A/HRC/40/54
their liberty unlawfully or arbitrarily. Article 14 further clarifies that deprivation of liberty
on the basis of impairment38 is discriminatory and, thus, contrary to the letter and spirit of
the Convention. In doing so, the Convention has fundamentally challenged the prevailing
understanding of the right to liberty in relation to persons with disabilities, superseding
previous standards and interpretations.
B.
Normative content of article 14 of the Convention
44.
Article 14 of the Convention articulates the content of the right to liberty and
security of person as it applies to persons with disabilities. Article 14 (1) (a) reaffirms the
right to liberty and security of all persons with disabilities on an equal basis with others.
Article 14 (1) (b) stipulates that persons with disabilities cannot be deprived of their liberty
unlawfully or arbitrarily, and further clarifies that disability shall in no case justify a
deprivation of liberty. Finally, article 14 (2) reaffirms that all persons with disabilities
deprived of their liberty are entitled to procedural and substantive guarantees on an equal
basis with others, including conditions of accessibility and reasonable accommodation.
States parties thus have an obligation, with immediate effect, to: (a) refrain from engaging
in any action that unlawfully or arbitrarily interferes with the right to liberty, and from
authorizing such practices; (b) protect this right against practices by private actors such as
health professionals, and providers of housing and/or social services; and (c) take positive
action to facilitate the exercise of the right to liberty.
45.
The right to liberty of persons overlaps and interacts with other human rights and
fundamental freedoms under the Convention. Those rights include, but are not limited to,
equality and non-discrimination (art. 5), life (art. 10), equal recognition before the law (art.
12), access to justice (art. 13), freedom from torture or cruel, inhuman or degrading
treatment or punishment (art. 15), freedom from exploitation, violence and abuse (art. 16),
integrity (art. 17), liberty of movement and nationality (art. 18), living independently and
being included in the community (art. 19), freedom of expression and opinion, and access
to information (art. 21), privacy (art. 22), health, including the right to free and informed
consent (art. 25), work and employment (art. 27), an adequate standard of living and social
protection (art. 28), and participation in political and public life (art. 29).
46.
Article 14 establishes an absolute ban on deprivation of liberty on the basis of
impairment. While persons with disabilities can be arrested or detained lawfully, on an
equal basis with others, article 14 (1) (b) does not permit any exception whereby persons
can be deprived of their liberty on the basis of their actual or perceived impairment. Any
deprivation of liberty on such grounds would be discriminatory in nature and, thus, both
unlawful and arbitrary. These cases include, inter alia, the placement of persons with
disabilities into institutions, their involuntary commitment to mental health facilities, their
detention resulting from a declaration of unfitness to stand trial, exemption from criminal
responsibility or other diversionary mechanisms.
47.
The Committee on the Rights of Persons with Disabilities has further stipulated that
this absolute ban also applies when additional factors are used to justify the deprivation of
liberty; commonly, being regarded as a “danger to self or to others” or in need of treatment
or care.39 In this respect, the Committee has recalled that, during the drafting process of the
Convention, there were extensive discussions on the need to include a qualifier (“solely” or
“exclusively”). 40 States opposed those proposals, arguing that they could lead to
misinterpretation and allow cases of deprivation of liberty based on impairment if other
factors were present. Similarly, a proposal to include a provision on periodic review was
not included because such a provision would contradict the outright ban on the deprivation
of liberty on the grounds of impairments, and might lead to an interpretation that detention
38
39
40
See Committee on the Rights of Persons with Disabilities, “Guidelines on article 14 of the
Convention on the Rights of Persons with Disabilities: the right to liberty and security of persons with
disabilities” (2015), para. 6.
Ibid.
Ibid., para. 7.
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