International Context: Work of the UN Committee on the Rights of Persons with Disabilities - Diane Kingston OBE UK elected member UN CRPD
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The Disability and Criminal Justice conference, 13th February 2015, aims to facilitate collaboration and knowledge exchange between individuals and organisations working to enhance equality and human rights for disabled people, including those who have or are diagnosed as having mental health conditions, in the context of police and prosecution services and systems. Diane Kingston, OBE set the international context for the conference on the work of the UN Committee on the Rights of Persons with Disabilities
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International Context: Work of the UN Committee on the Rights of Persons with Disabilities - Diane Kingston OBE UK elected member UN CRPD
- 2. Introduction Diane Kingston, UK member of the Expert Committee for the Convention on the Rights of Persons with Disabilities Role of the Committee 3 case studies Relevance of the UN Convention on the Rights of Persons with Disabilities to equality and human rights in the criminal justice system Concluding remarks
- 3. Role of the CRPD committee Monitor the implementation of the Convention Provide guidance Inquiries and individual complaints under the OP To date 151 countries have ratified Submission of initial State Report Build capacity of States parties (government in country)
- 4. Relevant Articles Article 5: Equality and non-discrimination Article 9: Accessibility Article 12: Equal recognition before the Law Article 13 - Access to justice Article 14 - Liberty and security of the person Article 16 - Freedom from exploitation, violence and abuse Article 17 – Integrity of the Person Article 21 - Freedom of expression Article 31 Data and statistics Articles 6 and 7 women and children
- 5. Case study # 1 Argentine jail conditions violated rights of prisoner with disabilities - UN Committee the Optional Protocol to the Convention gives the Committee the competence to examine individual complaints.
- 6. Case studies: # 2 Jack from Australia Intellectual disability and ADHD
- 7. Case study # 3 Recommendation from the Committee to El Salvador The Committee is concerned about the barriers to access to justice encountered by persons with disabilities and the lack of reasonable accommodation. The Committee is also concerned at the limited access to justice for women and girls with disabilities who are victims of abuse or neglect owing to the low credibility ascribed to their witness statements.
- 8. Equality and non-discrimination Article 5 All persons are equal before the law with entitlement to equal protection and benefit of the law on equal grounds without any discrimination. Prohibition of discrimination on the basis of disability and legal protection Provide reasonable accommodation
- 9. Accessibility Article 9 and General Comment #2 Accessible communication and information Accessible environments and buildings Accessible transport Provide training on accessibility
- 10. Equal recognition before the law Article 12 and General Comment 1 This article reaffirms that persons with disabilities have the right to recognition as persons before the law. Adequate training of personnel in the criminal justice system for persons affected by legal capacity issues. Access to support to exercise legal capacity Adequate safeguards
- 11. Access to Justice Article 13 Equal access to justice All stages of legal process covered Training of personnel in the criminal justice system Reasonable accommodation Age related accommodations
- 12. Right to liberty and security Article 14 This article ensures that persons with disabilities enjoy the right to liberty and personal security, and are not deprived of their liberty, unlawfully or arbitrarily, on the basis of the existence of a disability. Reasonable accommodation in detention and prisons ‘Danger to themselves or others’ not acceptable reason for detention.
- 13. Freedom from abuse Article 16 This article protects persons with disabilities from all forms of exploitation, violence and abuse, both within and outside the home, paying special attention to women and children with disabilities.
- 14. Integrity of the person Article 17 This article establishes the right to respect for the physical and mental integrity of persons with disabilities
- 15. Freedom of Expression Article 21 Freedom of expression and opinion, and access to information This article recognizes the right of persons with disabilities to freedom of expression and opinions, including the freedom to seek, receive and impart information and ideas through all forms of communication of their choosing.
- 16. Women and children Articles 6 women with disabilities and forthcoming General Comment #3 Article 7 children with disabilities
- 17. Concluding remarks All articles relevant to UK Most States are not yet implementing articles in the way we would like them to We provide guidance as a Committee Our website has additional information Access to justice is fundamental Examples of good practice from all countries, especially developed countries
- 18. Keep in touch Diane Kingston mrsdianekingston@yahoo.com Come to the committee! Thank you…..
Editor's Notes
- The committee is the UN body that monitors the implementation of the Convention We provide guidance in the form of General Comments to explain particular parts of the Convention that are not fully or easily understood, such as accessibility, legal capacity, the specific situation of women and girls, inclusive education and living independently. The committee has the mandate to investigate inquiries and individual complaints from countries who have ratified the convention under the Optional Protocol To date 151 countries have ratified the convention and 85 countries the OP including the UK Two years after ratification the country needs to submit its initial report, and then every 4 years The committee also has a remit under article 37 to build the capacity of countries to implement and then report on the convention
- There are a range of articles that are relevant to the equality and human rights in the criminal justice sphere, Some, such as access to justice, may seem more obvious than others, but I will give you some understanding of their interrelation in this presentation through 3 case studies
- Argentine jail conditions violated rights of prisoner with disabilities - UN Committee Argentine authorities failed to ensure that a prisoner with disabilities was able to use prison facilities and services on an equal basis with other detainees. Argentina is obliged to take action to rectify this situation and prevent similar violations, including making sufficient and reasonable adjustments when requested, to ensure persons with disabilities can access prison facilities and health care. The views of the committee came after considering a complaint by a prisoner serving a life term. While in pre-trial detention, he had a stroke which resulted in a cognitive disorder, partial loss of vision and mobility problems requiring him to use a wheelchair. The petitioner argued that prison conditions were affecting his physical and mental health. He could not maintain personal hygiene because he could not access a bathroom with his wheelchair on his own, nor could he get to the prison courtyard on his own. Regarding prisoners with disabilities in general, the CRPD said the authorities also had to ensure that a lack of accessibility did not cause physical or psychological suffering that may constitute cruel, inhuman or degrading treatment.
- Jack has an intellectual disability and attention deficit disorder, has been a victim of abuse and is homeless. Much of Jack’s contact and interaction with police has resulted in additional charges, including resisting, assaulting or intimidating police. When being fined for riding a bike without a helmet, Jack was cooperative until the police also searched him for drugs. He became verbally abusive, and continued to swear when walking away. The Police followed and grabbed him and told him he was under arrest for offensive language. The actions of the police escalated the situation and Jack was charged with intimidating police and resisting arrest.
- Access to justice (art. 13) 29. The Committee is concerned about the barriers to access to justice encountered by persons with disabilities and the lack of reasonable accommodation. The Committee is also concerned at the limited access to justice for women and girls with disabilities who are victims of abuse or neglect owing to the low credibility ascribed to their witness statements. 30. The Committee calls on the State party to: (a) Put in place reasonable procedural accommodation with a gender and age focus to ensure access to justice for persons with disabilities and to provide free legal assistance, information on each case — as early as the police investigation — in accessible formats, access to judicial buildings and the services of trained Salvadoran sign-language interpreters; (b) Strengthen the mandate of the Office of the Human Rights Advocate regarding legal remedies for the defence of the rights of persons with disabilities; (c) Design training programmes for all those involved in the legal system, including the police, judges, legal professionals, social workers and health-care workers, in both urban and rural areas; (d) Adopt measures to secure access to justice for women and girls with disabilities, with due consideration paid to their role as witnesses and victims during the trial phase.
- I will now explain how a number of articles of the Convention relate to broadly to access to justice and to the three case studies. Firstly, article 5 means that equality is about giving people the same rights. For persons with disabilities it may mean that they need some additional support to provide a level playing field. Reasonable accommodation means making modifications or adjustments to ensure equal rights. This may mean providing accessible communication, such as Braille, large print, audio, human readers, easy read and plain language. All 3 case studies show this – specifically for Jack, he may have benefitted from information in an Easy to read format
- For article 9 on accessibility, it deals with more than just ramps - accessible communication and information examples include: Sign language interpreters, augmentative communication, induction loops, including those used by the emergency services Accessible environments and buildings include tactile signs, colour contrasting, ramps, lifts and car parking spaces for example The prisoner required an accessible environment to uphold his human rights, he required a wheelchair accessible bathroom. Jack may have benefited from specific communication methods for his intellectual disability, especially in his early encounters with the criminal justice system.
- We often see that people with intellectual or psychosocial disabilities are regarded as lacking mental capacity in country reports. The lack of mental capacity is often used as a reason to deny legal capacity. The General Comment by the Committee on Article 12 makes it very clear that all decision making must be supported decsion making rather than substituted, or passed over to an appointed Guardian.
- Article 13 requires that procedural and age appropriate accommodations must be put in place so participants, including witnesses can take part in the justice system Appropriate training needs to be put in place for those working in the justice system, including police and prison staff All 3 case studies show the reason why these provisions are essential, in Jack’s case the police may have benefitted from training for communicating with someone with his specific requirements. The El Salvador recommendation went further than training just police and prison staff and included judges and social works in rural and urban settings.
- The lack of reasonable accommodation in the case of the prisoner clearly shows that his right to liberty and secruity were not on an equal basis with other prisoners. The committee has issued a statement on this article stating that legislation of several countries, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee - See more at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15183&LangID=E#sthash.FH0Nnk2i.dpuf
- Article 16 on freedom from exploitation, violence and abuse ins clear in The recommendations from El Salvador demonstrate the importance of this, especially for women and girls with disabilities.
- The prisoner example clearly showed that this was a breach of human rights. There was also a case that his treatment was a breach of article 15, that his lack of reasonable accommodation meant he was subjected to degrading treatment by not being able to use the bathroom to maintain his personal hygiene.
- Persons with disabilities need to be communicated with in the method of their choosing, again this is important in the case of Jack.
- Women and girls experience multiple discrimination by being both female and disabled. In relation to sexual violence, women and girls with disabilities experience rape and sexual abuse in all scenarios, within both state and non-state institutions. Violence, abuse and neglect of women and girls with disabilities in institutional settings is experienced more often than men with disabilities in institutions. In these circumstances, women with disabilities may experience violence for longer periods of time due to inadequate pathways to safety. People providing personal assistance and/or caregivers may also be the person assaulting and abusing the woman with disabilities. Thus, there is a need to ensure independent, accessible communication methods to enable her to report such situations . Mainstream communication services, including services for violence against women and childcare services, must be provided in all languages and formats possible and be easily accessible and safe. If such services are provided by means of a telephone hotline or tele-assistance, they should also be accessible for deaf and deaf blind women. Children require age appropriate assistance to realise their rights and need to receive appropriate assistance according to their disability to practice their rights, including an enabling environment to respond to the special needs the child might have rules to be made to avoid adversarial procedure in children’s court proceedings. These rules should include appropriate questioning techniques for children with intellectual, communication or psychosocial impairments. The El Salvadorian recommendation stated adoption of measures to secure access to justice for women and girls with disabilities, with due consideration paid to their role as witnesses and victims during the trial phase.
- All articles are relevant to UK situation, and most States are not yet implementing articles in the way we would like them to We provide guidance as a Committee, our website has additional information you can download Access to justice is a fundamental right for all of us persons with disabilities. We would like to see examples of good practice from all countries, especially developed countries like the United Kingdom. We all have room for improvement!
- Please keep in touch with me, Diane Kingston. And please come to the committee and see how we work and maybe what you can learn! Thank you for your time.