In the European Court of Human Rights

(Application No. 31974/11)

KOROVINY APPLICANTS

Against

RUSSIARESPONDENT

Written Comments Submitted Jointly

by

European Network of (ex-)Users and Survivors of Psychiatry

European Disability Forum

World Network of Users and Survivors of Psychiatry

International Disability Alliance

18 March 2013

European Disability Forum
square de Meeûs 35
B-1000 Brussels
Belgium
+32 2 282 4602

Yannis Vardakastanis
President
An-Sofie Leenknecht
Human Rights / European Network of Users and Survivors of Psychiatry
Vesterbrogade 103, 1.sal, 1620
Copenhagen V, Denmark
+45 33261623

Erik Olsen
Chair
Debra Shulkes
Project Officer

International Disability Alliance
150 Route de Ferney
CH-1211 Geneva 2
Switzerland
+41 22 788 4273

Yannis Vardakastanis
Chair
Victoria Lee
Human Rights Officer
/ World Network of Users and Survivors of Psychiatry
Store Glasvej 49
5000 Odense C DENMARK
Tel +45 66 19 45 11

Moosa Salie
Chair

Tina Minkowitz
International Representative

Table of Contents

IIntroduction

IIRight to Legal Capacity & Equal Access to Justice

IIIRight to Liberty

IVRight to be Free from Forced Treatment as Freedom from Torture and Ill Treatment

VConclusion

VIAnnex I - Interest of Interveners

VIIAnnex II- Personal testimonies of users/survivors of forced psychiatry

VIIIAnnex III – Special Rapporteur on Torture

I. Introduction

  1. These written comments are jointly submitted by the World Network of Users and Survivors of Psychiatry (WNUSP), the European Disability Forum (EDF), the European Network of (ex-)Users and Survivors of Psychiatry (ENUSP, a member of the first two organisations), and the International Disability Alliance (IDA) pursuant to leave granted by the President of the First Section in accordance with Rule 44(3)(a) of the Rules of Court.[1]
  1. The purpose of this brief is to set forth the latest standards of international law as articulated in the Convention on the Rights of Persons with Disabilities with regard to legal capacity, access to justice, the right to liberty and security of the person, the right to be free from torture and ill-treatment and,in relation to the latter, the right to free and informed consent in health care. In particular, these comments address the following points:
  • Persons with disabilities must be recognized as having the legal capacity to participate in legal proceedings, and must be provided with accommodation and support to do so.
  • Deprivation of liberty in any type of psychiatric institution on grounds of mental illness or disorder, including its use as a security measure for individuals who have been accused or convicted of a crime, violates the right of persons with disabilities to enjoy liberty and security of the person on an equal basis with others.
  • Forced psychiatric interventions, including the use of restraints or solitary confinement, institutionalization, and the forced or nonconsensual administration of psychiatric drugs, electroshock or psychosurgery, constitute torture and ill-treatment in international human rights law and must be banned by law.
  • These evolving norms should inform the Court in its application of Articles 3, 5, 6 and 8 of the European Convention on Human Rights, so as to afford the highest degree of human rights protection to persons with disabilities under its jurisdiction.
  1. The European Convention on Human Rights adopted in 1950, like all human rights instruments, has invited dynamic interpretation.[2] Issues and concerns which were not in contemplation at the time of adoption, have been read into the open textured language of the Convention, so that the commitments of the text stay in tune with the human quest for justice. Such dynamic interpretation is a useful way of achieving the seemingly opposed objectives of stability and change. An unchanging text is altered by interpretation to meet the needs of changing times.
  1. Universality has been acknowledged as an inextricable component of human rights, whether such rights find expression in national, regional or international instruments. Yet both feminist thought[3] and postmodern theory[4] have demonstrated that very often norms claimed to be universal only express the perspectives and concerns of the dominant majority. In order to make human rights instruments truly universal, it has been necessary to formulate constituency specific norms and then to use the specific norms to deepen the universal component of general human rights instruments. It is this desire to reach true universality that has caused conventions on women, children, migrants and persons with disabilities to be adopted by the United Nations.
  1. The European Convention on Human Rights (hereinafter “ECHR”) was formulated in the absence of persons with disabilities, including persons with psychosocial disabilities, and without any informed empathetic and non-paternalistic understanding of their views within political and legal discourse. The ECHR, thus, referred to disability conditions such as “unsoundness of mind” as a basis for excluding rights. It is therefore necessary for the inclusion of persons with disabilities in the ECHR that the interpretation of the articles of the Convention be informed by norms of disability rights. The United Nations Convention on the Rights of Persons with Disabilities (hereinafter “CRPD”) was adopted by the UN General Assembly in March 2007 and came into force from May 2008. This Convention was drafted with the active participation of persons with disabilities informed by the ethic of “nothing about us without us”.
  1. The CRPD is the most contemporary articulation of disability rights formulated with the active participation of people with disabilities to render human rights truly universal. It is therefore imperative that the interpretation of the ECHR be informed by the CRPD.There cannot be a European enunciation of disability human rights which is different and distinct from the international discourse, especially when the regional instrument has significant restrictive interpretations and exceptions and thereby contradicts the international one.The validity of this argument has been acknowledged by the European Court of Human Rights (hereinafter “the Court”) when in Glor v Switzerland,[5] the Court rightly turned to the CRPD in a disability case in order to get guidance on what constitutes discrimination based on disability. This was done even when the concerned country was not party to the CRPD.
  1. Further, Alajos Kiss v Hungary[6]required measures regarding groups which have been marginalised historically to be subject to stricter scrutiny; in these cases, the State has less discretion and is required to yield to human rights concerns.This marginalisation, the Court acknowledged, was especially experienced by persons with psychosocial disabilities[7].Insofar as discrimination is not just a historical fact but a contemporary reality, there is a need for continuous interrogation and weeding out of discriminatory provisions, practices and judgments. The CRPD, which empowers persons with disabilities, thus, becomes an indispensable frame of reference to highlight the human rights concerns of persons with psychosocial disabilities.
  1. When the Courthighlighted certain classifications as per se suspect in Alajos Kiss v Hungary,it did so to guard against “prejudice (which) may entail legislative stereotyping which prohibits … individualised evaluation of …capacities and needs”[8]. Insofar as such stereotyping is not restricted to legislation alone, the Alajos Kiss insight on prejudicial stereotyping would need also to be extended to judicial decisions. For example, inShtukaturov v Russia,[9]the Court adopted a functional approach to legal capacity, meaning by this that a person with a disability would not be denied legal capacity per se but only if he or she was unable to perform a particular legal function. Insofar as this question of functional competence is not raised against all persons but is only restricted to persons with disabilities, the Court inShtukaturov has constructed a judicial stereotype. In a series of cases including Herczegfalvy v Austria,[10] the Court subjected claims of torture and ill-treatment in the context of psychiatry to a standard of medical necessity, and found that forced psychiatric interventions, including the use of restraints and administration of psychiatric drugs against the person’s will, were justifiable. This too amounts to construction of a judicial stereotype, as persons with disabilities are denied protection against the infliction of severe pain and suffering that is motivated by the existence of a disability. For persons with disabilities to assert their human rights on an equal basis with others, it is essential that such judicial decisions are also reconsidered. A CRPD-informed jurisprudence would necessarily require this to happen.
  1. In interpreting and determining the scope of States’ obligations, the Court gives heed to the evolution of norms and principles in international law, including specialised international instruments. It is respectfully submitted that the CRPD should, thus, inform disability rights adjudication under the European Convention on Human Rights with due regard of the following:
  • The text of the CRPD in its plain and ordinary meaning;
  • The Concluding Observations and future General Comments of the Committee on the Rights of Persons with Disabilities (the treaty body established to undertake international monitoring under the CRPD) as well as also pronouncements of special rapporteurs appointed under the UN system; and
  • Academic writings from experiential[11] and subject experts.[12]

II. Legal Capacity

  1. Persons with disabilities must be recognized as having the legal capacity to participate in legal proceedings, and must be provided with accommodation and support to do so.

A. Right to exercise legal capacity

  1. Article 12 of the Convention on the Rights of Persons with Disabilities requires states to recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. It further requires states to provide access to the support that persons with disabilities may need in exercising their legal capacity. Support must respect the autonomy, will and preferences of the individual.[13]
  1. The exercise of legal capacity encompasses various acts of a legally binding character, including participation in legal proceedings as well as administration of financial affairs and making health care decisions.[14] The obligation of providing access to support that may be needed to exercise legal capacity applies to making decisions in the context of defending oneself in criminal or civil legal proceedings.
  1. Deprivation of legal capacity occurs when a person is declared legally incapacitated and assigned a guardian who will manage her or his affairs. It also occurs when a person is prevented from participating in acts of a legally binding character by virtue of a determination that she or he is unable to do so. The CRPD favors expansion rather than contraction of opportunities for persons with disabilities to participate in all spheres of life. Rather than disqualifying an individual from participation in decisions significant to her or his life, society must provide needed supports and accommodation. The exercise of autonomy and choice is an inherent human capability that cannot be negated, even when it may not be apparent to others. A person may not be able to navigate the world independently or the usual manner, but when met with the appropriate kind of support and accommodations can express her or his needs, desires, choices and preferences in simple and complex matters.[15]
  1. In light of these developments in international law, there is a need to re-examine questions of legal capacity. The Inter-American Committee for the Elimination of All Forms of Discrimination against Persons with Disabilities of the Organization of American States (OAS) did just this when it adopted in 2011 a resolution on the need to interpret a provision in the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities in the context of Article 12 of the CRPD.[16]The provision in question, which stated that a declaration of incompetence was not discrimination, was found to be contrary to the CRPD, which most states in the region had ratified. The Inter-American Committee resolved to seek conformity of the legal mandate with the more protective standards in the CRPD, and to urge States Parties to take concrete measures to apply the new paradigm inscribed in Article 12, by phasing out declarations of incompetence and fostering the development of supported decision-making.

B. Equal access to justice

  1. Article 13 of the CRPD further specifies what is required to facilitate the effective role of persons with disabilities as parties or witnesses in any legal proceeding. In particular, procedural and age-appropriate accommodations must be made to this end. Furthermore, states must ensure relevant training of police, prison staff and others involved in the administration of justice.
  1. Article 14.2 of the CRPD requires equal guarantees for persons with disabilities who are deprived of their liberty through any process. In addition, persons with disabilities who are deprived of their liberty through such processes are entitled to be treated in compliance with the objectives and principles of the CRPD, including by provision of reasonable accommodation.
  1. The requirement of “equal guarantees” encompasses all rights of criminal defendants and detainees such as those contained in ICCPR Articles 9, 10 and 14. Article 14 of the CRPD thus reinforces the rights of criminal defendants with disabilities to enjoy effective access to justice on an equal basis with others in determining their guilt or innocence of a crime, so that they do not suffer the consequences of being deprived of their liberty or good reputation without a conviction of guilt subject to all relevant guarantees of due process.

III. Liberty and security of the person

  1. Deprivation of liberty in any type of psychiatric institution on grounds of mental illness or disorder, including its use as a security measure for individuals who have been accused or convicted of a crime, violates the right of persons with disabilities to enjoy liberty and security of the person on an equal basis with others.

A. Disability-based detention prohibited

  1. Article 14.1(b) of the CRPD prohibits deprivation of liberty based on a disability. The Committee on the Rights of Persons with Disabilities has interpreted Article 14 to require states to repeal provisions authorizing institutionalization of persons with psychosocial disabilities without their free and informed consent, and to ensure that mental health services are based on the free and informed consent of the person concerned. As recently confirmed by the UN Special Rapporteur on Torture, disability-based detention cannot be justified by a motivation to protect the person or others, or by a motivation to ensure that the individual receives prescribed care and treatment.[17]
  1. The Special Rapporteur on Torture elaborated that:

“Deprivation of liberty on grounds of mental illness is unjustified. Under the European Convention on Human Rights, mental disorder must be of a certain severity in order to justify detention. [the Special Rapporteur on Torture] believes that the severity of the mental illness cannot justify detention nor can it be justified by a motivation to protect the safety of the person or of others. Furthermore, deprivation of liberty that is based on the grounds of a disability and that inflicts severe pain or suffering falls under the scope of the Convention against Torture”.[18]

  1. Psychiatric detention is based on discrimination, and as such it is also vague and arbitrary. The existence of a disability is always a threshold criterion, and detention is undeniably an action that is adverse to the individual’s rights and interests, making it an act of unequal adverse treatment. To the contention that psychiatric detention actually is for the person’s own good, the CRPD answers that individuals with psychosocial disabilities have the right to be recognized as having the legal capacity to determine for themselves what is in their own best interests. This is not a matter of turning away from an individual in distress or crisis, rather the CRPD demands a higher level of engagement with the person by offering support and accommodation in a manner that respects the person’s autonomy, choices, dignity and privacy.
  1. Nor is psychiatric detention justified by a motivation to protect others. People with psychosocial disabilities have the right to be treated the same as others when facing an allegation that they are threatening the safety of another individual.[19] Studies consistently find that the existence of a psychosocial disability is not closely associated with acts of violence towards others,[20] and that other factors, such as age and gender, are much more strongly predictive of violent behavior. The stereotypes linking violence to psychosocial disability need to be dismissed entirely, as the burden placed on this community, the vast majority of whom will never commit acts of violence, is simply too great to justify the maintenance of a system of preventive detention that might stop some individuals before the criminal law has an opportunity to step in. Any gaps in the criminal law or law enforcement need to be addressed by measures that fully respect individuals’ human rights, including the right to be free from discriminatory detention and free from profiling as a “potential criminal” based on impressionistic or statistical predictions.
  1. Psychiatric detention is problematic for additional reasons beyond being unfair and unequal. As a form of indefinite detention it causes fear and anxiety and creates a powerful incentive to please the detaining authority with the aim of gaining release, which can induce individuals to waive their rights, particularly the right to refuse treatment with unwanted and harmful interventions such as neuroleptics and other mind-altering drugs, electroshock and psychosurgery. In jurisdictions where community treatment orders exist, it is common for psychiatric institutions to insist on individuals agreeing to such an order, which will require them to undergo compulsory treatment and supervision while in the community, before considering discharge.
  1. The United Nations Special Rapporteur on Torture, as well as his immediate predecessor in the mandate, has recognized that involuntary commitment to psychiatric institutions can amount to torture and ill-treatment, due in part to the anxiety caused by indefinite detention, as well as the administration of nonconsensual treatments in the course of such detention.[21] The Special Rapporteur has rejected the concept of medical necessity as applied to forced psychiatric interventions, and has called for an absolute ban on such interventions, recognizing that they always constitute at least inhuman and degrading treatment if not torture.[22]
  1. This Court and other jurisdictions have applied safeguards to psychiatric detention such as requiring that it be based on a likelihood of harm to the person or to others, as well as review procedures. However, such safeguards have the effect of reinforcing the practice of psychiatric detention and giving it undeserved legitimacy. The CRPD takes an opposite approach of uprooting the practice and replacing it with supports that an individual may need to live according to his or her own choices in the general community, as well as supports for the individual’s healing and recovery that respect his or her autonomy, choices, dignity and privacy.

B. Disability-based detention prohibited from being imposed as a security measure