Criminalizing Disability: The Urgent Need of a New Reading of the European Convention on Human Rights

I. INTRODUCTIONThe first world report on disability stated that "[m]ore than one billion people in the world live with some form of disability, of whom nearly [two hundred] million experience considerable difficulties in functioning."1 This number amounts to about fifteen percent of the world's population.2 These statistics clearly show that persons with disabilities are an important part of the population and can be considered the largest minority in the world.3 This percentage is similar in Europe, where there are about 80 to 120 million persons with disabilities.4 According to statistics, "one in four Europeans has a family member with a disability."5The right to liberty of people with intellectual and psychosocial disabilities in Europe is enshrined in article 5(1)(e) of the European Convention on Human Rights ("ECHR").6 This Convention was drafted in 1950 and, sixty-four years later, it maintains the same wording despite significant changes in international human rights law. A rigid reading of this article leads to criminalizing people with intellectual or psychosocial disabilities and violates the dignity of those with disabilities.The ECHR refers to "persons of unsound mind."7 It does not, however, define "unsound mind" despite the importance of determining who falls within the ECHR's scope. According to Oxford Dictionary, the term "unsound" can have different meanings. When referring to a person, it means, "[n]ot physically sound; unhealthy, diseased; suffering from wounds or injuries."8 It is also defined as "[n]ot mentally sound or normal; not sane."9The term "unsound mind" is grossly overbroad and implies that such persons are not 'normal.' What is normality? Are persons of "unsound minds" those who have a mental illness? Are they those who have an intellectual10 or psychosocial11 disability? Does the ECHR's definition include patients in a coma? Whether article 5(1)(e) encompasses all of these categories is unclear. A person who has an "unsound mind" is supposedly someone who cannot exercise self-determination, unlike a person of a "sound mind," which some define as "[the] state of a man's mind which is adequate to reason and comes to a judgment upon ordinary subjects, like other rational men."12II. BACKGROUND: THE RIGHTS OF PERSONS WITH DISABILITIES UNDER INTERNATIONAL LAWThe Convention on the Rights of Persons with Disabilities ("CRPD") does not use the term "unsound mind."13 Instead, CRPD refers to persons with disabilities as part of a paradigm shift in the social perception of disabilities.14 Article 1 of the CRPD establishes that "[p]ersons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."15 The CRPD, which entered into force in 2008, is the latest United Nations human rights treaty.16 More countries signed the CRPD on the day of its introduction than any other UN convention.17 So far, 158 States have signed the CRPD and 161 have ratified it.18 Almost all the European States have signed the CRPD although a few holdouts remain.19Persons with disabilities are equally entitled to the rights of those who do not have disabilities.20 In practice, however, many states deprive people with disabilities of many rights that most take for granted. For this reason, a specific convention was necessary.21The Preamble of the CRPD is significant because it emphasizes equality and human dignity as fundamental values and principles of human rights to which people with disabilities are entitled. The Preamble provides that:Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world,Recognizing that . …