Bijlage 1 bij Position paper tegen Wetsvoorstel Verplichte GGZ - oktober 2016
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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
Adopted during the Committee’s 14th session, held in September 2015

I. Introduction
1. Since the Committee on the Rights of Persons with Disabilities (hereinafter, the
Committee) adopted a statement on article 14 of the United Nations Convention on the Rights
of Persons with Disabilities (hereinafter, the Convention), in September 2014,
(CRPD/C/12/2, Annex IV), some United Nations bodies as well as inter-governmental
processes have developed guidelines on the right to liberty and security as well as on the
treatment of prisoners, which make reference to the deprivation of liberty of persons with
disabilities. Some regional bodies have also considered adopting additional binding
instruments which would allow for involuntary internment and forced treatment of persons
with intellectual and psychosocial disabilities. The Committee, on the other hand, has further
developed its understanding of article 14 while engaging in constructive dialogues with
several States parties to the Convention.
2. The Committee, being the international monitoring body of the Convention, has adopted
these guidelines to provide further clarification to States parties, regional integration
organizations, National Human Rights Institutions and national monitoring mechanisms,
organizations of persons with disabilities, civil society organizations as well as United
Nations agencies, bodies, and independent experts about the obligation of States parties
pursuant to the Convention on the Rights of Persons with Disabilities to respect, protect and
guarantee the right of persons with disabilities to liberty and security. These guidelines
replace the statement adopted by the Committee on article 14 of the Convention.

II. The right to liberty and security of persons with disabilities
3. The Committee reaffirms that liberty and security of the person is one of the most precious
rights to which everyone is entitled. In particular, all persons with disabilities, and especially
persons with intellectual disabilities and psychosocial disabilities are entitled to liberty
pursuant to article 14 of the Convention.
4. Article 14 of the Convention is, in essence, a non-discrimination provision. It specifies the
scope of the right to liberty and security of the person in relation to persons with disabilities,
prohibiting all discrimination based on disability in its exercise. Thereby, article 14 relates
directly to the purpose of the Convention, which is to ensure the full and equal enjoyment of
all human rights and fundamental freedoms by all persons with disabilities and to promote
respect of their inherent dignity.
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5. This non-discrimination nature of article 14 provides evidence of the close interrelation
with the right to equality and non-discrimination (article 5). Article 5(1) recognizes that all
persons are equal before and under the law and are entitled to equal protection of the law.
Article 5(2) prohibits all forms of discrimination on the basis of disability and guarantees to
persons with disabilities equal and effective legal protection against discrimination on all
grounds.

III. The absolute prohibition of detention on the basis of impairment
6. There are still practices in which States parties allow for the deprivation of liberty on the
grounds of actual or perceived impairment.1 In this regard the Committee has established
that article 14 does not permit any exceptions whereby persons may be detained on the
grounds of their actual or perceived impairment. However, legislation of several States
parties, including mental health laws, still provide instances in which persons may be
detained on the grounds of their actual or perceived impairment, provided there are other
reasons for their detention, including that they are deemed dangerous to themselves or others.
This practice is incompatible with article 14; it is discriminatory in nature and amounts to
arbitrary deprivation of liberty.
7. During the negotiations of the Ad Hoc Committee leading up to the adoption of the
Convention there were extensive discussions on the need to include a qualifier, such as
“solely” or “exclusively”, in the prohibition of deprivation of liberty due to the existence of
an actual or perceived impairment in the draft text of article 14(1)(b). States opposed it,
arguing that it could lead to misinterpretation2 and allow deprivation of liberty on the basis of
their actual or perceived impairment in conjunction with other conditions, like danger to self
or others.3 Furthermore, discussions were held on whether to include a provision for periodic
review of the deprivation of liberty in the text of draft article 14(2).4 Civil society also
opposed the use of qualifiers and the periodic review approach.5, 6 Consequently, article
14(1)(b) prohibits the deprivation of liberty on the basis of actual or perceived impairment
even if additional factors or criteria are also used to justify the deprivation of liberty. The
issue was settled in the seventh meeting of the Ad Hoc Committee.
8. The absolute ban of deprivation of liberty on the basis of actual or perceived impairment
has strong links with article 12 of the Convention (equal recognition before the law). In its
General Comment No. 1, this Committee has clarified that States parties should refrain from
the practice of denying legal capacity of persons with disabilities and detaining them in
institutions against their will, either without the free and informed consent of the persons
concerned or with the consent of a substitute decision-maker, as this practice constitutes
arbitrary deprivation of liberty and violates articles 12 and 14 of the Convention.7
9. Enjoyment of the right to liberty and security of the person is central to the implementation
of article 19 on the right to live independently and be included in the community. This
1

Impairment in these guidelines is understood as a physical, psycho-social, intellectual or sensory personal condition which may or may not
come with functional limitations of the body, mind or senses. Impairment differs from what is usually considered the norm. Disability is
understood as the social effect of the interaction between individual impairment and social and material environment as described in Art. 1
UNCRPD
2
Ad Hoc Committee, Third Session, Daily summary of discussions, May 26, 2004; Fifth Session, Daily summary of discussions, January
26, 2005
3
Ibid. Fifth Session, Daily summary of discussions, January 26, 2005
4
Originally, the provision was in article was 10(2)(c)(ii) of the draft.
5
Ad Hoc Committee, Fifth Session, Daily summary of discussions, January 27, 2005
6
Ad Hoc Committee, Third Session, Daily summary of discussions, May 26, 2004
7
CRPD/C/GC/1, para.40

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Committee has stressed this relationship with article 19. It has expressed its concern about the
institutionalization of persons with disabilities and the lack of support services in the
community,8 and it has recommended implementing support services and effective
deinstitutionalization strategies in consultation with organizations of persons with
disabilities.9 In addition, it has called for the allocation of more financial resources to ensure
sufficient community-based services.10

IV. Involuntary or non-consensual commitment in mental health
institutions
10. Involuntary commitment of persons with disabilities on health care grounds contradicts
the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and
the principle of free and informed consent of the person concerned for health care (article
25). The Committee has repeatedly stated that States parties should repeal provisions which
allow for involuntary commitment of persons with disabilities in mental health institutions
based on actual or perceived impairments.11 Involuntary commitment in mental health
facilities carries with it the denial of the person’s legal capacity to decide about care,
treatment, and admission to a hospital or institution, and therefore violates article 12 in
conjunction with article 14.

V. Non-consensual treatment during deprivation of liberty
11. The Committee has emphasized that States parties should ensure that the provision of
health services, including mental health services, are based on free and informed consent of
the person concerned.12 In its General Comment No. 1, the Committee stated that States
parties have an obligation to require all health and medical professionals (including
psychiatric professionals) to obtain the free and informed consent of persons with disabilities
prior to any treatment. The Committee stated that, “in conjunction with the right to legal
capacity on an equal basis with others, States parties have an obligation not to permit
substitute decision-makers to provide consent on behalf of persons with disabilities. All
health and medical personnel should ensure appropriate consultation that directly engages the
person with disabilities. They should also ensure, to the best of their ability, that assistants or
support persons do not substitute or have undue influence over the decisions of persons with
disabilities.”13

VI. Protection of persons with disabilities deprived of their liberty from
violence, abuse and ill-treatment
12. The Committee has called on States parties to protect the security and personal integrity
of persons with disabilities who are deprived of their liberty, including by eliminating the use
of forced treatment14, seclusion and various methods of restraint in medical facilities,

8

CRPD/C/ESP/CO/1, paras. 35-36; CRPD/C/CHN/CO/1, para. 26; CRPD/C/ARG/CO/1, para. 24; CRPD/C/PRY/CO/1, para. 36;
CRPD/C/AUT/CO/1, para. 30; CRPD/C/SWE/CO/1, para. 36; CRPD/C/CRI/CO/1, para. 30; CRPD/C/AZE/CO/1, para. 29;
CRPD/C/ECU/CO/1, para. 29; CRPD/C/MEX/CO/1, para. 30.
9
Ibid.
10
CRPD/C/CHN/CO/1, para. 26; CRPD/C/AUT/CO/1, para. 31; CRPD/C/SWE/CO/1, para. 36.
11
CRPD/C/KOR/CO/1, para. 29, CRPD/C/DOM/CO/1, para. 27, CRPD/C/AUT/CO/1, para. 30
12
CRPD/C/ECU/CO/1, para. 29 d), CRPD/C/NZL/CO/1, para. 30, CRPD/C/SWE/CO/1, para. 36
13
CRPD/C/GC/1, para. 41
14
CRPD/C/PER/CO/1, paras. 30 and 31; CRPD/C/HRV/CO/1, para. 24; CRPD/C/TKM/CO/, para. 32; CRPD/C/DOM/CO/1, para. 31;
CRPD/C/SLV/CO/1, paras. 33-34; CRPD/C/SWE/CO/1, paras. 37-38.

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including physical, chemical and mechanic restrains.15 The Committee has found that these
practices are not consistent with the prohibition of torture and other cruel, inhumane or
degrading treatment or punishment against persons with disabilities pursuant to article 15 of
the Convention.

VII. Deprivation of liberty on the basis of perceived dangerousness of
persons with disabilities, alleged need for care or treatment, or any other
reasons.16
13. Throughout all the reviews of State party reports, the Committee has established that it is
contrary to article 14 to allow for the detention of persons with disabilities based on the
perceived danger of persons to themselves or to others. The involuntary detention of persons
with disabilities based on risk or dangerousness, alleged need of care or treatment or other
reasons tied to impairment or health diagnosis is contrary to the right to liberty, and amounts
to arbitrary deprivation of liberty.
14. Persons with intellectual or psychosocial impairments are frequently considered
dangerous to themselves and others when they do not consent to and/or resist medical or
therapeutic treatment. All persons, including those with disabilities, have a duty to do no
harm. Legal systems based on the rule of law have criminal and other laws in place to deal
with the breach of this obligation. Persons with disabilities are frequently denied equal
protection under these laws by being diverted to a separate track of law, including through
mental health laws. These laws and procedures commonly have a lower standard when it
comes to human rights protection, particularly the right to due process and fair trial, and are
incompatible with article 13 in conjunction with article 14 of the Convention.
15. The freedom to make one’s own choices established as a principle in article 3(a) of the
Convention includes the freedom to take risks and make mistakes on an equal basis with
others. In its General Comment No. 1, the Committee stated that decisions about medical and
psychiatric treatment must be based on the free and informed consent of the person concerned
and respect the person’s autonomy, will and preferences.17 Deprivation of liberty on the basis
of actual or perceived impairment or health conditions in mental health institutions which
deprives persons with disabilities of their legal capacity also amounts to a violation of article
12 of the Convention.

VIII. Detention of persons unfit to stand trial in criminal justice systems
and/or incapable of criminal liability
16. The Committee has established that declarations of unfitness to stand trial or incapacity to
be found criminally responsible in criminal justice systems and the detention of persons
based on those declarations, are contrary to article 14 of the Convention since it deprives the
person of his or her right to due process and safeguards that are applicable to every
defendant. The Committee has also called for States parties to remove those declarations
from the criminal justice system. The Committee has recommended that “all persons with
disabilities who have been accused of crimes and… detained in jails and institutions, without
trial, are allowed to defend themselves against criminal charges, and are provided with
15

CRPD/C/NZL/1, para. 32, CRPD/C/AUS/CO/1, para. 36.
For example, severity of impairment, observation, or prevention as a form of long-term detention
17
CRPD/C/GC/1, para. 21 and 42
16

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required support and accommodation to facilitate their effective participation”18, as well as
procedural accommodations to ensure fair trial and due process.19

IX. Conditions of detention of persons with disabilities
17. The Committee has expressed its concerns for the poor living conditions in places of
detention, particularly prisons, and has recommended that States parties ensure that places of
detention are accessible and provide humane living conditions. More recently, it
recommended “that immediate steps are [to be] taken to address the poor living conditions in
institutions.”20 This Committee has recommended that States parties establish legal
frameworks for the provision of reasonable accommodation that preserve the dignity of
persons with disabilities, and guarantee this right for those detained in prisons.21 It has also
addressed the need to “[p]romote training mechanisms for justice and prison officials in
accordance with the Convention’s legal paradigm”.22
18. While developing its jurisprudence under the Optional Protocol to the Convention23, the
Committee has affirmed that, under article 14(2) of the Convention, persons with disabilities
deprived of their liberty have the right to be treated in compliance with the objectives and
principles of the Convention, including conditions of accessibility and reasonable
accommodation. The Committee has recalled that States parties must take all relevant
measures to ensure that persons with disabilities who are detained may live independently
and participate fully in all aspects of daily life in their place of detention, including ensuring
their access, on an equal basis with others, to the various areas and services, such as
bathrooms, yards, libraries, study areas, workshops and medical, psychological, social and
legal services. The Committee has stressed that a lack of accessibility and reasonable
accommodation places persons with disabilities in sub-standard conditions of detention that
are incompatible with article 17 of the Convention and may constitute a breach of article
15(2).

X. Monitoring of detention facilities and review of detentions
19. The Committee has stressed the necessity to implement monitoring and review
mechanisms in relation to persons with disabilities deprived of their liberty. Monitoring
existing institutions and review of detentions do not entail the acceptance of the practice of
forced institutionalization. Article 16(3) of the Convention explicitly requires monitoring of
all facilities and programmes that serve persons with disabilities in order to prevent all forms
of exploitation, violence and abuse, and article 33 requires that States parties establish a
national independent monitoring mechanism and ensure civil society participation in
monitoring (paras. 2 and 3). Review of detentions must have the purpose of challenging the
arbitrary detention and obtain immediate release, in no case it should allow for the extension
of the arbitrary detention.24

18

CRPD/C/AUS/CO/1, para. 30.
CRPD/C/MNG/CO/1, para. 25, CRPD/C/DOM/CO/1, para. 29 a), CRPD/C/CZE/CO/1, para. 28, CRPD/C/HRV/CO/1, para. 22,
CRPD/C/DEU/CO/1, para. 32, CRPD/C/DNK/CO/1, para. 34 and 35, CRPD/C/ECU/CO/1, para. 29 b), CRPD/C/KOR/CO/1, para. 28,
CRPD/C/MEX/CO/1, para. 27, CRPD/C/NZL/CO/1, para. 34
20
CRPD/C/HRV/CO/1, para. 24
21
CRPD/C/COK/CO/1, para. 28 b), CRPD/C/MNG/CO/1, para. 25, CRPD/C/TKM/CO/1 para. 26 b), CRPD/C/CZE/CO/1, para. 28,
CRPD/C/DEU/CO/1, para. 32 c), CRPD/C/KOR/CO/1, para. 29, CRPD/C/NZL/CO/1, para. 34, CRPD/C/AZE/CO/1, para. 31,
CRPD/C/AUS/CO/1, para. 32 b), CRPD/C/SLV/CO/1, para. 32
22
CRPD/C/MEX/CO/1, para. 28
23
CRPD/C/11/D/8/2012
24
CRPD/C/KOR/CO/1, para. 26
19

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XI. Security measures
20. This Committee has addressed security measures imposed on persons found not
responsible due to “insanity” and incapacity to be held criminally responsible. This
Committee has also recommended eliminating security measures,25 including those which
involve forced medical and psychiatric treatment in institutions.26 It has also expressed
concern about security measures that involve indefinite deprivation of liberty and absence of
regular guarantees in the criminal justice system.27

XII. Diversion mechanisms and restorative justice schemes
21. The Committee has stated that deprivation of liberty in criminal proceedings should only
apply as a matter of last resort and when other diversion programmes, including restorative
justice, are insufficient to deter future crime.28 Diversion programmes must not involve a
transfer to mental health commitment regimes or require an individual to participate in
mental health services; such services should be provided on the basis of the individual's free
and informed consent.29

XIII. Free and informed consent in emergency and crisis situations
22. In its General Comment No. 1, the Committee states that States parties must respect and
support the legal capacity of persons with disabilities to make decisions at all times, including
in emergency and crisis situations. States parties must ensure that support is provided to
persons with disabilities, including in emergency and crisis situations, and “accurate and
accessible information is provided about service options and that non-medical approaches are
made available”.30 The Committee also states that, “States parties must abolish policies and
legislative provisions that allow or perpetrate forced treatment”, and that “decisions relating
to a person’s physical or mental integrity can only be taken with the free and informed
consent of the persons concerned.”31 In paragraph 41 of its General Comment No. 1, the
Committee states that, “in conjunction with the right to legal capacity on an equal basis with
others, States parties have an obligation not to permit substitute decision-makers to provide
consent on behalf of persons with disabilities”.32
23. The Committee has also called for States parties to ensure that persons with disabilities
are not denied the right to exercise their legal capacity on the basis of a third party’s analysis
of their “best interests”, and that when after significant efforts have been made it is
impracticable to determine a person’s will and preferences, practices associated with “best
interests” determinations should be replaced by the standard of “best interpretation of the will
and preferences” of the person.33

25

CRPD/C/BEL/CO/1, para. 28.
CRPD/C/ECU/CO/1, para. 29 c)
CRPD/C/DEU/CO/1, para. 31
28
CRPD/C/NZL/CO/1, para. 34
29
CRPD/C/AUS/CO/para.29
30
CRPD/C/GC/1, para. 42
31
Ibid, para. 42
32
Ibid, para. 41
33
Ibid, para. 21
26
27

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XIV. Access to justice, reparation and redress to persons with disabilities
deprived of their liberty in infringement of article 14 taken alone, and
taken in conjunction with article 12 and/or article 15 of the Convention.
24. Persons with disabilities arbitrarily or unlawfully deprived of their liberty are entitled to
have access to justice to review the lawfulness of their detention, and to obtain appropriate
redress and reparation. The Committee calls States parties’ attention to Guideline 20 of the
“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”, adopted by the Working
Group on Arbitrary Detention on 29 April 2015, during its 72th session. Guideline 20
contains specific measures for persons with disabilities, including the following:34
”126. The following measures shall be taken to ensure procedural
accommodation and the provision of accessibility and reasonable
accommodation for the exercise of the substantive rights of access to
justice and equal recognition before the law:
(a) Persons with disabilities shall be informed about, and
provided access to, promptly and as required, appropriate support
to exercise their legal capacity with respect to proceedings
related to the detention and in the detention setting itself. i
Support in the exercise of legal capacity must respect the rights,
will and preferences of persons with disabilities and should never
amount to substituted decision-making; ii
(b) Persons with psychosocial disabilities must be given
the opportunity to promptly stand trial, with support and
accommodations as may be needed, rather than declaring such
persons incompetent;
(c) Persons with disabilities can access, on an equal basis
with other persons subject to detention, buildings in which lawenforcement agencies and the judiciary are located. The
jurisdictional entities must ensure that their services include
information and communication that is accessible to persons with
disabilities. iii Appropriate measures shall be taken to provide
signage in Braille and in easy to read and understand forms of
live assistance and intermediaries, including guides, readers and
professional sign language interpreters, to facilitate accessibility
to communication in the facilities of jurisdictional entities; iv
(d) Individuals who are currently detained in a psychiatric
hospital or similar institution and/or subjected to forced
treatment, or who may be so detained or forcibly treated in the
future, must be informed about ways in which they can
effectively and promptly secure their release including injunctive
relief;

34

A/HRC/30/36

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(e) Such relief should consist of an order requiring the
facility to release the person immediately and/or to immediately
cease any forced treatment, as well as systemic measures such as
requiring mental health facilities to unlock their doors and inform
persons of their right to leave, and establishing a public authority
to provide for access to housing, means of subsistence and other
forms of economic and social support in order to facilitate deinstitutionalization and the right to live independently and be
included in the community. Such assistance programs should not
be centred on the provision of mental health services or
treatment, but free or affordable community-based services,
including alternatives that are free from medical diagnosis and
interventions. Access to medications and assistance in
withdrawing from medications should be made available for
those who so decide; v
(f) Persons with disabilities are provided with
compensation, as well as other forms of reparations, in the case
of arbitrary or unlawful deprivation of liberty. vi This
compensation must also consider the damage caused by the lack
of accessibility, denial of reasonable accommodation, lack of
health care and rehabilitation, which have affected the person
with disability deprived of liberty.”
Geneva, September 2015
_________________
See also, Human Rights Committee General Comment no. 35, para. 18: “The individuals must be
assisted in obtaining access to effective remedies for the vindication of their rights, including initial and
periodic judicial review of the lawfulness of the detention, and to prevent conditions of detention
incompatible with the Covenant.” Oxford Pro Bono Public study: In regard to preventive detention
proceedings, there is a very strong trend toward guaranteeing the right to be heard and to legal
representation (p. 97). Further, there is a significant trend in the practice of States toward guaranteeing
the right to information and to legal representation to a person with a mental illness during detention
proceedings (p. 99).
ii
Committee on the Rights of Persons with Disabilities, General Comment No. 1, para. 17: “Support” is
a broad term that encompasses both informal and formal support arrangements, of varying types and
intensity. For example, persons with disabilities may choose one or more trusted support persons to
assist them in exercising their legal capacity for certain types of decisions, or may call on other forms
of support, such as peer support, advocacy (including self-advocacy support), or assistance with
communication. Support to persons with disabilities in the exercise of their legal capacity might
include measures relating to universal design and accessibility. Support can also constitute the
development and recognition of diverse, non-conventional methods of communication, especially for
those who use non-verbal forms of communication to express their will and preferences.
iii
Committee on the Rights of Persons with Disabilities, General Comment No. 2, para. 37
iv
Committee on the Rights of Persons with Disabilities, General Comment No. 2, para. 20.
v
HRC General Comment no. 35, para. 19: “States parties should make available adequate communitybased or alternative social care services for persons with psychosocial disabilities, in order to provide
less restrictive alternatives to confinement”.
vi
This includes deprivation of liberty based on disability or perceived disability, particularly on the basis
of psychosocial or intellectual disability or perceived psychosocial or intellectual disability.
i

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