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Abstract
This paper sets out how torture prevention mechanisms have focused on prisons and police stations to the detriment of people in psychiatric and social care institutions, leaving people with disabilities exposed to torture and ill-treatment carried out with impunity. The UN Convention on the Rights of Persons with Disabilities (CRPD) sets out human rights norms for people with disabilities and provides a timely opportunity for monitoring bodies to review their standards and practices. The CRPD calls for an end to disability-based detention, it establishes a state obligation to provide a range of community-based services instead of segregating people in institutions, and it clarifies that ever person with a disability has legal capacity on an equal basis with others in all areas of life, and that they should have access to support to exercise it. In introducing the five substantive articles in this special edition, this introductory paper contends that segregation and suffering of people with disabilities will continue as long as monitoring bodies ignore disability-specific detention facilities. The paper recommends torture prevention bodies to recognise the range of human rights violations affecting people with disabilities deprived of their liberty, visit disability-specific places of detention, apply CRPD standards in their work, and embrace monitors with disabilities as a core part of their practice.
Notes
The UN Committee against Torture was established by the UN Convention against Torture in 1984. See Art. 17–24 of the Convention.
UN Convention against Torture, Art. 4(1).
Office of the High Commissioner for Human Rights, ‘Preventing Torture: An Operational Guide for National Human Rights Institutions’, Sydney, May 2010, 4.
Ibid., 6–7. In cases where the judiciary lacks independence, complaint mechanisms are ineffective, there is no access to free legal aid and legal assistance for detainees, allegations of torture and ill-treatment are not investigated, and those who breach the law are not punished, there is a heightened risk of impunity.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), established by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Strasbourg, 26 November 1987.
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), New York, 18 December 2002.
UN Convention on the Rights of Persons with Disabilities (CRPD), New York, 13 December 2006.
CRPD, Art. 2 says 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’.
People with psycho-social disabilities are those who experience mental health issues, and/or who identify as ‘mental health consumers’, ‘mental health service users’, ‘psychiatric survivors’, or ‘mad’. These are not mutually exclusive groups.
People with intellectual disabilities generally have a long-term condition that is present at birth or before the age of 18. People have greater difficulty than others with intellectual and adaptive functioning as well as carrying out everyday activities such as communicating and interacting with others, managing money, doing household activities and attending to personal care. While the term ‘intellectual disability’ is technically distinct from other ‘developmental disabilities’ these terms are often used interchangeably.
CRPD, Preamble para. (d).
Ibid., Preamble para. (k).
Ibid., Art. 3(a).
Ibid., Art. 3(d).
Ibid., Art. 3(c).
Manfred Nowak, ‘Protecting Persons with Disabilities from Torture’, Office of the UN High Commissioner for Human Rights, July 2008, p. 9, para. 41.
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, Article 2(1).
CRPD, Art. 16(2).
Ibid., Art. 16(3).
Ibid., Art. 16(4). See also CRPD Art. 26 which sets out obligations to provide appropriate services to people with disabilities, to enable them ‘to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life’.
CRPD, Art. 16(5).
Ibid., Art. 13.
UN Committee on the Rights of Persons with Disabilities, Concluding Observations of the Committee: Tunisia, 13 May 2011, CRPD/C/TUN/CO/1, paras 28–9.
UN Committee on the Rights of Persons with Disabilities, Concluding Observations of the Committee: Spain, 19 October 2011, CRPD/C/ESP/CO/1, paras 37–8.
UN Committee on the Rights of Persons with Disabilities, Concluding Observations of the Committee: Peru, 9 May 2012, CRPD/C/PER/CO/1, paras 30–1.
CRPD, Art. 14(1)(b), which states that persons with disabilities, ‘[a]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty’.
CRPD Committee's Concluding Observations of the Committee: Spain, paras 35–6; Concluding Observations of the Committee: Tunisia, paras 24–5; Concluding Observations of the Committee: Peru, paras 28–9.
See Mental Disability Advocacy Center, ‘Out of Sight: Human Rights in Psychiatric Hospitals and Social Care Institutions in Croatia’, 2011, in which MDAC documented that lifelong institutionalisation is often the norm in Croatian facilities for people with disabilities. See also the monitoring reports of the Hungarian Civil Liberties Union which reveal the same pattern in social care institutions in the Hungarian county of Tolna, 2010–2012.
CRPD, Art. 13.
Ibid., Art. 2.
Ibid., Art. 5.
There is a rich literature on this. See, for example, Jerry Alan Winter, ‘The Development of the Disability Rights Movement as a Social Problem Solver’, Disability Studies Quarterly 23, no. 1 (2003): 33–61.
CPRD, Art. 19(b).
Ibid., Preamble para. (j).
Thomas Hammarberg, ‘Inhuman Treatment of Persons with Disabilities in Institutions’, October 2010. See also his extended Issue Paper, ‘The Rights of People With Disabilities to Live Independently and be Included in the Community’, March 2012, CommDH/IssuePaper(2012)3.
See, for example, Shtukaturov v. Russia, judgment of the European Court of Human Rights, Application No. 44009/05, 27 March 2008.
See for example, Stanev v. Bulgaria, judgment of the Grand Chamber of the European Court of Human Rights, 17 January 2012, Application no. 36760/06, and DD v. Lithuania, judgment of the European Court of Human Rights, 14 February 2012, Application No. 13469/06.
Article 14(2) declares that states need to ‘ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation’.
J. Mansell, M. Knapp, J. Beadle-Brown and J. Beecham, Deinstitutionalisation and Community Living – Outcomes and Costs: Report of a European Study (Canterbury: Tizard Centre, University of Kent, 2007).
Nowak, ‘Protecting Persons with Disabilities from Torture’, para. 41.
Ibid., para. 65.
‘Government Condemns “Shocking” Winterbourne View Abuse’, BBC, June 1, 2011, http://www.bbc.co.uk/news/uk-13617196.
UN Committee against Torture, Concluding Observations of the Committee: Czech Republic, 14 May 2012, CAT/C/CZE/CO/4-5 para. 21.
UN Committee against Torture, Concluding Observations of the Committee: Ghana, 15 June 2011, CAT/C/GHA/CO/1, para. 17.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Preliminary Observations: Ukraine, 23 November 2011, CPT/INF/2011.
Stanev v. Bulgaria, see n. 39.
Findings on Pastra social care home for ‘adults with mental disorders’, from ‘Report to the Bulgarian Government on the Visit to Bulgaria Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 22 December 2003’, CPT/Inf (2004) 23, 24 June 2004 (hereinafter ‘CPT report’), para. 26. In Block 3, where Mr Stanev was held, the CPT found ‘somewhat better heating’, although ‘residents indicated that it had been on all the time since the delegation's arrival’. This tells us more about the institution's management's cynical attitude to human rights inspectors than it does about the extra pitiful degrees of warmth.
Stanev judgment, para. 209.
CPT Report on Bulgaria, para. 27.
For an analysis of this case, see Oliver Lewis, ‘Stanev v. Bulgaria: On the Pathway to Freedom’, Human Rights Brief, 19 (Winter 2012): 1–7.
Bulgarian Helsinki Committee, ‘Neglected, Abused, and Starved to Death’, Sofia, 20 September 2010.
Mental Disability Advocacy Center, ‘Out of Sight: Human Rights in Psychiatric Hospitals and Social Care Institutions in Croatia’, 2011.
See for example, Marjorie Cohn, ‘Introduction to The United States and Torture: Interrogation, Incarceration, and Abuse’, The United States and Torture: Interrogation, Incarceration, and Abuse, ed. Marjorie Cohn, (New York University Press, New York, 2011; Thomas Jefferson School of Law Research Paper No. 1754705, available at SSRN: http://ssrn.com/abstract=1754705; Richard Jacson, ‘Language, Policy and the Construction of a Torture Culture in the War on Terrorism’, Review of International Studies 33 (2007): 353–71.
Group homes are small residential facilities located within a community and designed to serve children or adults with chronic disabilities.
People with psycho-social disabilities are those who experience mental health issues, and/or who identify as ‘mental health consumers’, ‘mental health service users’, ‘psychiatric survivors’, or ‘mad’. These are not mutually exclusive groups.
People with intellectual disabilities generally have a long-term condition that is present at birth or before the age of 18. People have greater difficulty than others with intellectual and adaptive functioning as well as carrying out everyday activities such as communicating and interacting with others, managing money, doing household activities and attending to personal care. While the term ‘intellectual disability’ is technically distinct from other ‘developmental disabilities’ these terms are often used interchangeably.
Leila Kavanagh, Donald Rowe, Jolyn Hersch, Kylie J. Barnett and Robert Reznik, ‘Neurocognitive Deficits and Psychiatric Disorders in a NSW Prison Population’, International Journal of Law and Psychiatry 33 (2010): 20–6.
See for instance, ‘Prison Psychiatry: Adult Prisons in England and Wales’, Royal College of Psychiatrists, College Report CR141, February 2007, p. 15.
See for instance the SPT's 2010 report on Mexico, following its visit in September 2008. UN Subcommittee on Prevention of Torture, Report on Visit: Mexico, 31 May 2010, CAT/OP/MEX/1, para. 12.
The SPT visited two psychiatric hospitals in Mexico between 27 August and 12 September 2008 and one in Paraguay between 10 and 16 March 2009.
The SPT visited Liberia between 6 and 13 December 2010.
In Brazil (mission 19–30 September 2011) the SPT visited one psychiatric hospital, and in Argentina (mission 18–27 April 2012) it visited four psychiatric facilities. The SPT's press release about its visit to Mali (mission 5–14 December 2011) stated that such facilities were visited, but numbers were not made public.
UN Subcommittee on Prevention of Torture, Fifth Annual Report, 19 March 2012, CAT/C/48/3.
‘Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’, United Nations, E/CN.4/2005/102/Add.1, 8 February 2005.
Shtukaturov v. Russia, para. 125.
18, §, 2011./CXI, Ombudsperson Act, Törvény az alapvető jogok biztosáról.
94/E, F, K; 99 § (14), Law no. 1993./III on Social Administration and Social Benefits, Chapter ‘The Rights of Persons Receiving Personal Care in Social Care Home’ (Törvény a szociális igazgatásról és szociális ellátásokról, A személyes gondoskodást nyújtó szociális intézményekben ellátottak jogairól).
Data from Hungarian Civil Liberties Union (TASZ), monitoring reports of social care institutions in Tolna county, 2010–2012.
Unpublished monitoring report to Chisinau psychiatric hospital, December 2010, on file at MDAC.
The authors of this article also attended: DK coordinated the seminar, and OL chaired.
Peter Bartlett, ‘A Mental Disorder of a Kind or Degree Warranting Confinement: Examining Justifications for Psychiatric Detention’, The International Journal of Human Rights 16, no. 6 (2012): 831–844.
Anna Lawson, ‘Disability Equality, Reasonable Accommodation and the Avoidance of Ill-treatment in Places of Detention: The Role of Supranational Monitoring and Inspection Bodies’, The International Journal of Human Rights 16, no. 6 (2012): 845–864.
Nell Munro, ‘Define Acceptable: How Can We Ensure that Treatment for Mental Disorder in Detention is Consistent with the UN Convention on the Rights of Persons with Disabilities?’, The International Journal of Human Rights 16, no. 6 (2012): 902–913.
Charles O'Mahony, ‘Legal Capacity and Detention: Implications of the UN Disability Convention for the Inspection Standards of Human Rights Monitoring Bodies’, The International Journal of Human Rights 16, no. 6 (2012): 883–901.
Elina Steinerte, Rachel Murray and Judy Laing, ‘Monitoring Those Deprived of Their Liberty in Psychiatric and Social Care Institutions and National Practice in the UK’, The International Journal of Human Rights 16, no. 6 (2012): 865–882.
Mental Disability Advocacy Center, ‘Building the Architecture for Change: Article 33 of the UN Convention on the Rights of Persons with Disabilities’, 2011.
See Oliver Lewis and Nell Munro, ‘The Right to Participation of People with Mental Disabilities in Legal and Policy Reforms’, in Mental Health and Human Rights, ed. Michael Dudley, Derrick Silove and Fran Gale (Oxford: Oxford University Press, 2012): 585–599.