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Summaries of the Fifth Session

Daily summary of discussion at the fifth session
27 January 2005

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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries

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Volume 6, #4
January 27, 2005

MORNING SESSION

ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON (continued)

The Coordinator reminded the delegates about the last three days' process. Expertise from disability organizations has been lacking, and as a result the discussion of Article 9 was unbalanced. He suggested that, from time to time, disability organizations be invited to speak. He will propose that the Chairman set up a plenary meeting this afternoon because NGOs are allowed to speak at plenaries. This should be a short session led by Ambassador Luis Gallegos after which the Committee would resume informal sessions. He opened discussion of 10(2).

Morocco expressed support for the Colombian proposal for 10(2)(e), dealing with benefits to assist in reincorporating PWD after unlawful deprivation of liberty. It also endorsed regular review of institutions to ensure adherence to the Convention.

Canada stated its general preference for the WG text of 10(2), which applies to all forms of detention. It proposed revising the chapeau of Article 10 to make clear that the subparagraphs are minimum guarantees, so as not to undermine the ICCPR and other Conventions. Its revised chapeau would read: "States Parties shall ensure that if PWD are deprived of their liberty, they are entitled at a minimum to the following guarantees." In 10(2)(a), Canada prefers words related to reasonable accommodation rather than the current language referring to the "needs" of PWD. It proposed: "treated with humanity and respect for the inherent dignity of the human person, and are entitled to receive reasonable accommodations including with respect to process, communication, language and facilities." If this language seems too prescriptive, the subparagraph could simply end with the words "reasonable accommodation." Canada supported New Zealand's amendment to 10(2)(b), referring to legal rights, and said that 10(2)(c)(ii) should be amended to reflect applications to the criminal context. Canada also proposed bringing the language of 10(2)(d) in line with ICCPR by revising it as follows: "any PWD who has been a victim of unlawful deprivation of liberty shall have an enforceable right to compensation."

Luxembourg (EU) stated that human rights instruments protect PWD against the arbitrary deprivation of liberty. It proposed that 10(2) begin with these words: "States Parties shall ensure that if persons with disabilities are deprived of their liberty they are entitled to the following minimum guarantees." Then should follow the guarantees which protect PWD.

The Coordinator asked for specific comments on the chapeau of 10(2). There are several proposals. One, from Mexico, would expound on the areas covered. The other would deal with the issue of minimum guarantees, raised by Canada and the EU. He asked for other delegates' comments on these issues. Seeing no comments, he stated that for now, as proposed by Mexico, the chapeau will read: "2. States Parties shall ensure that if PWD are deprived of their liberty including in civil, criminal, administrative and other contexts, States Parties shall."

Jordan spoke against placing "minimum guarantees" in the chapeau, arguing that States Parties should aim high.

The Coordinator explained that in English, the word "minimum" establishes a base and suggests that States should have higher standards. If "minimum" is not added, some States may take the position that they need not do anything other than what is stated in the Article.

Yemen agreed with Jordan that the word "minimum" encourages States to do only the minimum. PWD deserve the same rights under the law as other people. In 10(2)(a), it proposed adding "and other types of assistance" at the end of the list.

The Coordinator suggested that the word "minimum" does what Yemen intends with its proposal, but there may be a linguistic issue. He asked the four delegations -- Canada, the EU, Jordan, and Yemen -- to meet with the facilitator. This is not a substantive disagreement; all share the same objective of encouraging States to do as much as possible. He moved on to discussion of 10(2)(a). He identified two main issues: whether to use the phrase "treated with humanity," which is used in ICCPR; and whether to refer to reasonable accommodations as proposed by the International Disability Caucus.

Canada restated its proposal for 10(2)(a), which reads: "treated with humanity and respect for the inherent dignity of the human person, and are entitled to receive reasonable accommodations, including with respect to process, communication, language and facilities." The examples are optional; the sentence could end with "reasonable accommodations" if delegations prefer.

The Coordinator also noted the Holy See's proposal to add "and worth" after the word "dignity" in 10(2)(a).

Jordan agreed with Canada's proposed addition to the WG text, but is concerned about the words "entitled to" appearing in both the 10(2) chapeau and 10(2)(a). Jordan also expressed support for the Holy See's proposed addition.

The Coordinator pointed out that the words "entitled to" appear in some versions of the chapeau and not in others. He suggested postponing what is essentially a drafting issue.

Costa Rica apologized for referring to an old text during yesterday's comments. Although it agreed with Canada's proposal, it pointed out that accessibility and reasonable accommodations are dealt with in other articles and therefore this proposal creates redundancy. The Canadian proposal could also cause confusion between physical access and access to judicial processes. The language should focus on rights. The words "treated with humanity" from the ICCPR should not be repeated here, though Costa Rica is flexible on that point. It endorsed the Holy See's proposal and proposed adding "in a manner consistent with respect for their human rights and in accordance with the objectives and principles of this Convention."

The Coordinator noted that Canada's proposal deals with mechanisms whereas Costa Rica's deals with objectives. Costa Rica repeated its original proposal for 10(2)(a), to replace the language about "takes into account the needs" with the following: "fully respecting the rights and conditions of equality" (at 265/2004/5). It further proposed, as suggested by the Landmine Survivors Network, to add, after "treated with humanity and respect for the inherent dignity of the human person," the words "and in a manner that respects their human rights and conforms with the objectives and principles of this Convention."

Australia supported Canada's proposal and added that reasonable accommodations are important to include in this section. It proposed a slight drafting change: after "human person," add "in a manner that reasonably accommodates their disability." This Convention should avoid lists; the word "including" may unintentionally exclude some accommodations.

The Coordinator asked Australia for its opinion of the Costa Rican proposal. Australia responded that it prefers the Canadian proposal because it deals with reasonable accommodations. The Coordinator mentioned that although reasonable accommodation is dealt with elsewhere in the text, it is addressed here in a specific context.

The EU supported the Canadian proposal for the chapeau of 10(2). The Coordinator stated there was still an outstanding issue regarding the chapeau and encouraged the delegations to get together to solve the problem.

Japan stated its objection to the list following "reasonable accommodations" as applicable to the judicial branch, which is more independent than other branches of government. The list may be overly prescriptive and prone to misinterpretation.

Serbia and Montenegro supported Canada's proposals to add "minimum standards" to the 10(2) chapeau. It also endorsed Canada's version of 10(2)(a), with the Australian amendment because a short statement is preferable to a list, which can be misinterpreted. It also supported the Holy See's addition.

The Coordinator observed that there has been quite a bit of support for Canada's 10(2)(a), but without the examples. He asked whether Canada could accept Australia's amendment. Canada said it prefers the words "are entitled to receive reasonable accommodations" rather than "in a matter that reasonably accommodates their disability." Australia agreed to this wording, without the list.

Colombia spoke in favor of Costa Rica's text because of concerns about the list. Reasonable accommodations are dealt with in other articles. In some countries, the prison system has limitations. It is very difficult to reasonably accommodate all disabilities in prison so this requirement may end up segregating part of the prison population. Costa Rica's proposal focuses on the objective of the Convention, but provides flexibility to States.

The Coordinator pointed out that "reasonable accommodations" has not been defined yet, but the word "reasonable" should minimize hardships for States. The examples have been deleted.

Brazil supported the Costa Rican proposal because reasonable accommodations are dealt with in a different article.

Canada said that after speaking with the Australian delegation, it understands its amendment and supports the following language: "and are entitled to reasonable accommodation of their disability."

The Coordinator stated that there has been quite a bit of support for inclusion of reasonable accommodations in 10(2)(a) even though these are dealt with in another article. At the same time, Costa Rica's proposal has broader language. He wondered whether the two proposals could be combined to resolve this issue. He suggested the words "treat them with humanity and respect for the inherent dignity and worth of the human person, and in a manner that respects their human rights and conforms with the objectives and principles of this Convention including reasonable accommodations of their disability." He heard no objections, and announced that this proposed language would be in the report. He asked for comments on 10(2)(b). He restated New Zealand's proposal: "Provided with adequate information in accessible formats as to their legal rights and the reasons for their deprivation of liberty at the time this occurs."

New Zealand responded that the Coordinator's reading was accurate. However, it has consulted with Australia and now feels that with the addition of the words "minimum guarantees," the phrase "at the time it occurs" is not needed. An alternative could be to use the phrase "as necessary."

Thailand supported New Zealand's proposal.

Russian Federation supported the original WG text and interprets "reasons for their deprivation of liberty" broadly. It is also willing to support New Zealand's proposal.

Iran agreed with New Zealand's proposal and suggested adding to the end the words "at the earliest opportunity," because timely information should be provided.

Yemen supported New Zealand, but advocated adding temporal boundaries. Phrases like "at the earliest opportunity," "as soon as possible" and "at an appropriate time" are too general and relative. The reason for deprivation of liberty should be required immediately without specifying how long the deprivation will last. If this was added to New Zealand's proposal, Yemen could accept it.

The Coordinator pointed out that ICCPR, Article 9(2), says, "Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." This Convention's Article 10, which deals with a broader definition of deprivation of liberty, has no equivalent reference to time. CRC, Article 40, guarantees that children in the penal system "shall be informed promptly and directly of the charges against him or her." CRC requires that an accused child "has at least the following guarantees"; similar language could solve the problem raised earlier.

The EU proposed adding that PWD must receive information "as to their legal rights," along with information about the reasons for deprivation of their liberty.

Australia proposed the following language: "provided promptly with adequate accessible information as to their legal rights and reasons for their deprivation of liberty." The term "accessible formats" refers to the mode of delivery rather than content of the information; this is relevant for certain PWD. Both New Zealand and Canada support this text. The word "promptly" is better than the phrase "at the time of," because the moment of deprivation may not be the best time to give information.

The Coordinator asked whether delegations could agree to Australia's proposal.

New Zealand intervened to make sure the phrase "legal rights" was still in the paragraph. In response, Australia restated its proposal.

Russian Federation supported the Australian proposal. In Russian, the English word "adequate" translates as "sufficient," raising the question: What is sufficient? Therefore it prefers New Zealand's more specific proposal, in which "adequate" is understood to mean relevant to the circumstances surrounding the deprivation of liberty. It asked why the word "legal" appears before "rights," since there is no such thing as illegal rights.

Uruguay said it understood New Zealand's original proposal to end with the words "at the time it occurs," indicating a specific time, rather than with the word "promptly," which is ambiguous. The Coordinator responded that he has reflected on that point too, and is concerned that the phrase "at the time it occurs" sets a standard too high for States to meet. For example, when a Deaf person is being arrested for a crime, it may not be reasonable to expect the police to give the Deaf person information at the time of arrest in an accessible form. Practically, the word "promptly" is more reasonable, although more ambiguous.

Yemen supported New Zealand's proposal because Australia's proposal causes translation problems involving the word "promptly"; the word "immediately" is more precise. It disagreed with the point of the Coordinator's example, stating that although the arresting officer may not know sign language and could not inform the detainee at that point, the State would have to act to provide a police officer who could communicate with the Deaf person in sign language. In Yemen, a Deaf person was arrested and was angry and frustrated because he had no idea what was happening; he cried when he saw someone who knew sign language and could help. A police officer who knows sign language must be available immediately or during arrest. There should be no delay in providing adequate accessible information.

The Coordinator responded that there is general acceptance that there should be no delay. The issue is that the State may not always have a police officer on the scene who can give adequate information in sign language. "Immediately" means the information would be given at the time of arrest and there are many situations where this is not possible. The State cannot train all police officers in sign language. The Committee's goal is to ensure that accessible information is given as early as possible. The problem is how to phrase this.

Australia agreed with the Coordinator that "immediately" sets an impractical standard. Earlier, Australia had been concerned that the word "immediately" could cause problems not just for States, but also for individuals -- for example, when a PWD is having an episode that interferes with the ability to receive the information "immediately," i.e., at the time of the deprivation of liberty. That's why Australia suggested the word "promptly," which appears in other instruments. Therefore, although Australia appreciates the comments from Uruguay and Yemen, it favors the word "promptly."

Iran endorsed Australia's proposal, which is flexible enough to meet the concerns raised by Yemen.

Thailand stated that in some national legislation, the word "promptly" is followed by the phrase "no later than," making the word "promptly" less relative.

Kenya spoke in favor of using either "promptly" or "as soon as possible" because both are practical terms. In Kenya, the police officer must tell the person the reason for arrest at the time of arrest. However, in some cases this is impossible.

The EU supported the phrase "as soon as possible," but needs time to discuss this with colleagues.

Uganda endorsed Australia's proposal and noted that the term "promptly" adequately addresses the concerns raised by Yemen. The phrase "as soon as possible" would allow too much variation in the meaning.

The Coordinator suggested "promptly and without delay" to address all the concerns.

Jordan expressed preference for the word "promptly." The phrase "without delay" leads to questions about what kinds of delays are acceptable, and for how long.

The Coordinator asked for consensus on the word "promptly." He observed delegates nodding, and announced that "promptly" would be the accepted term.

Yemen raised concerns about the phrases "without delay" and "as soon as possible," because they will not further the goal of giving information to the PWD. "As soon as possible" should mean not more than 24 or 48 hours.

The Coordinator stated that for now "promptly" would be the word, and that States could change it later if necessary.

Libya supported the Australian proposal.

The Coordinator asked delegates to discuss 10(2)(c), beginning with New Zealand's proposal for 10(2)(c)(i).

New Zealand stated it was confused when it commented and that it had meant 10(2)(d). It now supports the Canadian proposal on 10(2)(d).

The Coordinator asked for comments on the chapeau of 10(2)(c) and 10(2)(c)(i), the WG draft of which reads: "(c) provided with prompt access to legal and other appropriate assistance to: (i) Challenge the lawfulness of the deprivation of their liberty before a court or other competent, independent and impartial authority (in which case they shall be provided with a prompt decision on any such action)"

Russian Federation raised a translation question: In the chapeau the word "prompt" is translated as "unobstructed." Is that an accurate translation?

Seeing no objections, the Coordinator announced that the WG text of the 10(2)(c) chapeau and 10(2)(c)(i) would be accepted. He directed delegates to 10(2)(c)(ii) and pointed to comments on this paragraph made by Japan, New Zealand and Canada regarding the concern that if the person had committed a crime, there may not be a regular review process.

New Zealand explained its proposal to add at the end of the subparagraph the words "unless the deprivation of liberty is the result of criminal conviction in which case review would be subject to international standards." New Zealand is now aware of other cases, such as immigration and security cases, which may not have regular review; it has no ideas how to add those to its proposal, but believes that at least regular review for civil commitments should be addressed.

Japan supported regular review in the disability context, but does not want regular review to apply to other contexts such as criminal conviction, immigration, military, etc. It is flexible about wording.

The Coordinator clarified that the idea was that PWD would have no more rights than other people to review in general contexts. He suggested that this is only a wording issue, and asked Japan, Canada, New Zealand and other delegates to work it out with the facilitator.

Kenya pointed out that New Zealand's wording may prevent PWD from enjoying the same right to review that others do.

The EU proposed the following language: "and be provided with a prompt decision on the lawfulness of the deprivation of liberty." The important idea is that PWD should be heard before a court of law and receive a prompt decision.

The Coordinator commented that this returned the discussion to 10(2)(c)(i). The EU responded to the Coordinator's comment that this would ensure a fair hearing and to get a prompt decision. The Coordinator pointed out that 10(2)(c)(i), as written, already ensures those two things. The EU stated that its proposal distinguishes among three different rights: first, access to a procedure before a court; second, a remedy against a decision which deprives liberty; and third, the right to be heard in court to obtain a prompt decision, with the right of appeal. The Coordinator asked which of those elements are missing in the WG text. The right of appeal may not be in this paragraph, but the other elements are in the WG text. He suggested that during the break, the EU should examine the WG text and if it identifies additional missing elements, these can be dealt with during the afternoon session. He returned to 10(2)(c)(ii) and reviewed the suggested process. He moved on to 10(2)(d): "provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention." Canada and Costa Rica had proposals.

Canada proposed alternative language, reading: "Any PWD who has been a victim of unlawful deprivation of liberty shall have an enforceable right to compensation." This does not work with the chapeau, and should be in a separate paragraph. [remainder of intervention not recorded]

The Coordinator suggested that Canada work on language during the break.

India asked for clarification of "regular review" in 10(2)(c)(ii). In ICCPR, Article 14(5), the right of review according to law is mentioned. This needs to be clearer. The Coordinator stated that the key reference was CRC, Article 25. He asked India to join the other delegations in discussing this subparagraph.

Mexico stated that 10(2)(c)(ii) should include "standards and procedures established by law in conformity with the objectives and principles of this Convention," as proposed by Landmine Survivors Network. In addition, in conformity with ICCPR Article 14(b), legal assistance should be provided without cost if the person has no resources to pay. The Coordinator asked Mexico to join the group discussing this subparagraph.

The Coordinator concluded the session by reminding delegates that the AHC would meet formally in the afternoon session, so as to provide an opportunity for everyone including NGOs to speak and reflect on issues discussed over the last few days. Then informal negotiations will continue.

AFTERNOON SESSION

The Chair Ambassador Luis Gallegos opened the sessions in formal plenary so as to enable NGOs and other participants to speak.

The UN Special Rapporteur on Disability called for “a change in terminology and conceptual approach” in addressing the issue of legal capacity in Article 9. She reminded delegations that “we are drafting a new treaty precisely to address the many problems that existing legal systems present for the enjoyment of human rights by PWD.” All adults should be assumed to have full legal capacity and PWD needing assistance should not be assumed to be lacking in capacity, even though “In extreme cases the assistance required may go beyond support for decision making to become, almost, in practice, substitute decision making.” The new convention should enshrine the principle that PWD “are subjects of rights and not objects of protection.”

National Human Rights Institutions (NHRI) recommended that the committee carefully consider the linkage in Article 7.5 between special measures and any time frame. There must be an examination of the amendments proposed by Japan and Costa Rica (http://www.un.org/esa/socdev/enable/rights/ahc5sum24jan.htm). “De facto equality cannot be achieved by treating everybody in a similar fashion, particularly those who are different…some standards which may look separate or different should not be regarded inferior because those standards hold the promise of guaranteeing de facto equality to PWD which otherwise cannot be achieved.” Support mechanisms are crucial for example when people with disabilities reenter the labour market. The introduction of separate standards and measures should by no means perpetuate segregation but guarantee equality. Therefore it proposed deleting the expression “special” measures. Regarding Article 9, the NHRI emphasize that every human being possesses legal capacity. There should be language distinguishing between concepts of “legal capacity” and “capacity to act.” The convention should address certain stereotypes, linking, for example, disability with the incapacity to act, which can be experienced by any human person in certain situations. States must be obliged to avoid referring to persons with disabilities as incapable and instead establish procedures and safeguards to ensure that assistance, if required, is provided by a person appointed by a certain authority. Safeguards are necessary to reduce the vulnerability of PWD.

The International Disability Caucus (IDC) emphasized the need to address the legal capacity issue in the context of history. PWD have, over centuries, been perceived as lacking capacity. The notion of disqualification persists in existing legal norms across jurisdictions and is a result of social prejudices. Even if national legislation does not provide for legal capacity, it is essential for this convention to establish the concept of legal capacity so as to change national legislations. The concept of legal capacity is the liberty to live life on one’s own terms. Seeking support in exercising legal capacity does not diminish or negate one’s independence and capacity. Human interdependence is a fact that should be recognized as a legal principle. There is a distinction between guardianship and supported decision-making. The IDC is opposed to any notion of guardianship or substitutive decision-making. Article 9 must state that all persons with disabilities have legal capacity. In regards to 2(b), the IDC called on delegates to refer to assistance as an entitlement instead of something that is provided to PWD. Furthermore, its wording on “appointing a personal agent” recalls the idea of guardianship in another form. (http://homepage.mac.com/tminkowitz/.cv/tminkowitz/Public/Capacity_plenary_Address.doc-link.doc)

The IDC also supported the original WG text of 10.1(b) which states that “States parties shall ensure that persons with disabilities 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”. It was said yesterday that disability itself is not a justification for deprivation of liberty, but together with something else disability can be a basis of deprivation of liberty. Any adjective and addition to this paragraph such as “solely” or “exclusively” based on disability is a threat to human rights. The IDC also expressed concerns over the presumption in Article 10 that there could be detention based on disability and that detention requires safeguards. IDC proposes to add a new article focusing on access to justice, which must guarantee legal safeguards to PWD who are deprived of their liberty because of reasons other than their disability.

Finally, the IDC noted that women with disabilities have not been recognized in any international convention on protection and rights so far. There is a lack of gender interests in the drafting of this convention. IDC proposes that a gender aspect and special protection for women with disabilities in the upcoming articles be included. See

National Right to Life supported of the US’ proposed language of Article 8 and the addition of the words “from conception to natural death.” Article 8 should read as follows: “State Parties reaffirm that every human being has an inherent right to life from conception to natural death, and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others, and shall ensure that disability or perceived quality of life shall not serve as a basis for the infringement of the right to life.” It is impossible to protect the right to life unless the perceived quality of life is banned as a justification for terminating a life, by such things as denial or withdrawal of medical treatment and/or food and water.

International Right to Life Federation and Coalition for the Protection of Persons with Disabilities supported adding ”worth”, wherever the word “dignity” is used, starting with the title of the convention. The title should read “Comprehensive and integral international convention on the protection and promotion of the rights, dignity and worth of persons with disabilities.” Both the Charter of the United Nations and Universal Declaration of Human Rights refer to the dignity and worth of a human person. Preamble a) of the present document inaccurately quotes the UN Charter without including the word “worth”. The term “death with dignity” is used by proponents of assisted suicide and euthanasia to justify the termination of a human life whose quality of life is deemed unworthy. Every human person has dignity and worth irrespective of their perceived quality of life. Persons with disabilities are particularly vulnerable because of their perceived poor quality of life and are deemed unworthy to live and better off dead.

Center of Pediatric Services for Persons with Disabilities and Foundation Telethon, Mexico invited all delegates to take up again Article 8 dealing with the right to life, which is inherent from conception to death. Using a phrase “quality of life” places persons with disabilities at risk of not having access to medical services and basic rights.

ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON (continued)

The Coordinator resumed informal consultations and proposed the following language of on10.2(c)(ii) as an outcome of morning discussions: “seek review on an equal basis with others of the deprivation of their liberty, including periodic review as appropriate.”

Luxemburg, on behalf of the European Union (EU) suggested including: “to receive a fair hearing and to be provided with a prompt decision of the lawfulness of the deprivation of the liberty” in this paragraph. PWD have difficulty in being heard before a court and in certain circumstances they are excluded as witnesses in a trial. It is important not only to give PWD access to proceedings and a fair hearing in legal cases as witnesses, but to also ensure their access to justice within a reasonable period of time.

The Coordinator pointed out that the EU’s proposal would be an addition to (c)(i) rather than (c)(ii).

The EU made clear that it’s additional language should be a separate paragraph, for example (c)(bis). A fair hearing with a prompt decision is a different concept from what is expressed in c(i) or c(ii).

The Coordinator noted that the idea of a prompt decision is already incorporated in (c)(i) and suggested the insertion of the notion of a fair hearing.

Jamaica noted that the idea of a “”fair hearing” is already incorporated in (c)(i) in the reference to the impartial authority. However, it is flexible on this point. A new subparagraph on “exercise the right to appeal” should be added to 10.2(c). This would encompass all relevant elements.

The Coordinator asked whether the EU still prefers its proposed additional language after Jamaica’s clarification that “independent and impartial authority” includes that language’s elements.

The EU stressed the importance of having a reference to a fair hearing.

The Coordinator saw no objections to the EU proposal and amended 10.2(c)(i) to read: “challenge the lawfulness of the deprivation of their liberty, and receive a fair hearing, before a court or other competent, independent and impartial authority.” He alerted delegates to the need to avoid duplicating other international instruments dealing with legal safeguards, human rights and administration of justice including the right to appeal, such as the Covenant on Civil and Political Rights.

Yemen highlighted the need to restrict the discussion to issues pertaining to disability rather than to more general issues which relate to the population at large and their right to appeal. PWD should not be deprived of the right to appeal because of their disability.

The EU clarified its proposal to a fair hearing. It is important that in all cases PWD have the opportunity to be heard before a court even if they have a representative or are represented by a lawyer. The right to appeal is covered in the regular review, however the EU further supports the idea of a specific provision for persons with disabilities in the text, which would be covered by a fair hearing.

The Coordinator was of the view that a reference to a fair hearing is generally acceptable. He asked the EU for further explanation of the term. He asked whether the EU wants to refer to a personal hearing rather than to a fair hearing. A fair hearing could well take place through a representative, while a personal hearing means that a PWD needs to be present in the court. He remarked that several delegates have suggested that the concept of a fair hearing is already covered by the existing language.

The EU agreed that the idea of personal hearing would be more appropriate.

The Coordinator proposed to change “fair” to “personal”.

Yemen enquired about the relevance of a personal hearing in situations when a PWD is not able to speak and is represented by a lawyer, who is also present in the court. It believes the present text is sufficient, but will not oppose the EU’s proposal.

United Arab Emirates stated that all people have the right to appeal and thus PWD are entitled to the right to appeal. PWD should also have the opportunity to have impartial consideration of their appeal by someone from outside of the court.

Australia suggested that the EU’s concern was not the mechanism of judicial administration, but the direct personal involvement of PWD. There should be an amendment to 10.2(c) to say “provided with prompt access to legal and other appropriate assistance to enable them to (i) challenge etc, (ii) seek review etc.” The assistance or support to challenge the lawfulness or seek review would not be precluded, but the direct involvement of PWD will be maintained.

Jamaica clarified that 10.2(c) does not seek to imply that PWD lack access to all the judicial procedures already captured in many international instruments. In Jamaica and other Caribbean countries, for example, there is always a general right to appeal, but the process of appeal is very complex and expensive for ordinary citizens. PWD need to therefore be provided with prompt access and “appropriate” assistance in order to exercise their rights and to challenge unlawful action. Jamaica supports the original WG wording.

Jordan supported the EU’s reference to a personal hearing which promotes the idea of maintaining and preserving the personhood of the PWD.

The Coordinator suggested the phrase “and receive a hearing in their presence” to clarify the fair hearing issue particularly for non-English speakers.

Russian Federation supported the inclusion of a fair hearing. This would safeguard the right of PWD to challenge the lawfulness of a given decision. The following text “have a prompt access to legal and other appropriate assistance so that within the framework of a fair hearing one would be able to challenge the lawfulness of the deprivation of liberty” should be added.

Canada agreed with comments made by the Russian Federation with respect to the deletion of the word “fair hearing.” It is very important that the phrase “fair hearing” not be deleted, because it extends beyond the right to be heard and covers other procedural guarantees essential to judicial processes. Instead of the phrase “fair hearing,” “and receive a fair hearing including the right to be heard” should be included. The suggested phrase would place special emphasis on the right to be heard.

Norway agreed with both the facilitator’s text as well as proposals by Russia and Canada, but expressed concerns about the pace of negotiations and time spent on issues that are regulated in other documents and conventions.

Australia supported Canada’s amendment to the facilitator’s text. It is important not to get into the mechanics of judicial administration. The right to be heard in one’s presence would be inappropriate when a PWD is in criminal proceeding and their presence may intimidate other witnesses. The concept of the fair hearing is the appropriate one to utilize and the content of the fair hearing would be determined by the circumstances of the case under domestic law.

The Coordinator requested further efforts to reach agreement on the right to appeal which, he pointed out, is already included in existing instruments. The Working Group text of 10.2(d) reads follows: “provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention.”

Canada proposed to delete 2(d), but to include the ideas and move them into a separate paragraph, (2)(iii) or 2(bis) using the language of ICCPR Article 9.5: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation” to say: “Any person with a disability who has been the victim of unlawful deprivation of liberty shall have an enforceable right to compensation”.

Kenya supported the Canadian language, but preferred to work with the WG text of 2(d), which should be shortened to read: “…provided with compensation in the case of deprivation of liberty, contrary to this Convention.” The reference to “unlawful” should be deleted, as the phrase “contrary to this Convention” already sufficiently covers for situations of unlawful deprivation of liberty. Also, since liberty would not be deprived on the basis of disability the reference to “deprivation of liberty based on disability” should be deleted.

Jordan supported the more precise modification of the WG text by Kenya. With regard to Canada’s proposal it preferred to avoid the use of the term “victim” and any reference to victimization.

United Arab Emirates agreed with the Canadian proposal which eliminates contradictions in Article 9 dealing with deprivation of liberty of PWD.

New Zealand repeated its support for the Canadian proposal noting more widespread approval for its wording based on 9.5 of the ICCPR.

Mexico withdrew its own proposal to replace 10.2(d) of the WG text because the Canadian proposal covers the same elements in a more concise manner.

The Coordinator noted general agreement on a provision for compensating PWD in the event of unlawful deprivation of liberty. Two proposals need to be considered, the Canadian formulation based on ICCPR and the Kenyan formulation which is a shorter version of the WG text. Recalling the discussion on the chapeau of Article 10, the chapeau of paragraph 2 would include a reference to the “minimum” standards: “States Parties shall ensure that if persons with disabilities are deprived of their liberty, they have at least the following guarantees:
to be treated with humanity…
b) to be provided with
c) to be provided with
d) to be provided with”

ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

The Coordinator noted that while this Article is brief, the issues it raises, of the types of treatment and punishment of PWD, do not necessarily entail a brief discussion. There was considerable support for the Working Group text at previous AHC sessions. There is overlap between Articles 10, 11 and 12. Elements in Articles 10 and 12 are also in Article 11 but these structural issues can be dealt with at the end.

The EU supported paragraph 11.1 of the WG text, which includes the obligation of States to take all effective legislative, administrative, judicial, educational and other measures to prevent PWD from being subjected to torture or cruel, inhuman or degrading treatment or punishment. It supports the first part of 11.2, whereby “States prohibit, and protect PWD from medical or scientific experimentation without the free and informed consent..” It proposes deleting the second part of 11.2 prohibiting “forced interventions of forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment” because states can in certain circumstances derogate from this obligation. States cannot however ever derogate from the prohibition on torture. Article 11 should not include within it an obligation that could be subject to derogation, as this could potentially weaken the Article.

The Coordinator drew colleagues’ attention to footnote 38 to the WG text which says that members of the WG had different opinions on whether forced intervention and institutionalization should be dealt with under “Freedom from torture,” or under “Freedom from violence and abuse,” or under both. The footnote also deals with issues raised by EU.

Jordan noted the overlap with Article 12 and proposed to add “exploitation” to its chapeau. PWD are often taken advantage of for financial gain. Articles 11 and 12 should be discussed together.

Yemen supported Thailand in calling for a reference to specific types of scientific and medical “and other” experiments. Articles 11 and 12 should be merged with India’s proposed language adding “violence and abuse” to the end of 11.2.

New Zealand submitted a detailed rationale for its proposals amending Articles 11 and 12 and creating a new Article 12 (bis) (at http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm) Forced interventions and forced institutionalization are best addressed in the context of a new article on “Free and Informed Consent to Interventions” and separately from Article 11, because “there are absolutely no circumstances where violence, abuse and torture or cruel, inhumane or degrading treatment is acceptable.”

Morocco proposed inserting “medical” between “legislative and administrative” in 11.1. Doctors and nurses should also be made aware of this obligation, and the medical aspect should be acknowledged within the notion of torture especially among disabled children and those who cannot express themselves. It supports Thailand’s proposal to include “other types” of experiments in 11.2. The Coordinator expressed concern that this wording would not work in English, but it might work in other languages.

Russian Federation supported the WG wording in 11.1. It prefers not to add any other criteria to this subparagraph. The issue raised by Morocco is already covered in the current references to administrative and other types of measures. Morocco’s proposed wording does not follow the wording in the Convention against torture, which was found very satisfactory by Russian delegation.

The Coordinator pointed out that, unlike the ICCPR, Article 11 of the WG text does not contain an absolute prohibition on torture. It requires “State Parties to take all effective (…) measures to prevent PWD from being subjected to torture”, while Article 7 of the ICCPR has stronger language: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” This wording contains an absolute prohibition. The Coordinator opened the floor for consideration as to whether 11.1 should begin with similar wording: ”No PWD shall be subjected to torture ….”

Yemen supported an absolute prohibition in 11.1 but with different wording: “State Parties shall commit to take all effective…” It agreed with Morocco on the need for reference to the term “medical,” but suggested replacing the term with “health,” because it would be better in the Arabic text. It proposed the following language: “States Parties shall commit to take all effective legislative, judicial, health, cultural, administrative and other measures”. The Coordinator pointed out that the language and order of measures in the WG text in 11.1 was carefully considered, and follows the order of the Convention against torture, Article 2.1, which reads: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

United Arab Emirates agreed on the need for on absolute prohibition of torture at the beginning of 11.1. It proposed replacing “prevent” with ”to protect PWD from being subjected et cetera.”

The EU supported the Coordinator’s proposal to strengthen the language in 11.1.

The Coordinator proposed a new subpara: “No person with a disability shall be subjected to torture or to cruel, inhuman and degrading treatment or punishment” based on ICCPR Article 7.

Yemen repeated the order of measures it previously proposed asserting that it is more logical. The text begins with legislation and continues with the judicial arm responsible for ensuring legislative application, followed by administrative, health, and then educational. It explained that education is important but one must be healthy before being educated. The Coordinator suggested Yemen consult other Conventions to determine consistency in its order of measures.

The EU proposed deleting the second part of the sentence “and shall protect PWD from forced interventions or institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment.” 11.2 should only deal with the issue of torture. The EU proposes to deal with forced institutionalization in Article10 and with forced intervention in 12.

Jordan agreed with the EU that part of 11.2 should be moved to Article 12, and 11 should stress only freedom from torture.

Yemen supported the EU proposal. Some issues mentioned in 11.2 have no relationship to torture.

China asserted that it was logically appropriate to move 11.2 to Article 12 because the interventions referred to in this paragraph cannot be called “torture”. There are certain circumstances where PWD cannot judge their own capabilities and sometimes one cannot obtain their consent. Therefore, it is necessary for language on forced intervention, medical treatment or institutionalization to emphasize the need to follow a judicial process with protective measures.

Norway pointed out that Article 11 as it stands now includes several concepts and it can only benefit from further division and clarification. It expressed concern about the first part of the sentence in 11.2, which reads: “In particular States, Parties shall (…) consent of the person concerned.” For people with major psychological and mental disorders, and extreme forms of learning disabilities, there are consequences to their cognitive abilities. They may not be able to give free and informed consent.

The session was adjourned.

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