| Original Full Text | Under the direction of Isabelle Hachez and Nicolas Marquis Repenser l’institution et la désinstitutionnalisation àpartir du handicapActes de la Conférence Alter 2022The European Convention on Human Rights: whatmeaning does it have for persons with a disability?Paul Lemmens Publisher: Presses universitaires Saint-Louis Bruxelles Place of publication: Bruxelles Published on OpenEdition Books: 25 mars 2024 Series: Collection générale Digital ISBN: 978-2-8028-0287-7 https://books.openedition.orgDIGITAL REFERENCE Lemmens, Paul. “The European Convention on Human Rights: What Meaning Does It Have for PersonsWith a Disability?”. Repenser l’institution Et La désinstitutionnalisation à Partir Du Handicap, edited byIsabelle Hachez and Nicolas Marquis, Presses universitaires Saint-Louis Bruxelles, 2024, https://doi.org/10.4000/books.pusl.29166.This text was automatically generated on 13 octobre 2024. The PDF format is issued under the Licence OpenEdition Books unless otherwise stated. 167Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDHThe European Convention onHuman Rights: what meaning does it have for persons with adisability ?168REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmens169Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDHThe European Convention on Human Rights: what meaning does it have for persons with a disability?1Paul Lemmens,Emeritus professor KU Leuven (Belgium), Former judge,European Court of Human Rights1 4 This is the abridged version of an article which will appear in the special issue of the journal Alter (2024), under the title: <The European Convention on Human Rights as an instrument for the protection of the rights of persons with a disability=.Paul Lemmens (2024), « The European Convention on Human Rights: what meaning does it have for persons with a disability? »,in Hachez I., Marquis N. (dir.) Repenser l9institution et la désinstitutionnalisation à partir du handicap. Actes de la Conférence Alter 2022.170REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmens1. INTRODUCTION2. SOME FUNDAMENTAL PRINCIPLES UNDERLYING THE EUROPEAN CONVENTION2.1. Human dignity2.2. Personal autonomy2.2.1. Self-determination2.2.2. Importance of social relations2.3. Equality and non-discrimination3. RELATIONSHIP BETWEEN THE EUROPEAN CONVENTION AND THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES4. CONCLUSIONS171Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDH1. INTRODUCTIONThe European Convention on Human Rights (herea昀܀er: the Convention, or the European Convention) is a general human rights instrument, in the sense that it guarantees rights for <everyone=. It is not aimed at protecting speci昀c categories of people.The case law of the European Court of Human Rights (herea昀܀er: the Court) shows that persons with a disability can suc-cessfully invoke the protection of the Convention. There is, however, a feeling within the <community= of persons with a disability that the Court could have done more, that it sometimes failed to realise what was at stake for the applicant. There is also some criticism of the fact that the Court is not always prepared to interpret the Convention in a way that is compliant with the United Nations Convention on the Rights of Persons with Disabilities (herea昀܀er: the CRPD).In this contribution, an attempt will be made to analyse the relevance of the Convention for the rights of persons with disa-bilities, as well as the relevance of the CRPD for the interpretation of the Convention. We will start with pointing to some general principles which have been identi昀ed by the Court as underlying the Convention and which are particularly relevant in this context. A昀܀er this analysis, we look into the relationship between the Convention and the CRPD, as it emerges from the Court9s judgments. The contribution ends with some concluding remarks.A caveat is in order here. Given the former position of the author of this contribution within the Court, and the duty of loyalty incumbent upon him, the option has been chosen not to test the Court9s case law against the critical positions in legal doctrine, nor to systematically mount a defence in favour of that case law. The purpose of this contribution is rather to open that case law, speci昀cally from the perspective of the rights of persons with disabilities. The author leaves it to others to critically assess that case law.2. SOME FUNDAMENTAL PRINCIPLES UNDERLYING THE EUROPEAN CONVENTIONThere are a number of general principles underlying the Convention, which can explain why the Court gives a special attention to persons who 昀nd themselves in a vulnerable position. Through its judgments, the Court has identi昀ed various general principles. Three of them deserve to be mentioned here, because of their obvious relevance for the situation of persons with disabilities: human dignity, personal autonomy, and equality and non-discrimination. 172REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmens2.1. Human dignityAs the Court regularly holds, <the very essence of the Convention is respect for human dignity and human freedom=2. Human dignity is an overarching principle.Human dignity plays a role when it comes to assessing the situation of persons with disabilities. The Court holds that the ability of persons with disabilities <to live autonomously with a fully-deve-loped sense of dignity and self-respect is of cardinal importance=3. And persons deprived of their liberty, including persons with disabilities, should be treated with respect for their human dignity4. It is this same principle of human dignity that also underlies the CRPD5.2.2. Personal autonomyAnother principle upon which the European Convention is based, is personal autonomy. This principle is expressed in particular in Article 8 of the Convention, insofar as this provision guarantees the right to respect for private life6.While personal autonomy refers primarily to the position of the individual concerned, it is also concerned with the position of that individual within a social environment. Both aspects will be analysed in turn. 2.2.1. Self-determinationPersonal autonomy is in the 昀rst place about <the ability to conduct one9s life in a manner of one9s own choosing=7. In that sense, it is about self-determination8. The freedom to make one9s own choices is also a principle of the CRPD9. Article 8, § 2, of the Convention allows for restrictions of 2 4 See for the foundations of the case law, ECtHR, 22 November 1995, S.W. v. United Kingdom, no. 20166/92, § 44, and C.R. v. United Kingdom, no. 20190/92, § 42; ECtHR, 29 February 2002, Pretty v. United Kingdom, no. 2346/02, § 65.3 4 ECtHR, 30 January 2018, Enver _ahin v. Türkiye, no. 23065/12, § 70.4 4 See, among others, ECtHR, 26 October 2006, Khudobin v. Russia, no. 59696/00, § 92; ECtHR, 15 November 2012, Yermolenko v. Ukraine, no. 49218/10, § 49. For a telling example, see the case of a man of 84 years, paraplegic and su昀ering from a number of serious diseases, ECtHR, 2 December 2004, Farbtuhs v. Latvia, no. 4672/02, §§ 56-59.5 4 See, in particular, Art. 3 CRPD: <The principles of the present Convention shall be: (a) Respect for inherent dignity [&] of persons; [&].=6 4 See, among many others, ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 61; ECtHR [GC], 17 January 2023, Fedotova and Others v. Russia, no. 40792/10 and other, § 141.7 4 ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 62; ECtHR, 10 June 2010, Jehovah9s Witnesses of Moscow and Others v. Russia, no. 302/02, § 135. See also ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 70 (<a person9s freedom to make his or her own choices=).8 4 See ECtHR, 29 April 2002, Pretty, cited above, note 2, at § 61. The right to self-determination is sometimes considered to be a <right= embraced by the right to respect for private life (ECtHR [GC], 22 January 2008, E.B. v. France, no. 43546/02, § 43; ECtHR [GC], 3 November 2011, S.H. and Others v. Austria, no. 57813/00, § 80; ECtHR [GC], 27 August 2015, Parrillo v. Italy, no. 46470/11, § 153; ECtHR [GC], 24 January 2017, Paradiso and Campanelli v. Italy, no. 25358/12, § 159.9 4 See Art. 3 CRPD: <The principles of the present Convention shall be: (a) [&] individual autonomy including the freedom to make one9s own choices, [&]; [&].=173Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDHthe right to respect for private life. A speci昀c type of restriction, which may be relevant for persons with a disability, is the imposition of a medical treatment. Such a treatment is to be characterised as an inter-ference with a person9s physical or mental integrity, and hence with his or her right to respect for private life. In this area, the principle is that the patient has a right to informed consent.Under certain conditions, a medical intervention perfor-med against the will of the person concerned, can reach the threshold of severity to be regarded as treatment prohibited by Article 3 of the Convention (torture or inhuman or degrading treatment)10.Respect for a person9s autonomy is also relevant in situa-tions where a person has to be protected against himself or herself, and where the authorities accordingly take measures restricting that person9s freedom. In such a situation, the authorities <must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned and in such a way as to diminish the opportu-nities for self-harm, without infringing personal autonomy=11.For persons with disabilities, there are obstacles to the full enjoyment of personal autonomy. Because of their disability, they are o昀܀en dependent on assistance or support. This is why, in the light of their special needs, independence is given special importance. Independence of the person is an explicitly mentioned principle of the CRPD12.Article 19 of the CRPD, under the heading <Living inde-pendently and being included in the community=, provides that the States Parties recognise <the equal right of all persons with disabilities to live in the community, with choices equal to others=. This brings us to the issue of <institutionalisation= versus <de-institutionalisation=, that is: life within residential institutions or transition towards community support services (as provided by Article 19, b, of the CRPD)13.On a number of occasions, the Court has taken a position on this issue. In one case, for example, it considered that the authorities had failed to consider alternatives to detention of a mentally ill person in a prison hospital <with the aim of moving towards deinstitutionalisa-tion=14. In another case, the Court noted with satisfaction that a decision had been taken to have the applicant transferred from a psychiatric hospital to a specialised institution appropriate to his needs, in line with <practices which have become quite common at the international level 10 4 ECtHR, 22 November 2022, G.M. and Others v. Moldova, no. 44394/15, §§ 84-85.11 4 ECtHR [GC], 31 January 2019, Fernandes de Oliveira v. Portugal, no. 78103/14, § 112. See also, among others, ECtHR, 3 April 2001, Keenan v. United Kingdom, no. 27229/95, § 92; ECtHR, dec. 7 January 2003, Younger v. United Kingdom, no. 57420/00; ECtHR, 5 July 2005, Trubnikov v. Russia, no. 49790/99, § 70; ECtHR, 16 October 2008, Renolde v. France, no. 5608/05, § 83; ECtHR, 22 January 2013, Miti v. Serbia, no. 31963/08, § 47; ECtHR, 2 September 2021, Ranatovi v. Montenegro, no. 14742/18, § 37. All these cases concern suicides by persons deprived of their liberty and an alleged lack of precautionary measures. 12 4 See Art. 3 CRPD: <The principles of the present Convention shall be: (a) [&] independence of persons; [&].=13 4 See Committee RPD, General comment No. 5 (2017) on living independently and being included in the community, § 16, c.14 4 ECtHR, 21 January 2020, Strazimiri v. Albania, no. 34602/16, § 122.174REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmensin recent years, geared to promoting, as far as possible, treatment and care for persons with disabilities in the community=15.These statements show a tendency of the Court to support the internationally noticeable trend towards de-institutionalisation.2.2.2. Importance of social relationsEvery individual is part of a community - or of various communities - with other individuals. It is therefore only natural that the Court holds that Article 8 of the Convention <guarantees a right to 8private life9 in the broad sense, including the right to lead a 8private social life9, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them=16. This is a reference to the social aspect of personal autonomy.The possibility of establishing relationships with others corresponds to what is, in the CRPD, the principle of participation and inclusion17.In a case involving a lack of access for persons in a wheel-chair to a polling station, the Court referred to the importance of <full participation of people with disabilities in society, in particular in political and public life=. It also considered that access to the polling station related to the applicant9s <involvement in the life of his local community and the exercise of his civic duties=. Acknowledging that the lack of such access touched upon the applicant9s <possibility of developing social relations with other members of his community and the outside world=, the Court found, however, that in the given circumstances a fair balance had been struck between the competing interests of the individual and the community18.2.3. Equality and non-discriminationArticle 14 of the Convention provides that <the enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground=. A similar prohibition, extended to <any right set forth by law=, is formulated in Article 1, § 1, of Protocol No. 12 to the Convention. The latter provision, however, applies only to those States that have rati昀ed the Protocol.15 4 ECtHR, 16 November 2021, N. v. Romania (no. 2), no. 38048/18, § 166. The Court, however, had to conclude that there was a violation of Article 5, § 1, of the Convention, as the applicant had never actually been released (ibid.).16 4 ECtHR, 28 May 2009, Bigaeva v. Greece, no. 26713/05, § 22 ; ECtHR, 19 October 2010, Özpinar v. Türkiye, no. 20999/04, § 45 ; ECtHR [GC], 5 September 2017, Brbulescu v. Romania, no. 61496/08, § 70 ; ECtHR [GC], 17 January 2023, Fedotova and Others, cited above, note 5, at § 143. See also ECtHR, dec. 11 April 2006, MóCka v. Poland, no. 56550/00; ECtHR, 31 May 2022, Arnar Helgi Lárusson v. Iceland, no. 23077/19, §§ 45-46.17 4 See Art. 3 CRPD: <The principles of the present Convention shall be: [&] (c) Full and e昀ective participation and inclusion in society; [&].=18 4 ECtHR, dec. 11 April 2006, MóCka, cited above, note 16.175Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDHOnly di昀erences in treatment based on an identi昀able cha-racteristic, or <status= within the meaning of both articles, are capable of amounting to discrimination19. The Court accepts that this includes di昀e-rence in treatment based on disability20.The principles of equality and non-discrimination are also principles underlying the CRPD21.Article 14 of the Convention and Article 1 of Protocol No. 12 are nowadays read in the light of the requirements of Article 2 of the CRPD regarding <reasonable accommodation=. The Court understands this term as it is de昀ned in that article of the CRPD22. The requirement to provide for reasonable accommodation 昀ts well with the Court9s case law according to which there is discrimination when States without an objec-tive and reasonable justi昀cation fail to treat di昀erently persons whose situations are signi昀cantly di昀erent23.Reasonable accommodation may take a variety of forms, and it is for the competent authorities to choose how to respond to the needs of a person with disabilities24. Where reasonable accommodation is required, a failure to adopt it amounts to discrimination25. In its most recent case law, however, the Court has made the 昀nding of a violation of the Convention dependent on a threshold being reached, in the sense that the lack of positive measures must produce a <particularly prejudicial impact= on the person or the people concerned26.The Court has been confronted with complaints about a refusal to adopt reasonable accommodation in a number of areas.One such area is education, in particular access to education. In this context, the Court, referring to a number of international mate-rials, including Article 24 of the CRPD, endorses <inclusive= education as 19 4 See, among others, ECtHR [GC], 16 March 2010, Carson and Others v. United Kingdom, no. 42184/05, § 61; ECtHR [GC], 5 September 2017, Fábián v. Hungary, no. 78117/13, § 113; ECtHR [GC], 9 June 2022, Savickis and Others v. Latvia, no. 49270/11, § 181.20 4 See, among others, ECtHR, 30 April 2009, Glor v. Switzerland, no. 13444/04, § 80; ECtHR, 10 September 2020, G.L. v. Italy, no. 59751/15, § 34; ECtHR, 25 January 2022, Negovanovi and Others v. Serbia, nos. 29907/16 and three others, § 76.21 4 See Art. 3 CRPD: <The principles of the present Convention shall be: [&] (b) Non-discrimination; [&]; (e) Equality of opportunity; [&].=22 4 <8Reasonable accommodation9 means necessary and appropriate modi昀cation and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.= See ECtHR, 23 February 2016, Çam v. Türkiye, no. 51500/08, § 65; ECtHR, dec. 8 November 2016, Sanlisoy v. Türkije, no. 77023/12, § 60; ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 67; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 20, at § 62; ECtHR, 26 October 2021, Toplak and Mrak v. Slovenia, nos. 34591/19 and 42545/19, § 114; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 16, at § 59; ECtHR, 11 April 2023, T.H. v. Bulgaria, no. 46519/20, § 10.23 4 For the principle, see ECtHR [GC], 6 April 2000, Thlimmenos v. Greece, no. 34369/97, § 44.24 4 ECtHR, 23 February 2016, Çam, cited above, note 22, at § 66; ECtHR, dec. 8 November 2016, Sanlisoy, cited above, note 22, at § 61; ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 68; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 20, at § 63; ECtHR, 11 April 2023, T.H. v. Bulgaria, cited above, note 22, at § 104, d.25 4 ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 67; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 20, at § 62; ECtHR, 11 April 2023, T.H. v. Bulgaria, cited above, note 22, at § 104, b.26 4 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 22, at § 111; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 16, at § 56.176REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmens<the most appropriate means= of guaranteeing <the fundamental prin-ciples of universality and non-discrimination in the exercise of the right to education=27. Attending classes or courses in mainstream institutions is o昀܀en not possible without reasonable accommodation.Another area is that of access to buildings. While accessibi-lity is o昀܀en an issue relating to the e昀ectiveness of the enjoyment by all of the fundamental right invoked, the Court has sometimes examined it from the speci昀c point of view of reasonable accommodation. In this respect, the reasonableness of the accommodation o昀ered may depend, not only on the burden placed on the competent authority28, but also on the appropriateness of the measure proposed or taken29.3. RELATIONSHIP BETWEEN THE EUROPEAN CONVENTION AND THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIESTo what extent does the Court pay attention to the CRPD in order to give substance to the generally worded provisions of the European Convention? The Court tries to interpret the provisions of the Convention in line with other human rights treaties. In this respect, it is aware of the possibility that there may be an apparent contradiction between the Convention and more recent treaties. Even in such a situa-tion, it will try to <endeavour to construe [these instruments] in such a way as to coordinate their e昀ects and avoid any opposition between them=30.When endeavouring to interpret the Convention in line with other human rights treaties, the Court in general pays attention to the interpretation of these other treaties by the bodies set up to monitor compliance with them, whether of a judicial or a quasi-judicial nature31.The CRPD is one of the relevant treaties that the Court takes into account when interpreting the Convention.The case law of the Court thus o昀ers examples of <gene-rous= interpretations of the Convention, prompted by the wording of the CRPD and the interpretations there of given by the Committee RPD.For instance, the Court holds that Article 5, § 1, of the Convention (right to liberty) must be interpreted in the light of the pro-visions of Article 14, § 1, of the CRPD (liberty and security of person)32 and Article 19 of the CRPD (living independently and being included in 27 4 ECtHR, 23 February 2016, Çam, cited above, note 22, at § 64 (access of a blind teen-age child to a music academy); ECtHR, dec. 8 November 2016, Sanlisoy, cited above, note 22, at § 59 (access of an autistic child to a private nursery school); ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 62 (access of a student to university classrooms). See also ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 20, at § 53 (access of an autistic child to an ordinary primary school).28 4 See ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 16, at §§ 63-64 (lack of access to two particular public buildings not considered discriminatory, having regard to the e昀orts already made to make other buildings accessible).29 4 See ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, (provision of human aid to move the applicant around a three-storey building considered insufficient, having regard to the potential effects of this kind of support on the applicant9s security, dignity & autonomy).30 4 ECtHR [GC], 12 September 2012, Nada v. Switzerland, no. 10593/08, § 170.31 4 ECtHR [GC], 12 November 2008, Demir and Baykar v. Türkiye, no. 34503/97, § 85.32 4 ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 15, at § 159. But see the divergence noted in the Rooman case, below.177Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDHthe community)33; that Article 8 of the Convention (respect for family life) must be interpreted in the light of the provisions of Article 23 of the CRPD (respect for home and the family)34; that Article 14 of the Convention and Article 1 of Protocol No. 12 (equality and non-discrimi-nation) must be interpreted in the light of the requirements regarding reasonable accommodation contained in Article 2 of the CRPD (de昀ni-tions)35; and that Article 2 of Protocol No. 1 to the Convention (right to education) must be interpreted in the light of the provisions of Article 24 of the CRPD (education)36. In a number of cases, the Court also refer-red to general comments of the Committee RPD37 or to other positions adopted by the Committee38.However, the Court does not always align its interpretation of the Convention with the CRPD or the interpretations given to it by the Committee RPD.This is not a situation peculiar to the relationship between the Convention and the CRPD. On certain occasions, the Court 昀nds it neces-sary to recall that its task is to interpret the provisions of the Convention, not those of other treaties39. Insofar as it can and must take other treaties and interpretations of other monitoring bodies into account, it reserves for itself the right <to decide which international instruments and reports it considers relevant and how much weight to attribute to them=40.In particular with respect to interpretations given to rele-vant human rights treaties by the competent monitoring bodies, the Court makes clear that it cannot consider itself bound by these inter-pretations for its own interpretation of the Convention41. Concerning 33 4 ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 15, at § 166; ECtHR, 8 February 2022, Jivan v. Romania, no. 62250/19, § 45.34 4 ECtHR, 18 February 2020, Cîna v. Romania, no. 3891/19, § 76 ( juncto § 30).35 4 ECtHR, 23 February 2016, Çam, cited above, note 22, at § 65; ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 67; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 20, at § 62; ECtHR, 25 January 2022, Negovanovi and Others, cited above, note 20, at § 79; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 16, at § 59; ECtHR, 11 April 2023, T.H. v. Bulgaria, cited above, note 22, at § 104.36 4 ECtHR, 23 February 2016, Çam, cited above, note 22, at § 53; ECtHR, dec. 8 November 2016, Sanlisoy, cited above, note 22, at § 57; ECtHR, 30 January 2018, Enver _ahin, cited above, note 3, at § 60; ECtHR, 10 September 2020, G.L. v. Italy, cited above, note 20, at § 51.37 4 See, among others, ECtHR, 18 February 2020, Cîna, cited above, note 34, at § 75 ( juncto § 32); ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 22, at § 112; ECtHR, 31 May 2022, Arnar Helgi Lárusson, cited above, note 16, at §§ 46 and 57.38 4 ECtHR, 6 July 2023, Calvi and C.G. v. Italy, no. 46412/21, § 106 (juncto § 55) (observations of the Committee RPD on the report presented to it by the respondent State).39 4 ECtHR [GC], 12 May 2005, Öcalan v. Türkiye, no. 46221/99, § 163, quoting from the Chamber judgment of 12 March 2003 in that case, § 190; ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers v. United Kingdom, no. 31045/10, § 106; ECtHR, 11 May 2021, Caamaño Valle v. Spain, no. 43564/17, § 53; ECtHR, 10 June 2021, Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers9 Union (NTF) v. Norway, no. 45487/17, § 98.40 4 ECtHR [GC], 27 April 2010, Tnase v. Moldova, no. 7/08, § 176; ECtHR, 10 March 2011, Kiyutin v. Russia, no. 2700/10, § 67; ECtHR, 23 March 2017, A.-M. v. Finland, no. 53251/13, § 74; ECtHR, 16 November 2021, N. v. Romania (no. 2), cited above, note 15, at § 147.41 4 See, among others, ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 39, at § 98 (with respect to the assessments made by the Committee of Experts of the International Labour Organisation and the European Committee on Social Rights); ECtHR [GC], 20 October 2016, Murai v. Croatia, no. 7334/13, § 111 (with respect to the standards developed by the CPT); ECtHR [GC], 4 April 2018, Correia de Matos v. Portugal, no. 56402/12, § 135 (with respect to the interpretations given to the Covenant on Civil and Political Rights by the Human Rights Committee).178REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmensits <reluctance= to take the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (on what amounts to an inhuman or degrading treatment) as a decisive argument for its interpretation of Article 3 of the Convention, the Court has pointed to the fact that it has <to take into account all relevant circumstances of a particular case before it=, in order to decide whether or not the Convention has been violated in these speci昀c circumstances, while the CPT <[develops] general stan-dards [&] aiming at future prevention=42. Furthermore, <the thrust of CPT activity is pre-emptive action aimed at prevention, which, by its very nature, aims at a degree of protection that is greater than that upheld by the Court when deciding cases concerning conditions of detention=43.This explanation is valid for the interpretations of the CRPD by the Committee RPD as well. Not only does the CRPD contain <more speci昀c and exacting [norms]= than the Convention44, the Court and the Committee have also di昀erent roles to play45. As a result, the interpretations of the same fundamental right by the Committee and by the Court <may not always correspond=46.There are, however, only few examples of such divergences. In Rooman, the Court considered that Article 5 of the Convention <does not contain a prohibition on detention on the basis of impairment, in contrast to what is proposed by the [Committee RPD] in points 6-9 of its 2015 Guidelines concerning Article 14 of the CRPD=47. In Strøbye and Rosenlind and Caamaño Valle, the Court did not follow the Committee in its interpretation of Article 29 of the CRPD, according to which persons with intellectual disabilities cannot be denied the right to vote. Referring to the situation existing in a majority of the member States of the Council of Europe, it held that Article 3 of Protocol No. 1 to the Convention, relating to electoral rights, allows for certain restrictions of the right to vote based on the mental capacity of the individual concerned48. In Toplak and Mrak, the Court seems to have minimalised the importance that the Committee RPD attaches to technology-as-sisted (electronic) voting for disabled persons49.42 4 ECtHR [GC], 20 October 2016, Murai, cited above, note 41, at § 112. See also, with respect to the CPT and the United Nations Committee against Torture, ECtHR, 15 September 2020, Aggerholm v. Denmark, no. 45439/18, § 100.43 4 ECtHR [GC], 20 October 2016, Murai, cited above, note 41, at § 113.44 4 See, with respect to the standards of the International Labour Organisation and the European Social Charter, ECtHR, 8 April 2014, National Union of Rail, Maritime and Transport Workers, cited above, note 39, at § 106; ECtHR, 10 June 2021, Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers9 Union (NTF), cited above, note 39, at § 98.45 4 ECtHR, 11 May 2021, Caamaño Valle, cited above, note 39, at § 54.46 4 ECtHR, 30 June 2020, Popovi and Others v. Serbia, nos. 26944/13 and 3 others, § 79.47 4 ECtHR [GC], 31 January 2019, Rooman v. Belgium, no. 18052/11, § 205. The Court referred to Article 5, § 1, e, of the Convention, which allows for the deprivation of liberty of persons <of unsound mind=, on the one hand, and to the Committee RPD9s Guidelines, in which it states that <article 14 [of the CRPD] does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived impairment= (point 6), on the other hand.48 4 ECtHR, 2 February 2021, Strøbye and Rosenlind v. Denmark, nos. 25802/18 and 27338/18, § 112; ECtHR, 11 May 2021, Caamaño Valle, cited above, note 39, at § 59.179Contribution n°8p.167 - p.180B. Autonomie et handicap, institution et désinstitutionnalisation :repères-clésB.1. Du point de vue des droits : CDPH et CEDHIs it possible to give an explanation for the sometimes divergent views of the Court and the Committee RPD?The Court itself refers, as indicated above, to the di昀e-rences in wording between the Convention and the CRPD, as well as to the di昀erences in role and approach between the Court and the Committee. It seems that there might also be a third explanation, that has to do with the di昀erent nature of the Convention and the CRPD.On the one hand, the Convention guarantees respect for the human rights of <everyone=. Moreover, whether the State is under a duty to refrain from interfering with human rights or under a duty to adopt positive measures, the key requirement is the <fair balance= to be struck between the competing interests of the individual and of the community as a whole50. On the other hand, the CRPD deals exclusively with the human rights of one category of persons, persons with disabilities. The primary objective seems to be to correct the balance of competing interests, which at the time of dra昀܀ing of the CRPD was to the disadvantage of persons with disabilities, by giving more weight to their rights and interests. This is a di昀erent starting point than that of the Convention.It is only natural that, seen from the perspective of persons with disabilities, the CRPD is a human rights instrument that o昀ers a higher level of protection than the Convention.Article 53 of the Convention deals with such a situation: it provides that the Convention cannot be construed <as limiting [&] any of the human rights and fundamental freedoms which may be ensured [&] under any other agreement to which [a High Contracting Party] is a party=.It is quite possible that the norms of the Convention will continue to be <updated= towards those of the CRPD. This is a gradual process and the Court9s case law attests to the existence of such a process. Whether the interpretation of the Convention on a particu-lar issue can be developed, will be strongly in昀uenced by the extent to which the practice of the States Parties to the Convention demonstrates their adherence to these higher standards.49 4 ECtHR, 26 October 2021, Toplak and Mrak, cited above, note 22, at § 127. The Court referred to the views adopted by the Committee RPD on a communication (complaint) in an individual case.50 4 See for the principle, among many others, ECtHR, 21 February 1990, Powell and Rayner v. United Kingdom, no. 9310/81, § 41.180REPENSER L’INSTITUTION ET LA DÉSINSTITUTIONNALISATION À PARTIR DU HANDICAPPaul Lemmens4. CONCLUSIONSThe Convention was adopted in 1950. As the Court has stated on many occasions, it is <a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democra-tic States today=51.The CRPD was adopted in 2006. It is probably no coinci-dence that since then, a noticeable number of complaints have been brought before the Court by persons with disabilities, o昀܀en actively supported by NGO9s52. In this contribution, an attempt has been made to examine to what extent the Court has incorporated the CRPD and the interpretations of the Committee RPD in its case law.The relationship between the Court and the CRPD can perhaps be characterised as one of <je t9aime, moi non plus=. The Court aligns with the principles underlying the CRPD, in particular those of human dignity, personal autonomy, equality and non-discrimination, but it also considers counterarguments.The CRPD has triggered a debate on institutionalisation versus de-institutionalisation. The aforementioned principles lend sup-port to de-institutionalisation. And indeed, in the case law of the Court a certain tendency can be discerned in that direction (see above). Institutionalisation is, however, not incompatible with the Convention. To the contrary, the Convention explicitly allows for the deprivation of individuals of their liberty because of their mental illness, where the protection of their own interests or those of others so requires.The CRPD is a treaty that on a number of points o昀ers a wider protection than the Convention. However, when the Court notes an <evolving convergence= of the Contracting Parties to new standards, for instance around some CRPD principles, it may move the interpre-tation of the Convention in the direction of that convergence.Such a development may take some time. The last word on the contribution of the Convention to the rights of persons with disabilities has therefore not yet been said.51 4 For a recent con昀rmation, see ECtHR [GC], 17 January 2023, Fedotova and Others, cited above, note 5, at § 167.52 4 NGO9s defending the rights of persons with disabilities regularly intervene in their own right, as third-party interveners. Regular repeat players are the European Disability Forum, the International Disability Alliance and the Mental Disability Advocacy Centre (currently named Validity). |
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