NGO Comments on the draft text
Draft article 10 - LIBERTY AND SECURITY OF THE PERSON
World Network of Users and Survivors of Psychiatry
May 26, 2004
Article 10 of the draft text contains one of the most important provisions
for people with psychosocial disabilities. We are commonly deprived
of our liberty in public and private institutions and hospitals, and
in backyards, because those around us perceive us as dangerous and incompetent.
The text of paragraph 1(b) covers both private and public deprivation
of liberty. It reads,
1. States parties shall ensure that persons with disabilities
…
(b) are not deprived of their liberty unlawfully or arbitrarily, and
that any deprivation of liberty shall be in conformity with the law,
and in no case shall be based on disability.
For the sake of clarity and to avoid redundance, we propose eliminating
the phrase “shall be in conformity with the law” so that the text would
read,
“are not deprived of their liberty unlawfully or arbitrarily, and that
any deprivation of liberty shall in no case be based on disability.”
People with disabilities may be deprived of their liberty pursuant
to law enforcement arrest and detention, or other reasons which states
find necessary. In those situations, the requirement is ensuring the
treatment of prisoners with disabilities according to the requirements
of international human rights, including the right to be free from torture
and other ill treatment (including forced interventions to correct,
improve or alleviate any impairment, as we will make clear in our intervention
on article 11).
However, official detention based on “unsound mind,” “insanity,” “mental
illness” or similar categories would necessarily be prohibited by this
formulation. Disability, when understood according to the social model,
entails precisely the type of social disadvantage to someone experiencing
an impairment or believed by others to be experiencing an impairment,
that is constituted by the extreme action of forcible removal, segregation
and prevention of the person from leaving a place of detention. The
fact that the impairment may be temporary or of unknown duration does
not mean that it can be understood in some other way rather than as
a disability, given the extreme social disadvantage created.
The remainder of article 10 deals with treatment of persons with disabilities
when in official detention, but it is inadequate. First, paragraph c(i)
reflects a lower standard than is permitted by ICCPR article 9. The
ICCPR requires court control of any official detention, and review by
an impartial authority that does not have judicial power is insufficient.
Paragraph c(ii) would not apply in cases of criminal justice detention
when a fixed sentence has been imposed.
Paragraph a reaffirms generally the existing requirement of humane
treatment for any prisoner, but the reference to “taking into account
the needs they have because of their disability” is imprecise and does
not state specific obligations. World Network of Users and Survivors
of Psychiatry believes that accessibility, reasonable accommodation,
assurance that usual prison conditions do not disproportionately impact
people with disabilities or have a harsher effect on them than on the
non-disabled prison population, and provision of services and assistive
devices necessary for the person’s well-being while in detention, must
be the basis for a paragraph dealing with conditions of people with
disabilities in official detention.
Paragraph b is fine but it should be supplemented by additional requirements
for accessibility and reasonable accommodation in the judicial process,
along the lines suggested in the Bangkok draft text and the Mexican
proposal, two texts which are no longer before us but which contained
valuable language that has now been left aside.
Paragraph d is welcome to ensure proper enforcement of this article
and remedy violations. The inclusion of the phrase “deprivation of liberty
based on disability” as a ground for compensation is crucial to give
effect to the provisions of paragraph 1(b) and to make paragraph 2(d)
meaningful in the disability context.
Disabled Peoples’ International, DPI-Japan
Draft Article 10 Liberty and Security of the Person
Mr. Chairperson,
On behalf of Disabled Peoples’ International, DPI-Japan would like
to express our concern that this Draft Article 10 para 2 may lead to
misinterpretation by state parties that deprivation of liberty of persons
with disabilities is unavoidable. We would like to suggest to replace
this part with similar wording of Article 9 of the ICCPR considering
specific needs of persons with disabilities. This paragraph should never
fall below the existing international human rights standards.
Draft Article 10-2 (a) is so ambiguously specified that it can be used
in any form for any purpose. Its wording “the needs they have because
of their disabilities” is also ambiguous. There is no provision as to
how such needs are determined or who determines such needs.
Such a provision should clearly include the following points:
a) physical and information accessibility in detention facilities
should be ensured.
b) general programs and services in detention facilities should meet
the needs of detainees with disabilities
c) reasonable accommodation to satisfy individual needs of detainees
with disabilities should be provided.
In this regard, further discussions will be needed on the basis of
the proposal from the Chair of the Ad Hoc Committee (Article 14-4 and
-5), the Bangkok Draft (Article 13-4 and -5) and the Mexico Draft(Article
10).
Draft Article 10-2 (c) i) is obviously far below the standards set out
in Article 9-4 of ICCPR. The draft article allows one to “challenge
the lawfulness of the deprivation of liberty before a court or other
competent, independent and impartial authority”, whereas Article 9-4
of the ICCPR sets out that anyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before a court,
in order that the court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful.
Draft Article 10-2 (c) ii) is based on the assumption of detention
because of disability. Such a provision of regular review represents
a contradiction to what is provided in Article 10-1-(b).
Regarding Article 10-2 (d), we would like to include this part in the
chapeau of this paragraph so that it will state as follows:
“States Parties shall ensure that if persons with disabilities are
unlawfully deprived of their liberty, or deprived of their liberty based
on disability, contrary to this Convention, they are:”
Finally, regarding para 1 (b), DPI-Japan would like to support the idea
of WNUSP that the original draft text should be kept as it is.
Thank you, Mr. Chairperson
Intervention by (Australian) National Association of Community
Legal Centres, People with Disability Australia Incorporated, Australian
Federation of Disability Organisations
Mr. Chairman:
Thank you for this opportunity to address the Ad Hoc Committee.
We strongly support the principles contained in draft article 10, with
the following seven comments:
Firstly, we consider it vital to clearly state that a deprivation of
liberty must not permit the abrogation of an individual’s other human
rights. This particularly applies to the right of people with disability
to exercise legal capacity and the right to freedom from torture.
Secondly, we recommend that the current text of the article be amended
to incorporate an obligation on States to reform laws and procedures
that indirectly result in the arrest and detention of persons on the
basis of disability, as suggested in footnote 37 of the draft text.
Thirdly, a permissible restriction of liberty ought to be expressed
as subject to the principle of ‘least restrictive alternative’ – in
other words, any restriction of liberty must be limited to the minimum
level appropriate to all the circumstances.
Fourthly, it is our belief that paragraph 2(b) should be more broadly
stated to ensure that all measures are taken to guarantee that the person
with disability truly understands the reasons for the deprivation of
their liberty. Such measures include:
(a) the provision of information in alternative formats;
(b) signed interpretation, at a competent level;
(c) the presence of a family member or support person.
Fifthly, we strongly recommend that draft article 10 be amended to
state that people with disability who have been deprived of their liberty
have a right to access free and independent legal assistance in relation
to that detention.
Sixthly, we note the suggestion of the Canadian delegation, supported
by the Australian delegation and others, that the word ‘solely’ be inserted
into paragraph 1(b). We strongly disagree with this proposal. Disability
should never be a justification for the deprivation of liberty. Where
other factors are involved in the decision to deprive a person of liberty,
those factors should be the only basis for the deprivation of liberty.
This situation is similar to that in Australian anti-discrimination
law, in which it is unlawful to discriminate on the basis of disability,
even where disability is only one of the factors in the decision. There
is a risk of creating a loophole that would permit authorities to avoid
1(b) by relying on a secondary reason that may not in itself be sufficient
justification for the deprivation of liberty.
Thank you.
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