A/HRC/40/54 V. Right to liberty and security of persons with disabilities A. Universal recognition of the right to personal liberty 38. The right to liberty and security is widely recognized in international and regional instruments as one of the most fundamental rights. Liberty of person concerns freedom from confinement of the body, and security of person concerns freedom from injury to the body and the mind.35 Hence, it is inextricably linked to the enjoyment of other human rights, including the right to personal integrity, the right to privacy, the right to health, the right to freedom of movement, and the right to freedom of assembly, association and expression. Moreover, persons deprived of their liberty are invariably placed into an extremely vulnerable position and experience a higher risk of being subjected to torture and inhuman and degrading treatment or punishment. 39. The right to personal liberty, as found in international human rights law, is not an absolute right. It can be restricted in accordance with the law, for example, in the enforcement of criminal laws or in the interest of public safety or public health. However, the right to liberty and security of person acts as a substantive guarantee that deprivation of liberty will not be unlawful or arbitrary. It is unlawful when it contradicts domestic or international human rights law, whereas it is arbitrary when it is imposed in a manner that is inappropriate, unjust, disproportionate, unpredictable, discriminatory or without due process. These two prohibitions often overlap. 36 40. Deprivation of liberty involves a more severe restriction on physical freedom than mere interference with liberty of movement. Individuals are deprived of their liberty when they are confined to a restricted space or placed in an institution or setting, not free to leave, and without free and informed consent. 37 Examples of deprivation of liberty include police custody, pretrial detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization, and placement of children in institutional care. They also include certain further severe restrictions on liberty, for example, solitary confinement or the use of restraints. 41. The universal nature of human rights means that the right to liberty and security cannot be denied on the basis of prohibited grounds, such as race, sex, age, disability, religion, national, ethnic, indigenous or social origin, or other status. Such deprivations of liberty are discriminatory and, thus, unlawful and arbitrary. However, for too long deprivation of liberty on the basis of actual or perceived impairment has been widely justified. As discussed, in most jurisdictions, administrative, civil and/or criminal legislation authorize the deprivation of liberty of persons on the basis of impairment or in combination with other factors (e.g., when the individual presents an alleged “risk to self or to others” or is in need of treatment or care). 42. Furthermore, the jurisprudence of international and regional human rights bodies has been historically supportive of these exceptions, despite the fact that no core human rights treaty states that disability can be used as a legitimated ground for deprivation of liberty. As a consequence, all these practices have been normalized, resulting in persons with disabilities worldwide experiencing disproportionately high levels of unlawful and arbitrary deprivation of liberty in various forms, from disability-specific forms of deprivation of liberty to detention in mainstream settings. 43. In that context, the adoption of the Convention on the Rights of Persons with Disabilities represented a milestone in the recognition of the right to liberty of persons with disabilities. Reaffirming the universality of human rights, the Convention reminds States parties of their obligation to respect, protect and fulfil the right to liberty of all persons with disabilities. Its article 14 stresses that persons with disabilities must enjoy the right to personal liberty on an equal basis with others and, therefore, that they cannot be deprived of 35 36 37 10 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 3. Ibid., para. 11. Ibid., paras. 5–6.