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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions

Daily summary of discussions related to

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 under confinement.”

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.

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