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Contributions submitted by Governments
in electronic format at the Fourth Session

Proposed Modifications to Draft Article 9

African Group

ARTICLE 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW

States Parties shall:

(a) Recognize persons with disabilities as individuals with equal rights before the law;

(b) Accept that persons with disabilities have full legal capacity on an equal basis except as provided by law;

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

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

(ii) Relevant decisions are taken by a competent, (independent) and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards (including periodic review)

(iii) Provide persons with disabilities with adequate support services to develop networks for supported decision-making.

(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, to participate in all stages of procedure in courts and tribunals, as well as to enter into binding agreements or contracts, to sign documents and act as witnesses;

(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, mortgages and other forms of financial credit;

Canada

ARTICLE 9

1. States Parties shall recognize that, in civil matters, adults persons with disabilities have a legal capacity identical equal to that of other adults persons and shall accord them equal opportunities to exercise that capacity. In particular, they shall recognize that adults persons 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.

2. States Parties shall ensure that where adults persons 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 person’s individual circumstances.

3. Only a competent, independent and impartial authority, under a standard and procedure established by law, including provision for review, can find a adult person not to have legal capacity unable to exercise their legal capacity with support. States Parties shall provide by law for a procedure with appropriate safeguards, including provision for review, for the appointment of a personal representative to exercise legal capacity on the adult’s person’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 person’s degree of legal incapacity inability to exercise their legal capacity with support and tailored to the adult’s person’s individual circumstances; and,

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

Chile

Article 9: Equal recognition as a person before the law.

It is proposed that the title of this article should reflect its contents, which is legal capacity, to the extent that its provisions refer to the legal capacity of a person with disabilities to acquire rights and assume obligations.

The wording of subparagraph (b), drafted by the working group, is acceptable. The word “accept” should be replaced by the word “recognize” and the sub-paragraph would thus begin:

(b) “Recognize that persons with disabilities have full legal capacity….”.

With regard to subparagraph (c), it should be borne in mind that at law, legal capacity involves:

- Capacity to enjoy : the capacity to acquire rights which are inherently unrestricted;

- Capacity to exercise: capacity to take action within the realm of the law, including assuming obligations.

This latter capacity may require in very exceptional circumstances assistance from third parties. Therefore, the wording of subparagraph (c ) drafted by the working group is acceptable.

However, given the importance of the issue and in the interest of safeguarding the human rights and fundamental freedoms of people who are so impaired as to require assistance on a more continuing basis and support or assistance from third parties in exercising their legal capacity ( which is referred to as formal assistance), the Convention should provided that such assistance should always be strictly exceptional and accompanied by a number of safeguards for the protection of persons, including the adoption of a decision on due process sanctioned by duly constituted tribunals (inter alia, the right to be duly notified or informed, the right to have full answer and to defence, be allowed time to produce evidence, the right to appeal and periodic revisions), the involvement of a public advocate in the process to protect the interests of the person with disability; the framework for the decision on formal assistance should always be respect of human rights and fundamental freedoms of individuals, oversight from time to time to ensure that such assistance is adequate, using the protection of the above-mentioned rights and freedoms as a frame of reference.

We support the working group’s proposal to incorporate Kenya’s input to the effect of inserting in subparagraph (e) the right to use or dispose of property; the subparagraph would read as follows:

(e) “Take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit use or otherwise dispose of property….”

A specific and separate article on access to courts for persons with disabilities as a form of the so-called equal protection under the law in exercise of their rights is proposed. While this international convention has dealt with the different types of access that should be guaranteed to persons with disabilities, it is vital to stress the issue of "access to courts", a broad concept which covers various substantive and procedural aspects. Such access constitutes one of the main pillars of the exercise of citizenship rights and has been particularly difficult for persons with disabilities, owing to the barriers and obstacles in that area which them their day in court. Here, we are referring not only to the right of persons with disabilities to bring an action for discrimination or violation of their rights because of their disabilities, but also to the prosecution of such action in various areas under the jurisdiction of civil, criminal, labour, neighbourhood courts etc, with the person with disabilities being either the plaintiff, defendant, complainant, respondent, witness, petitioner or appelant in non-contentious proceedings etc. Therefore, the following wording is proposed:

"Pursuant to the principle of equal protection before the law in the exercise of human rights, States should guarantee adequate access to courts for persons with disabilities, facilitating their effective role as direct or indirect parties to contentious and non contentious legal proceedings"

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,³⁶ 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;

(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;³⁷

EU Proposal: replace paragraph (c) with Canadian language:

“2. States Parties shall ensure that where adults persons 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 persons individual circumstances.

3. Relevant decisions, inter alia on the loss or restriction of legal capacity, are taken by a competent, independent and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;

4. 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 person'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 person's degree of legal incapacity and tailored to the adult's person's individual circumstances; and

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

(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.

EU proposal: renumber 9(f) into 9(5)

Japan

Art.9(g)
The Japanese Government wish to make slight modification to our proposal made in the 3rd Ad Hoc Committee in order not to be interpreted as generating spec ial rights that persons without dualities could not enjoy in this context:

"Take appropriate and effective measures to eliminate physical and communicati on barriers and to reduce understanding difficulty of persons with disabilitie s in order to exercise the rights provided in Article 14 of the International Covenant on Civil and Political Rights."
(Modification made in the part "in order to exercise...Political Rights.")