Case Ⅰ

A case of institutionalization of a person with developmental disability

DRTAP Senior Attorney Yoshikaz Ikehara

Outline of the case

• Plaintiff: Person with a developmental disability: He was institutionalized far from his community although he had been narrowly able to live with informal support in his community.

• Defendant: Municipality, that sent the plaintiff to an institution 830km away from his home town.

The issue of the case

• Is it discrimination against a person with developmental disabilities and illegal to institutionalize him/her without considering reasonable accommodation to live in a community?

• Dose the municipality have obligation to monitor a private institution where the municipality sent people with developmental disability?

Domestic Law of these issues• JP. Constitution Art. 13 All of the people shall be respected as individuals. Their

right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

• JP. Constitution Art. 14-1 All of the people are equal under the law and there shall

be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

• JP. Constitution Art. 22-1 Every person shall have freedom to choose and change

his residence and to choose his occupation to the extent that it does not interfere with the public welfare.

Domestic Law of these issues• The Basic Act for Person with Disabilities Art. 3-3 No one shall be allowed to discriminate against

persons with disabilities or infringe their rights and benefits on the basis of disability.

• Persons with Developmental Disabilities Act (1955) Art. 16

A municipality has to take following measures for his welfare as the needs arises; to send a person with developmental disabilities into an institution , entrusting a social welfare organization with his protection in its institution.

Argument of Plaintiff

• To institutionalize the plaintiff infringes his autonomy under Constitution Art.3 and freedom to choose and change his residence under Constitution Art.22.

• To institutionalize a person with disability who can live with support in a community is illegal under Persons with Developmental Disabilities Act (1955) Art. 16, because it dose not meet his/her social welfare need.

Argument of Defendant

• The defendant alleged below:• The plaintiff consented his institutionalization.• Just before this institutionalization, the plaintiff

temporarily returned his previous care home after his community living because he had had some trouble, e.g. pilferage, never washing himself and having sexual relations with a lady with a developmental disability. Then he can not live independently in a community.

• The municipality dose not have power and obligation to monitor an institution that it entrusts with protection of a person concerned.

Judgment of JP. Domestic Court

• It is within discretion of the municipality to send the plaintiff to the institution.

• The municipality dose not have power and obligation to monitor a social welfare organization under social welfare act.

Points at issue of this judgment• The domestic court did not consider rights under CRPD

Art.19• the equal right of all persons with disabilities to live in

the community, with choices equal to others, • their full inclusion and participation in the community• the opportunity to choose their place of residence and

where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement

• access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community

Points at issue of this judgment

• The court did not scrutinize situation that the plaintiff had consented his institutionalization. He was explained nothing and proposed no alternatives.

• The court did not consider any reasonable accommodation to live in a community and admitted broad range of administrative discretion.

Application relationship of HR Treaty• A ratified treaty is domestically effective without

any specific domestic acts under JP. Constitution Art.98.

• But no treaty except self-executing one can not apply judicially.

• It is generally explained that ICCPR can apply judicially to the contrary ICESCR can not.

• However every provision of both covenants should be construed so as to realize it not only politically but judicially as much as possible because human rights under both covenants are interdependent and indivisible.

Application relationship of CRPD

• Art.19 seems to include social and cultural rights and civil rights.

• But it should apply judicially in principle because it aims at non-discrimination and inclusion conventionally encompassed with civil rights.

• At least normative value under Art.19 should apply to examine illegality of administrative decision such as institutionalization.

Application relationship of CRPDStructure of Law Application of HR Treaty

Possibility of CRPD• We should construe JP Constitution Art.14

and Art.22, and Persons with Developmental Disabilities Act (1955) Art. 16 in accordance with CRPD Art.2 and Art.19.

• It would have become obvious that the administrative decision was illegal and they have obligation to support the plaintiff to live independently with reasonable accommodation and to monitor private actors, if CRPD could have applied this case.

Possibility of DRTAP• Judging from conservativeness and judicial

self-restraint of JP. d ｏｍｅｓｔｉｃ court, CRPD will not be able to work enough. JP domestic court should be criticized from International Human Rights aspects.

• It is necessary that CRPD standard level should be implemented and universalized internationally and regionally.

• Multi-layered safeguard systems like Europe can protect and promote human rights.

Some issues of DRTAP left

• Whether taking all possible steps of national human rights remedy or not.

• Whether DRTAP should judge directly to domestic conflict between private parties or restrain justiciability within obligation of state party.