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Article 14 - Liberty and security of the person
Background Documents | Article 14 Background
Seventh Session | Fifth Session | Fourth
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Working Group | References
Seventh Session
Governments
Non-governmental organizations
International Disability CaucusInternational Disability Convention Solidarity in Korea
People with Disability Australia
Comments, proposals
and amendments submitted electronically
Governments
Proposal on Article 14
Paragraph 1(b):
We propose to delete "in no case shall" in Para 1(b) and insert "shall not" before "justify". So the latter part of 1(b)will read "the existence of a disability shall not justify a deprivation of liberty".
China can agree with Japan's proposal to change the latter part of 1(b) to " in no case shall the existence of a disability
solely or exclusively justify a deprivation of liberty".
Paragraph 2:
Paragraph 2 should read:
"States Parties shall ensure that if persons with disabilities are deprived of their liberty through a civil, criminal or administrative process, they are entitled to minimum guarantees and to non-discrimination on an equal basis with others."
EU Proposal, 19/1/2006
1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) enjoy the right to liberty and security of person;
(b) are not deprived of their liberty unlawfully or arbitrarily, and in no case shall the existence of a disability justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention including by provision of reasonable accommodation.
Article 14
1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) enjoy the right to liberty and security of person;
(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and in no case shall the existence of a disability justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through a civil, criminal, administrative or other process, they have at least the following guarantees:
(a) to be treated with humanity and respect for the inherent dignity and worth of the human person, and in a manner that respects their human rights, conforms with the objectives and principles of this Convention, and reasonably accommodates their disability;
(b) to be provided promptly with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;
(c) to be provided with prompt access to legal and other appropriate assistance to:
(i) challenge the lawfulness of the deprivation of their liberty;
(I)BIS and to receive a fair hearing, including the right to be heard 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 review on an equal basis with others of the deprivation of their liberty, including periodic review as appropriate;
(d) to have an enforceable right to compensation in the case of unlawful deprivation of liberty based solely on such person’s disability.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS (IDC)
Chairman’s text as amended by the IDC
Article 14
LIBERTY AND SECURITY OF THE PERSON
1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) enjoy the right to liberty and security of person;
(b) are not deprived of their liberty unlawfully or arbitrarily, (DELETE: “and that any deprivation of liberty is in conformity with the law”), and in no case shall (DELETE: “the existence of a”) disability (REPLACE: “justify” WITH “be a factor in”) a deprivation of liberty.
(JUSTIFICATION: The provision that “deprivation of liberty shall be in conformity with the law” makes the Convention a least common denominator of domestic laws; if mental health laws give power to the authorities to detain people with psychiatric diagnoses (or suspected of such “disorders”), then this part of the sentence says that this deprivation of liberty is in compliance with the Convention. The same would be true for laws authorizing custody of people deemed “insane” or “of unsound mind”. “In no case shall the existence of a disability justify a deprivation of liberty” does not help to fix the previous concern as deprivation of liberty will be not justified by the existence of the disability, but by other factors that, however, only apply to people with psychiatric diagnoses or suspected of them. This formulation has all the problems the earlier proposal had (“exclusively”, “solely”). )
2. State parties shall ensure that if persons with disabilities are deprived of their liberty through (REPLACE: “a civil, criminal, administrative or other” BY “any”) process, they (REPLACE “have at least the following guarantees” BY “are entitled to minimum guarantees on an equal basis with other persons deprived of their liberty, and to non-discrimination including accessibility and reasonable accommodation with respect to all relevant information, communication, services, procedures and facilities.”)
(JUSTIFICATION: Paragraph 2 as a whole is not correctly placed on a basis of non-discrimination. In addition to enjoyment of equal rights, people with disabilities under any form of arrest or detention need to be assured accessibility and reasonable accommodation. Due to the powerless state of prisoners under remand, the interactive process of seeking reasonable accommodation may not be sufficient, and a requirement of systemic accessibility is needed.)
(a) (DELETE THIS PARAGRAPH: to be treated with humanity and respect for the inherent dignity and worth of the human person, and in a manner that respects their human rights, conforms with the objectives and principles of this Convention, and reasonably accommodates their disability;
(JUSTIFICATION: The element of added value in this paragraph was a requirement of reasonable accommodation, which we recommend should be moved to the chapeau of paragraph 2 as shown. Reasonable accommodation and accessibility should be generalized to all obligations and rights in the context of arrest and detention.)
(b) (DELETE THIS PARAGRAPH: to be provided promptly with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;)
(c) (DELETE THIS PARAGRAPH: to be provided with prompt access to legal and other appropriate assistance to:
(i) challenge the lawfulness of the deprivation of their liberty and to receive a fair hearing, including the right to be heard 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 review on an equal basis with others of the deprivation of their liberty, including periodic review as appropriate;)
(d) (DELETE THIS PARAGRAPH: to have an enforceable right to compensation in the case of unlawful deprivation of liberty.)
(JUSTIFICATION: Delete subparagraphs 2b, 2c and 2d, which are unnecessary once a basis of equality with others is ensured for all relevant rights.)
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
IDCSK fully supports the proposals made by the IDC except only the below.
Article 14
(We suggest the paragraph 2 of article 17 be moved here as a new paragraph 3
3. States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.)
Article 14
1. Paragraph 1 (b) should be modified as follows:
Are not deprived of their liberty unlawfully or arbitrarily, and in no case shall the existence of a disability be made a requirement or a factor of deprivation of liberty.
[Reason] Legitimizing deprivation of liberty on the basis of an existence of a psychiatric disability, or in fear of a person with psychiatric disabilities harming oneself or others tramples on the basic human rights of people with psychiatric disabilities, and cannot be accepted in any case.
2. Proposal for a new Paragraph 2 of Article 14
States Parties ensure that if persons with disabilities are deprived of their liberty by any process they are assured accessibility and reasonable accommodation and entitled to the following minimum guarantees in accordance with national laws of general application on an equal basis with others;
(a) To be treated with humanity and respect for the inherent dignity and worth of the human person;
(b) To be treated with respect for autonomy and self-determination, and be assured reasonable accommodation of the individual’s requirements immediately;
(c) To have access promptly to all facilities, information, services and programmes available to the general population deprived of their liberty;
(d) To be provided promptly with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;
(e) To be provided with prompt access to legal and other appropriate assistance to challenge the lawfulness of the deprivation of their liberty and to receive a fair hearing, including the right to be heard before a court (in which case, they shall be provided with a prompt decision on any such action);
(f) To have an enforceable right to compensation in the case of unlawful deprivation of liberty.
[Reason] The proposed draft is based on the proposal by the International Disability Caucus (IDC). The reasons for the changes are as follows. It is necessary to avoid expressions that would leave room for the interpretation that any deprivation of liberty is permissible if permitted by law. Also, deprivation of liberty through civil procedures included in the chairman’s draft does not exist in Japan. Moreover, when deprived of liberty, the need for reasonable accommodation and minimum level of guarantee generally ensured are to be stressed. Further, the phrase “other competent, independent and impartial authority” in C
(i) of paragraph 2 of the chairman’s draft is deleted. Rights concerning confinement should not be brought down below the level prescribed by the ICCPR.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Report on National Consultations
Article 14
Participants discussed the detail of this article extensively. It was noted that there is a direct relationship between this article and that of Article 12. Much of the discussion on this article related to compulsory assistance (or involuntary institutionalisation and treatment) of people with disability, particularly but not exclusively, people with mental illness.
As with the debate regarding Article 12, participants indicated that compulsory assistance has led to the abuse and neglect of the human rights of people with disability in all parts of the world. However, participants also recognised that failure to render compulsory assistance in some circumstances has also lead to the abuse and neglect of the human rights of people with disability.
Some participants argued that compulsory assistance by its very nature is a violation of human rights. One participant argued that prohibiting compulsory assistance would put pressure on States to develop supports and treatments that would support consumers to not be subject to compulsory assistance and that would render it redundant.
However, most participants did not view compulsory assistance as inherently incompatible with human rights, and argued that in some cases it is necessary for the realisation of human rights and that to ensure this, that any form of compulsory assistance must be limited to exceptional circumstances and be subject the stringent safeguards.
To this end, participants suggested the inclusion of the text ‘exceptional circumstances’ in order to limit the scope of States Parties to enforce compulsory assistance. Further, many participants expressed concern that any deprivation of liberty must be subject to prompt, judicial review independent of executive government. In addition, concerns were expressed to ensure that persons with disability subject to compulsory assistance have access to free, accessible advocacy and legal representation. In addition, concerns were expressed to ensure this article (similar to that expressed in Article 12) allows for an automatic review as well as review and appeal initiated by the person subject to the compulsory assistance order.
Recommended text
1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) enjoy the right to liberty and security of person;
(b) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and undertaken in exceptional circumstances, and in no case shall the existence of a disability justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through a civil, criminal, administrative or other process, they have at least the following guarantees:
(a) to be treated with humanity and respect for the inherent dignity and worth of the human person, and in a manner that respects their human rights, conforms with the objectives and principles of this Convention, and reasonably accommodates their disability;
(b) to be provided promptly with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;
(c) to be provided with prompt access to free legal and other appropriate assistance to:
(d)
(i) challenge the lawfulness of the deprivation of their liberty and to receive a fair hearing, including the right to be heard 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) and to a prompt initial automatic review of involuntary detention, as well as regular automatic reviews at least every six months;
(ii) to receive a prompt automatic initial and independent review of their deprivation of liberty, as well as regular automatic reviews at least every six months;
(e) to have an enforceable right to compensation in the case of unlawful deprivation of liberty.