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Contributions submitted by Governments
in electronic format at the Fourth Session

Proposed Modifications to Draft Article 12

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

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.

New Zealand

• 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:
  • 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
  • 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.

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

The Facilitator

Facilitator´s suggestions on what parts of Art. 12 to be moved elsewhere:

• (para 1 of Art.12 as of 26 August) to preamble
movement suggested by EU, NZ, Can., Jap., SerbMN, Mex.
(deletion from art. 12 proposed by Argentina, China):

[States Parties recognize – Sierra Leone] (Recognizing – Sierra Leone) that persons with disabilities are at great risk, both within and outside home of (abandonment – Rep.Korea) violence, injury or (mental or physical – Mex.) abuse, neglect or negligent treatment, maltreatment or exploitation, including (economic and – NZ) sexual exploitation and abuse.

• (para 2quint of Art.12 as of 26 August) elsewhere or merge with preamble (unless reformulated and retained in art.12 as proposed by Sierra Leone
movement suggested by Can., South Afr., Costa Rica, Serbia MN, possible for Syria, Jordan (deletion from art. 12 proposed by EU, USA)

States Parties recognize that armed conflicts particularly undermine the freedom from violence and abuse of persons with disabilities. States Parties shall, therefore, take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities from armed conflict (including foreign occupation – Palest., Syria) – Kenya)

• to Art. 9, or 13 or u>even 19 (unless decided to reformulate and keep in Art. 12)
movement suggested by facilitator in case there is no placement in Art. 12

(States Parties shall ensure) (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. – Israel)

Article 12 -
Freedom from violence and abuse
FACILITATOR´s COMPILED PROPOSAL of 30 August

plain text = text from Working Group
text in bold = proposals by delegations as of 26 August
bold italic = text proposed by facilitator to consolidate different proposals
remarks or suggestions by facilitator

1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities (and their families — Jordan) both within and outside the home, from all forms of (abandonment — Republic of Korea) violence, injury or (mental or physical — Costa Rica) abuse, (abduction, harassment, – EU, Norway) neglect or negligent treatment, maltreatment or exploitation, including sexual (and economic — Mexico, NZ) exploitation and abuse (– with option of combining 11 and 12 kept open).

2. In particular, states Parties shall protect persons with disabilities from all forms of medical or related interventions, (inter allia sterilization or abortion, – Uganda, Kenya) carried out without the free and informed consent of the person concerned. All such involuntary interventions shall be illegal, except as provided for in subparagraphs (2bis) to (2quat) below.

2 bis. Where 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.

2 ter. 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.

2 quat. 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 and abuse by ensuring, inter alia, (appropriate forms of assistance and – India) support for persons with disabilities and their [families – Rep.Korea] (caregivers – Trinidad Tob.) (representative organizations – Rep. Korea), including through the provision of information (and education (. – Rep. Korea to stop here) on how to avoid, recognize and report instances of (violence and abuse) above. – NZ, EU, Chile to delete if still repetitive to para 1]

3. bis [Special attention shall be paid to measures reflecting particular vulnerability of persons with disabilities in situations of emergency, inter allia during (armed conflicts – according to Kenya) or (foreign occupation – according to Palest., Syria). – EU, NZ, Chile to delete special para on ”protection from armed conflict”]

4. States Parties shall ensure that all facilities and programs, both public and private, where persons with disabilities [are placed together, separate from others, — Uganda] (live or access services — Uganda, South Afr., Costa Rica) are effectively monitored (in coordination with civil society – according to Mex.) (by independent authorities, which include persons with disabilities and which make monitoring reports available to public, - according to NZ, South Afr., Chile) in order to prevent the occurrence of violence (or abuse above.)

5. Where persons with disabilities are victims of any form of violence or abuse above, States Parties shall take all appropriate measures39 to promote their physical and psychological recovery (, rehabilitation — Philippines, South Afr.) and social reintegration (including through the provision of protection services — Trinidad and Tobago). (Such recovery and reintegration shall take place in an environment which fosters the health, self respect, dignity and autonomy of the person. — NZ)

6. (States parties shall put in place effective policies and legislation to ensure that instances of violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted and that protection services are available in such cases. - EU)

Facilitator suggests consideration of appropriate use of some of the concepts bellow, but most probably in the context of other articles (Art. 9, 13 or 19):
(- accommodation of investigative and judicial proceedings , including testimonial procedures, to the special needs of persons with all types of disabilities
- measures to promote legislation that ensures the accessibility of the legal process – accord. to Israel)