Europe Can No Longer Defend Article 5(1)(e) of the European Convention on Human Rights
Europe Can No Longer Defend Article 5(1)(e)
Europe’s human-rights system is facing a difficult question: can the European Court of Human Rights move closer to the disability-rights standard set by the UN Convention on the Rights of Persons with Disabilities, even though the text of the European Convention still permits forms of psychiatric detention and coercion? The answer is yes, but only up to a point. Strasbourg has real room to reinterpret, tighten and modernise its case law. Yet as long as Article 5(1)(e) still expressly allows the detention of persons of “unsound mind”, the Court also faces a legal limit it cannot simply wish away. That is why the issue is no longer only technical or historical. Whether recognised or not, intended or not, no human-rights treaty in the 21st century can afford to preserve a clause that still permits liberty to be restricted on the basis of disability or social status.
The urgency of that question became unmistakable on 28 January 2026, when the Parliamentary Assembly of the Council of Europe unanimously rejected the draft additional protocol on involuntary placement and involuntary treatment in mental healthcare. The Assembly warned that the text would make it harder to abolish coercive practices. As The European Times recently reported, that vote did not settle the whole debate, but it did make one thing plain: resistance to coercive psychiatry is no longer coming only from activists or United Nations experts. It is now coming from inside the Council of Europe itself.
That pressure was reinforced again in March, when the UN Committee on the Rights of Persons with Disabilities referred to the Assembly’s rejection and stressed that any future instrument should be fully aligned with the Convention, the Committee’s general comments and its guidelines. In plain language, Europe is being told that the old model of psychiatric coercion, even when wrapped in procedural safeguards, is becoming impossible to defend as a modern human-rights standard.
The legal collision is no longer theoretical
The collision starts with the texts themselves. The European Convention on Human Rights still contains, in Article 5(1)(e), a specific ground allowing the lawful detention of persons of “unsound mind”. Over decades, the European Court of Human Rights has built a body of case law around that clause. It has also accepted, in different contexts, that psychiatric intervention may be justified if authorities can show medical necessity, lawful procedure and sufficient safeguards.
The Convention on the Rights of Persons with Disabilities moves in another direction. Article 14 says that the existence of a disability shall in no case justify a deprivation of liberty. Article 17 protects physical and mental integrity on an equal basis with others. And in General Comment No. 1 on Article 12, the CRPD Committee rejected systems that remove legal capacity on the basis of disability and called for a shift from substitute decision-making to support in exercising legal agency.
This is why the tension is no longer a matter of legal nuance. One system still contains an explicit disability-based detention category. The other says disability can never be the justification.
Why Article 5(1)(e) is the deeper problem
The rejected protocol did not come out of nowhere. It grew from a legal architecture that had already normalised coercion by treating some people as exceptions to liberty. As long as the Convention itself says that certain categories of people may be detained on a status-based basis, institutions will keep trying to design new safeguards, procedures and legal frameworks around that power. The draft protocol was not an isolated mistake. It was the downstream product of Article 5(1)(e).
That is also why the historical critique matters. In Recommendation 2275 (2024), the Parliamentary Assembly described Article 5(1)(e) as the only international human-rights treaty provision still excluding these groups from full enjoyment of the right to liberty. In its preparatory report, Doc. 15983, the Assembly went further, tracing the language of “social maladjustment” and “unsound mind” to a wider historical environment shaped by eugenic ideas and systems of segregation. The Court’s own guide to Article 5 still uses the language of “socially maladjusted” when discussing the categories listed in the clause.
That history is disputed inside Strasbourg. In its formal comments, the Steering Committee for Human Rights rejected the view that the travaux préparatoires prove Article 5(1)(e) stems from the eugenics movement. That disagreement should be stated fairly. But it does not remove the present-day problem. Whether fully recognised or not, whether fully intended or not, the clause still authorises detention on grounds that no 21st-century human-rights treaty should preserve. A rights system does not need to prove perfect historical continuity with eugenics in order to admit that it is still reproducing a legal logic of classification, control and exclusion that belongs to another era.
What Strasbourg could still do now
Even so, the European Court is not trapped as tightly as some governments suggest. First, the Court has long described the Convention as a living instrument, to be interpreted in the light of present-day conditions. Second, it has repeatedly said it may take account of relevant developments in international law when interpreting the Convention, an approach strongly associated with Demir and Baykara v. Turkey. That opens an important door for the CRPD. The Court is not a CRPD tribunal, and under the Convention its task remains to ensure observance of the European Convention, not to enforce UN treaties directly. But it can still read the Convention in harmony with the wider international human-rights framework rather than in isolation.
That possibility is not merely theoretical. Strasbourg has already shown that it can tighten its scrutiny. In Rooman v. Belgium, the Grand Chamber said that the provision of appropriate and individualised treatment is an essential part of the notion of an “appropriate institution” for psychiatric detention. In V.I. v. the Republic of Moldova, the Court dealt with the involuntary placement and psychiatric treatment of a child perceived as having a mild intellectual disability and highlighted serious systemic failures. In E.T. v. the Republic of Moldova, it addressed the inability of a woman declared totally incapacitated to seek restoration of her legal capacity directly before a court.
These cases do not amount to full alignment with the CRPD. But they show that Strasbourg already has tools to narrow coercion, strengthen autonomy and raise the threshold for state interference.
Where the Court could go further
The first path is to read Article 5 much more strictly. Instead of treating diagnosis as the starting point, the Court could insist that any deprivation of liberty be justified by reasons that are genuinely exceptional, strictly necessary and subject to immediate and meaningful judicial review. It could require proof that less restrictive alternatives were seriously attempted, and it could treat the absence of community-based options as a failure of the state rather than as a reason to detain the person.
The second path is through Articles 3, 8 and 14. Forced medication, seclusion, restraint and non-consensual interventions do not have to be examined only through the lens of Article 5. Strasbourg could increasingly assess them as questions of bodily integrity, degrading treatment and disability discrimination. That shift matters because once coercion is seen primarily as a problem of dignity and equality rather than clinical management, the margin of appreciation becomes narrower.
The third path concerns legal capacity. Here the room for movement may be greater than in detention law. The Convention contains no explicit clause authorising guardianship or civil incapacity on the basis of mental disability. That gives Strasbourg more freedom to modernise its case law under Articles 6, 8, 13 and 14. It could move more clearly against plenary guardianship, require direct access to court and push states toward supported decision-making models that better reflect the CRPD standard.
The fourth path lies beyond individual judgments. Through its case law on execution and structural failings, the Court can identify wider problems and signal the need for general measures. That does not let judges rewrite mental-health legislation themselves, but it does allow Strasbourg to make clear that national systems need broader reform when coercion is systemic rather than accidental.
The real legal limit
Still, there is a limit, and it should be stated clearly. Article 5(1)(e) has not disappeared. It still expressly mentions detention of persons of “unsound mind”. Because of that wording, it is harder for the Court to reach the CRPD’s position of complete prohibition simply by interpretation than it is in areas such as legal capacity or procedural access to justice.
That does not mean the text is destiny. Strasbourg could read the clause narrowly, strip away routine or diagnosis-based uses, and require such demanding safeguards that coercive detention becomes genuinely exceptional. But a total doctrinal shift to the CRPD’s absolute standard would likely require either a major Grand Chamber rethinking of the meaning of that clause or, more cleanly, political action to amend the treaty framework itself.
That is one reason the collapse of support for the draft protocol matters so much. If the Council of Europe cannot credibly move forward by creating new rules that normalise coercion, it will eventually have to confront the deeper question it has long postponed: whether its own human-rights architecture still reflects the disability-rights commitments its member states have already accepted elsewhere.
What states can do even before Strasbourg moves
Governments do not need to wait for a perfect judgment from Strasbourg. The Convention sets a floor, not a ceiling, for protection. States remain free to adopt higher standards under domestic law and under other treaties to which they are parties. That means European governments can already abolish plenary guardianship, tighten or end coercive psychiatric practices and build voluntary, community-based systems consistent with the CRPD.
The policy roadmap is not missing. The WHO-OHCHR guidance on mental health, human rights and legislation calls for legal reform that eliminates coercion and supports deinstitutionalisation. The problem in Europe is no longer the absence of standards. It is the uneven willingness to apply them.
The issue Europe can no longer postpone
That is why the central question is no longer whether Strasbourg can move. It can. The more difficult question is whether Europe’s judges and governments are prepared to admit that the old compromise between care and coercion is losing legal and moral credibility. The CRPD changed the benchmark. The Parliamentary Assembly has now added political weight to that shift. The remaining issue is whether the European Court will continue to lag behind it, or begin, case by case, to catch up.
At the same time, the argument can no longer stop at judicial technique. The deeper problem is the continued existence of Article 5(1)(e) itself. Whether the eugenic character of that clause is fully acknowledged inside Strasbourg or not, and whether its present effect was originally intended or not, the result is plain enough: a modern rights system still contains a provision that permits detention based on disability or social condition. No human-rights treaty in the 21st century can afford to keep such language under any justification.
Europe does not need to prove that every drafter intended a eugenic outcome in order to recognise that the surviving rule now reproduces a logic no modern human-rights order should defend. A treaty provision can become unacceptable not only because of where it came from, but because of what it still allows. If the Council of Europe now wants to remain credible as a human-rights project, it must stop treating Article 5(1)(e) as a relic to be managed and start confronting it as a structural contradiction that needs to be overcome.
