Ending the detention of “socially maladjusted” persons
Reply to Recommendation
| Doc. 16084
| 16 December 2024
- Author(s):
- Committee of Ministers
- Origin
- Adopted at the 1515th meeting
of the Ministers’ Deputies (11 December 2024). 2025 - First part-session
- Reply to Recommendation
- : Recommendation 2275
(2024)
2. The Committee of Ministers agrees that the right to liberty
is a key fundamental human right and takes note of the Assembly’s
concerns regarding the limitation to this right provided under Article
5.1.e of the European Convention on Human Rights in respect of persons
of unsound mind, alcoholics or drug addicts or vagrants. It has
the following observations.
3. Regarding the suggestion that Article 5.1.e reportedly stemmed
from the eugenics movement, the Committee of Ministers recalls that
the Convention was drawn up as a response to the crimes of the Nazi regime
committed in the pursuit of so-called racial purity. It sees nothing
in the text of the Convention nor of its
travaux
préparatoires that could justify this claim. It notes
that
Recommendation 24
(1950), unanimously adopted by the then-Consultative Assembly,
expressed a favourable opinion on the final draft text of the Convention,
with no reservations on the provision in question. Further, the
Committee recalls that neither the initial draft of the Convention
nor the finally adopted text contain reference to “socially maladjusted
persons”. The expression “social control” is also not used in the
Convention nor by the Court in relation to Article 5.1.e.
4. As regards a worldwide paradigm shift to a human rights-based
approach that would not allow for deprivation of liberty based on
actual or perceived disability, the Committee of Ministers recalls
that a person could not be detained under Article 5.1.e of the Convention
on account of a disability, but rather because of a pressing need
to protect that individual or the wider public. It further recalls
that strong safeguards are provided in Articles 5.2 and 5.4 of the
Convention to prevent risk of human rights violations in respect
of deprivation of liberty, and Article 13 guarantees an effective
remedy in case of violation.
5. Regarding the Assembly’s recommendations in paragraph 4, the
Committee of Ministers recalls that under the Convention differential
treatment only amounts to discrimination in the absence of objective
and reasonable justification. In certain circumstances, deprivation
of liberty under Article 5.1.e may be a justified and appropriate
means of fulfilling the positive obligations of States, for example
under Article 2 of the Convention (right to life), by affording
general protection to society against potential violent acts of
an apparently mentally disturbed person, as well as protecting persons
suffering from mental health problems from self-harm.
6. Further, given that all Council of Europe member States currently
provide for involuntary placement in their national law, and in
light of findings of violations of human rights of those suffering
from mental health problems by the Court and the European Committee
for the Prevention of Torture (CPT), the Committee of Ministers
recalls that it entrusted the CDBIO with preparing a series of instruments
aimed at improving the protection and the autonomy of persons with
mental health problems, including a draft Additional Protocol to the
Convention on Human Rights and Biomedicine (the Oviedo Convention)
concerning the protection of human rights and dignity of persons
with regard to involuntary placement and involuntary treatment within mental
healthcare services, and an accompanying draft Recommendation on
promoting the use of voluntary measures in mental health care services.
The Committee of Ministers expects to examine these texts at the beginning
of 2025. It underlines the important participation and contribution
of INGOs in this work, which also took due account of relevant UN
legal instruments and specific works, in particular
WHO QualityRights.
7. As concerns public awareness-raising campaigns to overcome
stereotypes and prejudice, the Committee of Minsters assures the
Assembly that this element will be taken into account in its above-mentioned
draft Recommendation on promoting the use of voluntary measures
in mental healthcare services.
8. Finally, the Committee of Ministers draws attention to other
initiatives aimed at maximising individual autonomy and minimising
and potentially eliminating involuntary placement of those with
mental health problems, namely the CDBIO’s
Guide
to health literacy and Compendium of good practices to promote voluntary
measures in mental health services.
