Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
summary of discussions related to
ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #3
May 26, 2004
Commenced: 3:16 PM
Adjourned: 5:50 PM
China suggested, in 10.2(b), inserting before “reasons”
the words “the applicable law and” because freedom of parties should
be based on fact and law. Regarding 10.2(d), it would delete the phrase
“or deprivation of liberty based on disability, contrary to this Convention”
because it is redundant with 10.1(b).
Changing the subject back to Article 9, Thailand supported
Costa Rica's proposed remedies section.
New Zealand referred to the comment in footnote 35
that it is not clear whether Article 10 deals with civil commitment,
or criminal incarceration, or both. It supported the LSN position that
this Convention cannot accept a lesser standard than the ICCPR, Article
9. New Zealand suggested an amendment similar to China's, in 10.2(b),
to add after Aformats as to@ the words Atheir legal rights and. The
words “at the time this occurs" should be added at the end of 10.2(b).
The EU's proposed new 10.3(i) is problematic because it may create an
internal contradiction in the document, and 10.3(ii) should be rewritten
to reflect the autonomy and dignity of PWD.
Argentina stated that there is a translation error
in 10.2(a), Spanish version: Inherent is the correct word, not imminent.
Ireland, on behalf of the EU, asked
that 10.2(d) be changed to: “Compensated following determination by
an appropriate authority that the deprivation of liberty has been unlawful.”
There needs to be an impartial authority to rule in such cases. The
EU’s 3 (bis) was written in response to concerns in footnote 36 about
whether this Article does or should prohibit civil commitments. This
concept should be dealt with as a question of deprivation of liberty,
instead of in Article 11. Ireland concurred with New Zealand that this
Convention should contain no lesser standard than that which is in the
ICCPR, Article 9. That however covers criminal detentions so its provisions
may not apply to health-related detentions at issue in this Convention.
Forced institutionalization is illegal. It needs to be clear that involuntary
commitment should only be allowed in exceptional circumstances, and
with clear legal safeguards. The EU's 10.3(i) (bis) provides stronger
safeguards than does the ICCPR. A central issue is consideration of
the best interests of the individual person with a disability. Consent
is the issue, therefore the AHC should think about adding “involuntary
institutionalization” because this may be a more appropriate term.
Japan proposed two changes. The words “seek regular
review of deprivation of their liberty” should be deleted from10.2(c)(ii),
because the right to appeal to a court is more important than review
by States; and the second “deprivation of liberty” should be deleted
from 10.2(d) to eliminate the redundancy.
Costa Rica suggested adding “fully respecting their
rights in conditions of equality” at the end of 10.2(a).
Canada proposed adding “solely” to 10.1(b), so it
would read “shall be based solely on disability.” It prefers deleting
10.2(d) and replacing it with a new paragraph 10.3 which tracks the
ICCPR, Article 9.5: “Any PWD who has been the victim of unlawful deprivation
of liberty shall have an enforceable right to compensation.” It is important
to make this Convention consistent with other Conventions.
Korea proposed adding in 10.2(a): “the degree of the
violation of freedom against persons with disabilities should not exceed
the general standard and proper provision of conveniences such as the
measure for ensuring a meeting with the guardian, assistive tools and
due medical service should be properly secured.”
Colombia proposed adding a new paragraph, either at
10.1(c) or at 10.2(e), as follows: “States Parties shall guarantee that
when persons with disabilities are detained or imprisoned that they
be placed in a site adapted to their particular circumstances of disability
respecting their right to participate in all activities necessary for
them to be reincorporated in social life.”
Uganda stated that there must be a legitimate reason
for deprivation, either an offense committed by the person or a potential
threat, and not on the basis of disability. In 10.1(b), the word “solely”
should be added before “on the basis of disability.” Uganda proposed
a new paragraph at 10.1(c), as follows: “when lawfully deprived of liberty
measures shall be taken to ensure that they receive rehabilitation while
Serbia and Montenegro supported the WG's Article 10
with the amendments proposed by the EU.
Mexico supported Argentina's translation correction
in 2(a). It supported addressing compensation issues more generally
in the Convention. In 10.2, “through a civil or criminal procedure”
should be added after “liberty.” In 10.1(a), the addition of the word
“solely” may cause problems by implying that PWD should be deprived
of their liberty.
Australia shares New Zealand's uncertainty about whether
this Article covers criminal or civil cases or both. It also supported
New Zealand's amendment to 10.2(b), adding legal rights, and supported
Canada in adding the term “solely” to 10.1(b).
Kenya approved of adding 10.1(c), as suggested by
Uganda, because disability and rehabilitation needs must be taken into
account during incarceration.
Jordan suggested that in 10.1(a), the phrase “based
on disability” should be deleted as redundant. In 10.2(a), “the needs
they have because of” should be deleted, due to its negative connotations,
and replaced with “the challenges they encounter due to.”
Norway agreed with the EU regarding the need to be
consistent with other Conventions. The article may need to deal with
civil and criminal cases in different parts to make it clearer.
The floor was opened for NGOs to offer comments.
DPI commented that due to disability many people are
subjected to cruel and inhuman treatment and abuse, both in and out
of institutions. NGOs do not support footnote 38 regarding permitting
forced institutionalization. Institutionalization should be defined
with reference to one’s separation from nondisabled people and the deprivation
of liberty and/or autonomy. Boarding schools chosen by deaf, blind and
deaf-blind students should not be considered institutionalization. No
level of institutionalization should be necessary.
WNUSP/Support Coalition International supported 10.1(b)
as drafted by the WG without any qualifications such as the term “solely.”
Deprivation of liberty based on disability encompasses civil commitment
and forced institutionalization as well as private deprivation of liberty.
If the AHC adds the term "solely," it would open the door
for States to deprive persons with disabilities of their liberty for
being “a danger to society,” which is discriminatory because people
without disabilities are not subject to the same standard. If there
is no crime, a State cannot lock up person who is not considered mentally
all or intellectually disabled. PWD should not be subject to a different
standard. There is a moral obligation to move society toward inclusiveness.
If a person with a disability is deprived of liberty, that imposes a
social disadvantage and therefore, under the social model, that is discrimination.
Inclusion International recommends changing Articles
10, 11, and 12 so that no law could force people to live in institutions.
Institutionalization is very destructive to PWD and leads to dehumanization
of both PWD and staff, leading to abuse. Institutions take over the
core of a person’s life. Contrary to the claim that institutions offer
quality care at an affordable price, the speaker insisted that they
are a costly form of segregation. Instead, PWD need integration in school,
housing, employment, and recreation.
PWD Australia/NACLC/Australian Federation of Disability
supported Article 10. A deprivation of liberty must not abrogate other
human rights, including the right to legal capacity and freedom from
torture. It supported an obligation to States to reform laws that result
in the arrest and detention of PWD (footnote 37). The least restrictive
alternatives should be used during permissible deprivations of liberty,
the minimum level appropriate to the circumstances. The guarantee in
10.2(b) needs to be more broadly stated so that PWD who are detained
will know the reason for their deprivation; it should include obligations
to provide information in alternate formats and support people. The
right to free legal assistance should be included. The word “solely”
should not be added because it would create a loophole allowing States
to deprive a PWD of liberty based on another reason, which by itself
would not be sufficient to deprive liberty gas. The Article needs to
explicitly state that deprivation of liberty should be broadly interpreted
to include civil commitment, mental health and immigration.
DPI Japan supported using the language in ICCPR to
avoid misinterpretation. The term “needs” in 10.2(a) is too ambiguous
and does not state how needs are determined nor who determines them.
This section needs to include physical and information access, general
programs and services, and reasonable accommodations must be provided
in detention facilities. (See Chair’s draft Article 14, Bangkok draft
Article 13, and Mexican draft Article 10). The standard in 10.2(c)(i)
is below that in the ICCPR, Article 9.4. DPI Japan remarked that 10.2(c)(ii)
contradicts 10.1(b). It recommended changing the language of the 10.2
chapeau as follows: “States Parties shall ensure that if PWD are unlawfully
deprived of their liberty or deprived of their liberty based on disability
contrary to this convention they are:” It supported WNUSP's recommendation
to keep 10.1(b) as drafted.
Save the Children expressed concern about this article.
The title and the grounds for permissible deprivation of liberty are
unclear. In many countries, the legal reasons for deprivation are questionable,
and this Article does not address that. The distinction between legal
reasons for deprivation of liberty and disability-based reasons is also
not clear. The Article does not provide protection for PWD. A drastic
revision is needed to ensure that institutionalization and perceived
incapacity will be halted. Save the Children commented that the drafted
article is based on needs and perceived needs instead of rights and
there is nothing about who defines the needs.
Support Coalition International disagreed with the
EU that involuntary institutionalization is not the norm. Forced institutionalisation
is the rule not the exception in the U.S. Legal safeguards are set up
to protect society, not to protect PWD; in contrast, this Convention
is about protecting PWD rights.
NHRI supported EU 3 (bis) providing legal safeguards
against arbitrary institutionalisation, an illegal deprivation of liberty.
Where a restriction of liberty is necessary, procedures in law must
be applied and States must review their own laws. The focus should be
in the best interests of the person.