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UN Programme on Disability   Working for full participation and equality

 

Article 12 - Equal recognition as a person before the law

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Third Session

 

Comments, proposals and amendments submitted electronically


Governments

Cameroon
Canada
European Union
India
Kenya
Uruguay

 

UN System organization

ILO
OHCHR
WHO

 

National Human Rights Institutions

National Human Rights Institutions at the Third Session

 

Non-governmental organizations

Australian NGOs
Bizchut – Israel Human Rights Center for People with Disabilities
European Disability Forum
Indian NGO Consultative Meeting
International Save the Children Alliance
Landmine Survivors Network
World Blind Union
World Network of Users and Survivors of Psychiatry

 


Comments, proposals and amendments submitted electronically

 

Governments

 

Cameroon

ARTICLE 9 .-(1) Les futurs conjoints sont tenus d'effectuer des visites prénuptiales.

(2) Les parents sont tenus de faire procéder à la vaccination et aux visites prénuptiales, prénatales et post-natales au profit de leurs enfants.

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Canada

ARTICLE 9

Replace current text of Article 9 with the following:

1. States Parties shall recognize that, in civil matters, adults with disabilities have a legal capacity identical to that of other adults and shall accord them equal opportunities to exercise that capacity. In particular, they shall recognize that adults with disabilities have equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals. (CEDAW, Art. 15(2) with revisions)

2. States Parties shall ensure that where adults with disabilities need support to exercise their legal capacity, including assistance to understand information and to express their decisions, choices and wishes, the assistance is proportional to the degree of support required and tailored to the adult's individual circumstances.

3. Only a competent, independent and impartial authority, under a standard and procedure established by law, can find an adult not to have legal capacity. States Parties shall provide by law for a procedure with appropriate safeguards for the appointment of a personal representative to exercise legal capacity on the adult's behalf. Such an appointment should be guided by principles consistent with this Convention and international human rights law, including:

(a) ensuring that the appointment is proportional to the adult's degree of legal incapacity and tailored to the adult's individual circumstances; and,

(b) ensuring that personal representatives take into account, to the maximum extent possible, the adult's decisions, choices and wishes.

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European Union

Draft Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

States Parties shall:

(a) Recognise persons with disabilities as individuals with rights before the law equal to all other persons;

(b) Accept that persons with disabilities have full legal capacity on an equal basis as others, including in financial matters;

 

EU Proposal: EU suggests replacing (a) and (b) with the following paragraph:“Recognise persons with disabilities as individuals with equal rights before the law and guarantee equality before the law, without discrimination against persons with disabilities;”.

(c) ensure that where assistance is necessary to exercise that legal capacity:

(i) the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal capacity, rights and freedoms of the person;

 

EU Proposal: EU suggests ending paragraph (c) (i) after “their circumstances”.

(ii)relevant decisions are taken by a competent, independent and impartical authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;

(d) ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses;

 

EU proposal: Delete 9(d)

(e) take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit;

 

EU proposal: Delete 9(e)

(f) ensure that persons with disabilities are not arbitrarily deprived of their property.

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India

Article-9

In clause (d) the insertion of the world ‘Endeavour to' before “ensure” and to delete the portion “as well as to enter into binding agreements and contract to sign documents and act as witness”. (Reflected in the compilation text but not in the compilation of country-wise proposals).

Clause-g(new)

The State must protect the interest of persons with disability who cannot exercise their legal capacity in reduced/temporarily reduced situations. In exceptional circumstances without legal safeguards are necessary, the appointment of third parties as legal guardians/surrogate may be made in the best interest of persons with disability (Reflected in compilation text but not in the country text).

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Kenya

Draft Article 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

Insert the phrase 'use or otherwise dispose of' between the words 'inherit' and ‘property' in (e) so that it reads:

(e) take all appropriate and effective measures to ensure the equal right of persons with disabilities to own, inherit, use or otherwise dispose of property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit;

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Uruguay

Borrador Artículo 9
IGUAL RECONOCIMIENTO COMO PERSONA ANTE LA LEY

Los Estados Partes deberán :

(a) reconocer reconocen a las personas con discapacidad como individuos con derechos ante la ley iguales a todas las demás personas;

(b) aceptar aceptan que las personas con discapacidad tienen plena capacidad legal en iguales términos que los demás, incluyendo en materia financiera;

(c) asegurar aseguran que cuando la asistencia sea necesaria para el ejercicio de esta capacidad legal:

(i) la asistencia sea proporcional al grado de asistencia requerida por la persona en cuestión y de acuerdo con sus circunstancias, y no interfiere con la capacidad legal, derechos y libertades de la persona;

(ii) las decisiones relevantes son tomadas únicamente de acuerdo con el procedimiento establecidos por la ley y con la aplicación de tutelaje legal relevante;

(d) asegurar que las personas con discapacidad que experimentan dificultad afirmando sus derechos, comprendiendo información y comunicándose, tengan acceso asistencia para comprender la información que les sea presentada, y para expresar sus decisiones, opciones y preferencias, así como entrar en acuerdos o contratos vinculantes, firmar documentos y actuar como testigos ;

(d) se asegurarán de que las personas con discapacidad que experimenten dificultades para hacer vale sus derechos, entender la información y comunicarse, tengan la asistencia necesaria para entender la información que les es presentada y para expresar sus decisiones, opciones y referencias, así como para celebrar acuerdos vinculantes, contratos y cualquier otro documento público o privado a través de su firma, testar libremente, celebrar matrimonio, ejercer la tutela, curatela, actuar como testigos y todo acto al alcance de su capacidad de discernimiento

(e) tomar adoptarán todas las medidas necesarias y efectivas para asegurar la igualdad de derechos de las personas con discapacidad para ser propietarios o heredar propiedades, a controlar administrar y dirigir sus propios asuntos financieros, y a tener igual acceso a préstamos bancarios, hipotecas y otras formas de crédito financiero;

(f) asegurar se asegurarán que las personas con discapacidad no sean arbitrariamente privadas de sus propiedades.

Fundamentación : la propuesta de poner los verbos aceptar y reconocer en tiempo presente, se basa en que desde el momento que los estados partes aprueben y posteriormente ratifiquen la convención, tanto el reconocimiento como la aceptación cobran vigencia.

Con respecto a los agregados del párrafo (d) relativos a la inclusión de otros actos y las precisiones relativas a la firma, tienen origen en los problemas que, generalmente, tenemos las personas con discapacidad sensorial -en particular las personas ciegas-, cuya firma es objetada y sustituida incluso por la firma de testigos a ruego.

En cuanto a las modificaciones sugeridas en el párrafo (e), estimamos que las expresiones administrar y dirigir tienen una aplicación más efectiva que la expresión “controlar", dado que su significado es más restringido.

Antes de finalizar, queremos expresar que si bien no encontramos conveniente incluir en los textos tantas especificaciones, en este caso, creemos que es sumamente necesario hacerlo con el fin de aclarar y contribuir a que el contenido del instrumento no de lugar a interpretaciones equívocas en concordancia con el espíritu recogido en el art. 9 y lo manifestado en la oportunidad por la unión mundial de ciegos durante su intervención, debido a que existen importantes limitaciones al ejercicio de los derechos mencionados en este artículo.

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UN System organizations

ILO

Draft Article 9
Equal recognition as a person before the law

- The ILO welcomes the draft Text's call for assistance where required to people with disabilities to exercise their legal capacity, in proportion to the degree of assistance required without interfering with the person's legal capacity, rights and freedoms.

- It suggests that the Convention should specify that such assistance in accessing justice should include access to an effective dispute prevention and settlement system, and to legal aid.

ILO interventions at the Third Session:

Draft Article 9 Equal Recognition as a person before the law

In the course of this morning's discussion, (26.5.04) Mr. Chair, several delegations have commented on the level of detail in the draft article – noting that there is too much detail in some cases, too little in others.

On this point, the ILO would like to make a suggestion. The Ad Hoc Committee may wish to consider the preparation of guidelines drawn up to accompany the Convention, giving detailed guidance on the implementation not only of this article, but of all articles in the Convention. This would remove the need for such detail in the Convention itself.

Mr. Chair, this practice is followed by the ILO in relation to its Conventions and has proved to be effective.

Whatever approach the Ad Hoc Committee decides to take, the ILO suggests that assistance to persons with disability in accessing justice under the law, provided for in draft Article 9, should include access to an effective dispute prevention and settlement system, and to legal aid.

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OHCHR

 

See references to international human rights conventions and jurisprudence, p.3-17.

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WHO

Article 9            Equal recognition as a person before the law

WHO recognizes the importance of a person with disability being affirmed equal recognition as a person before the law. WHO supports the provisions made in this article and would like to emphasize that all people should be assumed to have capacity unless there is evidence to the contrary established by appropriate legal due process (WHO, 2003).

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National Human Rights Institutions

 

National Human Rights Institutions

 

Interventions at the Third Session:

Article 9

National Human Rights Institutions consider Article 9 as very important and should remain as strong as possible. The present text of the Working Group provides more elaborate statement on the principle of equality before the law for people with disabilities as well as legal safeguards against possible abuse. We therefore propose that any amendments for strengthening the article should be done within the text. In keeping with this, we recommend that Article 9 (c) (i) should be strengthened by adding the following at the end of that paragraph:

“ and provided that such assistance is in the best interest of the person concerned ”

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Non-governmental organizations

 

Australian NGOs

Interventions at the Third Session:

Draft Article 9

Mr. Chairman:

Thank you for this opportunity to address the Ad Hoc Committee.

We strongly support the inclusion within the draft text of the four key rights that underpin draft article 9:

• That all people with disability have the right to recognition everywhere as persons before the law (as recognised in article 16 ICCPR and sub paragraph (a))

• That all people with disability have the right to be presumed to have full legal capacity to make our own decisions in all areas of life (as recognised in article 15 CEDAW, the common law of various States Members' jurisdictions and sub paragraphs (b) to (d));

• That all people with disability are entitled to the full and equal enjoyment of the same rights and protections before and under the law as all other people (as recognised in articles14, 15 and 26 ICCPR and sub paragraph (a)); and

• That all people with disability have the right to own and administer property (as recognised in article 17 UDHR, articles 13 and 15 CEDAW and sub paragraphs (d) to (f)).

We believe that these rights represent the necessary preconditions to the effective exercise of our rights as individuals with disability. We therefore strongly recommend the inclusion within the text of separate articles devoted to each of them, in substitution for draft article 9, because with respect to the Working Group, draft article 9 as currently framed is not clear enough and does not go far enough. Its problem is that it conflates and confuses these four quite separate rights.

When considering including an additional article in respect of the right of people with disability to own and administer property, we can commend to this honourable Committee the formulation of that right found at article 25 of the Bangkok Draft.

When considering additional articles in respect of equality before and under the law, and legal personality, we are unable to draw upon any other draft articles for the Committee's reference, but believe in any event that articles in these areas should as closely as necessary follow the form of those articles in the pre existing human rights Treaties already referred to.

In respect of the right to be presumed competent, we believe that much more needs to be stated in the text than currently appears.

On that topic, at the outset let us say that we do believe that there are both situations where a person with disability does in fact lack the capacity to understand the nature and effect of decisions that affect them (a person in a coma is a case in point), and where a person with a disability understands the nature and effect of decisions that affect them but for various reasons may not be able to exercise that legal capacity. In both cases where a decision of importance is required to be made, we believe that appropriately safeguarded guardianship legislation and structures remain an essential part of a range of assisted and substitute decision-making options. This will enable people with decision-making disability to exercise their legal capacity where the choice of such options is directly proportionate to the degree of assistance required without interfering with the person's legal capacity, rights and freedoms. In this respect we support the wording of sub paragraphs (c) (i) and (d), but recommend a substantial redrafting of sub paragraph (c) (ii) to further elaborate the procedural safeguards necessary to support the full range of assisted and substitute decision making options from the most informal, culturally appropriate and least restrictive to the more formal options of limited and plenary guardianship. Principle 1 (6) of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care provides assistance in this regard so far as safeguards around the more restrictive options of formal guardianship orders are concerned.

It is also essential for this article to guarantee people with disability access to competent legal aid in relation to all these matters, and we strongly support the International Labor Organisation's intervention in this respect.

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Bizchut – Israel Human Rights Center for People with Disabilities

Draft Article 9 – Equal Recognition as a Person Before The Law

 

(a) Limitation of the exercising of legal capacity – with proportionality and in accordance with procedural safeguards

 

In our opinion, the possibility of persons with disability not being able to exercise their legal capacity in full, even if they are given full assistance, because of disability, should be recognized in clear language. Together with it, the measures that must be taken to protect against excessive or disproportionate removal of legal capacity, must be stated clearly.

We therefore recommend that a section be added to clauses (b) and (e) to the effect that limitation on the exercising of legal capacity due to disability be carried out in a supervised and proportionate manner, and in accordance with procedural safeguards ensuring minimum encroachment on the exercising of legal capacity.

 

(b) Adaptation of the legal process - part of the assistance enabling the exercising of legal capacity

 

The entrance ticket to the ability to exercise one's legal capacity is the ability to participate in the legal processes involved. Indeed, clause (d) deals with the provision of tools that enable a person with a disability to exercise this capacity. To this, and in particular to the instruction relating to the ability to give evidence, should be added, that legal processes, including the giving of evidence, will be adapted and made accessible to people with disabilities . (See our comment 12(a) below.)

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European Disability Forum

Draft Article 9 Equal Recognition as a person before the law

EDF supports the way in which this article is drafted. The focus of this article has to be on assisting disabled people, who so need, to exercise their legal capacity. This article should have as a consequence the abolition of all old-fashioned and wrongly conceived guardianship laws.

EDF agrees with the concerns raised in the footnotes corresponding to this article, in particular regarding the need to protect persons with disabilities who cannot exercise their legal capacity.

EDF supports to keep paragraph (d) in this article.

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Indian NGO Consultative Meeting

16. In relation of Draft Article 9- b), list of areas should also include socio-cultural and political along with financial. The modified text of article 9-b) should read- “ accept that persons with disabilities have full legal capacity on an equal basis as others including in financial, social, cultural and political matters .”

17. To translate the obligation stated in Article 9-c) ii, an addition is recommended stating that “the state shall establish objective, neutral and fair criterion.”. Therefore the modified text of 9-c) ii should read “relevant decisions are taken only in accordance with a procedure established by law and with the application of relevant legal safeguards based on an objective, neutral and fair criterion;

18. Augmentation of draft article 9-d) is suggested by adding the following text-“ In the event of reduced / temporarily diminished legal capacity a duly appointed surrogate may exercise the legal capacity in the best interest of such a person with disability.” Therefore the modified text of article 9-d) should be read as “ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses. In the event of reduced / temporarily diminished legal capacity a duly appointed surrogate may exercise the legal capacity in the best interest of such a person with disability.

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International Save the Children Alliance

Draft Article 9 – equality before the law


This article deals with the right to disabled people to be treated equally in the legal system and to acquire assistance. Where necessary, so that they can enter contracts, sign documents or take care of their own finances. Children, and especially disabled children, are often prevented from taking responsibility for their affairs or to give evidence in court, even when they are capable of doing so.

 

Suggested changes

9.a States Parties shall recognise persons with disabilities as individuals with rights before the law equal to all other persons; and respect the rights of children with disabilities to exercise legal capacity in accordance with their evolving capacities.

9.d States Parties shall ensure that children and adults with disabilities who experience difficulty in communication, accessing and handling information needed to address their rights, can acquire non-partial assistance , to express their preferences, choices and decisions, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses

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Landmine Survivors Network

DRAFT ARTICLE 9 COMMENTS

It has been stated that without the right to recognition as a person before the law, “the individual could be degraded to a mere legal object, where he or she would no longer be a person in the legal sense and thus be deprived of all other rights, including the right to life. … Recognition of legal personality is thus a necessary … prerequisite to all other rights of the individual.” (Cf. “UN Covenant on Civil and Political Rights: CCPR Commentary,” Manfred Nowak, p. 282) Draft Article 9 is therefore a critical component of the Working Group draft text.

Draft Article 9 recognizes people with disabilities as persons before the law, though the phrasing in the chapeau differs somewhat from that used in the Covenant on Civil and Political Rights. (Cf. International Covenant on Civil and Political Rights, Article 16) Draft Article 9(b) also confirms that people with disabilities possess legal capacity on an equal basis with others.

Footnote 33 confirms that where assistance is necessary to exercise legal capacity, the underlying assumption is that full legal capacity always remains. However, this assumption is not made explicit in the draft text. Draft Article 9(c) also does not adequately elaborate the procedural safeguards necessary to determine when and how assistance should be provided, although it notes in (c)(ii) that “relevant legal safeguards” must be applied. It is therefore unclear, for example, who determines when assistance is provided; the manner in which that assistance is provided; and what avenues for review and appeal the disabled person has. As also referenced in Footnote 33, it is important to elaborate the legal safeguards applicable in situations where the disabled person cannot exercise their legal capacity. Although the MI Principles do not reflect current thinking about disability within the context of the social model, they do outline some procedural safeguards that the Ad Hoc Committee may wish to review in this regard. Specifically, the procedures outlined in Principle 1(6) provide a helpful guideline – not to deprive a person of legal capacity (as is done in Principle 1(6)) but in situations where the person is unable to exercise their legal capacity. (Cf. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, Principle 1(6))

Draft Article 9 provides examples of contexts in which the legal capacity of people with disabilities must be respected on an equal basis with others, e.g. financial matters, property ownership and disposition. The Ad Hoc Committee may wish to consider whether Draft Article 9 should be kept more general, with such matters being more fully addressed in a separate article(s). Alternatively, Draft Article 9(b),(d),(e) and (f) could be expanded to include non-exhaustive lists of other relevant areas.

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World Blind Union

Article 9:
The right should be obtained "on equal footing with other persons".

Para d), is of great importance and MUST be kept here, since PWD are often denied the right to own property, marry, become a parent, inherit, sign contracts, hold a bank account, sign their own daily documents, act as witnesses – both at weddings and before the court, or be exposed to forced sterilisation and so on, due to their disability.

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World Network of Users and Survivors of Psychiatry

WNUSP Position Paper:


Draft Article 9


WNUSP COMMENT: WNUSP supports the language in paragraph b recognizing the legal capacity of all people with disabilities on an equal footing with others, and the language in paragraph c guaranteeing that any assistance provided in exercising legal capacity will not interfere with the legal capacity, rights and freedoms of the person.


We are concerned that the concept of “assistance to exercise legal capacity” may be inadvertently turned back to substituted decision-making if the fundamental nature of the freedom to make one’s own decisions is not adequately understood. We would like to see explicit recognition that assistance should never be imposed on a person who objects to it, and that the person who is being assisted retains the ultimate decision-making authority in his or her own life.


We expect to present information during the Ad Hoc Committee meeting that may help delegates to better understand this issue.


WNUSP comments at the Third Session:


Article 9


May 26, 2004
Article 9 of the draft text contains the essential elements for the elimination of substituted decision-making and the provision of assistance to those who wish to have it. Paragraphs b and c(i) guarantee that no person will be deprived of legal capacity which means the right to have the final choice in one’s own decision-making. Paragraph d requires states to ensure the availability of assistance in decision-making and related activities to those who require it.


At our side event yesterday a speaker provided information about a model for supported decision-making developed by a Canadian organization and partially implemented in a provincial government in Canada. We are providing excerpts of that report, which outline the main features of the model, and a url for an accessible version of the full report, on the table outside. Besides guaranteeing autonomy in the sense that the final decision is always up to the person him or herself, the model recognizes that interdependence in decision-making is a fact of life for all human beings and is based on the recognition and facilitation of relationships of trust between individuals. No competency tests would be imposed under this model and procedural safeguards only exist to ensure that the person providing support is meeting his or her obligations including the obligation to follow the wishes of the person receiving support. A new public office would be created to facilitate the development of trusting relationships for individuals who are currently isolated, and there is a residual judicial power of decision-making when the wishes of an individual cannot be ascertained or interpreted and an important decision must be made.


World Network of Users and Survivors of Psychiatry believes that it is premature to propose specific text based on the proposal we have looked at. The proposal was written within a specific national context and needs to be translated into text appropriate for an international convention. We would prefer to do this by means of consultation among all interested parties after this Ad Hoc Committee meeting and before the next one.

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