OVERVIEW OF RELEVANT STANDARDS 1.2. DEPRIVATION OF LIBERTY 1.2.1. EU STANDARDS The 2013 Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings53 calls upon Member States to strengthen certain procedural rights of vulnerable suspects or accused persons in criminal proceedings and of vulnerable persons who are subject to European arrest warrant proceedings. However, the principles in the detention context established by the Recommendation apply only until the conclusion of the criminal proceedings. In December 2022, the Commission issued a new Recommendation on procedural rights of suspects and accused persons subject to pre-trial detention and on material detention conditions.54 The Recommendation specifically refers to the UNCRPD and addresses persons with disabilities. Both Recommendations do not contain wording prohibiting deprivation of liberty based on disability. It should also be noted that both Recommendations do not provide for legally enforceable rights or obligations and are of a non-binding nature. Being a member of the UNCRPD, the EU also is subject to the reporting procedure before the UNCRPD Committee and to its concluding observations and recommendations. So far, the EU has undergone one review cycle. With respect to Art 14, the UNCRPD Committee noted that it was “concerned about the involuntary detention of persons with disabilities in psychiatric hospitals or other institutions on the basis of actual or perceived impairment” and recommended that “the European Union take all possible measures to ensure the liberty and security of all persons with all types of disabilities in line with the Convention and the Committee’s guidelines on article 14 (2015).”55 1.2.2. COUNCIL OF EUROPE STANDARDS According to the ECHR, any deprivation of liberty under Art 5 § 1 of the Convention must be “lawful” and “in accordance with 28 a procedure prescribed by law”.56 When it comes to the deprivation of liberty of persons with intellectual and/or psychosocial disabilities, Art 5(1)(e) ECHR comes into play. It states that “the purpose of the detention of(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”. The terminology used in the ECHR is in clear contradiction to the human rights approach to disability, laid out by the UNCRPD.57 The ECtHR has issued extensive jurisprudence on persons with intellectual and/or psychosocial disabilities in the context of criminal proceedings (based mainly on Art 5 ECHR) and criteria in order to strengthen the legal safeguards towards such defendants. In assessing the appropriateness of the medical institution, for instance, the Court has not taken into account so much of the facility’s primary aim, but rather the specific conditions of the detention and the possibility for the individuals concerned to receive suitable treatment therein.58 The Court has come up with the Winterwerp Criteria in order to identify the minimum conditions for the lawful detention of an individual on the basis of Article 5(1)(e) ECHR. These include that: • the persons must reliably be shown to be of “unsound mind”, i.e., a true mental disorder must be established before a competent authority on the basis of objective and independent medical evidence; • the mental disorder must be warranting compulsory confinement; • and the validity of continued confinement must depend upon the persistence of the disorder. In Rooman v. Belgium59, the ECtHR developed its position further, stating that any detention of mentally persons with intellectual and/or psychosocial disabilities must have a therapeutic purpose in order to cure or alleviate their mental-health condition, including, where appropriate, bringing about a reduction