Abstract
This article presents a critical analysis of the case-law of the ECtHR with regards to the interpretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention. According to the Court, only a person who has been reliably diagnosed with a mental disorder and who poses a danger to himself or others can be legally detained as ‘a person of unsound mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders which are treatable or which deprive the persons affected of their ability to self-control and so in the past the Court applied the said provision of the Convention to, among others, persons diagnosed with personality disorders or paedophilia who commited crimes acting with full criminal responsibility. The article argues that such a definition of the notion ‘a person of unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Only then, provided that other criteria developed in the Court’s case law, such as dangerousness for self or others and lack of less restrictive alternatives, have been satisfied, detention of person with mental disorder may be consistent with the object and purpose of the Convention.
Keywords
1. Introduction
Drawing a precise distinction between ‘normality’ and ‘abnormality’ in the context of mental health is an extremely difficult and controversial exercise. Nevertheless, sooner or later, there is a need to adopt relevant legal definitions. This need can be explained simply: since certain legal provisions specifically address persons with mental disorders, it would be impossible to fully understand a given rule without defining what these disorders are. This impossibility would be particularly problematic in the context of laws governing various forms of involuntary placement in psychiatric facilities as such laws point to ‘mental illnesses’ (or other equivalent notions) as a ground for the deprivation of liberty.
The problem of legally defining a person’s mental state concerns the interpretation of both domestic and international law. As regards the latter, Article 5 § 1(e) of the European Convention on Human Rights (ECHR or Convention) 1 sets out a key set of standards regarding the permissible scope of involuntary psychiatric commitment which authorises Member States to lawfully detain ‘persons of unsound mind’. Given the need to strengthen the protection of rights of persons with mental disorders in Europe, Article 5 § 1(e) ECHR must be correctly interpreted, which requires the adoption of a clear and limited understanding of the notion of ‘unsoundness of mind’.
The purpose of this article is therefore to first present and critically assess the case-law of the European Court of Human Rights (ECHR or Court) on the notion of ‘a person of unsound mind’ and, second, to provide an alternative, more narrow definition of said notion. In formulating such a definition, the article focuses primarily on the impact that a given mental disorder must have on the individual’s decision-making capacity and ability to self-control. The article argues that without an analysis of such an impact, the reason for which the drafters of the Convention included a provision allowing for the detention of this category of persons would be unclear. 2
The purposes of this article are of huge practical importance. Indeed, the definition of the concept of ‘a person of unsound mind’ determines the leeway of States to detain persons diagnosed with various forms of mental disorders. Without proper definition of said notion, there would be a risk of abuse of deprivation of liberty by States for purposes incompatible with the functions of Article 5. The article argues that such a risk exists especially in the case of preventive detention of ‘dangerous’ offenders.
In this regard, the question may arise whether focusing on the ECHR is justified, since currently the most important standards concerning the protection of personal liberty of persons with mental disorders are set in the Convention on the Rights of Persons with Disabilities (CRPD or Convention). 3 However, the significance of the ECHR should not be ignored. From a European perspective, the protection system established by the ECHR is still more effective than that provided by the CRPD, which is due to the fact that the number of countries which have ratified the Optional Protocol enabling individual complaints to the Committee of the CRPD is still relatively limited, 4 and that, moreover, the Committee’s decisions are not legally binding. 5 In addition, it may be argued that not all ‘persons of unsound mind’ within the meaning Article 5 ECHR are ‘persons with disabilities’ within the meaning of the CRPD. This concerns, for example, paedophiles or sadists, who according to the Court, as will be discussed below, may in some circumstances be legally detained under Article 5 § 1(e) ECHR whilst probably not considered ‘persons with disabilities’. Thus, the CRPD does not provide an answer to the question concerning the standards applicable to detention of such individuals.
In terms of methods, this article is primarily based on the interpretation of Article 5 § 1(e) of the ECHR with the use of generally accepted rules for the interpretation of international agreements. To this end, the ECtHR’s case-law concerning this provision has been analysed. However, the relationship between Article 5 and other provisions of the Convention which are potentially relevant to the problem of involuntary psychiatric detention were similarly taken into account. Although the article is not of a comparative nature, the standards of the CRPD are briefly presented as a potential background for the interpretation of the ECHR.
The article proceeds as follows. The subsequent section provides a brief analysis of the standards that stem from the CRPD and presents the differences between that Treaty and the ECHR with regard to legality of involuntary placement in psychiatric facilities (Section 2). The next section describes the basic rules concerning the protection of personal liberty on the grounds of the ECHR (Section 3). Thereafter follows a discussion on the practical importance of defining the notion of ‘a person of unsound mind’ under Article 5 § 1(e) ECHR (Section 4). The subsequent section contains a critical review of the Court’s interpretation of the notion of ‘a person of unsound mind’ (Section 5). The final section proposes an alternative interpretation of the notion at hand (Section 6). This is followed by a summary of the article’s findings.
2. Relations between CRPD and ECHR In the field of involuntary placement in psychiatric establishments
Currently the most important treaty regarding the rights of persons with disabilities is the CRPD. This Convention sets numerous standards for the protection of persons with disabilities against discrimination. In this regard, it is claimed that the CRPD led to a ‘paradigm shift’ in the approach to the rights of persons with disabilities, reflecting a move away from treating this category of individuals as subjects of care of society to perceiving them as autonomous entities authorised to enjoy human rights on an equal basis with others. 6
With regard to the protection of personal liberty, the CRPD obliges States, among other things, to ensure that ‘the existence of a disability shall in no case justify a deprivation of liberty’. 7 According to the CRPD Committee, this provision imposes an absolute prohibition of all forms of detention based on an actual or perceived impairment. Crucially, all types of involuntary psychiatric commitment, even those based on the ‘dangerousness to self or others’, are inconsistent with the CRPD. 8 Therefore, to ensure compliance with the CRPD, States should abolish any laws that allow involuntary psychiatric detention and they should focus instead on deinstitutionalisation. 9
Such an interpretation can certainly be seen as revolutionary and, obviously, it cannot be easily applied to the ECHR. This difficulty results primarily from the fact that Article 5 § 1(e) ECHR explicitly allows deprivation of liberty of ‘persons of unsound mind’. 10 It would be unrealistic to expect the Court to ‘desist from applying’ Article 5 § 1(e) on the grounds of its alleged inconsistency with jus cogens, as proposed by some legal scholars, 11 because the interpretation of the CRPD endorsed by the Committee does not reflect jus cogens. Notably, the UN bodies themselves have not yet adopted a unanimous position on the existence of an international obligation to ban all forms of compulsory placement of persons with mental disorders in therapeutic institutions. Both the Human Rights Committee 12 and the Subcommittee on Prevention of Torture 13 accept that such forms of deprivation of liberty may be used as a measure of last resort. Therefore, one should not be surprised that in a recent judgment the ECtHR held that ‘Article 5, as currently interpreted, does not contain a prohibition on detention on the basis of impairment, in contrast to what is proposed by the UN Committee on the Rights of Persons with Disabilities’. 14
However, this does not mean that the CRPD is entirely incapable of affecting the interpretation of the ECHR. In numerous rulings the Court underlined that it has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein. On the contrary, [the ECtHR] must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties.
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3. Detention of persons with mental disorders on the grounds of the ECHR
In the ECHR, the protection of personal liberty is guaranteed in Article 5. For the purposes of this article, the crucial part of Article 5 is its first paragraph, which provides an exhaustive 21 list of acceptable grounds for deprivation of liberty. The key type of detention for this article is referred to in Article 5 § 1(e), which provides for the lawful detention of persons ‘for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’. According to the ECtHR, the common denominator of all these categories of persons is that they may be detained not only to protect public safety but also for the protection of the detained persons themselves. 22
Among the categories of individuals mentioned in this subparagraph, ‘persons of unsound mind’ are the subject of the greatest number of ECtHR’s judgments. 23 The provision in question applies not only to involuntary psychiatric hospitalization but also to the involuntary placement of persons with mental disorders in various other facilities, such as social care homes 24 or therapeutic centres for ‘dangerous’ offenders. 25
As a rule, Article 5 ECHR concerns only the placement in a place of detention and the continuation of confinement. Hence, the ECtHR emphasises that a ‘mental patient’s right to treatment appropriate to his condition cannot as such be derived from Article 5 § 1 (e)’. 26 According to the ECtHR, the living and therapeutic conditions in the place of detention should be assessed primarily from the perspective of Article 3 ECHR. 27
Nevertheless, in some circumstances involuntary placement of a person with mental disorder in a place wholly unsuitable for treatment of his/her disorder, may violate also Article 5 ECHR. The ECtHR emphasises that ‘[i]n principle, the “detention” of a person as a mental health patient will only be “lawful” for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution’. 28 Consequently, the involuntary placement of a ‘person of unsound mind’ in a non-therapeutic facility may result in a violation of Article 5 § 1 ECHR. This principle was particularly relevant in the context of cases concerning the post-sentence preventive detention in Germany. In several judgments, 29 the ECtHR found a violation of Article 5 § 1 ECHR due to, among other things, the fact that the applicants were detained not in therapeutic facilities, but in separate prison wards. However, in 2013 German law was reformed – post-sentence detention was transformed into a therapeutic measure, which was also reflected in the conditions in which the detainees were kept. 30 In Bergmann v Germany 31 and in the subsequent Grand Chamber judgment of Ilnseher v Germany, the ECtHR stated that the new detention system did not violate the Convention, as detainees were kept in conditions appropriate for ‘persons of unsound mind’. The ECtHR had taken into account that detainees were provided with personalised and varied therapy, and that the therapeutic centre employed a sufficient number of medical staff.
Standards regarding the right of the patients ‘of unsound mind’ to appropriate therapy in place of detention were further clarified in the Grand Chamber judgment of Rooman v Belgium. 32 This case concerned a man diagnosed with psychotic disorders who was involuntarily placed in a forensic psychiatric institution. The patient spoke only German but, although it is one of the official languages in Belgium, the hospital did not provide any specialists able to communicate in this language. In this situation, the applicant did not have access to any effective therapy. The ECtHR found that such a situation violated both Article 5 § 1 and Article 3 ECHR (prohibition of torture). Referring to the former, the Court emphasised that ‘…there exists a close link between the “lawfulness” of the detention of persons suffering from mental disorders and the appropriateness of the treatment provided for their mental condition’. 33 That is because ‘[a]ny detention of mentally ill persons must have a therapeutic purpose, aimed specifically, and in so far as possible, at curing or alleviating their mental-health condition, including, where appropriate, bringing about a reduction in or control over their dangerousness’. 34
Yet, Article 5 ECHR does not apply in cases concerning involuntary treatment, which are usually considered under Article 3 or 8 ECHR (respect for private and family life). The former, in the light of the Court’s case-law, would be violated only when compulsory treatment was ordered in the absence of ‘medical necessity’. 35 Such a standard was rightly criticized by Bartlett as too vague because the Court has not explained what do ‘medical necessity’ actually means. 36 However, even if the threshold required for the finding a violation of Article 3 ECHR has not been reached, applicants may rely on Article 8 ECHR. That is because in light of the Court’s case-law, compulsory treatment always constitutes an interference with the patient’s privacy. 37 It is therefore permissible only on the terms specified in Article 8 § 2 ECHR. In practice, the existence of appropriate safeguards to protect the patient against the arbitrariness of medical staff is of particular importance. For this reason, the ECtHR has found inadmissible, among others, subjecting involuntarily hospitalized patients to compulsory treatment without additional judicial review. 38
Furthermore, unlike Article 19 CRPD (living independently and being included in the community), Article 5 ECHR does not impose a positive obligation on States to provide non-isolative forms of support to persons with disabilities, although the ECtHR stresses that authorities deciding on detention must consider whether in a given case it would not be sufficient to resort to less severe measures. 39 However, some legal scholars argue that the right to access community-based support and treatment could be derived from Article 8 ECHR. 40 Undoubtedly, such an interpretation would ensure greater consistency with standards resulting from the CRPD, but so far it has not been reflected in the case-law of the Court. 41
4. The importance of the definition of ‘ a person of unsound mind’
Defining what ‘a person of unsound mind’ means is crucial for the determination of the scope of Article 5 § 1(e) ECHR. As a rule, compulsory placement in a psychiatric institution may be legal only if a detainee has been reliably diagnosed as a ‘person of unsound mind’. Consequently, if the person is ‘mentally sane’ for the purposes of Article 5 § 1(e) of the ECHR, his or her detention, in order to comply with the standards arising from the Convention, would need to be imposed on other grounds listed in Article 5 § 1.
The importance of a proper definition of said notion can be best illustrated by the controversies surrounding the legality of post-sentence preventive detention, that is, an indefinite confinement of offenders posing a high risk of re-offending who already served their prison sentences. 42 Any such measure ordered in a conviction judgment may fall within the scope of Article 5 § 1(a) ECHR. 43 However, in some jurisdictions 44 post-sentence preventive detention may be ordered many years after the conviction. The use of this type of detention raises many controversies and in recent years, it has been the subject of decisions of many national courts 45 and international bodies. 46 On grounds of the ECHR, such detention may not be justified under Article 5 § 1(a) of the ECHR as there is no sufficient causal connection between the conviction and deprivation of liberty. 47 Since neither subparagraph (b) 48 nor (c) 49 of Article 5 § 1 of the Convention allows for the indefinite preventive confinement of persons on account of their continuing propensity to crime, such a form of detention may only be legal if it satisfies the criteria stemming from the subparagraph (e). The measure in question may, therefore, be applied only to offenders diagnosed as ‘persons of unsound mind’. 50 Therefore, the legality of such form of detention depends on finding whether person suffering from, for example, personality disorder or paedophilia, who committed prohibited acts with full criminal responsibility, may be considered a ‘person of unsound mind’.
5. The notion of ‘ a person of unsound mind’ in the case-law of the ECTHR
According to the ECtHR, the notion of ‘a person of unsound mind’ is difficult to define because its meaning ‘is continually evolving as research in psychiatry progresses and increasing flexibility in treatment is developing’. 51 However, the Court admits that the scope of said notion has its limits, emphasising that it would be unacceptable to consider a person to be ‘of unsound mind’ and detain him or her ‘simply because his or her views or behaviour deviate from established norms’. 52
The basic rules concerning interpretation of Article 5 § 1(e) ECHR were provided in the judgment in the case of Winterwerp v the Netherlands. Here, the ECtHR held that a given instance of deprivation of liberty would constitute a lawful detention ‘of a person of unsound mind’ only if three conditions are met. First, on the basis of objective medical expertise, the individual must be reliably shown to be of unsound mind. Second, the individual’s mental disorder ‘must be of a kind that warrants compulsory confinement’, and third, the mental disorder must persist throughout the period of detention. 53 For the purposes of this article, the most relevant are the first two criteria as they jointly define the Court’s understanding of the notion ‘a person of unsound mind’.
In the light of the first Winterwerp criterion, only a person who has been reliably diagnosed by a medical expert 54 with a mental disorder can be considered ‘a person of unsound mind’. Therefore, the definition of the analysed notion is inextricably linked to the medical concept of a ‘mental disorder’ which has a wide scope and covers many disorders of different genesis and symptoms. For example, the fifth chapter of the WHO International Statistical Classification of Diseases and Related Health Problems (ICD-10) 55 entitled ‘Mental and behavioural disorders’ includes disorders as schizophrenia, mood disorders, neurotic disorders, disorders of personality and behaviour or intellectual disability. In the light of the ECtHR’s case-law, the concept of ‘unsoundness of mind’ cannot be narrowed down to only one particular type of mental disorder, in particular – psychotic disorders. Already in a decision issued as early as in 1976, the European Commission of Human Rights explicitly rejected such a restrictive interpretation of the ‘unsoundness of mind’, pointing out that it must be ‘understood in a wider sense comprising also abnormal personality traits which do not amount to mental illness’. 56 Furthermore, in the view of the ECtHR, the recognition of a mental disorder as an ‘unsoundness of mind’ is not dependent on whether such disorder can be effectively treated. 57 One may wonder whether the detention of persons diagnosed with an untreatable disorder is consistent with the therapeutic nature of detention under Article 5 §1(e) ECHR (see case-law referred to in the section 3 of this article). Nevertheless the Court believes that even if a person’s disorder is not fully treatable, he or she may still benefit from therapeutic activities or care provided in a given facility. 58
However, the mere fact that a person is diagnosed with a mental disorder does not necessarily mean that he or she is also ‘of unsound mind’ within the meaning of Article 5 § 1(e) ECHR. As already mentioned, the medical category of ‘mental disorders’ includes many dysfunctions and certainly, not all of them could ever justify detention in a psychiatric facility. 59 This is because medical classifications are primarily intended to describe the causes, symptoms and methods of treatment of disorders and not to determine the conditions for the legality of involuntary hospitalization. The making of such a determination is not an exercise of a purely medical character. 60 Conditions for involuntary psychiatric commitment must be laid down in law and the relevant legal rules must take into account the wide range of protected rights and interests. Thus, although every ‘person of unsound mind’ within the meaning of Article 5 § 1(e) ECHR must be diagnosed with a ‘mental disorder’ in the medical sense, only some persons with ‘mental disorder’ can be considered ‘of unsound mind’ under the Convention. 61
For this reason, the second Winterwerp criterion requires that a person’s mental disorder is ‘of a kind or degree warranting compulsory confinement’. 62 In practice, this means that a person, because of his or her mental disorder, is dangerous to himself or herself or others. In the light of the Court’s case-law, posing a danger to oneself may include not only direct threats, such as attempts of suicide, but also indirect ones, such as those that result from a person’s inability to take care of his or her basic life needs. 63 However, the Court does not explicitly formulate the requirement that a mental disorder must result in severe impairment of a patient’s ability to decide on placement. However, it does emphasise that when there is no imminent danger to the patient’s life, the authorities should act carefully and consider whether the refusal to give consent to placement in a therapeutic facility has been expressed consciously. That is because every person has ‘the right to be ill’, as can be derived from Article 8 ECHR, and the mere reluctance to receive treatment cannot justify deprivation of liberty. 64 Similarly, in the context of involuntary placement in social care homes, the Court underlined that even ‘the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty’ and that ‘any protective measure should reflect as far as possible the wishes of persons capable of expressing their will’. 65
The criterion that refers to posing a danger to others implies the assessment of the probability of a person committing a violent act in the future and the reliability of such risk predictions is often challenged. 66 Nevertheless, said criterion is still widely used in the domestic laws of the European countries 67 and it is highly unlikely that the Court would abandon it in the near future. Still, the Court underlines that ‘dangerousness’ must be sufficiently proved. 68 Yet, the question remains as to what must be the relationship between the ‘dangerousness’ of a given person and his or her mental disorder. In particular, one may wonder whether only such mental disorders, which deprive the person affected of his or her ability to consciously control his or her behaviour and thus to be held criminally responsible, may be considered as ‘unsoundness of mind’. So far, the ECtHR has rejected such an interpretation 69 and in the past it has ruled, for example, that a convicted rapist with personality and sadistic disorders 70 or a convicted man diagnosed with dissocial and schizoid personality, 71 who acted with full criminal responsibility, could have been considered ‘persons of unsound mind’. At the same time, however, in several rulings, the ECtHR has expressed doubts ‘as to whether a person’s dissocial personality or dissocial personality disorder alone could be considered a sufficiently serious mental disorder so as to be classified as a “true” mental disorder for the purposes of Article 5 § 1 (e)’. 72 The Court has also frequently suggested in its decisions, but only as obiter dicta, that the ‘unsoundness of mind’ is a notion more narrow than that of ‘mental disorder’, as used in German law on the post-conviction preventive detention. Regretfully, the ECtHR has failed to provide any further explanation for this suggestion. 73
While analysing the Court’s understanding of the notion of ‘a person of unsound mind’, one should keep in mind that according to the ECtHR In deciding whether an individual should be detained as a ‘person of unsound mind’, the national authorities have a certain margin of appreciation regarding the merits of clinical diagnoses since it is in the first place for them to evaluate the evidence in a particular case.
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Therefore, the Court very rarely questions the findings of national authorities and medical experts. 75 Yet, it is much more meticulous when it comes to examining whether a person deprived of liberty has been granted due procedural rights. It is therefore hard to disagree with Bartlett who found that ‘[i]n dealing with cases of persons with mental disabilities, the ECHR has been relatively good on procedural justice, but not nearly so strong on substance’. 76
6. An alternative interpretation of article 5 § 1(E) ECHR
The above analysis has shown that the interpretation of the notion ‘a person of unsound mind’ adopted by the ECtHR is insufficiently precise. This is particularly visible in the context of detention of persons recognised as dangerous to others. The rejection by the ECtHR of the criterion related to the impact of disorders on the ability of a person to control and understand his or her actions and to be held criminally responsible does not allow for a clear distinction between persons who commit prohibited acts primarily as a result of their disorders and those whose tendency to commit crimes is conditioned by other factors. What is more, there is a risk that due to expanding the interpretation of the term ‘a person of unsound mind’ States will be able to continue the detention of convicts after completion of their sentences or to implement other types of policies of preventive detention of ‘dangerous persons’ on the pretext of therapy to circumvent rules of criminal procedure.
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After all, the standards of the criminal process set out in international and domestic law, prohibit retroactive punishment or punishment based on the mere personal likelihood of committing a criminal act. However, if a detainee is recognised as ‘a person of unsound mind’ and his or her place of detention is classified as a ‘therapeutic facility’, these standards do not apply.
78
In this context it is worth referring to the dissenting opinion of Paulo Pinto de Albuquerque, the then Portuguese judge in the ECtHR, to the judgment in the case of Ilnseher v Germany: although the list of grounds of detention in Article 5 § 1 must be interpreted narrowly, the majority do just the opposite: they embark on an expansive interpretation of its sub-paragraph (e), which becomes a convenient catch-all. The way to keep the ‘bad’ behind bars until they die is to mislabel them as ‘mad’.
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In this context it is worth noting that already in 2002, Winick, proposing his own interpretation of the notion of ‘a person of unsound mind’. He argued that to justify involuntary psychiatric hospitalization, the mental disorder of a person must produce cognitive or volitional impairment that renders the patient incompetent in ways that serve as one of the two justifications for involuntary commitment, i.e. that substantially impairs the patient’s self-control in a manner that creates an imminent risk of harm to the patient or others, or that substantially impairs his or her ability to make rational decisions about the need for care and treatment.
80
As already indicated, the above interpretation of Article 5 § 1(e) has not been endorsed by the ECtHR. However, there are strong arguments in favour of narrowing the scope of the notion ‘a person of unsound mind’.
The Convention, in the same fashion as any other international treaty, ‘must be interpreted in the light of the rules of interpretation provided for in Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties [VCLT]’. 84 Consequently, in accordance with Article 31 para 1 VCLT, ECHR provisions ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The starting point for the interpretation of Article 5 § 1(e) ECHR must therefore be the establishment of the ordinary meaning of the notion of ‘a person of unsound mind’. 85
This task is a difficult one, as the phrase ‘unsoundness of mind’ has a very ambiguous meaning. Sugarman notes that the notion in question (and the equivalent term ‘insanity’) derives ‘from the Latin sanus, meaning healthy, whole or sound’. 86 The 2nd edition of the Black’s Law Dictionary, published in 1910, defines ‘a person of unsound mind’ as ‘an adult who from infirmity of mind is incapable of managing himself or his affairs. The term, therefore, includes insane persons, idiots, and imbeciles’. 87 Black’s definition is relatively broad as it covers both persons affected by mental illness and persons with intellectual disabilities. The Dictionary of English Law of 1959 provides yet another definition, according to which ‘a person of unsound mind’ means ‘a term by which a person afflicted with a mental illness affecting their reason are to be known, as distinguished from idiots, imbeciles, feeble minded persons and moral defectives, under the Mental Deficiency Act, 1927’. 88 A more contemporary source of reference, 7th edition of the Black’s Law Dictionary of 1999 does not provide a separate definition of an ‘unsound mind’, but defines the adjective ‘unsound’ as ‘Not healthy; esp., not mentally well <unsound mind>’. 89
Also modern psychiatry provides little help in defining the term in question. Contemporary medicine does not use the notion of ‘unsoundness of mind’ and so the legal scholarship rightly perceives the wording of Article 5 § 1(e) as archaic
90
and pejorative.
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This is reflected, for example, in the language of the two key classifications of diseases, ICD-10 published by the WHO and Diagnostic and Statistical Manual of Mental Disorders (DSM-V) published by the American Psychiatric Association. Neither of them uses the term ‘unsoundness of mind’, applying the notion of ‘mental disorder’ instead. ICD-10 does not define ‘mental disorder’, while according to DSM-V: [a] mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social or occupational activities.
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Article 32 VCLT provides that when the interpretation of a treaty in accordance with the rules provided in Article 31 does not bring conclusive results, ‘recourse may be had to supplementary means of interpretation’ such as, in particular, preparatory work of the treaty. And indeed, while interpreting the Convention, the Court sometimes refers to its travaux préparatoires, which may help to determine the intentions of the drafters of the ECHR. 93 Unfortunately, in the context of Article 5, the travaux préparatoires are not helpful in any way. They show that the notion of ‘a person of unsound mind’ has not been discussed, as if all parties negotiating the text of the Convention assumed that its meaning was obvious and did not require longer deliberations. 94
It is thus clear that the textual interpretation of Article 5 § 1(e) of the Convention does not bring satisfactory results or provide any guidance in establishing the meaning of the notion of ‘a person of unsound mind’. In this situation, in accordance with Article 31 para 1 VCLT, one should primarily consider the ‘object and purpose’ of the whole Convention and the provision in question.
The clear object and purpose of Article 5 § 1 of the Convention is to protect individuals against arbitrary detention. A wider, over-extensive interpretation of the notion ‘a person of unsound mind’ would be inconsistent with this ‘object and purpose’ as it would give Council of Europe Member States too much discretion, significantly weakening the protective character of Convention provisions. Moreover, the subparagraph (e) of Article 5 § 1 constitutes an exception to the general prohibition of deprivation of liberty, and, as any other ground listed in this provision, must be interpreted narrowly. 95
The exception concerning ‘persons of unsound mind’ may undoubtedly be perceived as discriminatory as it allows for different treatment of persons on the basis of their mental health. However, it would be unreasonable to assume that the Convention may introduce such a differentiation completely arbitrarily, without any further justification. After all, its Article 14 prohibits discrimination based on the criterion of a person’s state of mental health.
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It is true that Article 14 cannot completely invalidate Article 5 § 1(e) ECHR which explicitly permits detention based on the criterion of mental health, however, as the Court rightly underlines, ‘the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions’.
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Therefore, a correct interpretation of Article 5 § 1(e) of the Convention must take into account, to the extent possible, standards concerning the right to equal treatment developed in the case-law of the Court. In this context it is worth to reiterate that Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised.
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relying on mental illness as the decisive element or even as one element among others may amount to discrimination when, in the specific circumstances of the case, the mental illness does not have a bearing on the parents’ ability to take care of the child.
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As noted above, the second Winterwerp criterion refers to the danger a person poses for him- or herself or others. However, the mere dangerousness does not provide sufficient justification for unequal treatment of persons of with mental disorders. After all, ‘persons of sound mind’, unlike ‘persons of unsound mind’, cannot be detained for an indefinite time simply because their own life or health is threatened or that they are perceived as dangerous for others prior to commitment of a prohibited act. 101 There must therefore be another factor that could justify such an unequal treatment.
Arguably, such a justification may only be found in the impact of mental disorders on an individual’s perception of reality and his or her ability to consciously control their behaviour. 102 Some mental disorders can significantly distort individuals’ perception of reality and restrict, in whole or in part, their ability to control their own actions or to understand their own health situation, significantly limiting the individual’s decision-making capacity. What is important is that the case-law of the Court proves that, unlike the CRPD Committee, the ECtHR accepts restrictions of fundamental rights motivated by the limited capacity of persons with mental disabilities and does not perceive them as discriminatory (provided of course that they are proportionate in the context of a given case). For example, the Court did not find a violation of Article 8 in a case concerning a restriction of the right to choose the place of residence of a person with a mental disability who was deemed ‘unable to understand the significance of that particular issue’. 103 Similarly, the Court accepted a limitation of the right to marry imposed on a person who could not provide informed consent to marry due to limited mental and cognitive capacities. 104
Therefore only the profound impact of the mental disorder on the person’s capacity to decide about his or her own health and/or ability to control his or her own behaviour in combination with his or her dangerousness for self or others and a lack of less restrictive alternatives may justify detention under Article 5 § 1(e) ECHR. The axiological justification for such an interpretation may be also analysed through the prism of the positive obligations of States to protect persons with mental disorders and to protect society against threats related to activities undertaken by persons with such disorders.
First, in accordance with the jurisprudence of the ECtHR, Article 2 of the Convention ‘obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved’. 105 In Arskaya v Ukraine, the Court held that the principle of the sanctity of human life, which stems from Article 2 ECHR, necessitates an assessment of whether the patient’s opposition to the life-saving treatment is conscious – a failure to perform such an assessment, leading to the death of a patient who refused treatment while suffering from mental disorders which excluded his or her decision-making capacity, may violate the Convention. 106 Therefore, it may be argued that in the case of persons affected by mental disorders which deprive them of their decision-making capacity, who ‘pose danger to themselves’ due to, for example, risk of suicide, involuntary psychiatric hospitalization could be considered an implementation of positive obligations of the State. 107 Still, the positive obligations under Article 2 of the Convention cannot justify involuntary hospitalization of patients with the full decision-making capacity. Indeed, such an interpretation would be too paternalistic, and the Court rightly underlines that ‘the positive obligations under Article 2 should not be unduly impaired by paternalistic interpretations, bearing in mind that the notion of personal autonomy is an important principle underlying the Convention guarantees’. 108
Second, the Convention may also oblige States to prevent threats to society posed by persons with mental disorders. As the Court explains, the Convention obliges States ‘to take reasonable preventive measures where they “knew or ought to have known at the time of the existence of a real and immediate risk” to the life or bodily integrity of an identifiable individual’. 109 Such a positive obligation is not absolute and cannot justify the use of indefinite preventive detention of ‘potential offenders’. 110 After all, in light of Article 5 § 1(a) and Article 7 of the Convention (no punishment without law), criminal liability is the basic mechanism for protecting public safety and order. 111 However, some mental disorders may unquestionably exclude a person’s capacity to be criminally responsible for his or her unlawful acts. Thus, the State may need to establish a system of non-criminal detention in order to protect the public against risks posed by such persons. Designed as a means to provide necessary therapy rather than punishing the person concerned, such a detention system cannot be guided by the same principles as those applying to repressive detention. Involuntary psychiatric hospitalization of persons who are likely to endanger the safety of others but are incapable of being criminally responsible may, therefore, be seen as an implementation of positive obligations of the State. In this context it is interesting to note that in the abovementioned decision of 1976 (see Section 5), the European Commission of Human Rights explained that the scope the notion ‘unsoundness of mind’ cannot be limited to psychotic disorders but must include also ‘abnormal personality traits’, because society must be protected against persons who have a tendency to repeatedly commit aggressive and unlawful acts but cannot be held criminally responsible due to their mental disorders. 112 This could suggest that for the Commission, detention of persons who suffer from a mental disorders which does not affect their criminal responsibility and cannot be justified under Article 5 §1(e). Unfortunately, as already noted, the ECtHR has rejected such conclusion, but has not presented convincing axiological justification of therapeutic preventive detention of ‘dangerous’ persons who can be held criminally responsible for their offences.
To conclude, there are strong reasons for narrowing the scope of the concept of ‘persons of unsound mind’ to persons affected by such disorders, that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. It must, however, be emphasised that this criterion is only intended to supplement, and not to replace, the criteria currently used by the ECtHR to assess whether given instances of deprivation of liberty may be classified as a legal detention of ‘a person of unsound mind’. Consequently, it would still be necessary to show that a person concerned poses a danger to himself or herself or others and that such a threat cannot be remedied in any other, less restrictive, ways.
The impact of the adoption of the proposed interpretation of Article 5 § 1(e) ECHR would be particularly relevant for the example of the above-mentioned cases regarding post-sentence detention. As pointed out, in Ilnseher and some other cases the Court considered that the applicants were ‘persons of unsound mind’ although according to the findings of the national authorities at the time of the offence, the applicants acted with full criminal responsibility. Of course, it is possible that between the commission of a criminal act and the adjudication on post-sentence detention a person’s mental health will have deteriorated to such an extent that his or her ability to control his or her own actions and understand the meaning of such actions will be severely limited. However in the light of the Court’s case-law, the scope of the notion ‘a person of unsound mind’ is not limited to mental disorders which produce such effects. Meanwhile, in the light of the interpretation proposed in this article, impact of the mental disorder on the person’s ability to self-control would be crucial – the mere fact that a person was diagnosed with a mental disorder and assessed as prone to commit violent acts would not suffice to justify detention. Therefore, the use of post-sentence detention or other types of preventive confinement against ‘dangerous’ individuals would be more difficult.
7. Conclusions
This article has shown the need to clarify the ECtHR’s case-law on Article 5 § 1(e) of the Convention. The Court has not developed a clear and unambiguous interpretation of the notion of ‘a person of unsound mind’ and as a result, the scope of this term has become overbroad. The current case-law of the ECtHR grants States wide discretion which may lead to abuses of measures of therapeutic detention aiming at the implementation of preventive policies. Therefore, the article argued that the scope of said notion must be circumscribed so to limit it to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Arguably, only then, provided that other criteria established in the case-law of the Court are met, the deprivation of liberty under Article 5 § 1(e) would be consistent with the ‘object and purpose’ of the Convention.
Admittedly, the interpretation of Article 5 § 1(e) ECHR proposed in this article, would undoubtedly collide with CRPD standard. Nevertheless, as this article argued, the full harmonisation of the standards arising from both treaties is impossible due to the far-reaching differences between them. The proposed interpretation allows at least a clarification of the interpretation of Article 5 § 1(e) ECHR and prevents States from abusing this measure to pursue aims wholly unrelated to the provision of appropriate therapy for those in need. Moreover, such an understanding of the ECHR does not relieve States from their duty to pursue the policy of deinstitutionalisation, as required by the CRPD. The fact that under the ECHR some persons with mental disorders may in certain circumstances be lawfully detained, does not necessarily mean that the CRPD is per se inconsistent with the ECHR. Such a situation would take place if the ECHR obliged States to deprive persons with mental disorders of their liberty. 113 However, such an obligation is not explicitly stated in the ECHR and moreover this article does not argue that the positive obligations of the State under Articles 2, 3 or 8 ECHR cannot be fulfilled by means other than involuntary psychiatric commitment. On the contrary, it is possible that in a State which fully implemented the policy of deinstitutionalisation, as required by the CRPD, authorities could effectively protect the life and health of persons with disabilities and public safety without applying a coercive treatment.
Footnotes
Author's Note
The topic of this article is linked to the author’s doctoral dissertation and his book published in Poland (M. Szwed, Przymusowe umieszczenie w zakładzie psychiatrycznym w świetle współczesnych standardów ochrony praw człowieka, Wolters Kluwer 2020).
Declaration of conflicting interests
The author(s) declared the following potential conflicts of interest with respect to the research, authorship, and/or publication of this article: Author works as a lawyer at the Helsinki Foundation for Human Rights (Polish human rights NGO). His professional duties include, among others, provision of legal assistance to persons with mental disabilities involuntarily placed in the psychiatric or social care institutions. At the moment he represents the applicants, clients of the Foundation, in two proceedings before the ECtHR concerning interpretation of Article 5 § 1(e) of the Convention. The legal representation is provided on a pro bono basis – the author is not remunerated by the applicants and he does not obtain an additional remuneration from his employer, regardless of the final outcome of the proceedings.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
