Back to: Fifth Session of the Ad Hoc Committee
Summaries of the Fifth Session
Daily summary of discussion at the fifth session
27 January 2005
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UN Convention on the Human Rights of People with Disabilities
Ad Hoc Committee - Daily Summaries
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Volume 6, #4
January 27, 2005
ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON (continued)
The Coordinator reminded the delegates about the last
three days' process. Expertise from disability organizations has been
lacking, and as a result the discussion of Article 9 was unbalanced.
He suggested that, from time to time, disability organizations be invited
to speak. He will propose that the Chairman set up a plenary meeting
this afternoon because NGOs are allowed to speak at plenaries. This
should be a short session led by Ambassador Luis Gallegos after which
the Committee would resume informal sessions. He opened discussion of
Morocco expressed support for the Colombian proposal
for 10(2)(e), dealing with benefits to assist in reincorporating PWD
after unlawful deprivation of liberty. It also endorsed regular review
of institutions to ensure adherence to the Convention.
Canada stated its general preference for the WG text
of 10(2), which applies to all forms of detention. It proposed revising
the chapeau of Article 10 to make clear that the subparagraphs are minimum
guarantees, so as not to undermine the ICCPR and other Conventions.
Its revised chapeau would read: "States Parties shall ensure that
if PWD are deprived of their liberty, they are entitled at a minimum
to the following guarantees." In 10(2)(a), Canada prefers words
related to reasonable accommodation rather than the current language
referring to the "needs" of PWD. It proposed: "treated
with humanity and respect for the inherent dignity of the human person,
and are entitled to receive reasonable accommodations including with
respect to process, communication, language and facilities." If
this language seems too prescriptive, the subparagraph could simply
end with the words "reasonable accommodation." Canada supported
New Zealand's amendment to 10(2)(b), referring to legal rights, and
said that 10(2)(c)(ii) should be amended to reflect applications to
the criminal context. Canada also proposed bringing the language of
10(2)(d) in line with ICCPR by revising it as follows: "any PWD
who has been a victim of unlawful deprivation of liberty shall have
an enforceable right to compensation."
Luxembourg (EU) stated that human rights instruments
protect PWD against the arbitrary deprivation of liberty. It proposed
that 10(2) begin with these words: "States Parties shall ensure
that if persons with disabilities are deprived of their liberty they
are entitled to the following minimum guarantees." Then should
follow the guarantees which protect PWD.
The Coordinator asked for specific comments on the
chapeau of 10(2). There are several proposals. One, from Mexico, would
expound on the areas covered. The other would deal with the issue of
minimum guarantees, raised by Canada and the EU. He asked for other
delegates' comments on these issues. Seeing no comments, he stated that
for now, as proposed by Mexico, the chapeau will read: "2. States
Parties shall ensure that if PWD are deprived of their liberty including
in civil, criminal, administrative and other contexts, States Parties
Jordan spoke against placing "minimum guarantees"
in the chapeau, arguing that States Parties should aim high.
The Coordinator explained that in English, the word
"minimum" establishes a base and suggests that States should
have higher standards. If "minimum" is not added, some States
may take the position that they need not do anything other than what
is stated in the Article.
Yemen agreed with Jordan that the word "minimum"
encourages States to do only the minimum. PWD deserve the same rights
under the law as other people. In 10(2)(a), it proposed adding "and
other types of assistance" at the end of the list.
The Coordinator suggested that the word "minimum"
does what Yemen intends with its proposal, but there may be a linguistic
issue. He asked the four delegations -- Canada, the EU, Jordan, and
Yemen -- to meet with the facilitator. This is not a substantive disagreement;
all share the same objective of encouraging States to do as much as
possible. He moved on to discussion of 10(2)(a). He identified two main
issues: whether to use the phrase "treated with humanity,"
which is used in ICCPR; and whether to refer to reasonable accommodations
as proposed by the International Disability Caucus.
Canada restated its proposal for 10(2)(a), which reads:
"treated with humanity and respect for the inherent dignity of
the human person, and are entitled to receive reasonable accommodations,
including with respect to process, communication, language and facilities."
The examples are optional; the sentence could end with "reasonable
accommodations" if delegations prefer.
The Coordinator also noted the Holy See's proposal
to add "and worth" after the word "dignity" in 10(2)(a).
Jordan agreed with Canada's proposed addition to the
WG text, but is concerned about the words "entitled to" appearing
in both the 10(2) chapeau and 10(2)(a). Jordan also expressed support
for the Holy See's proposed addition.
The Coordinator pointed out that the words "entitled
to" appear in some versions of the chapeau and not in others. He
suggested postponing what is essentially a drafting issue.
Costa Rica apologized for referring to an old text
during yesterday's comments. Although it agreed with Canada's proposal,
it pointed out that accessibility and reasonable accommodations are
dealt with in other articles and therefore this proposal creates redundancy.
The Canadian proposal could also cause confusion between physical access
and access to judicial processes. The language should focus on rights.
The words "treated with humanity" from the ICCPR should not
be repeated here, though Costa Rica is flexible on that point. It endorsed
the Holy See's proposal and proposed adding "in a manner consistent
with respect for their human rights and in accordance with the objectives
and principles of this Convention."
The Coordinator noted that Canada's proposal deals
with mechanisms whereas Costa Rica's deals with objectives. Costa
Rica repeated its original proposal for 10(2)(a), to replace
the language about "takes into account the needs" with the
following: "fully respecting the rights and conditions of equality"
(at 265/2004/5). It further proposed, as suggested by the Landmine Survivors
Network, to add, after "treated with humanity and respect for the
inherent dignity of the human person," the words "and in a
manner that respects their human rights and conforms with the objectives
and principles of this Convention."
Australia supported Canada's proposal and added that
reasonable accommodations are important to include in this section.
It proposed a slight drafting change: after "human person,"
add "in a manner that reasonably accommodates their disability."
This Convention should avoid lists; the word "including" may
unintentionally exclude some accommodations.
The Coordinator asked Australia for its opinion of
the Costa Rican proposal. Australia responded that
it prefers the Canadian proposal because it deals with reasonable accommodations.
The Coordinator mentioned that although reasonable
accommodation is dealt with elsewhere in the text, it is addressed here
in a specific context.
The EU supported the Canadian proposal for the chapeau
of 10(2). The Coordinator stated there was still an
outstanding issue regarding the chapeau and encouraged the delegations
to get together to solve the problem.
Japan stated its objection to the list following "reasonable
accommodations" as applicable to the judicial branch, which is
more independent than other branches of government. The list may be
overly prescriptive and prone to misinterpretation.
Serbia and Montenegro supported Canada's proposals
to add "minimum standards" to the 10(2) chapeau. It also endorsed
Canada's version of 10(2)(a), with the Australian amendment because
a short statement is preferable to a list, which can be misinterpreted.
It also supported the Holy See's addition.
The Coordinator observed that there has been quite
a bit of support for Canada's 10(2)(a), but without the examples. He
asked whether Canada could accept Australia's amendment. Canada
said it prefers the words "are entitled to receive reasonable
accommodations" rather than "in a matter that reasonably accommodates
their disability." Australia agreed to this wording,
without the list.
Colombia spoke in favor of Costa Rica's text because
of concerns about the list. Reasonable accommodations are dealt with
in other articles. In some countries, the prison system has limitations.
It is very difficult to reasonably accommodate all disabilities in prison
so this requirement may end up segregating part of the prison population.
Costa Rica's proposal focuses on the objective of the Convention, but
provides flexibility to States.
The Coordinator pointed out that "reasonable
accommodations" has not been defined yet, but the word "reasonable"
should minimize hardships for States. The examples have been deleted.
Brazil supported the Costa Rican proposal because
reasonable accommodations are dealt with in a different article.
Canada said that after speaking with the Australian
delegation, it understands its amendment and supports the following
language: "and are entitled to reasonable accommodation of their
The Coordinator stated that there has been quite a
bit of support for inclusion of reasonable accommodations in 10(2)(a)
even though these are dealt with in another article. At the same time,
Costa Rica's proposal has broader language. He wondered whether the
two proposals could be combined to resolve this issue. He suggested
the words "treat them with humanity and respect for the inherent
dignity and worth of the human person, and in a manner that respects
their human rights and conforms with the objectives and principles of
this Convention including reasonable accommodations of their disability."
He heard no objections, and announced that this proposed language would
be in the report. He asked for comments on 10(2)(b). He restated New
Zealand's proposal: "Provided with adequate information in accessible
formats as to their legal rights and the reasons for their deprivation
of liberty at the time this occurs."
New Zealand responded that the Coordinator's reading
was accurate. However, it has consulted with Australia and now feels
that with the addition of the words "minimum guarantees,"
the phrase "at the time it occurs" is not needed. An alternative
could be to use the phrase "as necessary."
Thailand supported New Zealand's proposal.
Russian Federation supported the original WG text
and interprets "reasons for their deprivation of liberty"
broadly. It is also willing to support New Zealand's proposal.
Iran agreed with New Zealand's proposal and suggested
adding to the end the words "at the earliest opportunity,"
because timely information should be provided.
Yemen supported New Zealand, but advocated adding
temporal boundaries. Phrases like "at the earliest opportunity,"
"as soon as possible" and "at an appropriate time"
are too general and relative. The reason for deprivation of liberty
should be required immediately without specifying how long the deprivation
will last. If this was added to New Zealand's proposal, Yemen could
The Coordinator pointed out that ICCPR, Article 9(2),
says, "Anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly informed
of any charges against him." This Convention's Article 10, which
deals with a broader definition of deprivation of liberty, has no equivalent
reference to time. CRC, Article 40, guarantees that children in the
penal system "shall be informed promptly and directly of the charges
against him or her." CRC requires that an accused child "has
at least the following guarantees"; similar language could solve
the problem raised earlier.
The EU proposed adding that PWD must receive information
"as to their legal rights," along with information about the
reasons for deprivation of their liberty.
Australia proposed the following language: "provided
promptly with adequate accessible information as to their legal rights
and reasons for their deprivation of liberty." The term "accessible
formats" refers to the mode of delivery rather than content of
the information; this is relevant for certain PWD. Both New Zealand
and Canada support this text. The word "promptly" is better
than the phrase "at the time of," because the moment of deprivation
may not be the best time to give information.
The Coordinator asked whether delegations could agree
to Australia's proposal.
New Zealand intervened to make sure the phrase "legal
rights" was still in the paragraph. In response, Australia
restated its proposal.
Russian Federation supported the Australian proposal.
In Russian, the English word "adequate" translates as "sufficient,"
raising the question: What is sufficient? Therefore it prefers New Zealand's
more specific proposal, in which "adequate" is understood
to mean relevant to the circumstances surrounding the deprivation of
liberty. It asked why the word "legal" appears before "rights,"
since there is no such thing as illegal rights.
Uruguay said it understood New Zealand's original
proposal to end with the words "at the time it occurs," indicating
a specific time, rather than with the word "promptly," which
is ambiguous. The Coordinator responded that he has
reflected on that point too, and is concerned that the phrase "at
the time it occurs" sets a standard too high for States to meet.
For example, when a Deaf person is being arrested for a crime, it may
not be reasonable to expect the police to give the Deaf person information
at the time of arrest in an accessible form. Practically, the word "promptly"
is more reasonable, although more ambiguous.
Yemen supported New Zealand's proposal because Australia's
proposal causes translation problems involving the word "promptly";
the word "immediately" is more precise. It disagreed with
the point of the Coordinator's example, stating that although the arresting
officer may not know sign language and could not inform the detainee
at that point, the State would have to act to provide a police officer
who could communicate with the Deaf person in sign language. In Yemen,
a Deaf person was arrested and was angry and frustrated because he had
no idea what was happening; he cried when he saw someone who knew sign
language and could help. A police officer who knows sign language must
be available immediately or during arrest. There should be no delay
in providing adequate accessible information.
The Coordinator responded that there is general acceptance
that there should be no delay. The issue is that the State may not always
have a police officer on the scene who can give adequate information
in sign language. "Immediately" means the information would
be given at the time of arrest and there are many situations where this
is not possible. The State cannot train all police officers in sign
language. The Committee's goal is to ensure that accessible information
is given as early as possible. The problem is how to phrase this.
Australia agreed with the Coordinator that "immediately"
sets an impractical standard. Earlier, Australia had been concerned
that the word "immediately" could cause problems not just
for States, but also for individuals -- for example, when a PWD is having
an episode that interferes with the ability to receive the information
"immediately," i.e., at the time of the deprivation of liberty.
That's why Australia suggested the word "promptly," which
appears in other instruments. Therefore, although Australia appreciates
the comments from Uruguay and Yemen, it favors the word "promptly."
Iran endorsed Australia's proposal, which is flexible
enough to meet the concerns raised by Yemen.
Thailand stated that in some national legislation,
the word "promptly" is followed by the phrase "no later
than," making the word "promptly" less relative.
Kenya spoke in favor of using either "promptly"
or "as soon as possible" because both are practical terms.
In Kenya, the police officer must tell the person the reason for arrest
at the time of arrest. However, in some cases this is impossible.
The EU supported the phrase "as soon as possible,"
but needs time to discuss this with colleagues.
Uganda endorsed Australia's proposal and noted that
the term "promptly" adequately addresses the concerns raised
by Yemen. The phrase "as soon as possible" would allow too
much variation in the meaning.
The Coordinator suggested "promptly and without
delay" to address all the concerns.
Jordan expressed preference for the word "promptly."
The phrase "without delay" leads to questions about what kinds
of delays are acceptable, and for how long.
The Coordinator asked for consensus on the word "promptly."
He observed delegates nodding, and announced that "promptly"
would be the accepted term.
Yemen raised concerns about the phrases "without
delay" and "as soon as possible," because they will not
further the goal of giving information to the PWD. "As soon as
possible" should mean not more than 24 or 48 hours.
The Coordinator stated that for now "promptly"
would be the word, and that States could change it later if necessary.
Libya supported the Australian proposal.
The Coordinator asked delegates to discuss 10(2)(c),
beginning with New Zealand's proposal for 10(2)(c)(i).
New Zealand stated it was confused when it commented
and that it had meant 10(2)(d). It now supports the Canadian proposal
The Coordinator asked for comments on the chapeau
of 10(2)(c) and 10(2)(c)(i), the WG draft of which reads: "(c)
provided with prompt access to legal and other appropriate assistance
to: (i) Challenge the lawfulness of the deprivation of their liberty
before a court or other competent, independent and impartial authority
(in which case they shall be provided with a prompt decision on any
Russian Federation raised a translation question:
In the chapeau the word "prompt" is translated as "unobstructed."
Is that an accurate translation?
Seeing no objections, the Coordinator announced that
the WG text of the 10(2)(c) chapeau and 10(2)(c)(i) would be accepted.
He directed delegates to 10(2)(c)(ii) and pointed to comments on this
paragraph made by Japan, New Zealand and Canada regarding the concern
that if the person had committed a crime, there may not be a regular
New Zealand explained its proposal to add at the end
of the subparagraph the words "unless the deprivation of liberty
is the result of criminal conviction in which case review would be subject
to international standards." New Zealand is now aware of other
cases, such as immigration and security cases, which may not have regular
review; it has no ideas how to add those to its proposal, but believes
that at least regular review for civil commitments should be addressed.
Japan supported regular review in the disability context,
but does not want regular review to apply to other contexts such as
criminal conviction, immigration, military, etc. It is flexible about
The Coordinator clarified that the idea was that PWD
would have no more rights than other people to review in general contexts.
He suggested that this is only a wording issue, and asked Japan, Canada,
New Zealand and other delegates to work it out with the facilitator.
Kenya pointed out that New Zealand's wording may prevent
PWD from enjoying the same right to review that others do.
The EU proposed the following language: "and
be provided with a prompt decision on the lawfulness of the deprivation
of liberty." The important idea is that PWD should be heard before
a court of law and receive a prompt decision.
The Coordinator commented that this returned the discussion
to 10(2)(c)(i). The EU responded to the Coordinator's
comment that this would ensure a fair hearing and to get a prompt decision.
The Coordinator pointed out that 10(2)(c)(i), as written,
already ensures those two things. The EU stated that
its proposal distinguishes among three different rights: first, access
to a procedure before a court; second, a remedy against a decision which
deprives liberty; and third, the right to be heard in court to obtain
a prompt decision, with the right of appeal. The Coordinator
asked which of those elements are missing in the WG text. The right
of appeal may not be in this paragraph, but the other elements are in
the WG text. He suggested that during the break, the EU should examine
the WG text and if it identifies additional missing elements, these
can be dealt with during the afternoon session. He returned to 10(2)(c)(ii)
and reviewed the suggested process. He moved on to 10(2)(d): "provided
with compensation in the case of unlawful deprivation of liberty, or
deprivation of liberty based on disability, contrary to this Convention."
Canada and Costa Rica had proposals.
Canada proposed alternative language, reading: "Any
PWD who has been a victim of unlawful deprivation of liberty shall have
an enforceable right to compensation." This does not work with
the chapeau, and should be in a separate paragraph. [remainder of intervention
The Coordinator suggested that Canada work on language
during the break.
India asked for clarification of "regular review"
in 10(2)(c)(ii). In ICCPR, Article 14(5), the right of review according
to law is mentioned. This needs to be clearer. The Coordinator
stated that the key reference was CRC, Article 25. He asked India to
join the other delegations in discussing this subparagraph.
Mexico stated that 10(2)(c)(ii) should include "standards
and procedures established by law in conformity with the objectives
and principles of this Convention," as proposed by Landmine Survivors
Network. In addition, in conformity with ICCPR Article 14(b), legal
assistance should be provided without cost if the person has no resources
to pay. The Coordinator asked Mexico to join the group
discussing this subparagraph.
The Coordinator concluded the session by reminding
delegates that the AHC would meet formally in the afternoon session,
so as to provide an opportunity for everyone including NGOs to speak
and reflect on issues discussed over the last few days. Then informal
negotiations will continue.
The Chair Ambassador Luis Gallegos opened the sessions
in formal plenary so as to enable NGOs and other participants to speak.
The UN Special Rapporteur on Disability called for
“a change in terminology and conceptual approach” in addressing the
issue of legal capacity in Article 9. She reminded delegations that
“we are drafting a new treaty precisely to address the many problems
that existing legal systems present for the enjoyment of human rights
by PWD.” All adults should be assumed to have full legal capacity and
PWD needing assistance should not be assumed to be lacking in capacity,
even though “In extreme cases the assistance required may go beyond
support for decision making to become, almost, in practice, substitute
decision making.” The new convention should enshrine the principle that
PWD “are subjects of rights and not objects of protection.”
National Human Rights Institutions (NHRI) recommended
that the committee carefully consider the linkage in Article 7.5 between
special measures and any time frame. There must be an examination of
the amendments proposed by Japan and Costa Rica (http://www.un.org/esa/socdev/enable/rights/ahc5sum24jan.htm).
“De facto equality cannot be achieved by treating everybody in a similar
fashion, particularly those who are different…some standards which may
look separate or different should not be regarded inferior because those
standards hold the promise of guaranteeing de facto equality to PWD
which otherwise cannot be achieved.” Support mechanisms are crucial
for example when people with disabilities reenter the labour market.
The introduction of separate standards and measures should by no means
perpetuate segregation but guarantee equality. Therefore it proposed
deleting the expression “special” measures. Regarding Article 9, the
NHRI emphasize that every human being possesses legal capacity. There
should be language distinguishing between concepts of “legal capacity”
and “capacity to act.” The convention should address certain stereotypes,
linking, for example, disability with the incapacity to act, which can
be experienced by any human person in certain situations. States must
be obliged to avoid referring to persons with disabilities as incapable
and instead establish procedures and safeguards to ensure that assistance,
if required, is provided by a person appointed by a certain authority.
Safeguards are necessary to reduce the vulnerability of PWD.
The International Disability Caucus (IDC) emphasized
the need to address the legal capacity issue in the context of history.
PWD have, over centuries, been perceived as lacking capacity. The notion
of disqualification persists in existing legal norms across jurisdictions
and is a result of social prejudices. Even if national legislation does
not provide for legal capacity, it is essential for this convention
to establish the concept of legal capacity so as to change national
legislations. The concept of legal capacity is the liberty to live life
on one’s own terms. Seeking support in exercising legal capacity does
not diminish or negate one’s independence and capacity. Human interdependence
is a fact that should be recognized as a legal principle. There is a
distinction between guardianship and supported decision-making. The
IDC is opposed to any notion of guardianship or substitutive decision-making.
Article 9 must state that all persons with disabilities have legal capacity.
In regards to 2(b), the IDC called on delegates to refer to assistance
as an entitlement instead of something that is provided to PWD. Furthermore,
its wording on “appointing a personal agent” recalls the idea of guardianship
in another form. (http://homepage.mac.com/tminkowitz/.cv/tminkowitz/Public/Capacity_plenary_Address.doc-link.doc)
The IDC also supported the original WG text of 10.1(b)
which states that “States parties shall ensure that persons with disabilities
are not deprived of their liberty unlawfully or arbitrarily, and that
any deprivation of liberty shall be in conformity with the law and in
no case shall be based on disability”. It was said yesterday that disability
itself is not a justification for deprivation of liberty, but together
with something else disability can be a basis of deprivation of liberty.
Any adjective and addition to this paragraph such as “solely” or “exclusively”
based on disability is a threat to human rights. The IDC also expressed
concerns over the presumption in Article 10 that there could be detention
based on disability and that detention requires safeguards. IDC proposes
to add a new article focusing on access to justice, which must guarantee
legal safeguards to PWD who are deprived of their liberty because of
reasons other than their disability.
Finally, the IDC noted that women with disabilities
have not been recognized in any international convention on protection
and rights so far. There is a lack of gender interests in the drafting
of this convention. IDC proposes that a gender aspect and special protection
for women with disabilities in the upcoming articles be included. See
National Right to Life supported of the US’ proposed
language of Article 8 and the addition of the words “from conception
to natural death.” Article 8 should read as follows: “State Parties
reaffirm that every human being has an inherent right to life from conception
to natural death, and shall take all necessary measures to ensure its
effective enjoyment by persons with disabilities on an equal basis with
others, and shall ensure that disability or perceived quality of life
shall not serve as a basis for the infringement of the right to life.”
It is impossible to protect the right to life unless the perceived quality
of life is banned as a justification for terminating a life, by such
things as denial or withdrawal of medical treatment and/or food and
International Right to Life Federation and Coalition for the
Protection of Persons with Disabilities supported adding ”worth”,
wherever the word “dignity” is used, starting with the title of the
convention. The title should read “Comprehensive and integral international
convention on the protection and promotion of the rights, dignity and
worth of persons with disabilities.” Both the Charter of the United
Nations and Universal Declaration of Human Rights refer to the dignity
and worth of a human person. Preamble a) of the present document inaccurately
quotes the UN Charter without including the word “worth”. The term “death
with dignity” is used by proponents of assisted suicide and euthanasia
to justify the termination of a human life whose quality of life is
deemed unworthy. Every human person has dignity and worth irrespective
of their perceived quality of life. Persons with disabilities are particularly
vulnerable because of their perceived poor quality of life and are deemed
unworthy to live and better off dead.
Center of Pediatric Services for Persons with Disabilities
and Foundation Telethon, Mexico invited all delegates to take
up again Article 8 dealing with the right to life, which is inherent
from conception to death. Using a phrase “quality of life” places persons
with disabilities at risk of not having access to medical services and
ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON (continued)
The Coordinator resumed informal consultations and
proposed the following language of on10.2(c)(ii) as an outcome of morning
discussions: “seek review on an equal basis with others of the deprivation
of their liberty, including periodic review as appropriate.”
Luxemburg, on behalf of the European Union (EU) suggested
including: “to receive a fair hearing and to be provided with a prompt
decision of the lawfulness of the deprivation of the liberty” in this
paragraph. PWD have difficulty in being heard before a court and in
certain circumstances they are excluded as witnesses in a trial. It
is important not only to give PWD access to proceedings and a fair hearing
in legal cases as witnesses, but to also ensure their access to justice
within a reasonable period of time.
The Coordinator pointed out that the EU’s proposal
would be an addition to (c)(i) rather than (c)(ii).
The EU made clear that it’s additional language should
be a separate paragraph, for example (c)(bis). A fair hearing with a
prompt decision is a different concept from what is expressed in c(i)
The Coordinator noted that the idea of a prompt decision
is already incorporated in (c)(i) and suggested the insertion of the
notion of a fair hearing.
Jamaica noted that the idea of a “”fair hearing” is
already incorporated in (c)(i) in the reference to the impartial authority.
However, it is flexible on this point. A new subparagraph on “exercise
the right to appeal” should be added to 10.2(c). This would encompass
all relevant elements.
The Coordinator asked whether the EU still prefers
its proposed additional language after Jamaica’s clarification that
“independent and impartial authority” includes that language’s elements.
The EU stressed the importance of having a reference
to a fair hearing.
The Coordinator saw no objections to the EU proposal
and amended 10.2(c)(i) to read: “challenge the lawfulness of the deprivation
of their liberty, and receive a fair hearing, before a court or other
competent, independent and impartial authority.” He alerted delegates
to the need to avoid duplicating other international instruments dealing
with legal safeguards, human rights and administration of justice including
the right to appeal, such as the Covenant on Civil and Political Rights.
Yemen highlighted the need to restrict the discussion
to issues pertaining to disability rather than to more general issues
which relate to the population at large and their right to appeal. PWD
should not be deprived of the right to appeal because of their disability.
The EU clarified its proposal to a fair hearing. It
is important that in all cases PWD have the opportunity to be heard
before a court even if they have a representative or are represented
by a lawyer. The right to appeal is covered in the regular review, however
the EU further supports the idea of a specific provision for persons
with disabilities in the text, which would be covered by a fair hearing.
The Coordinator was of the view that a reference to
a fair hearing is generally acceptable. He asked the EU for further
explanation of the term. He asked whether the EU wants to refer to a
personal hearing rather than to a fair hearing. A fair hearing could
well take place through a representative, while a personal hearing means
that a PWD needs to be present in the court. He remarked that several
delegates have suggested that the concept of a fair hearing is already
covered by the existing language.
The EU agreed that the idea of personal hearing would
be more appropriate.
The Coordinator proposed to change “fair” to “personal”.
Yemen enquired about the relevance of a personal hearing
in situations when a PWD is not able to speak and is represented by
a lawyer, who is also present in the court. It believes the present
text is sufficient, but will not oppose the EU’s proposal.
United Arab Emirates stated that all people have the
right to appeal and thus PWD are entitled to the right to appeal. PWD
should also have the opportunity to have impartial consideration of
their appeal by someone from outside of the court.
Australia suggested that the EU’s concern was not
the mechanism of judicial administration, but the direct personal involvement
of PWD. There should be an amendment to 10.2(c) to say “provided with
prompt access to legal and other appropriate assistance to enable them
to (i) challenge etc, (ii) seek review etc.” The assistance or support
to challenge the lawfulness or seek review would not be precluded, but
the direct involvement of PWD will be maintained.
Jamaica clarified that 10.2(c) does not seek to imply
that PWD lack access to all the judicial procedures already captured
in many international instruments. In Jamaica and other Caribbean countries,
for example, there is always a general right to appeal, but the process
of appeal is very complex and expensive for ordinary citizens. PWD need
to therefore be provided with prompt access and “appropriate” assistance
in order to exercise their rights and to challenge unlawful action.
Jamaica supports the original WG wording.
Jordan supported the EU’s reference to a personal
hearing which promotes the idea of maintaining and preserving the personhood
of the PWD.
The Coordinator suggested the phrase “and receive
a hearing in their presence” to clarify the fair hearing issue particularly
for non-English speakers.
Russian Federation supported the inclusion of a fair
hearing. This would safeguard the right of PWD to challenge the lawfulness
of a given decision. The following text “have a prompt access to legal
and other appropriate assistance so that within the framework of a fair
hearing one would be able to challenge the lawfulness of the deprivation
of liberty” should be added.
Canada agreed with comments made by the Russian Federation
with respect to the deletion of the word “fair hearing.” It is very
important that the phrase “fair hearing” not be deleted, because it
extends beyond the right to be heard and covers other procedural guarantees
essential to judicial processes. Instead of the phrase “fair hearing,”
“and receive a fair hearing including the right to be heard” should
be included. The suggested phrase would place special emphasis on the
right to be heard.
Norway agreed with both the facilitator’s text as
well as proposals by Russia and Canada, but expressed concerns about
the pace of negotiations and time spent on issues that are regulated
in other documents and conventions.
Australia supported Canada’s amendment to the facilitator’s
text. It is important not to get into the mechanics of judicial administration.
The right to be heard in one’s presence would be inappropriate when
a PWD is in criminal proceeding and their presence may intimidate other
witnesses. The concept of the fair hearing is the appropriate one to
utilize and the content of the fair hearing would be determined by the
circumstances of the case under domestic law.
The Coordinator requested further efforts to reach
agreement on the right to appeal which, he pointed out, is already included
in existing instruments. The Working Group text of 10.2(d) reads follows:
“provided with compensation in the case of unlawful deprivation of liberty,
or deprivation of liberty based on disability, contrary to this Convention.”
Canada proposed to delete 2(d), but to include the
ideas and move them into a separate paragraph, (2)(iii) or 2(bis) using
the language of ICCPR Article 9.5: “Anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compensation”
to say: “Any person with a disability who has been the victim of unlawful
deprivation of liberty shall have an enforceable right to compensation”.
Kenya supported the Canadian language, but preferred
to work with the WG text of 2(d), which should be shortened to read:
“…provided with compensation in the case of deprivation of liberty,
contrary to this Convention.” The reference to “unlawful” should be
deleted, as the phrase “contrary to this Convention” already sufficiently
covers for situations of unlawful deprivation of liberty. Also, since
liberty would not be deprived on the basis of disability the reference
to “deprivation of liberty based on disability” should be deleted.
Jordan supported the more precise modification of
the WG text by Kenya. With regard to Canada’s proposal it preferred
to avoid the use of the term “victim” and any reference to victimization.
United Arab Emirates agreed with the Canadian proposal
which eliminates contradictions in Article 9 dealing with deprivation
of liberty of PWD.
New Zealand repeated its support for the Canadian
proposal noting more widespread approval for its wording based on 9.5
of the ICCPR.
Mexico withdrew its own proposal to replace 10.2(d)
of the WG text because the Canadian proposal covers the same elements
in a more concise manner.
The Coordinator noted general agreement on a provision
for compensating PWD in the event of unlawful deprivation of liberty.
Two proposals need to be considered, the Canadian formulation based
on ICCPR and the Kenyan formulation which is a shorter version of the
WG text. Recalling the discussion on the chapeau of Article 10, the
chapeau of paragraph 2 would include a reference to the “minimum” standards:
“States Parties shall ensure that if persons with disabilities are deprived
of their liberty, they have at least the following guarantees:
to be treated with humanity…
b) to be provided with
c) to be provided with
d) to be provided with”
ARTICLE 11: FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
The Coordinator noted that while this Article is brief,
the issues it raises, of the types of treatment and punishment of PWD,
do not necessarily entail a brief discussion. There was considerable
support for the Working Group text at previous AHC sessions. There is
overlap between Articles 10, 11 and 12. Elements in Articles 10 and
12 are also in Article 11 but these structural issues can be dealt with
at the end.
The EU supported paragraph 11.1 of the WG text, which
includes the obligation of States to take all effective legislative,
administrative, judicial, educational and other measures to prevent
PWD from being subjected to torture or cruel, inhuman or degrading treatment
or punishment. It supports the first part of 11.2, whereby “States prohibit,
and protect PWD from medical or scientific experimentation without the
free and informed consent..” It proposes deleting the second part of
11.2 prohibiting “forced interventions of forced institutionalization
aimed at correcting, improving or alleviating any actual or perceived
impairment” because states can in certain circumstances derogate from
this obligation. States cannot however ever derogate from the prohibition
on torture. Article 11 should not include within it an obligation that
could be subject to derogation, as this could potentially weaken the
The Coordinator drew colleagues’ attention to footnote
38 to the WG text which says that members of the WG had different opinions
on whether forced intervention and institutionalization should be dealt
with under “Freedom from torture,” or under “Freedom from violence and
abuse,” or under both. The footnote also deals with issues raised by
Jordan noted the overlap with Article 12 and proposed
to add “exploitation” to its chapeau. PWD are often taken advantage
of for financial gain. Articles 11 and 12 should be discussed together.
Yemen supported Thailand in calling for a reference
to specific types of scientific and medical “and other” experiments.
Articles 11 and 12 should be merged with India’s proposed language adding
“violence and abuse” to the end of 11.2.
New Zealand submitted a detailed rationale for its
proposals amending Articles 11 and 12 and creating a new Article 12
(bis) (at http://www.un.org/esa/socdev/enable/rights/ahc5newzealand.htm)
Forced interventions and forced institutionalization are best addressed
in the context of a new article on “Free and Informed Consent to Interventions”
and separately from Article 11, because “there are absolutely no circumstances
where violence, abuse and torture or cruel, inhumane or degrading treatment
Morocco proposed inserting “medical” between “legislative
and administrative” in 11.1. Doctors and nurses should also be made
aware of this obligation, and the medical aspect should be acknowledged
within the notion of torture especially among disabled children and
those who cannot express themselves. It supports Thailand’s proposal
to include “other types” of experiments in 11.2. The Coordinator
expressed concern that this wording would not work in English, but it
might work in other languages.
Russian Federation supported the WG wording in 11.1.
It prefers not to add any other criteria to this subparagraph. The issue
raised by Morocco is already covered in the current references to administrative
and other types of measures. Morocco’s proposed wording does not follow
the wording in the Convention against torture, which was found very
satisfactory by Russian delegation.
The Coordinator pointed out that, unlike the ICCPR,
Article 11 of the WG text does not contain an absolute prohibition on
torture. It requires “State Parties to take all effective (…) measures
to prevent PWD from being subjected to torture”, while Article 7 of
the ICCPR has stronger language: “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.” This wording contains an absolute prohibition. The
Coordinator opened the floor for consideration as to whether 11.1 should
begin with similar wording: ”No PWD shall be subjected to torture ….”
Yemen supported an absolute prohibition in 11.1 but
with different wording: “State Parties shall commit to take all effective…”
It agreed with Morocco on the need for reference to the term “medical,”
but suggested replacing the term with “health,” because it would be
better in the Arabic text. It proposed the following language: “States
Parties shall commit to take all effective legislative, judicial, health,
cultural, administrative and other measures”. The Coordinator
pointed out that the language and order of measures in the WG text in
11.1 was carefully considered, and follows the order of the Convention
against torture, Article 2.1, which reads: “Each State Party shall take
effective legislative, administrative, judicial or other measures to
prevent acts of torture in any territory under its jurisdiction.”
United Arab Emirates agreed on the need for on absolute
prohibition of torture at the beginning of 11.1. It proposed replacing
“prevent” with ”to protect PWD from being subjected et cetera.”
The EU supported the Coordinator’s proposal to strengthen
the language in 11.1.
The Coordinator proposed a new subpara: “No person
with a disability shall be subjected to torture or to cruel, inhuman
and degrading treatment or punishment” based on ICCPR Article 7.
Yemen repeated the order of measures it previously
proposed asserting that it is more logical. The text begins with legislation
and continues with the judicial arm responsible for ensuring legislative
application, followed by administrative, health, and then educational.
It explained that education is important but one must be healthy before
being educated. The Coordinator suggested Yemen consult other Conventions
to determine consistency in its order of measures.
The EU proposed deleting the second part of the sentence
“and shall protect PWD from forced interventions or institutionalization
aimed at correcting, improving or alleviating any actual or perceived
impairment.” 11.2 should only deal with the issue of torture. The
EU proposes to deal with forced institutionalization in Article10
and with forced intervention in 12.
Jordan agreed with the EU that part of 11.2 should
be moved to Article 12, and 11 should stress only freedom from torture.
Yemen supported the EU proposal. Some issues mentioned
in 11.2 have no relationship to torture.
China asserted that it was logically appropriate to
move 11.2 to Article 12 because the interventions referred to in this
paragraph cannot be called “torture”. There are certain circumstances
where PWD cannot judge their own capabilities and sometimes one cannot
obtain their consent. Therefore, it is necessary for language on forced
intervention, medical treatment or institutionalization to emphasize
the need to follow a judicial process with protective measures.
Norway pointed out that Article 11 as it stands now
includes several concepts and it can only benefit from further division
and clarification. It expressed concern about the first part of the
sentence in 11.2, which reads: “In particular States, Parties shall
(…) consent of the person concerned.” For people with major psychological
and mental disorders, and extreme forms of learning disabilities, there
are consequences to their cognitive abilities. They may not be able
to give free and informed consent.
The session was adjourned.
The Fifth Ad Hoc Committee
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