JUSTICE FOR ALL
in or control over their dangerousness. It also
evoked the dual goal of deprivation of liberty,
stating it had a “social function of protection”
and a “therapeutic function that is related
to the individual interest of the person of
unsound mind in receiving an appropriate
and individualised form of therapy or course
of treatment.”60
To assess the lawfulness and arbitrariness
of the detention, the ECtHR also applies a
necessity test. This means that, to comply
with Art 5(1)(e) ECHR, the detention can
be applied only 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.61
The CPT has issued recommendations
regarding the treatment of persons with
mental health problems, such as making a
clear “institutional and functional separation
between mental health facilities (forensic
hospitals) and prisons” in light of the different
ethos and staffing profiles that characterise
prison establishments.62 Preferably, in the
CPT’s view, mental health facilities should
be under the responsibility of the national
health-care system. This is in contradiction
of the UNCRPD Committee’s position, which
recommends not to have separate facilities,
but rather to take an approach primarily
focused on inclusivity.
Among Council of Europe standards it
is relevant to refer to the Committee of
Ministers’ Recommendation Rec(2004)
concerning the protection of the human
rights and dignity of persons with mental
disorders. The Recommendation considers
that the principles established therein are
of relevance also in the criminal justice field
and that ‘imprisonment may be regarded as a
form of “involuntary placement”’, although the
term involuntary placement when used in the
Recommendation always means “involuntary
placement on grounds of mental disorder”.63
In this context, the Recommendation makes
clear that, “under criminal law, courts may
impose placement or treatment for mental
disorder whether the person consents to the
measures or not” (Art 34).
1.2.3. UN STANDARDS
The right to liberty and security, enshrined
by the UNCRPD in Art 14, was defined as
“one of the most controversial articles in
the UNCRPD”.64 According to the UNCRPD
Committee Guidelines on Art 14, “article
14(1)(b) prohibits the deprivation of liberty
on the basis of actual or perceived impairment even if additional factors or criteria
are also used to justify the deprivation of
liberty.” According to the interpretation of
the UNCRPD Committee, the UNCRPD
prohibits not only any form of deprivation
of liberty based on impairment but also any
court ordered mental health commitment
regimes and non-consensual mental health
treatments.
The UNCRPD Committee has consistently
recommended that EU Member States initiate a structural review of the procedures used
to sanction persons with disabilities when
they commit criminal offences.65Amongst
others, this review should aim to remove
the system of safety measures applicable
to persons with disabilities who have been
deprived of legal capacity. In other words:
• remove the concept of dangerousness and
the related preventive and security measures from its criminal law in cases where
a person with a psychosocial disability is
accused of a crime and ensure that safety
measures do not involve indeterminate
deprivations of liberty;66 and
• repeal the distinction made between
punishment and treatment, according to
which persons considered “unfit to stand
trial” on account of their impairment
are not punished but are sentenced to
treatment. Treatment is a social control
sanction and should be replaced by
formal criminal sanctions for offenders
whose involvement in a crime has been
determined.67
Two EU Member States (Ireland and the
Netherlands) have entered into declarations
concerning Art 14 CPRD. Both countries
declared their understanding that the
Convention allows for compulsory care or
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