The EU has a legal obligation of acceding to the European Convention of Human Rights (ECHR) and has since 2019 resumed the accession process to the Convention system of the Council of Europe. The EU, however, has already ratified the UN’s Convention on the Rights of Persons with Disabilities (CRPD) and thus has a legal problem with the ECHR’s Article 5 that conflicts with the CRPD, if the EU does not note any reservations.
There is a widespread agreement that it is desirable and necessary that the EU step up its human rights responsibility, including acceding to the ECHR. However, a number of issues are still to be addressed, possibly not even considered or realized yet. One of these is on the rights of persons with disabilities and mental health problems in case the EU accede to the ECHR.
Written in the years after the Second World War
The ECHR was conceived and written in the years after the Second World War to protect individuals against the abuses of their states, create confidence between populations and governments, and allow dialogue between states.
Europe and the world, in general, have developed considerably since 1950. Both technologically and in terms of viewpoints of the person and societal constructs. With such changes over the past seven decades, gaps in past realities and a lack of foresight in formulating certain article points in the ECHR pose challenges in perceiving and protecting human rights in today’s world.
The ECHR in this context includes text that limits the fundamental rights of persons with psychosocial disabilities. The ECHR drafted in 1949 and 1950 authorize the deprivation of “persons of unsound mind” indefinitely for no other reason than that these persons have a psychosocial disability. The text was formulated by representatives of the United Kingdom, Denmark and Sweden, led by the British, to authorize Eugenics caused legislation and practices that were in place in these countries at the time of the formulation of the Convention.
It was a widespread acceptance of Eugenics as an integral part of the social policy for population control that lay at the root of the efforts of the representatives of the United Kingdom, Denmark and Sweden to include an exemption clause, that would authorize the government’s policy to segregate and lock up “persons of unsound mind, alcoholic or drug addicts and vagrants”.
“it must be acknowledged that the European Convention on Human Rights (ECHR) is an instrument which dates from 1950 and the text of the ECHR reflects a neglect and outdated approach concerning the rights of persons with disabilities.”
Ms Catalina Devandas-Aguilar, UN Special Rapporteur on the rights of persons with disabilities
The Council of Europe in the last years has come into a serious dilemma between two of its own conventions, the ECHR and the Convention on Biomedicine and Human Rights, that contain texts based on outdated, discriminatory policies from the first part of the 1900s and the modern human rights promoted by the United Nations.
The Council of Europe has maintained the concerned convention text, and in reality, it is thus promoting viewpoints that practically perpetuate a Eugenics ghost in Europe.
Criticism of drafted text
Much of the criticism of a drafted possible new legal instrument currently being considered by the Council of Europe, which is extending the ECHR’s article 5, refer to the paradigm shift in viewpoint and the need for its implementation that took place with the adoption, in 2006, of the International Human Rights treaty: the Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD celebrates human diversity and human dignity. Its main message is that persons with disabilities are entitled to the full spectrum of human rights and fundamental freedoms without discrimination. The Convention promotes the full participation of persons with disabilities in all spheres of life. It challenges customs and behaviour based on stereotypes, prejudices, harmful practices and stigma relating to persons with disabilities.
The human rights approach to disability adopted by the United Nations is acknowledging persons with disabilities as subjects of rights and the State and others as having responsibilities to respect these persons.
Through this historic paradigm shift, the CRPD forges new ground and requires new thinking. Its implementation demands innovative solutions and leaving the past viewpoints behind.
The UN Committee on the Rights of Persons with Disabilities, as part of a public hearing in 2015, issued an unequivocal statement to the Council of Europe that “involuntary placement or institutionalization of all persons with disabilities, and particularly of persons with intellectual or psychosocial disabilities, including persons with ‘mental disorders’, is outlawed in international law by virtue of article 14 of the Convention [CRPD], and constitutes arbitrary and discriminatory deprivation of liberty of persons with disabilities as it is carried out on the basis of actual or perceived impairment.”
The UN Committee further pointed out to the Council of Europe that, States parties must “abolish policies, legislative and administrative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment.”
