Deprivation of liberty in social welfare institutions

Abstract

A large number of beneficiaries who are accommodated in social welfare homes are persons with mental disabilities. Most of them are locked up and prevented from leaving those institutions by their own will. They are virtually deprived of their liberty, with the explanation that it is in their "best interest". However, there is no legal ground in the Serbian legal system for the deprivation of liberty of beneficiaries of social welfare institutions. Such treatment is contrary to Article 27 of the Serbian Constitution according to which "deprivation of liberty is allowed only for the reasons and in the procedure provided for by law". It also contravenes Article 5 of the European Convention on Human Rights, according to which "no one shall be deprived of his liberty save... in accordance with a procedure prescribed by law". After years of ignoring the Ombudsman's recommendation to stop deprivation of liberty without valid legal ground, the Ministry responsible for social affairs in 2019 tried to regulate the said conduct. However, the offered versions of the Draft Law contain numerous shortcomings and contradict current standards. This paper is an attempt to argue for the unsustainability of the solutions offered.