written comments submitted by validity (mental disability advocacy centre) h. h. v. finland (application no. 19035/21) i. introduction 1 ii. (im)permissibility of coercive mental health treatment 1 a. conditions for involuntary treatment under the convention 1 b. unlawful reasons for coercive mental health treatment 3 iii. the right to an effective remedy and access to court 7 a. the right to access the court directly and be heard in person 8 b. the right to procedural accommodations 9 iv. conclusion 10 1 i. introduction 1. these written comments are submitted by validity foundation (previously mental disability advocacy centre) pursuant to leave granted by the president of the court under rule 44(3), rules of the court. validity is an international human rights ngo independent of all governments and working to advance the human rights of persons with actual or perceived intellectual or psychosocial (mental health) disabilities, like the applicant. this intervention seeks to assist the court by drawing on validity’s legal expertise concerning the rights of persons with psychosocial disabilities in the context of mental health treatment. 2. based on the communication published by the court, the case concerns involuntary administration of medication in psychiatric detention. the applicant complains mainly of a lack of possibility to challenge the forced medication before domestic courts and a denial of an oral hearing in this respect. the case represents a systematic problem in psychiatric medical establishments: the normalization of refusal of informed consent to persons with psychosocial disabilities in psychiatric detention. despite the international consensus on the importance of the principle of informed consent, coercive treatment remains an everyday reality for many of them. access to an effective court remedy is crucial for ensuring that any mental health treatment complies with the law, including international law. 3. in this case, the court is expected to reiterate its earlier jurisprudence requiring access to court to ensure effective protection against forced medication (x v. finland, 34806/04, 3 july 2012, ? 217). but the case also provides the court with an opportunity to specify the meaning of “unlawful” or “arbitrary” involuntary medication in the context of article 8. in this submission, validity seeks to assist the court by providing an overview of international legal standards and their relationship with the convention rights. relying on effective international law to which finland is bound, we argue that all involuntary mental health treatment administered in detention justified with reference to a person’s impairment is discriminatory and thus “arbitrary”. all forced medication motivated by a person’s disability in psychiatric detention should thus be considered in breach of article 8 of the convention. ii. (im)permissibility of coercive mental health treatment a. conditions for involuntary treatment under the convention 4. the right to informed consent is a near-universally recognized principle of international law.1 as the court consistently reiterates, all medical interventions in defiance of the person’s will amount to an interference with the right to private life, particularly the right to physical integrity.2 unless such interference is “in accordance with the law”, pursues a 1 world health organization (who), declaration on the promotion of patients’ rights in europe, 1994, art. 3.1. available at: https://www.who.int/genomics/public/eu_declaration1994.pdf; un hrc decision m.t. v. uzbekistan, no. 2234/2013, 21 october 2015. 2 x v. finland, no. 34806/04, 3 july 2012, ?? 212-213. 2 legitimate aim and is “necessary in a democratic society”, it constitutes a violation of article 8 of the convention.3 5. the meaning of the phrase “in accordance with the law” is to be understood in the “substantive sense”, including whether it is “compatible with the rule of law”.4 the court interprets this notion as also including the requirement of “protection for the individual against arbitrary interference with their rights under article 8”. in the context of the finnish legal system, in x. v. finland, the court already concluded that the denial of court review of involuntary medication fails to meet the requirements and violates state obligations under article 8 of the convention.5 6. in x. v. finland, the court particularly criticized that the forced administration of drugs, which represents a serious interference with a person’s physical integrity, was solely authorized by the doctors treating the applicant and was free from any kind of immediate judicial scrutiny which would review the lawfulness, including proportionality.6 these conclusions appear to be highly relevant also in the communicated case h. h. v. finland. 7. nevertheless, we submit that the state has further obligations when it comes to preventing arbitrary interferences with the physical integrity of a person in psychiatric detention. we argue that if the phrase “in accordance with the law” is to be also interpreted as “compatible with the rule of law”, it must also encompass effective international law. if interference is clearly prohibited by international law the state is bound by, it must not be considered as “in accordance with the law” for the purposes of article 8 of the convention. this applies even though such interference may be, strictly speaking, compatible with the national legislation. 8. this argument is consonant with the approach the court has consistently applied in cases concerning detention. while the court’s jurisprudence under article 5 reminds us that it is not its role to assess the compliance of detention with national legislation, it also insists that lawfulness is not satisfied merely by compliance with the relevant domestic law. the domestic law must itself comply with essential quality standards, including conformity with the convention, the general principles expressed or implied in it, including the principle of the rule of law.”7 9. judge pinto de albuquerque explained the implications of this approach for examining the lawfulness of detention of persons with disabilities in its separate opinion in kuttner v. austria.8 he reminded that “(w)hen persons with disabilities are subjected to arrest, detention or imprisonment, article 14 ? 2 of the crpd guarantees non-discrimination (…). deprivations of liberty based on the existence of a disability are intrinsically discriminatory. detention regimes which by their own terms discriminate on the basis of disability constitute arbitrary detention.” 3 ibid. 4 ibid., ? 217. 5 ibid., ? 220. 6 ibid. 7 x. v. finland, ? 148. 8 no. 7997/08, 16 july 2015. 3 10. the conclusion that detention linked to the existence of a disability is discriminatory has a direct implication for the assessment of the lawfulness of detention under article 5 of the convention. even if the detention is, strictly speaking, compliant with the national law, it is not „lawful“ within the meaning of the convention if it is discriminatory and, therefore, arbitrary. judge pinto de albuquerque adds that this includes situations when involuntary detention is based on „presumption of risk or dangerousness linked to disability”.9 11. we submit that equivalent arguments are applicable for examining the “lawfulness” of involuntary treatment under article 8 of the convention. if medication is administered involuntarily and in breach of international law, especially if it is discriminatory, it cannot be considered as a “lawful” interference with physical integrity. 12. while this approach has not yet explicitly made its way into the court’s jurisprudence, there are clear indications of the court’s attempt to contribute to the harmonization of international human rights law and read the convention in a way which reflects its evolving standards.10 the court has been increasingly relying on the united nations convention on the rights of persons with disabilities (“crpd”) in this regard, particularly in the areas of education,11 equality and non-discrimination,12 or family and private life.13 in other areas, such as legal capacity14 or the right to vote,15 it regularly refers to the crpd as the relevant international framework. 13. an attempt to read the convention in a modern-day spirit and in harmony with other international laws is critical in the context of the rights of persons with disabilities, who had been, for a long time, invisible in these human rights provisions. as noted by the un special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “(i)t is (…) necessary to reaffirm that the convention on the rights of persons with disabilities offers the most comprehensive set of standards on the rights of persons with disabilities, inter alia, in the context of health care, where choices by people with disabilities are often overridden based on their supposed “best interests”, and where serious violations and discrimination against persons with disabilities may be masked as “good intentions” of health professionals.“16 b. unlawful reasons for coercive mental health treatment 14. having established that the safeguards against arbitrary interference with physical integrity must also encompass ensuring that such interference complies with clear and effective international law, we will now outline the basic requirements for permissible coercive mental health treatment as established in relevant international law particularly the crpd. 9 ibid, ? 2. 10 see, for instance, cam v. turkey, no. 515800/08, 23 february 2016, ? 53, in which the court explains why it incorporates the crpd standards in its equality and non-discrimination jurisprudence. 11 enver şahin v. turkey, no. 23065/12, 30 january 2018. 12 ibid., also cam v. turkey, no. 515800/08, 23 february 2016, or guberina v. croatia, no. 23682/13, 22 march 2016. 13 kacper nowakowski v. poland, no. 32407/13, 10 january 2017, ? 93. 14 n. v. romania (no. 2), no. 38048/18, 16 november 2021. 15 toplak and mrak, no. 34591/19, 26 october 2021. 16 the need to harmonize the relevant standards was also emphasized in a report a/hrc/22/53, 1 february 2013, ? 61-62. 4 the crpd was ratified by finland in 2016 and has now been ratified by all council of europe member states.17 15. the basic message of the crpd is that of equality of persons with disabilities. by virtue of article 12 of the crpd, establishing the right to legal capacity on an equal basis with others, the right to informed consent with all medical interventions belongs equally to persons with psychosocial disabilities.18 disability can never be a reason to deny the right to informed consent to medical interventions.19 this fully applies in situations when the involuntary treatment is linked with a disability only partially or indirectly, such as when psychiatric detention and involuntary treatment are grounded in the combination between a mental or intellectual disability and other elements such as dangerousness or perceived need for care and treatment’.20 16. the crpd does not allow any exceptions from the principle of full equal legal capacity, which are linked to a person’s disability or perceived “mental capacity”.21 “mental capacity” is an inherently discriminatory concept because its assessment typically relies on stereotypes and stigma surrounding intellectual or psychosocial disability.22 withdrawal of the right to an informed consent due to a perceived lack of “mental capacity” therefore basically almost automatically denies the right to informed consent to these groups of persons with disabilities. 23 17. the crpd committee, the treaty body responsible for overseeing the implementation of the crpd, takes an unequivocal stance in this regard: “forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law (…) forced treatment is a particular problem for persons with psychosocial, intellectual and other cognitive disabilities. states parties must abolish policies and legislative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the 17 overall, the crpd has been ratified by 185 states. see the status of ratifications at https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html 18 crpd general comment no. 1, equal recognition before the law, crpd/c/gc/1, 2014, ? 8. 19 ibid., also un crpd, general comment no. 6, equality and non-discrimination, crpd/c/gc/6, 2018, ? 10. 20 crpd guidelines on article 14, ? 6, 13, 14; thematic study by the office of the united nations high commissioner for human rights on enhancing awareness and understanding of the convention on the rights of persons with disabilities, a/hrc/10/48, 26 january 2009, ? 48. see also the following concluding observations of the un crpd committee: crpd/c/hun/co/1, ? 28; crpd/c/esp/co/1, ? 36; crpd/c/chn/co/ 1, ? 26; crpd/c/aus/co/1 ? 31. available at: https://uhri.ohchr.org/en/search-human-rights-recommendations 21 ibid., ?? 8-9. 22 united nations high commissioner for human rights, report mental health and human rights: a/hrc/34/32, 31 january 2017, ?? 15-16. 23 see, for example, with the following academic publications: flynn, e., and a. arstein-kerslake. 2014a. legislating personhood: realising the right to support in exercising legal capacity. international journal of law in context 10(1):81–104; arstein-kerslake, a., and e. flynn. 2017. the right to legal agency: domination, disability and the protections of article 12 of the convention on the rights of persons with disabilities. international journal of law in context 13(1):22–38; quinn g., and a. arstein-kerslake. 2012. restoring the ‘human’ in ‘human rights’: personhood and doctrinal innovation in the un disability convention. in the cambridge companion to human rights law, eds. c. gearty and c. douzinas, 36–55. cambridge, united kingdom: cambridge university press. 5 globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment.”24 18. this position is shared across other international bodies. in the world report on disability from 2011, the who reiterated that persons with disabilities have the right to exercise their legal capacity in making healthcare decisions: “(t)he presence of a particular health condition is not sufficient to determine capacity. the assumption that people with certain conditions lack capacity is unacceptable, according to article 12 of the crpd.” 25 the position is also seconded by european institutions. the european parliament affirms in its 2016 report that persons with disabilities have the right to informed consent to all medical procedures.26 19. the above arguments do not suggest that there are no circumstances where medical treatment can be administered without informed consent. on the contrary, international law has established clear conditions for such treatment, and requires medical professionals to act when it is as a matter of urgency even though it is impossible to obtain the informed consent of the person concerned.27 our argument is that these conditions must apply to both persons with disabilities and persons without disabilities equally. 20. in an article on permissibility of involuntary treatment of persons with disabilities, wayne martin and s?ndor gurbai make a helpful distinction between permissible, disability-neutral involuntary care and impermissible coercive care. the former is based on objective need to protect the life and health of a person unable to give consent. the latter is justified by an existence of an impairment, and thus discriminatory against persons with disabilities.28 our argument is that according to international law, involuntary mental health treatment of a person in psychiatric detention belongs among the second set of cases. 21. coercive medication contravenes clear an unequivocal international law finland is bound by. we submit that this implies that it can never be considered “lawful” for the purposes of article 8 of the convention. however, apart from violating the right to personal integrity, coercive psychiatric interventions may further amount to torture or other forms of ill-treatment prohibited by article 3 of the convention. 24 crpd general comment no. 1, equal recognition before the law, crpd/c/gc/1, 2014, ? 42. see also the many corresponding concluding observations to states reports by the same committee: crpd/c/per/co/1, ?? 30 and 31; crpd/c/hrv/co/1, ? 24; crpd/c/tkm/co/, ? 32; crpd/c/dom/co/1, ? 31; crpd/c/slv/co/1, ?? 33-34; crpd/c/swe/co/1, ?? 37-38. available at: https://uhri.ohchr.org/en/search-human-rights-recommendations 25 who, world report on disability, 2011, p. 78. available online at: https://www.who.int/teams/noncommunicable-diseases/sensory-functions-disability-and-rehabilitation/world-report-on-disability 26 report of the european parliament, 9 june 2016, implementation of the un convention on the rights of persons with disabilities, with special regard to the concluding observations of the crpd committee (2015/2258(ini), ? 97. available online at: https://uhri.ohchr.org/en/ 27 in these situations, in line with the right to equal legal capacity, the crpd committee recommends that the „will and preferences“ or the „best interpretation of the will and preferences“ of the person concerned are determinative, instead of their „best interest“. gc no. 1 at para. 21. 28 for explanation of the distinction between permissible involuntary emergency care and impermissible coercive care from the perspective of the united nations human rights regime, see wayne martin and s?ndor gurbai, surveying the geneva impasse: coercive care and human rights. int j law psychiatry 64 (2019) 117-128. 6 22. for instance, the united nations high commissioner for human rights warns in its 2017 report on mental health and human rights that “(f)orced treatment and other harmful practices, (…), forced medication and overmedication (including medication administered under false pretences and without disclosure of risks) not only violate the right to free and informed consent, but constitute ill-treatment and may amount to torture.”29 23. the united nations special rapporteur on torture similarly insists that “medical treatments of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill-treatment if enforced or administered without the free and informed consent of the person concerned.”30 in the view of the un special rapporteur on torture, coercive interventions may be qualified as torture, especially in cases when administered during psychiatric detention, which is clearly motivated by the person’s disability and, therefore, discriminatory.31 this is the case even if it is justified by the perceived “best interests” of the person and presented as good intentions of health professionals.32 24. the court has so far stated that a treatment which followed a “therapeutic necessity” cannot be regarded as ill-treatment.33 nevertheless, it also concluded that an invasive treatment without the informed consent of the person concerned might even amount to ill-treatment despite the possible “good intentions” of health professionals. in v.c. v. slovakia,34 the court highlighted that “(a)lthough there is no indication that the medical staff acted with the intention of ill-treating the applicant, they nevertheless displayed gross disregard for her right to autonomy and choice as a patient (…) (which) attained the threshold of severity required to bring it within the scope of article 3.” 25. these conclusions are highly relevant for assessing the permissibility of coercive treatment of persons with psychosocial disabilities. as emphasized by judge mijovic in her dissenting opinion in v.c. v. slovakia, the denial of informed consent to the romani woman was largely motivated by the stereotypes of the medical professionals against the romani 29 united nations high commissioner for human rights, report mental health and human rights: a/hrc/34/32, 31 january 2017, ? 33. 30 report of the un special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, human rights council, a/63/175, 28 july 2008, ? 47. 31 report of the un special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, human rights council, a/hrc/22/53, 1 february 2013, ? 32: “discriminatory character of forced psychiatric interventions, when committed against persons with psychosocial disabilities, satisfies both intent and purpose required under the article 1 of the convention against torture.” the special rapporteur previously highlighted that coercive and intrusive psychiatric treatments against persons with psychosocial disabilities constitute a form of ill-treatment: see, for instance, a/63/175 of 28 july 2008, ? 40 and 47. see also the bantekas, ashley stein, anastasiou (eds.) the united nations convention on the rights of persons with disabilities. a commentary. phil fennell, article 15: protection against torture and cruel or inhuman or degrading treatment or punishment right to integrity of a person, p. 440 etseq. 32 report of the un special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, a/hrc/22/53, 1 february 2013, § 61. 33 herczegfalvy v. austria, no. 10533/83, 2 september 1992, ? 82, and the subsequent jurisprudence. for a comparison of these standards with the crpd see lewis, campbell, violence and abuse against persons with disabilities: a comparison of the approaches of the european court of human rights and the united nations committee on the rights of persons with disabilities. international journal of law and psychiatry 53 (2017) 45–58. 34 no. 18968/07, 8 november 2011 7 community. as argued above, the same is true about the denial of informed consent to mental health treatment of persons with psychosocial disabilities. moreover, and as emphasized by the united nations special rapporteur against torture, any treatment administered contrary to the convention on the rights of persons with disabilities cannot be justified under the ‘medical necessity’ doctrine.35 26. whether this court examines the issue of coercive psychiatric treatment under article 3 or article 8 of the convention, we argue that according to international law, particularly the crpd, it is impermissible to restrict the right to informed consent specifically to persons with psychosocial disabilities, based on discriminatory criteria. because all council of europe member states, including finland, have ratified this treaty, it is a part of their legal system. it also has a significant influence on the interpretation of the convention in the context of human rights violations against persons with disabilities. we submit that while interpreting the conditions of “lawfulness” and “arbitrariness” of interference with bodily integrity, the court should take these explicit international norms into account. in this light, coercive mental health treatment in psychiatric detention of a person with a disability should never be considered “lawful”. iii. the right to an effective remedy and access to court 27. in the first part of this submission, we argued that the present case offers the court an opportunity to strengthen the protection of the convention rights in relation to persons with psychosocial disabilities by broadening its interpretation of the “lawfulness” of involuntary psychiatric treatment. in the second part, we will focus on the requirements of international law when it comes to ensuring access to an effective remedy in the context of related human rights violations. in the words of the united nations special rapporteur on the right to the highest attainable standards of health, “(c)onsent to treatment is one of the most important human rights issues relating to mental disability.”36 accordingly, “it is especially important that the procedural safeguards protecting the right to informed consent are both watertight and strictly applied.”37 28. access to court is of paramount importance for persons subject to coercive treatment in psychiatric detention. detention in a psychiatric institution causes a particular situation of powerlessness, dependency, and subordination.38 together with coercive interventions, it gravely affects numerous fundamental rights.39 the court has already established in x v. finland that the denial of court review of involuntary administration of medication violates article 8 of the convention.40 therefore, the below paragraphs only seek to outline the specific requirements of ensuring adequate access to court specifically for persons with 35 report of the un special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, a/hrc/22/53, 1 february 2013, ? 35. 36 paul hunt, report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, e/cn.4/2005/51, 2005, ? 87. 37 ibid., ? 90. 38 herczegfalvy v. austria, no. 10533/83, 24 september 1992, ? 82. 39 european union agency for fundamental rights (“eu fra”), “involuntary placement and involuntary treatment of persons with mental health problems”, 2012, foreword. 40 ibid., ? 220. 8 psychosocial disabilities. we focus on the following basic requirements: a) the right to access the court directly and be heard by the court in person, and b) the right to procedural accommodations. a. the right to access the court directly and be heard in person 29. the right to access the court and to be heard in person intimately relates to the right to access justice protected by article 13 of the crpd, and the right to equal recognition before the law enshrined in its article 12. while the convention does not specifically protect the right to access justice, this right is implied in the right to a fair trial, including equal access to and equality before the courts, the right to effective investigation, as well as the right to just and timely remedies for rights violations.41 30. the basic elements of the right to access justice have recently been specified in the international principles and guidelines on access to justice for persons with disabilities adopted by several un authorities.42 the guidelines unequivocally state that it is impermissible to exclude persons with disabilities from legal proceedings due to constructs such as „cognitive incapacity” and “mental incapacity”.43 the same position derives also from article 12 of the crpd. by virtue of their equal recognition and equal standing before the law, persons with psychosocial disabilities have the right to be active agents in the proceedings, whether by directing the actions of their representatives or by their own motions and submissions. it is discriminatory to presume their incapacity on account of their disability.44 31. the court has also relied on the elements of access to justice in its jurisprudence. for instance, it has emphasized that for legal remedies to be effective, they must be accessible to the concerned persons directly and not solely dependent on their legal representatives’ action. in m.d. and others v. malta,45 in the context of article 6 concerning civil proceedings, the court emphasized that “in the context of machinery for human rights protection, the court cannot accept […] the possibility […] to pursue a remedy should depend entirely on the intervention of uninterested third parties.” 32. in the context of detention, the court has made it clear in several judgments that detained patients “must have the right to seek judicial review on his or her own motion” and that whatever other guarantees were available, they could “not eliminate the need for an independent right of individual application by the patient”.46 while it is generally permissible to limit access to court through procedural rules to ensure effective 41 report of the office of the united nations high commissioner for human rights. right to access to justice under article 13 of the convention on the rights of persons with disabilities, a/hrc/37/25, 27 december 2017, ? 3. 42 the guidelines were prepared un special rapporteur on the rights of persons with disabilities, the un committee on the rights of persons with disabilities and the special envoy of the secretary-general on disability and accessibility and endorsed by the united nations high commissioner for human rights as “an indispensable contribution to achieving justice for all.” available at: https://www.ohchr.org/en/issues/disability/srdisabilities/pages/goodpracticeseffectiveaccessjusticepersonsdisabilities.aspx. 43 international principles and guidelines on access to justice for persons with disabilities, ? 1.2. (b) and (c). 44 un crpd guidelines on article 14, ? 6, ? 24. 45 no. 64791/10, 17 july 2012, ? 36. 46 x. v. finland, 34806/04, 03 july 2012, ?? 170-171. 9 administration of justice, such limitation cannot render the protection of human rights of a vulnerable segment of a society completely dependent on an activity of a third person. 33. similarly, the right to be present and heard is one of the fundamental guarantees of a fair trial.47 it is closely connected to the principle of equality of arms and ensures the adversarial nature of the proceedings.48 in shtukaturov v. russia,49 a case concerning the detention of a person with psychosocial disability, the court made it clear that the right to initiate a judicial review on the patient’s own motion unequivocally means that this right must be independent of other persons, including the guardian or family members, even if under the national law the guardian exercises procedural rights on behalf of the patient.50 the failure to include the applicant in the proceedings and hear him in person violated the principle of adversarial proceedings protected in article 6 ? 1 of the convention.51 b. the right to procedural accommodations 34. while persons with disabilities have the right to equally participate in all proceedings which concern them, they may experience barriers in effectively engaging with the justice system.52 the court has recognized that the state is obliged to ensure them effective assistance to enable them to seize the court and participate in the hearings. for instance, authorities must inform them about their procedural rights in an accessible manner and help them exercise them.53 35. assistance to persons with disabilities in effectively accessing court and participating in the proceedings is an essential element of the right to access to justice enshrined in article 13 of the crpd. in this spirit, the crpd establishes the right to procedural accommodations, various adjustments and assistances that help overcome the barriers people with disabilities might face during the proceedings. this means, for instance, making the language in the courtroom accessible, providing extra accessible information and guidance to a person with a disability, ensuring frequent breaks, modifying the layout of the courtroom, and others, depending on the context and the needs of the person.54 36. legal representation may be such essential assistance, or procedural accommodation. however, representation does not and cannot substitute the right to be present and heard of the person concerned. it is a fundamental principle of equal access to justice that any legal representation should amplify a person’s voice with a disability and facilitate their effective engagement in the proceedings by respecting their wishes and preferences, not substituting them.55 47 murtazaliyeva v. russia [gc], no. 36658/05, 18 december 2018, ? 91; hermi v. italy [gc], no. 18114/02, 18 october 2006, ?? 58-59; sejdovic v. italy [gc], no. 56581/00, 1 march 2006, ?? 81 and 84; and many others. 48 stanford v. the united kingdom, no. 16757/90, 23 february 1994, ? 26. 49 no. 44009/05, 27/03/2008, ?? 123-125. 50 no. 44009/05, 27/03/2008, ? 75-76. 51 ibid., ? 73. 52 crpd guidelines on article 14, ? 24, points d), e). 53 has?likov? v. slovakia, no. 39654/15, 24 june 2021, ? 69. 54 see, for instance, the international principles and guidelines on access to justice for persons with disabilities, ? 3.2. 55 see the united nations basic principles and guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court, a/hrc/30/36, guideline 20, § 126: “support in 10 37. the right to a fair trial, or related procedural obligations under article 8 of the convention, thus imply the right of persons with disabilities to participate in the proceedings, to be heard in person, and to benefit from accommodations to be able to effectively engage with the proceedings. all procedural accommodations must aim to facilitate genuine participation and voice in the proceedings, not substitute it. iv. conclusion 38. in the first part of this submission, we presented the court the current international legal standards concerning involuntary treatment in psychiatric hospitals. we explained that any involuntary mental health treatment administered without an informed consent of a person with a psychosocial disability, and which is linked to this disability, contravenes the crpd. it constitutes a violation of personal integrity and potentially also torture or ill-treatment. we explained that these standards are directly relevant for the court’s assessment of “lawfulness” of these involuntary interventions. coercive mental health treatment in psychiatric detention of a person with a disability should never be considered “lawful” within the meaning of article 8 of the convention. 39. in the second part, drawing on the court’s acceptance that all serious involuntary interferences with bodily integrity must be subject to a court review, we briefly outlined basic requirements to enable persons with disabilities practically and effectively access justice. we believe these requirements are implicitly present also within the convention, namely the right to a fair trial or within the procedural obligations under articles 8 or 3 of the convention. 40. the submission largely relied on international law, specifically the crpd. the crpd manifests a clear paradigm shift in the understanding of disability. this paradigm shift has been increasingly reflected also in the court’s case law. the present case is an opportunity for the court to reflect this evolution also in its jurisprudence concerning coercive psychiatric treatment. it would be a welcome reiteration of the court’s to see and treat people with disabilities as equals, protecting their liberty and autonomy with such diligence as is afforded to others. sarka duskova, legal manager validity foundation milestone institute, impact hub, wessel?nyi u 17. budapest, hungary sarka@validity.local the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substituted decision-making”; see also the crpd guidelines on article 14, ? 6, ? 24.
