The European Court of Human Rights has rejected a request from the Council of Europe’s Committee on Bioethics (DH-BIO) to provide an advisory opinion on questions related to involuntary treatment and involuntary detention of persons with psychosocial disabilities under Article 29 of the Oviedo Convention.

DH-BIO’s request for an advisory opinion came in the midst of a highly contentious proposal by the same Committee to draft an additional protocol to the Oviedo Convention. This Protocol aims to regulate involuntary detention and treatment, rather than abolishing it, as required by international human rights law. The Committee has continued to work on the proposal despite unanimous opposition from persons with disabilities, their representative organisations, human rights experts at the United Nations, and the Council of Europe’s own Commissioner for Human Rights, who all argue that the proposal violates CRPD standards.

Under the CRPD, coercion against persons with psychosocial disabilities breaches the rights to personal integrity, freedom from torture and other forms of ill-treatment, and is discriminatory on the basis of actual or perceived disability. The United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee), the body authorised to supervise implementation of the CRPD, has been sharply critical of the Council of Europe’s proposals, and recently released a joint statement with the UN Special Rapporteur on the Rights of Persons with Disabilities, arguing that the Protocol “establishes the basis for fragmentation of international law” and, if adopted, would result in European Member States being “placed in an invidious position of having to choose between international law and a European regional instrument.”

Validity was granted permission to intervene as a third party, and welcomes today’s Grand Chamber decision. In our intervention, we argued that accepting jurisdiction in this case would be contrary to Article 47(2) of the European Convention on Human Rights (ECHR) as it would result in the Court prejudging the merits of concrete contentious cases concerning forced treatment and detention of people with psychosocial disabilities. Moreover, the questions of substance raised in the request for an advisory opinion concern the detention and forced treatment of persons with psychosocial disabilities, both being practices which violate the Convention on the Rights of Persons with Disabilities (CRPD) and which has been ratified by all Member States to the Council of Europe.

In its reasoning, the Court accepted that it has jurisdiction to give advisory opinions concerning the Oviedo Convention. However, this jurisdiction is limited to “legal questions” that concern the “interpretation” of that Convention. It accepted Validity’s argument that the Court cannot give an advisory opinion on questions relating to the content or scope of rights guaranteed under the European Convention. In the words of the Court:

“[…] an advisory opinion cannot concern the content or scope of the rights and freedoms set forth in Section I of the Convention (Articles 2-18) and the Protocols thereto. Nor can it concern any other question that the Court or the Committee of Ministers might have to consider in the context of possible proceedings under the Convention.”

In other words, any advisory opinion provided by the Court in these matters would prejudice its decisions in real cases raising similar questions. The Court defended its approach to “dynamic interpretation” of European human rights standards in light of present conditions, as well as taking into account developments in international and European legal and medical standards.

The Court also explained that the formulation of Article 7 of the Oviedo Convention, which purports to regulate involuntary interventions against people with psychosocial disabilities subject to “protective conditions prescribed by law”, is purposefully vague. It was drafted to enable dynamic interpretation consistent with the fundamental theme of the Oviedo Convention: the protection of the dignity and human rights of the human being. Following this reasoning, the Court refused to pronounce itself on the possible conflict between Oviedo Convention standards, allowing involuntary treatment in certain cases, and those of the Convention on the Rights of Persons with Disabilities. which prohibits all involuntary treatment and detention on the basis of disability.

Nevertheless, the Court reiterated that involuntary treatment and detention must always respect the limits of the substantive articles of the European Convention, which are dynamically evolving, inter alia, in line with evolutions in international law. It thus left room for progressive alignment between European and international human rights standards.

Commenting on the decision, Ann Campbell, Co-Executive Director of Validity said:

“We welcome the Court’s rejection of DH-BIO’s request in this case, which is in line with the views of organisations of persons with disabilities and other NGOs that submitted interventions in this novel case. DH-BIO must likewise acknowledge the validity of our opposition to their continuing work on a draft additional protocol to the Oviedo Convention, which falls far beneath the globally-applicable standards guaranteed under the Convention on the Rights of Persons with Disabilities. We reiterate our call that this unlawful and offensive draft protocol be withdrawn.“

More information

• Read the full Decision here
• Learn about the campaign to #WithdrawOviedo here.