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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
Governments
European Union
India
Mexico
UN System organizations
OHCHR
WHO
National Human Rights Institutions
Ontario Human Rights Commission
Non-governmental organizations
Bizchut
European Disability Forum
Indian NGO Consultative Meeting
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
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
Articles 11 and 12 (merged)
Freedom from Torture, Degrading Treatment, Violence and Abuse
1. States Parties shall take all effective legislative, administrative,
judicial, or other appropriate measures to prevent persons with disabilities
from being subjected to torture or cruel, inhuman or degrading treatment
or punishment and violence and abuse.
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.
In instances of reduced or temporarily reduced capacity to give this consent,
appropriate objective, neutral legal procedure and safeguards should be
provided in the best interests of persons with disabilities and legal guardians/surrogate’s
consent should be obtained where third party interests are concerned/harmed.
3. States Parties recognize that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse. States Parties shall therefore take all appropriate legislative,
administrative, social, educational and other measures to protect persons
from disabilities, both within and outside the home, from all forms of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
4. States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation
and abuse, especially against children and women with disabilities, by taking
measures, inter alia, for providing support for persons with disabilities
and their families, including the provision of information and other appropriate
forms of assistance and support. In such cases, States Parties shall take
all appropriate measures to promote their physical and psychological recovery
and reintegration into communities.
5. States Parties shall ensure that all facilities and programmes, both
public and private, where persons with disabilities are placed together,
separate from others, are effectively monitored to prevent the occurrence
of violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual exploitation and abuse.
6. States parties shall endeavour to ensure the identification, reporting,
referral, investigation, treatment and follow-up of instances of violence
and abuse. The provision of protection services, and where necessary, access
to judicial interventions should also be made available
MEXICO
Art. 11 - Freedom from Torture or Cruel, Inhuman or Degrading Treatment
or Punishment
May 26th, 2004
New paragraph.
3. In order to monitor living conditions and facilities of places where
persons with disabilities are placed, international instruments shall be
applied, as appropriate including, the Optional Protocol of the Convention
against Torture, for the realization visits by national or international
bodies to detention centers.
UN System organizations
OHCHR
See references to international human rights conventions and jurisprudence
WHO
Article 11 - Freedom from torture or cruel, inhuman or degrading
treatment or punishment
WHO recognizes the importance of this article and affirms that no one shall
be subjected without his free consent to medical or scientific experimentation
(WHO, 2003). In this context, WHO would like to highlight the importance
of obtaining consent from all individuals with disabilities who have the
capacity to consent to voluntary treatment in hospital as well as community
settings.
WHO would also like to highlight that involuntary admission should be permitted
only if both the following criteria are met: (a) there is evidence of mental
disorder of specified severity as defined by internationally accepted standards;
and (b) there is a likelihood of self-harm or harm to others and/or of deterioration
in the individual's condition if treatment is not given (WHO, 2003). All
individuals admitted involuntarily should have a specific right to appeal
against their involuntary hospitalization both to the managers of the institution
concerned and to a review board or tribunal (WHO, 2003).
WHO would like to reiterate that all persons should be assumed to have capacity
unless there is evidence to the contrary established by appropriate legal
due process. (1) Furthermore, WHO believes that consideration should be
given to options for advanced directives and or the authorization of an
independent board when an individual is unable to consent (United Nations,
1991). A review board shall periodically review the cases of individuals
admitted involuntary at reasonable intervals as specified by domestic law
(United Nations, 1991).WHO believes that the lack of such provisions may
likely to result in no research being conducted that would enhance the quality
of life of persons with disabilities and may have implications on long term
care of persons with disabilities in need of chronic care.
National Human Rights Institutions
ONTARIO HUMAN RIGHTS COMMISSION
Article 11 – Freedom from torture or cruel, inhuman or degrading treatment
or punishment
The Commission is supportive of this draft Article. The Commission’s report,
The Opportunity to Succeed: Achieving Barrier-free Education for Students
with Disabilities, addresses the possible discriminatory impact of the discipline
provisions of Ontario’s Safe Schools Act on students with disabilities and
students from racial minority groups. The report recommended that educators
be required to use discretion in their application of the Safe Schools Act
and assess whether a student with a disability has been accommodated appropriately
before that student can either be suspended or expelled. The report also
recommended that school boards collect and analyze data on which students
are being disciplined under the Act to ensure that the legislation is not
having an adverse impact on individuals protected by the Ontario Human Rights
Code.
Non-governmental organizations
BIZCHUT
Draft Article 11 – Freedom from torture or cruel, inhumane or degrading
treatment or punishment
(a) Repositioning the issues of forced hospitalization, forced treatment
and forced institutionalization in other articles.
As detailed in our comment 10(c) above, in our opinion the correct place
for clause 2 in this Article, in relation to forced hospitalization, treatment
and institutionalization, is in Article 10 of the Convention.
In relation to the protection of persons with disabilities from forced intervention,
and from medical or scientific experimentation without the free and informed
consent of the person concerned – the issue is related to in Article 21
(Right to Health and Rehabilitation, clauses (j) and (k)). Indeed, in our
opinion, Article 21 is the accurate place for this issue, meaning, that
it does not need to be included in
Article 11. (See clause (b) below.)
(b) Torture or cruel, inhumane or degrading treatment or punishment (clause
1) – are prohibited across the board
As we commented earlier on Article 8 (Right to Life), also in this case,
mention of the prohibitions in article 11(1) – and only relating to persons
with disabilities – calls into question a prohibition that should be obvious,
potentially causing the discourse on rights of people with disabilities
to regress.
Conclusion: In our opinion, there is no place for Article 11 in
the Convention, as follows: We suggest that Article 11(1) not be included
in the Convention. As regards Article 11(2) - in our opinion the clause
should be divided between Articles 10, 15 and 21, as described in this comment
and in the comment to Article 10.
EUROPEAN DISABILITY FORUM
Draft Article 11 Freedom form torture or cruel, inhuman or degrading treatment
or punishment
EDF strongly supports the prohibition of forced interventions and forced
institutionalisation in this article as well as in draft article 12.
INDIAN NGO CONSULTATIVE MEETING
Draft Article 11
19. Additional text is suggested to article 11 therefore the new subpara
3 of article 11 should read as “To ensure that the best interest of the
person is protected in the event the person is passing through a phase in
which he or she is unable to communicate free consent, no intervention shall
occur unless a form of consent is given on their behalf by a duly appointed
nominee by the person concern or by an impartial authority established under
the law.”
20. With regard to para 1 of article 12, the participants suggested enlargement
of the heads of prevented actions and suggested inclusion of word “abduction”.
The modified text of 12-1) should therefore be read as “States Parties recognise
that persons with disabilities are at greater risk, both within and outside
the home, of violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual exploitation and abuse. States
Parties shall, therefore, take all appropriate legislative, administrative,
social, educational and other measures to protect persons with disabilities,
both within and outside the home, from all forms of violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including
sexual exploitation, abuse and abduction.”
21. Similar addition of the word “abduction” is suggested for article 12-3.
Therefore the article 12-3 should read as “States Parties shall also take
all appropriate measures to prevent violence, injury or abuse, neglect or
negligent treatment, maltreatment or exploitation, including sexual exploitation,
abuse and abduction, by ensuring, inter alia, support for persons with disabilities
and their families, including the provision of information.”
22. Under 12-5 similar addition of the word “abduction” is suggested. Therefore
the article 12-5 should be read as “Where persons with disabilities are
the victim of any form of violence, injury or abuse and abduction, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse, States Parties shall take all appropriate measures to promote
their physical and psychological recovery and social reintegration.
23. With regard to article 12-6, addition of text was suggested. The 12-6
should be read as “States Parties shall ensure the identification, reporting,
referral, investigation, treatment and follow-up of instances of violence
and abuse, and the provision of protection services and, as appropriate,
legal remedies, judicial intervention and judicial involvement.
INTERNATIONAL SAVE THE CHILDREN ALLIANCE
Draft Article 11 – freedom from cruel, inhuman and degrading treatment
This section covers very different issues, deserves more coherence with
art 10 &12 and thus requires fundamental change.
Some thoughts for change
11.1 This article does not seem to cover the increase in threatening and
inflicting cruel acts aimed to maim and traumatise children and adults in
situations of upheaval, conflict and war. This is especially true in the
context of recruiting child-soldiers and street-gangs; but also where disabled
children are separated from their family or live in institutions.
11.2 see comments for article 10
JAPAN DISABILITY FORUM
Draft Article 11> Freedom from torture or cruel, inhumane or degrading
treatment or punishment
Original Text of the Draft
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.
JDF’s Comment to this part
In Article 11-2, the obligatory provision for the prohibition of “medical
or scientific experimentation” and “forced interventions or forced institutionalization”
as well as the obligatory provision for the protection of persons with disabilities
from these should be kept.
LANDMINES
SURVIVORS NETWORK
DRAFT ARTICLE 11 COMMENTS
Although medical experimentation has previously been addressed in the context
of prohibitions against torture, cruel, inhuman or degrading treatment or
punishment (Cf. International Covenant on Civil and Political Rights, Article
7), it is unusual for forced medical treatment and institutionalization
to be addressed in the same context, as is done in Draft Article 11(2).
In order to better elaborate protections and legal safeguards against forced
treatment and institutionalization, it may be better to address these issues
in a separate article, as well as to ensure that legal safeguards in related
articles (such as Draft Article 10) are comprehensively addressed.
Footnote 38 indicates the desire by some members of the Working Group to
permit forced treatment and forced institutionalization – a position not
favored by most disability advocates. If this approach is considered by
the Ad Hoc Committee it will be particularly important to address what legal
safeguards to employ in such situations.
WORLD
BLIND UNION
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Article 11:
This Article must focus on the actions undertaken by states.
WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY
Draft article 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
May 26, 2004
Article 11 obligates states to prevent torture and other ill treatment of
people with disabilities, in particular, medical or scientific experimentation
without the free and informed consent of the person concerned, and forced
interventions or institutionalization to correct, improve or alleviate any
actual or perceived impairment.
This is crucial for people with psychosocial disabilities. World Network
of Users and Survivors of Psychiatry is familiar with situations all over
the world where people are subjected to invasive and harmful psychiatric
procedures as well as experimentation, without their consent.
These procedures range from psychosurgery and electroshock without anesthesia,
to forced and coerced administration of drugs that interfere with our mental
functioning and distort our personalities.
Such interventions violate the international human rights norm prohibiting
torture, under certain conditions. The definition of torture in the Inter-American
Convention to Prevent and Punish torture includes:
the use of methods upon a person intended to obliterate the personality
of the victim or to diminish his physical or mental capacities.
Inter-American Convention to Prevent and Punish Torture, Article 2
When psychiatric interventions are used against the will of any person to
interfere with the person’s capacity to produce certain kinds of thoughts,
destroy the person’s existing psychological makeup, or prevent the person
from carrying out actions, this fits within the definition of torture in
the Inter-American Convention. This concept is closely related to the freedom
of thought enshrined in ICCPR article 18, which is not subject to any limitations
or derogations.
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