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 29