Comments on the draft text
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Article 10: Liberty and security of the person
EDF considers very important that no deprivation of the liberty of a person is made on the ground of disability.
Paragraph 2 of article 10 is weaker than existing rights under international law. It therefore should either be deleted or changed accordingly. Indent d) of this paragraph should be kept.
Draft Article 10 is of particular significance, given the heightened exposure to deprivation of liberty (particularly in the context of institutionalization) faced by many people with disabilities. As drafted, Draft Article 10 does not adequately address the various contexts in which deprivation of liberty can occur for many people with disabilities (e.g. criminal context, civil commitment context), which will be important to highlight if (as Footnote 35 indicates) Draft Article 10 is to be interpreted with broad application.
Draft Article 10 also does not adequately set forth the procedural safeguards and standards of review to be utilized. For instance, Draft Article 10(2)(a) assumes there will be occasions on which people with disabilities are deprived of their liberty, and sets forth requirements to be observed in respect of such deprivation. Notably, the protections as drafted do not provide the level of specificity that one would expect, especially given existing procedural safeguards in other relevant international instruments. Draft Article 10(2)(a) importantly requires that people with disabilities deprived of their liberty are to be “treated with humanity” but does not provide any further elaboration on what it means to be treated with humanity. Although the MI Principles do not reflect current thinking about disability within the context of the social model, they do detail what it means to, for example, treat someone who is institutionalized with humanity. (Cf. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, Principle 13)
Draft Article 10(2)(c) references the right to “prompt access to legal and other appropriate assistance,” but it does not explicitly grant a right to counsel, nor does it indicate who makes the determination of whether the assistance is “appropriate” or how that determination should be made. Draft Article 10(2)(c)(i) provides the right to “challenge the lawfulness of the deprivation of liberty,” but it does not provide a right of appeal from any decisions in that regard. On a related matter, as noted in Footnote 36, it is also unclear whether civil commitment is prohibited. If civil commitment (a procedure frequently utilized to deprive people with disabilities of their liberty) is permitted, it will be important to set forth the applicable procedural safeguards and standards of review. In this regard, the Ad Hoc Committee may wish to consider the increasing “criminalization” of due process standards in the civil context, and reference procedural safeguards traditionally utilized in the criminal context. (Cf. International Covenant on Civil and Political Rights, Article 9)
Para (b), it must be total clear that PWD shall not be deprived of the right to liberty in all aspects of life.
A more wide interpretation of “liberty” is needed, which could widen up the concept and not only refer it to legal or jurisdictional interpretation.
(a) treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs they have because of their disabilities;
(b) provided with adequate information in accessible formats as to the reasons for their deprivation of liberty;
(c) provided with prompt access to legal and other appropriate assistance to;
(i) challenge the lawfulness of the deprivation of their liberty before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action);
(ii) seek regular review of the deprivation of their liberty;
(d) ] ADD: persons with disabilities are provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention.”
Paragraph 2(c)(i) articulates a lower standard than that found in ICCPR article 9(4) which requires the opportunity to challenge in a court the lawfulness of any official detention. The Human Rights Committee has reiterated in General Comment 8 that “court control of the detention must be available.”
The remainder of paragraph 2(a)-(c) is confusing and inadequate, considering that detention based on disability is prohibited in paragraph 1(b) and thus the focus needs to be shifted to the situations faced by persons with disabilities subject to criminal arrest and detention or other forms of detention unrelated to disability itself. Paragraph 2(c)(ii) is only relevant in situations where there is an indefinite term of detention and has been developed particularly in the context of detention based on disability. This provision should be analyzed in comparison with international human rights norms addressing detention in general, to determine whether it is necessary given the prohibition of detention based on disability.
Subparagraph a is too vague to be of much use. Reference to the “needs” of people with disabilities is unclear as to how such “needs” may be determined or who decides what is needed. Standards should be articulated for systemic accessibility of detention facilities and programs offered within them, disability-related services that must be provided in order to ensure the well-being of persons with disabilities under detention, and reasonable accommodation to cover individualized requirements in an interactive manner without forcing any person to accept an accommodation.
Subparagraph b is unobjectionable but reads oddly as the only such elaboration
of accessibility rights in the context of procedural justice. The Chair’s
draft text (article 14 paragraphs 4 and 5), the Bangkok draft (article
13, paragraphs 4 and 5) and the Mexican proposal (article 10) provide
a basis from which to develop further work.