The notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the European Convention on Human Rights
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| DOI | 10.1177/0924051920968480 |
| Subject Matter | Articles |
Article
The notion of ‘a person of
unsound mind’ under
Article 5 § 1(e) of the
European Convention on
Human Rights
Marcin Szwed
Faculty of Law and Administration, University of Warsaw, Warszawa, Poland
Abstract
This article presents a critical analysis of the case-law of the ECtHR with regards to the inter-
pretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention.
According to the Court, only a person who has been reliably diagnosed with a mental disorder
and who poses a danger to himself or others can be legally detained as ‘a person of unsound
mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders
which are treatable or which deprive the persons affected of their ability to self-control and so in
thepasttheCourtappliedthesaidprovisionof the Convention to, among others, persons
diagnosed with personality disorders or paedophilia who commited crimes acting with full
criminal responsibility. The article argues that such a definition of the notion ‘a person of
unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection
of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion
to persons affected by such mental disorders that exclude or significantly reduce their ability to
make informed decisions about their own health and/or to control their own behaviour and
recognise the meaning of their own actions. Only then, provided that other criteria developed in
the Court’s case law, such as dangerousness for self or others and lack of less restrictive
alternatives, have been satisfied, detention of person with mental disorder may be consistent
with the object and purpose of the Convention.
Keywords
ECHR, CRPD, mental disorders, deprivation of liberty, rights of persons with disabilities,
involuntary commitment, unsound mind
Corresponding author:
Marcin Szwed, Faculty of Law and Administration, University of Warsaw, Krakowskie Przedmies
´cie 26/28, 00-927
Warszawa, Poland.
E-mail: m.szwed@uw.edu.pl
Netherlands Quarterly of Human Rights
2020, Vol. 38(4) 283–301
ªThe Author(s) 2020
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DOI: 10.1177/0924051920968480
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1. INTRODUCTION
Drawing a precise distinction between ‘normality’ and ‘abnormality’ in the context of mental
health is an extremely difficult and controversial exercise. Nevertheless, sooner or later, there is
a need to adopt relevant legal definitions. This need can be explained simply: since certain legal
provisions specifically address persons with mental disorders, it would be impossible to fully
understand a given rule without defining what these disorders are. This impossibility would be
particularly problematic in the context of laws governing various forms of involuntary placement
in psychiatric facilities as such laws point to ‘mental illnesses’ (or other equivalent notions) as a
ground for the deprivation of liberty.
The problem of legally defining a person’s mental state concerns the interpretation of both
domestic and international law. As regards the latter, Article 5 § 1(e) of the European
Convention on Human Rights (ECHR or Convention)
1
sets out a key set of standards regard-
ing the permissible scope of involuntary psychiatric commitment which authorises Member
States to lawfully detain ‘persons of unsound mind’. Given the need to strengthen the pro-
tection of rights of persons with mental disordersinEurope,Article5§1(e)ECHRmustbe
correctly interpreted, which requires the adoption of a clear and limited understanding of the
notion of ‘unsoundness of mind’.
The purpose of this article is therefore to first present and critically assess the case-law of the
European Court of Human Rights (ECHR or Court) on the notion of ‘a person of unsound mind’
and, second, to provide an alternative, more narrow definition of said notion. In formulating such a
definition, the article focuses primarily on the impact that a given mental disorder must have on the
individual’s decision-making capacity and ability to self-control. The article argues that without an
analysis of such an impact, the reason for which the drafters of the Convention included a provision
allowing for the detention of this category of persons would be unclear.
2
The purposes of this article are of huge practical importance. Indeed, the definition of the
concept of ‘a person of unsound mind’ determines the leeway of States to detain persons diagnosed
with various forms of mental disorders. Without proper definition of said notion, there would be a
risk of abuse of deprivation of liberty by States for purposes incompatible with the functions of
Article 5. The article argues that such a risk exists especially in the case of preventive detention of
‘dangerous’ offenders.
In this regard, the question may arise whether focusing on the ECHR is justified, since currently
the most important standards concerning the protection of personal liberty of persons with mental
disorders are set in the Convention on the Rights of Persons with Disabilities (CRPD or Conven-
tion).
3
However, the significance of the ECHR should not be ignored. From a European perspec-
tive, the protection system established by the ECHR is still more effective than that provided by the
CRPD, which is due to the fact that the number of countries which have ratified the Optional
Protocol enabling individual complaints to the Committee of the CRPD is still relatively limited,
4
1. 1950, ETS 5.
2. A detailed presentation of other conditions for the legality of ‘persons of unsound mind’ is beyond the scope of this
article.
3. 2006, 2515 UNTS 3.
4. At the time of writing (September 2020), 15 (Albania, Armenia, Bulgaria, Czechia, Georgia, Iceland, Ireland, Liech-
tenstein, Moldova, Netherlands, Norway, Poland, Romania, Russia, Switzerland) out of 47 Council of Europe Member
States have not yet ratified Optional Protocol to CRPD.
284 Netherlands Quarterly of Human Rights 38(4)
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