Back to: Seventh
Session of the Ad Hoc Committee
Summaries of the Seventh Session
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The Chair stated that a redraft of Article 5 had been circulated and a redraft of Article 8 would also be available soon. The Chair noted that the day’s session would divert slightly from considering Article 12 in order to hear from six younger colleagues with disabilities.
Rubel told the committee that he comes from Bangladesh where goes to school and works in his father’s his tea shop. All six children were pleased to address the committee on behalf of Save the Children. Amongst themselves, they had identified six important issues related to disabled children around the world. The issues were violence against disabled children, inclusion of disabled children, support from family, discussing all information with disabled children, not sending disabled children any institutions and consultation with disabled children.
Nazma from Bangladesh shared her story about her friend’s experience with violence. Her friend, who has polio, is a domestic worker and, as a result of her disability, dropped some dishes she had been ordered to carry. Her employer punished her by burning her back and arms with a hot spoon which he had held over a flame. On behalf of all disabled children, Nazma pleaded with the committee to take all measures necessary to prevent disabled children from becoming victims of violence.
Shi, from China, stated that the world’s disabled children need help. She has polio but her family did not know where to get help. As a result, she had missed many opportunities and her disability had created economic and psychological distress for her family. Shee believed that if she were able to access proper rehabilitation, she would have the opportunity to do things that other children do, such as wear beautiful dresses and take public transportation. If her family had adequate support and information, she would be able to access rehabilitation. The families of disabled children are faced with difficulty and they need access to information technology and financial support from the governments.
Yao encouraged an inclusive policy regarding disabled children. He asked delegates to consider how they would feel if they wished to travel but their travel request was denied, or if their desire to learn English was denied. He said he had been asking himself why he had been denied these things when he believed that he was equal to others. Yeow’s teachers and classmates did not understand him and excluded him and eventually he was forced to leave his school because he was harassed by his classmates. He went to another school where he was not happy until he met a teacher who helped him and he was accepted. An inclusive policy toward disabled persons can work if people make a joint effort. A disabled child’s outlook towards the world depends on the treatment he or she receives. Disabled children should be given the full opportunity to display their potential.
Lucia emphasized the importance of including disabled children in mainstream schools. A survey in England showed that disabled children educated in special schools were less likely to get a higher education or a job and more likely to be socially excluded and end up in the mental health system. Lucia had gone to a special school only until age 8 and maintained contact with classmates who completed their education at that school. She was the only one who attended University and had the highest exam results. She studied three languages and now teaches English in France. She asserted that many disabled children who are segregated within the education system lack the confidence to live independently or take control of their lives. Some even find it difficult to communicate with non-disabled peers. However, it is important to understand that when a disabled student goes to a mainstream school, the appropriate facilities and resources are necessary for that child to succeed.
Nancy, from the UK, stressed the importance of the convention. Children and young people with disabilities feel that they need to be heard on the issues that affect them. They believed in the statement “Nothing about us without us!” Nancy invited participants to attend their lunchtime event.
The Chair thanked all of the children for addressing the convention, stating “Your
eloquence and personal experience will have had a great impact on delegations
here today.” The children received enthusiastic applause from the committee.
Article 12 – Equal recognition as a person before the law (continued)
Republic of Korea reiterated the importance legal capacity, which is often deprived for persons with disabilities (PWD). It supported keeping the term “legal capacity” but was open to deleting “capacity to act.” Flexibility was expressed concerning 12(2)(b).
Canada, the facilitator of Article 12, noted efforts to consider NGO proposals. Speaking not as the facilitator but as a national delegation, Canada stressed the centrality of the notion of equal rights, dignity and autonomy of PWD. This article should focus on ensuring the support necessary for PWD to communicate their own decisions. Canada understood that delegates are concerned about ensuring legal safeguards in respect of decisions related to legal capacity. Canada referred to its written proposal on 12(2) (http://www.un.org/esa/socdev/enable/rights/ahc7canada.htm), explaining that the intent is prevention of abuse in this specific situation. The Chair’s text covers this in latter articles, especially 16(1) on Freedom from exploitation, violence and abuse. Canada clarified that its proposal was not a prohibition of substitute decision making, but an encouragement of supported decision making. It noted that it had suggested some other minor changes in its written proposal.
The Chair stated that a fundamental issues in Article12 is finding a balance between a clear assertion that PWD have the same right to recognition as persons before the law and legal capacity as everyone else and recognition of the fact that there are circumstances in which PWD require support in exercising legal capacity and capacity to act. The proposal by Canada emphasizes supportive decision making over substitute decision making but does not rule out the latter in the extreme situations where it maybe required.
China asked the Chair for clarification and an explanation of the concept of “legal capacity.”
The Chair understood the term to mean all persons, including PWD, have the same legal rights and responsibilities, and the same capacities before the law. Article 12 states that PWD are in the same situation in that respect as other persons, however in some circumstances they may require support or in exercising that legal capacity. There may also be circumstances for which states may wish to provide for substituted decision making, an area that has been extensively discussed. The use of both “legal capacity” and “capacity to act” is an effort to bridge the various legal systems, some of which draw a distinction between the two terms.
China reflected that “legal capacity to act” is difficult to operationalize as defined in different legal systems. In China, some PWD are not granted legal capacity to act. Others have their capacity restricted. In Chinese criminal law, criminal responsibility is commensurate with level of legal capacity to act. If “legal capacity” is interpreted to mean “legal capacity to act,” PWD would be held to the same level of criminal responsibility as others, which is not conducive to providing protection to PWD. China hoped that efforts would be made to clarify the terminology to take into account the legal systems of various countries. In (2)(b) after “independent tribunal” China proposed adding “or other relevant bodies.”
The Chair noted that there may be a translation issue in 12(2). The first phrase in that sentence should contain “legal capacity” in all translations, with “capacity to act” appearing in brackets at the very end of the sentence. He clarified that there is no intention to change the fundamental approach that any legal system takes toward the issue of legal capacity. There is no intention to change the criminal law of any country as it relates to the capacity of any individual to form criminal intent. Most legal systems are very specific about what is required to form criminal intent.
Yemen noted the need to capture all nuances in order to balance the provisions of the convention with national laws of the States Parties. Yemen asserted that the word “reaffirm” suggests that State Parties have already affirmed the point, which may not be factually correct. It suggested replacing that word with “affirm.” “Legal capacity” creates a serious problem. Laws anchored in Islamic jurisprudence do not hold responsible, for instance, children who are not fully matured or people with mental disabilities. All persons should enjoy the rules of law, however some PWD do have legal capacity while others require assistance to acquire that capacity and still others have no legal capacity. Yemen therefore supported Canada’s proposal, with some amendments to take into account the Arabic language and Islamic faith. The delegate suggested deleting “impartial and independent” before “tribunal,” as these adjectives might suggest that some judicial systems are not impartial or independent.
Japan strongly supported proposal made by Canada. However, it proposed amending on the third line of Canada’s proposal 12(2bis) “legal capacity” to “capacity to act.” Japan differentiates legal capacity, which is inherent, from capacity to act, which is the outward exercise of that legal capacity.
The Chair questioned whether replacing “legal capacity” with “capacity to act” in 12(2bis) changes the meaning to some extent.
New Zealand stated the fundamental importance that the convention affirm the legal capacity and personhood of PWD and proposed deleting ‘to the extent possible” in 12(2). The text should neither promote nor prohibit substitutive decision making and New Zealand supported the IDC approach, which is nicely incorporated in Canada’s proposal. It could support Canada’s entire proposal or simply replacing 12(2)(b) from the Chair’s text with Canada’s 12(2bis). The latter suggestion may require some slight editing. New Zealand noted that Article 16 provides further protection and support for decision making.
Kenya, on behalf of the African Group, supported to the Chair’s text, with the deletion of all of the square brackets, the word “everywhere,” and the terms “to the extent possible” and “where appropriate.” The language of the text must include all three components of exercising legal capacity and decision-making: 1) a person independently; 2) supported decision making; and 3) substitute decision making. The delegate supported including due process, as mentioned in the previous session.
Liechtenstein supported the Canadian proposal in that it focuses on the principle that PWD do have legal capacity. It does not focus on the exceptions but the principle derived Article 16 of the International Covenant on Civil and Political Rights (ICCPR). “Capacity” has two elements: that persons can be the bearers of rights and also the bearers of obligations and responsibilities. States often wish to protect people with regard to the latter. This is done in the case of children and in cases related to consumer protection, for example. Such protection does mean that the full legal capacity of that person is restricted, only that they require protection in certain circumstances. The same is true in criminal law. PWD should be treated equally with respect to intent or the ability to understand an act, and held responsible accordingly. Regarding the term “capacity to act,” The Convention on the Elimination of all Discrimination Against Women CEDAW) Article 15 clearly articulates this term as the opportunity to exercise legal capacity.
Jamaica noted that people often require access insurance in order to access loans, mortgages, etc. PWD are often denied this therefore it should be reflected in 12(3).
Australia recognized that abuses occur in both substitutive and supportive decision-making regimes and safeguards must be included. It supported 12(2)(b) but remained flexible regarding the suggestions for improvement. Australia also expressed flexibility with Chile’s proposals for 12(2)(b). Guardianship regimes will remain for the foreseeable future and thus we must address guardianship directly with respect to how they should be administered and to provide for minimum safeguards. Australia noted that abuse does occur, as asserted by many delegations, and noted that these abuses continue despite their prohibition in other instruments. Thus we must go further and identify individual measures, a precedent for which is contained, in the Convention on the Rights of the Child (CRC). Article 12 provides the seeds for an important paradigm shift by giving primacy to supported decision making in 122(a). 12(2)(b) continues that shift by providing for personal representation only as a last resort, but Australia suggested adding “including judicial review” after “tribunal” and “and standards” after “international human rights law,” in order to incorporate relevant nonbinding instruments. Australia supported the IDC’s proposals that “such systems meet the person’s requirements.”
Russian Federation suggested replacing the plural “persons” with “every person,” as appears in the ICCPR, in order to stress the rights of each individual. It is important to retain the word “everywhere” in 12(1). In 12(2) the term “legal capacity” embraces the capacity to act. The reference to “in all fields” involves the most diverse spheres of social relations governed by various norms and law, including public and private. Legal capacity will undoubtedly vary within these. As pointed out by other delegations, a disruption which affects PWD is a factor under the law and limits the content and scope of legal capacities that are not discriminatory but follow legal norms. For example, with regard to liability to military service or state service, the current language creates problems for states in terms of implementing this obligation. The delegate noted the point made by Mexico that there is at least one category of disability (mental illness) for which a declaration of incompetence would not be discriminatory. If a person is unable to control their actions, the state and society must protect their own interests. The language regarding legal capacity must be expanded and clarified. Russian Federation agreed to remove “to the extent possible” in the 12(2). It did not understand what was meant by “where appropriate” and “legal and independent review.” The delegate questioned the feasibility of including independent tribunals, given the varying legal systems.
Brazil suggested deleting 12(2)(b), in order to promote the paradigm shift toward supported decision making. PWD often have legal capacity denied as a result of to external interference. Brazil supported safeguards for guardianship situations, where they must exist as a last resort.
Austria, on behalf of the EU, expressed concerns about safeguards and proposed a reference to the International Declaration on Human Rights.
Mexico cautioned against making more distinctions than absolutely necessary. Legal capacity is a concept that is common to all legal systems and does not recognize exceptions. A person either has legal capacity or does not. It would not be wise to make a distinction with the capacity to act. Therefore, in the 12(2), the brackets around “legal capacity” should be removed and the sentence should end with “that capacity” and not “the capacity to act”. In addition “to the extent possible” should be deleted. In 12(2)(a) the legal definition should be deleted. Mexico could support 12(2)(b) with the addition of “legal representative” before “personal representative.” Mexico recognized that “protection” can result in restriction of rights.
Costa Rica supported the proposal by Canada. The convention should not reinforce restrictions.
Singapore did not object to “legal capacity” if it refers to legal capacity for rights.
Chile warned against being too specific and complicating matters. 12(2)(a) is a progressive innovation and 12(2)(b) is clearly meant to refer to exceptional cases and provides for important safeguards. Regarding the concerns mentioned by China relating to criminal law, criminal responsibility is within the domain of legal responsibility that each legal system determines.
Qatar stated that there is a dichotomy between concepts of legal capacity and capacity to act and supported maintaining “legal capacity” with the addition of “taking into consideration the level of disability.” A distinction should be made between legal capacity of people with physical and mental disabilities. Regarding 12(2)(b), tribunals should be a priori “impartial and independent” thus Yemen’s proposal to delete these adjectives is supported. 12(3) should ensure the protection of all PWD who would not be able to exercise their legal capacity.
India supported retaining “to the extent possible,” bearing in mind the large number of PWD in India. The idea that the assistance provided is proportional to the support required means that the state has a duty assess the “state of health” of PWD, especially those with intellectual disabilities, and review of decisions based on the “medical status” of PWD. States must address the concerns of society as well implementing the rights of individuals. Thus India supported 12(2)(b).
The Chair opened the formal meeting to hear from civil society.
The IDC was encouraged by the recognition of the need for a paradigm shift. It stated that it is important to understand that PWD have not been considered persons before the law and have been excluded from acting as such. Legal capacity is only a shell in the absence of the capacity to act. Article 15(2) of CEDAW was included for precisely this reason. Substituted decision making is based on the premise of incompetence and must not be legitimized. Supported decision making is based on the premise of competence. The two cannot exist together and successfully achieve the paradigm shift desired. This convention is necessary because other human rights conventions have not addressed the rights of PWD, nor have national laws. The number of people with psycho-social, intellectual and severe disabilities who have addressed this meeting - proving that they are indeed capable of reasoning, expressing opinions, voicing aspirations and making decisions - must be heard and respected. These are precisely the people who society considers incompetent and in need of guardians. This convention must displace discriminatory national laws, not create provisions to be made in accordance with them. That would harm, not help, PWD. Addressing states’ concerns for safeguards for guardianships and worrying about implementation does not promote the paradigm shift but reinforces the traditional abusive systems. Nonetheless, hearing the concerns that have been expressed, the IDC recognizes the major step forward of Canada’s proposal, which has created silence on this issue by neither prohibiting nor endorsing substitutive decision making. This is an approach that the IDC can accept.
The Chair noted two clear differences of views between participating states. One is closer to the IDC’s view, providing for supportive decision making and remaining silent on substitute decision making. The Chair believed that paradigm shift of operating on an assumption of competence rather than incompetence exists already in Article 12, via the progression that states begin with a premise of legal capacity, proceed to supported decision making when required and move to substitute decision making only as a matter of last resort. Nonetheless, a number of states have asserted that, because there will be cases that require substitute decision making, or guardianship, it is better to provide safeguards in these extreme cases rather than leaving it open. The IDC’s position opposes mentioning guardianship at all in the text. The Chair asked for clarification regarding whether the IDC does accept that there will be circumstances in which there will be a need for substitute decision making.
The IDC stated that it expects the notion of guardianship to be phased out. The difference between supported and substitute decision making is that, in a supported situation, the person with a disability is at the center of the discourse. The premise of supported decision making is that it ranges from zero to 100% and is a dynamic concept. As capacity increases, support decreases – a concept that is not allowed in guardianship.
The Chair responded by referring to the IDC’s assertion that the need for support ranges from zero to 100%, and asked if 100% support is not the same as substitute decision making. While he understood the support paradigm, he asserted that, whether it is referred to as “100% support”, “substitute decision making” or “guardianship”, the result is the same if the subject of the decision does not participate in the decision. When this does occur, states are arguing that it is better to specify safeguards rather than leaving it open.
The IDC responded that the point regarding abuse and the need to regulate are addressed by text proposed by Canada and can also be taken care of in other articles. The IDC goal is to not legitimize guardianship. The point is that a need for 100% support percent will become 99% and then 98% percent if we are talking about supported decision making and this would not be possible in a guardianship situation.
The Chair stated that he was unsure that this cannot be done with guardianship.
Speaking on behalf of itself Inclusion International and the IDC, the representative stated that, as a person with an intellectual disability, he had been denied recognition as a person before the law. He had suffered abuse without any redress. He represented many people who had not been allowed to make their own decisions. The time for appointment of personal representatives, even as a last resort, is over. The shift is toward supportive decision making. In the past, guardianship has often not protected PWD but resulted in their institutionalization. No person should have their legal capacity taken away from them and no state should have the right to take it.
The session was adjourned.
Article 12 - Equal recognition as a person before the law (continued)
World Blind Union suggested that the key difference is the perception, not the actual substance. States’ concerns regarding implementation seem to be focusing on the disability rather than the personhood of PWD. Furthermore, the right to legal capacity should be implemented immediately by the ratifying states. It suggested amending 12(3) to read “to own and administer or inherit property” because administering property must be included in legal capacity.
Save the Children, on behalf of the IDC, proposed including provisions on the right to birth registration. Children with disabilities who are often denied this right are then unable to access education, health care, etc. The right to birth registration could also be placed in Article 7 or incorporated if an article on children is added. The Chair recalled that the issue has come up before and was dealt with, although indirectly, in Article 18.
Mental Disability Rights International supported the IDC position on Article 12. Based on MDRI’s extensive field research on this issue, it stated that guardianship systems, even ones with a good protection system, have led to the abuse and isolation in institutions of PWD. The representative suggested referencing the Montreal Declaration on Intellectual Disabilities, (http://www.declarationmontreal.com/english/declaration.htm) adopted by the Pan American Health Organization (PAHO). This document recognizes the dangers of guardianship and calls on governments to promote the paradigm shift IDC has been talking about. It does recognize that guardianship does still exist in some systems and contains measures for procedural protection that go far beyond what is contained in 12(2)(b). Thus, the concerns expressed about not including explicit reference to guardianship or to procedural protections could be mitigated by referencing this important document, perhaps in the preamble to the convention. Adopting 12(2)(b) of the Chair’s text would be a step backwards in international law, as its protections are less than those outlined in the Montreal Declaration.
National Human Rights Institutions supported the intent of Article 12 and the Canadian proposal. NHRI suggested addressing the question of responsibility in addition to rights by adding “States Parties shall ensure that, in their laws relating to civil and criminal responsibility, disability shall not, as such, constitute the basis of non-ascription of responsibility.” Regarding the issue of “support” in 12(2) the delegate asked for clarification regarding who shall determine that support, warning against regressing to a medical model approach.
People with Disability Australia supported paragraph 12(2)(b) of the Chair’s text. The rights of PWD cannot be realized without a legal mechanism that provides for substitute decision making as a last resort. Without such a mechanism, States will not be able to ensure equality of access to medical services for persons unable to consent to treatment nor with they be able to protect individuals from abuse, neglect and exploitation. It is dangerous to assume that persons with disability will always be protected by those closest to them. Of course, there is enormous potential for abuse and neglect within guardianship arrangements, which are often poorly structured legally and inadequately monitored. This convention must mandate the reform and modernisation of guardianship systems, limiting substitute decision making only to what is absolutely necessary, and only for as long as it is necessary, and providing stringent safeguards against abuse. Paragraph 12(2)(b) requires guardianship arrangements to comply with international law. However, there is currently no ‘hard’ international law in this area, although there are important non-binding standards. Therefore, the words “and standards” should be added following the reference to international law. This will also provide for the ongoing development of standards after the convention is finalised. This convention must not derogate from existing international law protecting PWD. Failure to ensure in that substitute decision-making arrangements are subject to rigorous safeguards would erode existing protections.
Sudan noted the need to avoid emotional statements and remain objective and practical, especially with respect to legal systems and legislation. There may be a need for further outside discussions to generate consensus on this article.
The Chair concluded the discussion of Article 12, with the following summary:
• There was good support of the working text.
• Good progress had been made on the issue of legal capacity. CEDAW may be a valuable resource for language.
• Fundamental differences remain regarding 12(2)(a) and especially 12(2)(b). Canada’s proposal commanded the most support from delegations. More consultation is clearly needed between the two points of view, including informal discussions, to balance promotion of a support-based approach while retaining substitution as a last resort mechanism with safeguards.
• There may be a way to frame the idea of substitution within the context of support with some creative thinking about the idea of the scale of support ranging from zero to 100%.
• Colleagues will have to work hard and be willing to compromise in order to find a solution in which neither side “loses.” This article is far too important for an outcome such as that. This work will have to be done informally and should be done immediately.
• No comments had been heard on the proposal to recast 12(1) in the singular to mirror the ICCPR.
Article 13 - Access to Justice
The Chair noted that Israel had submitted a proposal to add two additional subparagraphs (http://www.un.org/esa/socdev/enable/rights/ahc7israel.htm), both of which mirrored the IDC’s proposal (http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7idcchairamend1.doc). Chile had also submitted a proposal (http://www.un.org/esa/socdev/enable/rights/ahc7chile.htm).
The United States supported including Article 13 in this convention. PWD should have access to the entire judicial process. Access to justice encompasses access to facilities, however accessible communications is also of paramount importance. In addition, access to justice includes ensuring that police and other officials modify their policies and practices where necessary. The U.S. supported the IDC’s additions because the current language is too broad.
Israel asserted that the inadequacy of most justice system to interact with PWD often results in the acquittal of PWD who have committed crimes and the failure to protect victims with PWD. It is lack of accommodation at the “process” level that is most harmful. Article 13 should make a specific reference to the obligation to ensure access through legislative means and a provision should be added to address children. Israel clarified that “accommodation” does not refer to “reasonable accommodation” in this context but rather to needed adjustments and modifications to the systems and processes and would be flexible regarding this language. The Chair wondered if reasonable accommodation would be the best term.
Chile noted that access to physical spaces and information are covered in other articles. It proposed three additions: 1) a provision for the training of court officials and police personnel in interacting with PWD; 2) language indicating that judicial proceedings should be adjusted as needed; and 3) a provision for the training of prison officials to interact with disabled prisoners.
The Chair noted that the working text is fairly general and asked the committee to consider whether Article 13 should be made more specific to address the comments heard.
South Africa supported the text as written. It emphasized the following issues that could be “interpreted into the text: accessibility of facilities; training of judicial, police and prison service personnel; and accessible communications. Interpretation issues that are less clear include: how justice is administered and how the law is applied with regard to admissibility of evidence by PWD or protection of PWD in court proceedings; access to justice is a right, not a privilege, and should be in the constitutions of countries before legislation takes effect; and the application of due process. Finally, this article should emphasize programmatic interventions, such as witness protection.
Austria, on behalf of the EU, had previously opposed a separate article on this subject but had adjusted its position. It supported the Chair’s text but was willing to add brief language to cover the issues raised.
Serbian and Montenegro strongly supported the inclusion of this article and
preferred the streamlined approach of the Chair’s text. It supported
the substance of the proposals from the IDC and Israel, but suggested they
may be more useful as guidelines.
It suggested that Chile’s proposal on training of personnel could be incorporated elsewhere in a provision related to training. The delegate asserted that Chair’s text covers the issues of adjusting procedures and stated that the issue of prison services would be better placed in Article 14 and might be already covered in paragraph 2 of that article.
Japan agreed with suggestions to expand the article but argued against being too specific. It reiterated its proposal from the 4th Session that the article should read “States Parties shall take appropriate and effective measures to eliminate physical and communication barriers and to reduce understanding difficulty of persons with disabilities in order to exercise the rights provided in Article 14 of the ICCPR.”
Yemen supported the U.S. intervention. It would accept a separate article but suggested that it would be better to include the concept of access to justice in either Article 9 or Article 12. Yemen was also concerned that a detailed article would lead to endless enumeration of the issues and aspects related to access to justice.
Trinidad and Tobago supported the IDC proposal, but preferred to include more detail without using the shopping list approach.
The Chair closed the speaker list because there was a clear trend in the proceedings
Bosnia and Herzegovina supported the language proposed by Israel, including its reference to children. It asserted that the current article is too vague but supported the EU’s caveat that too much detail be avoided.
Mexico supported the basic text but favored further developing the idea of training, as mentioned by Chile. Mexico also wanted a stronger focus on rural areas.
Panama stated that Article 13 is complete because Article 14 refers to the specifics with regard to legal proceedings and administration as well as reasonable accommodation of PWD in prison. It supported Chile’s proposal for continued training.
Canada fully supported a separate article on this subject. It would support the current text or the more specific language. However it suggested ensuring that the article deals with administrative proceedings in addition to legal proceedings and also linking equality with reasonable accommodation. It therefore proposed that the article be amended to read “States Parties shall take appropriate legislative and other measures to ensure effective access to justice for persons with disabilities on an equal basis with others, including by facilitating their effective role, through reasonable accommodation, as direct and indirect participants, including as witnesses, in legal and administration proceedings, including at the investigative and other preliminary stages.”
The Chair presumed that many delegations would assume legal proceedings to include administrative proceedings, but noted the need to be clear.
Russian Federation strongly supported a separate article on this issue and the Chair’s text. It was flexible regarding the IDC’s proposal, although it preferred to avoid too much detail.
Venezuela supported the article with the addition of a special emphasis on training to ensure accessibility. It noted that it might support the addition of international cooperation on that subject.
Kenya supported the Chair’s draft, but also supported the IDC’s additional details regarding access to legal and other administrative proceedings in all law enforcement and judicial arenas, noting this as especially important for persons with mental disabilities.
Sudan preferred incorporating Article 13 in Articles 9 and 12, but would accept it as a separate article. It supported Japan’s proposal regarding “appropriate and effective means,” which takes into account resource constraints in developing countries.
The Chair opened the formal session to hear from civil society
The IDC related the story of a young woman with an intellectual disability in Israel who was provided with an accommodation to facilitate her testimony regarding abuse she had suffered but whose testimony was ultimately disregarded due to her inability to correctly answer questions regarding how many weeks are in a month, or months in a year. Her abuser was acquitted as a result. This is why the IDC is emphasizing the need for adjustments or accommodation to the legal process, which the interventions of Israel and Kenya support. This was done in the subsequent appeal in the case mentioned, when an expert witness was brought in to explain which parts of the woman’s testimony were affected by her disability and which parts were reliable. The ICD supported Canada’s and Israel’s proposals to address legislative measures as well as processes.
Save the Children, on behalf of the IDC, intervened for the inclusion of age appropriate adjustments, given the particular vulnerability of children with disabilities to physical and sexual abuse. There is a widespread assumption is that children in general are less reliable witnesses than adults, and assessments used to determine their reliability are ineffective and prejudicial. Age appropriate tools, adapted for children with disabilities, are essential in order for these children to claim their right to access to justice.
Mental Disability Rights International (MDRI) asserted that Article 13 is currently framed in terms of obligations only, without reference to rights, which is inconsistent with other rights in the draft convention and also with the ICCPR, the American Convention on Human Rights, the European Convention on Human Rights and Fundamental Freedoms, and the African Charter on Human and Peoples Rights, all of which frame the right to access to justice as an individual right. To underscore the importance of framing Article 13 as an individual right, and also its interdependence with Article 12, MDRI related a story in which children in an institution were subject to inhuman and degrading conditions but had no legal recourse because the director of the hospital was automatically appointed the legal guardian of the children upon their admittance. MDRI’s efforts to sue the hospital on the children’s behalf were blocked by the need to obtain permission by the children’s legal guardian – who was, if fact, the perpetrator - to pursue the matter. Thus access to justice was denied because the individuals had no right of individual representation as human beings before courts of law. This clearly illustrates the fundamental interrelation between Articles 12 and 13 and that an effective solution to one requires an effective solution to the other.
The Chair summarized the discussion as follows;
• There was good support for a separate article on access to justice.
Some delegations preferred otherwise but expressed flexibility.
• There were a number of proposals to elaborate the general provisions in the article. These proposals generated good support, however nearly all delegations had expressed concerns about going into too much detail.
• It should be possible to bridge the desire to elaborate with the need to be succinct in an amended text, with elaboration on such essential issues such as training of justice personnel and accommodation or adjustment in process terms.
Article 14 - Liberty and Security of the Person
The Chair pointed to paragraphs 57-61 of the Chair’s background letter to the working text (http://www.un.org/esa/socdev/enable/rights/ahcchairletter7oct.htm), which identifies the approach to the issues that have been raised on this subject. There were no proposals submitted to this article, indicating broad support from states.
Canada suggested inserting “on equal basis with others” after
the word “have” in the 14(2) and removing “on equal basis
with others” in paragraph 2(c), in order to ensure it clearly applies
to the entire paragraph.
Russian Federation supported the text. The delegate opposed the Canadian proposal, noting that the convention includes an article on the principle of equal opportunity
China suggested deleting the phrase “in no case shall” in paragraph 14(1)(b) because it could contradict the provision on involuntary treatment in Article 17. The remaining language would then stand as an independent sentence. It supported most of the IDC proposal for Article 14, but opposed amending “any” to “a” in the 14(2), and proposed deleting the language following “including accessibility” in that same paragraph.
Costa Rica supported the Chair’s text and asserted that the proposal from China was not substantively different from the Chair’s text. Costa Rica was unclear as to the reasoning behind Canada’s proposal.
New Zealand supported rephrasing 14(2) to emphasize that PWD who are detained should be treated equally and with appropriate accommodation. The IDC proposal does this without the detail of the Chair’s text. The delegate suggested replacing “civil, criminal, administrative or other process, with “any process” in paragraph 14(2)(a)(ii), as the current wording may give inappropriate emphasis to civil commitment.
The Chair explained that “on an equal basis with others” in 14(2)(a)(ii) is included to ensure that PWD are not granted a right of review that other persons do not have. However, the remainder of paragraph 2 does not require this qualification and the Chair did not see a reason for placing “on an equal basis with others” in the chapeau.
Argentina supported the Chair’s text. It proposed a change in the Spanish text which affects the substance, which the Chair referred to the Secretariat.
Japan suggested qualifying “the existence of disability” with “solely” or “exclusively” in 14(1)(b).
Venezuela expressed concerns over the Spanish translation the phrase “legal assistance,” which the Chair referred to the Secretariat.
Brazil supported the Chair’s text but expressed support for the IDC proposal for paragraph 2.
Kenya suggested ending paragraph14(2)(c)(i) after “liberty” and separating the remainder of the language into its own paragraph as 14(2)(c)(bis)(i). It suggested adding “based solely on the basis of disability” at the end of 14(2)(d)
The Chair, referring to Kenya’s second suggestion, referred to Articles 9(5) and 14(6) of the ICCPR, which address compensation for unlawful deprivation of liberty. Adding Kenya’s language to 14(2)(d) could give the impression of limiting that right for PWD only to cases in which their liberty was deprived on the basis of disability, as opposed to on any unlawful basis.
Yemen suggested deleting the word “accessible,” in paragraph 14(2)(b) and deleting “as appropriate” after “periodic review” in paragraph 14(2)(c)(ii).
The Chair interpreted “accessible” as referring to accessible formats and suggested that there might need to be further reflection on that issue.
Sudan supported the Chair’s text, although the Arabic translation needed polishing. It suggested deleting “independent and impartial” in paragraph 14(1)(c)(i) and retaining the bracketed language.
The United States asserted that the Canadian proposal raised more systemic problems regarding the treatment of “on an equal basis with others” in human rights. It supported moving that phrase to the chapeau of paragraph 2. It supported the Chair’s text with the Canadian amendment.
Costa Rica supported the IDC proposal to paragraph 2 and opposed Canada’s proposal to add “on equal basis with others” in the chapeau. It would however support the Chair’s text if that was the consensus of the committee.
The Chair moved to a formal session to hear from civil society
The IDC delegate related her experience as a person diagnosed with a severe psychotic form of bipolar disorder. She had been hospitalized voluntarily during her life but was involuntarily incarcerated based on her decision to forego her medication while she was breastfeeding. This happened within the framework of strict U.S. legal safeguards. The stigma and prejudice associated with involuntary incarceration resulted in the loss of her career and her children and a huge financial burden on society to cover her social and legal expenses. This illustrates that the question of legal capacity is relevant in this article on liberty.
Another IDC delegate noted that the ICCPR already provides protection regarding deprivation of liberty. What is missing in that instrument, from a disability perspective, is the notion of reasonable accommodation, which must be include in the convention. The detention of persons with disabilities must be on the same basis as everybody else. A huge volume of research refutes the notion of a higher proclivity for violence and suicide of persons with psycho-social disabilities. Their incarceration is often based on prejudice and perception. The representative outlined the changes and justifications in the IDC’s proposal.
Sudan asserted that the wide consensus on Article 14 implied that there would be no need to revisit it tomorrow.
The Chair stated that there was consensus on many issues and that the only
remaining issue to discuss was whether to support the working text or the IDC
text. He asked colleagues to reflect on that overnight.
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