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Article 16 - Freedom from exploitation, violence and abuse
Background Documents | Article 16 Background
Seventh Session | Fifth Session | Fourth
Session | Third Session
Working Group | References
Fourth Session
Governments
Chile
European Union
Israel
Republic of Korea
New Zealand
Palestine
Non-governmental organizations
Children's Rights Alliance for EnglandInternational Disability Caucus
Landmine Survivors Network
People with Disability Australia
Working Meeting of NGOs for people with disabilities from Ukraine, Russia, Belarus & Moldova
Comments, proposals and amendments submitted electronically
Governments
CHILE
ARTICLE 12 – FREEDOM FROM VIOLENCE AND ABUSE
In paragraph 1, we support the proposal of the Republic of Korea that the
concept of "abandonment" should be included. Abandonment is a
particularly severe form of violence and abuse which is often found in the
case of certain persons with disabilities who are particularly vulnerable,
such as those living with multiple disabilities.
Also in paragraph 1, we support the New Zealand proposal to include a reference
to “economic abuse”. This is a situation which occurs quite often, when
a third party or parties exploit the property or income of a disabled person
who, often for reasons of dependency on the person concerned, is unable
to defend him- or herself appropriately or to escape from this type of abuse.
Economic abuse also occurs when an employer hires a person with a disability
on a salary lower than that of other workers having the same functions,
and in cases where a third party responsible for the maintenance of the
disabled person therefore seeks to limit or restrict the latter's life in
the exercise of his or her rights.
The text should therefore read:
1. “States Parties recognize that persons with disabilities are at greater
risk, both within and outside the home, of abandonment, violence, mental
of physical abuse, neglect or negligent treatment, maltreatment or exploitation,
including economic and sexual exploitation and abuse...”
In paragraph 2, we support the proposal by Kenya that measures should be
adopted to provide particular protection to persons with disabilities from
armed conflict.
The language proposed by the working group in paragraph 3 is very similar
to that which appears in the second part of paragraph 1 of the same article,
which begins after the consecutive point, as follows:
"States Parties shall take all appropriate legislative, administrative,
social, educational and other measures to protect them..."
Observation: Since the purpose of both provisions is the adoption of measures
and the preventive and protective nature that they imply, we recommend merging
those two statements.
We support the proposal by New Zealand regarding the training of those working
with persons with disabilities to identify and prevent cases of violence
and abuse.
We support the proposal by the European Union for an article 3 bis recognizing
the principle that forced interventions on persons with disabilities are
illegal save in exceptional circumstances.
We support the proposal by New Zealand to replace the current paragraph
4, incorporating important language concerning the monitoring of institutions
by independent authorities, which include persons with disabilities, and
for the monitoring reports to be made available to the public (combined
with the final proposal by Mexico in this article).
EUROPEAN UNION
Draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE
1. States Parties recognise that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse. States Parties shall, therefore, take all appropriate legislative,
administrative, social, educational and other measures to protect persons
with disabilities, both within and outside the home, from all forms of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
EU Proposal: Move the first sentence to the Preamble. Delete the
word “therefore” from the second sentence. Insert “abduction” after “abuse”
in the penultimate line. Insert “harassment” between “treatment” and maltreatment”.
2. Such measures should prohibit, and protect persons with disabilities
from, forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment, and abduction.
EU Proposal: Replace by new paragraphs 2, 3, 4 and 5:
“2. In particular, States Parties shall protect persons with disabilities
from all forms of medical or related interventions, carried out without
the free and informed consent of the person concerned. All such involuntary
interventions shall be illegal, except as provided for in paragraphs 3 to
5 below.
3. Where the person lacks the capacity to give or withhold informed consent,
an intervention may only be carried out where the consent of his or her
legal representative or a competent court or authority has been obtained
prior to the intervention.
4. This shall not prejudice any such intervention necessary to prevent an
imminent danger to the life or health of the person concerned or to the
life or safety of others.
5. All such interventions shall be carried out in the best interest of the
person concerned, in accordance with the procedures established by law and
with the application of appropriate legal safeguards.”
3. States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, by ensuring, inter alia, support
for persons with disabilities and their families, including the provision
of information.
EU Proposal: The bulk of paragraph 3 repeats the content of paragraph
1 of the Article. The EU recommends the deletion of existing paragraph 3
4. States Parties shall ensure that all facilities and programmes, both
public and private, where persons with disabilities are placed together,
separate from others, are effectively monitored to prevent the occurrence
of violence, injury or abuse, neglect or negligent treatment, maltreatment
or exploitation, including sexual exploitation and abuse.
EU Proposal: insert “abduction” after “abuse” in the penultimate
line and insert “harassment” between “treatment” and “maltreatment”. Paragraph
4 will be renumbered into paragraph 6.
5. Where persons with disabilities are the victim of any form of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, States Parties shall take all appropriate
measures to promote their physical and psychological recovery and social
reintegration.
EU Proposal: insert “abduction” after “abuse” in the first line and insert
“harassment” between “treatment” and “maltreatment”. Paragraph 5 will be
renumbered into paragraph 7.
6. States Parties shall ensure the identification, reporting, referral,
investigation, treatment and follow-up of instances of violence and abuse,
and the provision, as appropriate, of protection services and, as appropriate,
judicial involvement.
EU proposal: replace by “States parties shall put in place effective policies
and legislation to ensure that instances of violence and abuse against persons
with disability are identified, investigated and, where appropriate, prosecuted
and that protection services are available in such cases”. Paragraph 6 will
be renumbered into paragraph 8.
ISRAEL
PROPOSAL ON DRAFT ARTICLE 12 Freedom from Violence and Abuse
Persons with disabilities are more vulnerable to violence and abuse than
persons without disabilities. This phenomenon is worsened by the inaccessibility
of investigative and judicial processes to persons with disabilities – particularly
for persons with communication difficulties arising from mental, developmental,
physical or sensory disabilities.
Inaccessibility of legal processes in the police and in court denies them
the opportunity of being understood and of providing full statements, resulting
in the majority of cases being closed, or defendants acquitted because of
insufficient evidence against them. This, in turn, has a direct impact on
the level of violence and abuse – as offenders rely on not being brought
to trial or being acquitted for crimes against persons with disabilities.
Thus, protection from violence and abuse against persons with disabilities
must include ensuring the accommodation of investigative and judicial procedures
to their special needs, and this should be explicitly stated in this Article.
It should also be established that the State shall take action to promote
legislation that ensures the accessibility of the legal process.
Therefore, Israel proposes that the following addition (underlined) be made
to paragraph 6 in this Article:
6. State Parties shall ensure the identification, reporting, referral, investigation,
treatment and follow-up of instances of violence and abuse, and the accommodation
of investigative and judicial proceedings, including testimonial procedures,
to the special needs of persons with all types of disabilities, and shall
take measures to promote legislation that ensures the accessibility of the
legal process. State Parties shall also ensure the provision of protection
services and, as appropriate, judicial involvement.
REPUBLIC OF KOREA
Article 12: Freedom from violence and abuse
• Para 3: proposes to add at the end of the para: “education for persons
with disabilities and support to their representative organizations”
• Proposes the addition of “abandonment” in front of “violence, injury or
abuse, neglect…..” in paras 3, 4, 5 & 6
NEW ZEALAND
Article 12
• We do not believe there are any circumstances that might justify exceptions
to the rights to freedom from violence, abuse and other cruel, inhuman or
degrading treatment. Therefore we believe it is useful to retain these provisions
in this separate article and not confuse them with the rights to free and
informed consent.
• If the amendments we have suggested for Article 11 occur then a number
of subsequent amendments follow for Article 12.
• These include deletion of clause 2 and an addition of the clause about
torture and cruel, inhuman and degrading treatment and punishment from Article
11(1).
• There was general willingness at the Third Ad Hoc Committee meeting to
streamline some of the language. In particular move the first sentence of
Part 1 to the preamble and possibly delete Part 3, which repeats Part 1.
We endorse these proposals made by the EU.
• The amended working group text (taking into account various proposals
at the third Ad Hoc Committee meeting) has been provided in written form
to delegates. Again we do not intend to read it all out but hope that itt
will be considered during the informal discussions. As mentioned in relation
to Article 11 we suggest these discussions should ideally be clustered with
those on Articles 10,11 and 15.
• We also seek to maintain our proposals on this article made at the last
session of the Ad Hoc Committee.
FREEDOM FROM VIOLENCE, ABUSE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT
• States Parties recognise that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse. States Parties shall therefore, take all appropriate legislative,
administrative, social, educational and other measures to:
a. protect persons with disabilities, both within and outside the home,
from all forms of violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including economic and sexual exploitation
and abuse
b. prevent persons with disabilities from being subjected to torture or
cruel, inhuman or degrading treatment or punishment. (moved from Article
11).
• Such measures should prohibit, and protect persons with disabilities from,
forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment, and abduction.
• States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, by ensuring, inter alia, support
for persons with disabilities and their families, including the provision
of information.
• States Parties shall ensure that all facilities and programmes, both public
and private, where persons with disabilities are placed together, separate
from others, are effectively monitored to prevent the occurrence of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including economic and sexual exploitation and abuse.
• Where persons with disabilities are the victim of any form of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including economic and sexual exploitation and abuse, States Parties shall
take all appropriate measures to promote their physical and psychological
recovery and social reintegration.
• States Parties shall ensure the identification, reporting, referral, investigation,
treatment prosecution and follow-up of all instances of violence and abuse,
and their timely referral to appropriate protection agencies and, where
necessary, to the courts provision of protection services and, as appropriate,
judicial involvement.
PALESTINE
Art 12. Freedom from violence and abuse
Palestine proposal" add the words ", including foreign occupation"
after the words "armed conflict" in the 1st sentence.
Non-governmental organizations
CHILDREN's RIGHTS ALLIANCE FOR ENGLAND
Article 12
Freedom from violence and abuse
1. States Parties recognize that persons with disabilities are at greater
risk, both within and outside the home, of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual exploitation
and abuse. States Parties shall therefore take all appropriate legislative,
administrative, social, educational and other measures to protect persons
with disabilities, both within and outside the home, from all forms of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
2. Such measures should prohibit, and protect persons with disabilities
from, forced interventions or forced institutionalization aimed at correcting,
improving or alleviating any actual or perceived impairment, and abduction.
3. States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, by ensuring, inter alia, support
for persons with disabilities and their families, including the provision
of information.
4. States Parties shall ensure that all facilities and programmes, both
public and private, which are used by persons with disabilities, (where
persons with disabilities are placed together, separate from others - delete)
are effectively monitored to prevent the occurrence of violence, injury
or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse.
5. Where persons with disabilities are the victim of any form of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual exploitation and abuse, States Parties shall take all appropriate
measures to promote their physical and psychological recovery and social
reintegration.
6. States Parties shall ensure the identification, reporting, referral,
investigation, treatment and follow-up of instances of violence and abuse,
and the provision of protection services and, as appropriate, judicial involvement.
INTERNATIONAL DISABILITY CAUCUS
Draft Article 12: Freedom from Violence and Abuse
States Parties recognize that persons with disabilities may be at greater
risk, both within and outside the home, of all forms of violence and abuse.
Violence and abuse is understood to include hate, bias, harassment, victimization,
violence, injury, physical or mental and emotional or sexual abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual and
economic exploitation. States Parties shall, therefore:
1. Take all appropriate legislative, administrative, social, educational
and other measures to protect persons with disabilities, both within and
outside the home, from all forms of violence and abuse.
2. Secure the equal rights of children with disabilities to protection from
all forms of violence and abuse.
3. Prohibit, and protect persons with disabilities from abduction, and any
forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment.
4. Reaffirm that persons with disabilities have the right to make choices
about their own bodies and shall prohibit forced sterilization or abortion.
5. Prevent all forms of violence and abuse, by providing information and
education to persons with disabilities, their families, and persons working
with persons with disabilities about how to avoid, recognize, report, and
seek protection from instances of the above.
6. Ensure that facilities and programmes, both public and private, where
persons with disabilities live or receive services, are effectively monitored
by independent authorities, which shall include persons with disabilities,
to prevent the occurrence of violence and abuse.
7. Where persons with disabilities are the victim of any form of violence
and abuse, States Parties shall take all appropriate measures to promote
their physical and psychological recovery and social reintegration which
shall at all times respect personal autonomy and dignity of the persons
concerned.
8. Ensure the identification, reporting, referral, investigation, treatment
and follow-up of instances of violence and abuse, and the provision of protection
services and, as appropriate, judicial involvement.
LANDMINES SURVIVORS NETWORK
Draft Article 12 – FREEDOM FROM VIOLENCE AND ABUSE
SYNTHESIS OF PROPOSALS
1. States Parties shall take all appropriate legislative, administrative,
social, educational and other measures to protect persons with disabilities
in all aspects of life from all forms of violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including economic
and sexual exploitation and abuse.
2. States Parties shall also take all appropriate measures to prevent violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including economic and sexual exploitation and abuse. Such measures shall
include support for persons with disabilities and their families, including
the provision of appropriate information and education about how to avoid,
recognize and report such violations. States Parties shall also ensure those
working with persons with disabilities are trained to identify and prevent
such violations.
3. States Parties shall ensure that all facilities and programmes, both
public and private, where persons with disabilities are placed together,
separate from others, are effectively monitored by independent authorities,
which include persons with disabilities, and the monitoring reports made
available to the public to prevent the occurrence of violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including
economic and sexual exploitation and abuse.
4. Where persons with disabilities are the victim of any form of violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including economic and sexual exploitation and abuse, States Parties shall
take all appropriate measures, including peer support, to promote their
physical and psychological recovery and social reintegration. Such recovery
and reintegration shall take place in an environment, which fosters the
health, self respect, dignity and autonomy of the person.
5. States Parties shall ensure the identification, reporting, investigation,
prosecution and follow-up of all instances of violence, injury, abuse, neglect
or negligent treatment, maltreatment or exploitation, including economic
and sexual exploitation and abuse, and their timely referral to appropriate
protection agencies and, where necessary, to the courts.
COMMENTS
Draft Article 12 explicitly addresses situations of violence and abuse,
in keeping with the approach taken in the UNSR, Rule 9(4) and consistent
with the approach taken in the CRC (Articles 34 and 36).
Draft Article 12(1): As noted by the EU, the phrase “States Parties recognise
that persons with disabilities are at greater risk, both within and outside
the home, of violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual exploitation and abuse” is
preambular language and should be omitted.
Draft Article 12(1) contains important language that specifies what type
of conduct falls within the scope of the provision. This language must be
retained or, as an alternative, could be inserted into a separate definitions
section. The inclusion of the term “economic exploitation,” a proposal put
forward by New Zealand and supported by other delegations (Mexico, Serbia-Montenegro),
addresses a significant gap in the Convention text and acknowledges that
people with disabilities are frequently subjected to such treatment. Such
inclusion is consistent with international human rights law. Notably, the
CRC includes a separate article on economic exploitation (Article 36).
Draft Article 12(1): The language “in all aspects of life” recognizes that
violence, injury and abuse occurs in all elements of an individual’s life,
including at home, school, work, and health care and rehabilitation facilities.
Draft Article 12(2) addresses measures that States must take in relation
to the prevention of violence and abuse. This language is consistent with
the UNSR, Rule 9(4). Language found previously in Draft Article 12(2) (on
forced interventions and forced institutionalization) has been deleted on
the basis that this type of human rights abuse is more appropriately addressed
within the parameters of Draft Article 11 (Torture).
Draft Article 12(3) discusses the need for States Parties to take measures
to prevent violence and abuse and includes the kinds of measures to be undertaken,
such as the provision of information, education, and training.
It is also important to emphasize the need for any information on such matters
to be available in accessible formats, issues that could also be addressed
in Draft Article 19 (Accessibility).
Draft Article 12(3) recognizes that the risk of violence, injury and abuse
is higher in segregated settings and addresses the need for monitoring of
both public and private facilities and programs. It is important that it
includes requirements on how the monitoring be conducted, including the
dissemination of reports.
Draft Article 12(4) outlines State obligations with regard to victims of
violence, injury and abuse. Specific mention of the term “peer support”
is appropriate given the widespread recognition that such support can play
a positive role in the context of recovery from this form of human rights
abuse. The inclusion of language “such recovery and reintegration shall
take place in an environment which fosters the health, self-respect, dignity
and autonomy of the person” (New Zealand) is important as it seeks to ensure
that such actions do not contravene the individual’s wishes, autonomy of
decision-making and dignity.
Draft Article 12(5) outlines further State obligations with regard to victims
of violence, injury and abuse. The inclusion of prosecution recognizes the
severity of the violations, and provision is also made for the timely intervention
of protection agencies and the courts, where necessary.
Remedies: It is critical that remedies be available for any violations of
this provision. Nevertheless, there should be a general remedies section
that applies to any violation of the Convention. Remedies would include
immediate termination of the prohibited acts as well as appropriate redress.
(See separate analysis of this, “Remedies” in Draft Article 4(2))
PEOPLE WITH DISABILITY AUSTRALIA
Article 12: - Freedom from Violence and Abuse
We strongly support the thrust of Article 12 but recommend a number of amendments
to increase the clarity and scope of the article.
The phrase “in and out of the home” in paragraph 1 should be replaced with
the phrase “in all aspects of life,” as this term better encompasses the
various domains in which people with disability are vulnerable to violence
and abuse.
Harassment, victimisation, vilification, economic exploitation and emotional
abuse need to be added to the types of harm specified in paragraphs 1, 3,
4 and 5.
This article also needs to be strengthened in its references to the measures
required to be taken by States, in terms of enacting prohibitions of harms
against people with disability, the establishment of protective services
to investigate and prosecute these harms, and support services for victims.
The article should address the fact that people with disability are systemically
excluded from programs and services provided to the general population that
have the aim of reducing exposure to violence, and emergency and short-term
residential and other support services provided to people escaping violence.
The article ought to therefore include a paragraph guaranteeing that violence
prevention and relief services are fully accessible to people with disability.
The term “judicial involvement” in paragraph 6 is vague and uncertain, and
ought to be clarified. Laws, legal procedures, and rules of evidence need
to be modified, adjusted and applied flexibly if they are to effectively
combat crimes perpetrated against people with disability, including crimes
of violence and abuse. The article should contain an acknowledgement that
certain groups of people with disability are subject to even greater levels
of abuse, particularly women and children with disability, indigenous people
with disability, and people with multiple and severe impairments.
Apart from these substantive issues, the article is unnecessarily dense
and repetitive.
Taking into account the concerns outlined above, article 12 might be reformulated
as follows:
1. States Parties to this convention shall recognise that persons with disability
are at greater risk of harm than other people in all aspects of life. These
harms include physical, sexual and emotional violence and abuse, harassment,
victimisation, vilification, sexual and economic exploitation, abduction,
neglect, negligent treatment and injury.
2. States Parties to this convention shall therefore take immediate and
effective measures, including all required legislative, administrative,
social, educational and other measures, to protect people with disability
from harm. Such measures shall include:
(i) The enactment and enforcement of laws prohibiting harms against persons
with disability. Such laws shall carry criminal and administrative penalties
commensurate with the serious of the harm they proscribe;
(ii) The establishment of protective services and procedures for the identification,
reporting, referral, investigation, and prosecution of harms against persons
with disability;
(iii) The modification, adjustment and flexible application of legal procedures,
practices and rules, including rules of evidence, to facilitate the effective
investigation and prosecution of harms against persons with disability;
(iv) Continuing professional education for persons working in investigatory,
prosecutorial, and judicial roles aimed at developing their knowledge and
sensitivity in relation to harms against persons with disability;
(v) Protection from forced intervention or forced institutionalisation aimed
at correcting, improving, or alleviating any actual or perceived impairment;
(vi) Harm prevention and minimisation measures, including the provision
of information and public education;
(vii) Assistance to victims of harm, including medical, health, psychological
and other support services, that will promote recovery and social reintegration;
(viii) Ensuring all programs and services provided to the general population
aimed at reducing exposure to harm, and to persons escaping harm, are accessible
to persons with disability;
(ix) Effective monitoring of all public and private services, facilities
and programs for people with disability.
3. States Parties to this convention shall recognise that certain groups
of people with disability are especially at risk of harm, including women,
children and young people with disability, indigenous people with disability,
and people with multiple and severe impairments. States Parties to this
convention will take immediate and effective special measures to protect
these groups from harm.
WORKING MEETING OF NGOs FOR PERSONS WITH DISABILITY FROM UKRAINE, RUSSIA,
BELARUS & MOLDOVA
Article 12
Freedom from violence and abuse
Issue 1 after the words “… are at greater risk, both within and outside
the home, of violence, injury or abuse neglect or negligent treatment, maltreatment
or exploitation, including” to add: “emotional abuse …”
Issue 4, after “are effectively monitored by independent authorities” to
add “as well as state and civil society organizations’ representatives”