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Article 14 - Liberty and security of the person
Background Documents | Article 14 Background
Seventh Session | Fifth Session | Fourth
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Working Group | References
Fifth Session
Draft article
10
Paragraph 1
25. There was general agreement on the text of paragraph 1, as prepared
by the Working Group. There were, however, two areas in which amendments
were proposed.
26. First, there was general agreement to delete from subparagraph (a),
the words “without discrimination based on disability” and instead to add,
to the chapeau of paragraph 1, the words “on an equal basis with others”.
27. Second, some delegations proposed the insertion, in subparagraph (b),
of the word “solely”, or “exclusively”, before the words “on disability”.
One delegation proposed that an alternative way of addressing the issue
would be to add the words “in no case shall the existence of a disability
justify a deprivation of liberty” to the end of the paragraph. There was
general agreement to use this proposal as a basis for the discussion, although
it was understood that some delegations would need to consider the text
further. Other delegations considered subparagraph (b) to be redundant,
because it was essentially an elaboration of subparagraph (a). The issue
was referred to the facilitator (Gaile Ramoutar, Trinidad and Tobago) for
further discussion.
28. Following the discussion, paragraph 1 reads:
“1. States parties shall ensure that persons with disabilities, on an equal
basis with others:
“(a) Enjoy the right to liberty and security of person;
“(b) Are not deprived of their liberty unlawfully or arbitrarily, and that
any deprivation of liberty is in conformity with the law and in no case
[based solely [exclusively] on disability] [shall the existence of a disability
justify a deprivation of liberty].”
Paragraph 2
29. There was general agreement to replace the word “are”, at the end of
the chapeau of paragraph 2, by the words “have at least the following guarantees”,
and to insert the words “To be” at the beginning of subparagraphs (a) to
(d).
30. There was general support for the proposal that a non-exhaustive list
of the various contexts in which deprivation of liberty may occur be inserted
in the chapeau of paragraph 2. There was much support for the insertion,
also in the chapeau, of the words “through a civil, criminal, administrative
or other process” after the word “liberty”.
31. There was general agreement to insert the words “and worth” after the
word “dignity” in subparagraph (a), as in the Preamble to the Charter of
the United Nations. There was also general agreement on the proposal that
the latter part of subparagraph (a) read: “and in a manner that respects
their human rights, conforms with the objectives and principles of this
Convention, and reasonably accommodates their disability”.
32. In regard to subparagraph (b), there was general agreement to replace
the words “adequate information in accessible formats” by the words “adequate
accessible information”, and to insert the words “their legal rights and”
before the words “the reasons for the deprivation of their liberty”. It
was proposed that the word “promptly” be inserted after the word "provided”,
as in paragraph 2 of article 9 of the International Covenant on Civil and
Political Rights.
33. The Coordinator proposed that, for the time being, the words “and a
fair hearing, including the right to be heard” be inserted after the word
“liberty” in subparagraph (i) of paragraph 2 (c), and that the subparagraph
encompass the idea of an appeal process. There was provisional agreement
to replace subparagraph (ii) of paragraph 2 (c) by the following text: “Seek
review on an equal basis with others of the deprivation of their liberty,
including periodic review as appropriate”.
34. There was substantial support for the concept contained in subparagraph
(d), although two divergent views on its placement. The first view was to
have a shortened version of the text prepared by the Working Group, which
would read:
“To be provided with compensation in the case of deprivation of liberty
contrary to this Convention”. The second view would replace the subparagraph
by a new paragraph 3, based on paragraph 5 of article 9 of the International
Covenant on Civil and Political Rights, which would read: “Any person with
a disability who has been the victim of unlawful deprivation of liberty
shall have an enforceable right to compensation”. This issue was referred
to the facilitator for discussion with interested delegations.
35. Following the discussion, paragraph 2 reads:
“2. States parties shall ensure that if persons with disabilities are deprived
of their liberty [through a civil, criminal, administrative or other process],
they have at least the following guarantees:
“(a) To be treated with humanity and respect for the inherent dignity and
worth of the human person, and in a manner that respects their human rights,
conforms with the objectives and principles of this Convention, and reasonably
accommodates their disability;
“(b) To be provided [promptly] with adequate accessible information as to
their legal rights and the reasons for the deprivation of their liberty;
“(c) To be provided with prompt access to legal and other appropriate assistance
to:
“(i) Challenge the lawfulness of the deprivation of their liberty [and to
receive a fair hearing, including the right to be heard] 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);
“[(ii) Seek review on an equal basis with others of the deprivation of their
liberty, including periodic review as appropriate;]
“[(d) To be provided with compensation in the case of deprivation of liberty
contrary to this Convention.]
“[3. Any person with a disability who has been the victim of unlawful deprivation
of liberty shall have an enforceable right to compensation.].”
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