On The Protection Of The Right Of Personal Freedom Of Mental Disability

The right to personal liberty is one of the oldest human rights, which is prescribed by maininternational instruments. Personal liberty has been effectively protected theoretically andpractically; however, for people with mental disability, as a special group of minority, personalliberty is not well protected with the absence of specific provisions in international instruments.Although caseload under the European Convention on Human Rights (ECHR) is greater thanother conventions, its principles and standards established cannot apply all over the world becauseof the limitation of jurisdiction. Therefore, this paper attempts to summarize the internationalprinciples and standards for protecting the personal liberty of people with mental disabilities, withthe assistance of caseload from ECHR and provisions of liberty rights under other internationalinstruments. This will not only provide principles for protecting personal liberty of mentaldisabled persons, but also practical guidance for domestic mental health legislation for variouscountries.This paper, in the first place, gives an introduction to the personal liberty of people withmental disabilities, consisting of notes on terminology, current conditions and special problemsthey are confronted with. In the second part, it maps international major instruments concerningpersonal liberty with mental disabilities and analyze their features, including InternationalCovenant on Civil and Political Rights, Convention on the Rights of Persons with disabilities,Convention for the Protection of Human Rights and Fundamental Freedoms, and othernon-binding international instruments which contains multiple principles for protecting peoplewith mental disability. The last part tries to summarize international standards and proceduralguarantees of the protection of the personal liberty of people with mental disabilities, throughoutthose analysis on those international instruments listed in part two and classic cases under ECHR.Protection of personal liberty of mentally disabled person is based on the objective existenceof mental disability. Liberty of mentally disabled persons is easily abused because of the lack ofaccurate definition and subjectivity of diagnosis, which makes mental disability a ground fordeprivation of liberty. Therefore, international minimum substantial standards and proceduralguarantees must be accurately provided, in order to prevent individuals of mental disability fromabuse by states which breach their obligations.