 |
 |
|
|
|
|
Article 14 - Liberty and security of the person
Background Documents | Article 14 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Governments
Canada
European Union
Mexico
UN System organizations
OHCHR
WHO
National Human Rights Institutions
National Human Rights Institutions
Non-governmental organizations
Bizchut
European Disability Forum
International Save the Children Alliance
Japan Disability Forum
Landmine Survivors Network
World Blind Union
World Network of Users and Survivors of Psychiatry
Comments, proposals and amendments submitted electronically
Governments
CANADA
ARTICLE 10
Remove 2 (d) and replace with new paragraph 3:
3. Any person with a disability who has been the victim of unlawful deprivation
of liberty shall have an enforceable right to compensation.
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.
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) 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.
EU Proposal: EU suggests the following wording; “compensated following
determination by an appropriate authority that the deprivation of liberty
has been unlawful.”
EU proposal: new paragraph 3:
i. States Parties shall accept the principle that forced institutionalisation
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 institutionalisation
of persons with disabilities, the best interests of the person concerned
will be fully taken into account.
MEXICO
Comments on Article 10 Liberty and security of the person
Para 2.a. – Mexico wants the Spanish version to say “inherente”
(inherent) instead of the current “inmanente”.
Para 2.d. – Mexico supports to move current para 2.d as
a separate paragraph. It should start as follows:
New para 3. to be placed at the end of the article
3. The States Parties shall assure to persons with disabilities within the
jurisdiction effective protection and remedies, through the competent national
tribunals and other State institutions, against any unlawful deprivation
of liberty which violate his human rights and fundamental freedoms contrary
to this Convention, as well as the right to seek from such tribunals just
and adequate reparation or satisfaction for any damage suffer as a result
of such acts.
(Based on article 6 of CERD (this can be included as a specific provision
for this article or as a general provision for reparations against all acts
contrary to this Convention))
New para 4. to be placed at the end of the article –
4. The States Parties shall commit to make a thorough revision of their
legal frame, in criminal and civil matters as well as in execution of sentences,
in order to take into consideration the different types of disabilities
and adapt their legal frame to guarantee the respect of the human rights
of the persons with disabilities who are deprived of their freedom for the
commission of a crime.
OHCHR
See references on international human rights conventions and jurisprudence
WHO
Article 10 Liberty and security of the person
WHO recognizes that free and informed consent should form the basis for
meeting the health and rehabilitation needs of persons with disabilities.
The issue of informed consent relates to voluntary as well as involuntary
treatment in hospitals including rehabilitation settings and involuntary
treatment in community settings. In this context, WHO believes that “consent
cannot be lawful if it is accompanied by a threat or an implied threat of
compulsion or if appropriate alternatives to the proposed treatment are
not offered for consideration” (p.24) (WHO, 2003).
National
Human Rights Institutions
NATIONAL HUMAN RIGHTS INSTITUTIONS
Interventions at the Third Session:
Article 10
National Human Rights Institutions would like to support the European Union’s
proposal to include another paragraph in Article 10 as a new paragraph 3
which would provide legal safeguards against arbitrary institutionalization
which we believe is a deprivation of the right to liberty and therefore
illegal. However, in the event that a restriction of liberty is necessary,
procedures established by law and legal safeguards must be applied. The
Convention should require a review of domestic legislation or the passage
of legislation to ensure that all procedures and legal safeguards ensure
the best interests of the person with disability in accordance with the
spirit of this convention.
Non-governmental organizations
BIZCHUT
Draft Article 10 – Liberty and Security of the Person
(a) Making the legal process accessible to a person with a disability
The right to legal procedures adapted to meet the specific needs of a person
with a disability - in all processes affecting the person - should be added.
This right includes among other things: legal representation and the opportunity
to be genuinely heard which includes making accommodations to investigative
and testimonial procedures to meet special needs. (See our comment 12(a)
below.)
(b) In the absence of criminal intent as a result of disability – there
is no criminal responsibility
We suggest the addition of a guideline that exempts a person with a disability
from criminal responsibility in cases where actions are carried out without
criminal intent, as a result of lack of control of physical action or lack
of ability to comprehend the meaning of the act or to abstain from it, due
to disability.
(c) Clause on protection from forced hospitalization, forced treatment
or forced institutionalization – should be inserted under this Article
(i) As of now, this issue is dealt with in Articles 11 and 12 (Freedom from
Torture or from Cruel, Inhumane or Degrading Treatment or Punishment, Freedom
from Violence and Abuse), and in relation to forced institutionalization
– also in Article 15 (Living Independently and Being Included in the Community).
In our opinion, the correct place to discuss protection from forced hospitalization,
forced treatment and forced institutionalization, is actually in this Article,
under the discussion and limitation of deprivation of the freedom of a person
with a disability. (In the case of forced institutionalization – additional
mention of this should remain in Article 15, connected to the right to life
in the community).
Our position is that there should not be total and complete negation of
forced hospitalization and forced treatment. Rather, the principle of protection
from forced hospitalization and forced treatment should be established,
together with conditions for minimal exceptions.
Hence, this issue should not be under the rubric of articles that totally
and completely negate issues such as torture, cruel and inhumane punishment,
violence, etc. We thus suggest that the treatment of this issue be moved
from Articles 11 and 12, to Article 10.
(ii) Exceptions to the rule: The rule should be protection of persons with
disabilities from forced hospitalization, and from forced intervention including
forced methods of treatment, with narrow exceptions to this rule, which
will be allowed only in accordance with procedural safeguards that provide
appropriate protection of the rights of persons with disabilities. (See
Article 11(2) and footnote 38, of the Convention.)
EUROPEAN
DISABILITY FORUM
Draft Article 10 Liberty and security of the person
EDF considers very important that no deprivation of the liberty of a person
is made on the ground of disability.
Paragraph 2 of article 10 is weaker than existing rights under international
law. It therefore should either be deleted or changed accordingly. Indent
d) of this paragraph should be kept.
INTERNATIONAL
SAVE THE CHILDREN ALLIANCE
Draft Article 10 - liberty and security
This article does not provide clear arguments or contexts to deprive disabled
children and adults of their liberty. Non-voluntary segregation of disabled
children and young people from their families is still common practice in
various parts of the world. For this reason we recommend a revision of this
article to ensure that any segregation and or institutionalisation on the
basis of disability and or perceived incapacity as such will be halted.
Furthermore the article seems to be primarily based on needs instead of
rights and does not become clear who defines the needs: the person him/herself,
the authorities or the professional(s).
Some thoughts for change
10.2.
• Non-voluntary deprivation of liberty only might be considered and or enforced
if the person is causing serious danger to himself or his/her environment
• Deprivation of liberty voluntarily can be considered if this prepares
or supports the person back to his/her own household, daily life and participation
in education, job, household or leisure. Another reason can be to provide
the necessary temporary respite to the carers
• Deprivation of liberty needs to be focussed on reintegration rather than
long term or permanent separation
JAPAN
DISABILITY FORUM
Draft Article 10> Liberty and Security of Person
Original Text of the Draft
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. 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.
JDF’s proposed amendment
Include the (d) into the chapeau of Article 10-2
“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:”
Reason
As Draft Article 10-2 may lead to misperception and misunderstanding that
deprivation of liberty of persons with disabilities is unavoidable, we suggest
to delete the provision and replace it with a new provision based on a radically
modified provision of Article 9 of the ICCPR taking specific needs of persons
with disabilities into account. Naturally, such a new provision should never
fall below the currently effective international human rights standards.
JDF’s Comment to para (a)
It is so ambiguously specified that it can be used in any form for any purpose.
Its wording about needs of persons with disabilities is ambiguous. It is
also uncertain that how such needs are determined or who determine such
needs. Regarding Article 10-2 (b), as it only supposes the situation of
arrest and detention, provision of information about court proceedings and
imprisonment should also be referred to.
Standards should be that; general accessibility to detention facilities,
and comprehensive programs and disability-related services in detention
centers are provided for the purpose of securing welfare of persons with
disabilities under detention, and reasonable accommodation to satisfy individual
needs should be provided under the condition that no one shall be compelled
to receive reasonable accommodation. 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), Bangkok Draft (Article 13-4 and -5) and
Mexico Draft(Article 10).
JDF’s Comment to para (c)
The provision under the i) allows 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 court may decide without delay
on the lawfulness of his detention and order his release if the detention
is not lawful. Thus, the provision in the draft is far below the standards
set out in Article 9-4.
The provision under the ii) is based on the assumption of irregular detention.
The regular review is made because of irregular detention based on disability,
thus representing a contradiction to what is provided in Article 10-1-(b).
LANDMINES SURVIVORS NETWORK
DRAFT ARTICLE 10 COMMENTS
Draft Article 10 is of particular significance, given the heightened exposure
to deprivation of liberty (particularly in the context of institutionalization)
faced by many people with disabilities. As drafted, Draft Article 10 does
not adequately address the various contexts in which deprivation of liberty
can occur for many people with disabilities (e.g. criminal context, civil
commitment context), which will be important to highlight if (as Footnote
35 indicates) Draft Article 10 is to be interpreted with broad application.
Draft Article 10 also does not adequately set forth the procedural safeguards
and standards of review to be utilized. For instance, Draft Article 10(2)(a)
assumes there will be occasions on which people with disabilities are deprived
of their liberty, and sets forth requirements to be observed in respect
of such deprivation. Notably, the protections as drafted do not provide
the level of specificity that one would expect, especially given existing
procedural safeguards in other relevant international instruments. Draft
Article 10(2)(a) importantly requires that people with disabilities deprived
of their liberty are to be “treated with humanity” but does not provide
any further elaboration on what it means to be treated with humanity. Although
the MI Principles do not reflect current thinking about disability within
the context of the social model, they do detail what it means to, for example,
treat someone who is institutionalized with humanity. (Cf. Principles for
the Protection of Persons with Mental Illness and the Improvement of Mental
Health Care, Principle 13)
Draft Article 10(2)(c) references the right to “prompt access to legal and
other appropriate assistance,” but it does not explicitly grant a right
to counsel, nor does it indicate who makes the determination of whether
the assistance is “appropriate” or how that determination should be made.
Draft Article 10(2)(c)(i) provides the right to “challenge the lawfulness
of the deprivation of liberty,” but it does not provide a right of appeal
from any decisions in that regard. On a related matter, as noted in Footnote
36, it is also unclear whether civil commitment is prohibited. If civil
commitment (a procedure frequently utilized to deprive people with disabilities
of their liberty) is permitted, it will be important to set forth the applicable
procedural safeguards and standards of review. In this regard, the Ad Hoc
Committee may wish to consider the increasing “criminalization” of due process
standards in the civil context, and reference procedural safeguards traditionally
utilized in the criminal context. (Cf. International Covenant on Civil and
Political Rights, Article 9)
WORLD BLIND UNION
LIBERTY AND SECURITY OF THE PERSON
Article 10:
Para (b), it must be total clear that PWD shall not be deprived of the right
to liberty in all aspects of life.
A more wide interpretation of “liberty” is needed, which could widen up
the concept and not only refer it to legal or jurisdictional interpretation.
WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY
Draft Article 10
2. States Parties shall ensure that [DELETE: 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) ] ADD: persons with disabilities are provided with
compensation in the case of unlawful deprivation of liberty, or deprivation
of liberty based on disability, contrary to this Convention.
WNUSP COMMENT: Paragraph 2(c)(i) articulates a lower standard than that
found in ICCPR article 9(4) which requires the opportunity to challenge
in a court the lawfulness of any official detention. The Human Rights Committee
has reiterated in General Comment 8 that “court control of the detention
must be available.”
The remainder of paragraph 2(a)-(c) is confusing and inadequate, considering
that detention based on disability is prohibited in paragraph 1(b) and thus
the focus needs to be shifted to the situations faced by persons with disabilities
subject to criminal arrest and detention or other forms of detention unrelated
to disability itself. Paragraph 2(c)(ii) is only relevant in situations
where there is an indefinite term of detention and has been developed particularly
in the context of detention based on disability. This provision should be
analyzed in comparison with international human rights norms addressing
detention in general, to determine whether it is necessary given the prohibition
of detention based on disability.
Subparagraph a is too vague to be of much use. Reference to the “needs”
of people with disabilities is unclear as to how such “needs” may be determined
or who decides what is needed. Standards should be articulated for systemic
accessibility of detention facilities and programs offered within them,
disability-related services that must be provided in order to ensure the
well-being of persons with disabilities under detention, and reasonable
accommodation to cover individualized requirements in an interactive manner
without forcing any person to accept an accommodation.
Subparagraph b is unobjectionable but reads oddly as the only such elaboration
of accessibility rights in the context of procedural justice. The Chair’s
draft text (article 14 paragraphs 4 and 5), the Bangkok draft (article 13,
paragraphs 4 and 5) and the Mexican proposal (article 10) provide a basis
from which to develop further work.
Home | Sitemap | About us | FAQs | Contact us |
© United Nations,
2006 |