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The Convention on the Rights of Persons with Disabilities - Description

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The Convention on the Rights of Persons with Disabilities - Description

1. Overview of the Committee on the Rights of Persons with Disabilities

2.  Individual Complaints Procedure of the Committee on the Rights of Persons with Disabilities

a. Registration of the Communication and Preliminary Procedures

i. Submission of the Communication

ii. Registration of the Communication

iii. Transmittal to the State Party

iv. Interim Measures

b. Admissibility and Submissions from the Parties

c. Determination of the Merits and Follow-up

3. Examples of Potential Cases Relating to the CRPD

1. Overview of the Committee on the Rights of Persons with Disabilities

The Committee on the Rights of Persons with Disabilities (CRPD) is responsible for receiving and considering complaints under the Optional Protocol to the Convention. The Optional Protocol entered into force on 3 May 2008.

The Committee follows specific procedures in the consideration of individual complaints.  The procedure originates from three sources: the provisions of the Optional Protocol, the Rules of Procedure that have been adopted formally by the Committee, and the Committee’s customary practices.  By 2012, the CRPD had received individual complaints, but has not yet formally decided the outcome of any cases. 

The Committee is composed of 18 experts, nominated and elected by states parties. Members serve in their personal, independent capacity.  The Committee meets twice annually in Geneva, normally in April and September.  Although most meetings are public, when the CRPD or its working group considers individual complaints, the meetings are “closed” to the public.

To help maintain impartiality in the complaint process, the Rules of Procedure of the CRPD provide that members shall not take part in the deliberation of a case in which they have a personal interest, in which they have been participated in any way in the making of any decision in the case before it reached the Committee, or where they are a national of the state party against which a communication is directed (Rule 60).

 

Special Rapporteur on Communications and Working Group on Communications

 

According to the Rules of Procedure of the Committee, the CRPD may establish one or more Working Groups, and may appoint one or more Special Rapporteurs to assist it in any way in which the Committee may decide (Rule 63).  The Committee first appointed a Special Rapporteur on Communications at its third session in 2010.  The Working Group will also be able to make decisions regarding admissibility, extend the time for making submissions, and make recommendations to the Committee on the merits of a communication.

2.  Individual Complaints Procedure of the Committee on the Rights of Persons with Disabilities

 

a. Registration of the Communication and Preliminary Procedures

The basic process for submitting a complaint should be read together with the more specific information provided relating to the CRPD.

i. Submission of the Communication

A communication should be submitted to the CRPD through the Petitions Team, Office of the High Commissioner for Human Rights, in writing, by letter, fax or e-mail.  Faxed or electronic communications must be confirmed by signed copies received by the Secretariat.  Communications cannot be anonymous.  The state that is the subject of the complaint must be clearly identified, and must be a party to the Optional Protocol.  Although there is no mandatory format for communications, the CRPD has created a model communication form for potential complaints.  Use of the form can streamline the communication process and is advisable.

 

Where the communication does not provide the necessary information for it to be registered, the Secretariat may request further information from the author. Since the Committee will rely heavily on the facts in each particular case, it is especially important to set out all the relevant information at the outset.

It is important to include, at minimum the following information:

 

• the identity and contact information of the victim and author

• the name of the State against which the communication is directed

• the provisions of the Convention alleged to have been breached

• all the relevant facts together with any supporting documentation (such as a statement signed by the victim, witness statements, court documents, power of attorney)

• steps taken to exhaust local remedies, or evidence why local remedies are ineffective, unavailable or unreasonably prolonged

• information regarding whether this matter is or has been before any other procedure of international investigation or settlement

• the remedy requested

 

Other important points:

 

Languages and Methods of Communication

 

The official languages of the Committee are Arabic, Chinese, English, French, Russian and Spanish (Rule 26). At present, the Committee’s working languages are: English, French, Russian and Spanish; all communications should be submitted in one of these four languages.

The languages used by the Committee will include spoken and non-spoken languages, such as sign language (Rule 25).  The CRPD may receive communications in alternative formats (Rule 55): Methods of communication used by the Committee will include: languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human reader and augmentative and alternative modes, means and formats of communication, including accessible formats that may become available in the future through advances made in information and communication technology (Rule 24).

 

Time Limitations

 

There is no stipulated time limit within which to bring a claim, but very long delays in bringing the claim may be considered by CRPD to lessen the credibility of the claim.

 

Legal Aid

 

The UN does not provide legal aid or financial assistance to authors, nor does the Optional Protocol require that States parties provide legal aid where an individual wishes to submit a communication. Authors should determine whether or not their own domestic legal aid system provides for the possibility of legal aid.

 

However, NGO’s and other legal professionals are allowed to represent the victims (with their approval). Victims are encouraged to seek assistance from NGO’s or legal professionals, or to appoint them as representatives, so as to focus their claims and facilitate the Committee’s examination.

 

Withdrawal of the Communication

 

Complainants may subsequently withdraw their communications.

 

Confidentiality (Rule 76)

 

All documents pertaining to a communication are confidential. Cases are not publicized, except by the eventual release of a decision. All meetings are closed to the public when considering communications. However, the author and the State party may make public “any submissions or information bearing on the proceedings”, provided that the Committee does not expressly ask them to refrain from doing so. At all times, the Committee may decide that certain elements of the case must remain confidential.

 

Decisions concerning inadmissibility, discontinuation or merits (Views) will be made public. Decisions that find a communication admissible will not be made public until the Committee has considered the merits of the communication. The Committee may, however, decide that the name or identifying details of the author or victim of a communication not be disclosed in its inadmissibility decisions or final views.  The Committee may make such decisions on its own initiative, or at the request of the author, victim, or state party.

 

ii. Registration of the Communication

Communications will be initially reviewed by the UN Secretariat servicing the CRPD prior to their registration.

 

The Secretariat may request clarification from the author of a communication regarding any of the following issues (Rule 57):

 

• name, address, date of birth and occupation, or other forms of identifying details or data

• the State party against which the communication is directed

• the object of the communication

• the precise CRPD provision(s) being invoked

• clarification of the facts of the claim

• information about which local or domestic remedies have been used

• information about other international investigation/settlement procedures that are being or have been used

 

The Secretary-General will indicate a time limit for replying to such requests (Rule 57). Failure to provide adequate information necessary to register a case may result in the communication not being registered.

iii. Transmittal to the State Party

Once the Committee is satisfied the communication contains sufficient information, the communication will be transmitted confidentially by the Committee to the State party for a response.

iv. Interim Measures

At any time after receipt of the communication and before a determination on the merits has been reached, the Committee may request the State party to take interim measures to avoid possible irreparable damage to the claimant. Any such requests are not prejudicial to the Committee’s final Views, nor are they an indication that the Committee has made any final decision as to the merits of the claim (Rule 64).

 

After the Committee has sent a request for interim measures, the State party may present arguments on why a request should be lifted.  On the basis of these explanations or arguments, the Committee has the discretion to withdraw its request for interim measures (Rule 64).

b. Admissibility and Submissions from the Parties

Once the communication has been transmitted to the state party, the state has six months in which to respond to the communication in writing (Rule 70). According to its Rules of Procedure, the regular practice of the Committee will be to seek a response from the state party simultaneously on both the issue of the admissibility and the merits of the communication, as well as any remedies provided in the matter. The State party’s response will then be transmitted to the author, who will be given an opportunity to comment, within a time frame fixed by the Committee.

The Committee may request the State party or the author to submit additional written explanations or statements relevant to the issues of the admissibility or merits and, if it does so, will give the other party an opportunity to comment, again within a fixed time frame.

The Committee is also entitled to obtain any documents that may assist in the consideration of the communication (for example, general country information held by NGOs or other United Nations bodies). If it does so, however, the Committee is obliged to offer both parties an opportunity to comment on the information, within fixed time limits, before relying on it (Rule 73).

 

In exceptional circumstances, the Committee may choose to depart from its ordinary procedure, and to request that the State party’s initial written explanation or statement relate only to the admissibility of a communication (Rule 70).

 

It is also possible for the state party to request that the Committee deal separately with the admissibility and the merits of a communication. Within two months of receiving a request from the Committee for its response to a communication, the State party may submit a request in writing that the communication be rejected as inadmissible, together with reasons in support of that request. The Committee will then decide whether to accede to the request to deal separately with the admissibility question. However, unless the Committee grants the State party an extension, the State party is still obliged to respond on the merits within the six month time frame.

 

Having given the author(s) a chance to comment on the State party’s submission on admissibility, CRPD will review all the information submitted by the parties, and adopt an admissibility decision. If the Committee as a whole makes the decision on admissibility, it is decided by a simple majority vote.  Where a Working Group makes a decision of inadmissibility, the decision must be made by consensus (Rule 65).

 

If the Committee decides that the communication is inadmissible, the case is finished. Where a communication has been found to be inadmissible, the author(s) may subsequently seek review of the decision if the circumstances that gave rise to the inadmissibility of the decision no longer exist or apply (Rule 71(2)).

 

Under article 2 of the Optional Protocol, the Committee will find communications inadmissible where:

  • the communication is anonymous;
  • the communication constitutes an abuse of the right of submission or is incompatible with the provisions of the Convention;
  • the same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;
  • all available domestic remedies have not been exhausted. However, domestic remedies may not have to be exhausted where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief;
  • the communication is manifestly ill-founded or not sufficiently substantiated; or
  • the facts that are the subject of the communication occurred prior to the entry into force of the Optional Protocol for the State party concerned, unless those facts continued after that date.

 

Other important points to consider:

The authors of communications

Communications may be made by or on behalf of individuals or groups of individuals.  However, the individuals or groups of individuals must all consent to the disclosure of their identity or other forms of identifying details, to the state concerned (Rule 70).

The Committee may also decide to consider jointly two or more separate complaints (Rule 67).

Legal capacity

Article 12 of the Convention sets out the right of persons with disabilities to equal recognition before the law.  This article also provides that “States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”, and that it shall provide appropriate and effective safeguards for individuals exercising their legal capacity.  Where a State party contests the legal capacity of the author in the admissibility stage of considering a communication, the Committee shall apply the criterion in article 12 of the Convention, recognizing the legal capacity of the author or victim before the Committee, regardless of whether this capacity is recognized in the State against which the communication is directed (Rule 68).

If a state disputes the legal capacity of the author(s) under article 12 of the Convention, the State party shall give details of the laws and remedies available to the alleged victim in the particular circumstances of the case (Rule 70).

c. Determination of the Merits and Follow-up

If the issue of admissibility and merits has been considered separately, once the complaint is found to be admissible, the State party is given an opportunity to make submissions on the merits of the claim.  After considering the state’s submissions on the merits, the Committee is also entitled to revoke its decision that the complaint is admissible.

The submissions of the State party are sent to the complainant, who is given an opportunity to submit additional written information or observations.

The Committee may refer any communication to a working group to make recommendations on the merits prior to the consideration of the merits by the Committee (Rule 73(3)).

Where the admissibility and the merits are considered together, the Committee must decide if the communication is admissible before it considers the merits and adopts its final Views.  The Committee will consider all the information before it and adopts its “Views” on whether or not there has been a violation of the Convention.

 

Both parties will be informed of its final decision. The Views of the Committee will be determined by simple majority and will therefore not necessarily be unanimous. Any member of the Committee who has participated in the decision may request that his or her individual opinion be attached to the Views of the Committee.

Where a violation of the Convention has been found, the state concerned is required to submit “follow-up” information six months of the adoption of Views (Rule 75).  The state party is required to inform the Committee of any action taken in the light of the Views and recommendations of the Committee.     The Committee will consider this information and may require further information to be submitted.  The Committee will designate a Special Rapporteur or Working Group on Follow-up, who will ascertain the measures to be taken in response to the Committee’s Views. (Rule 75(4)).   

 

Other important points:

 

Biennial Reports of the Committee

 

There is no sanction for failure to comply with the Committee’s Views. The Committee will follow the practice adopted by other Committees of giving publicity to its Views and follow-up information through the Committee’s biennial reports to the General Assembly.

 

Reservations

 

Reservations to the CRPD may substantially limit the ability of an individual to successfully make a case against a particular State party. It is therefore necessary to check any reservations made by the State party. At the same time, some reservations may not be compatible with the object and purpose of the treaty. In these cases, it is possible that CRPD will refuse to apply the reservation in a manner which would limit the application of the Convention in the context of a communication.

 

3. Examples of Potential Cases Relating to the CRPD

 

The Committee has started to receive individual communications, but has not yet made any substantive decisions under the Optional Protocol.  The Committee has started to consider state party reports and has adopted concluding observations, which can provide some assistance to their approach in the interpretation of Convention rights and freedoms.

 

The following information, taken from the Convention and the Committee’s early concluding observations, suggests some subject matter for potential communications.  At the same time, the application of these general principles and statements to specific circumstances will have to be further developed in the context of an individual case.

 

Equality and Non-Discrimination (article 5)

 

Article 5 recognizes that all persons are equal before and under the law, and are entitled to equal protection and benefit of the law, without any discrimination.  This article establishes an obligation to prohibit discrimination on the ground of disability, and to guarantee persons with disabilities equal and effective legal protection against discrimination on all grounds.  Reasonable accommodation is also mandated.  Any specific measures taken to accelerate or achieve de facto equality are not deemed to be discrimination under the Convention.

 

The Committee has drawn attention to issues of multiple forms of discrimination, such as women, children, minorities, or indigenous persons with disabilities.  States are required to ensure that their laws explicitly prohibit disability-based discrimination.  Disability-based discrimination can include multiple disability, perceived disability, and association with a person with a disability.  The denial of reasonable accommodation has been recognized as a form of disability-based discrimination.

 

Women with Disabilities (article 6)

 

The Convention explicitly recognizes that women and girls with disabilities are subject to multiple forms of discrimination.  States are obligated to take all appropriate measures to ensure the full development, advancement and empowerment of women, for the purpose of the exercise and enjoyment of their Convention rights.

 

Children with Disabilities (article 7)

 

Children with disabilities are entitled to the full enjoyment of all human rights and fundamental freedoms on an equal basis with other children.  In all actions, the best interests of the child is the guiding principle.  Children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children.  They are to be provided with disability and age-appropriate assistance to realize that right.

 

The Committee has considered a number of issues under this article of the Convention when considering state reports, including concerns about the living conditions of children with disabilities in institutions, the lack of access to services, as well as the prevalence of physical violence by children with disabilities generally.

 

Accessibility (article 9)

 

States are obligated to take appropriate measures to enable persons with disabilities to live independently as possible and to participate fully in all aspects of life on an equal basis with others.  Accessibility includes the physical environment, transportation, communications, information, technology, and other facilities or services, such as schools, housing, medical services and workplaces.

 

Right to Life (article 10)

 

Every human being has the right to life and persons with disabilities are entitled to the effective enjoyment of this right on an equal basis with others.  In its concluding observations, the Committee has affirmed that the right to life is absolute and that substitute decision-making in regard to the termination or withdrawal of life sustaining treatment is inconsistent with this right.   The informed consent of persons with disabilities should be secured on all matters relating to medical treatment, especially the withdrawal of treatment, nutrition or other life support.

 

Equal Recognition Before the Law (article 12)

 

Persons with disabilities have the right to recognition as persons before the law.  Recognition as a person before the law can be interpreted to mean to basic identity, such as the right to a name, or to identification documents.  It can also include civil rights, such as the right to marry.

 

This right includes the right to enjoy legal capacity on an equal basis with others in all aspects of life, for example the right to maintain one’s own physical and mental integrity. 

 

With regard to personal economic or financial affairs, persons with disabilities are recognized to have equal rights to own or inherit property, control their own financial affairs, have equal access to financial credit, and to not be arbitrarily deprived of their property.

 

Any measures that relate to the exercise of legal capacity should provide appropriate safeguards to prevent abuse in accordance with international human rights law.  Any safeguards should be free of conflict of interest and undue influence, proportional and tailored to the person's circumstances, apply for the shortest time possible and be subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards should be proportional to the degree to which such measures affect the person's rights and interests.

 

State laws on property, identity, guardianship, trusteeship, substitute decision-making, supported decision-making or judicial intervention may be scrutinized article 12 of the Convention.

 

Liberty and Security of the Person (article 14)

 

All persons with disabilities enjoy the right to liberty and security of the person.  Any deprivation of liberty should not be unlawful or arbitrary, and the existence of a disability does not justify a deprivation of liberty.  Involuntary detention or deprivation of liberty on the basis of disability, including perceived disability, can be a violation of the Convention. 

 

Freedom from Torture, or Cruel, Inhuman or Degrading Treatment or Punishment (article 15)

 

The prohibition of torture includes being subjected to medical or scientific experimentation without a person’s free consent.  In its concluding observations, the Committee has also used this article to raise issues of the use of continuous forcible medication as well as material conditions and degrading treatment or punishment in psychiatric institutions.

 

Freedom from Exploitation, Violence and Abuse (article 16)

 

Persons with disabilities are protected from all forms of exploitation, violence, and abuse, both within and outside of the home.  Special attention is paid to women and children with disabilities.

 

Integrity of the Person (article 17)

 

Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others. The Committee has elaborated that under this article, medical treatment, including mental health services and sterilization, should not take place without free and informed consent.

 

Freedom of Movement and Nationality (article 18)

 

States parties have an obligation to recognize the rights of persons with disabilities to liberty of movement, the freedom to choose their residence and to a nationality, on an equal basis with others.  This includes the right to:

 

  • acquire and change a nationality, and not to be deprived of their nationality arbitrarily or on the basis of their disability
  • not be deprived of the ability to obtain, possess or utilize documentation of their nationality or identification, and to be able to use the relevant processes that may be needed to facilitate the exercise of the right of liberty of movement
  • leave any country, including their own
  • not be deprived arbitrarily, or on the basis of disability, of the right to enter their own country
  • children with disabilities have the right to be registered at birth, and to have a name, the right to acquire a nationality, and as far as possible, the right to know and to be cared for by their parents.

 

Living Independently and Inclusion in the Community (article 19)

 

Persons with disabilities have an equal right with others to live in the community, with choices equal to others.  This includes the right to choose one’s place of residence and living arrangements, and access to services that will support living and inclusion in the community.

 

Personal Mobility (article 20)

 

States parties are obligated to facilitate access to aids and services to increase personal mobility.

 

Freedom of Expression and Opinion, and Access to Information (article 21)

 

Article 21 provides for the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others, and through all forms of communication of one’s choice. 

 

Privacy Rights (article 22)

 

Article 22 recognizes the right of all persons with disabilities to the protection of privacy, honour and reputation.

 

Respect for Home and Family (article 23)

 

Persons with disabilities have the right to marry and to found a family, including the number and spacing of children, and to retain their fertility, on an equal basis with others.  Article 23 also sets out States’ obligations with regard to guardianship and adoption of children, children with disabilities rights with respect to family life and alternate care.

 

Education (article 24)

 

Article 24 provides for the right to education, without discrimination, and provides for inclusive education at all levels.  State parties must reasonably accommodate persons with disabilities in the educational system.

 

Health (article 25)

Habilitation and Rehabilitation (article 26)

 

The right to health and access to services includes both equal access to health services and the provision of services that are required specifically because of a person’s disability.

 

Right to Work (article 27)

 

The right to work includes the right to obtain employment, without discrimination, as well as freedom from discrimination in the workplace.  Discrimination can include, among other things, the hiring/selection process, workplace accessibility, remuneration, conditions of work, trade union rights, or access to training.  Article 27(2) prohibits slavery and servitude, and provides for protection from forced or compulsive labour, on an equal basis with others.

 

Adequate Standard of Living and Social Protection (article 28)

 

Article 28 recognizes the right of persons with disabilities to an adequate standard of living for both themselves and their families (including food, clothing and housing) and the right to social protection. Social protection includes equal access to clean water services; access to social protection programmes and poverty reduction programmes; access, in cases of impoverishment, to assistance from the state for disability related expenses; access to public housing programmes; and access to retirement benefits and programmes.

 

Participation in Political and Public Life (article 29)

 

The right to full participation in political and public life includes the right to vote, be elected, hold office, participate in government,  and to participate in organizations concerned with public and political life.

 

Participation in Cultural Life, Recreation, Leisure and Sport (article 30)

 

The right to take part, on an equal basis in cultural life, includes access to cultural materials, television, theatre, films and cultural projects, as well as access to places for cultural performances or services, libraries, tourism, and sites of cultural or national importance.