5(F)(i). Torture and ill-treatment
The ECHR and the CAT prohibit torture and other forms of ill-treatment.41 Of particular relevance is that the European Court of Human Rights has found the Czech Republic to be in breach of the prohibition of inhuman and degrading treatment in a case about a man who spent at least three hours needlessly restrained with leather straps because of his perceived mental health issue.42
The CAT defines ill-treatment as “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture […], when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”43
The CRPD reflects a global movement away from the medical model of managing and warehousing people with disabilities and requires governments to enact legislation to secure a range of human rights, including the right to health and the right to autonomy and recognition before the law. The CRPD repeats CAT’s absolute prohibition of torture or cruel, inhuman or degrading treatment or punishment against all persons with disabilities.44
Lukáš Bureš was 22 years old in February 2007 when he accidently overdosed on medication prescribed by a psychiatrist.
Lukáš Bureš Photo: © MDAC
He was brought by the police to a sobering-up centre, where he was immediately strapped with restraining belts to a bed, although he was not presenting a danger of any kind. How long he remained in the restraints was disputed between Mr Bureš and the Czech government but what is not disputed is that he spent at least three hours during the night in restraints, resulting in physical injuries. This was particularly traumatic for him, as Mr Bureš was a cellist.
Once he was out of the hospital, Mr Bureš brought criminal charges for the ill-treatment he had suffered. Despite clear evidence that there was no justification for the use of restraints, the public prosecutor decided not to prosecute and no one was held accountable.
The European Court of Human Rights unanimously held that both the application of restraints and the Czech Republic’s failure to take measures to prevent ill-treatment violated Article 3 of the European Convention on Human Rights. In a strongly-worded rebuke to the government, the Court stated that it, “considers that using restraints is a serious measure which must always be justified by preventing imminent harm to the patient or the surroundings and must be proportionate to such an aim. Mere restlessness cannot therefore justify strapping a person to a bed for almost two hours.” The Court further observed that no alternatives to restraint had even been attempted, and that “[s]trapping was applied as a matter of routine.”
The Court had equally strong criticism for the prosecutor’s decision to end the criminal investigation on the basis that no crime had been committed, holding that this violated the Czech Republic’s obligation to provide practical and effective protection of the rights guaranteed under Article 3 of the European Convention on Human Rights, particularly in light of its finding that “the application of restraining belts on the applicant was a willful act constituting inhuman and degrading treatment.”
The Court awarded Mr. Bureš 20,000 euros for the violations of his rights and the psychological and physical pain he suffered.
The UN Special Rapporteur lays down a requirement on governments to prohibit restraints and seclusion.
Juan E. Mendez UN Special Rapporteur on Torture - Photo: UN Photo/Jean-Marc Ferre
“The mandate has previously declared that there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint may constitute torture and ill-treatment... The Special Rapporteur has addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment... Moreover, any restraint on people with mental disabilities for even a short period of time may constitute torture and ill-treatment. It is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions. The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures.”
Juan E. Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (United Nations: UN doc A/HRC/22/53, 1 February 2013)
The CRPD has inspired the UN Special Rapporteur on Torture to re-examine the torture framework as applied to people with disabilities. He has expressed concerns about the notion of consent to treatment of people with mental health issues.45 He has found that poor physical conditions and solitary confinement can amount to cruel, inhuman or degrading treatment or punishment and even torture. 46 In 2013 he voiced his opinion that it is unacceptable for laws to permit doctors to force mental health treatment when the patient refuses to consent to such treatment.
The CRPD sets out a number of specific requirements, all of which are relevant to this report.
41 The ECHR prohibits torture and inhuman or degrading treatment or punishment in Art. 3. Article 1 of CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
42 Bureš v. Czech Republic, Application no. 37679/08, judgment 18 October 2012.
43 CAT, Article 16.
44 CRPD, Article 15.
45 Juan E. Méndez, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/66/268, 5 August 2011), and Juan E Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (United Nations: UN doc A/HRC/22/53, 1 February 2013).
46 Juan E. Méndez, Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment , (A/66/268, 5 August 2011). He also found that the use of solitary confinement increases the risk that acts of torture and other cruel, inhuman or degrading treatment or punishment will go undetected and unchallenged.