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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
Fourth Session
Governments
Chile
European Union
Non-governmental organizations
Children's Rights Alliance for England
International Disability Caucus
Landmine Survivors NetworkPeople with Disability Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
CHILE
ARTICLE 10 – LIBERTY AND SECURITY OF THE PERSON
In article 10, paragraph 1(b), we support the Working Group's proposal
in which all that remains is to incorporate a reference to "due process".
The text would then be as follows:
(b) "...are not deprived of their liberty unlawfully
or arbitrarily, nor in any circumstances on grounds of their disability. Any
deprivation of liberty shall be based on a judicial decision with the application
of the guarantees of due process."
We support the Ugandan proposal to include an item in the following terms:
"When lawfully deprived of their liberty measures shall be taken to ensure
that they receive rehabilitation while confinement."
Note: Nonetheless, it should be noted that the correct location
of this item is in paragraph 2 of this article, rather than in paragraph 1
as it appears in the draft currently before us.
We support the inclusion of an item dealing with the situation where
persons with disabilities are compulsorily interned in establishments, along
the lines of the proposals put forward by the European Union, which set out
safeguards and guarantees for such cases in the following terms:
3 (i) States Parties shall accept the principle that forced institutionalization
of persons with disabilities is illegal, save in exceptional circumstances
in accordance with the procedures established by law and with the application
of appropriate legal safeguards.
ii) The law shall provide that in any case of forced institutionalization
of persons with disabilities, the best interests of the person concerned will
be fully taken into account”.
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EUROPEAN UNION
Draft Article 10
LIBERTY AND SECURITY OF THE PERSON
1. States Parties shall ensure that persons with disabilities:
(a) enjoy the right to liberty and security of the person, without discrimination
on the basis of 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.
EU proposal: insert “, including any involuntary institutionalisation,”
between “liberty” and “shall”, and insert “exclusively” after “be based”.
2. States Parties 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, and in a manner that takes into account the needs they have because
of their disabilities;
EU proposal: insert new (b) and renumber as follows: “(b) entitled
to the following minimum guarantees:”;
(b) provided with adequate information in accessible formats as to the reasons
for their deprivation of liberty;
EU proposal: renumber current (b) as (i) and refrase as
follows: ”(i) to be provided with adequate information in accessible formats
as to their legal rights and the reasons for the deprivation of their liberty”.
(c) provided with prompt access to legal and other appropriate assistance
to;
EU proposal: renumber current (c) as (ii) and insert “to be” before “provided”;
finish sentence after “assistance”.
(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);
EU proposal: renumber current (i) as (iii) and replace
by ”to obtain a prompt ruling by a competent, independent and impartial court
or tribunal established by law on the lawfulness of the deprivation of liberty”
.
(ii) seek regular review of the deprivation of their liberty;
EU proposal: renumber current (ii) as (iv) and insert new paragraph
(v) “to receive a fair hearing and be provided with a prompt decision on the
lawfulness of the deprivation of liberty mentioned in subparagraphs (iii)
and (iv) above.
(d) provided with compensation in the case of unlawful deprivation of liberty,
or deprivation of liberty based on disability, contrary to this Convention.
EU Proposal: renumber current (d) as (c ) and refrase as
follows:
“compensated following determination by an appropriate authority that the
deprivation of liberty has been unlawful.”
EU Proposal for Article 10 would thus read as follows:
“1. States Parties shall ensure that persons with disabilities:
(a) enjoy the right to liberty and security of the person, without discrimination
on the basis of disability;
(b) are not deprived of their liberty unlawfully or arbitrarily, and that
any deprivation of liberty, including any involuntary institutionalisation,
shall be in conformity with the law, and in no case shall be based exclusively
on disability.
2. States Parties 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, and in a manner that takes into account the needs they have because
of their disabilities;
(b) entitled to the following minimum guarantees:
i. to be provided with adequate information in accessible formats as to their
legal rights and the reasons for the deprivation of their liberty;
ii. to be provided with prompt access to legal and other appropriate assistance;
iii. to obtain a prompt ruling by a competent, independent and impartial
court or tribunal established by law on the lawfulness of the deprivation
of liberty;
iv. to seek regular review of the deprivation of their liberty;
v. to receive a fair hearing and be provided with a prompt decision
on the lawfulness of the deprivation of liberty mentioned in subparagraphs
(iii) and (iv) above;
(c) compensated following determination by an appropriate authority that the
deprivation of liberty has been unlawful.”
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Non-governmental organizations
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 10
Liberty and security of the person
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. 5
2. Parents of children with disabilities shall be prevented from authorising
the deprivation of liberty of a child with disabilities. (If this right applies
to civil cases, such as mental health).
3. States Parties 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, and in a manner that takes into account the needs they have because
of their disabilities;
(b) Provided with adequate information in accessible formats as to the reasons
for their deprivation of liberty;
(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);
(ii) Seek regular review of the deprivation of their liberty;
(d) Provided with compensation in the case of unlawful deprivation of liberty,
or deprivation of liberty based on disability, contrary to this Convention.
Footnotes:
5.
The Ad Hoc Committee may wish to consider adding a provision that obliges
States to reform laws and procedures that perpetuate the arrest and detention
of persons with disabilities on the basis of disability.
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INTERNATIONAL DISABILITY CAUCUS
Draft Article 10: Liberty and Security of the Person
1. States Parties shall ensure that no one is deprived of liberty based in
whole or in part on disability.
2. States Parties shall ensure that if persons with disabilities are deprived
of their liberty, they are treated with respect for the inherent dignity of
the human person, including:
a) notification of the reasons for arrest or detention, at the time of the
arrest or detention, by accessible means and languages;
b) accessibility to persons with disabilities of all programs available to
detainees;
c) reasonable accommodation for individual persons with disabilities in the
arrest and detention settings;
d) measures to ensure that persons with disabilities have access to their
support networks;
e) availability of rehabilitation and support services, assistive devices,
and medical or other health services; and
f) ensuring that conditions of detention do not have a disproportionately
harsh effect on persons with disabilities.
Proposed new draft Article on Access to Justice
States Parties shall take all appropriate and effective measures to ensure
the equal right of persons with disabilities to participate in all stages
of procedure in courts and tribunals.
States Parties shall take appropriate and effective measures to ensure:
a) accessibility of judicial proceedings to persons with disabilities, including
modification of evidentiary or other procedures so that persons with disabilities
can serve as witnesses, jurors, and in other roles; and
b) elimination of physical, social, informational and communicational barriers
to the effective exercise of rights and participation in all official proceedings
concerning the person or in which the person has an interest.
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LANDMINES SURVIVORS NETOWRK
Draft Article 10 – LIBERTY AND SECURITY OF THE PERSON
SYNTHESIS OF PROPOSALS
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 ensure that if persons with disabilities are deprived
of their liberty, including in civil, criminal, immigration, and other contexts,
States Parties shall:
(a) treat them with humanity and respect for the inherent dignity of the human
person, and in a manner that respects their human rights and conforms with
the objectives and principles of this Convention;
(b) ensure the provision of adequate information in accessible formats as
to their rights and the reasons for their deprivation of liberty at the time
this occurs;
(c) ensure the use of standards and procedures established by law and in conformity
with the principles and objectives of this Convention;
(d) ensure that determinations regarding their liberty are made through the
use of a fair and public hearing by a competent, independent and impartial
tribunal;
(e) ensure prompt and timely access to any adjudicative mechanisms, including
processes of appeal and regular review before a court or other competent,
independent and impartial tribunal, and a prompt decision on any such action;
(f) ensure that the person in question is entitled to representation by counsel,
and that such representation shall be made available without payment by that
person to the extent that he or she does not have sufficient means to pay
for it;
(g) ensure the accessibility to persons with disabilities of legal and other
proceedings relevant to their deprivation of liberty, including through the
removal of physical and communication barriers and the provision of reasonable
accommodation; and
(h) ensure that any persons with disabilities who have been the victim of
unlawful deprivation of liberty shall have an enforceable right to compensation.
COMMENTS
Draft Article 10 received widespread support for its inclusion, in part because
of the heightened exposure to deprivation of liberty faced by people with
disabilities. However, numerous States expressed concern that, as drafted,
Draft Article 10 did not clearly set forth legal procedures and safeguards
consistent with existing Conventions, or clearly indicate the contexts in
which the article’s provisions were to apply. The additions to the text shown
opposite are intended to address these concerns.
Draft Article 10(1) has been left unaltered, as (1)(a) and (1)(b) establish
important prohibitions against discrimination against people with disabilities
in the enjoyment of the right to liberty and security of the person. Although
some members proposed the insertion of the word “solely” to prohibit discrimination
“based solely on disability” (Canada, Uganda, Australia), others (Mexico,
WNUSP) noted that such a proposal would unduly weaken the provision, potentially
permitting States to discriminate against people with disabilities as long
as additional reasons were also provided by the State. “Solely” has therefore
not been incorporated here.
The chapeau of Draft Article 10(2) has been expanded to clarify the contexts
in which the provisions should apply, encompassing both civil and criminal
contexts (Mexico) as well as immigration or other occasions upon which a person
could be deprived of their liberty. This clarification is consistent with
the determination of the Human Rights Committee that many of the components
of Article 9 (addressing liberty and security of the person) of the ICCPR
are applicable in all instances of deprivation of liberty, criminal or otherwise.
(Cf. Human Rights Committee, General Comment 8, para. 1) The reference here
to “civil” contexts is in no way intended to imply that forced institutionalization
in the form of civil commitment (prohibited in Draft Article 11(2)) is permissible.
Draft Article 10(2)(a) retains the reference in the Working Group Draft Text
to the need for States Parties to treat people with disabilities in a manner
that is humane and respectful of their inherent dignity. However, the reference
to the requirement to take “into account the needs they have because of their
disabilities” has been replaced with language that focuses instead on the
human rights of the individual. Such language is intended to better reflect
the social model of disability, as well as ensure that other aspects of this
Convention (such as preservation of autonomy, accessibility, access to rehabilitation)
are also undertaken by States Parties during those occasions when people with
disabilities are deprived of their liberty.
Draft Article 10(2)(b) incorporates the proposal to ensure that people with
disabilities are informed of their rights as well as the reasons for their
deprivation of liberty, and that this information be provided at the time
of the deprivation of liberty. (New Zealand) The inclusion of a requirement
that such information be provided promptly is consistent with Article 9 of
the ICCPR. Several States proposed that Draft Article 10 should have standards
no lower than those set forth in Article 9 of the ICCPR. (New Zealand, EU,
Norway)
Draft Article 10(2)(c)-(f) include provisions based closely on Articles 9
and 14 of the ICCPR, that more clearly set forth the applicable procedures
and safeguards to be used in instances of deprivation of liberty. As compared
with the initial Working Group Draft Text, these provisions now include a
specific right of appeal in addition to regular review of the deprivation
of liberty, a right to legal counsel (provided free if necessary), and the
use of standards and procedures established by law and in conformity with
the principles of the Convention. In addition, Draft Article10 (g) ensures
that all relevant proceedings are accessible to people with disabilities and
is not only consistent with the principles and objectives of this Convention,
it is also in-keeping with provisions in other Conventions that protect the
right of affected parties to understand what is happening during relevant
proceedings and access appropriate assistance. (Cf. ICCPR, Article 14(3)(f);
CRC, Articles 37(d) and 40(b)(vi))
Draft Article 10(2)(h) retains a provision providing an enforceable right
of compensation in the event of an unlawful deprivation of liberty. However,
the language has been changed from the Working Group Draft Text to more closely
conform to Article 9(5) of the ICCPR. (Canada)
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PEOPLE WITH DISABILITY AUSTRALIA
Article 10: Liberty and Security of the Person
We strongly support the principles contained in draft Article 10, but believe
they can be strengthened in several respects.
Compulsory assistance has led to the abuse and neglect of the human rights
of people with disability in all parts of the world. However, the failure
to render compulsory assistance in some circumstances has also lead to the
abuse and neglect of the human rights of people with disability. Examples
of persons who may be in need of compulsory assistance include persons with
severe cognitive disability who engage in self-injurious behaviours that may
lead to death or further impairment and persons with acute mental illness
who refuse social assistance and risk death from exposure, violence or starvation
on the street. We therefore do not view compulsory assistance as inherently
incompatible with human rights, and argue that in some cases it is necessary
for the realisation of human rights.
Any form of compulsory assistance however must be subject to stringent procedural
safeguards. It is to these ends that our comments on draft Article 10 are
directed.
It is crucial that paragraph 1 specifically states that any deprivation of
liberty must be subject to judicial review independent of executive government.
The use of executive discretion in the mental health context is a pervasive
human rights abuse of people with psychiatric disability. To address this
concern it is proposed that an additional sub-paragraph be added to paragraph
1 in the following terms:
(c) Shall have the absolute right to final determination of the right to liberty
by a competent, independent, and impartial administrative or judicial body,
operating subject to judicial review.
In relation to the safeguards set out in paragraph 2, four changes are proposed
– three additional principles and an elaboration of the safeguards in relation
to information set out in sub-paragraph 2(b). The three additional principles
are directed at ensuring the deprivation of liberty is the least restrictive
alternative; that the person deprived of liberty continues to enjoy all other
human rights; and that the person shall have access to free legal assistance
in relation to all proceedings concerning deprivation of their liberty, including
to appeal any decision providing deprivation of liberty.
Taking these proposals into account this paragraph might now read:
2. States Parties to this convention shall take immediate and effective measures
to ensure that:
(a) Persons with disability deprived of their liberty are treated with humanity
and respect for the inherent dignity of the human person, and in a manner
that takes into account the needs they have because of their impairment or
disability;
(b) Any deprivation of liberty of a person with disability is the least restrictive
absolutely necessary in the circumstances;
(c) Persons with disability deprived of their liberty shall continue to fully
enjoy all other human rights and freedoms;
(d) Persons with disability are provided with information about and support
to understand the reasons for the deprivation of their liberty, and their
means of redress. This shall include:
(i) The provision of information in plain language or other formats accessible
to people with particular disability or impairment;
(ii) Signed interpretation, at a competent level, where required;
(iii) Access to a competent support person to assist the person to comprehend
his or her situation.
(e) Persons with disability deprived of their liberty shall be provided with
prompt access to free legal and other 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)
(ii) Seek regular review of the deprivation of their liberty before a court
or other competent, independent, and impartial authority;
(f) Persons with disability shall be provided with compensation in the case
of unlawful deprivation of liberty, or deprivation of liberty based on disability,
contrary to this convention.
Consistent with footnote 37 of the Expert Working Group text, we call for
an additional paragraph in the article obliging States Parties to the Convention
to reform laws and procedures that perpetuate the unnecessary arrest and detention
of persons with disability. This article would go some way to addressing the
critical over-representation of people with disability, particularly those
with psychiatric or intellectual disability, or brain injury, in criminal
justice systems in most parts of the world.
It is also strongly suggested that this article ought to provide for the diversion
of people with cognitive disability from the criminal justice system where
their arrest and/or detention is not in the interests of justice, and is not
likely to result in the correction of the person. Further, it is suggested
that the article should require states to recognise the legal defence of mental
illness to a criminal charge, where the act or omission leading to the charge
is involuntary due to mental illness.
These paragraphs might be framed in the following terms:
3. States Parties to this convention shall take immediate and effective measures
to reform laws, policies, and procedures that result in the unnecessary arrest
and detention of persons with disability on the basis of disability;
4. States Parties to this convention shall take immediate and effective measures
to divert people with cognitive disability from the criminal justice system
where their arrest and/or detention is not in the interests of justice, and
is not likely to result in the correction of the person.
5. States Parties to this convention shall recognise the defence of mental
illness to a criminal charge, where the act or omission the subject of the
charge was involuntary due to the person’s mental illness.
As footnote 35 of the Expert Working Group text suggests, deprivation of liberty
is frequently narrowly interpreted by States to apply only in the area of
criminal justice. Paragraph 1 must therefore be more clearly expressed to
apply to all forms of deprivation of liberty including involuntary detention
in a treatment facility, involuntary institutionalisation, involuntary restrictions
on freedom of movement, and involuntary chemical restraint. We therefore recommend
the addition of a further sub-paragraph (5) that defines deprivation of liberty
to include these situations. This sub-paragraph might be in the following
terms:
5. Reference to deprivation of liberty in this article shall include detention
in a criminal justice facility or program, involuntary detention in a treatment
facility, involuntary institutionalisation, involuntary restrictions on freedom
of movement, and involuntary chemical and other restraints.
We note the suggestion of the some delegations in the Third Session of the
Ad Hoc Committee that the words ‘solely on the basis of disability’ be inserted
into paragraph 1(b). We strongly disagree with this proposal. Disability should
never be a justification for the deprivation of liberty. This includes a situation
where an act is done for two or more reasons, where disability is one of those
reasons, whether or not it is the dominant or a substantial reason for doing
the act.
WORKING MEETING OF NGOs
FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA, BELARUS & MOLDOVA
Article 10
Liberty and security of the person
We consider it necessary for the special institutions for people with disabilities
to be mentioned as a possible place of residence which has to be provided
as a free choice and having an equal alternative.
One more sub-issue should be added to issue 1: States Parties shall ensure
that persons with disabilities: (c) have an opportunity to choose
a place of residence (in the family or in a special institution which has
minimum differences from ordinary community environment).
Issue 2 sub-issue ( a) after the words (a) Treated with humanity and respect
for the inherent dignity of the human person it can be continued
“and receive all the necessary support according to the needs caused by disability”
We consider that deprivation of the liberty on civil and criminal cases should
be mentioned separately.
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