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Cross Views / Regards croisés

The European Convention on Human Rights

A useful instrument for the protection of the rights of persons with disabilities?
La Convention européenne des droits de l’homme. Un instrument utile pour la protection des droits des personnes en situation de handicap?
Paul Lemmens
p. 39-68

Résumés

Cette contribution examine la pertinence de la Convention européenne des droits de l’homme pour les personnes en situation de handicap. Elle se penche sur les principes de la Convention tels que la dignité humaine, l’autonomie personnelle et l’égalité, qui sont particulièrement importants pour les personnes en situation de vulnérabilité. Le texte aborde ensuite les obligations négatives et positives de l’État à l’égard des personnes handicapées. En ce qui concerne les premières, le texte souligne la nécessité de procéder à des évaluations individualisées dans le cadre des processus décisionnels et de trouver un équilibre entre les droits des personnes et les intérêts de l’État. En ce qui concerne les secondes, l’État est également tenu d’évaluer les besoins réels des personnes handicapées. Il doit fournir une aide suffisante, tout en pouvant prendre en compte des considérations financières légitimes. La Convention européenne est ensuite examinée dans sa relation avec la Convention des Nations Unies relative aux droits des personnes handicapées. La Cour européenne des droits de l’homme s’efforce généralement d’interpréter la Convention européenne en harmonie avec les autres traités internationaux. Si la Convention des Nations Unies a ainsi influencé certains développements dans la jurisprudence de la Cour, il existe également des cas où la Cour a estimé que la Convention européenne n’offrait pas le même niveau de protection que la Convention des Nations Unies. La relation entre les deux conventions reste dynamique, ce qui laisse penser qu’avec le temps, davantage de principes de la Convention des Nations Unies pourraient devenir partie intégrante de l’interprétation de la Convention européenne.

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Notes de l’auteur

A caveat is in order here. Given the position formerly occupied by the author within the Court, this contribution will not test the Court’s case law against the critical positions in legal doctrine, nor systematically mount a defence in favour of that case law. Rather, the intention is to systematise the Court’s case law from the perspective of the rights of persons with disabilities and to open certain avenues for the future.

The author thanks the anonymous reviewers for their constructive comments and suggestions.

Texte intégral

I. Introduction

1The European Convention on Human Rights (hereafter: the Convention, or the European Convention) is a general human rights instrument, in the sense that it guarantees rights for “everyone.” It is not aimed at protecting specific categories of people.

  • 1 It is said, for instance, that the Convention does not satisfactorily embrace the “social model” of (...)

2The case law of the European Court of Human Rights (hereafter: the Court) shows that the Convention can offer protection for the rights of persons with disabilities. There is, however, a feeling within the “community” of persons with disabilities that the Court could have done more, that it sometimes failed to realise what was at stake for the applicant.1 There is also some criticism of the fact that the Court is not always prepared to interpret the Convention in a way that is compliant with the United Nations Convention on the Rights of Persons with Disabilities (hereafter: the CRPD).

3In this contribution, an attempt will be made to analyse the relevance of the Convention for the rights of persons with disabilities, as well as the relevance of the CRPD for the interpretation of the Convention. Is the Strasbourg mechanism of complaints, leading to binding judgments, a meaningful avenue for persons with disabilities? We will start with pointing to some general principles which have been identified by the Court as underlying the Convention and which are particularly relevant in this context. We then turn to a description of the case law of the Court with respect to the State interfering with the rights of persons with disabilities, on the one hand, and alleged failures by the State to take positive measures to protect these rights, on the other hand. After this analysis, we can look somewhat deeper into the relationship between the Convention and the CRPD, as it emerges from the Court’s judgments. As we will see, this is not a linear relationship: there are points on which the CRPD offers a wider protection than the Convention, but a further alignment of the Convention with the CRPD remains possible. The contribution ends with some concluding remarks, including on the Court’s position relating to the issue of institutionalisation versus de-institutionalisation.

II. Some fundamental principles underlying the European Convention

4Before discussing the Court’s case law on the rights of persons with disabilities, it is useful to recall a number of general principles underlying the Convention, which can explain why the Court gives special attention to persons who find themselves in a vulnerable position. Through its judgments, the Court has identified various general principles. Three of them deserve to be mentioned here, because of their obvious relevance for the situation of persons with disabilities: human dignity, personal autonomy, and equality and non-discrimination.

II.1. Human dignity

  • 2 See for the foundations of this case law, ECtHR, 22 November 1995, S.W. v. United Kingdom, no. 2016 (...)

5As the Court regularly holds, “the very essence of the Convention is respect for human dignity and human freedom.”2 Human dignity is an overarching principle.

  • 3 ECtHR [GC], 28 September 2015, Bouyid v. Belgium, no. 23380/09, § 101.
  • 4 ECtHR [GC], 9 July 2013, Vinter and Others v. United Kingdom, no. 66069/09 and others, § 113; ECtHR (...)

6While the notion of “human dignity” may be somewhat ambiguous, there are many examples in the Court’s case law where it has been applied, in some way or another. It is sufficient here to mention two examples. The first example is that of the Court holding that any use of physical force by a law-enforcement officer against an individual, where it is not made strictly necessary by the latter’s conduct, diminishes human dignity and as such strikes at the very essence of the Convention.3 The other example is that of the Court holding that it would be incompatible with human dignity to detain a person without offering him or her the possibility to strive towards rehabilitation and thus the chance to regain freedom at some future date.4

  • 5 ECtHR, 30 January 2018, Enver Şahin v. Türkiye, no. 23065/12, § 70.

7Human dignity also plays a role when it comes to assessing the situation of persons with disabilities. The Court holds that the ability of persons with disabilities “to live autonomously with a fully-developed sense of dignity and self-respect is of cardinal importance.”5 And persons deprived of their liberty, including persons with disabilities, should be treated with respect for their human dignity (see below, part III.2.2.2).

  • 6 See, in particular, Art. 3 CRPD: “The principles of the present Convention shall be: (a) Respect fo (...)

8It is this same principle of human dignity that also underlies the CRPD.6

II.2. Personal autonomy

  • 7 See, among many others, ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 61; ECtHR [GC], 17 (...)

9Another principle upon which the European Convention is based is personal autonomy. This principle is expressed in particular in Article 8 of the Convention, insofar as this provision guarantees the right to respect for private life.7

10While personal autonomy refers primarily to the position of the individual concerned, it is also concerned with the position of that individual within a social environment. Both aspects will be analysed in turn.

II.2.1. Self-determination

II.2.1.1. The freedom to make one’s own choices

  • 8 ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 62; ECtHR, 10 June 2010, Jehovah’s Witnesse (...)
  • 9 See ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 61. The right to self-determination is (...)

11Personal autonomy is in the first place about “the ability to conduct one’s life in a manner of one’s own choosing.”8 In that sense, it is about self-determination.9

  • 10 See Art. 3 CRPD: “The principles of the present Convention shall be: (a) […] individual autonomy in (...)

12The freedom to make one’s own choices is also a principle of the CRPD.10

13Not every aspect of personal autonomy is of such a nature that it is also covered by the notion of “private life.” Where the applicability of Article 8 depends, as here, on the effects that a measure or a situation has or may have on an individual’s private life, a threshold of severity must be established.

  • 11 ECtHR, 24 February 1998, Botta v. Italy, no. 21439/93, § 35.

14A famous illustration of the limits of the notion of “private life” in the area of the rights of persons with disabilities concerns a complaint about the Italian State’s alleged failure to remedy the inability for disabled people to have access to the privatised area of the beach and the sea in a popular seaside resort. The Court dismissed the complaint, holding that Article 8 of the Convention was not applicable. According to the Court, “the right asserted by [the applicant], namely the right to gain access to the beach and the sea at a place distant from his normal place of residence during his holidays, concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the applicant’s private life.”11

  • 12 ECtHR, dec. 14 May 2002, Zehnalová and Zehnal v. Czech Republic, no. 38621/97.
  • 13 ECtHR, dec. 25 June 2019, Glaisen v. Switzerland, no. 40477/13, §§ 49-50.

15For similar reasons, the Court held that Article 8 of the Convention was not applicable to issues relating to access of disabled persons to a large number of buildings and places, namely more than 150 “public buildings and buildings open to the public” in a given town.12 Nor was lack of access to one particular cinema held to be a private life issue, given that access was possible to certain other cinemas in the vicinity.13

  • 14 ECtHR, 31 May 2022, Arnar Helgi Lárusson v. Iceland, no. 23077/19, §§ 45-46.

16However, the Court nowadays seems to approach the issue differently. In a case concerning an alleged lack of access to two particular public cultural and social buildings, the Court acknowledged that these buildings appeared to play “an important role in local life,” and noted that the lack of access hindered the applicant in his cultural and social life. The Court further referred to the importance of accessibility for people with disabilities, as a precondition “to live independently and participate fully and equally in society.” It concluded that “the matter at issue was liable to affect the applicant’s right to personal development and right to establish and develop relationships with other human beings and the outside world,” and that as a consequence the matter fell “within the ambit” of private life.14 It would appear that this reasoning reveals a more concrete, context-specific approach when a person with a disability claims that something is important for his or her personal autonomy.

II.2.1.2. Forced medical treatment

  • 15 ECtHR, 2 October 2012, Plesó v. Hungary, no. 41242/08, § 66.
  • 16 See, e.g., ECtHR, 6 April 2017, A.P., Garçon and Nicot v. France, nos. 79885/12, 52471/13 and 52596 (...)

17Article 8, § 2, of the Convention allows for restrictions of the right to respect for private life. A specific type of restriction, which may be relevant for persons with disabilities, is the imposition of a medical treatment. Such a treatment is to be characterised as an interference with a person’s physical or mental integrity, and hence with his or her right to respect for private life. In this area, the principle is that the patient has a right to informed consent. In other words, a person has the right to refuse medical treatment or a “right to be ill.”15 A medical intervention without the consent of the patient, provided that he or she is an adult capable of giving consent, needs to be justified.16

  • 17 ECtHR, 22 November 2022, G.M. and Others v. Moldova, no. 44394/15, §§ 84-85; ECtHR, 26 March 2024, (...)
  • 18 ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07, § 107.
  • 19 ECtHR, 22 November 2022, G.M. and Others, cited above, note 17, at §§ 134 and 147.
  • 20 ECtHR, 23 July 2015, Bataliny v. Russia, no. 10060/07, § 90. Compare, in a case where the Court acc (...)

18Under certain conditions, a medical intervention – performed against the will of the person concerned – can reach the threshold of severity to be regarded as treatment prohibited by Article 3 of the Convention (torture or inhuman or degrading treatment).17 Examples are involuntary sterilisation18 and non-consensual abortion and birth control.19 The Court also found inhuman and degrading forcing a person confined in a psychiatric hospital to be treated with a new antipsychotic drug, by way of scientific research and in the absence of an established medical need.20

  • 21 ECtHR [GC], 31 January 2019, Fernandes de Oliveira v. Portugal, no. 78103/14, § 112. See also, amon (...)
  • 22 ECtHR, 23 March 2017, A.-M. v. Finland, no. 53251/13, § 90; ECtHR, 28 May 2020, Evers v. Germany, n (...)

19Respect for a person’s autonomy is also relevant in situations where a person has to be protected against himself or herself, and where the authorities accordingly take measures restricting that person’s freedom. In such a situation, the authorities “must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned and in such a way as to diminish the opportunities for self-harm, without infringing personal autonomy.”21 In other words, in each case involving the protection of a person in a vulnerable position, a balance must be sought “between the respect for the dignity and self-determination of the individual and the need to protect the individual and safeguard his or her interests.”22

II.2.1.3. Independence of the person

  • 23 See Art. 3 CRPD: “The principles of the present Convention shall be: (a) […] independence of person (...)

20For persons with disabilities, there are obstacles to the full enjoyment of personal autonomy. Because of their disabilities, they are often dependent on assistance or support. This is why, in the light of their special needs, independence is given special importance. Independence of the person is an explicitly mentioned principle of the CRPD.23

  • 24 Committee RPD, General comment No. 5 (2017) on living independently and being included in the commu (...)

21Article 19 of the CRPD, under the heading “Living independently and being included in the community,” provides that the States Parties recognise “the equal right of all persons with disabilities to live in the community, with choices equal to others.” In a general comment on this article, the Committee on the Rights of Persons with Disabilities (hereafter: Committee RPD) interprets independent living or living independently as meaning “that individuals with disabilities are provided with all necessary means to enable them to exercise choice and control over their lives and make all decisions concerning their lives.”24

  • 25 See Committee RPD, General comment No. 5 (2017), cited above, note 24, at § 16, c.

22As is clear from the text of Article 19 of the CRPD, an important element of living independently is the opportunity to choose one’s own place of residence and where and with whom to live, and not to be obliged to live in a particular living arrangement (Article 19, a). This brings us to the issue of “institutionalisation” versus “de-institutionalisation,” that is: life within residential institutions or transition towards community support services (as provided by Article 19, b, of the CRPD).25

  • 26 ECtHR, 21 January 2020, Strazimiri v. Albania, no. 34602/16, § 122.
  • 27 ECtHR [GC], 17 January 2012, Stanev v. Bulgaria, no. 367650/06, § 250.
  • 28 Ibid., § 252.
  • 29 ECtHR, 2 June 2020, N.T. v. Russia, no. 14727/11, § 52; ECtHR, 19 January 2021, Shlykov and Others (...)
  • 30 ECtHR, 16 November 2021, N. v. Romania (no. 2), no. 38048/18, § 166. The Court, however, had to con (...)
  • 31 ECtHR, 6 July 2023, Calvi and C.G., cited above, note 22, at §§ 107-108.
  • 32 ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at §§ 171-177.

23The Court has taken a position on this issue on a number of occasions. In one case, it considered that the authorities had failed to consider alternatives to detaining a mentally ill person in a prison hospital “with the aim of moving towards deinstitutionalisation.”26 In a second case, it noted that the applicant complained of his placement in a social care home and his being barred from taking part in community life and from developing relations with persons of his choosing, “with the result that he had developed ‘institutionalisation syndrome,’ that is, the loss of social skills and individual personality traits”;27 however, having regard to its conclusions on other complaints of the applicant, it considered that it was not necessary to examine this one.28 It should be noted that similar complaints were later raised in prison contexts, by prisoners who complained of isolation and limited outdoor exercise, and there the Court held that “institutionalisation syndrome” was an indication of treatment prohibited by Article 3 of the Convention.29 In a third case, the Court noted with satisfaction that a decision had been taken to have the applicant transferred from a psychiatric hospital to a specialised institution appropriate to his needs, in line with “practices which have become quite common at the international level in recent years, geared to promoting, as far as possible, treatment and care for persons with disabilities in the community.”30 In a fourth case, the Court held, with respect to the involuntary placement of a person in a nursing home, that States are obliged to promote the participation of disabled or “dependent” elderly people in the life of the community and to prevent their isolation or segregation; to keep the applicant in the nursing home was considered a measure disproportionate to the aim of protecting his interests.31 Finally, in a fifth case, the Court noted the existence of a practice of placing children with an “actual or perceived intellectual disability” in a psychiatric hospital and administering psychiatric treatment to them, without any therapeutic purpose. For the Court, this practice of “psychiatric institutionalisation” constituted discrimination on the grounds of intellectual disability.32

24These statements show a tendency of the Court to support the internationally noticeable trend towards de-institutionalisation.

II.2.2. Importance of social relations

  • 33 ECtHR, 28 May 2009, Bigaeva v. Greece, no. 26713/05, § 22; ECtHR, 19 October 2010, Özpinar v. Türki (...)

25Every individual is part of a community – or of various communities – with other individuals. It is therefore only natural that the Court holds that Article 8 of the Convention “guarantees a right to ‘private life’ in the broad sense, including the right to lead a ‘private social life,’ that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them.”33 This is a reference to the social aspect of personal autonomy.

  • 34 See Art. 3 CRPD: “The principles of the present Convention shall be: […] (c) Full and effective par (...)

26The possibility of establishing relationships with others corresponds to what is, in the CRPD, the principle of participation and inclusion.34

  • 35 ECtHR, dec. 11 April 2006, Mółka, cited above, note 33.

27In a case involving a lack of access for persons in a wheelchair to a polling station, the Court referred to the importance of “full participation of people with disabilities in society, in particular in political and public life.” It also considered that access to the polling station related to the applicant’s “involvement in the life of his local community and the exercise of his civic duties.” Acknowledging that the lack of such access touched upon the applicant’s “possibility of developing social relations with other members of his community and the outside world,” the Court found, however, that in the given circumstances a fair balance had been struck between the competing interests of the individual and the community.35

28We could here refer back to the case concerning access to two cultural and social buildings, mentioned above (II.2.1). As indicated, the Court in that case noted the importance of participation in cultural and social life for persons with disabilities.

II.3. Equality and non-discrimination

29Article 14 of the Convention provides that “the enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground.” A similar prohibition, extended to “any right set forth by law,” is formulated in Article 1, § 1, of Protocol No. 12 to the Convention. The latter provision, however, applies only to those States that have ratified the Protocol.

  • 36 See, among others, ECtHR [GC], 16 March 2010, Carson and Others v. United Kingdom, no. 42184/05, §  (...)
  • 37 See, among others, ECtHR, 30 April 2009, Glor v. Switzerland, no. 13444/04, § 80; ECtHR, 10 Septemb (...)

30Only differences in treatment based on an identifiable characteristic, or “status” within the meaning of both articles, are capable of amounting to discrimination.36 The Court accepts that this includes difference in treatment based on disability.37

  • 38 There are plenty of examples in the Court’s case law. To mention a recent one, the Court held that (...)
  • 39 See, with respect to discrimination of persons with disabilities, among many other cases, ECtHR, 23 (...)

31The prohibition of discrimination is obviously highly relevant for persons with disabilities. Not only are the public authorities prohibited from submitting persons with disabilities to unfavourable treatment, compared to persons without a disability;38 in certain cases the authorities are also obliged to correct existing inequality through preferential treatment.39

  • 40 See Art. 3 CRPD: “The principles of the present Convention shall be: […] (b) Non-discrimination […] (...)

32The principles of equality and non-discrimination are also principles underlying the CRPD.40

  • 41 “‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposi (...)
  • 42 For the principle, see ECtHR [GC], 6 April 2000, Thlimmenos v. Greece, no. 34369/97, § 44.

33Article 14 of the Convention and Article 1 of Protocol No.12 are nowadays read in the light of the requirements of Article 2 of the CRPD regarding “reasonable accommodation.” The Court understands this term as it is defined in that CRPD article.41 The requirement to provide for reasonable accommodation fits well with the Court’s case law according to which there is discrimination when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.42

  • 43 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 66; ECtHR, dec. 8 November 2016, Sanlisoy, (...)
  • 44 ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 67; ECtHR, 10 September 2020, G.L. v (...)
  • 45 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 111; ECtHR, 31 May 2022, Arnar (...)

34Reasonable accommodation may take a variety of forms, and it is for the competent authorities to choose how to respond to the needs of a person with disabilities.43 Where reasonable accommodation is required, a failure to adopt it amounts to discrimination.44 In its most recent case law, however, the Court has made the finding of a violation of the Convention dependent on a threshold being reached, in the sense that the lack of positive measures must produce a “particularly prejudicial impact” on the person or the people concerned.45

  • 46 See ECtHR, 22 March 2016, Guberina v. Croatia, no. 23682/13, § 87; ECtHR, 10 September 2020, G.L. v (...)
  • 47 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at §§ 120-121.
  • 48 Ibid., at §§ 122-132 ; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 62-65.
  • 49 See ECtHR, dec. 29 January 2019, Neagu v. Romania, no. 49651/16, §§ 30-31.
  • 50 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 68; ECtHR, 22 March 2016, Guberina, cited (...)

35It is emphasised that the accommodation that may be required should be “reasonable.” Therefore, not every refusal to treat a person with a disability differently than persons without disabilities amounts to discrimination. Indeed, such a refusal can be justified on objective and reasonable grounds,46 for instance the absence of a “particularly prejudicial impact” for the person concerned,47 the disproportionate burden on the State in case further measures would have to be adopted,48 or the countervailing interests of other persons.49 Of course, a justification presupposes in the first place that the competent authority does actually consider the possibility that accommodation may be required and, if so, in what form and to what extent it is to be provided.50

36The Court has been confronted with complaints about a refusal to adopt reasonable accommodation in a number of areas.

  • 51 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 64 (access of a blind teen-age child to a (...)

37One such area is education, in particular access to education. In this context, the Court, referring to a number of international legal texts, including Article 24 of the CRPD, endorses “inclusive” education as “the most appropriate means” of guaranteeing “the fundamental principles of universality and non-discrimination in the exercise of the right to education.”51 Attending classes or courses in mainstream institutions is often not possible without reasonable accommodation.

  • 52 See ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 63-64 (lack of access to (...)
  • 53 See ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at §§ 70-72 (provision of human aid t (...)

38Another area is that of access to buildings. While accessibility is often a general issue, relating to the effectiveness of the enjoyment by all of the fundamental right invoked (see below, part IV), the Court has sometimes examined it from the point of view of reasonable accommodation. In this respect, the reasonableness of the accommodation offered may depend not only on the burden placed on the competent authority,52 but also on the appropriateness of the measure proposed or taken.53

  • 54 For rare examples, see ECtHR, 8 November 2012, Z.H. v. Hungary, no. 28973/11, § 43; ECtHR, 6 Februa (...)

39Finally, mention should be made of the conditions of detention of persons with disabilities. However, while the Court recognises that the authorities must demonstrate “special care” for this particular category of detainees (see below, part III.2.2.2 and III.2.2.3), only rarely does it explicitly refer to the need for reasonable accommodation.54

III. Interferences with the rights of persons with disabilities

III.1. Principles

III.1.1. Need for the justification of any restriction

40Most of the rights guaranteed by the Convention can be restricted. The Convention sets the conditions for the lawfulness of interferences with the various rights. Some types of restriction will be discussed below (part III.2.1 to III.2.3).

  • 55 See, in particular, ECtHR, 20 May 2010, Alajos Kiss v. Hungary, no. 38832/06, § 42; ECtHR, 10 March (...)

41When a restriction on fundamental rights applies to a “particularly vulnerable group” in society, that has suffered “considerable discrimination” in the past, the Court as a matter of principle sets the bar high. It considers that the State’s “margin of appreciation” with respect to the assessment of the necessity of the interference is “substantially narrower” and that the State must have “very weighty reasons” for the restriction in question.55

  • 56 See, among others, ECtHR, 24 September 1992, Herczegfalvy v. Austria, no. 10533/83, § 82; ECtHR, 14 (...)

42While this high standard could be applicable to persons with disabilities in general, the Court in fact seems to limit its application to mentally disabled persons. This is consistent with its case law on the treatment of mentally disordered detainees in prisons and of patients confined in psychiatric hospitals: for these persons, the Court is of the opinion that they are typically in a “position of inferiority and powerlessness,” which “calls for increased vigilance [by the Court] in reviewing whether the Convention has been complied with.”56

III.1.2. Individualised assessment

  • 57 See, for example, with respect to stereotyping by the legislature or other rulemakers, ECtHR, 20 Ma (...)

43When a public authority is considering a restrictive measure, it must base its decision on an individualised assessment of the capacities and needs of the person concerned. What the Court does not accept is a decision being based on stereotypes, the result of deep-rooted prejudices against a particular group. Persons with disabilities, in particular mental disabilities, are an example of a group suffering from stereotypes.57

  • 58 ECtHR, 17 March 2015, Stefan Stankov v. Bulgaria, no. 25820/07, § 102.
  • 59 ECtHR, 29 March 2016, Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 109-112; ECtHR, 18 Februar (...)

44The individualised assessment in the first place concerns the decision whether or not to impose or maintain a measure. For example, the confinement of a person with a mental disorder, in order to prevent him from causing harm, should be based on an assessment of his concrete dangerousness.58 The restriction of the parental rights or contact rights of a father with an alleged mental disorder should be based on an assessment of the danger to the child’s safety or the father’s caring skills.59

  • 60 ECtHR, 27 March 2008, Shtukaturov v. Russia, no. 44009/05, § 95; ECtHR, 31 May 2016, A.N. v. Lithua (...)

45When it comes to determining the nature and the scope of the measure to be imposed, the decision should – as far as possible – be “tailor-made.” An illustration of this principle can be found in the case law on deprivation of legal capacity. Where the law only provides for full incapacity, leaving no room for the competent judge to adapt the measure according to the person’s actual needs and wishes, the restriction of that person’s rights cannot be considered proportionate.60

  • 61 ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 90; ECtHR, 6 July 2023, Calvi (...)
  • 62 ECtHR, 14 February 2012, D.D. v. Lithuania, cited above, note 56, at §§ 118 and 150; ECtHR, 31 May (...)

46It is important to note that the proceedings leading to the measure in question must be organised in such a way that there are guarantees for the will and preferences of the person concerned to be taken into account. This means that the person should be involved in the proceedings and be able to express his or her views on the matter.61 While there may be situations where a person, due to the severity of a mental incapacity, is wholly incapable of expressing consent or objection to a measure that is envisaged, in many cases even an individual who is placed under guardianship is capable of expressing a view on his or her situation, and in these cases he or she should be heard.62

III.2. Some applications

III.2.1. Deprivation of legal capacity

  • 63 See, among others, ECtHR, 5 July 1999, Matter v. Slovakia, no. 31534/96, § 68; ECtHR, 27 March 2008 (...)
  • 64 ECtHR, 3 November 2011, X and Y v. Croatia, no. 5193/09, § 91; ECtHR, 18 September 2014, Ivinović, (...)
  • 65 ECtHR, 27 March 2008, Shtukaturov, cited above, note 60, at § 94; ECtHR, 22 January 2013, Lashin, c (...)

47The deprivation of legal capacity, which has effects on the capacity to live independently in many areas of life, should be considered as an interference with the person’s right to respect for private life.63 It is even considered a “very serious” measure, which for that reason should be reserved for “exceptional circumstances.”64 By analogy with a requirement relating to the deprivation of liberty (see below, part III.2.2.1), in order to justify full incapacitation the mental disorder must be “of a kind or degree” warranting such a measure.65

  • 66 ECtHR, 27 March 2008, Shtukaturov, cited above, note 60, at § 87; ECtHR, 13 October 2009, Salontaji (...)

48The competent authority must strike a fair balance between the interests of the person concerned and the other legitimate interests involved.66 This is of course a matter depending on the circumstances of each case.

  • 67 ECtHR, 5 July 1999, Matter, cited above, note 63, at § 68; ECtHR, 22 January 2013, Lashin, cited ab (...)
  • 68 ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at §§ 241-245, referring among others to (...)

49Taking into account that the incapacitated person’s condition can change over time, the Court holds that a re-assessment by the competent authority after a certain lapse of time may be appropriate.67 In any event, the incapacitated person himself or herself has a right of access to a court to seek restoration of his or her legal capacity, and in principle that person should be able to exercise that right directly, that is to say not depending on consent by the guardian.68

III.2.2. Deprivation of liberty

III.2.2.1. Lawfulness of the detention, in particular of persons with a mental disorder

50Article 5, § 1, of the Convention allows for the deprivation of liberty in a number of well-defined situations. Detention can take place in a prison or similar institution or in a hospital or similar institution.

  • 69 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 205.
  • 70 ECtHR [GC], 26 October 2000, Kudła v. Poland, no. 30210/96, § 93. In the same sense, among many oth (...)

51Disability is in principle not an obstacle to deprivation of liberty.69 As the Court holds, Article 3 of the Convention, which prohibits inhuman or degrading treatment, cannot be interpreted “as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital.”70 The disability is, however, a factor that must be taken into account for assessing the adequacy of the material conditions of detention and the medical treatment provided. These issues will be discussed below (part III.2.2.2 and III.2.2.3).

52The detention of persons with mental disorders constitutes a specific category. The lawfulness of this type of detention will now be examined in more detail.

  • 71 The State has a positive obligation to protect vulnerable persons, and its responsibility can there (...)
  • 72 See, among others, ECtHR, 16 May 2005, Storck v. Germany, no. 61603/00, § 74; ECtHR, 27 March 2008, (...)
  • 73 ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 116.

53It may not always be easy to determine whether or not a person is deprived of his or her liberty, within the meaning of Article 5 of the Convention. With respect to the placement of mentally disordered persons in an institution, the Court has identified two constituent elements: an objective element, namely the confinement in a particular, restricted space – which can be a private clinic –,71 and a subjective element, namely the lack of consent.72 It is especially the latter element that can be problematic: can the person concerned validly express his or her will, and when can it be taken for consent? What seems to be beyond dispute is that confinement in a psychiatric hospital of a legally incapacitated person cannot be deemed voluntary merely because the guardian consented to it.73

  • 74 See, for a recapitulation of the general principles established in the Court’s case law, ECtHR [GC] (...)
  • 75 See, among many others, ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 145; ECtHR (...)
  • 76 See, among many others, ECtHR [GC], 4 December 2018, Ilnseher v. Germany, nos. 10211/12 and 27505/1 (...)
  • 77 See, among others, ECtHR, 20 February 2003, Hutchison Reid v. United Kingdom, no. 50272/99, § 52; E (...)

54Article 5, § 1, of the Convention provides that “no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […] (e) the lawful detention […] of persons of unsound mind […].” Apart from the general conditions for the lawfulness of any deprivation of liberty,74 the Court has read into Article 5, § 1, e, the following minimum conditions for the deprivation of liberty of a person “of unsound mind”: “firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.”75 Under the first condition, an actual mental disorder must be established before a competent authority on the basis of objective medical expertise.76 Under the second condition, the mental disorder may be considered as being of a kind or degree warranting compulsory confinement when detention is considered necessary not only because the person concerned “needs therapy, medication or other clinical treatment to cure or alleviate his condition,” but also where the person “needs control and supervision to prevent him from, for example, causing harm to himself or other persons.”77

55Some issues deserve particular attention.

  • 78 Referring to various European and international recommendations, the Court recently held that “an i (...)
  • 79 For some examples where the Court found that the existence of a mental disorder was not sufficient (...)

56First, while it is clear that Article 5, § 1, e, of the Convention allows for the deprivation of liberty of persons with a mental disorder, such a disorder cannot in itself justify detention. In other words, the existence of a mental disorder is a necessary78 but not a sufficient condition for the lawfulness of a detention under Article 5, § 1, e.79

  • 80 See, in particular with respect to detentions of persons “of unsound mind” under Article 5, § 1, e, (...)
  • 81 See ECtHR, 2 October 2012, Plesó, cited above, note 15, at § 68; ECtHR, 26 February 2015, Zaichenko (...)
  • 82 See, among others, ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 153; ECtHR, 22 J (...)
  • 83 See ECtHR, 26 June 2018, D.R. v. Lithuania, no. 691/15, § 95.

57Second, the detention of an individual “is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained.” In that sense, the deprivation of liberty must be “necessary” in the particular circumstances.80 Consideration should thus be given to alternatives such as outpatient examination and treatment.81 This implies that before the decision is taken to confine a person to a psychiatric institution, that person should as a matter of principle be consulted,82 and his or her wishes and arguments should be given due weight.83

  • 84 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 194.
  • 85 Ibid., at §§ 197 and 200.
  • 86 Ibid., at § 205.
  • 87 Ibid., at § 209. See also ECtHR, 24 January 2022, Sy, cited above, note 56, at § 115.
  • 88 The term “therapeutic abandonment” has been used by the European Committee for the Prevention of To (...)

58Third, as the Court has explicitly acknowledged, it has over the years attached “increasing weight to the need to provide appropriate treatment to persons who have been deprived of their liberty for the purpose of relieving their illness or reducing their dangerousness.”84 The possibility of receiving suitable treatment is a condition for the lawfulness of the detention of persons with mental disorders, and this has implications for the environment in which these persons are detained (psychiatric hospital, prison, etc.).85 There is “an obligation on the authorities to ensure appropriate and individualised therapy,”86 based on “an individualised programme [that takes] account of the specific details of the detainee’s mental health, with a view to preparing him or her for possible future reintegration into society.”87 Placing a person with mental disorders in a psychiatric institution or a prison cannot mean that they are left in a state of “therapeutic abandonment.”88 The health and well-being of the person concerned remain a central concern.

  • 89 See for information on the draft and its history, on the Council of Europe’s website on “Human Righ (...)

59Involuntary placement is, like involuntary treatment, currently a controversial issue. This is very well illustrated by the fate the Council of Europe reserved to a draft additional protocol to 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.”89

60After a long process of consultations, in which it received many critical comments, the Council of Europe Committee on Bioethics (DH-BIO) finalised a draft in November 2020. The draft provides for standards for involuntary placement and involuntary treatment, as exceptions to the general rule that measures in mental health care shall only be carried out with the free and informed consent of the person concerned. This draft was – again – received very negatively by the Committee RPD and the United Nations Special Rapporteur on the Rights of Persons with Disabilities, who argued that the draft “maintains an approach to mental health policy and practice that is based on coercion, which is incompatible with contemporary human rights principles and standards.”90

  • 91 ECtHR [GC], dec. 15 September 2021 on the competence of the Court to give an advisory opinion under (...)
  • 92 See Committee of Ministers documents CM(2022)14-add1 (draft additional protocol) and CM(2022)14-add (...)

61After receipt of a decision by the Court declining to give an advisory opinion on a request made by DH-BIO relating to the interpretation of certain provisions of the Oviedo Convention that were relevant to the issue,91 DH-BIO, now called the Steering Committee for Human Rights in the fields of Biomedicine and Health (CDBIO), decided in November 2021 to submit the draft protocol unchanged to the Committee of Ministers.92

  • 93 Parl. Ass., recommendation 2227 (2022) of 26 April 2022 on “Deinstitutionalisation of persons with (...)

62On 26 April 2022, the Parliamentary Assembly adopted a recommendation and a resolution on “Deinstitutionalisation of persons with disabilities.” In these texts, it explicitly reiterated its call on the Committee of Ministers viz. all stakeholders, including the governments and parliaments of Council of Europe Member States, not to adopt, support or endorse the draft additional protocol. In the resolution, it invited the stakeholders instead “to embrace and apply the approach set out by the CRPD, a convention which marks a paradigm shift, and fully guarantee the fundamental human rights of all persons with disabilities.”93

  • 94 Comm. Min., decision CM/Del/Dec(2022)1434/4.2.
  • 95 See in that sense the proposal of the Committee of Ministers’ rapporteur group on human rights of 2 (...)

63The Committee of Ministers reacted a month later. During its meeting of 11, 13 and 17 May 2022, it decided to suspend further action on the draft additional protocol until CDBIO submitted a draft recommendation “promoting the use of voluntary measures in mental health care services.” At the same time, it decided that it would itself prepare a declaration “affirming the commitment of the Council of Europe to improving the protection and the autonomy of persons in mental health care services.”94 Work on these two texts is underway. The Committee of Ministers’ decision seems to indicate that it wants to move away from involuntary measures (while not excluding them in exceptional cases) and instead promote the use of voluntary and non-coercive measures.95

III.2.2.2. Material conditions of detention

64Article 3 of the Convention prohibits torture and inhuman or degrading treatment and punishment. It is an article often invoked by persons who are deprived of their liberty.

  • 96 See, among many others, ECtHR [GC], 26 October 2000, Kudła, cited above, note 70, at § 94; ECtHR [G (...)

65The general principle is that under Article 3 the State must ensure that a person is detained in conditions which are compatible with respect for his or her human dignity. This means that the manner and method of the execution of the measure do not subject detainees “to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent [in detention] and that, given the practical demands of imprisonment, their health and well-being are adequately secured.”96

66What does this mean for persons with disabilities? That is what will be briefly discussed below.

  • 97 See, among others, ECtHR, 14 November 2002, Mouisel v. France, no. 67263/01, § 38; ECtHR [GC], 17 S (...)
  • 98 ECtHR, 5 March 2013, Gülay Çetin v. Türkiye, no. 44084/10, §§ 122-124; ECtHR, 28 November 2017, Dor (...)

67As already indicated, it does not generally follow from Article 3 that detainees suffering from a disease or a disability must be released (see above, part III.2.1). However, in “particularly serious cases,” the “proper administration of criminal justice” may require a “humanitarian measure” to be taken.97 The typical example of such a case is that of a detainee who is in an end-of-life situation, characterised by an illness that is ineluctably progressing towards a fatal outcome.98

  • 99 See, among others, ECtHR, 26 October 2006, Khudobin v. Russia, no. 59696/00, § 92; ECtHR, 15 Novemb (...)
  • 100 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 148; ECtHR, 24 January 2022, Sy, ci (...)

68It is also possible that the medical condition of a detainee is such that his or her continued detention is “absolutely incompatible” with life in prison.99 Release, however, is not always the answer. Where the necessary treatment cannot be provided in the place of detention, it may be necessary, but also sufficient, to transfer the detainee to a hospital or to a specialised unit.100

69These are rather exceptional situations. It is not necessary to analyse them further.

  • 101 See, among many others, ECtHR, 2 December 2004, Farbtuhs, cited above, note 99, at § 56; ECtHR [GC] (...)

70The Court has extensive case law on the detention of persons with physical disabilities in ordinary prisons. The general principle is that “where the authorities decide to place and keep a disabled person in detention, they should demonstrate special care in guaranteeing such conditions as correspond to the special needs resulting from his or her disability.”101

  • 102 For examples, see ECtHR, 24 October 2006, Vincent v. France, no. 6253/03, §§ 100-103; ECtHR, 25 Jun (...)

71An issue that can arise is that a wheelchair-bound prisoner cannot access prison facilities, in particular sanitation facilities, because of architectural or environmental barriers. The situation in which the prisoner finds himself or herself as a result of being unable to make regular use of these facilities has been considered incompatible with human dignity.102

  • 103 ECtHR, 25 June 2013, Grimailovs, cited above, note 102, at § 161; ECtHR, 6 February 2014, Semikhvos (...)
  • 104 ECtHR, 12 February 2013, D.G. v. Poland, no. 45705/07, § 147; ECtHR, 22 February 2022, Shirkhanyan (...)
  • 105 ECtHR, 10 May 2016, Topekhin v. Russia, no. 78774/13, § 86. See also ECtHR, 20 May 2010, Engel v. H (...)

72A somewhat similar issue can arise when a prisoner is unable to move around, but where the problem can be solved by offering assistance. Such daily assistance should then be organised by the authorities. They cannot absolve themselves from the obligation to ensure adequate conditions of detention “by shifting the responsibility” to other inmates.103 Routine assistance by fellow inmates may give rise to anxiety and place the prisoner concerned in a position of inferiority vis-à-vis the other prisoners.104 In particular, where a person with a serious physical disability is left to rely on his cellmates or other inmates for assistance with using the toilet, bathing and getting dressed or undressed, all intimate activities, this “[may put] him in a very uncomfortable position and adversely [affect] his emotional well-being.”105

  • 106 ECtHR, 6 February 2014, Semikhvostov, cited above, note 54, at § 80. See also, with respect to a mu (...)

73Finally, it is also important to take into account that physical disabilities in a prison environment can lead to a lack of social contact for the detainee concerned. In one case, the Court thus noted that a prisoner who did not have access to the canteen, the bathhouse, the library, the medical unit and the shop, had to spend most of his day in the dormitory unit. The “segregation from the rest of the inmate population” stigmatised him and, according to the Court, served as the main restriction on his leading a dignified life.106

  • 107 See, among others, ECtHR, 9 September 2010, Xiros v. Greece, no. 1033/07, §§ 73 and 76; ECtHR, 23 J (...)
  • 108 See ECtHR, 12 February 2013, D.G. v. Poland, cited above, note 104, at § 176.

74A number of the problems encountered by prisoners with disabilities are the result of the fact that the prisons in which they are detained are simply not suitable for them. But it is undeniable that other problems can be solved by adaptations of the general prison conditions to the specific needs of this category of prisoners.107 There is room for “reasonable accommodations.”108

75Detainees with intellectual disabilities have their own distinct problems.

  • 109 ECtHR, 19 March 2020, Fabris and Parziale v. Italy, no. 41603/13, § 77; ECtHR, 31 March 2020, Jeant (...)
  • 110 ECtHR, 22 November 2016, Hiller, cited above, note 80, at § 48; ECtHR [GC], 31 January 2019, Fernan (...)

76Just like for prisoners with physical disabilities, the authorities should demonstrate special care for persons suffering from a mental illness in guaranteeing “such conditions as correspond to [their] special needs”; this applies to detainees in ordinary places of detention109 as well as to patients who are involuntarily placed in psychiatric institutions.110

  • 111 For recent examples, see ECtHR, 30 June 2020, S.F. v. Switzerland, no. 23405/16, § 98 (suicide in a (...)

77In prisons and police detention centres, the problem is often that detainees with mental problems are receiving a treatment that is the “standard” treatment applied to all detainees. When insufficient attention is paid to their particular vulnerability and potential lack of capacity to deal with that treatment, situations that may seem “normal” can lead to a deterioration of the mental health condition, and in extreme cases even to suicide.111

  • 112 ECtHR, 22 November 2016, Hiller, cited above, note 80, at § 54. See also, in the same sense, ECtHR (...)
  • 113 ECtHR [GC], 31 January 2019, Fernandes de Oliveira, cited above, note 21, at § 124. The Court even (...)
  • 114 ECtHR, 24 September 1992, Herczegfalvy, cited above, note 56, at § 83; ECtHR, 14 February 2012, D.D (...)
  • 115 ECtHR, 24 September 1992, Herczegfalvy, cited above, note 56, at § 83; ECtHR, 14 February 2012, D.D (...)
  • 116 ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at §§ 151-155 and 157.
  • 117 ECtHR, 18 October 2012, Bureš v. Czech Republic, no. 37679/08, § 95; ECtHR, 19 February 2015, M.S. (...)

78A specific problem is that of compulsory measures administered to patients in a psychiatric institution. This is an issue that can arise in any such institution, whether or not the patient is detained against his or her will. In this respect, the Court holds that “today’s paradigm […] is to give persons with mental disabilities the greatest possible personal freedom,” and that “it is not only permissible to grant hospitalised persons the maximum freedom of movement but also desirable in order to preserve as much as possible their dignity and their right to self-determination.”112 The Court nevertheless accepts that institutions may have to take coercive measures, even with respect to patients who are treated on a voluntary basis.113 Compulsory treatment can take many forms: administration of food and medicine by force, isolation, attachment with handcuffs to a security bed, etc. There is in principle no violation of either Article 3 or Article 8 of the Convention if the treatment can be justified by a medical necessity according to the “psychiatric principles generally accepted at the time.”114 However, while the established principles of medicine are in principle decisive, the Court still has to satisfy itself “that the medical necessity has been convincingly shown to exist.”115 The administration of medication without any therapeutic necessity, but to the contrary “in response to [a person’s] behaviour for the purpose of managing and controlling it,” is a form of “chemical restraint,” incompatible with Article 3 of the Convention.116 Moreover, taking into account “the developments in contemporary legal standards on seclusion and other forms of coercive and non-consensual measures,” the Court nowadays also holds that measures of physical restraint can be employed only “as a matter of last resort and when their application is the only means available to prevent immediate harm to the patient or others.”117

III.2.2.3. Medical assistance in institutions

  • 118 See, among many others, ECtHR, 14 November 2002, Mouisel, cited above, note 97, at § 40; ECtHR [GC] (...)

79Respect for the human dignity of persons deprived of their liberty implies, among other things, that their health and well-being are adequately secured by providing them with the requisite medical assistance.118

  • 119 See, among many others, ECtHR, 18 December 2008, Ukhan v. Ukraine, no. 30628/02, § 74; ECtHR [GC], (...)
  • 120 See, among many others, ECtHR, 7 February 2012, Cara-Damiani v. Italy, no. 2447/05, § 66; ECtHR [GC (...)

80In its case law, the Court has gradually developed a list of criteria to verify whether the medical assistance offered in a given case was “adequate” or not. In general, according to a formula often repeated by the Court, the authorities must ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention; diagnosis and care must be prompt and accurate; where necessitated by the nature of a medical condition, supervision must be regular and systematic and involve a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis; the authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through.119 Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole.120

  • 121 See, among others, ECtHR, 2 December 2004, Farbtuhs, cited above, note 99, at § 56; ECtHR, 26 Octob (...)

81Persons with disabilities may also need medical assistance. Again, just like with the material conditions of a place of detention, the authorities should demonstrate special care in providing medical assistance corresponding to the special needs resulting from a detainee’s disability.121

  • 122 ECtHR, 2 December 2004, Farbtuhs, cited above, note 99, at § 60; ECtHR, 3 February 2009, Kaprykowsk (...)

82And, again just like with the assistance with daily routine and mobility, the medical assistance must be organised by the authorities themselves, and these authorities cannot transfer their responsibility to fellow detainees without the necessary training and qualifications, for instance with respect to first aid in case of a medical emergency.122

  • 123 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 145.

83Problems occurring with the quality of the medical assistance offered to persons with intellectual disabilities, as they have come before the Court, relate to detainees in a prison environment. The Court recognises that, precisely because of their condition, detainees with mental disorders are more vulnerable than ordinary detainees.123

  • 124 Ibid., § 146.
  • 125 The prolonged absence of an individualised strategy amounts to detaining the prisoner concerned in (...)
  • 126 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 166. However, the detainee’s cooper (...)

84The Court stresses that for detainees with mental disorders it is not enough that they are examined and that a diagnosis is made: “instead, it is essential that proper treatment for the problem diagnosed should also be provided.”124 This implies, as has already been indicated, that a “comprehensive therapeutic strategy” is set up (see above, part III.2.2.3).125 That strategy must of course also be implemented, although a detainee’s “lack of receptivity to the proposed arrangements for psychiatric treatment cannot be imputed to the authorities.”126 The case law shows that all this is often easier said than done…

  • 127 ECtHR, 16 October 2008, Renolde, cited above, note 21, at § 104.

85It is not only the psychiatric treatment that matters. Prisoners with mental disorders may also have other medical problems, and they should also be taken into account and cared for. In this respect, the Court has warned, in a case concerning an inmate who committed suicide, against the risks of “leaving it to a prisoner suffering from known psychotic disorders to administer his own daily medication without any supervision.”127

III.2.3. Other restrictions of rights

86Other rights of persons with disabilities can also be the object of restrictions. The relevant case law is much scarcer, and therefore only a brief overview of some types of restriction will be given. It seems that they predominantly, if not exclusively, relate to mental disabilities.

  • 128 ECtHR, 27 February 2018, Mockutė v. Lithuania, no. 66590/09, § 125.
  • 129 Ibid., § 129.
  • 130 Ibid., § 130.

87Freedom of religion was at the heart of a case involving a patient who had become a follower of a non-traditional religious movement (the “Osho” movement). After a serious incident of psychotic behaviour, she was confined in a psychiatric hospital for almost two months. There, the psychiatrists allegedly tried to “correct” her so that she would abandon her “fictitious” religion.128 Such an interference with the applicant’s freedom of religion was considered not to be “prescribed by law,” given that the domestic courts had found that her hospitalisation had lasted longer than required by her condition. The case deserves mention here because the Court also noted that, while “the needs of psychiatric treatment might necessitate discussing various matters, including religion, with a patient, when he or she is being treated by a psychiatrist,”129 “a State cannot dictate what a person believes or take coercive steps to make him change his beliefs.”130 Freedom of religion is to be respected, even if the individual suffers from a mental disorder.

  • 131 ECtHR, 14 February 2012, D.D. v. Lithuania, cited above, note 56, at § 118; ECtHR, 31 May 2016, A.N (...)

88The right to participate in judicial proceedings has already been mentioned above. A person with mental disabilities should in principle have the right to be heard, either in person or, where necessary, through some form of representation, in proceedings that concern his or her rights or interests (see above, part III.1.2, and III.2.2.1). As the Court holds, “mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right, except in very exceptional circumstances,” namely where the person concerned is entirely unable to express a coherent view.131

  • 132 On the principle, see ECtHR [GC], 6 October 2005, Hirst v. United Kingdom (no. 2), no. 74025/01, §  (...)
  • 133 ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at § 38; ECtHR, 2 February 2021, Strøbye and (...)
  • 134 ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at § 42; ECtHR, 11 May 2021, Caamaño Valle, (...)
  • 135 ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at §§ 39-44; ECtHR, 15 February 2022, Anatol (...)
  • 136 ECtHR, 2 February 2021, Strøbye and Rosenlind, cited above, note 133, at §§ 98-121.
  • 137 ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at §§ 65-73.

89A last type of restriction to be mentioned is that of disenfranchisement, that is, the measure whereby a person is prevented from taking part in elections, by way of exception to the general principle of “universal suffrage.”132 The Court accepts that disenfranchisement can constitute a lawful restriction, as it can pursue the legitimate aim of “ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs.”133 In order to meet the proportionality condition, the decision to disenfranchise a person should be based on the “actual faculties” of the person concerned.134 An automatic disenfranchisement of, say, the whole category of persons who have been placed under partial guardianship can therefore not be considered proportionate to the legitimate aim pursued.135 It is not entirely clear what kind of individualised evaluation is required. In one case, the Court accepted disenfranchisement based on an individual decision by which the person concerned had been deprived of his legal capacity;136 in another case, the Court relied on the fact that there had been a specific decision declaring the person in question incapable of exercising the right to vote.137

IV. Positive measures for persons with disabilities

  • 138 For the principle, see ECtHR, 13 June 1979, Marckx v. Belgium, no. 6833/74, § 31. The recognition o (...)
  • 139 ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 71.

90The Convention does not only impose on States an obligation to refrain from arbitrarily interfering with the rights guaranteed by it; under certain conditions, it may also impose an obligation to take positive measures, in order to ensure an “effective” respect for these rights.138 States may thus be required to adopt “measures designed to provide special protection to persons who are in a particularly vulnerable position.”139

  • 140 See, with respect to measures to be taken to eradicate the discrimination of which Roma are victims (...)

91It has already been noted that persons with disabilities are considered to belong to a “particularly vulnerable group” in society, one that has suffered “considerable discrimination” in the past (see above, part III.1.1). For such a group, the State has the positive obligation “to take steps to correct [the] factual inequality [suffered by the members of the group] and avoid the perpetuation of the discrimination that resulted from [that inequality].”140

  • 141 See, among others, ECtHR, dec. 8 July 2003, Sentges v. Netherlands, no. 27677/02; ECtHR, dec. 4 Jan (...)

92Positive measures often – but not always – require public funding. If that is the case, the context of the allocation of limited State resources will necessarily be a factor to be taken into account when it comes to the balancing of competing interests.141

  • 142 For the principle, see ECtHR, 26 March 1985, X and Y v. Netherlands, no. 8978/80, § 23. See, for an (...)

93Finally, it should be noted that the obligation for the State to take positive measures may extend to “the sphere of the relations of individuals between themselves.”142

94The case law of the Court offers a number of examples of alleged failures by the authorities to comply with positive obligations. The Court’s assessment of the complaints generally depends on the quality of the domestic decision-making process, and in particular on the adequacy of the way competing interests are balanced.

  • 143 See, among others, ECtHR, 20 May 2014, McDonald, cited above, note 141, at §§ 53-58 (denial of nigh (...)
  • 144 ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at §§ 59-72 (refusal on financial gr (...)

95A number of cases concern complaints about refusals by the authorities to provide the applicant with the level of personal assistance that he or she claimed was necessary in order to allow for a sufficient degree of autonomy. Such complaints were dismissed by the Court in cases where the domestic authorities had adequately weighed the interests of the applicant against the financial interests of the State and the rights of other care-users.143 By contrast, the Court found violations of the Convention in cases where the authorities had denied the requested personal assistance without a proper assessment of the applicant’s real needs and the possible solutions.144

  • 145 ECtHR, dec. 13 January 2000, Maggiolini v. Italy, no. 35800/97. See also ECtHR, dec. 4 May 1999, Ma (...)

96In a case where domestic law required the authorities to provide a disabled person with adequate accommodation, the Court held that no positive obligation could be derived from the Convention to provide the applicant with a specific apartment. The Court was satisfied that the authorities had provided the applicant with an apartment that was not manifestly unsuitable.145

  • 146 See, for cases in which the Court found no violation of the Convention, ECtHR, dec. 14 May 2002, Ze (...)

97Where an applicant complains about the inaccessibility of certain buildings, the complaint is in fact about the alleged failure by the competent authorities to guarantee such access, if necessary by providing reasonable accommodation. The questions to be examined by the Court are then whether the applicant had a sufficient interest in gaining access to the relevant buildings, and whether the authorities had done enough, in the given circumstances, to enable him or her to have effective access to these buildings, or alternatively to buildings with similar functions.146

  • 147 ECtHR, dec. 8 July 2003, Sentges, cited above, note 141 (refusal to provide a robotic arm to be mou (...)

98Finally, certain applicants complained that the authorities provided them with assistance, but insufficient in the light of their needs. The Court dismissed these complaints on the ground that the authorities had carefully assessed the needs of the applicants and provided sufficient assistance, while noting that their decisions not to go as far as requested had been dictated by legitimate financial considerations.147

V. Relationship between the European Convention and the Convention on the Rights of Persons with Disabilities

V.1. Relevance of international human rights treaties in general

99After this overview of the Court’s case law on the obligations of the States with respect to persons with disabilities, attention will now turn to the question of the extent to which the Court takes into consideration the CRPD in order to give substance to the generally worded provisions of the European Convention.

  • 148 For the principle, see, among many others, ECtHR [GC], 21 November 2001, McElhinney v. Ireland, no. (...)

100The starting point is that the Convention cannot be interpreted in a vacuum. It should as far as possible be interpreted in harmony with other rules of public international law of which it forms a part.148 This is in line with Article 31, § 3, c, of the Vienna Convention on the Law of Treaties of 1969, according to which, for the puposes of interpreting a treaty, account should be taken of “any relevant rules of international law applicable in the relations between the parties.”

  • 149 ECtHR [GC], 12 September 2012, Nada v. Switzerland, no. 10593/08, § 170.

101The Court accordingly tries to interpret the provisions of the Convention in line with other human rights treaties. In this respect, it is aware of the possibility that there may be an apparent contradiction between the Convention and more recent treaties. Even in such a situation, it will try to “endeavour to construe [these instruments] in such a way as to coordinate their effects and avoid any opposition between them.”149

  • 150 ECtHR [GC], 12 November 2008, Demir and Baykar v. Türkiye, no. 34503/97, § 85.

102When endeavouring to interpret the Convention in line with other human rights treaties, the Court in general considers the interpretation of these other treaties by the bodies set up to monitor compliance with them, whether they are of a judicial or a quasi-judicial nature.150

V.2. Relevance of the CRPD in particular

V.2.1. The CRPD as a source of inspiration for the interpretation of the Convention

103The CRPD is one of the relevant treaties that the Court takes into account when interpreting the Convention.

104The case law of the Court thus offers examples of “generous” interpretations of the Convention, prompted by the wording of the CRPD and the interpretations thereof given by the Committee RPD.

  • 151 ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 159. But see the diverge (...)
  • 152 ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 166; ECtHR, 8 February 2 (...)
  • 153 ECtHR, 18 February 2020, Cînța, cited above, note 59, at § 76 (juncto § 30).
  • 154 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 65; ECtHR, 30 January 2018, Enver Şahin, c (...)
  • 155 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 53; ECtHR, dec. 8 November 2016, Sanlisoy, (...)
  • 156 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 112 (juncto § 55); ECtHR, 31 Ma (...)
  • 157 ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 244 (juncto § 72); ECtHR, 22 Januar (...)
  • 158 ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 59.
  • 159 See, among others, ECtHR, 18 February 2020, Cînța, cited above, note 59, at § 75 (juncto § 32); ECt (...)
  • 160 ECtHR, 6 July 2023, Calvi and C.G. v. Italy, cited above, note 22, at § 106 (juncto § 55) (observat (...)

105For instance, the Court holds that Article 5, § 1, of the Convention (right to liberty) must be interpreted in the light of the provisions of Article 14, § 1, of the CRPD (liberty and security of person)151 and Article 19 of the CRPD (living independently and being included in the community);152 that Article 8 of the Convention (respect for family life) must be interpreted in the light of the provisions of Article 23 of the CRPD (respect for home and the family);153 that Article 14 of the Convention and Article 1 of Protocol No. 12 (equality and non-discrimination) must be interpreted in the light of the requirements regarding reasonable accommodation contained in Article 2 of the CRPD (definitions);154 and that Article 2 of Protocol No. 1 to the Convention (right to education) must be interpreted in the light of the provisions of Article 24 of the CRPD (education).155 The Court has also referred, in a more general way, to the provisions of Article 9 of the CRPD (accessibility),156 Article 12 of the CRPD (equal recognition before the law)157 and Article 30 of the CRPD (participation in cultural life, recreation, leisure and sport).158 In a number of these cases, the Court also referred to the general comments of the Committee RPD159 or to other positions adopted by the Committee.160

  • 161 See ECtHR, 22 March 2016, Guberina, cited above, note 46, at § 92; ECtHR, 3 October 2019, Nikolyan, (...)

106There are also cases in which the Court referred to the fact that the respondent State had adhered to the CRPD and had thus undertaken certain obligations. These obligations could then be used as standards against which the actions or omissions of the State could be evaluated.161 One could thus consider that the margin of appreciation which the State had under the Convention was effectively limited by the obligations it had undertaken under the CRPD.

V.2.2. Divergences between the CRPD and the Convention

107However, the Court does not always align its interpretation of the Convention with the CRPD or the interpretations given to it by the Committee RPD.

  • 162 ECtHR [GC], 12 May 2005, Öcalan v. Türkiye, no. 46221/99, § 163, quoting from the Chamber judgment (...)
  • 163 ECtHR [GC], 27 April 2010, Tănase v. Moldova, no. 7/08, § 176; ECtHR, 10 March 2011, Kiyutin, cited (...)

108This is not a situation peculiar to the relationship between the Convention and the CRPD. On certain occasions, the Court finds it necessary to recall that its task is to interpret the provisions of the Convention, not those of other treaties.162 Insofar as it can and must take other treaties and the interpretations of other monitoring bodies into account, it reserves for itself the right “to decide which international instruments and reports it considers relevant and how much weight to attribute to them.”163

  • 164 See, among others, ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cit (...)
  • 165 ECtHR [GC], 20 October 2016, Muršić, cited above, note 164, at § 112. See also, with respect to the (...)
  • 166 ECtHR [GC], 20 October 2016, Muršić, cited above, note 164, at § 113.

109In particular with respect to interpretations given to relevant human rights treaties by the competent monitoring bodies, the Court makes clear that it cannot consider itself bound by these interpretations for its own interpretation of the Convention.164 Concerning its “reluctance” to take the standards developed by the European Committee for the Prevention of Torture (CPT) (on what amounts to inhuman or degrading treatment) as a decisive argument for its interpretation of Article 3 of the Convention, the Court has pointed to the fact that it has “to take into account all relevant circumstances of a particular case before it,” in order to decide whether or not the Convention has been violated in these specific circumstances, while the CPT “[develops] general standards […] aiming at future prevention.”165 Furthermore, “the thrust of CPT activity is pre-emptive action aimed at prevention, which, by its very nature, aims at a degree of protection that is greater than that upheld by the Court when deciding cases concerning conditions of detention.”166

  • 167 See, with respect to the standards of the International Labour Organisation and the European Social (...)
  • 168 ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at § 54.
  • 169 ECtHR, 30 June 2020, Popović and Others v. Serbia, nos. 26944/13 and 3 others, § 79.

110This explanation is valid for the interpretations of the CRPD by the Committee RPD as well. Not only does the CRPD contain “more specific and exacting [norms]” than the Convention,167 the Court and the Committee also have different roles to play.168 As a result, the interpretations of the same fundamental right by the Committee and by the Court “may not always correspond.”169

  • 170 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 205. The Court referred to Article (...)
  • 171 ECtHR, 2 February 2021, Strøbye and Rosenlind, cited above, note 133, at § 112; ECtHR, 11 May 2021, (...)
  • 172 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 127. The Court referred to the (...)

111There are, however, only few examples of such divergences. In Rooman, the Court considered that Article 5 of the Convention “does not contain a prohibition on detention on the basis of impairment, in contrast to what is proposed by the [Committee RPD] in points 6-9 of its 2015 Guidelines concerning Article 14 of the CRPD.”170 In Strøbye and Rosenlind and Caamaño Valle, the Court did not follow the Committee in its interpretation of Article 29 of the CRPD, according to which persons with intellectual disabilities cannot be denied the right to vote. Referring to the situation existing in a majority of the Member States of the Council of Europe, it held that Article 3 of Protocol No. 1 to the Convention, relating to electoral rights, allows for certain restrictions of the right to vote based on the mental capacity of the individual concerned.171 In Toplak and Mrak, the Court seems to have downplayed the importance that the Committee RPD attaches to technology-assisted (electronic) voting for disabled persons.172

112Is it possible to provide an explanation for the sometimes divergent views of the Court and the Committee RPD?

113The Court itself refers, as indicated above (this part V.2.2), to the differences in wording between the Convention and the CRPD, as well as to the differences in role and approach between the Court and the Committee. It seems that there might also be a third explanation, pertaining to the different nature of the Convention and the CRPD.

  • 173 See for the principle, among many others, ECtHR, 21 February 1990, Powell and Rayner v. United King (...)
  • 174 See, among many others, ECtHR, 23 September 1982, Sporrong and Lönnroth v. Sweden, nos. 7151/75 and (...)
  • 175 For the principle, see ECtHR, 7 December 1976, Handyside v. United Kingdom, no. 5493/72, § 48.
  • 176 See the cases mentioned in note 141. See also ECtHR [GC], 19 December 2017, Lopes de Sousa Fernande (...)

114On the one hand, the Convention guarantees respect for the human rights of “everyone.” Moreover, whether the State is under a duty to refrain from interfering with human rights or under a duty to adopt positive measures, the key requirement is the “fair balance” to be struck between the competing interests of the individual and of the community as a whole.173 The search for such a balance is inherent in the whole of the Convention.174 In making its assessment of what constitutes a fair balance, the State enjoys a certain margin of appreciation.175 The width of the margin of appreciation depends on a number of factors. In the areas of health care and social-security and social-welfare benefits, the Court accepts that the margin is wide, as the issues involve an assessment of priorities in the context of the allocation of limited State resources.176

115The effects of the balancing of competing interests, coupled with the States’ margin of appreciation, are particularly visible in the Court’s case law on positive obligations (see above, part IV). The Court accepts that the authorities may have valid reasons that oppose a positive response to a request for assistance of a certain level.

116On the other hand, the CRPD deals exclusively with the human rights of one category of persons, persons with disabilities. In the preamble, the Contracting Parties express the conviction “that a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities will make a major contribution to overcoming the profound social disadvantage of persons with disabilities” (recital y). The primary objective seems to be to correct the balance of competing interests, which at the time of the drafting of the CRPD was to the disadvantage of persons with disabilities, by giving more weight to their rights and interests. This is a different starting point than that of the Convention, which is aimed at ensuring a fair balance between competing interests without explicitly emphasising the situation of a particular and disadvantaged group of rights holders. Accordingly, the focus of the Committee RPD is clearly different from that of the Court.

  • 177 Concurring opinion of Judge Wojtyczek, ECtHR, 8 April 2014, National Union of Rail, Maritime and Tr (...)

117It is only natural that, seen from the perspective of persons with disabilities, the CRPD is a human rights instrument that offers a higher level of protection than the Convention. Article 53 of the Convention deals with such a situation: it provides that the Convention cannot be construed “as limiting […] any of the human rights and fundamental freedoms which may be ensured […] under any other agreement to which [a High Contracting Party] is a party.” Article 53 says something about the validity of the other treaty, but nothing about how the Convention itself is to be interpreted. In particular, “the scope of protection [by the Convention] does not automatically align [with] the highest standard set by other rules of international law binding the Parties to the Convention.”177

  • 178 Compare ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, n (...)

118Some differences in the level of protection may thus remain. As the Court has said with respect to interpretations by other bodies of other instruments, this does not mean that the Court calls into question the interpretations given by the Committee RPD to the CRPD.178

119It is quite possible that the norms of the Convention will continue to be “updated” towards those of the CRPD. This is a gradual process and the Court’s case law attests to the existence of such a process. Whether the interpretation of the Convention on a particular issue can be given wider scope will be strongly influenced by the extent to which the practice of the States Parties to the Convention demonstrates their adherence to these higher standards.

VI. Conclusions

  • 179 For a recent confirmation, see ECtHR [GC], 17 January 2023, Fedotova and Others, cited above, note (...)
  • 180 Ibid.

120The Convention was adopted in 1950. As the Court has stated on many occasions, it is “a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today.”179 More specifically, the Court “must have regard to the changing conditions in Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved.”180

  • 181 NGOs defending the rights of persons with disabilities regularly intervene in their own right, as t (...)

121The CRPD was adopted in 2006. It is probably no coincidence that, since then, a noticeable number of complaints have been brought before the Court by persons with disabilities, often actively supported by NGOs.181 In this contribution, an attempt has been made to examine to what extent the Court has incorporated the CRPD and the interpretations of the Committee RPD in its case law.

122The relationship between the Court and the CRPD can perhaps be characterised as one of “je t’aime, moi non plus.” The Court aligns with the principles underlying the CRPD, in particular those of human dignity, personal autonomy, equality and non-discrimination, but it also considers counterarguments.

123The CRPD has triggered a debate on institutionalisation versus de-institutionalisation. The aforementioned principles lend support to de-institutionalisation. And indeed, in the case law a certain tendency can be discerned in that direction (see above, part II.2.1.3). Institutionalisation is, however, not incompatible with the Convention. To the contrary, the Convention explicitly allows for individuals to be deprived of their liberty because of their mental illness, where the protection of their own interests or those of others so requires.

124While the placement in a prison or an institution (whether voluntary or involuntary) is not incompatible with the Convention, the Court stresses that it is subject to conditions. Human dignity must always be respected, and personal autonomy must be guaranteed as much as possible. There is potential here for a further deepening of the concrete implications of these general requirements.

125There are certain developments in the Court’s case law that seem to be directly influenced by the CRPD. In this respect, the requirement of reasonable accommodation (see above, part II.3) and the obligation to provide individualised treatment for the mental health of persons in compulsory confinement (see above, part III.2.2.1) should be mentioned as prime examples.

126The Court, however, also emphasises the necessity for domestic authorities to balance all the competing interests that are relevant and to strike a fair balance between them. The rights of persons with disabilities call for special protection, but they are not the only item in the weighing scales and they can be outweighed by other worthy interests. This has led to a small number of cases in which the Court was unable to follow the Committee RPD in its insistence on certain measures to be taken in order to ensure an effective enjoyment of human rights by persons with disabilities (see above, part V.2.2). The fact that such contradictions exist is inevitable, and they do not detract from the relevance of the Committee’s opinions.

127To the extent that the CRPD principles are not subsumed in the Convention, the CRPD is a treaty of the kind that is referred to in Article 53 of the Convention, that is, a treaty that goes further than the Convention in its protection of specific rights for a particular category of persons.

128This does not mean that these principles cannot one day become part of the interpretation of the Convention. It usually takes some time before the Court notices an “evolving convergence” of the Contracting Parties to new standards (see above, this part VI). The “impetus” for the Court provided by developments at international level is often contingent on internal developments in the States parties, as indications of a new “State practice.”

129As far as the Convention’s contribution to the rights of persons with disabilities is concerned, we have yet to hear the last of it.

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Notes

1 It is said, for instance, that the Convention does not satisfactorily embrace the “social model” of disability. See Wiesbrock A. 2017. Disability as a form of vulnerability under EU and CoE law: Embracing the “social model”? In F. Ippolito & S. Iglesias Sánchez (eds). Protecting vulnerable groups. The European Human Rights framework: (71) 73. Hart.

2 See for the foundations of this case law, ECtHR, 22 November 1995, S.W. v. United Kingdom, no. 20166/92, § 44, and C.R. v. United Kingdom, no. 20190/92, § 42;  ECtHR, 29 February 2002, Pretty v. United Kingdom, no. 2346/02, § 65.

3 ECtHR [GC], 28 September 2015, Bouyid v. Belgium, no. 23380/09, § 101.

4 ECtHR [GC], 9 July 2013, Vinter and Others v. United Kingdom, no. 66069/09 and others, § 113; ECtHR [GC], 26 April 2016, Murray v. Netherlands, no. 10511/10, § 101.

5 ECtHR, 30 January 2018, Enver Şahin v. Türkiye, no. 23065/12, § 70.

6 See, in particular, Art. 3 CRPD: “The principles of the present Convention shall be: (a) Respect for inherent dignity […] of persons; […].

7 See, among many others, ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 61; ECtHR [GC], 17 January 2023, Fedotova and Others v. Russia, no. 40792/10 and others, § 141.

8 ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 62; ECtHR, 10 June 2010, Jehovah’s Witnesses of Moscow and Others v. Russia, no. 302/02, § 135. See also ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 70 (“a person’s freedom to make his or her own choices”).

9 See ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 61. The right to self-determination is sometimes considered to be a “right” embraced by the right to respect for private life (ECtHR [GC], 22 January 2008, E.B. v. France, no. 43546/02, § 43; ECtHR [GC], 3 November 2011, S.H. and Others v. Austria, no. 57813/00, § 80; ECtHR [GC], 27 August 2015, Parrillo v. Italy, no. 46470/11, § 153; ECtHR [GC], 24 January 2017, Paradiso and Campanelli v. Italy, no. 25358/12, § 159.

10 See Art. 3 CRPD: “The principles of the present Convention shall be: (a) […] individual autonomy including the freedom to make one’s own choices, […].”

11 ECtHR, 24 February 1998, Botta v. Italy, no. 21439/93, § 35.

12 ECtHR, dec. 14 May 2002, Zehnalová and Zehnal v. Czech Republic, no. 38621/97.

13 ECtHR, dec. 25 June 2019, Glaisen v. Switzerland, no. 40477/13, §§ 49-50.

14 ECtHR, 31 May 2022, Arnar Helgi Lárusson v. Iceland, no. 23077/19, §§ 45-46.

15 ECtHR, 2 October 2012, Plesó v. Hungary, no. 41242/08, § 66.

16 See, e.g., ECtHR, 6 April 2017, A.P., Garçon and Nicot v. France, nos. 79885/12, 52471/13 and 52596/13, § 129; ECtHR, 13 April 2023, Mayboroda v. Ukraine, no. 14709/07, § 52.

17 ECtHR, 22 November 2022, G.M. and Others v. Moldova, no. 44394/15, §§ 84-85; ECtHR, 26 March 2024, V.I. v. Moldova, no. 38963/18, § 94.

18 ECtHR, 8 November 2011, V.C. v. Slovakia, no. 18968/07, § 107.

19 ECtHR, 22 November 2022, G.M. and Others, cited above, note 17, at §§ 134 and 147.

20 ECtHR, 23 July 2015, Bataliny v. Russia, no. 10060/07, § 90. Compare, in a case where the Court accepted that a sexual offender had consented to a given medical treatment, notwithstanding the fact that in the circumstances there was some pressure to accept that treatment, ECtHR, 6 November 2014, Dvořáček v. Czech Republic, no. 12927/13, §§ 104-105.

21 ECtHR [GC], 31 January 2019, Fernandes de Oliveira v. Portugal, no. 78103/14, § 112. See also, among others, ECtHR, 3 April 2001, Keenan v. United Kingdom, no. 27229/95, § 92; ECtHR, dec. 7 January 2003, Younger v. United Kingdom, no. 57420/00; ECtHR, 5 July 2005, Trubnikov v. Russia, no. 49790/99, § 70; ECtHR, 16 October 2008, Renolde v. France, no. 5608/05, § 83; ECtHR, 22 January 2013, Mitić v. Serbia, no. 31963/08, § 47; ECtHR, 2 September 2021, Ražnatović v. Montenegro, no. 14742/18, § 37. All these cases concern suicides by persons deprived of their liberty and an alleged lack of precautionary measures.

22 ECtHR, 23 March 2017, A.-M. v. Finland, no. 53251/13, § 90; ECtHR, 28 May 2020, Evers v. Germany, no. 17895/14, § 82; ECtHR, 18 May 2021, M.K. v. Luxembourg, no. 51746/18, § 67; ECtHR, 6 July 2023, Calvi and C.G. v. Italy, no. 46412/21, § 104.

23 See Art. 3 CRPD: “The principles of the present Convention shall be: (a) […] independence of persons […].”

24 Committee RPD, General comment No. 5 (2017) on living independently and being included in the community, § 16, a.

25 See Committee RPD, General comment No. 5 (2017), cited above, note 24, at § 16, c.

26 ECtHR, 21 January 2020, Strazimiri v. Albania, no. 34602/16, § 122.

27 ECtHR [GC], 17 January 2012, Stanev v. Bulgaria, no. 367650/06, § 250.

28 Ibid., § 252.

29 ECtHR, 2 June 2020, N.T. v. Russia, no. 14727/11, § 52; ECtHR, 19 January 2021, Shlykov and Others v. Russia, nos. 78638/11 and 3 others, § 95.

30 ECtHR, 16 November 2021, N. v. Romania (no. 2), no. 38048/18, § 166. The Court, however, had to conclude that there was a violation of Article 5, § 1, of the Convention, as the applicant had never actually been released (ibid.).

31 ECtHR, 6 July 2023, Calvi and C.G., cited above, note 22, at §§ 107-108.

32 ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at §§ 171-177.

33 ECtHR, 28 May 2009, Bigaeva v. Greece, no. 26713/05, § 22; ECtHR, 19 October 2010, Özpinar v. Türkiye, no. 20999/04, § 45; ECtHR [GC], 5 September 2017, Bărbulescu v. Romania, no. 61496/08, § 70; ECtHR [GC], 17 January 2023, Fedotova and Others, cited above, note 7, at § 143. See also ECtHR, dec. 11 April 2006, Mółka v. Poland, no. 56550/00.

34 See Art. 3 CRPD: “The principles of the present Convention shall be: […] (c) Full and effective participation and inclusion in society […]”

35 ECtHR, dec. 11 April 2006, Mółka, cited above, note 33.

36 See, among others, ECtHR [GC], 16 March 2010, Carson and Others v. United Kingdom, no. 42184/05, § 61; ECtHR [GC], 5 September 2017, Fábián v. Hungary, no. 78117/13, § 113; ECtHR [GC], 9 June 2022, Savickis and Others v. Latvia, no. 49270/11, § 181.

37 See, among others, ECtHR, 30 April 2009, Glor v. Switzerland, no. 13444/04, § 80; ECtHR, 10 September 2020, G.L. v. Italy, no. 59751/15, § 34; ECtHR, 25 January 2022, Negovanović and Others v. Serbia, nos. 29907/16 and three others, § 76.

38 There are plenty of examples in the Court’s case law. To mention a recent one, the Court held that a system of financial awards by the State for athletes and chess players who had won medals at international competitions discriminated against blind chess players, who for no apparent reason were not eligible (ECtHR, 25 January 2022, Negovanović and Others, cited above, note 37, at §§ 83-92).

39 See, with respect to discrimination of persons with disabilities, among many other cases, ECtHR, 23 February 2016, Çam v. Türkiye, no. 51500/08, § 54; ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 54; ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at § 174.

40 See Art. 3 CRPD: “The principles of the present Convention shall be: […] (b) Non-discrimination […]; (e) Equality of opportunity […].”

41 “‘Reasonable accommodation’ means 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.” See ECtHR, 23 February 2016, Çam, cited above, note 39, at § 65; ECtHR, dec. 8 November 2016, Sanlisoy v. Türkije, no. 77023/12, § 60; ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 67; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 62; ECtHR, 26 October 2021, Toplak and Mrak v. Slovenia, nos. 34591/19 and 42545/19, § 114; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 59; ECtHR, 11 April 2023, T.H. v. Bulgaria, no. 46519/20, § 104.

42 For the principle, see ECtHR [GC], 6 April 2000, Thlimmenos v. Greece, no. 34369/97, § 44.

43 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 66; ECtHR, dec. 8 November 2016, Sanlisoy, cited above, note 41, at § 61; ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 68; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 63; ECtHR, 11 April 2023, T.H. v. Bulgaria, cited above, note 41, at § 104, d.

44 ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 67; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 62; ECtHR, 11 April 2023, T.H. v. Bulgaria, cited above, note 41, at § 104, b.

45 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 111; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 56.

46 See ECtHR, 22 March 2016, Guberina v. Croatia, no. 23682/13, § 87; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 64.

47 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at §§ 120-121.

48 Ibid., at §§ 122-132 ; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 62-65.

49 See ECtHR, dec. 29 January 2019, Neagu v. Romania, no. 49651/16, §§ 30-31.

50 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 68; ECtHR, 22 March 2016, Guberina, cited above, note 46, at §§ 84-86 and 92; ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at §§ 71-72; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 70.

51 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 64 (access of a blind teen-age child to a music academy); ECtHR, dec. 8 November 2016, Sanlisoy, cited above, note 41, at § 59 (access of an autistic child to a private nursery school); ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 62 (access of a student to university classrooms). See also ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 53 (access of an autistic child to an ordinary primary school).

52 See ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 63-64 (lack of access to two particular public buildings not considered discriminatory, having regard to the efforts already made to make other buildings accessible).

53 See ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at §§ 70-72 (provision of human aid to move the applicant around a three-storey building considered insufficient, having regard to the potential effects of this kind of support on the applicant’s security, dignity and autonomy).

54 For rare examples, see ECtHR, 8 November 2012, Z.H. v. Hungary, no. 28973/11, § 43; ECtHR, 6 February 2014, Semikhvostov v. Russia, no. 2689/12, § 85. See also ECtHR, 6 November 2014, Dvořáček, cited above, note 20, at § 93.

55 See, in particular, ECtHR, 20 May 2010, Alajos Kiss v. Hungary, no. 38832/06, § 42; ECtHR, 10 March 2011, Kiyutin v. Russia, no. 2700/10, § 63; ECtHR, 22 March 2016, Guberina, cited above, note 46, at § 73; ECtHR, 31 May 2016, A.N. v. Lithuania, no. 17280/08, § 125; ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 73; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 54; ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 55; ECtHR, 8 February 2022, Jivan v. Romania, no. 62250/19, § 42; ECtHR, 20 February 2024, Diaconeasa v. Romania, no. 53162/21, § 48; ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at § 170.

56 See, among others, ECtHR, 24 September 1992, Herczegfalvy v. Austria, no. 10533/83, § 82; ECtHR, 14 February 2012, D.D. v. Lithuania, no. 13469/06, § 173; ECtHR, 10 January 2013, Claes v. Belgium, no. 43418/09, § 101; ECtHR, 15 September 2020, Aggerholm v. Denmark, no. 45439/18, § 83; ECtHR, 22 November 2022, G.M. and Others, cited above, note 17, at § 87; ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at § 97. See also ECtHR [GC], 31 January 2019, Rooman v. Belgium, no. 18052/11, § 145; ECtHR, 24 January 2022, Sy v. Italy, no. 11791/20, § 79.

57 See, for example, with respect to stereotyping by the legislature or other rulemakers, ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at § 42; ECtHR, 10 March 2011, Kiyutin, cited above, note 55, at § 63; ECtHR, 22 March 2016, Guberina, cited above, note 46, at § 73; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 125; ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 73; ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 55. For an example of stereotyping by various administrative authorities, see ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at §§ 171-177. For an example of judicial stereotyping, see ECtHR, 25 July 2017, Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, §§ 46 and 54, and the concurring opinion of Judge Yudkivska.

58 ECtHR, 17 March 2015, Stefan Stankov v. Bulgaria, no. 25820/07, § 102.

59 ECtHR, 29 March 2016, Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 109-112; ECtHR, 18 February 2020, Cînța v. Romania, no. 3891/19, § 57.

60 ECtHR, 27 March 2008, Shtukaturov v. Russia, no. 44009/05, § 95; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 124; ECtHR, 3 October 2019, Nikolyan v. Armenia, no. 74438/14, §§ 123 and 125; ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at §§ 65-66.

61 ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 90; ECtHR, 6 July 2023, Calvi and C.G., cited above, note 22, at §§ 96 and 104.

62 ECtHR, 14 February 2012, D.D. v. Lithuania, cited above, note 56, at §§ 118 and 150; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 95; ECtHR, 3 October 2019, Nikolyan, cited above, note 60 at, § 109.

63 See, among others, ECtHR, 5 July 1999, Matter v. Slovakia, no. 31534/96, § 68; ECtHR, 27 March 2008, Shtukaturov, cited above, note 60, at § 83; ECtHR, 22 January 2013, Lashin v. Russia, no. 33117/02, § 77; ECtHR, 18 September 2014, Ivinović v. Croatia, no. 13006/13, § 35; ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 53.

64 ECtHR, 3 November 2011, X and Y v. Croatia, no. 5193/09, § 91; ECtHR, 18 September 2014, Ivinović, cited above, note 63, at § 38; ECtHR, 18 May 2021, M.K. v. Luxembourg, cited above, note 22, at § 62; ECtHR, 6 July 2023, Calvi and C.G. v. Italy, cited above, note 22, at § 88.

65 ECtHR, 27 March 2008, Shtukaturov, cited above, note 60, at § 94; ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 90; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 123; ECtHR, 3 October 2019, Nikolyan, cited above, note 60, at § 122.

66 ECtHR, 27 March 2008, Shtukaturov, cited above, note 60, at § 87; ECtHR, 13 October 2009, Salontaji-Drobnjak v. Serbia, no. 36500/05, § 141; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 116; ECtHR, 3 October 2019, Nikolyan, cited above, note 60, at § 120.

67 ECtHR, 5 July 1999, Matter, cited above, note 63, at § 68; ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 97; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 126.

68 ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at §§ 241-245, referring among others to Article 12, § 4, of the CRPD; ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 97, also referring to that provision; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 126.

69 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 205.

70 ECtHR [GC], 26 October 2000, Kudła v. Poland, no. 30210/96, § 93. In the same sense, among many others, ECtHR [GC], 19 February 2009, A. and Others v. United Kingdom, no. 3455/05, § 128; ECtHR [GC], 17 September 2009, Enea v. Italy, no. 74912/01, § 58.

71 The State has a positive obligation to protect vulnerable persons, and its responsibility can therefore be engaged as a result of detention in a private clinic (ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 120).

72 See, among others, ECtHR, 16 May 2005, Storck v. Germany, no. 61603/00, § 74; ECtHR, 27 March 2008, Shtukaturov, cited above, note 60, at § 106; ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 117.

73 ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 116.

74 See, for a recapitulation of the general principles established in the Court’s case law, ECtHR [GC], 1 June 2021, Denis and Irvine v. Belgium, nos. 62819/17 and 63921/17, §§ 125-132.

The reference to a “procedure prescribed by law” implies that the procedure followed should be “fair and proper” (ECtHR, 24 October 1979, Winterwerp v. Netherlands, no. 6301/73, § 45). It should be noted that the person concerned plays a dual role in the proceedings: he or she is an interested party, and, at the same time, the main object of the competent body’s examination. Therefore, hearing the person concerned either in person or through some form of representation is indispensable (ECtHR, 2 May 2013, Zagidulina v. Russia, no. 11737/06, § 62; ECtHR, 5 February 2015, Mifobova v. Russia, no. 5525/11, § 57).

75 See, among many others, ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 145; ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 192. The three conditions were first formulated in ECtHR, 24 October 1979, Winterwerp, cited above, note 74, at § 39, and are therefore called the “Winterwerp conditions.”

76 See, among many others, ECtHR [GC], 4 December 2018, Ilnseher v. Germany, nos. 10211/12 and 27505/14, §§ 129-132.

77 See, among others, ECtHR, 20 February 2003, Hutchison Reid v. United Kingdom, no. 50272/99, § 52; ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 146; ECtHR [GC], 4 December 2018, Ilnseher, cited above, note 76, at § 133; ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 193.

78 Referring to various European and international recommendations, the Court recently held that “an intellectual disability is in itself insufficient ground for placement in a psychiatric hospital [and] psychiatric treatment” (ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at § 137).

79 For some examples where the Court found that the existence of a mental disorder was not sufficient to warrant confinement, see ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 118; ECtHR, 20 February 2018, X v. Russia, no. 3150/15, §§ 41-42.

80 See, in particular with respect to detentions of persons “of unsound mind” under Article 5, § 1, e, among many others, ECtHR, 4 April 2000, Witold Litwa v. Poland, no. 26629/95, § 78; ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 143; ECtHR [GC], 4 December 2018, Ilnseher, cited above, note 76, at § 137; ECtHR [GC], 1 June 2021, Denis and Irvine, cited above, note 74, at § 130. Deprivation of liberty should not only be lifted when the circumstances necessitating it cease to exist or change, but its modalities should also be “scaled down” to the extent which is absolutely necessary under the given circumstances (ECtHR, 22 November 2016, Hiller v. Austria, no. 1967/14, § 54, with respect to the transfer of an involuntarily detained psychiatric patient from a closed ward to an open ward).

81 See ECtHR, 2 October 2012, Plesó, cited above, note 15, at § 68; ECtHR, 26 February 2015, Zaichenko v. Ukraine (no. 2), no. 45797/09, § 100.

82 See, among others, ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 153; ECtHR, 22 January 2013, Mihailovs v. Latvia, no. 35939/10, § 145; ECtHR, 24 January 2022, Sy, cited above, note 56, at § 110.

83 See ECtHR, 26 June 2018, D.R. v. Lithuania, no. 691/15, § 95.

84 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 194.

85 Ibid., at §§ 197 and 200.

86 Ibid., at § 205.

87 Ibid., at § 209. See also ECtHR, 24 January 2022, Sy, cited above, note 56, at § 115.

88 The term “therapeutic abandonment” has been used by the European Committee for the Prevention of Torture (hereafter CPT) in a number of reports on Albania, and then borrowed by the Court in some cases (ECtHR, 21 January 2020, Strazimiri, cited above, note 26, at § 109; ECtHR, 24 January 2022, Sy, cited above, note 56, at § 80).

89 See for information on the draft and its history, on the Council of Europe’s website on “Human Rights and Biomedicine”: www.coe.int/en/web/bioethics/protection-with-regard-to-involuntary-measures.

90 Open letter of June 2021, published on the website of the Committee RPD, www.ohchr.org/en/treaty-bodies/crpd/statements-declarations-and-observations.

91 ECtHR [GC], dec. 15 September 2021 on the competence of the Court to give an advisory opinion under Article 29 of the Oviedo Convention, available on HUDOC. The Court recognised that it had jurisdiction under Article 29 of the Oviedo Convention, but a majority of the Grand Chamber found that the two questions fell outside its competence. These questions concerned a matter that was left to the Contracting Parties to determine in their respective legislation, and whose degree of latitude could not be restricted by an interpretation of the Oviedo Convention by the Court (§§ 65-67). To the extent that DH-BIO intimated that the Court should have regard to the European Convention and its case law, the Court found that it could not within the framework of the advisory opinion procedure interpret the provisions of the European Convention, and a fortiori not modify its existing interpretation (presumably for the sake of aligning it with the CRPD) (§ 68). The Court nevertheless reminded the Contracting Parties that in implementing the relevant provisions of the Oviedo Convention, they would have “to satisfy, at the very least, the requirements of the relevant provisions of the [European] Convention, as developed by the Court through its case-law [which], in relation to the treatment of mental disorder, […] is extensive” (§ 69).

92 See Committee of Ministers documents CM(2022)14-add1 (draft additional protocol) and CM(2022)14-add2 (draft explanatory report).

93 Parl. Ass., recommendation 2227 (2022) of 26 April 2022 on “Deinstitutionalisation of persons with disabilities,” point 2.3; resolution 2431 (2022) of 26 April 2022 on “Deinstitutionalisation of persons with disabilities,” point 11.

94 Comm. Min., decision CM/Del/Dec(2022)1434/4.2.

95 See in that sense the proposal of the Committee of Ministers’ rapporteur group on human rights of 27 April 2022 “for a comprehensive approach to the further development and application of human-rights based responses in mental health care services,” GR-H(2022)7-rev.

96 See, among many others, ECtHR [GC], 26 October 2000, Kudła, cited above, note 70, at § 94; ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 204; ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 143.

97 See, among others, ECtHR, 14 November 2002, Mouisel v. France, no. 67263/01, § 38; ECtHR [GC], 17 September 2009, Enea, cited above, note 70, at § 58; ECtHR, 17 November 2015, Bamouhammad v. Belgium, no. 47687/13, § 123.

98 ECtHR, 5 March 2013, Gülay Çetin v. Türkiye, no. 44084/10, §§ 122-124; ECtHR, 28 November 2017, Dorneanu v. Romania, no. 55089/13, §§ 95-99; ECtHR, 22 March 2022, Cosovan v. Moldova, no. 13472/18, §§ 87-89.

99 See, among others, ECtHR, 26 October 2006, Khudobin v. Russia, no. 59696/00, § 92; ECtHR, 15 November 2012, Yermolenko v. Ukraine, no. 49218/10, § 49. For a telling example, see the case of a man aged 84 years, paraplegic and suffering from a number of serious diseases, ECtHR, 2 December 2004, Farbtuhs v. Latvia, no. 4672/02, §§ 56-59.

100 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 148; ECtHR, 24 January 2022, Sy, cited above, note 56, at § 81.

101 See, among many others, ECtHR, 2 December 2004, Farbtuhs, cited above, note 99, at § 56; ECtHR [GC], 17 July 2014, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, no. 47848/08, § 131.

102 For examples, see ECtHR, 24 October 2006, Vincent v. France, no. 6253/03, §§ 100-103; ECtHR, 25 June 2013, Grimailovs v. Latvia, no. 6087/03, §§ 157-159; ECtHR, 6 February 2014, Semikhvostov, cited above, note 54, at § 81; ECtHR, 15 September 2015, Shishanov v. Moldova, no. 11353/06, §§ 97-100.

103 ECtHR, 25 June 2013, Grimailovs, cited above, note 102, at § 161; ECtHR, 6 February 2014, Semikhvostov, cited above, note 54, at § 85. See also ECtHR, 19 February 2015, Helhal v. France, no. 10401/12, § 62; ECtHR, 22 March 2016, Butrin v. Russia, no. 16179/14, § 63.

104 ECtHR, 12 February 2013, D.G. v. Poland, no. 45705/07, § 147; ECtHR, 22 February 2022, Shirkhanyan v. Armenia, no. 54547/16, § 164.

105 ECtHR, 10 May 2016, Topekhin v. Russia, no. 78774/13, § 86. See also ECtHR, 20 May 2010, Engel v. Hungary, no. 46857/06, § 27; ECtHR, 19 February 2015, Helhal, cited above, note 103, at § 62; ECtHR, 22 February 2022, Shirkhanyan, cited above, note 104, at § 152. For a case where the Court held that an arrangement to enable the applicant (who had amputated forearms) to call on his fellow inmates was exceptionally not condemnable, see ECtHR, 12 March 2013, Zarzycki v. Poland, no. 15351/03, §§ 116-118.

106 ECtHR, 6 February 2014, Semikhvostov, cited above, note 54, at § 80. See also, with respect to a mute and deaf prisoner, ECtHR, 5 October 2017, Ābele v. Latvia, nos. 60429/12 and 72760/12, §§ 70-75.

107 See, among others, ECtHR, 9 September 2010, Xiros v. Greece, no. 1033/07, §§ 73 and 76; ECtHR, 23 July 2013, Ürfi Çetinkaya v. Türkiye, no. 19866/04, §§ 89 and 92; ECtHR, 14 January 2021, Kargakis v. Greece, no. 27025/13, § 75.

108 See ECtHR, 12 February 2013, D.G. v. Poland, cited above, note 104, at § 176.

109 ECtHR, 19 March 2020, Fabris and Parziale v. Italy, no. 41603/13, § 77; ECtHR, 31 March 2020, Jeanty v. Belgium, no. 82284/17, § 99.

110 ECtHR, 22 November 2016, Hiller, cited above, note 80, at § 48; ECtHR [GC], 31 January 2019, Fernandes de Oliveira, cited above, note 21, at § 113.

111 For recent examples, see ECtHR, 30 June 2020, S.F. v. Switzerland, no. 23405/16, § 98 (suicide in a police cell); ECtHR, 11 May 2021, Epure v. Romania, no. 73731/17, §§ 75-76 (deterioration of the mental condition of a prisoner who was placed under a maximum security regime).

112 ECtHR, 22 November 2016, Hiller, cited above, note 80, at § 54. See also, in the same sense, ECtHR [GC], 31 January 2019, Fernandes de Oliveira, cited above, note 21, at § 117.

113 ECtHR [GC], 31 January 2019, Fernandes de Oliveira, cited above, note 21, at § 124. The Court even considers that “any hospitalisation of a psychiatric patient, whether involuntary or voluntary, inevitably involves a certain level of restraint as a result of the patient’s medical condition and the ensuing treatment by medical professionals.”

114 ECtHR, 24 September 1992, Herczegfalvy, cited above, note 56, at § 83; ECtHR, 14 February 2012, D.D. v. Lithuania, cited above, note 56, at § 174.

115 ECtHR, 24 September 1992, Herczegfalvy, cited above, note 56, at § 83; ECtHR, 14 February 2012, D.D. v. Lithuania, cited above, note 56, at § 173; ECtHR, 19 February 2015, M.S. v. Croatia (no. 2), no. 75450/12, § 98; ECtHR, 23 July 2015, Bataliny, cited above, note 20, at § 87; ECtHR, 15 September 2020, Aggerholm, cited above, note 56, at § 83; ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at § 95.

116 ECtHR, 26 March 2024, V.I. v. Moldova, cited above, note 17, at §§ 151-155 and 157.

117 ECtHR, 18 October 2012, Bureš v. Czech Republic, no. 37679/08, § 95; ECtHR, 19 February 2015, M.S. v. Croatia (no. 2), no. 75450/12, § 104; ECtHR, 15 September 2020, Aggerholm, cited above, note 56, at § 84. This principle can be seen as an application of the principle of “least restriction” (see recommendation Rec(2004)10 of the Committee of Ministers of 22 September 2004 concerning the protection of human rights and the dignity of persons with mental disorders, Article 8 of the guidelines).

118 See, among many others, ECtHR, 14 November 2002, Mouisel, cited above, note 97, at § 40; ECtHR [GC], 23 March 2016, Blokhin v. Russia, no. 47152/06, § 136; ECtHR [GC], 26 April 2016, Murray, cited above, note 4, at § 105; ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 143.

119 See, among many others, ECtHR, 18 December 2008, Ukhan v. Ukraine, no. 30628/02, § 74; ECtHR [GC], 23 March 2016, Blokhin, cited above, note 118, at § 137; ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 147.

120 See, among many others, ECtHR, 7 February 2012, Cara-Damiani v. Italy, no. 2447/05, § 66; ECtHR [GC], 23 March 2016, Blokhin, cited above, note 118, at § 137; ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 147.

121 See, among others, ECtHR, 2 December 2004, Farbtuhs, cited above, note 99, at § 56; ECtHR, 26 October 2006, Khudobin, cited above, note 99, at § 93; ECtHR, 19 February 2015, Helhal, cited above, note 103, at §§ 50 and 56-58; ECtHR, 17 March 2022, Normantowicz v. Poland, no. 65196/16, §§ 81 and 84-95.

122 ECtHR, 2 December 2004, Farbtuhs, cited above, note 99, at § 60; ECtHR, 3 February 2009, Kaprykowski v. Poland, no. 23052/05, §§ 73-74; ECtHR, 11 May 2021, Epure, cited above, note 111, at §§ 80-81.

123 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 145.

124 Ibid., § 146.

125 The prolonged absence of an individualised strategy amounts to detaining the prisoner concerned in a situation that is inhuman or degrading (ibid., § 157; ECtHR, 11 May 2021, Epure, cited above, note 111, at § 86; ECtHR, 24 January 2022, Sy, cited above, note 56, at § 88).

126 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 166. However, the detainee’s cooperation is only one factor to be taken into account in assessing the effectiveness of the treatment (ECtHR, 11 May 2021, Epure, cited above, note 111, at § 85).

127 ECtHR, 16 October 2008, Renolde, cited above, note 21, at § 104.

128 ECtHR, 27 February 2018, Mockutė v. Lithuania, no. 66590/09, § 125.

129 Ibid., § 129.

130 Ibid., § 130.

131 ECtHR, 14 February 2012, D.D. v. Lithuania, cited above, note 56, at § 118; ECtHR, 31 May 2016, A.N. v. Lithuania, cited above, note 55, at § 90.

132 On the principle, see ECtHR [GC], 6 October 2005, Hirst v. United Kingdom (no. 2), no. 74025/01, § 59.

133 ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at § 38; ECtHR, 2 February 2021, Strøbye and Rosenlind v. Denmark, nos. 25802/18 and 27338/18, § 97; ECtHR, 11 May 2021, Caamaño Valle v. Spain, no. 43564/17, § 64; ECtHR, 15 February 2022, Anatoliy Marinov v. Bulgaria, no. 26081/17, § 52.

134 ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at § 42; ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at § 60; ECtHR, 15 February 2022, Anatoliy Marinov, cited above, note 133, at § 49.

135 ECtHR, 20 May 2010, Alajos Kiss, cited above, note 55, at §§ 39-44; ECtHR, 15 February 2022, Anatoliy Marinov, cited above, note 133, at §§ 53-58.

136 ECtHR, 2 February 2021, Strøbye and Rosenlind, cited above, note 133, at §§ 98-121.

137 ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at §§ 65-73.

138 For the principle, see ECtHR, 13 June 1979, Marckx v. Belgium, no. 6833/74, § 31. The recognition of the existence of positive obligations can be seen as an application of the principle of effectiveness (see Serghides G.. 2022. The principle of effectiveness and its overarching role in the interpretation and application of the ECHR, Strasbourg: 326-9). See with respect to persons with disabilities in particular, ECtHR, dec. 11 April 2006, Mółka, cited above, note 33; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at §§ 57 and 72; ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at §§ 111 and 117; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 56 and 60.

139 ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 71.

140 See, with respect to measures to be taken to eradicate the discrimination of which Roma are victims, ECtHR, 31 May 2022, X and Others v. Albania, nos. 73548/17 and 45521/19, § 84; ECtHR, 30 March 2023, Szolcsán v. Hungary, no. 24408/16, § 55.

141 See, among others, ECtHR, dec. 8 July 2003, Sentges v. Netherlands, no. 27677/02; ECtHR, dec. 4 January 2005, Pentiacova and Others v. Moldova, no. 14462/03; ECtHR, dec. 11 April 2006, Mółka, cited above, note 33; ECtHR, dec. 1 December 2009, Huc v. Romania and Germany, no. 7269/05, § 64; ECtHR, 20 May 2014, McDonald v. United Kingdom, no. 4241/12, § 54; ECtHR, 8 February 2022, Jivan, cited above, note 55, at § 50.

142 For the principle, see ECtHR, 26 March 1985, X and Y v. Netherlands, no. 8978/80, § 23. See, for an example involving a person with disabilities, ECtHR, dec. 29 January 2019, Neagu, cited above, note 49, at § 25.

143 See, among others, ECtHR, 20 May 2014, McDonald, cited above, note 141, at §§ 53-58 (denial of night-time care for a disabled person who argued that she had to get up several times during the night to go to the toilet).

144 ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at §§ 59-72 (refusal on financial grounds to offer specialist assistance to an autistic child, although such assistance was provided by domestic law); ECtHR, 8 February 2022, Jivan, cited above, note 55, at §§ 43-53 (denial of the benefit of a personal assistant to an elderly disabled person, on the basis of only a partial assessment of that person’s situation). See also ECtHR, 20 February 2024, Diaconeasa, cited above, note 55, at §§ 60-61 (withdrawal of care provided by a personal assistant, without an effective engagement with the disabled person’s predicament; note that the Court approached the case as one involving an interference, not a lack of action).

145 ECtHR, dec. 13 January 2000, Maggiolini v. Italy, no. 35800/97. See also ECtHR, dec. 4 May 1999, Marzari v. Italy, no. 36448/97.

146 See, for cases in which the Court found no violation of the Convention, ECtHR, dec. 14 May 2002, Zehnalová and Zehnal, cited above, note 12 (no access to a large number of public buildings, but the applicants failed to give details about the importance of these buildings for their particular needs); ECtHR, dec. 11 April 2006, Mółka, cited above, note 33 (no possibility for a person in a wheelchair to autonomously enter a polling station, but the possibility of being assisted by other persons; moreover, domestic law had in the meantime obliged the authorities to guarantee access to polling stations); ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at §§ 118-121 (inaccessibility of voting booth and ballot box for a person in a wheelchair, but the applicant could enter the polling station and the polling room, and he failed to explain how the fact that he had to vote in the middle of the room had impacted the secrecy of the voting procedure); ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 62-65 (inaccessibility of two public buildings, used for cultural and social events, but priority had been given to improve the accessibility of educational and sports facilities and further improvements to other buildings had in the meantime been made). And see, for a case in which the Court found a violation, ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at §§ 64-75 (failure to ensure access to university premises for students in wheelchairs, postponing any action until funds for major development works would be made available).

147 ECtHR, dec. 8 July 2003, Sentges, cited above, note 141 (refusal to provide a robotic arm to be mounted on an electric wheelchair, which was provided); ECtHR, dec. 4 January 2005, Pentiacova and Others, cited above, note 141 (State funding of a limited number of haemodialysis sessions per week); ECtHR, dec. 1 December 2009, Huc, cited above, note 141, at §§ 64-65 (complaint about the lack of a social programme adapted to the needs of the applicant); ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at §§ 126-131 (unavailability of assistive technologies to support people with disabilities to vote, because of the significant financial investment that would be required, while other options – assistance by other persons – were available).

148 For the principle, see, among many others, ECtHR [GC], 21 November 2001, McElhinney v. Ireland, no. 31253/96, § 36, Al-Adsani v. United Kingdom, no. 35763/97, § 55, and Fogarty v. United Kingdom, no. 37112/97, § 35.

149 ECtHR [GC], 12 September 2012, Nada v. Switzerland, no. 10593/08, § 170.

150 ECtHR [GC], 12 November 2008, Demir and Baykar v. Türkiye, no. 34503/97, § 85.

151 ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 159. But see the divergence noted in the Rooman case, mentioned in part V, 2, b, below.

152 ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 166; ECtHR, 8 February 2022, Jivan, cited above, note 55, at § 45; ECtHR, 20 February 2024, Diaconeasa, cited above, note 55, at § 57.

153 ECtHR, 18 February 2020, Cînța, cited above, note 59, at § 76 (juncto § 30).

154 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 65; ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 67; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 62; ECtHR, 25 January 2022, Negovanović and Others, cited above, note 37, at § 79; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 59; ECtHR, 11 April 2023, T.H. v. Bulgaria, cited above, note 41, at § 104.

155 ECtHR, 23 February 2016, Çam, cited above, note 39, at § 53; ECtHR, dec. 8 November 2016, Sanlisoy, cited above, note 41, at § 57; ECtHR, 30 January 2018, Enver Şahin, cited above, note 5, at § 60; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 37, at § 51.

156 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 112 (juncto § 55); ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 46 (juncto § 26).

157 ECtHR [GC], 17 January 2012, Stanev, cited above, note 27, at § 244 (juncto § 72); ECtHR, 22 January 2013, Lashin, cited above, note 63, at § 97; ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 74 (juncto § 40); ECtHR, 3 October 2019, Nikolyan, cited above, note 60, at §§ 95 and 101.

158 ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 59.

159 See, among others, ECtHR, 18 February 2020, Cînța, cited above, note 59, at § 75 (juncto § 32); ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 112; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at §§ 46 and 57.

160 ECtHR, 6 July 2023, Calvi and C.G. v. Italy, cited above, note 22, at § 106 (juncto § 55) (observations of the Committee RPD on the report presented to it by the respondent State).

161 See ECtHR, 22 March 2016, Guberina, cited above, note 46, at § 92; ECtHR, 3 October 2019, Nikolyan, cited above, note 60 at, § 95; ECtHR, 8 February 2022, Jivan, cited above, note 55, at § 45; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 14, at § 61.

162 ECtHR [GC], 12 May 2005, Öcalan v. Türkiye, no. 46221/99, § 163, quoting from the Chamber judgment of 12 March 2003 in that case, § 190; ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers v. United Kingdom, no. 31045/10, § 106; ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at § 53; ECtHR, 10 June 2021, Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway, no. 45487/17, § 98; ECtHR [GC], 14 December 2023, Humpert and Others v. Germany, no. 59433/18 and others, § 126.

163 ECtHR [GC], 27 April 2010, Tănase v. Moldova, no. 7/08, § 176; ECtHR, 10 March 2011, Kiyutin, cited above, note 55, at § 67; ECtHR, 23 March 2017, A.-M. V. v. Finland, cited above, note 22, at § 74; ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 30, at § 147.

164 See, among others, ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 162, at § 98 (with respect to the assessments made by the Committee of Experts of the International Labour Organisation and the European Committee on Social Rights); ECtHR [GC], 20 October 2016, Muršić v. Croatia, no. 7334/13, § 111 (with respect to the standards developed by the CPT); ECtHR [GC], 4 April 2018, Correia de Matos v. Portugal, no. 56402/12, § 135 (with respect to the interpretations given to the Covenant on Civil and Political Rights by the Human Rights Committee); ECtHR [GC], 14 December 2023, Humpert and Others, cited above, note 164, at § 126 (with respect to the analyses made by various European and international monitoring bodies under various European and international provisions relating to the right to strike).

165 ECtHR [GC], 20 October 2016, Muršić, cited above, note 164, at § 112. See also, with respect to the CPT and the United Nations Committee against Torture, ECtHR, 15 September 2020, Aggerholm, cited above, note 56, at § 100. A similar reasoning was developed with respect to the review effectuated by the Committee of Experts of the International Labour Organisation and the European Committee on Social Rights, operating under the supervisory procedures of the International Labour Organisation viz. the European Social Charter (ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 162, at § 98).

166 ECtHR [GC], 20 October 2016, Muršić, cited above, note 164, at § 113.

167 See, with respect to the standards of the International Labour Organisation and the European Social Charter, ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 162, at § 106; ECtHR, 10 June 2021, Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, note 162, at § 98.

168 ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at § 54.

169 ECtHR, 30 June 2020, Popović and Others v. Serbia, nos. 26944/13 and 3 others, § 79.

170 ECtHR [GC], 31 January 2019, Rooman, cited above, note 56, at § 205. The Court referred to Article 5, § 1, e, of the Convention, which allows for the deprivation of liberty of persons “of unsound mind,” on the one hand, and to the Committee RPD’s Guidelines, in which it states that “article 14 [of the CRPD] does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived impairment” (point 6), on the other hand.

171 ECtHR, 2 February 2021, Strøbye and Rosenlind, cited above, note 133, at § 112; ECtHR, 11 May 2021, Caamaño Valle, cited above, note 133, at § 59. The author feels compelled to note, for the record, that in his judicial capacity he disagreed with this opinion, expressed by a majority of the Chamber in the Caamaño Valle case (see his dissenting opinion appended to the judgment in that case).

172 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 41, at § 127. The Court referred to the views adopted by the Committee RPD on a communication (complaint) in an individual case.

173 See for the principle, among many others, ECtHR, 21 February 1990, Powell and Rayner v. United Kingdom, no. 9310/81, § 41.

174 See, among many others, ECtHR, 23 September 1982, Sporrong and Lönnroth v. Sweden, nos. 7151/75 and 7152/75, § 69; ECtHR [GC], 27 May 2008, N. v. United Kingdom, no. 26565/05, § 44.

175 For the principle, see ECtHR, 7 December 1976, Handyside v. United Kingdom, no. 5493/72, § 48.

176 See the cases mentioned in note 141. See also ECtHR [GC], 19 December 2017, Lopes de Sousa Fernandes, cited above, note 21, at § 175; ECtHR, 26 October 2021, Šaltinytė v. Lithuania, no. 32934/19, § 77.

177 Concurring opinion of Judge Wojtyczek, ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 162, at § 3.

178 Compare ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 162, at § 106; ECtHR, 10 June 2021, Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, note 162, at § 98.

179 For a recent confirmation, see ECtHR [GC], 17 January 2023, Fedotova and Others, cited above, note 7, at § 167.

180 Ibid.

181 NGOs defending the rights of persons with disabilities regularly intervene in their own right, as third-party interveners. Regular repeat players are the European Disability Forum, the International Disability Alliance and the Mental Disability Advocacy Centre (currently named Validity).

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Paul Lemmens

KU Leuven & European Court of Human Rights
paul.lemmens[at]kuleuven.be

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