By IDA

 - July 17, 2024

Earlier this month, the UN Subcommittee on Prevention of Torture published its general comment no. 1 on article 4 of the Optional Protocol to the Convention Against Torture (places of deprivation of liberty). This document provides guidance to States on the scope of article 4(1) OPCAT clarifying which are the places of detention that States must allow visits to by the Subcommittee and by National Preventive Mechanisms (NPMs).

IDA contributed to this process in April 2023 through a written submission (available here). The submission advanced legal standards of the Convention on the Rights of Persons with Disabilities (CRPD) and provided views related to places of deprivation of liberty of persons with disabilities. IDA warmly welcomes the Subcommittee's consideration of the submission. The Subcommittee explicitly addresses disability-specific deprivation of liberty. It confirms that its own mandate and that of the NPMs can help monitor and protect the rights of persons with disabilities deprived of liberty, who are most frequently deprived of liberty in contradiction to the Convention on the Rights of Persons with Disabilities.

The Optional Protocol (OP) created the Subcommittee on Prevention of Torture. It also mandated the creation of NPMs at the national level. Both bodies have the mandate to visit "any place under States' jurisdiction and control where persons are or may be deprived of their liberty. This can happen by virtue of an order given by a public authority, at its instigation, or with its consent or acquiescence." The general comment clarifies, as per article 4(2) OPCAT, that deprivation of liberty "can occur in any location, whether public or private custodial settings". Consequently, the mandates of NPMs and the Subcommittee extend to places beyond prison settings. States parties must ensure access to any privately run institutions, whether they are criminal justice, administrative, healthcare, social care, or other settings. Excluding private settings is contrary to article 4 OPCAT (see general comment, para. 27).

Focusing on persons with disabilities, the general comment highlights places where they may be deprived of their liberty. Places include "privately owned or rented housing for persons with intellectual disabilities. This deprivation occurs due to restrictions imposed by specific service providers," allowing the monitoring of the phenomenon of institutionalization (and of places where it happens). Institutionalization contradicts human rights standards, including articles 12, 14, and 19 of the CRPD. It also conflicts with the Guidelines on Deinstitutionalization by the Committee on the Rights of Persons with Disabilities, among other human rights standards.

While references to persons with disabilities and to typical places where they are deprived of liberty can be found throughout the document, paragraphs 57 and 58 should be highlighted. The Subcommittee addresses in para. 57 the situation of persons with disabilities whose right to live independently and being included in the committee is not respected nor fulfilled through adequate support services and measures. The general comment reads:

"[a]lthough there may be no legal or administrative order confining such persons to a certain facility, the lack of support compels them to remain in living situations that deprive them of their liberty and may subject them to harmful practices. This form of disability-specific deprivation of liberty can occur in family homes and in institutional arrangements, including social care institutions, psychiatric institutions, long-stay hospitals, nursing homes, secure dementia wards, special boarding schools, child welfare institutions, group homes, rehabilitation centres, forensic psychiatric settings, albinism hostels, leprosy colonies, religious communities, family-type homes for children and prayer camps" (emphasis added).

In short, regardless of any legal framework or administrative decision, being a person with disability forced to live in an institution (of any kind) due to lack of support services and measures to live in the community constitutes "deprivation of liberty". Hence, IDA adds, "deciding" to live in an institution when support in the community is not a real available option cannot be construed or presented as a "choice".

Consequently, despite its succinct and somewhat unclear drafting, paragraph 58 would require the Subcommittee and the national preventive mechanisms to ascertain whether support to persons with disabilities is available in practice for them to be able to live independently in the community. Of course, support services and measures should be sufficient, adequate and tailored to the needs of each person with disability. If the Subcommittee and/or national preventive mechanisms ascertain that support is "unavailable", then, those persons with disabilities lacking support are indeed deprived of liberty and the place where they are must be considered a "place of deprivation of liberty" falling under the monitoring mandate of both the international Subcommittee and the national preventive mechanism.

To sum up, this new general comment can contribute to revitalize the role of the Subcommittee on prevention of torture and of National Preventive Mechanisms (NPMs) to protect and monitor the rights of persons with disabilities deprived of liberty. In doing so, the work of these bodies would be useful to identify and report about concrete situations of de facto deprivation of liberty of persons with disabilities for whom there is no support services or measures available in the community for them to live independently and included and, hence, to monitor respect and fulfilment of article 19 of the CRPD.

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