrounding persons with disabilities, with mental health problems, persons who use drugs or alcohol or who do not have a fixed abode, and promote the full inclusion in society of these persons;

4.3call on the Council of Europe Development Bank, the World Bank and other social development funds such as the European Structural and Investment Funds to support member States to allocate adequate resources for support services that avoid the detention and/or institutionalisation of persons with disabilities, mental health problems, or persons who use drugs or alcohol – such as the strengthening, creating and maintaining of community-based services (including drug consumption rooms, therapeutic communities and supportive living arrangements);

4.4in line with the unanimously adopted Recommendation 2158 (2019) “Ending coercion in mental health: the need for a human rights-based approach” and with Recommendation 2227 (2022) “Deinstitutionalisation of persons with disabilities”, adopt guidance to member States promoting voluntary measures in mental healthcare services and pay due attention, in its further consideration of the draft additional protocol to the Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164, “Oviedo Convention”) concerning the protection of human rights and dignity of persons with regard to involuntary placement and involuntary treatment within mental healthcare services, to ensuring that any Council of Europe guidance is fully in line with the Convention on the Rights of Persons with Disabilities, the guidance of the United Nations and its agencies and the widely-accepted best practice.