•
Departs from a ‘medical model of disability’ that views persons with disabilities
as ‘objects’ of medical treatment and in need of charity;
•
Takes into consideration the ideas underpinning the “social model of disability”,
which views persons with disabilities as ‘subjects’ with rights and focuses on the
barriers persons with disabilities face that may hinder their societal participation;
•
Applies a “human rights-based approach to disability”, which recognizes the
intrinsic value of every person for their own end, ‘rather than focusing on a lack
of overall capabilities as measured against a functional baseline”.7
We are aware however that in the European context other terms are commonly used to
indicate the same or similar situations.
By way of example, the ECHR uses the word persons of “unsound mind” under Article
5(1)(e) ECHR, while the ECtHR often uses the term “mentally ill-persons”.
The CPT prefer the use of “patients” or “forensic patient” over the word “prisoners” when
talking about persons who were declared criminally irresponsible,8 but refers to
“prisoners suffering from a mental illness” to indicate prisoners serving imprisonment in
penitentiary facilities. 9
The CoE Council for Penological Co-Operation (PC-CP) speaks about prisoners with
“mental health disorders”.
EU law - and specifically the European Commission Recommendation of 27 November
2013 on procedural safeguards for vulnerable persons suspected or accused in criminal
proceedings - uses the term “vulnerable person”, which encompasses “all suspects or
accused persons who are not able to understand and to effectively participate in criminal
proceedings due to age, their mental or physical condition or disabilities.”10
7
Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou, The UN Convention on the Rights of
Persons with Disabilities: A Commentary (OUP 2018), especially Article 1 by Emily Kakoullis,
Yoshikazu Ikehara.
8
Malta CPT/Inf (2016) 25, para. 107
9
Ireland CPT/Inf (2015) 38, p. 8
10
Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable
persons suspected or accused in criminal proceedings (2013/C 378/02).
4