The European Convention on Human Rights (ECHR) was adopted by the Council of Europe on 4 November 1950 and came into force on 3 September 1953. In the aftermath of the Second World War, Western European states reached a broad consensus that a new framework for peaceful coexistence based on democracy, human rights and rule of law was essential.
Among the rights enshrined in the ECHR, the right to a fair trial under Article 6 is particularly significant, as it safeguards access to justice for all individuals, including persons with disabilities. For these individuals, meaningful participation in legal proceedings often requires special procedural accommodations to ensure that they can effectively exercise their rights. These measures include communication support, simplified information, assisted decision-making, and access to legal representation tailored to the individual’s capacities.
Ensuring that the rights enshrined in the ECHR are effectively realized is the core function of the European Court of Human Rights (ECtHR/Court). The ECtHR was founded on 21 January 1959. In its jurisprudence the ECtHR often considers relevant international treaties, documents and in some cases, the CRPD.
The Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol was adopted by the United Nations General Assembly in New York on 13 December 2006 and entered into force on 3 May 2008. The CRPD employs an expansive understanding of disability and affirms that all persons, irrespective of the nature or degree of their impairments, are entitled to the full range of human rights and fundamental freedoms. It elucidates how existing categories of rights apply to persons with disabilities, identifies the adjustments necessary to enable their effective enjoyment of those rights, and highlights areas in which rights violations have occurred and where enhanced protection is required.
The adoption of the CRPD and its Optional Protocol marked a paradigm shift in international disability law, redefining the position of persons with disabilities within the human rights framework. The CRPD recognizes individuals with disabilities as autonomous rights-holders capable of exercising their legal capacity on an equal basis, thereby moving decisively away from earlier models that treated them primarily as passive recipients of charity, protection, or medical care. Article 12 of the CRPD states “[that] States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” The Committee of the CRPD has consistently interpreted Article 12 as requiring that all persons with disabilities are able to exercise their legal capacity on an equal basis with others. The CRPD not only affirms their inherent dignity and agency but also obliges states to provide the necessary support to ensure that persons with disabilities can practically exercise their legal capacity. This requirement is essential for enabling their full participation in, access to, and involvement in judicial proceedings.
The relationship between the ECHR and CRPD is particularly significant because many states are parties to both instruments, creating a need for coherent application. Although the ECtHR is not formally bound by the CRPD, it increasingly engages with it as an interpretative guide, consistent with its “living instrument” doctrine. By interpreting the ECHR in light of evolving international human rights standards - among them the norms embodied in the CRPD - the Court -through its regional purview - contributes to preventing fragmentation in international law. This interpretative openness also ensures that Strasbourg jurisprudence remains aligned with global understandings of the rights of persons with disabilities, reinforcing a coherent and constantly developing human rights framework across Europe.
There are several cases which illustrate how the ECtHR takes into account the CRPD. In Stanev v. Bulgaria (2012), one of the landmark judgements concerning the rights of persons with disabilities, involved legal capacity, involuntary institutionalization and personal liberty. The applicant was placed in a closed social care institution by his guardian without his consent and was unable to leave, manage his affairs or challenge his placement. The Court found that the applicant’s right to a fair trial (Article 6), prohibition of torture (Article 3) and right to liberty and security (Article 5) was violated as the placement amounted to deprivation of liberty and degrading living conditions. Importantly, the Court emphasized that persons under guardianship must have effective access to judicial review of decisions affecting their liberty and legal capacity, anticipating the CRPD’s approach to equal legal capacity and the primacy of supported over substituted decision making.
D.D. v. Lithuania (2012) concerned a woman with psychosocial disabilities placed under partial guardianship and admitted involuntarily to psychiatric institution without meaningful involvement in the decision-making process. The ECtHR found violations of the right to liberty and security (Article 5) and the right to a fair trial (Article 6), holding that the applicant’s confinement amounted to deprivation of liberty and that she lacked effective access to judicial review. The Court emphasized that persons with disabilities must be able to participate in decisions affecting their liberty and legal capacity, echoing the CRPD’s requirement of equal recognition before the law and supported decision-making under Article 12. Although the ECHR and the CRPD are distinct instruments, the Court drew on the CRPD as an interpretative guide, illustrating the increasing convergence between Strasbourg jurisprudence and contemporary disability rights standards.
One of the more recent cases, Dragan Kovačević v. Croatia (2022), concerned a man with psychosocial disabilities who was required to bear the full costs of the proceedings of a constitutional complaint, despite it being successful. The case did not concern the substantive review of his legal capacity or institutionalization, but the disproportionate financial burden placed on him in accessing constitutional justice. The EctHR found a violation of Article 6, holding that the refusal to reimburse his legal costs imposed an excessive and disproportionate restriction on his right to access to a court, particularly given his low income and vulnerable position. The Court stressed that financial obstacles must not deprive individuals, especially persons with disabilities, of the ability to challenge decisions affecting their rights.
The rights of persons with disabilities are protected under multiple provisions of the ECHR, particularly Article 6, which entails positive obligations for states to facilitate effective participation in proceedings. The ECtHR has repeatedly taken into account the CRPD in its case law, reflecting a growing European and international consensus on the need to protect persons with disabilities from discrimination and exclusion, as noted in Glor v. Switzerland. The Court’s use of the CRPD as interpretative guidance helps align ECtHR jurisprudence with contemporary disability rights standards and ensures coherence across the international human rights framework.
For persons with intellectual and psychosocial disabilities, effective participation in legal proceedings is a fundamental aspect of their right to a fair trial. States have positive obligations under both the ECHR and the CRPD to provide procedural accommodations, ensure meaningful involvement in decisions affecting legal capacity, and safeguard liberty and autonomy. The ECtHR’s evolving case law illustrates a convergence between the ECHR and CRPD frameworks, offering guidance to states on implementing disability-inclusive legal procedures. Continued attention to these obligations is essential to prevent violations of fundamental rights and to harmonize domestic law with international disability rights standards.
