Daily Summary related to Draft Article 10
LIBERTY AND SECURITY OF THE PERSON
Prepared by Landmine Survivors Network

Volume 3, #8
January 14, 2004

Morning Session
Commenced: 10:19 AM
Adjourned: 1:03 PM

LIBERTY AND SECURITY OF THE PERSON

WNUSP objected to the exception to the prohibition on arbitrary arrest in para 2. “PWD have the same rights to the same procedures as all other people who are being potentially deprived of liberty. There is no need and is discriminatory to establish a special case for PWD who are subjected to arrest and detention”. The language on motivation is not clear – discrimination in this convention includes both purpose and effect, and motivation only implies purposeful discrimination. “Will be motivated by” should be replaced with “will have the purpose or effect of discriminating based on disability.” Para 3 (a) is vague and reflects “a great need for elaboration of specific kinds of protections for PWD in the context of criminal or other arrest” both in terms of procedure and conditions of detention. Para 3 (c) (ii) assumes a context where deprivation of liberty is indefinite and therefore calling for regular review. This is typical for people who are detained on the basis of disability and not typical for people who are detained for other reasons. In discussing procedural guarantees, going below existing standards is unacceptable. Perhaps a more general existing right that allows a person to challenge the lawfulness of arrest and detention, the right of habeas corpus, for example could be considered as a substitute. With regard to civil commitment, this may not have wide applicability in other countries and could be replaced with the more general “civil detention based on the disability.” With regard to emergency situations in relation to the prohibition on arbitrary arrest in para 2, the ICCPR permits derogation from rights in emergency situations except where such derogation is based solely on the enumerated categories of discrimination. This is the minimum that this convention should also allow in permitting derogation, so that disability is on the same level as the other enumerated categories ICCPR and to prohibit derogation of rights in a national emergency based solely on a disability. The OHCHR pointed out that the CRC Committee has considered “placement” as constituting a deprivation of liberty, giving children a right to seek regular review. WNUSP recommended that given that the CRC is the single source, this point is more appropriately raised in the context of the detention of children only.

Japan found Para 3 (c) (ii) to be redundant because the government is not obligated to seek regular review of people without disabilities who have been detained. The last sentence in Para 3 (d) is also redundant, since any detention motivated by disability is by definition unlawful.

Canada agreed with WNUSP on the use of the word “motivated” in Para 2 and 3 (c) (ii) as this required an assessment of intention, and recommended that it be replaced by “based”. The last sentence of Para 2 also needed clarification. Para 3 (c) should be qualified with “where applicable” or “where necessary”. The sub items (c) and (d) cover issues not specific to disability and “inject uncertainty”.

Sweden noted that the legal safeguards in Para 3 need to be improved. Para 2 needs to be reworded to draw a distinction between lawful means of depriving someone of liberty and arbitrary arrest and detention. “Emergency situations” raises legal principles Iike derogation as well as a number of specific circumstances. For the purposes of this meeting it might be useful to mention a general statement on derogation, eg. that nothing in this convention should be taken to mean a change in the obligations in other conventions, that is typical of human rights treaties. However a discussion of this issue in relation to specific articles should be left to the AHC.

Mexico recommended that the Coordinator’s Text on equality before the law should be dealt with in conjunction with the Coordinator’s Text on liberty and security of the person. In either Article, a recommendation to the AHC could be footnoted referencing the need to consider minimum legal safeguards and due process of law for PWD. Paragraphs 1, 2, 3 (c) should be redrafted bearing in mind that their precepts are already embodied in the CRC and ICCPR. Additional information with regard to emergency situations would be helpful.

Ireland approaches this issue from the standpoint of the EU proposal and is comfortable with this Article. “Civil commitment” is referred to as” involuntary admission” in Irish law; in no case does this apply solely due to disability. Because “it is not always recognized by states that involuntary admission is a form of detention in the sense meant by the ICCPR”, it was necessary to restate the concepts and retain the safeguards in Para 3. Every person can challenge the lawfulness and reasonableness of involuntary admission. In addition habeas corpus guarantees allow any case of a deprivation of liberty to come before a court. “Compensation” in (d) could be replaced with “effective remedies” to be consistent with other human rights treaties. The Coordinator noted that “compensation” has been used in the context of the ICCPR.

China echoed the “well-grounded” concerns of other delegates highlighting the complexity in the legal assistance issues here and recommended bracketing 3 (c) (i), deleting 3 (c) (ii). This needs more input from governments.

Lebanon drew the distinction between legislation and practice in how disabled people are more likely to be subject to unjustified arrest or detention. Strengthening the article on protection would be one way to address this problem.

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