A/HRC/40/54
is deeply connected with diversion from criminal justice systems into forensic services.
Deprivation of liberty may also result in restrictions to legal capacity. For example, in
certain jurisdictions, being placed in an institution leads automatically to formal deprivation
of legal capacity through legal incapacitation, and the institution itself becomes the person’s
guardian. Likewise, involuntary hospitalization in most cases entails forced medical
interventions. Furthermore, persons deprived of their legal capacity have limited
opportunities for challenging their placement or involuntary admission, as their capacity to
seek legal representation and participate in legal proceedings are often denied.
54.
Persons with disabilities deprived of their liberty must enjoy all the procedural and
substantive guarantees established in national and international law on an equal basis with
others, including the right to be informed promptly of the reasons for arrest, the right to
judicial control of the lawfulness of detention, and the right to immediate release and
compensation for unlawful or arbitrary arrest or detention. 43 Article 14 (2) of the
Convention clarifies that all these procedural and substantive guarantees apply when
persons with disabilities are deprived of their liberty “through any process”, that is, under
any type of criminal, civil or administrative arrest or detention, including mental healthrelated deprivation of liberty.
55.
Access to justice is essential in protecting the right to personal liberty. States have an
obligation to ensure effective access to justice for persons with disabilities deprived of their
liberty, on an equal basis with others, in order to facilitate their participation in all legal
proceedings to review the lawfulness of their detention, and to obtain redress and reparation.
This obligation includes ensuring the accessibility of police stations and courts, effective
access to information and communication, and the provision of procedural accommodations.
56.
The notion of support embedded in the Convention can play a role in deterring the
application of disability-specific detention regimes and other coercive measures (see
A/HRC/34/58). For example, whereas the current default response during crisis situations
in most jurisdictions is to override the legal capacity of the person and to authorize their
involuntary commitment, the support paradigm of the Convention calls for non-coercive
support responses within or outside the health sector. However, it must be underscored that
the obligation to end deprivation of liberty on the basis of impairment is independent of the
provision of support. States must fulfil their obligation to provide support alongside their
obligation to eliminate disability-based deprivation of liberty. The lack of support in the
community can never justify deprivation of liberty.
C.
Impact of the Convention on international and regional standards
57.
The paradigm shift of the Convention towards an absolute ban on the deprivation of
liberty on the basis of impairment has already had an important impact on the work of the
United Nations. Different entities, treaty bodies and special procedures have endorsed the
standards of article 14 of the Convention, including the Office of the United Nations High
Commissioner for Human Rights, 44 the World Health Organization,45 the Committee on the
Elimination of Discrimination against Women (CEDAW/C/IND/CO/4-5, para. 37), the
Working Group on Arbitrary Detention 46 and the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health
(A/HRC/35/21, para. 66).
58.
Nevertheless, since the adoption of the Convention, three human rights mechanisms
have challenged the absolute ban on deprivation of liberty on the basis of impairment: the
43
44
45
46
International Covenant on Civil and Political Rights, art. 9.
A/HRC/10/48, paras. 43–47; A/HRC/34/32, paras. 25–28; A/HRC/36/28, paras. 32, 40, 42 and 50;
and A/HRC/39/36, para. 46.
World Health Organization, QualityRights guidance and training tools, available at
www.who.int/mental_health/policy/quality_rights/en.
United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, paras. 38 and 103.
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