A/HRC/40/54 Human Rights Committee,47 the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/OP/27/2, paras 5–11) and the former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Méndez (A/HRC/22/53, para. 69). While they have ruled out the possibility of depriving a person of their liberty on the basis of medical necessity or need of care, they still maintain an exception in the case of risk to self or to others. 59. At the regional level, neither the Inter-American Court of Human Rights nor the African Court on Human and Peoples’ Rights have addressed the issue of deprivation of liberty on the basis of impairment since the adoption of the Convention. However, the newly adopted Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa builds on article 14 of the Convention, prohibiting any deprivation of liberty on the basis of impairment (art. 8 (5)). In the Inter-American system, the Inter-American Court of Human Rights has embraced article 14 (2) of the Convention arguing for accessibility and reasonable accommodation measures for prisoners with disabilities,48 whereas the Inter-American Commission on Human Rights has referred to article 14 (1) (b) of the Convention in a precautionary measure related to a psychiatric facility and a recent country report.49 60. The Convention for the Protection of Human Rights and Fundamental Freedoms from 1950 constitutes the only human rights instrument at either the regional or global level that contemplates an exception to the right to liberty and security based on impairment (art. 5 (1) (e)). In this respect, the European Court of Human Rights has developed a set of standards to determine when an individual can be deprived of their liberty on the basis of “unsound mind”.50 These standards not only contradict article 14 of the Convention on the Rights of Persons with Disabilities, but also fall below those developed by the international human rights mechanisms referred to above. 61. Against this background, the Special Rapporteur reiterates that the detention of persons with disabilities based on “danger to self or others”, “need of care” or “medical necessity” is unlawful and arbitrary. First, it is discriminatory insofar as it only, or disproportionately, applies to persons with an actual or perceived impairment, particularly persons with intellectual or psychosocial disabilities, persons with autism and persons with dementia. Second, it carries with it the denial of the person’s legal capacity to decide about care, treatment and admission to a hospital or institution, as well as violating the rights to personal integrity and freedom from torture and ill-treatment. Third, it is neither necessary nor proportionate as it breaches the essential content of the right to liberty and security of person and it does not achieve the purpose sought by the lawmaker. Moreover, it can obstruct people’s recovery and re-traumatize those who have previously experienced abuse. Furthermore, there is a growing body of evidence on the positive value of non-coercive support practices within and outside the health sector.51 62. The criterion of “danger to others” is arbitrary and unjust in and of itself as it results in the deprivation of liberty of persons with disabilities who have committed no actual offence whatsoever, contradicting the general principle of presumption of innocence. An individual who has actually committed an offence should have an opportunity to access justice on an equal basis with others, benefiting from the same procedural guarantees and safeguards. Notwithstanding the above, a radically different approach to criminal punishment is needed to avoid the overrepresentation of persons with disabilities in prisons due to discrimination in legal proceedings and social exclusion. The approach of restorative justice, which focuses on the rehabilitation of offenders by repairing the harm done to victims and the community at large, is a path to be explored. 47 48 49 50 51 14 Human Rights Committee, general comment No. 35, para. 19. Chinchilla Sandoval et al. v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 29 February 2016, para. 209. Precautionary measure No. 440-16, Zaheer Seepersad regarding Trinidad and Tobago, 4 August 2017, para. 21; and Situation of Human Rights in Guatemala, OEA/Ser.L/V/II, Doc. 208/17 (2017). Stanev v. Bulgaria (application No. 36760/06), judgment of 17 January 2012, para. 153. Gooding and others, Alternatives to Coercion.