In July 2024, the UN Subcommittee on Prevention of Torture (SPT) published its first-ever general comment on Article 4 of the Optional Protocol to the Convention Against Torture (places of deprivation of liberty). To effectively fulfil the legal obligations relating to torture prevention contained in the Optional Protocol, States are obliged to give access to National Preventive Mechanisms (NPMs) and the SPT to visit a range of closed settings where persons with disabilities are detained, including all types of institutions covering, for example, group homes and family-type homes. 

In April 2023, Validity submitted a written contribution to the Subcommittee concerning an earlier draft of the document which did not refer to the UN Convention on the Rights of Persons with Disabilities (CRPD), nor the CRPD Committee’s authoritative interpretations. We highlighted in our submission, the importance of explicitly referencing the CRPD and the CRPD Committee’s Guidelines on deinstitutionalization, including in emergencies (CRPD/C/5). We argued that this link is crucially important in ensuring that the general comment adequately covers the full range of disability-specific forms of deprivation of liberty and that it concretely covers all disability-specific places of detention. 

Validity stressed in its submission to the SPT that while detention on the basis of disability or impairment is widespread in institutional settings, there are many other places where persons with disabilities are otherwise deprived of their liberty through denial of reasonable accommodations, support and community-based services. This may also concern other populations, including older persons. Unfortunately, NPMs do not often recognise these settings, which may include schools, daycare centres, and sheltered workshops, as places of detention. The consequence of this is that many places of detention of persons with disabilities are not regularly monitored by independent authorities. 

Regarding the section of the general comment stating that a place of deprivation of liberty can be any place where persons are or may be deprived of their liberty, we suggested addressing the importance of considering whether reasonable accommodations and support are available for persons with disabilities. If these are not available in a particular place, facility or setting, these places should be considered places of deprivation of liberty.  

Sándor Gurbai, Validity’s Impact Manager said: 

In the new general comment, Validity particularly welcomes paragraphs 56-58 which concern the link between institutionalisation and places of deprivation of liberty. The general comment states that disability-specific deprivation of liberty can occur in family homes and institutional arrangements, including, for example, social care institutions, psychiatric institutions, group homes and family-type homes for children. Here, the general comment explicitly quotes the CRPD Committee’s Guidelines on deinstitutionalization, including in emergencies (para 57 of the general comment). We also welcome that the SPT included in para 58 of the general comment that if reasonable accommodation and support are unavailable for persons with disabilities, the place, facility or setting should be considered a place of deprivation of liberty. As for Validity, this should be the case even if the person concerned could leave these places freely by law, but they cannot leave them de facto.