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Daily summary of discussions related to Article
10
LIBERTY AND SECURITY OF THE PERSON
UN Convention on the Rights of People with Disabilities
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #4
August 26, 2004
MORNING SESSION
ARTICLE 10: LIBERTY AND SECURITY OF THE PERSON
Venezuela agreed in principle with Article 10 as drafted,
with minor changes. In 10(2)(b), the term “technical information” should
be added. In 10(2)(c) “in Braille and in sign language” should also
be added.
Mexico withdrew its proposal to delete language in
10(2). Mexico supports the inclusion of Colombia’s proposal in 1(e).
It withdraws its proposals for 2(d) and 4.
Canada supported inclusion of Article 10. Canada does
not support the Korean proposal for 10(2)(a). It supports the Chinese
and New Zealand proposals for 10(2)(b), and supports replacing “legal”
with “counsel” which is common terminology in human rights law. Canada
supports including a subparagraph on compensation and encourages delegations
to consider the Canadian proposal in this regard. Canada seeks clarification
of the Mexican proposal for a new paragraph 10(4).
Mexico, in response to the Chair’s request, reiterated
its proposal for 10(4)bis and indicated that it would consult with Canada
to clarify its meaning.
Japan noted that it proposed deleting 10(2)(c)(ii)
at AHC3 and clarified that it did so on the basis that it does not differentiate
between deprivation of liberty based on criminal conduct, in which case
there is no need for additional review, or for other reasons.
Costa Rica reiterated the importance of the Article
to ensure that PWD are guaranteed their right to freedom and not deprived
of their due process rights. Costa Rica supports the proposal of Mexico
in 10(2) and 10(2)(d) and new paragraph (4) ,and the proposal of China
and New Zealand in 10(2)(b). It expresses concern for the Korean proposal
for 2(a) as it may be too broad in scope. There is no distinction as
to who will be the subject of periodic review in 2(c)(ii).
Chile reaffirmed the WG text for 10(1)(b) but amended
to include language ensuring due process. It supports the Ugandan proposal
in 1(c)bis, but it should be moved to (2). It supports the inclusion
of a paragraph covering the confinement of PWD in line with the EU proposal
for 2(d).
China supports the WG article in general terms. In
10(1)(b) it supports the Canadian proposal to add the term “solely.”
In 2(b), China reiterates its proposal from AHC3 to add “applicable
law,” and supports the New Zealand proposal for 2(b). It supports the
statements of several delegations to delete 2(ii), and supports the
EU proposal for an additional sub-paragraph 2(d).
New Zealand noted additional text around the issue
of civil commitment, but this can be addressed elsewhere in Articles
11 and 12. It supports the Canadian amendment to add “solely” in 10(1)(b).
In 10(2)(d), the following text should be added: “unless the deprivation
of liberty is a result of criminal conviction in which case review will
be subject to States Parties legislation” to ensure that disabled prisoners
do not enjoy additional rights from others. The right to compensation
should be included, so long as it is consistent with 9(5) ICCPR. New
Zealand maintains its proposal in relation to 2(b).
The Netherlands (EU) withdrew the earlier EU proposal
for a new Article 3 concerning forced institutionalization, and introduced
a new proposal including a detailed reworking of 10(2)(b), available
at: http://www.un.org/esa/socdev/enable/rights/ahc4da10.htm.
South Africa supported the inclusion of Article 10,
and is generally satisfied with the WG draft. In 10(1)(a), the definition
of discrimination in Article 3 should be included and made relevant
under Article 10. It rejects the proposal of some delegations to include
the term “solely” in 10(1)(b), as it implies that other types of discrimination
may be tolerated. It supports the proposal of Uganda in 1(c), but the
definition of rehabilitation must in that case be included in Article
3. South Africa does not support the use of “applicable law” in 10(2)(b)
or elsewhere. It supports the Colombia proposal for 10(2)(e). It cannot
support the EU language on forced institutionalization without inclusion
of qualifying language which it will provide to the Secretariat. South
Africa supports in its entirety the proposal of Mexico for a new paragraph
10(4).
Republic of Korea clarified its proposal regarding
10(2)(a). The purpose is to make clear that people with disabilities
may or may not need assistance. The first part of the proposal should
be maintained, at a minimum.
Thailand welcomed the proposal of the EU on forced
institutionalization as new 10(1)(b), but with removal of the term “exclusively.”
The Japanese proposal to delete 10(2)(c)(ii) is unnecessary as it is
connected to access to assistance.
Serbia and Montenegro supported the EU proposal for
10(1)(b). It also supports the deletion of (d) and its insertion as
a separate paragraph (3), in line with proposals by Canada and Lebanon,
though with some possible changes, and the New Zealand proposal for
10(2)(b). It supports the inclusion of language relating to conditions
of confinement of PWD.
Ethiopia stressed the importance of ensuring that criminal
administrative processes must be assessed from a disability perspective.
Disability cannot be an obstacle for a speedy trial in any criminal
process.
Namibia supported the insertion of 10(1)(c) as proposed
by Uganda, but placed under 10(2). It supports Korea in relation to
10(2)(a). It supports the Mexican proposals for 10(2)(d) and 10(4),
but ending with the term “freedoms.”
The Disability Caucus supported the separation of Article
10 into two parts. The prohibition against arbitrary or discriminatory
detention is about deprivation of liberty based on disability and is
a single issue requiring its own treatment. The Caucus proposal is available
at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc.
It supports the requirements of compensation as it is reflected in the
ICCPR. The Caucus proposes a new Article 10bis which addresses in detail
the situation of PWD who are under arrest and detention and other access
to justice issues. The Caucus is strongly opposed to the use of the
term “solely” in 1(b).
DPI supported the Caucus proposals and stressed two
points from the consumer perspective. DPI supports the proposal of New
Zealand at AHC3 regarding the need to ensure that PWD have the right
to be informed of their rights and reasons for any deprivation of liberty.
Second, it is necessary that humane treatment must be accorded to PWD
who are under arrest and detention. The convention text must explicitly
address these issues.
The Chair concluded discussions on Article 10 and introduced
Ambassador MacKay of New Zealand to review the process to be followed
during the remainder of the 4th session.
Ambassador MacKay expressed his appreciation for being
invited to assume a coordinating role. He reviewed the process by which
the WG had operated and noted his understanding that the Committee wanted
to maintain this type of operating procedure. He noted that there are
some substantive issues that may be problematic with some of the articles,
but that others would be capable of easier resolution. He also noted
the valuable drafting proposals that could be resolved quickly in the
main informals. There would be informal plenary sessions, without parallel
sessions. He also noted that facilitators are assigned to the articles
under consideration in the second reading. All meetings would be open-ended,
and no meeting would be closed. He noted the WG experience where it
was helpful to have recourse to smaller groups guided by facilitators,
and that not all delegations would feel the need to attend, though those
with particular issues on an article should, where possible, attend
the smaller informals. All delegations are free to raise issues with
the draft at any point, though they are encouraged to make use of bilateral
consultations as well as smaller meetings with facilitators where they
have an issue with a particular article. He reminded the Committee that
“the perfect is the enemy of the good” and that “nothing is agreed until
everything is agreed.”
The Chair thanked Ambassador MacKay and opened the
floor for discussion of Article 11.
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