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Article 15 - Freedom from torture or cruel,
inhuman or degrading treatment or punishment
Background Documents | Article 15 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Fourth Session
Governments
Non-governmental organizations
Children's Rights Alliance for England
International Disability Caucus
Landmine Survivors Network
People 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 11 – FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
We support paragraph 2 as drafted by the Working Group, incorporating into
the reference to "medical or scientific experimentation" the proposal
by Thailand to refer to "other forms" of experimentation. In today's
world, experiments may be invented which are different from those of the
medical and scientific areas (for example, experiments of an advertising
or commercial nature). The text should therefore read:
2. "In particular, States Parties shall prohibit persons with disabilities
from medical, scientific or other forms of experimentation..."
Observation:
Forced institutionalization is dealt with in this article, and also in paragraph
2 of the following article on freedom from violence and abuse. We therefore
recommend that it should be left in this article, which is the most appropriate
location.
If not, the Ad Hoc Committee should consider combining the two articles
into one, which under the title of the current article 12 would include
a paragraph dedicated solely to freedom from torture or other cruel, inhuman
or degrading treatment or punishment.
EUROPEAN UNION
Draft Article 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT.
1. States Parties shall take all effective legislative, administrative,
judicial, educational or other measures to prevent persons with disabilities
from being subjected to torture or cruel, inhuman or degrading treatment
or punishment.
2. In particular, States Parties shall prohibit, and protect persons with
disabilities from, medical or scientific experimentation without the free
and informed consent of the person concerned, and shall protect persons
with disabilities from forced interventions or forced institutionalisation
aimed at correcting, improving, or alleviating any actual or perceived impairment.
EU Proposal: EU suggests the deletion of “and shall protect persons
with disabilities from forced interventions or forced institutionalisation
aimed at correcting, improving, or alleviating any actual or perceived impairment
” from Paragraph 2.
INDIA
Interventions made at the Fourth Session:
No.13
Article 11: Freedom from torture or cruel, inhuman or degrading treatment
or punishment
We reiterate our position on para 2 and thank South Africa for its support.
We lend our support to China on their view to delete para 3 from this article.
MEXICO
Article 11
(paragraph 3)
English:
3. In order to monitor the living conditions and the facilities of places
where persons with disabilities are placed, visits should be undertaken
by representatives of national bodies or, as appropriate, by representatives
of international bodies, in conformity with pertinent international instruments.
NEW ZEALAND
ARTICLES 11 AND 12:
Covering issues of forced intervention and institutionalisation and - “freedom
from torture or cruel, inhuman or degrading treatment or punishment and
freedom from violence and abuse”
• Historically, institutional and in-voluntary care or treatment for disabled
people has violated many individual human rights. Therefore, it is not surprising
that clauses preventing or limiting institutional approaches to disability
are dotted throughout the draft text in particular, Articles 10, 11.2, 12.2,
21(j) and (k) and 15.
• Discussion at the third session indicated that the current repetitive
and unfocussed organisation and wording of text around issues related to
institutional and in-voluntary care or treatment is not satisfactory and
somewhat confusing.
• New Zealand believes these important issues need to be more effectively
dealt with in the convention. Therefore to take into account the various
suggestions and comments at the third session on Articles 8, 9,10, 11, 12
and 21 we are proposing a reformulation of Article 11.
• New Zealand considers that there are three useful distinctions to be made
around human rights in relation to forced interventions and forced institutionalisation.
• Using positive language we could say that the aim is to promote:
i. liberty or freedom from arbitrary detention in institutions (covered
in Article 10);
ii. choices and responsibilities, equal to others, to move around and live
where and as you wish in a community setting (covered in Article 15); and
iii. free and informed consent to any intervention (medical, spiritual,
scientific, experimental etc).
• In the Working Group text the second part of Article 11 is about the right
to refuse treatment and scientific experimentation. This is a major issue
for disabled people in relation to historical and continuing institutional
treatment and in-voluntary treatment.
• We think that the rights pertaining to these issues warrant emphasis through
the use of an article solely focussed on them.
• We propose to bring clauses 11.2, 12.2, 21(j) and (k) together in a revised
Article 11 which addresses the right to free and informed consent to any
intervention (medical, spiritual, scientific etc). We propose to incorporate
related amendments around in-voluntary treatment proposed by some States,
such as the European Union during discussions on Article 10.
• We also propose to move the aspects of the Working Group Article 11 related
to torture and cruel or inhumane treatment to Article 12.
• We acknowledge a view, put forth by NGOs, that any mention of the use
of involuntary treatment albeit in relation to safeguards will in fact diminish
existing rights for disabled people. In particular those rights elaborated
on in draft Article 9 of non-discrimination on the basis of disability.
• We also acknowledge that there are exceptional circumstances which many
States consider do justify the use of involuntary treatment. And that where
this occurs these circumstances must be prescribed by law, not be based
solely on disability and that there must be legal safeguards around any
use of in-voluntary treatment.
• New Zealand has developed a proposal which might offer a solution to the
tension between these two positions.
• Our proposal is derived, in part, from the Europeans Union’s proposals
on Article 10 around forced institutionalisation. We agree with the European
Union that forced institutionalisation should be considered illegal, save
in exceptional circumstances. However we consider the exceptional circumstances
should apply only to in-voluntary treatment which is a subset of ‘forced
institutionalisation’.
• We also suggest that in addition to the safeguards proposed by the European
Union, States should also be obligated to ensure that the use of in-voluntary
treatment is minimised through the provision of better care thereby encouraging
voluntary treatment and through the promotion of alternatives such as advance
directives. Also that it should always be provided in the least restrictive
setting possible.
• Further, we feel that in the spirit of minimising the use of in-voluntary
treatment and of the right to free and informed consent we should prefix
the safeguard provisions with the words “in countries where in-voluntary
treatment has not been abolished it shall only be used in exceptional circumstances
…”etc followed by the safeguard provisions.
• We have distributed our proposal in written form, as it is a substantial
deviation from the Working Group text. We do not intend to read it all out
at this point but hope that it might be considered during the informal discussions.
We also suggest these discussions should ideally be clustered with those
on Articles 10,12 and 15.
Proposed wording for Article 11
FREE AND INFORMED CONSENT TO INTERVENTIONS
• States Parties shall take the necessary measures to ensure that medical or
scientific, experimentation or interventions, including corrective surgery,
aimed at correcting, improving or alleviating any actual or perceived impairment,
are undertaken with the free and informed consent of the person concerned
• Such measures shall include the provision of appropriate and accessible information
to persons with disabilities and their families
• States Parties shall accept the principle that forced institutionalisation
of persons with disabilities on the basis of disability is illegal.
• In countries where in-voluntary treatment has not been abolished it shall
only be used in exceptional circumstances prescribed by law and its use shall
be minimised through the active promotion of alternatives
• States Parties shall ensure in any case of involuntary treatment of persons
with disabilities that:
- it is undertaken in accordance with the procedures established by law and with the application of appropriate legal safeguards
- the law shall provide that the interventions are in the least restrictive settings possible and the best interests of the person concerned will be fully taken into account
- forced interventions are appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.
Non-governmental organizations
CHILDREN'S RIGHTS ALLIANCE FOR ENGLAND
Article 11
Freedom from torture or cruel, inhuman or degrading treatment or punishment
1. States Parties shall take all effective legislative, administrative, judicial,
educational or other measures to prevent persons with disabilities from being
subjected to torture or cruel, inhuman or degrading treatment or punishment.
2. In particular, States Parties shall prohibit, and protect persons with
disabilities from, medical or scientific experimentation without the free
and informed consent of the person concerned, and shall protect persons with
disabilities from forced interventions or forced institutionalization aimed
at correcting, improving or alleviating any actual or perceived impairment.
3. Forced medical or other treatment of children with disabilities solely
on the basis of their disability shall be prohibited, irrespective of whether
parents, legal guardians or others with legal responsibility support it.
INTERNATIONAL DISABILITY CAUCUS
Draft Article 11: Freedom from torture or cruel, inhuman or degrading treatment
or punishment
1. States Parties shall take all effective legislative, administrative, judicial,
educational or other measures to prevent persons with disabilities from being
subjected to all forms of torture or cruel, inhuman or degrading treatment
or punishment.
2. In particular, States Parties shall prohibit, and protect persons with
disabilities from, medical or scientific experimentation without the free
and informed consent of the person concerned, and shall protect persons with
disabilities from forced interventions or forced institutionalisation aimed
at correcting, improving, or alleviating any actual or perceived impairment
LANDMINES SURVIVORS NETWORK
Draft Article 11 - FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT
OR PUNISHMENT
SYNTHESIS OF PROPOSALS
1. States Parties shall take all effective legislative, administrative, judicial,
educational or other measures to prevent persons with disabilities from being
subjected to torture in all its forms or cruel, inhuman or degrading treatment
or punishment.
2. In particular, States Parties shall prohibit, and protect persons with
disabilities from, medical, scientific and other forms of experimentation
without the free and informed consent of the person concerned, and shall protect
persons with disabilities from forced interventions or forced institutionalization
aimed at correcting, improving, or alleviating any actual or perceived impairment.
3. Having regard to the relevant provisions of international instruments,
living conditions and facilities of places where persons with disabilities
are placed shall be monitored through the realization of visits by national
or international bodies.
COMMENTS
Draft Article 11 addresses one of the most fundamental of human rights, namely,
the prohibition against torture and other cruel, inhuman and degrading treatment
or punishment. The provision tailors the existing law of torture to the specific
situation of people with disabilities, in keeping with treaty body applications
of that law. In short, it addresses the specific vulnerabilities of people
with disabilities to torture and related human rights abuses. The inclusion
of this article received strong support and no delegation advocated the deletion
of the article from the draft Convention.
Several delegations put forward suggestions pertaining to the structure and
placement of Article 11 in the draft Convention. While it was suggested that
Draft Article 11 could be merged with Draft Article 12 (Freedom from Violence
and Abuse), this proposal is unsound. While both articles address infringements
on the fundamental human rights and dignity of people with disabilities, prevailing
approaches, including the CRC, address these two issues separately for a variety
of reasons. One reason for maintaining the separation of articles relates
to the fact that torture is usually (but not always) committed by State actors
in the public sphere, whereas violence and abuse so often occurs in the private
sphere by private actors.
Draft Article 11(1): The proposed insertion of the language “in all its forms”
(Algeria) is an important addition and improves the text, building as it does
upon the extensive interpretations of treaty monitoring bodies and important
applications of the term “torture” to contexts beyond the criminal detention
sphere.
Draft Article 11(2): Consistent with treaty body jurisprudence, forced interventions
and institutionalization do indeed fall within the parameters of conduct prohibited
under the international law of torture, cruel, inhuman and degrading treatment.
Accordingly, it is appropriate to maintain the reference to such conduct in
Draft Article 11. The language in Draft Article 11(2) regards the requirement
of free and informed consent in the context of medical, scientific and other
forms of experimentation, commonly ignored by professionals in many mental
health facilities. (Cf. United Nations, Sub- Commission on Prevention of Discrimination
and Protection of Minorities, Principles, Guidelines and Guarantees for the
Protection of Persons Detained on Grounds of Mental Ill-Health or Suffering
from Mental Disorder, Report by Special Rapporteur, Erica-Irene A. Daes, U.N.
Doc, E/CN/4/Sub.2.1983/17/Rev.1 (1997), para. 225) In this regard, the Human
Rights Committee has affirmed that special protection is necessary in the
case of persons not capable of giving valid consent, and that such persons
should not be subjected to any medical or scientific experimentation that
may be detrimental to their health. (Cf. Human Rights Committee, General Comment
No. 20 (replacing General Comment No. 7), para. 7; see also Committee on Economic,
Social and Cultural Rights, General Comment No. 12, para. 8)
If the Ad Hoc Committee decides that forced medical intervention or forced
institutionalization are permitted in certain circumstances, then detailed
protections established by law and legal safeguards are essential. These would
include, at a minimum: (1) any decision must be made by an independent, impartial
tribunal; (2) right to counsel and related due process protections; decisions
must be subject to regular review; and (3) there must be a right of appeal
to an independent court.
Draft Article 11(3): The addition of a provision on monitoring segregated
settings is an important one as institutions and other segregated settings
where people with disabilities are detained are frequently ignored in mainstream
human rights monitoring. This addition also reflects the significant evolution
in international law in this area. (Cf. Optional Protocol to the Convention
against Torture and CRC, Article 40(2))
Remedies: It is critical that remedies be available for any violations of
this provision. Several delegations have suggested that there should be a
general remedies section that applies to any violation of the Convention.
Remedies would include immediate termination of the prohibited acts as well
as appropriate redress. (See separate analysis of this, “Remedies” at Draft
Article 4(2).)
PEOPLE WITH DISABILITY AUSTRALIA
Article 11:Freedom from Torture or Cruel, Inhuman or Degrading Treatment
or Punishment
We strongly support the terms of draft Article 11: Freedom from Torture or
Cruel, Inhuman or Degrading Treatment or Punishment but suggest an additional
paragraph proscribing non-therapeutic sterilisation of children with disability
and adults with decision-making disability as inhuman and degrading treatment.
This paragraph might be in the following terms:
States Parties to this convention shall take immediate and effective measures
to eliminate the practice of non-therapeutic sterilisation of children and
young people with disability, and adults with decision-making disability,
on the basis that this constitutes inhuman and degrading treatment.
It is also suggested that this article must proscribe the placement of persons
diverted to the mental health system from the juvenile or criminal justice
system on the ground of mental illness from placement in criminal justice
facility. It is strongly felt that this must be clearly characterised as cruel,
inhuman, degrading treatment and punishment. Services and supports for such
individuals must be provided in appropriate mental health services located
in the general community. Health and social services should never be used
as a form of punishment.
The paragraph might be in the following terms:
States Parties to this convention shall take immediate and effective measures
to ensure that persons diverted from the juvenile and criminal justice systems
on the ground of mental illness are provided with appropriate services and
supports in the general community, and are not incarcerated in juvenile or
criminal justice facilities.
The final phrase of paragraph 2 in Article 11 is repeated in paragraph 2 of
Article 12. It might therefore be deleted from Article 11.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA,
BELARUS & MOLDOVA
Article 11
Freedom from torture or cruel, inhuman or degrading treatment or punishment
Issue 2, after the words “In particular, States Parties shall prohibit, and
protect persons with disabilities from medical or scientific experimentation
without the free and informed consent” instead of “of the person concerned”
to use “of a person with disability or his/her legal representative”