An alliance of human rights groups has spoken out against the forced sterilisation of women with mental disabilities in France. See here and here. Last week the Center for Reproductive Rights, European Disability Forum, Interights, International Disability Alliance and Mental Disability Advocacy Center; submitted written comments to the European Court of Human Rights in the case of Gauer and Others v France (Application no 61521/08). A copy of the written comments is available here. Gauer and Others v France is a case involving five women with intellectual disabilities who were forcibly sterilised. The decision of the European Court of Human Rights will be an important statement on the reproductive rights of persons with disabilities and the positive obligations on the States in safeguarding persons with disabilities against abuse.
The European Court of Human Rights has used the UN Convention on the Rights of Persons with Disabilities (CRPD) as an interpretive aid to the European Convention on Human Rights and it is clear that the ECHR has been edging closer to the philosophy of legal capacity as set out in Article 12 of the CRPD. In Shtukaturov v Russia the ECtHR stated “…the existence of a mental disorder, even a serious one cannot be the sole reason to justify full incapacitation”. This was an important statement by the ECtHR acknowledging that there was a lack of proportionality in the legal response to the person’s capacity in that case. Moreover, the Shtukaturov decision is important in that ECtHR acknowledges that the deprivation of legal capacity constitutes a serious intrusion into a persons right to respect for their private and family life under Article 8 and domestic legislation has to provide “a tailored-made response” in this area. So this case will provide an invaluable opportunity for the Court to engage with the CRPD and further develop its jurisprudence on the right to legal capacity. Other human rights that will be engaged under the European Convention on Human Rights include:
- Article 3 (prohibition of torture)
- Article 8 (right to respect for private and family life)
- Article 13 (right to an effective remedy)
- Article 14 (Prohibition of discrimination)