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Article 14 - Liberty and security of the person
Background Documents | Article 14 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Fifth Session
Governments
Non-governmental organizations
Comments, proposals
and amendments submitted electronically
Governments
AUSTRALIA
Proposed Modifications to Draft Article 10
LIBERTY AND SECURITY OF THE PERSON
b) are not deprived of their liberty unlawfully or arbitrarily, and that any
deprivation of liberty shall be in conformity with the law. The existence
of a disability shall not justify a deprivation of liberty.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS
- Information sheet
Why should words like “solely” or “exclusively” be kept out of article 10.1(b)?
Deprivation of liberty should never be based on disability, any more than it
should be based on race or gender. Imagine a convention that said deprivation
of liberty shall in no case be based solely on race. Would it not suggest
that race is a permissible basis for official detention? Similarly, to say
that deprivation of liberty shall in no case be based solely on disability
implies that disability can be one factor among others in the deprivation
of liberty.
Many laws allowing compulsory institutionalization of people with disabilities
require other factors to be considered along with disability – the effect
is that we are unequally burdened compared with non-disabled people.
The ICCPR guarantees human rights to all people without distinction of any
kind, now understood to include distinctions based on disability.
The ICCPR also guarantees freedom of movement and freedom from arbitrary detention,
but people with disabilities do not enjoy these rights equally under current
laws and practices.
How does article 10.2(c)(i) undermine international law?
The article 10.2(c)(i), as currently formulated sets a lower standard for challenging
the lawfulness of the deprivation of liberty of persons with disabilities
than the standard established under article 9 of the ICCPR. Under the ICCPR,
a person must have access to a court of law – not any other kind of tribunal – to
determine whether the detention is lawful.
- Draft proposal
1. States Parties shall ensure that persons with disabilities:
(a) enjoy the right to liberty and security of the person, without discrimination
based on disability;
(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.
2. States Parties shall take effective measures to eliminate all barriers to
the exercise and enjoyment by persons with disabilities of rights under national
and international law generally applicable to persons deprived of their liberty,
and in particular, shall ensure that, if persons with disabilities are deprived
of their liberty, they are:
(a) treated with humanity and respect for the inherent dignity of the human
person, including access to necessary services and assistive devices, and
access to their support networks;
(b) entitled to receive reasonable accommodation in process, communications,
languages and facilities at all stages of arrest and detention;
(c) ensured access to all programs and services generally available to persons
under arrest or detention;
(d) provided with adequate information in accessible formats and languages
as to their legal rights and the reasons for the deprivation of liberty at
the time this occurs;
(i) in the case of a criminal arrest or detention, brought promptly before
a court and entitled to trial within a reasonable time or release;
(ii) entitled without delay to take proceedings before a court to determine
the lawfulness of any deprivation of liberty, to have a prompt decision and
to be released if the deprivation of liberty is unlawful;
(iii) provided with access to legal assistance, and other services necessary
to ensure accessibility, in such proceedings.
3. States Parties shall ensure that any person with a disability who has been
a victim of unlawful deprivation of liberty, including deprivation of liberty
based on disability, shall have an enforceable right to compensation.
- Draft proposed new article
ACCESS TO JUSTICE
1. States Parties shall take appropriate and effective measures to ensure accessibility
of the legal system to persons with disabilities, including but not limited
to the following:
(a) accessibility of judicial proceedings, including modification of evidentiary
and other procedures so that persons with disabilities can serve as witnesses,
jurors, lawyers, judges and in other roles;
(b) elimination of physical, social, informational, communicational, linguistic
or other barriers to the effective exercise of rights and participation in
all official proceedings concerning the person or in which the person has
an interest;
(c) accommodation in law enforcement processes, including investigative procedures;
(d) provision of accessible services to crime victims who are persons with
disabilities;
(e) placing a duty on courts to consider hatred of their victims as an aggravating
factor when sentencing convicted perpetrators of physical, sexual, psychological
or any other form of violence against people with disabilities.
Footnotes:
1. NOTE: We agree with the Working Group text as it stands.
We oppose language that would weaken subparagraph b by adding the term "solely"
or "exclusively" – this would allow disability to be used as one
factor among others to justify deprivation of liberty.
2. NOTE: Paragraph 2 guarantees the rights of people with
disabilities who are deprived of their liberty. The Working Group text combines
procedural rights with the right to humane treatment and dignity while in
detention. We have added elimination of barriers, accessibility and accommodation
which are relevant to both procedural rights and humane treatment. We have
also brought the requirement for court control of any detention into conformity
with ICCPR article 9.
3. NOTE: This text uses the ICCPR language for compensation
and includes deprivation of liberty based on disability, which has been prohibited
by paragraph 1b.
4. NOTE: We support a general provision on training to be
put in article 4, which would cover training of law enforcement and judicial
personnel among others, in issues related to implementation of the convention.