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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
Seventh Session
Governments
Non-governmental organizations
International Disability Caucus
Comments, proposals and amendments submitted electronically
Governments
JOINT PROPOSAL - ARGENTINA
on behalf of Brazil, Chile, Colombia, Costa Rica, Jamaica, Mexico, Panama and Uruguay
Article 15
1. No one person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
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.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
Revised Proposal for Article 15 (par. A & B)
"People with disabilities have the equal opportunity to choose their place of residence and are not obligued to live in an institution or in a particular living arrangement, unless being neccesary".
Article 15
EU Proposal: The EU can accept the text of this article.
1. No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 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.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
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Article 15
1. No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 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. States Parties shall take all effective legislative, administrative, judicial 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.
Article 15
1. No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 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.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
Proposal for article 15 (paragraph 1)
1. No person with disabilities No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
Justification: We are merging the first part of paragraph 1 with the entire paragraph 2 with the aim to have the same approach as we had in article 10 “Right to life”.
In this important article we want to have a general prohibition to any kind of torture or cruel, inhuman or degrading treatment or punishment for everybody without distinction and at the same time, taking into account the specific objective of this Convention, to compromise States Parties to take all effective measures to make sure that persons with disabilities are not going to be subjected to this kind of treatment.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS
Chairman’s text as revised by the IDC
Article 15
1. No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation (ADD “and interventions aimed at correcting, improving or alleviating any actual or perceived impairment”) without the free and informed consent of the person concerned.
(JUSTIFICATION: Characterizing forced interventions correctly as a form of torture or other ill treatment would restore dignity to survivors and ensure that the practice is forbidden from this point onwards.)
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
(INSERT REDRAFTED PARAGRAPH MOVED FROM ARTICLE 17:
3. Every person with a disability has the right to have his or her physical, mental and moral integrity respected.)
Intervention on behalf of the International Disability Caucus on Article 15, Freedom from Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
January 19, 2006
Unconsented interventions related to a disability affect a wide range of people with disabilities. People with HIV/AIDS faced the risk of quarantine and involuntary interventions, especially early in the AIDS crisis. People with physical disabilities have been coerced into having surgeries that are painful and ineffective. Deaf people are being urged to have cochlear implants, a type of surgery that only changes but does not eliminate the disability, rather than address their needs as a linguistic community through the recognition of sign languages. But I want to primarily address psychiatric interventions since that is the area where laws explicitly permit interventions to be done against a person’s will – in violation of our human rights.
In paragraph 1, we would add “and interventions aimed at correcting, improving or alleviating any actual or perceived impairment” after “medical or scientific experimentation” so that it would read,
No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation and interventions aimed at correcting, improving or alleviating any actual or perceived impairment without the free and informed consent of the person concerned.
This is an important application of the norm prohibiting torture and other cruel, inhuman or degrading treatment or punishment in the disability context.
1. The Human Rights Committee has said in General Comment No. 20 that there is no clear line between torture and the other forms of ill-treatment prohibited under ICCPR article 7. Regional courts, while reserving the term “torture” for the most egregious forms of ill-treatment, also contemplate that there is no fixed line between torture and ill-treatment, but that conduct now considered inhuman and degrading may in the future be regarded as torture. For this reason, the question of whether some, or all, forced interventions related to an impairment rise to the level of torture is not an impediment to including this prohibition in article 15 of our Convention. It should be clear that such interventions, which violate the autonomy, dignity, integrity and identity of people with disabilities, are in all cases inhuman and degrading.
2. The language currently proposed is a strengthening of the original working group text, since it requires prohibition of, as well as protection from, interventions related to an impairment that are performed without consent. This would bring such interventions on a par with medical and scientific experimentation, which is appropriate given their common history in relation to people with disabilities. Medical experimentation without consent, on people with disabilities who are inmates of institutions with no legal right to protect themselves and no freedom to leave, is the rule rather than the exception. Such experimentation, in a setting where doctors had little inclination or incentive to investigate non-violent types of treatment, resulted in today’s so-called “therapeutic treatments” such as electroshock and neuroleptic drugs, which paralyze the will and destroy human initiative. The first UN Special Rapporteur on Torture, Mr. P. Kooijmans, in 1986, listed “administration of drugs, in detention or psychiatric institutions” including “neuroleptics, that cause trembling, shivering and contractions, but mainly make the subject apathetic and dull his intelligence” as a form of physical torture. (1985/33 E/CN.4/1986/15, 19 Feb. 1986, para. 119, http://ap.ohchr.org/documents/dpage_e.aspx?m=103).
3. The use of forcible psychiatric treatment on political prisoners has been a cause for great concern in the human rights community. Where is the concern for the same treatment done to those who are being targeted because of a disability, which they cannot change and should not be asked to change, and which is for the most part a “disability” only because of social prejudice and failure to accommodate different ways of being? This year, a major human rights organization called for the immediate release of a political prisoner detained in a psychiatric institution who had received forcible injections of the neuroleptic drugs thorazine, trifluoperazine and cyclodol. Yet these human rights champions passed right over the other inmates, who were receiving the same treatment but were presumed to be mad rather than sane and thus deserving of no consideration.
4. The argument put forward in such cases is that for sane people, administration of neuroleptic drugs causes extreme suffering and anguish, but for mad people this is a therapeutic treatment, even a necessity, and if certified as such by medical professionals, it cannot be ill-treatment. This position naturalizes social prejudice as a medical judgment. Madness is not a disease but a disability – a profound expression of our humanity which nevertheless has been met with intolerance and outright discrimination. The medical model of madness treats our humanity as a disease and our resistance to suppression of our individuality as a sign of incompetence. At the present time, medical model services are virtually all that is available for people with psychosocial disabilities, and many people use them, including psychiatric medications. But the fact remains that the effects of these drugs are the same on mad people as on those who have not been so labeled, and while the consenting use could not be torture or other ill-treatment, administration without consent causes abject terror and actual changes to the experience of selfhood, with lasting harmful and traumatic consequences, and must be prohibited as an implication of the norm against torture and other ill-treatment.
I thank you Chair and distinguished delegates for your time and look forward to changing the paradigm in how we see torture in the disability context, and discussing what is necessary to ensure respect for the right of integrity of persons with disabilities in an unequivocal manner that does not perpetuate violent discrimination with personal, social, and human costs that are immeasurable.
Article 15
FREEDOM FORM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT and Article 17.
Mental Disability Rights International (MDRI) (Revisions and Reasons):
Parts of Article 17 should be integrated into Article 15.
[Reason] In the first place, both Article 15 and Article 17 are aimed at protecting the integrity of persons with disabilities. However, Article 17 was newly created with the purpose of separating forced interventions from Article 15. Consequently, Article 15 and Article 17 have overlapping aspects. Therefore, it would be better off to delete Article 17 of the Chairman’s draft altogether and create a new Article 15 integrating the relevant parts of Article 17. Regarding Paragraphs 3 and 4, if Paragraph 3 is based on equality with others, it is not necessary to expressly provide for this provision. For the same reason, Paragraph 4 is also unnecessary, and should be deleted.
[Proposal for a new Article 15]
1. Every person with disabilities has the right to have his or her physical, mental and moral integrity respected. In order to respect and ensure this right, State Parties shall take all effective legislative, administrative, judicial or other measures.
2. No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. To this end State Parties shall:
(a) Prohibit, and protect persons with disabilities from, medical or scientific experimentation and forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment without the free and informed consent of the person concerned,;
(b) Take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
Intervention on Draft Article 15
(Torture & Cruel, Inhuman and Degrading Treatment)
Thank you, Mr. Chairman.
On behalf of MDRI, I would like to respond to two suggestions raised by delegates in the discussion of Article 15 today. The first is that Articles 15 and 17 must be maintained as separate articles to accord with instruments of international human rights law, such as the ICCPR. The second, is that this separation will facilitate questions of interpretation regarding the issues that arise under each article. With great respect, I submit that both of these suggestions are incorrect.
First, international law does not in fact tend to separate into distinct and separate articles or ideas the prohibition on torture and cruel, inhuman or degrading treatment, on the one hand, and the right to physical, mental and moral integrity, on the other. The American Convention on Human Rights, for example, includes both sets of guarantees in a single provision: Article 5.
• American Convention, art. 5 (right to humane treatment).
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
While it is true that both the ICCPR (art. 7) and the European Convention on Human Rights (art. 3) guarantee expressly only against torture and cruel, inhuman and degrading treatment, it is crucial to emphasize that neither one contains a separate article on the right to personal integrity. That is, they do not separate one article from the other.
• European Convention, art. 3. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” [No provision on the “right to integrity”]
• ICCPR, art. 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. [No provision on the “right to integrity”]
Rather, the monitoring bodies for both instruments—the European Court (and previously Commission) of Human Rights and the UN Human Rights Committee—have tended to interpret cruel, inhuman and degrading treatment as a type of severe abuse of the right to physical, moral and mental integrity. Thus, the term “degrading treatment” has been defined to include any kind of act “that causes severe mental or physical suffering which, under those particular circumstances, turns out to be unjustifiable.” For its part, the U.N. General Assembly has declared:
The term “cruel, inhuman, or degrading treatment or punishment” has not been defined by the General Assembly, but it should be interpreted in such a way as to provide the broadest possible protection against abuse, be it physical or mental.
Based on these understandings, the Inter-American Commission on Human Rights has held that situations that lead to “well-founded fear for one’s life and physical integrity” or to a “state of uncertainty and fear” constitute cruel, inhuman and degrading treatment in violation of the American Convention. The Inter-American Court of Human Rights has found that certain acts that put an individual “in a particularly vulnerable position” can be considered cruel and inhuman treatment, harmful to the psychological and moral integrity of the person, in violation of article 5 of the American Convention.
Thus, in fact, separating out cruel, inhuman and degrading treatment from the right to personal integrity (physical, mental and moral) does not aid interpretation. To the contrary, it makes it more difficult. This is because both “rights” fall along a spectrum of personal-integrity abuses. On one end, you have violations of the right to integrity itself. As those violations become more severe—given both endogenous and exogenous factors affecting the person at issue—one runs up the spectrum, eventually entering the sphere of cruel, inhuman or degrading treatment, at the higher end of the personal-integrity spectrum. One can imagine torture being at the very end of that spectrum or—more appropriately (since the existence of torture has nothing to do with the “severity” of the suffering caused)—being an entirely different animal. Indeed, the existence of torture is typified by two elements—neither of which is necessarily required for a finding of a violation of either the “right to physical, mental or moral integrity” or the prohibition on “cruel, inhuman or degrading treatment.” These two elements include intentionality and official participation. While negligent or reckless conduct affecting a person’s physical, mental or moral integrity cannot—no matter how severe—constitute torture, they can constitute violations of either personal integrity itself or its more severe form of cruel, inhuman or degrading treatment.
Interpretation is thus not facilitated by dividing these elements into separate articles. Once a violation of personal integrity is established, a fact-finder must look at the particular circumstances of a given case before him or her to determine whether it constitutes a “mere” violation of the right to personal integrity or whether it rises to the level of cruel, inhuman or degrading treatment or even to torture. As the Inter-American Court of Human Rights has held:
The violation of the right to physical and psychological integrity of persons is a category of violation that has several gradations and embraces treatment ranging from torture to other types of humiliation or cruel, inhuman or degrading treatment with varying degrees of physical and psychological effects caused by endogenous and exogenous factors which must be proven in each specific case.
Thus, forced sterilization—a type of forced intervention affecting a person’s integrity—has at times been found to violate the right to integrity of a person and at other times (depending on the precise circumstances) been found to constitute cruel, inhuman or degrading treatment. Likewise, a broad array of conduct may fall to one end of the spectrum or the other end depending on the circumstances of each particular case. In this context, it does not make sense either to truncate one end of the spectrum (only prohibiting some unjustified abuses of integrity) or to separate the two ends at some arbitrary point in between and force a fact-finder to straddle two separate articles and hence two separate sets of allegations.
MDRI hopes the Committee can come back to these issues in its discussion of Article 17—the first paragraph of which should be merged with Article 15 in line with the IDC proposal (“Every person with a disability has the right to have his or her physical, mental and moral integrity respected.”). Again, there is no reason to separate these two articles. The American Convention does not do so. The ICCPR does not do so. The European Convention does not do so. Neither should this Convention.
Thank you, Mr. Chairman.
NATIONAL ASSOCIATION OF COMMUNITY LEGAL CENTRES (NACLC)
Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment
Article 15(1) emphasises the importance of informed consent in the participation of medical and scientific experimentation. However, it should be recognised that participation in medical trials may be beneficial to the person concerned in situations where they personally are unable to consent. In these situations, informed consent should be available through substituted or supported decision making. However, there should be some mechanism for independent oversight prior to approval being given. The NACLC notes that in the Australian state of New South Wales (NSW) the mechanism to enable participation in clinical trials is for a tribunal to review the trial and, if approval is given to the trial, then the substitute decision maker may consent to the person’s participation.*
The NACLC recommends that the Draft Convention include an interpretive article
that defines consent to include the consent available through substituted or supported decision making under Article 12.
Recommendation 11
That an interpretive Article that defines consent to include the consent available through substituted or supported decision-making be included in the Draft Convention.
Recommendation 12
That the option of participating in clinical trials with consent and with prior approval of the trial or equivalent by an independent judicial or quasijudicial decision-making body be included.
*See Part 5, Division 4A of the Guardianship Act 1987 (NSW), ss 45AA and 45 AB.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 15
There was general support for the article and no amendments or revisions to the Chair’s Text are proposed.