B Explanatory memorandum
by Mr Stefan Schennach, rapporteur
1 Introduction
1. The 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), persons of “unsound mind, alcoholics or drug addicts
or vagrants” can be lawfully detained. These persons have been referred
to as “socially maladjusted”
Note by the European Court
of Human Rights (“the Court”).
Note As
such the 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
language itself is also considered discriminatory and stigmatising
in the human rights community.
2. On 17 March 2022, the Committee on Social Affairs, Health
and Sustainable Development tabled a motion for a recommendation
on “Detention of the ‘socially maladjusted’”.
Note The motion
points out that “[t]he wording of the Convention, reportedly stemming
from the eugenics movement, suggests that the right to liberty is
not shared equally by [these] persons”. Referring to the worldwide
paradigm shift to a human rights-based approach on the issue, the
Parliamentary Assembly has already unanimously called for an end
to coercion in mental health. In this regard, there is still a lot
of work left to do for the Council of Europe and its member States.
3. At its meeting on 22 May 2023, the committee considered an
introductory memorandum and held a public hearing with the participation
of:
- Mr Marius Turda, Professor
of 20th Century Central and Eastern European Biomedicine, Oxford Brookes
University, United Kingdom,
- Ms Boglárka Benko, Registry of the European Court of Human
Rights, Council of Europe,
- Mr Thomas Kattau, Deputy Executive Director, Pompidou
Group (Council of Europe International Co-operation Group on Drugs
and Addictions),
- Ms Laura Marchetti, Policy Manager, Mental Health Europe,
Brussels.
4. The minutes of the hearing have been declassified and are
available on the committee’s webpage.
Note
5. I carried out a fact-finding visit to Portugal – a good practice
example – on 20-22 November 2023, visiting the European Monitoring
Centre for Drugs and Drug Addiction (EMCDDA, now European Union
Drugs Agency (EUDA)), the Santa Casa da Misericórdia de Lisboa,
the General-Directorate for Intervention on Addictive Behaviours
and Dependencies (SICAD), meeting parliamentarians active on the
health committee and members of the delegation to the Assembly,
two NGOs (Associação Ares do Pinhal and Comunidade Vida e Paz),
and visiting a drug consumption room run by the former. My sincere
thanks go to all my interlocutors, and to the Secretariat of the
Portuguese delegation to the Assembly and the EUDA who organised
my visit so well.
6. This report looks at how developing and promoting alternatives
to the detention of “socially maladjusted” persons could help the
Council of Europe and its member States to move with the times and
away from the discriminatory concept of excluding certain groups
from human rights protection. The report draws on multiple sources
in addition to information collected during the hearing and the
fact-finding visit, particularly on the work of the NGOs European
Disability Forum (EDF) and Mental Health Europe, which underline
the importance of abolishing the possibility for the detention of
persons with psychosocial disabilities or struggling with mental health
issues. On this basis, the report formulates recommendations to
the Committee of Ministers on how to change the terminology in Article
5 (1) (e) of the Convention, but also to member States on other
necessary steps for the full enjoyment of the right to liberty by
the groups referred to in Article 5 (1) (e).
2 The historical background
7. The initial draft of the European
Convention on Human Rights did not contain a reference to “socially maladjusted”
persons – indeed, the Assembly, in 1949, had recommended a text
closer to the Universal Declaration of Human Rights. In the drafting
process of the Convention, however, the Swedish and the United Kingdom
representatives proposed for the first time the introduction of
the restriction on the rights of “socially maladjusted” persons
into Article 5 of what would become the European Convention on Human
Rights, inspired by an amendment presented by Australia, Denmark,
France, Lebanon, and the United Kingdom to Article 9 of the draft
International Covenant on Human Rights in 1949.
Note
8. The terminology dates back to the eugenics movements stemming
from the late 19th century. The eugenics concepts originating in
the United Kingdom aimed to improve the genetic quality of a human population
by excluding groups that were deemed inferior. This also entailed
the coerced sterilisation of persons with low income or disabilities,
Note and
social control of the “inferior”.
Note
9. As Professor Turda pointed out during the hearing, eugenicists
argued that society needed to be protected from the growing numbers
of those labelled “unfit”, “maladjusted”, “unsound of mind”, “feebleminded”,
“dysgenic” and “sub-normal” due to their physical and mental disabilities.
Moreover, they believed it was appropriate to control the reproduction
of persons of “unsound mind”, thus sterilisation and marriage laws
were consequently introduced in many countries, including in some
US States, Switzerland, and Denmark.
Note
10. Even after the Second World War, the eugenic movement re-planted
itself and continued to attract political and scientific support
for its proposals. The notion of “unsound mind” was re-scripted
into the concept of “maladjustment” in the post-war years, and then
applied more broadly to justify and advance inequitable social relations
across a range of social identities. The link between mental disability
and social unfitness remained unchallenged. The concept of “unsound
mind” has historically played a significant role in shaping eugenic
thinking and practice. It was deployed in a variety of ways to stigmatise
and dehumanise individuals and to advance discriminatory practices
and marginalisation of individuals, including those with learning disabilities.
Note
11. I agree with Professor Turda that it is highly problematic
that this eugenic mindset is reflected in the current version of
the European Convention on Human Rights, more than 70 years after
its drafting. The thinking as well as the terminology are outdated,
and not in accordance with current human rights law standards. The
time has come to confront the lingering adherence to eugenics after
the Second World War.
12. Today, 33 countries in the world still refer to “socially
maladjusted” persons in their constitutions. 30 of these countries
are former British colonies and their constitution has been influenced
by the outdated British eugenics movement and thinking. The other
three countries are Singapore, Armenia, and Estonia. The latter two
countries use the same formulation as the Convention.
Note
3 The
case law of the European Court of Human Rights
13. The European Court of Human
Rights has justified the use of Article 5 (1) (e) of the Convention
for the detention of “socially maladjusted” persons
Note several
times in its case law on the basis that “they have to be considered
as occasionally dangerous for public safety [or] that their own
interests may necessitate their detention”.
Note The
Court emphasises the supposed dual function of Article 5 (1) (e)
of the Convention: “on the one hand, the social function of protection,
and on the other hand, a therapeutic function”.
Note
14. As was pointed out during the hearing, the UN 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. This interpretation provided by the UN is
very seldom applied in the context of the Court. The case law of
the Court allows the deprivation of liberty of persons with mental
disabilities both in the civil law context (such as forced hospitalisation
and commitment to social care facilities) and in the criminal law
context.
Note
15. The underlying approach of the Court is nevertheless that
the right to liberty is such an important element of self-determination,
and that the deprivation of liberty is such a serious measure that
it has to be restricted to the strict minimum (
Alajos Kiss v. Hungary) and is only
to be resorted to if less severe measures were not possible (
Karamanof v. Greece).Note The
Court verifies that national courts have assessed and scrutinised
the pertinent issues thoroughly
Note and amongst others, it must be reliably
shown that the person is of “unsound mind”.
Note
16. In order to establish whether detention of a person of “unsound
mind” is lawful, the Court bases the assessment on three cornerstone
criteria developed in the case of
Winterverp
v. the Netherlands. First, the person has to be reliably
shown to be of “unsound mind” based on objective medical expertise.
Second, the individual’s mental disorder has to be of a kind that
warrants compulsory confinement. Third, the mental disorder has
to persist throughout the period of detention. From there, the Court
gradually developed additional criteria. In
Litwa
v. Poland, the Court held that the deprivation of liberty
had to be the last resort. This requires that one has to consider
other treatments that a person could benefit from (such as outpatient
care and care in the community) so that recourse to deprivation
of liberty is unnecessary. The second additional element is the
question of placement in an appropriate institution, developed in
the case of
Rooman v. Belgium.
The Court held that detention must hold therapeutic purpose for
it to be lawful. The third element is that national legislation has
to ensure procedural safeguards and contain guarantees against arbitrariness,
as held in the case of
Shtukaturov v.
Russia.
Note
17. The original purpose of allowing for the deprivation of liberty
of persons of “unsound mind” was to protect society. Later, the
Court moved over to an understanding that Article 5 should also
be used to protect the person from him - or herself. In the case
of
Stanev v. Bulgaria, the
Court found that the protection of the welfare of the person could
justify his detention. The Grand Chamber held that the need for
social protection and the need for housing itself were not sufficient
grounds to deprive a person of their liberty, but on the other hand, the
fact that someone had been unable to take care of themselves, could
be a justification to deprive that person of their liberty. In the
case of
Plesó v. Hungary,
the Court said that a balance must be struck between the interest
of society and the interest of the person to their right to self-determination.
Note
18. Regarding “alcoholics”, the Court decided on a very wide definition.
Detention is permitted in order to prevent alcohol abuse and to
prevent dangerous conduct by persons following the consumption of
drink.
Note The person
does not need to be someone in a clinical state of alcoholism.
Note
19. The term “drug addicts” was, however, never defined by the
Court, as it has not been necessary so far.
Note However,
it is important to mention that, as stated by the Pompidou Group
(Council of Europe International Co-operation Group on Drugs and
Addictions), persons with drug use disorders have to be considered
as having a health disorder and need to be treated in full compliance
with human rights standards and health care standards.
Note
20. As was pointed out during the hearing, the Pompidou Group
has highlighted for many years at the political level that the concept
of “drug addicts” and the wording has evolved over time
Note and is outdated. The prevailing
view in this field of research, amongst practitioners, and also
increasingly in the legal sphere of the Council of Europe member
States, is that it is also seen as discriminatory and stigmatising.
Note
21. Even though, to date, the Court has not rendered any judgment
on “drug users” – which may or may not indicate that the conditions
to be met for a deprivation of liberty to be decided in such cases
are very strict
Note – many
people who use drugs are worried about being institutionalised.
There is very little guidance to first responders, who are aware
of the fact that they have the duty to protect. The tension lies
in the fact that the person has the right to liberty, but first
responders have a legal obligation to protect life. The consequence
is that a person in distress or in need of medical assistance sometimes
shies away from seeking help, so as not to be locked up or be subjected
to coercive measures.
Note
22. Finally, the term “vagrant” is of an archaic nature. Therefore,
although the Court gives it a narrow interpretation, such wording
should no longer be used.
4 The
worldwide paradigm shift to a human rights-based approach
4.1 As
regards mental health conditions and psychosocial disabilities
23. The fact that the detention
of “socially maladjusted” persons is not in line with the modern
understanding of human rights law can be seen on an international
as well as a national scale. On the international level, the UN
Convention on the Rights of Persons with Disabilities (CRPD), ratified
by 45 member States of the Council of Europe,
Note is
of special importance as regards current human rights standards.
It reflects the paradigm shift to a human rights-based approach
to disability, moving from a biomedical approach to a psychosocial
model of disability.
24. In this connection, it is worth citing paragraphs 24 to 26
of the 2022 report of our former colleague Ms Reina de Bruijn-Wezeman
(Netherlands, ALDE) entitled “Deinstitionalisation of persons with
disabilities”
Note:
- The most developed articulation
for the right to live in the community of persons with disabilities
is found in the UN Convention on the Rights of Persons with Disabilities.
As laid down in Article 19, persons with disabilities, without exception,
have the right to live independently and receive appropriate community-based
services. This applies no matter how intensive the support needs.
An important aspect of quality service provision is that persons
with disabilities should be supported within their community.
- The overarching objective of
Article 19 is full inclusion and participation in society. Its three
key elements are: choice (sub-paragraph a); individualised supports
that promote inclusion and prevent isolation (sub-paragraph b);
and making services for the general public accessible to persons
with disabilities (sub-paragraph c).
- Article 19 is closely connected
to provisions in other human rights treaties, including the International Covenant
on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights and the Convention on the Rights of the
Child. The right to live independently and to be included in the
community is also recognised in regional instruments such as the
Council of Europe European Social Charter (ETS No. 35) and has strong
connections to the right to liberty and security and the right to
a private and family life as laid down in the European Convention
on Human Rights (ETS No. 5).
25. Article 4 of the CRPD requires that “States Parties undertake
to ensure and promote the full realization of all human rights and
fundamental freedoms for all persons with disabilities without discrimination
of any kind on the basis of disability”. Moreover, Article 14 of
the CRPD stresses the obligation of States Parties to ensure that
if persons with disabilities are deprived of their liberty, the
process happens on an equal basis with others. However, Article
5 (1) (e) of the Convention as it stands today, is not in line with
this obligation.
26. At the hearing, Ms Marchetti of Mental Health Europe spoke
about the human rights dimension of the detention of persons with
psychosocial disabilities. She noted that this was the term they
preferred to use, as the wording in Article 5 (1) was stigmatising.
There had been a paradigm shift of the biomedical approach towards
persons with psychosocial disabilities and mental health. The focus
used to be on individual characteristics which were the result of
a mental health condition, on the impairment and on what a person could
and could not do. People with psychosocial disabilities and mental
health problems were often considered to be inferior, inadequate
or even dangerous for society. Policies and laws legitimised exclusion and
deprivation of liberty – at best some minimal level of care was
provided, including by coercion.
Note
27. Following the civil and human rights movements in the second
half of the last century, the biomedical approach was increasingly
criticised. The psychosocial approach to disability posits that
the problems and exclusion that persons with psychosocial disability
and mental health problems face are not caused by their mental impairments,
but rather by the way society is organised and the topic is understood.
This model also draws attention to the fact that human experiences
are varied and there are a series of determinants that impact an
individual’s life. Societal structures and practices as well as
socio-economic and environmental determinants are seen as bigger
influences than an individual’s mental impairment. These factors
are shown to disable people from taking part in everyday life. Ms Marchetti
noted that these were barriers that needed to be removed and that
they were the responsibility of society as a whole.
Note
28. The new World Health Organization (WHO) definition recognises
mental health as a basic human right and an integral component of
health.
Note Mental health is described as a state
of mental well-being that enables people to cope with the stresses
of life and realise their abilities. This approach has led to the
closure of certain mental health institutions (such as “lunatic
asylums”) and efforts have been made to replace coercion and forced
treatments with support that is more human rights-compliant and
respectful of a person’s dignity.
Note
29. In October 2023, WHO and the Office of the United Nations
High Commissioner for Human Rights (OHCHR) published comprehensive
guidance on “Mental health, human rights and legislation”.
Note In it, the two organisations “envision
a world where everyone can lead healthy lives and have access to
affordable, high-quality mental health services that use a mental
health paradigm based on rights, centred around each person; and
where persons with mental health conditions and psychosocial disabilities
can fully engage in their own recovery and participate in all areas
of life. The Convention on the Rights of Persons with Disabilities
is a crucial instrument in this regard, calling for a shift away
from substituted decision-making and coercion, towards equality
and non-discrimination, supported decision-making, free and informed
consent, effective and meaningful participation, and community inclusion”.
Note They
understand their publication as a “call to action to realize such
a vision. It offers a blueprint for laws that promote human rights
in mental health, supports legal and attitudinal change, and encourages
reforms that protect the rights of all persons interacting with
mental health systems. It proposes steps towards establishing mental
health services that are respectful of human dignity and comply
with international human rights norms and standards”.
Note
30. The Council of Europe’s Disability Strategy 2017-2023 carried
out by the Council of Europe, its member States and other stakeholders
both at national and local levels was aimed at guiding and supporting
the work and activities targeted at implementing the CRPD. The strategy
was based on five priority areas: equality and non-discrimination,
awareness raising, accessibility, equal recognition before the law,
and freedom from exploitation, violence, and abuse.
Note I
regret that the Council of Europe no longer has a department on
Disability which could develop a new strategy for the coming years
and thus could help make the vision of WHO and the OHCHR a reality.
However, as national parliamentarians, we can and should do so:
the guidance of the two organisations includes extensive recommendations
on how national legislation can be reformed, and what the new laws
can say.
31. In this context, we should recall the Assembly’s
Resolution 2431 (2022)Note “Deinstitutionalisation
of persons with disabilities”. The resolution stresses that all
human beings are born free and equal in dignity and rights, which
also includes the right to liberty. It recommends amongst others
that the Council of Europe member States develop human rights-compliant
strategies for deinstitutionalisation and repeal legislation contrary
to these principles.
33. The human-rights centred approach is also noticeable on a
national level, as States are changing their existing laws to align
with current human rights standards, such as the CRPD. This includes
the creation of justice systems that are universal and do not create
separate proceedings or outcomes on the basis of disability; efforts
to include persons with disabilities by providing adequate and accessible
support, to address and remove barriers that persons with psychosocial
disabilities face, and to involve persons with disabilities and
organisations that represent them in the design, implementation
and monitoring of policies and legislations.
Note
34. Whether at local or national level, new initiatives, policies
and laws are putting an end to the coercion of persons with disabilities.
Amongst others, Italy has passed a law which ordered the closure
of the psychiatric hospitals at national level in the framework
of their deinstitutionalisation process. In Georgia, the 2015 amendment
of the Civil Code entailed a reform of legal capacity provisions;
plenary guardianship has been abolished while supported decision
making has been established.
Note
35. However, more can still be done, as Ms Marchetti pointed out
during the hearing: “when putting measures in place to include persons
with mental health illnesses in society, it is important to understand
the purpose. If the purpose is for the person to be included in
society, then measures have to be built around this. It is important
to support decision making. Advance directives (such as “living
wills”) should also be taken into consideration. Patients should
be able to choose beforehand, when they have a lucid episode, how
to be treated in case their condition deteriorates.”
36. Speaking of the process of deinstitutionalisation, Ms Marchetti
regretted that many countries had unsuccessful stories in this regard.
The complexity of the topic was that measures put in place had to
be followed by sufficient budget allocation for outpatient and community
care – and this was often lacking. Willingness within the system
was also necessary to co-operate and provide a continuum of care.
Sometimes professionals in hospitals were disillusioned about what
to do with people with mental health illnesses. There were thus
many measures that could be put in place, but it required political
will and adequate funding.
37. I agree with Ms Marchetti that forced hospitalisation is a
human rights violation which can amount to life imprisonment although
the person concerned has not engaged in any criminal activity. “Socially
maladjusted” persons within the meaning of the Convention have in
common that they could pose a risk of danger from the perspective
of medical or judicial bodies, and national judicial bodies usually
leave it to medical personnel to assess that danger.
Note
38. Unlike the CRPD, the Convention does not contain a prohibition
of detention on the basis of mental impairment. Human rights protection
may thus be in danger of fragmentation, since the CPRD does not
contain an enforcement mechanism on par with the European Court
of Human Rights.
Note In my opinion, a revision of Article
5 (1) (e) of the Convention is necessary; either
de facto through more enlightened
case law, or
de jure through
the preparation of an additional (or amending) protocol to the Convention.
As long as the paradigm shift of the CPRD is not integrated into
the Council of Europe human rights system, Europeans with mental health
issues or psychosocial disabilities will continue to be at risk
of lawful detention – which may be “Convention-compliant”, but not
“human rights compliant”.
Note
4.2 As
regards persons who use drugs or alcohol
39. “Portugal is an example of
a country that [recently] decided not to put drug users in jail.
… Portugal’s ‘decriminalisation’ of drug use in 2001 falls within
the (UN) Convention parameters: drug possession is still prohibited,
but the sanctions fall under the administrative law, not the criminal
law.”
Note
40. During my fact-finding visit to Portugal in November 2023,
I had the honour and pleasure of meeting with the Director of SICAD,
the Portuguese Ministry of Health’s General-Directorate for Intervention
on Addictive Behaviours and Dependencies,
Note Mr João
Goulão. The directorate’s mission is to work towards the reduction of
addictive behaviours: alcohol, drugs (both legal and illegal), overuse
of screentime, gambling, etc., with a view to reducing harm and
promoting a healthier lifestyle. Prevention, treatment, harm reduction,
social reintegration and dissuasion are key, but the cornerstone
of Portugal’s success is the above-mentioned “decriminalisation”
of drug use more than 20 years ago.
41. The reason why Portugal was able to go ahead with this policy
while much of the world was still engaged in a “war on drugs” was
its specific historical circumstances, as Director Goulão pointed
out. During Portugal’s Salazar dictatorship (the longest in Western
Europe, 1933-1974), Portuguese society had been a very closed and
controlled society: there was no widespread drug use, no student
movement, no hippies. However, most young Portuguese men had served
as soldiers in Portugal’s colonies, and alcohol and cannabis use
was tolerated and sometimes even encouraged in the army. These young
men developed habits which were hard to shake. Following the democratic
revolution in 1974, the country opened up to the world, and many
young tourists came to visit, bringing hippie drug culture with
them. At the same time, over one million soldiers and settlers returned
to mainland Portugal during the decolonisation process, bringing
their alcohol and drug habits with them. Criminals quickly saw the
opportunities and introduced hitherto unknown substances, including heroin.
42. It was the perfect storm: drug use exploded in the naïve Portuguese
population, cutting across all social groups. It is estimated that
more than 1% of the population was using drugs in the early 1990s,
including more than 100 000 persons using heroin in a problematic
way; there were many overdose deaths, HIV/AIDS cases, and petty
crime became rampant. Since everyone knew someone who was grappling
with these problems, it quickly became a social and political priority
to help (rather than punish) these persons. Treatment and public health
programmes were developed under the aegis of the Ministry of Health
with the support of the Ministry of Social Affairs, and practically
no one was detained or sent to prison for drug use without being
offered the possibility of following a treatment process.
43. This public health-oriented approach was formulised via a
group of specialists in the late 1990s, following a big conference
in Lisbon on the legal response to drug use. The government nominated
that group to draw up a national strategy to tackle the drugs problems.
It was decided to attack the demand side by decriminalising drug
possession for personal use, by focusing on voluntary treatment
(1 600 beds in therapeutic communities), by creating the Commissions
for the Dissuasion of Drug Addictions to apply administrative sanctions
and guide users into the system. Opiate substitution therapy was
made widely available, the universal health system offering it free
of charge. The Commissions advocate for an integrated approach,
centred on health promotion and encouraging motivation to behaviour
change of persons referred by security forces or courts in the context of
an episode of possession or use of illicit psychoactive substances.
The commissions are local structures, composed of three members
appointed by the Ministries of Health and Justice, and advised by
multidisciplinary teams of legal experts, social workers and psychologists:
the focus is on help and dissuasion, not punishment. I was very
much impressed by the work of the NGOs integrated into this system:
from low-barrier emergency interventions, over treatment (including
therapeutic communities, as well as a mobile methadone clinic I
visited) to harm reduction (including a drug consumption room I
visited).
44. This “Portuguese way” has proven effective: since 1999 there
has been a clear drop in addictive behaviours, especially heroin
use and drug-induced deaths. However, addictive behaviours (in particular gambling
and screen use) in the 30-40-year-old age cohort are currently on
the rise, following the financial crisis, the pandemic, and the
current cost of living crisis.
45. Portugal has been recognised as a best practice example by
the UN since 2016. And so it should: involuntary measures such as
detention and forced treatment rarely work for persons who use drugs
or alcohol, since the root problem is often a health and/or social
one. As was pointed out by the representative of the Pompidou Group
during the hearing, a person who uses drugs or alcohol but is in
distress sometimes shies away from taking action and approaching
the authorities, so as not to be locked up or be subjected to coercive measures.
The Portuguese public health-oriented approach has proven its superiority
to the outdated approach of the Convention when it comes to effectiveness
as well as with regard to upholding the human rights and dignity
of persons who use alcohol or drugs.
4.3 As
regards persons without a fixed abode
46. The United Kingdom itself,
where the eugenic movement originated, demonstrated the change to
a human rights-based approach by repealing the Vagrancy Act 1824
and relating legal provisions in 2022, because of their outdated
character of “social control” related to the eugenics movement.
5 Conclusions
and recommendations
47. I strongly believe that there
is no justification for treating certain groups differently on the
basis of mental impairment, drug or alcohol use, or not having a
fixed abode, and for taking away a human right from them, as all
humans are equally entitled to the full enjoyment of their fundamental
human rights. The idea of social control is not compatible with
our 21st century understanding of human
rights.
48. Unlike the Convention on the Rights of Persons with Disabilities,
the European Convention on Human Rights does not contain a prohibition
of detention on the basis of mental impairment. Human rights protection may
thus be in danger of fragmentation, since the CRPD does not contain
an enforcement mechanism on par with the European Court of Human
Rights. Instead of enumerating and legitimising limitations on the
rights of people who belong to the group of persons listed in the
Convention’s Article 5 (1) (e), those of “unsound mind, alcoholics
or drug addicts or vagrants”, the Court could clarify the safeguards
that apply in the context of persons belonging to these groups by
foregrounding positive obligations towards them.
Note After all, the Convention is a living
instrument, and – as NGO activist and expert by experience Hege
Orefellen has pointed out – should align with developing international
human rights standards: “It will require a fundamental change of
approach in these cases, but the Court can achieve this and has
done so before. The Court has consistently underscored that the
Convention is to be interpreted in light of societal development,
which means that the Court throughout time has changed and adjusted
its practice in various areas of law”.
Note
49. Furthermore, the terminology used in Article 5 (1) (e) has
to be looked at from a critical point of view. The article contains
very wide and undefined concepts such as of “persons of unsound
mind”. The Court has not provided a “definitive interpretation”
Note of this concept, but it rather left
a margin of discretion to national authorities in deciding if a
person is of an “unsound mind”.
Note Furthermore,
this wording – as well as that of “alcoholics or drug addicts or
vagrants” – is considered discriminatory and stigmatising in the
human rights community.
50. The full enjoyment of human rights is closely linked to mental
health and vice versa. Poor mental health is a predisposing factor
for poor physical health and a much-reduced life expectancy. However,
most often the only support available is in psychiatric institutions
which are associated with gross human rights violations such as
degrading treatment and abuse.
Note
51. Article 5 (1) (e) of the Convention supports this cycle by
allowing the detention of people of “unsound mind” and discriminating
against them on the grounds of their mental health issues. In addition,
the unclear definition of the Court creates a risk of abuse of deprivation
of liberty by member States. Indeed, the Assembly has taken a stance
three times already against involuntary measures (detention and
forced treatment) in psychiatry,
Note as
have successive Council of Europe Commissioners for Human Rights
and the relevant UN treaty bodies and human rights mechanisms.
52. The public health-oriented approach in use in Portugal for
more than 20 years for persons with addictive behaviours (including
persons who use drugs) has proven both its effectiveness and its
moral superiority over the “war on drugs”. Detention and coercive
treatment of persons who use drugs simply does not work, as well as
being a deprivation of these persons’ rights to liberty. Even if
Article 5 (1) (e) is rarely – if ever – invoked to justify their
detention (or that of persons without a fixed abode) before the
Court these days, it is high time that this possibility is eliminated.
53. In conclusion, I cannot underline enough 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 should thus recommend that
the Committee of Ministers:
- consider
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;
- support 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,
WHO), NGOs and organisations of persons with lived experience, inter alia:
- in removing discriminatory limitations on the full enjoyment
of the right to liberty of the groups referred to from their constitutions
(Armenia, Estonia), their legislation and their policies (most member
States);
- in
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;
- in running public awareness-raising campaigns, in order
to overcome stereotypes and prejudices 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;
- call 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).
54. I have been representing the Assembly in many of the meetings
of the Steering Committee for Human Rights in the fields of Biomedicine
and Health (CDBIO, formerly DH-BIO) as concerns their work on voluntary and
involuntary measures in mental healthcare services. CDBIO is currently
wrapping up a draft recommendation for the Committee of Ministers
containing guidance to member States promoting voluntary measures
in mental healthcare services. This draft recommendation is being
prepared closely with the relevant NGOs, and it looks like the final
text will be one that the Assembly can welcome.
55. However, the CDBIO is militating for a joint adoption of this
draft recommendation by the Committee of Ministers with 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. Yet, the
latter text continues to be widely opposed due to its incompatibility
with the CRPD, its incapacity to protect persons with mental health
conditions or psychosocial disabilities from violations of their
human rights, and the fact that it would make the transition to
a human rights-based approach in mental healthcare services more difficult.
The Assembly should thus make a recommendation to the Committee
of Ministers to ensure that any Council of Europe guidance is fully
in line with the CRPD, the guidance of the UN and its agencies and
the widely accepted best practice.
